Where a person who has embezzled a crime before or after the enforcement of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes meets the requirements for each subparagraph of Article 3 (1) of the Act after the enforcement of the Act, the applicable provisions of the Act shall apply.

In the event that the act of embezzlement, which constitutes a blanket one crime, has been refilled over the period after the enforcement of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, and the amount of embezzlement due to the crime after the enforcement of the same Act, meets the requirements of each subparagraph of Article 3 (1) of the same Act, the above statutory penalty shall cover the remaining crimes of violation of the Aggravated Punishment, etc. of Specific Economic Crimes Act, and shall be punished as a crime of violation of the above Act. In this case, Article 4 (1) of the Addenda of the Criminal Act shall not apply

Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes and Article 4 (1) of the Addenda of

Supreme Court Decision 86Do1012 Decided July 22, 1986

Defendant 1 and one other

Prosecutor and Defendants

Attorney Park Jin-seok, Cho Young-hwan

Daegu High Court Decision 86No412 delivered on May 29, 1986

The guilty portion of the judgment of the court below is reversed, and that part of the case is remanded to the Daegu High Court.

The prosecutor's appeal against the acquittal shall be dismissed.

1. Determination on the grounds of appeal as to the guilty portion

Based on its reasoning, Defendant 1 was working as a member in charge of the Busan Accounting Office of Yuwon Construction Co., Ltd. between January 15, 1981 and May 6, 1985, and had been kept in custody for the above company by receiving each purchase price of the Busan Northern apartment located in Seopo-dong 198, Seopo-dong 198, and the construction price of the Busan Jungpo-dong located in Seopo-dong, Busan, Jungpo-dong, Busan, and the amount of the construction price of the Hanpo-dong's position apartment and the court deposit money of the company, and Defendant 2 entered into a contract of the sales mediation with the above company on September 30, 1982 and participated in the sales mediation thereof.

(1) On January 7, 1983, Defendant 1, out of the sale price being kept in custody for business purposes, embezzled KRW 2,00,00 in total 72,86,233,00 for 17 times as shown in the attached Table 1, as shown in the attached Table 1, to Defendant 1, as well as to the Defendant-friendly non-indicted Helping officer for the construction of a Daegu Franchising hotel.

(2) On October 1983, the Defendants: (a) conspired that Defendant 2 would invest the company funds kept by Defendant 1 in his custody in the construction capital of Sungdong-dong 123-9, Nam-gu, Busan, to pay for the construction capital; (b) paid Defendant 1 the settlement capital of promissory notes of KRW 3,682,120 issued by Defendant 2 to Defendant 2 on June 1984; and (c) embezzled by granting KRW 117,064,77 on 50 occasions as the settlement capital of each promissory notes listed in the attached Table 3 to pay for the construction capital; (d) in light of the above (i) and (ii) the embezzlement act and the above (ii) the embezzlement act committed by Defendant 2 on 10,00,000 won, which were executed on 10,000 won under the Criminal Act, to be regarded as an occupational offense; and (e) in light of the purport of the Act on the Punishment, etc. of Specific Economic Crimes (hereinafter referred to as the Act’s special embezzlement), the Act’s comprehensive embezzlement.

As to the Grounds of Appeal by Defendants and Defense Counsel:

According to the evidence cited by the court below, it can be sufficiently recognized that the facts charged against the defendants in the judgment, and there is no reason to suspect that the defendants' statements recorded in each suspect interrogation protocol prepared by the prosecutor against the defendants among the evidences adopted by the court below are not voluntary like the theory of lawsuit. Thus, the protocol adopted as evidence of guilt is legitimate, and the evidence adopted as evidence of guilt is not unlawful in the process of the preparation of evidence and the fact-finding, or there is no reason why it is improper or inconsistent with the reasoning. Therefore, all arguments are groundless.

As to the Prosecutor’s Grounds of Appeal:

In a case where embezzlement, which constitutes an inclusive one crime, becomes repeated after the enforcement of the Special Economic Act, meets the requirements of each subparagraph of Article 3(1) of the same Act in a case where the amount of embezzlement due to a crime after the enforcement of the same Act, meets the requirements of each subparagraph of Article 3(1), the statutory penalty shall be deemed as a crime of violation of the Special Economic Punishment Act by combining the remaining acts committed during a serious violation of the Special Economic Punishment Act. In this case, Article 4(1) of the Addenda of the Criminal Act does not apply or apply by analogy, but is a party member’s opinion (see Supreme Court Decision 86Do1012, Jul. 22,

Therefore, the court below's decision that Defendants' so-called is not subject to the special law on the grounds as stated in its holding is erroneous by misapprehending the scope of application of Article 4 of the Addenda of the Criminal Act and the legal principles of Article 3 (1) of the Special Economic Act, which points out the influence of the decision, and thus, is justified.

2. Judgment on the grounds of appeal by the prosecutor as to the acquittal portion

Of the facts charged by the court below on June 20, 1983, Defendant 2 embezzled the total amount of KRW 2,00,000 paid out of the above apartment unit 7,404 and the apartment unit 7,000 for the above company at the above apartment unit sales office around 20, 1983, and it is hard to see that he consumed the apartment unit 2,00,000 for the above company with the pre-construction reserve fund, etc., as stated in attached Table 2-1 through 20 of the court below's decision, and it is hard to see that the above apartment unit 2,00,000 won was consumed for the same purpose as the last day of the judgment below, and there is no evidence to acknowledge that the above apartment unit 2,50,000 won was not attached to the above apartment unit 4, and it can be found that the above apartment unit 58,500,000 won was not attached to the above defendant 2's new evidence to recognize that the apartment unit 2's new receipts were not attached to the above.

3. Therefore, the part of the judgment of the court below which reversed the conviction and remanded this part of the case to the court below for further determination, and the prosecutor's appeal on the acquittal portion is without merit, and it is so dismissed as per Disposition with the assent of all participating judges.

Justices Lee B-soo (Presiding Justice)