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

(b) The number of crimes of frauds against several victims with the same criminal intent;

C. Whether a person who was prosecuted for violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes can be punished as a violation of special law such as habitual fraud without any amendment (negative)

(d) Whether Article 3(1) of the same Act applies to the case of a person subject to aggravated punishment (affirmative)

A. The amount of profit referred to in Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes refers to the sum of the amount of profit or the amount of profit if the crime is established as a simple single crime and the sum of the amount of profit in the crime which can be punished as concurrent crimes cannot be considered as the sum of the amount of profit.

B. In a case where a single criminal intent leads to deception of the other party by a single criminal intent and defrauds the money by the same method from the same person who is not erroneous as a result of the deception, it is reasonable to comprehensively observe it and treat it as a single crime. However, in a case where multiple victims acquire each property by deception, even if the criminal intent is a single and the criminal method is the same, the damage legal interest of each victim is independent, so it cannot be understood as a single crime, and there are several separate crimes of frauds independently for each victim.

C. In a case where a prosecutor is indicted by applying Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes and Article 347(1)2 of the Criminal Act to the facts charged of simple fraud, the court cannot recognize the habitualness of the indictment as a violation of special law such as habitual fraud and punish it unless there is a change in the indictment.

D. The nature of the crime of fraud under the Criminal Act is maintained even in cases where it is subject to aggravated punishment under Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, and there is no express provision that excludes the application of Articles 354 and 328 of the Criminal Act with respect to relative precedent under the above Act which is a special law, and Article 354 of the Criminal Act also applies to a crime of violation

A. Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 37 of the Criminal Act (Article 298 of the Criminal Procedure Act). Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 328 of the Criminal Act

Defendant

Prosecutor

Attorney Song-jin

Seoul High Court Decision 88No3001 Decided January 27, 1989

The appeal is dismissed.

We examine the grounds of appeal.

1. Article 3 (1) 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) provides that a person who commits a crime of fraud, public conflicts, habitual fraud, public conflicts, habitual embezzlement, embezzlement, breach of trust, occupational embezzlement, or occupational breach of trust shall be punished according to the amount of profit if the amount of profit acquired from the crime is more than 100 million won. The amount of profit here refers to the sum of the amount of profit in simple one crime or the amount of profit if the crime is constituted, and it cannot be deemed that the sum of the amount of profit in the crime of concurrent crimes is the sum of the amount of profit.

On the other hand, in the case of deceiving the other party by means of a single crime and deceiving the money by the same method from the same person who is not involved in a mistake as a result, it shall be reasonable to comprehensively observe it and treat it as one crime. However, in the case of deceiving each of several victims by deception, even though the criminal intent is a single crime and the method of crime is the same, each victim's damage legal interest is independent, so it cannot be understood as a single crime, and several separate crimes of frauds are established independently for each victim.

In this purport, the court below recognized that the defendant, who was engaged in the mechanical operation business of the ordinary deposit accounts at Han-il Bank Cheongju branch and one-day branch, received the principal and interest from the victims and obtained the amount of money from the victims respectively by fraud under the premise that the above criminal facts of the defendant are established by fraud under the premise that the defendant's act of fraud is established by one victim, and when the remaining amount is paid, it can be seen that there is a 18 victim under the 19th of June 1987 to April 20, 198, and there is a misunderstanding of the legal principles under the 13th of Article 17th of the Criminal Act if the amount of money is less than 130 million won, and the above cancellation money is paid by substitute and the monthly payment is due, and if the defendant paid the above cancellation money and the monthly payment is due, it can be seen that there is no error of law by misapprehending the legal principles under the 13th of Article 17 of the Criminal Act.

2. In a case where a prosecutor is indicted due to a violation of the special law by applying Article 3(1)2 of the Act and Article 347(1)2 of the Criminal Act to the facts charged of simple fraud, the court cannot recognize the defendant as a violation of the special law by habitual fraud unless there is a change in the indictment, even though the defendant is recognized as habitual fraud.

In the above purport, the court below is just to put the defendant at a rate of violation of the special law by simple fraud, and there is no violation of law by misapprehending the legal principles, such as the argument of the above decision of the court below.

3. Even if the amount of profit in fraud is more than 10 million won and the amount of profit in fraud is aggravated by Article 3(1) of the Aggravated Punishment Act, the nature of the crime of fraud is maintained as it is, and there is no express provision that excludes the application of Articles 354 and 328 of the Criminal Act with respect to the relative cases under the above Acts which are the special law, Article 354 of the Criminal Act shall be deemed to apply as it is to the crime of violating Article 3(1) of the Aggravated Punishment Act

In the same purport, the court below held that the crime of violation of the special law against the victims of each fraud committed against the defendant and relatives is an offense subject to victim's complaint under Article 354 and Article 328 of the Criminal Act, which can be discussed only when the victim's complaint is filed pursuant to Article 354 and Article 328 of the Criminal Act, and that the judgment dismissing the prosecution in accordance with Article 327 subparagraph 5 of the Criminal Procedure Act is proper and there is no error of law as argued in the arguments.

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

Justices Song Man-man (Presiding Justice)