The meaning of “a person who disguises the fact about acquisition of criminal proceeds, etc.” under Article 3(1)1 of the Act on Regulation and Punishment of Criminal Proceeds Concealment, and the meaning of “a person who disguises the fact about the cause of criminal proceeds,” under Article 3(1)2 of the same Act, and whether such act should be an act separate from the relevant criminal act generating criminal proceeds (affirmative)

"The act of pretending the acquisition of criminal proceeds, etc." under Article 3 (1) 1 of the Act on Regulation and Punishment of Criminal Proceeds Concealment means the act of pretending the acquisition of criminal proceeds, etc. as if they were properly acquired, or as if they were not attributed to criminal proceeds, the act of pretending the fact concerning the acquisition of criminal proceeds, etc., and "the act of pretending the fact concerning the cause of criminal proceeds" under Article 3 (1) 2 of that Act refers to the act of pretending as if there exists no fact about the cause of criminal proceeds as if there exists no fact about the cause of crime proceeds or as if there exists no fact about the existence thereof. Thus, such act should be deemed as an act separate from the act of causing criminal proceeds, and it does not

Article 3(1)1 and 2 of the Act on Regulation and Punishment of Criminal Proceeds Concealment

Supreme Court Decision 2006Do7881 Decided February 15, 2008

Defendant

Defendant

Attorney Lee Jae-ap

Busan High Court (Chowon) Decision 2013No428 decided March 26, 2014

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

The allegation in the grounds of appeal in this part is not a legitimate ground of appeal since the defendant asserted that it was the grounds of appeal or that the court below did not consider it as the subject of ex officio decision, and it cannot be a legitimate ground of appeal. Moreover, even if ex officio examination is not made, the judgment

2. As to the violation of the Act on Regulation and Punishment of Criminal Proceeds Concealment

A. In a case where the Defendant submitted a tax invoice in the name of ○○○ and △△△△△ to the victim bank in order to obtain corporate purchase funds, and received corporate purchase funds from the victim bank in the name of the representative of ○○ and △△△△△△△△, and delivered them to the passbook in the name of the Defendant or the Defendant’s non-indicted corporation operated, the lower court determined that such act constitutes an act of pretending the fact about the acquisition of property and the cause thereof arising from a criminal act that constitutes a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), and thus, constitutes an element of Article 3(1)1 and

B. However, the lower court’s determination is difficult to accept for the following reasons.

"The act of pretending the acquisition of criminal proceeds, etc." under Article 3 (1) 1 of the Act on Regulation and Punishment of Criminal Proceeds Concealment means the act of pretending the acquisition of criminal proceeds, etc. as if they were properly acquired, or as if they were not attributed to criminal proceeds, etc. (see Supreme Court Decision 2006Do7881, Feb. 15, 2008). "the act of pretending the fact about the cause of criminal proceeds" under Article 3 (1) 2 of the Act refers to an act that pretends as if there exists no fact about the cause of criminal proceeds, or as if there exists no fact about the existence thereof, it means an act that pretends to exist as if there exists no fact about the cause of criminal proceeds. Such act means an act that can be evaluated as an act that is separate from the act that generates criminal proceeds, and it does not constitute the act itself.

The summary of the crime in question, which resulted in the defendant's criminal proceeds, is that the defendant actually uses it as the operating fund of the company operated by ○○○○ and △△△△△△△△△ in the process of receiving a loan under the guarantee of the Fund of △△△△, and submitting a tax invoice in the name of a trader, a trader, and applying for a loan from the victim bank, and received a loan from the victim bank in the name of the representative of ○○ and △△△△△△△△△△△△△△△△. Since the above corporate purchase loan is made by the victim bank, the victim bank was paid the purchase fund. Since the above corporate purchase loan is made in the name of the victim bank in the name of ○○ and △△△△△△△△△△△△△△△△△△△△△△△, which is the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), which is a crime causing criminal proceeds as seen above, and it cannot be deemed that the crime of fraud and the crime in question of fraud is not attributable to the defendant.

C. Nevertheless, the lower court determined that the Defendant’s act constitutes a constituent element of a crime of violation of the Act on Regulation and Punishment of Criminal Proceeds Concealment on the sole basis of the foregoing circumstances. In so determining, the lower court erred by misapprehending the legal doctrine on the requirements for establishment of a crime of violation of the Act on Regulation and Punishment of Criminal Proceeds Concealment, thereby adversely affecting the conclusion of the judgment. The allegation

3. Conclusion

As stated above, we cannot accept the argument in the grounds of appeal on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes. However, since the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and the crime of violation of the Act on the Regulation and Punishment of Criminal Proceeds Concealment are concurrent crimes under the former part of Article 37 of the Criminal Act, the part of the judgment of the court below on the violation of the Act on the Aggravated Punishment

Therefore, without further proceeding to decide on the remaining grounds of appeal, all the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Kim Shin (Presiding Justice)