[1] Whether a “spouse” referred to in Article 328(1) of the Criminal Code, which provides for a family precedent, refers only to a spouse of a family member who is a family member (negative)

[2] The case affirming the judgment below that exempted the victim Gap from punishment for habitual fraud pursuant to Articles 354 and 328 (1) of the Criminal Act on the ground that the victim Gap's lineal blood relative's spouse is a victim's lineal blood relative.

[1] Articles 328(1) and 354 of the Criminal Act / [2] Articles 328(1), 347(1), 351, and 354 of the Criminal Act; Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

Defendant

Defendant and Prosecutor

Attorney Yang Dong-chul

Freeboard and eight others

Gwangju High Court Decision 2010No291, 2010 early 45 decided January 20, 201

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

In light of the evidence duly admitted by the court below and the court below, it is just that the court below found the defendant guilty of each crime of this case and sentenced the compensation order on the grounds as stated in its reasoning, and there is no violation of law of logic and experience and free evaluation of evidence.

In addition, under Article 383 subparagraph 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed. Thus, in this case where the defendant was sentenced to imprisonment with prison labor for less than ten years, the reason that the sentencing of the sentence is unfair is not legitimate.

2. As to the Prosecutor’s Grounds of Appeal

Article 328(1) of the Criminal Act which applies mutatis mutandis under Article 354 of the same Act provides that "the crime of Article 323 between lineal blood relatives, spouse, relatives living together, family members living together, or their spouses shall be exempted from punishment." The term "spouse" does not mean only the spouse of a family member, but also the spouse of a lineal blood relative, relatives living together, and all of the family members living together. According to the records, the exemption of punishment against the charge of habitual fraud against only the victim is just on the ground that the defendant is the spouse of a lineal blood relative only for the formation of a victim pursuant to Articles 354 and 328(1) of the Criminal Act, and contrary to the allegations in the grounds of appeal, there is no error of law by misunderstanding the legal principles as to the precedent among relatives

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)