Whether a separate crime of fraud or a crime of embezzlement is established in case where a person deceptions a victim after being paid the price to the victim in a crime of fraud, thereby deceiving him/her again, or embezzled the price in the custody upon being entrusted by the victim (affirmative)

In the event of payment to the victim in a crime of fraud, if the victim by deceptions the victim's own price, or embezzled the price during the custody by being entrusted by the victim, it is a case of infringing a new legal interest, and thus, a new fraud or embezzlement separate from the existing fraud is established.

Articles 347(1) and 355(1) of the Criminal Act

Defendant 1 and two others

Prosecutor and Defendant 2 and one other

Attorney Park Jong-soo et al.

Seoul High Court Decision 2009No308 decided July 9, 2009

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

The grounds of appeal are examined.

1. As to Defendant 2’s ground of appeal

According to the reasoning of the lower judgment, the lower court acknowledged the facts as indicated in its reasoning. Comprehensively taking account of the following circumstances revealed by the evidence duly employed Nonindicted Co. 2: (a) Defendant 2, the head of Nonindicted Co. 2’s game business, who was engaged in the business of distributing games, etc. (hereinafter collectively referred to as “game machine, etc.”) selected by Nonindicted Co. 1, 360 (hereinafter referred to as “Nonindicted Co. 2”) and Nonindicted Co. 2 as the domestic market price of the said game machine, etc.; and (b) determined that Nonindicted Co. 2, 30,000 won, who was the representative of Nonindicted Co. 4 and Nonindicted Co. 2, who was the head of Nonindicted Co. 3’s business, supplied the game machine, etc. to Nonindicted Co. 4, 700,000 won, and was able to receive money from Nonindicted Co. 2, 400,000 won, for the purpose of resolving the shortage of payment for Nonindicted Co. 1, 204.

In light of the records, the above fact-finding and judgment of the court below are just and acceptable, and there is no error in the misapprehension of legal principles as to the establishment of fraud, the number of crimes and the establishment of accomplices, or the misconception of facts due to violation of the rules of evidence

2. As to Defendant 3’s ground of appeal

The lower court acknowledged the facts as indicated in its reasoning based on the duly employed evidence, and determined that Defendant 3 was aware of the fact that Defendant 3 was actively involved in the crime of defraudation against Nonindicted Co. 4, including acquisition of Nonindicted Co. 3 Co., Ltd. with Defendant 1.

In light of the records, the above fact-finding and judgment of the court below are justified, and there is no error of law such as misconception of facts against the rules of evidence as alleged in the grounds of appeal.

3. As to the Prosecutor’s Grounds of Appeal

A. As to Defendant 2’s assertion on the violation (Fraud) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter “Special Economic Crimes Act”) regarding the acquisition price of this case

The court below found the facts as stated in its reasoning based on the evidence duly employed, and found the following facts in light of the circumstances revealed in its finding. The court below acquitted Defendant 2 of all the charges on Defendant 2, on the ground that the evidence submitted by the prosecutor alone was insufficient to recognize that Defendant 2, Defendant 1 ordered to sell the game machine dumping with Defendant 1 and Defendant 3, Defendant 2 who pretended to express transactions with Defendant 1 and Defendant 3, Defendant 3 instructed Defendant 1 and 3 to express false facts in the process of inspection for acquisition of Nonindicted Co. 4, Defendant 3, ④ Nonindicted Co. 3 knew that the security offered by Nonindicted Co. 3 to secure the goods payment obligation against Nonindicted Co. 2, the security value for securing the goods payment obligation against Nonindicted Co. 3, and ⑤ Nonindicted Co. 4 was willing to receive the existing obligation against Nonindicted Co. 2, Defendant 3, as the sales price for the game machine supplied by Nonindicted Co. 2.

B. As to the Defendants’ primary charges of violation of the Act on the Special Economic Crimes (Fraud) on the supply of the game of this case, and the conjunctive charges of violation of the Act on the Special Economic Crimes (Embezzlement)

According to the reasoning of the judgment below, the court below held that, even if the defendants conspired with the defendants to sell the games supplied by the non-indicted 4 corporation to the non-indicted 3 corporation again, the management of the non-indicted 4 corporation could be enticed as if the non-indicted 4 corporation did not intend to pay the proceeds normally despite the absence of an intention to sell them to the non-indicted 4 corporation, and that the non-indicted 3 corporation could not receive money equivalent to KRW 4.7 billion out of the amount of 6.4 billion supplied by the non-indicted 4 corporation to the non-indicted 3 corporation again, or that the defendant 1, who was appointed to the head of the game business of the non-indicted 4 corporation as the defendant 2 and 3, supplied the above 4.7 billion won of the above 4.7 billion won of the above 4.7 billion won of the 4.7 billion won of the 4.7 billion won of the 4.7 billion won of the 4.7 billion won of the 4.7 billion won of the misappropriation of the 4.

However, in the case of fraud, if the victim is paid the price by deceiving the victim and deceiving it again, or embezzled the price in custody by being entrusted by the victim, it shall be deemed that a new crime of fraud or embezzlement has occurred. Thus, it shall be deemed that a new crime of fraud or embezzlement has been established separate from the existing crime of fraud. In addition, even if allowing the defendant to supply and sell the game equipment amounting to KRW 4.7 billion to the non-indicted 3 corporation according to the sales strategy of the non-indicted 4 corporation, if such sales strategy of the non-indicted 4 corporation was established either by deception of the defendants or with the intention of embezzlement of the game equipment, etc., or by Defendant 1, the head of the game business headquarters of the non-indicted 4 corporation, the defendant 1, who is the head of the non-indicted 4 corporation, was established with the intention of embezzlement of the above game machine, etc., the court below erred in the misapprehension of legal principles as to the crime of embezzlement or embezzlement of the above game machine, etc., or by providing the above game machine equipment to the non-indicted 3 corporation.

4. Scope of reversal

Therefore, the part of the judgment of the court below which acquitted the Defendants of the primary charges of violation of the Act on the Special Economic Crimes (Fraud) and of violation of the Act on the Special Economic Crimes (Embezzlement) on the supply of the game machine of this case should be reversed. On the other hand, the part of the crime of violation of the Act on the Special Economic Crimes (Fraud) against the Defendants, which found the Defendants not guilty on the guilty or on some grounds, should be reversed as it was prosecuted for a single offense as a whole with the primary charges of violation of the Act on the Special Economic Crimes (Fraud) on the supply of the game machine of this case, and the part of the remaining criminal facts of Defendants 1 and 3 should also be reversed in relation to the concurrent crimes of violation of the Act on the Special Economic Crimes (Fraud) and Article 37 of the Criminal Act.

5. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)