[1] The meaning of Article 2 (2) of the Punishment of Violences, etc. Act is "joint by two or more persons"

[2] The meaning of injury in the crime of injury

[3] The elements for establishing a legitimate act under Article 20 of the Criminal Code

[4] In a case where a person who has a monetary claim against a victim receives property or property benefits by means of intimidation which is difficult to be accepted by social norms, whether the crime of extortion is established (affirmative)

[5] The meaning of "amount of profit" under Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

[6] The case holding that the "amount of profit" under Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes should be calculated on the basis of the transfer value in case where the transfer value is determined between the parties to the transaction agreement when transferring the equity

[7] The degree of probative value of evidence for conviction in a criminal trial

[1] "At least two persons" under Article 2 (2) of the Punishment of Violences, etc. Act requires that there exists a so-called co-offender relationship among them, and that there is a case where several persons are aware of another person's crime in the same opportunity at the same place and used it.

[2] In the crime of injury, injury refers to the injury of the victim's completeness or impairment of biological function.

[3] Article 20 of the Criminal Code provides that "any act that does not violate the Acts and subordinate statutes, acts due to work, and other social norms shall not be punishable." Whether a certain act is justified as a legitimate act should be reasonably and rationally decided depending on specific cases. Thus, in order to recognize a legitimate act, the requirements such as legitimacy of the motive or purpose of the act, reasonableness of the means or method, balance between the means or method of the act, third protection interest and the benefit of infringement, fourth urgency, fourth urgency, and fifth supplement that there is no other means or method than the act.

[4] Even if the defendant has a claim against the victim, if he/she was made a means of intimidation exceeding the degree that it is difficult to be acceptable by social norms by undermining the exercise of his/her right, and thereby, he/she becomes a crime of conflict if he/she received property or property benefits.

[5] The "amount of profit" under Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes means the aggregate of the values of the goods or property gains acquired or let a third party acquire through the criminal acts enumerated above, and ultimately, it is not possible to realize such benefits, and it does not affect what conditions or burdens have been imposed.

[6] The case holding that since the transfer of shares in a limited partnership company refers to the transfer of status as a member, and the acquisition of shares in a limited partnership company is a right of share, that is, a right of share, and such an objective value of property should be regarded as an objective value of property given by the right of share, and such objective value of property should be objectively determined through appraisal, etc., but unless there are special circumstances where the transfer value is determined between the parties to a transaction agreement, it should be regarded as an objective value of property with the right of share, barring special circumstances where it cannot be deemed that the transfer value has been determined objectively, the transfer value should be regarded as an objective value of property with the right of share.

[7] In a criminal trial, the finding of guilt must be based on evidence of probative value, which is sufficient to lead a judge to a reasonable doubt that the facts charged are true, and if there is no evidence to form such a conviction, even if there is a suspicion of guilt against the defendant, it shall be determined with the benefit of the defendant.

[1] Article 2 (2) of the Punishment of Violences, etc. Act / [2] Article 257 (1) of the Criminal Act / [3] Article 20 of the Criminal Act / [4] Article 350 of the Criminal Act / [5] Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes / [2] Article 3 (1) of

[1] Supreme Court Decision 85Do1929 delivered on June 10, 198 (Gong1986, 894 delivered on January 29, 1991) 90Do2153 delivered on January 29, 1993 (Gong1991, 902), 95Do1642 delivered on February 23, 1996 (Gong1996, 19799, 19797, 1997, 98Do29969, 1969, 1979, 1969, 1997) 29Do2979 delivered on March 10, 198 (Gong198, 1106)

Defendant 1 and two others

Prosecutor and Defendants

Attorneys Noh Jeong-soo et al., Counsel for the defendant-appellant

Gwangju High Court Decision 99No28, 260 delivered on September 2, 199

The conviction part of the judgment of the court below against Defendant 1 is reversed, and that part of the case is remanded to the Gwangju High Court. All of the appeals by Defendants 2 and 3 and the prosecutor are dismissed.

Each ground of appeal, defense counsel of Defendant 1, and supplemental appellate brief within the scope of supplement of Defendant 3 are also examined.

1. As to the violation of the Punishment of Violences, etc. Act (Bodily Injury) against Defendant 1 and 3

"When two or more persons jointly commit the crime of violence" under Article 2 (2) of the Punishment of Violences, etc. Act requires that there exists a so-called co-offender relationship among them, and that several persons are aware of the crime committed by another person at the same time and at the same place, and used it to commit the crime (see, e.g., Supreme Court Decisions 95Do1642, Feb. 23, 1996; 90Do2153, Jan. 29, 191). Meanwhile, the injury in the crime of injury means that the bodily integrity of the victim is damaged or the physiological function is hindered (see, e.g., Supreme Court Decision 98Do3732, Jan. 26, 199).

In addition, Article 20 of the Criminal Code provides that "an act under the law, act due to duty, or other act which does not violate social norms shall not be punishable." Whether a certain act is justified as a legitimate act should be reasonably and rationally decided depending on specific cases. In order to recognize a legitimate act, the following requirements should be met: legitimacy of the motive or purpose of the act; legitimacy of the means or method; reasonableness of the means or method; balance between the third protected interest and infringed interest; fourth urgency; Fifth, supplementaryness that there is no other means or method than the act (see Supreme Court Decision 98Do1869, Feb. 23, 199).

In light of the records, it is reasonable to view that Defendant 3 committed an act in the same opportunity and thereby causing bodily integrity to the victim 1 by recognizing the crime committed by another person at the same place and using it at the same time, and thereby causing injury to the victim 1, in light of all the circumstances mentioned above, such as the motive, means, method, and degree of injury, etc. of the crime, it cannot be viewed that it does not violate the social rules in light of the following circumstances: (a) Defendant 3, who was at the age of the victim 1, was sexually injured Defendant 3; and (b) Defendant 1 committed an act of assaulting the victim 1; and (c) Defendant 1 committed an act of assaulting the victim 1; and (d) Defendant 1 did not violate the social rules in light of the motive, method, method, and degree of injury.

The recognition and judgment of the court below to the same purport is just, and there is no error of law such as misunderstanding of facts due to violation of the rules of evidence, and misunderstanding of legal principles as to the meaning of "joint" under the Punishment of Violences, etc. Act, the concept of injury, illegality and legitimate act

Defendant 1 and Defendant 3’s defense counsel cannot accept the allegation in the grounds of appeal on this point.

2. As to Defendant 1’s violation of the Punishment of Violences, etc. Act (Aggravated Punishment of Violences)

Even if a defendant has a claim against a victim, if he/she obtained the other party's property or property benefits by means of intimidation exceeding the degree that is difficult to be acceptable by social norms through the exercise of his/her right, then he/she becomes a crime of conflict (see, e.g., Supreme Court Decisions 96Do2151, Sept. 24, 196; 95Do2801, Mar. 22, 1996; 89Do2036, Mar. 27, 1990).

In light of the records and the above legal principles, the court below prepared a sales contract with the victim 2 on July 29, 191 that "if the defendant 1 finds any additional obligation exceeding 2.4 billion won as of the date of acquisition at the time of conclusion of the sales contract for the acquisition of the non-indicted corporation between the victim 2 and the non-indicted corporation, the contract was prepared to offset the amount of the non-indicted 2's land by calculating it as KRW 882,789,00,000 in total amount of the promissorysory note obligation, and requested the victim 2 to transfer the ownership of the land, but the victim 2 refused the request but the victim 2 refused the request, thereby threatening the land, and there was no violation of the rules of evidence selection as of August 20, 191, which affected the conclusion of the judgment, and there was no error in the misapprehension of the rules of evidence selection as the non-indicted 1 and the non-indicted 2's decision."

Defendant 1 and his defense counsel do not accept the allegation in the grounds of appeal on this point.

3. As to perjury against Defendant 1

In other words, the court below's measure of maintaining the judgment of the court of first instance which recognized the crime of perjury as to Defendant 1 is just, and there is no error of misconception of facts that affected the judgment against the rules of evidence.

Defendant 1’s ground of appeal on this point is rejected.

4. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against Defendant 1

A. Summary of the facts charged in this case

On March 28, 198, the defendant 1 established the victim 3 as general partner and the non-indicted limited partnership with limited liability in the form of the defendant 1, and won the department store under the name of the above company. After the 6.1 billion won of the successful bid price, the defendant 3 borrowed the building and site of the department store from Gwangju bank, commercial bank, etc. as collateral, and the 1.1 billion won was directly raised by the defendant. Thus, the fact that the 1.1 billion won was the fact that the department store was taken over at 1.1 billion won is that the 3.4 billion won of the company's capital and the 4.4 billion won of the company's capital and the 4.6 billion won of the company's capital and the 1.4 billion won of the company's capital and the 4.6 billion won of the company's capital shares were acquired by acquiring the company's capital and the 4.6 billion won of the company's capital shares and acquired the company's capital shares in the 16.4.

B. The judgment of the court below

The court below determined that Defendant 1 acquired financial benefits equivalent to the above amount of money on the ground that it is reasonable to view that Defendant 1 acquired the above amount of damage as KRW 6,644,344,100, on the ground that it is reasonable to view it as the value of the department store, i.e., the value of the department store, i., the appraisal of the department store at the time of the department store, i.e., the appraisal of the department store at the time of the acquisition of shares, although it is formally the shares of the company, in fact, it is deemed that Defendant 1 acquired the rights to the whole department store, and in calculating the amount of profit in fraud, it is ultimately the sum of the value of the property or property gains acquired by deceiving or having a third party acquire it in fraud.

In other words, the court below deemed the acquisition value of the instant case as the crime of illegal gains, which is the acquisition of property gains, to be the value of the department store building and site possessed by the company.

C. The judgment of this Court

The "amount of profit" under Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes means the aggregate of the values of the goods and property gains acquired or let a third party acquire through the criminal acts enumerated above, and ultimately, it does not affect the realization of such benefits, and whether there is any condition or burden (see Supreme Court Decision 90Do1815, Oct. 16, 1990). The purport of the decision of the court below is correct.

However, the transfer of equity in a limited partnership company refers to the transfer of status as a member. Since the transfer of equity in a limited partnership company is a right of equity, that is, a right of equity, the amount of such equity should be regarded as an objective property value of which the right of equity is given. Such objective property value should be objectively determined through appraisal, etc. However, if the transfer value is determined between the parties to a transaction agreement, it should be deemed as an objective property value of the right of equity, barring special circumstances where it cannot be deemed that the transfer value has been determined objectively.

In the facts charged in this case, Defendant 1 and Defendant 3 decided to transfer and acquire shares in the limited partnership company owned by the victim 3 as KRW 600 million. Thus, barring any special circumstance that the above appraised value cannot be seen as an objective property value of shares, the amount of profit from the fraud by Defendant 1 is KRW 600 million, which is the appraised value, and thus, it should be determined on the basis of the amount of the above appraised value, and whether the statute of limitations period under Article 249(1) of the Criminal Procedure Act has expired.

Nevertheless, the court below reversed the court of first instance which rendered a judgment of acquittal on the ground that the statute of limitations has expired on the ground that the appraisal price at the time of the acquisition of the building and site of the department store is 6,644,344,100 won, which is an active asset owned by a limited partnership rather than an objective property value, which is the subject of the act of disposal, and the liabilities of the company itself. Such judgment of the court below is erroneous in the misapprehension of the legal principles as to the amount of profit and the statute of limitations under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes and the grounds for appeal by the defendant 1 and his defense counsel pointing this out are justified.

The court below should further examine whether there are special circumstances in which the transfer value determined between Defendant 1 and the victim 3 cannot be viewed as an objective asset value, and determine whether the statute of limitations has expired by considering the transfer value as the amount of profit arising from the acquisition of shares, unless there are such special circumstances.

5. As to the crime of murdering, attempted murdering, and violation of the Punishment of Violences, etc. Act (abscam, confinement, intimidation) against Defendant 2

In light of the records, the court below is just in finding the crime of murdering, attempted murdering, and violation of the Punishment of Violences, etc. Act (abstinence, confinement, or intimidation) against Defendant 2, and there is no error in the misapprehension of legal principles as to the mistake of facts or attempted murdering, which affected the judgment, as alleged in the grounds of appeal.

Defendant 2’s defense counsel’s allegation in the grounds of appeal on this point is rejected.

6. As to the violation of the Punishment of Violences, etc. Act against Defendant 1 and 3, the crime of fraud against Defendant 2, and the violation of the Attorney-at-Law Act against Defendant 3

The conviction in a criminal trial ought to be based on evidence with probative value, which can lead a judge to feel true beyond a reasonable doubt, and if there is no evidence to form such a conviction, even if there is suspicion of guilt against the defendant, it is inevitable to determine the defendant as the benefit of the defendant (see Supreme Court Decision 92Do327, Mar. 23, 1993).

In light of the records and the legal principles as seen earlier, the court below did not employ the evidence submitted by the prosecutor for lack of credibility, but reversed the judgment of the court of first instance which found the defendant 1 and 3 guilty of violation of the Punishment of Violences, etc. Act (voluntary compulsion), fraud against the defendant 2, and violation of the Attorney-at-Law Act as to the defendant 3, and found the defendant not guilty. In so doing, the court below did not err by misapprehending the facts against the rules of evidence or by misapprehending the legal principles against the rules of evidence, or by failing

All of the Prosecutor’s arguments in the grounds of appeal are rejected.

7. Conclusion

Therefore, the judgment of the court below cannot be maintained with respect to the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against Defendant 1. The judgment of the court below on the guilty part against Defendant 1 is reversed, and since one sentence is imposed with respect to the crime of concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment of the court below as to the guilty part against Defendant 1 is all reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. All appeals by Defendants 2, 3 and prosecutor are dismissed. It is so

Justices Kim Jong-sik (Presiding Justice)