[1] Whether an incidental business directly and closely related to the payment, collection and receipt between the Republic of Korea and a foreign country constitutes a foreign exchange business under Article 3(1)14(e) of the Foreign Exchange Transactions Act (affirmative)

[2] The number of crimes of violation of Article 27 (1) 5 and Article 8 (1) of the former Foreign Exchange Transactions Act due to multiple unregistered foreign exchange business (=general crime) and the subject of confiscation

[1] Article 3(1)14(b) and (e) of the former Foreign Exchange Transactions Act (amended by Act No. 8266 of Jan. 26, 2007), Article 3(1)14(b) and (e) of the former Enforcement Decree of the Foreign Exchange Transactions Act (amended by Presidential Decree No. 21287 of Feb. 3, 2009), Article 5 subparag. 3(4) of the former Enforcement Decree of the Foreign Exchange Transactions Act (amended by Presidential Decree No. 21287 of Feb. 3, 2009) / [2] Articles 8(1) and 27(1)5 of the former Foreign Exchange Transactions Act (amended by Act No. 8266 of Jan. 26, 2007), Article 48(1)1 of the Criminal Act

[1] Supreme Court Decision 2005Do1603 Decided May 8, 2008 (Gong2008Sang, 860) / [2] Supreme Court Decision 2002Do5341 Decided August 22, 2003 (Gong2003Ha, 1975)

Defendant

Defendant

Attorney Park Jong-chul

Suwon District Court Decision 2008No614 decided Nov. 4, 2008

The appeal is dismissed.

The grounds of appeal are examined.

1. On the first ground for appeal

According to the reasoning of the judgment below, with respect to the defendant's assertion that cash, checks, U.S. dollars, etc. confiscated at the defendant's residence is not subject to confiscation because they are not related to the crime of exchange of this case, the court below held that, in light of the fact that the seized cash and checks are about KRW 700,00 and KRW 110,000 cashier's checks, each of which is about KRW 1,00,00,00 respectively, the issuing bank and its branch are not withdrawal for the purpose of return of lease deposit claimed by the defendant, but was in possession to deliver them to non-indicted 1 who is ordered to receive money from the foreign exchange remitter under the direction of the defendant, and in the case of U.S., it is difficult to see that the defendant's assertion, like the defendant's assertion, it is difficult to view that the cash, checks, and U.S. dollars, etc. confiscated at the defendant's residence, and that they were in possession for delivery

However, as to such judgment of the court below, the defendant asserted that he possessed the cash, checks, U.S. dollars, etc. confiscated as the ground of appeal on this part, for another purpose unrelated to the crime of returning the instant goods. This assertion is nothing more than disputing the selection of evidence and the fact-finding of the court below, and thus, it cannot be accepted as a legitimate ground

2. On the second ground for appeal

Article 3 (1) 14 (b) of the former Foreign Exchange Transactions Act (amended by Act No. 8266 of Jan. 26, 2007) provides that "payment, collection, and receipt between the Republic of Korea and a foreign country" and "business prescribed by Presidential Decree as similar to the above (b)" shall be deemed to constitute "foreign exchange business". Article 5 subparagraph 3 of the former Enforcement Decree of the Foreign Exchange Transactions Act (amended by Presidential Decree No. 21287 of Feb. 3, 2009) provides that "business incidental to business under Article 3 (1) 14 (b) of the said Act (amended by Act No. 8266 of Jan. 26, 2007) shall be deemed to fall under the above "business prescribed by Presidential Decree". Article 3 (1) 14 (e) of the said Act provides that "any incidental business directly related to "payment, collection, and receipt between the Republic of Korea and a foreign country" shall be deemed to constitute a "foreign exchange business" under Article 3 (14) 2) of the said Act.

According to evidence, etc. adopted by the court below through legitimate examination of evidence, the cash, checks, U.S. dollars, etc. confiscated can be found to have been possessed by the defendant in order to deliver money from the foreign exchange remitter to the person who is entitled to receive money in Korea. For this reason, the possession of the said cash, checks, U.S. dollars, etc. is directly necessary and closely related to the "payment, Collection, and Receipt between the Republic of Korea and a foreign country" and can constitute a single crime together with other foreign exchange business already conducted by the defendant, and even if the payment was not completed since it was delivered to the person who is to receive it, it can also constitute a single comprehensive crime. Thus, in light of the aforementioned legal principles, the said cash, checks, U.S. dollars, etc. is a thing provided or intended to be provided in a criminal act constituting a comprehensive crime and can be subject to confiscation under Article 48 (1) 1 of the Criminal Act.

Therefore, the decision of the court below that confiscated the above cash, checks, U.S. dollars is just, and there is no error in the misapprehension of legal principles as to the confiscation.

3. Conclusion

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

Justices Shin Young-chul (Presiding Justice)