[1] Requirements for the establishment of a conspiracy in a conspiracy of co-principal, and the method of proof in a case where the defendant denies the criminal intent while recognizing the fact that he/she was directly involved in the conduct

[2] In a case of fraud, the amount obtained by deceit in part (=the whole property received)

[3] The meaning of the amount of profit prescribed in Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, and whether a crime of fraud is established independently for each victim in a case where a deceptive act is committed against several victims (affirmative)

[4] Criteria to distinguish between ordinary competition and legal competition agreement

[5] Relationship between the crime of fraud under Article 347 (1) of the Criminal Code and the crime of violation under Article 45 (2) 1 of the Door-to-Door Sales, etc. Act (=actual concurrent crimes)

[1] In relation to accomplices who jointly process two or more crimes, the conspiracy does not require any legal punishment, but is only a combination of two or more persons to jointly process and realize crimes. Even if there was no process of conspiracy, if there was a combination of opinions in order or impliedly, the conspiracy is established between several persons, and it is necessary to establish such conspiracy or conspiracy's criminal facts, and it is necessary to prove it. However, in a case where the defendant denies the criminal intent with the fact that he directly participated in the act of conspiracy while recognizing the fact that he was involved in the act of conspiracy, it is inevitable to prove it by the method of proving indirect facts which have a substantial relation with the criminal intent, and what constitutes indirect facts should be reasonably determined by the close observation or analysis power based on normal empirical rule.

[2] In a crime of fraud involving taking advantage of property, if there is a delivery of property due to deception, it constitutes a crime of fraud by itself by infringing the victim's property, and even if considerable consideration has been paid or no damage has occurred to the whole property of the victim, the crime of fraud does not affect the establishment of the crime of fraud. Therefore, even if such consideration has been partially paid, it shall be the whole property received, not the difference between the value of the property given from the victim and the value of the property.

[3] The amount of profit under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes refers to the sum of the amount of profit or the amount of profit if the crime of simple crime is established, and it does not mean the sum of each amount of profit which can be punished as concurrent crimes, and in case where several victims acquire each property by deception, even if the crime is a single crime and the method of crime is identical, the damage legal interest of each victim is independent, so it cannot be understood as a single crime, and a crime of fraud is established independently for each victim.

[4] Commercial concurrence refers to a case where a single act actually satisfies several elements. Legal concurrence refers to a case where a single act appears to meet the elements of several crimes in appearance, but actually constitutes only one crime. Whether a single crime is actually one crime or several crimes should be determined in terms of the evaluation of the constituent elements and the legal interests and interests.

[5] Article 45 (2) 1 of the Door-to-Door Sales, etc. Act provides that "any person shall not engage in only monetary transactions without any transaction of goods or services or engage in actual monetary transactions in disguise of any transaction of goods or services, using a multi-level marketing organization or a multi-level marketing organization similar to the multi-level marketing organization and a multi-level marketing organization similar to the above-level marketing organization." The act itself cannot be regarded as a fraud. The crime of violation of Article 347 (1) of the Criminal Act and Article 45 (2) 1 of the Door-to-Door Sales, etc. Act through such monetary transactions does not constitute a case where the crime of violation of Article 347 (1) of the Criminal Act and Article 45 (2) 1 of the Door-to-Door Sales, etc. Act are assessed as one act. Further, since each of the elements

[1] Articles 13 and 30 of the Criminal Code, Article 307 of the Criminal Procedure Act / [2] Article 347 of the Criminal Code / [3] Article 347 of the Criminal Code, Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes / [4] Article 40 of the Criminal Code / [5] Article 347 of the Criminal Code, Article 45 (

[1] Supreme Court Decisions 88Do1114 delivered on September 13, 198 (Gong198, 1294) 98Do30 delivered on March 27, 1998 (Gong1998Sang, 1261), Supreme Court Decision 98Do2654 delivered on November 24, 1998 (Gong199Sang, 81), 99Do4923 delivered on March 14, 200 (Gong200Sang, 100Sang, 1011) / [2] Supreme Court Decision 82Do777 delivered on June 22, 198 (Gong1982, 72299) 98Do3979 delivered on May 14, 1985 (Gong97989 decided May 29, 209)

Defendant 1 and two others

Defendants

Law Firm Written, Attorneys Yellow-gu et al.

Busan High Court Decision 200No33 delivered on April 20, 2000, 200 early August 8, 2000, 9, 10, 11, 12, 13

All appeals are dismissed. 7 days of detention days after the appeal shall be included in the punishment of each original judgment by the Defendants.

The defendants' defense counsels and the defendants' grounds of appeal are examined together.

As to the argument of violation of rules of evidence

In relation to co-offenders who jointly process two or more crimes, the conspiracy does not require any legal punishment, but is only a combination of two or more persons to jointly process and realize crimes. Even if there was no process of the whole conspiracy, if the combination of the intent is achieved in order or implicitly through several persons, the conspiracy relationship is established. In addition, it is necessary to establish such conspiracy or conspiracy's criminal facts in the conspiracy of co-principal, and it is necessary to prove it. However, if the defendant denies the criminal intent while recognizing the facts directly involved in the act of the conspiracy, it is inevitable to prove it by the method of proving indirect facts having considerable relation with the criminal intent, and what constitutes indirect facts having considerable relation with the criminal intention should be determined by the method of reasonably determining the situation of connection by the observation or analysis power closely conducted based on normal empirical rule (see Supreme Court Decision 98Do2654, Nov. 24, 1998).

In addition, in a crime of fraud the content of which is taking advantage of property, if there is a delivery of property by deception, it constitutes a crime of fraud by itself, which infringes on the victim's property, and even if considerable consideration has been paid or no damage has occurred to the whole property of the victim, the establishment of the crime of fraud does not affect the establishment of the crime of fraud. Therefore, even if such consideration has been partially paid in the crime of fraud, it shall be the whole property received, not the difference between the value of the property given from the victim and the value of the property (see, e.g., Supreme Court Decisions 9Do1040, Jul. 9, 199; 95Do203, Mar. 24, 1995).

In light of the records, the court below's decision that recognized the criminal facts of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Habitual Fraud) is just in accordance with the above legal principles, and there is no error of law such as misunderstanding of facts that affected the judgment by violating the rules of evidence, such as recognizing facts without any evidence, which affected the conclusion of the judgment.

We cannot accept this argument in the grounds of appeal.

As to the assertion of misunderstanding legal principles

The amount of profit referred to in Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes refers to the sum of the amount of profit or the amount of profit if a single crime is established, and it does not mean the sum of each amount of profit which can be punished as concurrent crimes (see, e.g., Supreme Court Decisions 2000Do28, Mar. 24, 200; 93Do743, Jun. 22, 1993); and in cases where several victims of a deceitful act are acquired by deception, each of them is a single criminal intent, and even if the method of crime is identical, the legal interest of each victim is independent, so it cannot be understood as a single crime, and a separate crime of fraud is established for each victim (see, e.g., Supreme Court Decision 93Do743, Jun. 22, 1993).

However, the court below's decision that applied the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes to the Defendants on the Aggravated Punishment, etc. of Specific Economic Crimes on the basis of the aggregate amount of the amount of profit by victim is correct since the crime of violation of the Aggravated Punishment, etc. of Specific Economic Crimes (Habitual Fraud) constitutes

We cannot accept the allegation in the grounds of appeal.

Concerning the argument regarding the number of crimes

Trade concurrence refers to a case where a single act actually satisfies several requirements for establishment. Legal concurrence refers to a case where a single act appears to meet the requirements for establishment of several crimes, but actually constitutes one crime. Whether a single crime or several crimes are actually established should be determined by considering the nature of the elements for establishment and the legal interests and interests protected by the law (see, e.g., Supreme Court Decisions 97Do2956, Mar. 24, 1998; 84Do782, Jun. 26, 1984).

Article 45 (2) 1 of the Door-to-Door Sales, etc. Act provides that "any person shall not engage in only monetary transactions without any transaction of goods or services, or engage in only money transactions in disguise of any transaction of goods or services, using a multi-level marketing organization or a multi-level marketing organization similar thereto, consecutively or in any other similar manner." The act itself cannot be regarded as a fraud. A violation of Article 347 (1) of the Criminal Act and Article 45 (2) 1 of the Door-to-Door Sales, etc. Act through such monetary transactions does not constitute a case where a violation of Article 347 (1) of the Criminal Act and Article 45 (2) 1 of the Door-to-Door Sales, etc. Act is a separate crime that differs from each other's legal interests and interests, and it is reasonable to view each other as a substantive competition relationship

Therefore, the judgment of the court below on such premise is just, and there is no error in the misapprehension of legal principles as to the number of crimes.

The argument of this point in the grounds of appeal is not accepted.

Concerning the argument of unfair sentencing

In this case where Defendant 1 was sentenced to a minor sentence more than 10 years of imprisonment with prison labor, the argument that the sentencing is unfair is not a legitimate ground for appeal in light of the purport of Article 383 subparag. 4 of the Criminal Procedure Act, and thus, cannot be accepted.

Therefore, all appeals are dismissed, and 77 days of detention days after the appeal shall be included in the punishment of each judgment below by the Defendants. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Lee Yong-woo (Presiding Justice)