[1] The meaning of "the act of fund-raising without permission" under Article 2 subparagraph 4 of the Act on the Regulation of Conducting Fund-Raising Business without Permission

[2] The meaning of an insurance business under the Insurance Business Act and the standard for determining its scope

[3] The case holding that the act of receiving annual fees constitutes "the act of receiving fees without permission" under Article 2 subparagraph 4 of the Act on the Regulation of Conducting Fund-Raising Business without Permission under the agreement to compensate for the amount equivalent to the traffic penalty

[4] The case holding that since part of the facts charged against the violation of the Door-to-Door Sales, etc. Act has already become final and conclusive and thus, a judgment of acquittal should be rendered on such part

[5] The relation between the crime of violating Article 6, Article 3, and Article 2 subparagraph 4 of the Act on the Regulation of Conducting Fund-Raising Business without Registration and the crime of violating Article 58 subparagraph 1 of the Door-to-Door Sales, etc. Act and Article 28 (1) of the Act on Door-to-Door Sales, etc. (=the crime of actual concurrent crimes)

[1] In full view of the legislative purport of the Act on the Regulation of Conducting Fund-Raising Business without Permission and the legislative intent, regulatory form, etc. under Article 2 subparagraph 4 of the same Act refers to the act of operating an insurance business without permission of the Financial Supervisory Commission under Article 5 (1) of the Insurance Business Act and importing money under the pretext of membership fees, etc. from many unspecified persons by substantially operating an insurance business without permission.

[2] The term "insurance business" means a business which takes over risks from a large number of policyholders at the same risk, manages and operates the premium according to the risk ratio in consideration of such risks, and pays a certain amount of insurance amount and other benefits to the subscribers in the event of an uncertain accident. The scope of the insurance business shall be determined by considering its substance and economic nature, regardless of its name or legal composition form.

[3] The case holding that the act of receiving annual fees constitutes "the act of receiving fees without permission" under Article 2 subparagraph 4 of the Act on the Regulation of Conducting Fund-Raising Business without Permission under the agreement to compensate for the amount equivalent to the traffic penalty and the act of receiving annual fees without permission

[4] The case holding that part of the facts charged against the violation of the Door-to-Door Sales, etc. Act has already become final and conclusive, and thus, a judgment of acquittal should be rendered on such part

[5] Article 58 subparagraph 1 of the Door-to-Door Sales Act punishs "a person who establishes, manages, and operates a multi-level marketing organization without registration in violation of Article 28 (1)" and its legal interest and protection differs from Article 3 and Article 2 (4) of the Act on the Regulation of Conducting Fund-Raising Business without Permission. Thus, the violation of each subparagraph of Article 3 and Article 2 of the Act on the Regulation of Conducting Fund-Raising Business without Permission and the violation of Article 28 (1) of the Door-to-Door Sales, etc. Act on the Regulation of Conducting Fund-Raising Business without Permission does not constitute a case where it is evaluated as one act under law. Thus, the two crimes are not considered as a commercial competition relationship, but as a substantive competition relationship.

[1] Article 2 subparag. 4 of the Act on the Regulation of Conducting Fund-Raising Business without Permission, Article 5(1) of the Insurance Business Act / [2] Article 5(1) of the Insurance Business Act / [3] Article 2 subparag. 4 of the Act on the Regulation of Conducting Fund-Raising Business without Permission, Article 5(1) of the Insurance Business Act / [4] Article 37 of the Criminal Act, Article 326 subparag. 1 of the Criminal Procedure Act, Articles 28(1), 58 subparag. 1, and 63 of the Door-to-Door Sales, etc. Act / [5] Article 37 of the Criminal Act, Article 28(1) and Article 5(1) of the Door-to-Door Sales, etc. Act, Article 2 subparag. 4,

[2] Supreme Court Decision 87Do2172 delivered on January 31, 1989 (Gong1989, 371), Supreme Court Decision 88Do2111 delivered on September 26, 1989 (Gong1989, 1615), Supreme Court Decision 89Do117 delivered on October 10, 198 (Gong1989, 1710), Supreme Court Decision 89Do2537 delivered on June 26, 1990 (Gong190, 1633)

Defendant 1 and two others

Defendants

Attorneys White-in and 9 others

Seoul District Court Decision 2000No4505 Delivered on December 21, 2000

The part of the judgment of the court below against Defendant 2 is reversed, and that part of the case is remanded to the Seoul District Court Panel Division. All appeals by Defendants 1 and 3 are dismissed.

The grounds of appeal by defense counsel (if the supplemental appellate brief was not timely filed, to the extent of supplement) are also examined.

1. As to the violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission

A. In full view of the legislative purport of the Act on the Regulation of Conducting Fund-Raising Business without Permission and the legislative intent, regulatory form, etc. under Article 2 subparagraph 4 of the same Act refers to the act of carrying on fund-raising from many and unspecified persons by actually carrying on insurance business without permission of the Financial Supervisory Commission under Article 5 (1) of the Insurance Business Act, and importing money under the pretext of membership fees, etc.," while the insurance business refers to the act of carrying on fund-raising from many and unspecified persons. On the other hand, the insurance business takes over risks from many insured persons at the same risk, and managing and operating the premium at the risk rate as the price, and the management and operation of the premium is paid in accordance with the uncertain rate, and the scope of the insurance business shall be determined by considering the substance or economic nature of the business without referring to the name of the business or the legal form (see, e.g., Supreme Court Decision 89Do2537, Jun. 26, 190).

According to the records, Defendant 2 Co., Ltd. (hereinafter referred to as “Defendant 2”) entered into an insurance contract with the member under the name of “the guarantee of 100's license without permission from the Financial Supervisory Commission” and entered into a contract with the member with the same kind of 59(excluding partial violations) as provided for in Article 73 of the Enforcement Decree of the Road Traffic Act during one year from the date of membership membership, instead of paying the amount of penalty to the member, regardless of the recovery and amount, with the entire payment of the penalty amount. The type of the product is expected to have the possibility of violation in the case of the general member, and thus, the driver of the passenger car is not Class 1(the age of 40 is less than 8, the age of 40, the age of 20, the number of non-indicted 1's non-indicted 2's non-indicted 4's non-indicted 2's non-indicted 2's non-indicted 2's non-indicted 30's non-indicted 8's non-indicted 1's membership.

B. According to the evidence duly admitted by the court of first instance, as cited by the court below, Defendant 3 was sentenced to two years of suspension of execution on December 8, 199 to the crime of violating the Door-to-Door Sales, etc. Act from the time of establishment of Defendant 2 to the representative director. Defendant 3 was sentenced to two years of suspension of execution on December 1, 199 to the crime of violating the Door-to-Door Sales, etc. Act. However, it is sufficiently recognized that Defendant 1, the chief executive officer, was appointed to the representative director at the time of the resignation of the representative director and the director. However, the court below found Defendant 3 guilty of violating the Act on the Regulation of Temporary Collection of Claims against Defendant 3 as the chairperson of the company until January 17, 200, and there is no error in the misapprehension of legal principles as to the application of the Act on the Regulation of Temporary Collection of Claims. The ground of appeal on this part is without merit.

2. On the violation of the Door-to-Door Sales Act

A. According to the evidence duly admitted by the court of first instance as cited by the court below, from January 15, 199 to December 7 of the same year, Defendant 1 as the director and the managing director of the company from January 15, 199 to the time when Defendant 2 was established, together with Defendant 3, the representative director of the company, Nonindicted 1, the director and the managing director of the company, Nonindicted 2, and Nonindicted 3, the general director of the marketing division, and from December 8 of the same year, Defendant 3 and the above Nonindicted 3 as the representative director of the company, as well as the representative director of the company and the above Nonindicted 3. Thus, the court below found Defendant 1 guilty of violating the Act on Door-to-Door Sales, etc., as alleged in the grounds of appeal. This part of the grounds of appeal is without merit.

B. Of the facts charged as to Defendant 2’s violation of the Door-to-Door Sales, etc. Act, the lower court found Defendant 3, etc. guilty by applying the joint penal provisions of Article 63 of the same Act to “the act of opening, managing, and operating a multi-level marketing organization from January 20, 199 to December 13 of the same year.”

However, the above measures of the court below are not acceptable.

According to the records, Defendant 2 issued a summary order of KRW 5,00,00 upon application of the joint penal provisions of Article 63 of the Act on Door-to-Door Sales, etc. from January 20, 199 to September 30 of the same year with respect to the establishment, management, and operation of a multilevel marketing organization by Defendant 3 who is its representative from January 20, 199 to September 30 of the same year, and around that time, the above summary order became final and conclusive. Thus, among the facts charged against Defendant 2 as to the violation of the Act on Door-to-Door Sales, etc. of this case against Defendant 2, "the part of crime committed from January 20, 199 to November 18 of the same year, which was the date of the issuance of the above summary order, constitutes "the final judgment under Article 326 subparagraph 1 of the Criminal Procedure Act," and thus, the judgment of acquittal should be rendered, despite the judgment of acquittal, the judgment of conviction is justified.

3. As to the assertion regarding the acceptance of crime

Article 58 subparagraph 1 of the Door-to-Door Sales Act punishs "a person who establishes, manages, and operates a multi-level marketing organization without registration in violation of Article 28 (1)", and it differs from the provisions of Article 3 and Article 2 (4) of the Act on the Regulation of Conducting Fund-Raising Business without Permission. Thus, the violation of each subparagraph of Article 3 and Article 2 of the Act on the Regulation of Conducting Fund-Raising Business without Permission and the protection of legal interests and interests, and the violation of Article 28 (1) of the Door-to-Door Sales, etc. Act does not fall under the case of being evaluated as one act under the law. Thus, the two crimes should not be regarded as a commercial competition relationship, but as a substantive competition relationship.

In the same purport, the judgment of the court below which held that there is a substantive competition between the violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission and the Door-to-Door Sales, etc. Act is just, and there is no violation of law by misapprehending legal principles as to evaluation of the number of crimes

4. Therefore, the part of the judgment of the court below on the violation of the Door-to-Door Sales, etc. Act against Defendant 2 (including the part on acquittal, which corresponds to a part of the general daily crime) shall not be exempted from reversal. Appeal on the violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission against Defendant 2 and the appeal by Defendant 1 and 3 against Defendant 2 are all without merit. However, since the court below rendered a single sentence on the ground that each of the offenses against Defendant 2 constitutes concurrent crimes under the former part of Article 37 of the Criminal Act, the part on Defendant 2 among the judgment below is reversed, and the corresponding part shall be remanded to the court below

Justices Park Jae- Jae (Presiding Justice)