Whether the Criminal Code provisions on relative inheritance also apply to the violation of Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes.

Even if the amount of profit in embezzlement is more than five hundred million won and is subject to aggravated punishment pursuant to Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter referred to as the "Special Economic Crimes"), the nature of the crime of embezzlement is maintained as it is, and there is no express provision that the Criminal Act does not apply to the above Special Economic Crimes Act, which is a special law, so Articles 361 and 328 of the Criminal Act concerning relatives also apply to the crime of violation of Article 3 (1) of the Special Economic Crimes

Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 361 and 328 of the Criminal Act

Defendant

Defendant

Busan District Court Decision 92Da1253, 93 Gohap151 delivered on July 9, 1993

The judgment below is reversed,

The defendant shall be punished by imprisonment with prison labor for six months and fines of thirty thousand,00,00 won, and each of the crimes listed in [Attachment A-(2)] No. 1-(1) in [Attachment A-B] and [Attachment A-D] in [Attachment A-D] of the holding that the defendant shall be punished by imprisonment with prison labor for each of the crimes listed in the list of crimes listed in Annex A-B and Annex A-D in [Attachment A-B] of the holding that the defendant shall be punished by imprisonment with prison labor for one year.

When the defendant does not pay the above fine, the defendant shall be confined in a workhouse for the period calculated by converting 10,000 won into one day.

Part 1.A of the detention days before the sentence of the judgment of the court below is 125 days, each of the crimes listed in the annexed Table 1-(1) in the annexed Table No. 1.B. of the judgment of the court below, and each of the crimes listed in the annexed Table No. 1-(2) among the crimes listed in the annexed Table No. 1.B. of the judgment of the court below is 1.5 days, and the above imprisonment for each crime listed in the annexed Table No. 1-(1).

However, the execution of each of the above imprisonment shall be suspended for two years from the date of the final judgment.

Among the facts charged in this case, each indictment on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) is dismissed.

1. Reasons for appeal by the defendant and his defense counsel;

A. misunderstanding of facts and misapprehension of legal principles

(1) As to the facts set forth in subparagraph 1. A at the original adjudication, the Defendant: (a) made each provisional registration of Nonindicted Party 2, the husband of Nonindicted Party 1, at the time of the original adjudication on the security of the Defendant’s obligation against Nonindicted Party 1; and (b) subsequently, upon the original adjudication on the security of the Defendant’s obligation against Nonindicted Party 1, made each of the above provisional registration on each of the real estate under the name of Nonindicted Party 1, the Defendant’s husband; (c) made each proxy of Nonindicted Party 2 with the consent of Nonindicted Party 2 and 1; and (d) sold each of the above provisional registration to another with the consent of Nonindicted Party 2 and 1; and (e) exercised the power of attorney without the consent of Nonindicted Party 2 and 1; and (e) exercised each of the above provisional registration without the consent of the Defendant, and (e) exercised the provisional registration on each of the above real estate under the name of Nonindicted Party 1, which was made by promise for payment in kind of the Defendant’s obligation to Nonindicted Party 1; and (iii Party 14) held that the amount equivalent to the market value of each real estate without his consent.

(2) Article 1.B. (A) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) is merely a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and the Defendant has completed the registration of establishment of a mortgage in the name of Non-Indicted 1 at the time of original adjudication. However, if the principal registration based on the above provisional registration has already been completed in accordance with Non-Indicted 1’s intent, the above establishment registration of a mortgage is in the name of Non-Indicted 1’s husband, so it cannot be punished for the Defendant because it is impossible to achieve the purpose of embezzlement, and it cannot be punished for the above act because it is impossible to achieve the objective of embezzlement. Even if there is danger of snow death, Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter referred to as the Act on the Aggravated Punishment, etc. of Specific Economic Crimes), which is applicable to the above act, and Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter referred to the above) does not apply to the above Act.

B. The assertion of unfair sentencing

In light of the circumstances leading to the Defendant’s heart of the instant case, the background leading up to the Defendant’s severe behavior, and the current family situation, etc., the lower court’s sentence is too unreasonable.

2. The judgment of this Court

A. First, among the facts charged in this case, the facts Nos. 1. 1. (4), (8) and (1. (b) at the time of original adjudication and No. 1. (4), and (8) at the time of original adjudication, the facts at the time of original adjudication and No. 1. (4), and (8) at the time of original adjudication are examined. Article 355(2) and (1) of the Criminal Act, and Article 1. (b) at the time of original adjudication, the facts at the time of original adjudication fall under Article 3(1)2 of the Act, and Article 361 and Article 328 of the Criminal Act are applicable to relatives as stipulated in Article 368 of the Criminal Act (if the amount of profit of embezzlement is more than 50 million won and is aggravated under Article 3(1) of the Act, the nature of embezzlement under the Criminal Act remains intact, and since Article 361 and Article 328 of the Criminal Act should be excluded from the application of the above special law to relatives of the defendant and non-indicted No. 27).

B. Therefore, the judgment of the court below is reversed, and the judgment on the grounds for appeal by the defendant and his defense counsel is also judged as follows.

The summary of the facts charged by the court below and the evidence related to the facts charged by the court below was found to have been deleted, instead of deleting 4, 16, 17 of the judgment of the court below, and deleted 6, 3 through 7, 7, 8 through 8, and 2 of the judgment of the court below; "(5)" in the 6, 8 (8) of the judgment of the court below; "(6)" in the 6, 7, 1 (6)" in the 7, 7, 4 (7)" in the 8, "2, 73, and 571" in the 8, "2, 73, and 571" in the 8, 12, "1,260, 73, 571" in "1, 260, 73, 571"; "in the 8, 15, "in addition to correction of 9, 200"; "in addition to correction of 9,".

1. Article applicable to criminal facts;

A. Each point in Section 1. A. (1) and (4) of the holding: Articles 231 and 34(1) of the Criminal Act, respectively;

B. Each point of section 1.a. (2) and (5) of the holding: Articles 234, 231, and 34(1) of the Criminal Act, respectively;

C. Article 228(1) of the Criminal Act (a) and Article 229 and Article 228(1) of the Criminal Act (a)(a) and Article 34(1) of the Criminal Act (a) of the holding of the judgment; (b) Article 229 and Article 228(1) of the Criminal Act; and (c) Article 34(1) of the Criminal Act

(d) Each point in Decision 1.B.: Article 2.2 and Article 2.1 of the Illegal Check Control Act (Determination of imprisonment with prison labor);

(e) Rule 1.C. 1. 1., Article 56.1, Article 10.1, Article 2.5 of the Water Quality Conservation Act, Article 5.3(n) of the Enforcement Rule of the Water Quality Conservation Act (Ordinance of the Prime Minister No. 376 of Feb. 2, 1991) and attached Table 3(n) of the Enforcement Rule of the Water Quality Conservation

(f) Each point in the holding No. 1.d.: Articles 73 and 27(1) of the Automobile Transport Business Act;

2.Concurrent treatment

(a) The latter part of Article 37 and Article 39(1) of the Criminal Act: Each of the crimes listed in subparagraph 1(a) at the time of sale, each of the crimes listed in the annexed Table 1-(1) in the attached Table 1-B of the judgment, and the violation of the Automobile Management Act of the first head of the judgment and the crime listed in subparagraph 1(d)

B. Each crime listed in Article 37 (1) 2 and 3, and Article 50 (1) of the Criminal Act, each crime listed in attached Table 1-(1) of the judgment, each of the crimes listed in attached Table 1-(1) of the judgment, and Article 1. (d) of the judgment, and Article 1.1 of the judgment, with respect to imprisonment between each of the crimes listed in attached Table 1-(1) of the judgment of the most severe in the nature of the crime and Article 1.B. of the judgment of the court below, each of the crimes listed in Attached Table 1-(1) of the List of Crimes listed in Attached Table 1-(16 of the judgment of the court below, shall be aggravated for the punishment for the crimes listed in Attached Table 11 of the List of Crimes in Attached Table 2 of the Criminal Act, and both the above imprisonment with prison labor and the fine (2) shall be aggravated for each crime listed in Attached Table 1-2 of the Punishment of Crimes in Attached Table 1-1(2) of the Punishment of Crimes.

3. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

4. Calculation of days of detention;

Article 57 of the Criminal Act

5. Suspension of execution;

Article 62 (1) of the Criminal Act (Consideration of the motive and background of the crime in this case, the withdrawal of complaint, most of the defaulted checks were recovered, and the defendant is in depth)

1. Of the charges of this case, the purport of the above real estate transfer registration is 1.1 (4) and (8) at the time of 10.1 to secure the above real estate at the time of 5.2, the defendant borrowed money on several occasions from the victim non-indicted 1 for 1983, and the total amount of money 90,000,00 won at the time of 10.2, Busan, which was owned by the defendant for the above monetary payment obligations at 19.49,00,000,000 won for 19,000,000 won for 10,000,000 won for 1.5,000,000 won for 5,000 won for 1,000,000 won for 5,00 won for 1,000,000 won for 1,000,000 won for 5,000 won for 1,000,000 won for 1,00

2. In this case, as seen in the above reasoning of reversal, each of the above facts charged are discussed only when the victim non-indicted 1 made a complaint. It can be acknowledged that the court of the original instance revoked the complaint against each of the above facts charged on June 12, 1993 while the lawsuit of the original instance is pending, and therefore, the prosecution against each of the above facts charged shall be dismissed pursuant to Article 327 subparagraph 5 of the Criminal Procedure Act (attached Form omitted).

Judges Lee Jong-chul (Presiding Judge)