[1] The meaning of habitualness in the crime of habitual fraud

[2] The validity of an indictment for habitual offenders

[3] The method of dealing with the crime of habitual fraud in a case where the crime of habitual fraud was first prosecuted after the crime of simple fraud was committed, but it was found that the crime of habitual fraud was committed while the crime was prosecuted during the hearing, including all the crime.

[1] Habitualness in the crime of habitual fraud refers to the nature of the actor as a habit of repeated fraud. The dampness of the fraud in this context does not mean only the habition of the fraud in accordance with the same number of laws, as long as it is recognized as the creation of the fraudulent habit by the actor, but also includes the habition of fraud that covers the fraud in accordance with the applicable number of laws.

[2] For habitual crimes, the effect of the indictment is equal to the facts charged in the indictment, and the timely scope of the indictment shall be based on the time of sentencing, which is the last time at which it is possible to examine the facts. Thus, once a prosecutor institutes a prosecution for habitual fraud, he/she is not allowed to prosecute part of the fraudulent act until the time of the above standard which affects the effect of the prosecution after the indictment for habitual fraud. Thus, even if the facts charged are related to fraud committed after the indictment for habitual fraud, it shall not be allowed as it constitutes a double indictment for the same case in which the prosecution was instituted, even if it is related to fraud committed after the indictment for habitual fraud.

[3] In a case where it is found that the prosecutor first prosecuted the fraud and additionally prosecuted the habitual fraud crime, which is a single crime, while the facts charged before and after the trial process cover all the criminal facts, the prosecutor, in principle, changed the whole criminal facts stated in the indictment for additional indictment to habitual offenders, and changed the criminal facts in the indictment for additional indictment in line with the applicable provisions of the Criminal Procedure Act, and the revocation of the indictment for additional indictment for the case for which the additional indictment is filed. However, even without following the above treatment, it can be deemed that the prosecutor's additional indictment includes the purport of applying for punishment of all the criminal facts charged before and after the prosecution as a single comprehensive crime, and there is no difference in the substance of the indictment, and therefore, the submission of the indictment for additional indictment by the name of the prosecutor constitutes a single comprehensive crime, and it is not necessary to supplement the omission of the indictment, and add the name of the crime and the applicable provisions of the indictment, and it is not necessary to dismiss the prosecution as a whole before and after the prosecution, and it is not necessary to dismiss the prosecution as to the entire indictment.

[1] Articles 347 and 351 of the Criminal Act / [2] Articles 347 and 351 of the Criminal Act, Article 327 subparagraph 3 of the Criminal Procedure Act / [3] Articles 298 and 327 subparagraph 3 of the Criminal Procedure Act, Articles 347 and 351 of the Criminal Act

[1] Supreme Court Decision 90Do653 delivered on April 24, 1990 (Gong1990, 1199) Supreme Court Decision 91Do1874 delivered on October 8, 1991 (Gong1991, 2755) / [2] Supreme Court Decision 82Do1463 delivered on September 7, 1982 (Gong1982, 978), Supreme Court Decision 82Do2829, 82Ga612 delivered on April 26, 193 (Gong1983, 926) / [3] Supreme Court Decision 93Do2178 delivered on October 222, 193 (Gong193Ha, 3199) / [3] Supreme Court Decision 196Do1379 delivered on October 16, 196 (Gong31969).

Defendant and Appellant for Custody

Defendant and Appellant for Custody

Attorney Park Jae-hoon

Gwangju High Court Decision 99No391, 99No14 delivered on August 12, 1999

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal by the defendant and the respondent for defense (hereinafter referred to as the "defendants") and his/her state appointed defense counsel shall be examined ex officio prior to examining them.

(2) On October 30, 1997, the court below found that the defendant was habitually guilty on the following facts: ① on the 30th day of violation of the Illegal Check Control Act (the first instance judgment cited by the original trial (hereinafter referred to as "the first instance judgment"), ② on December 31, 1997, the Gwangju District Court found that the defendant was habitually guilty on the 198th day of the 98th day of the 98th day of the 98th day of the 98th day of the 98th day of the 98th day of the 98th day of the 98th day of the 98th day of the 98th day of the 98th day of the 198th day of the 198th day of the 98th day of the 198th day of the 98th day of the 98th day of the 198th day of the 198th day of the 198th day of the 19th day of the 198th day of the 198th day of the 3th day of the 198th day of the 27th day of the 3rd day of the 19.

2. However, according to the reasoning of the lower judgment, the lower court acknowledged the fraud of the case as a separate simple crime. ② Without the Defendant’s intent or ability to settle the price, the Defendant forged an application for membership of the Samsung Motor Card in the name of the Nonindicted Party, and did not pay the price for the purchase of goods, etc. over 15 times from January 15, 1997 to February 23 of the same year by using a credit card, etc. issued under the name of the Nonindicted Party. The lower court recognized that the lower court was a single comprehensive crime. ③ (4) The habitual fraud of the case was recognized as the crime of habitual fraud of the case: (i) the Defendant was committed seven times from December 5, 1996 to August 27, 197 by using a forged public document or private document, and was committed an attempted crime, and thus, the fraud of the case was found to have been

In the crime of habitual fraud, the term "Habitual fraud" refers to the nature of the actor as a habit of repeated fraud. The habit of the fraud in this context refers not only to the habit of the fraud by the same kind of methods recognized as the creation of the fraudulent habit by the actor, but also to include the habit of the fraud that covers the fraud by the several methods (see, e.g., Supreme Court Decisions 91Do1874, Oct. 8, 1991; 90Do653, Apr. 24, 1990). As stated in the reasoning of the first instance judgment cited by the court below, the defendant can be sentenced to criminal punishment for fraud, and 80,000,000 won after the execution of the last sentence is completed, and if the habitual fraud in this case is recognized, it cannot be viewed that the defendant's application for the fraud in this case was committed under the name of another person, such as the fraud in this case.

3. Meanwhile, the effect of the indictment on habitual crimes is identical to the facts charged in the indictment. The time limit of the indictment should be based on the final judgment, which is the time when it is possible to examine the facts. Thus, the prosecutor's indictment of part of the fraudulent act by the time until the above guidelines which affect the effect of the indictment after the indictment was instituted for habitual fraud is separate and independent habitual fraud. Although the facts charged first include the fraud committed after the indictment, it cannot be allowed as it constitutes a double indictment for the same case in which the indictment was instituted (see Supreme Court Decisions 82Do2829, 82Do612, April 26, 1983; 82Do1463, September 7, 1982, etc.). As seen earlier, the prosecution of this case constitutes the fraud of this case, and

However, as in the instant case, in a case where it is found that the prosecutor first prosecuted the fraud crime and additionally prosecuted the habitual fraud crime, which is a single single crime, and all the facts charged before and after the trial were constituted the habitual fraud crime, the prosecutor, in principle, shall add the facts stated in the indictment to the facts charged in the first indictment, and shall make a change to habitual crimes in addition to the facts charged in the initial indictment, and shall apply for the change of the name of the crime and the applicable provisions of the indictment, and the revocation of the indictment for the additional prosecuted case shall be considered as a faithful treatment under the provisions of the Criminal Procedure Act. However, even if it is not in accordance with the above treatment, the purport of applying for punishment of all the facts charged before and after the additional indictment by the prosecutor as a single comprehensive crime is included only in the procedure different from those of the amendment of the indictment, and there is no difference in its substance, and thus, the submission of the additional indictment by the name of the first prosecutor as an omission of the indictment and the addition of the facts charged, and it is not necessary to dismiss the indictment in its entirety 196.

Therefore, the part of the judgment of the court below regarding fraud and habitual fraud cannot be reversed without examining the grounds of appeal as to it, and the remaining defendant's case in the relation of concurrent crimes under the former part of Article 37 of the Criminal Act and the custody case premised on the conviction of this part cannot be reversed.

4. Therefore, the lower judgment is entirely reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Im-soo (Presiding Justice)