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(영문) 대법원 2018.01.25 2017도13676
특정경제범죄가중처벌등에관한법률위반(횡령)등
Text

All appeals are dismissed.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds for appeal by Defendant A, B, and E

A. In full view of the facts acknowledged by the evidence, the lower court, based on the following facts, imposed an external punishment on Defendant A, B, and E, such as: (a) the Defendants, by raising pigs at the commission fee received from the truster, to deliver the money to the truster; and (b) receiving the money in advance; and (c) paying the money for futures trading.

Even if this is actually an investment of funds required for both Z and other kinds of money projects from many unspecified clients, it would be paid to the truster the principal and high rate of the entrusted amount with the proceeds of the Z.

Since it is guaranteed, it was determined that the act of receiving contributions from the clients is merely an act of receiving contributions, and it cannot be said that the actual transaction of swine is an act of receiving contributions, not an act of mediating the consignment breeding or sexual money transaction.

Ultimately, the Defendants guilty of this part of the facts charged on the ground that the Defendants’ act of attracting funds constitutes a similar receiving act under Article 2 subparag. 1 of the Act on the Regulation of Similar Receiving Activities.

In light of the relevant legal principles and records, the lower court erred by misapprehending the legal principles as to the act of receiving similar goods, excluding illegality, and misunderstanding of gold paper, or by misapprehending the legal principles as to the existence of an intentional act of receiving similar goods in violation of logical and empirical rules, or by misapprehending the facts concerning the existence of an intentional act of receiving similar goods in violation of the rules of logic and experience, or by misapprehending the reasoning, omitting judgment,

subsection (b) of this section.

B. Based on its stated reasoning, the lower court held that Defendant A and B’s financial institutions violated the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), and based on the evidence, the said Defendants are substantial.

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