A. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

B. Name of crime recognized as fraud: Aggravated Punishment of Specific Economic Crimes

Violation of the Act (Fraud)

C. Violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission

Defendant

Defendant

Law Firm LLC (Law Firm LLC, Attorneys Park Im-sik et al., Counsel for the plaintiff-appellant)

Applicant for Compensation

Seoul High Court Decision 2009Do2076 Decided January 28, 2010

July 8, 2010

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

We examine the grounds of appeal.

1. As to the ground of appeal No. 1. A

According to the reasoning of the judgment of the court below, the court below sentenced each of the following offenses on the ground that the crime of habitual fraud and the crime of simple fraud which received the final judgment among the facts charged in this case were caused by the defendant's fraudulent habit, and each of the above fraud crimes was committed by the defendant, which can be covered by the single crime of habitual fraud under the substantive law. However, since the defendant was punished by the crime of simple fraud in the above final judgment, the res judicata does not extend to the remaining fraud crimes before the judgment of the court below was rendered, and since there was a final judgment on the middle of the crime of habitual fraud, the series of offenses which could have been originally covered by the crime of simple fraud are separated from before and after the final judgment, and each of the separate cases could not be deemed to be identical.

However, in a case where the crime of habitual fraud was committed over the period before and after the final judgment on the crime of simple fraud, it is not divided into two crimes, and it is completed at the time of the final crime which is after the final judgment. Therefore, it is reasonable to view the crime of habitual fraud of this case as a single comprehensive crime committed thereafter in relation to the crime of simple fraud which became final and conclusive on August 17, 2003.

Therefore, the judgment of the court below that imposed two punishments on the defendant on the ground that the crime of Article 37 (1) of the Criminal Act was committed prior to the above final judgment as to the crime of Article 2. A. The court below erred by misapprehending the legal principles on the number of crimes and concurrent crimes, thereby affecting the conclusion of the judgment. The ground of appeal pointing this out is with merit.

2. As to the remaining grounds of appeal

Examining the evidence admitted by the lower court and the first instance judgment in light of the records, it is justifiable for the lower court to have found the Defendant guilty of each of the crimes in this case on its reasoning as stated in its reasoning.

As alleged in the ground of appeal, the court below did not err by misapprehending the legal principles on the suspension of accomplices or by violating the rules of evidence or by failing to exhaust all necessary deliberations, and thus, it erred by misapprehending the rules of evidence selection or fact-finding which belong to the exclusive jurisdiction of the court below, or by misapprehending the legal principles on the premise that the facts recognized by the court below are different from the facts, cannot be a legitimate

3. Scope of reversal

Since the crime of violation of the Act on the Regulation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, which is a single comprehensive crime after the final and conclusive judgment, is in the relation of the crime of violation of the Act on the Regulation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes and the crime of concurrent crimes,

Since two punishments are sentenced in light of the above, the entire judgment of the court below is to be reversed.

4. Conclusion

Therefore, all of 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 Lee Hong-hoon,

Justices Kim Young-ran

Justices Kim Nung-hwan

Justices Min Il-young