Defendant

Defendant

Egravor

Public-service Advocates et al.

Incheon District Court Decision 2010Gohap6159 Decided January 14, 2011

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 20,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of grounds for appeal;

A. Legal principles

The judgment of the court below which found the defendant guilty of the crime Nos. 1 through 74 in the annexed crime list of the judgment of the court below was completed, which affected the conclusion of the judgment by misapprehending the legal principles.

B. Error of mistake

The court below found the defendant guilty of some of the facts of the crime acknowledged by the court below is a transaction that the defendant entered and withdrawn for personal purposes, and it is not related to foreign exchange business.

C. Unreasonable sentencing

The sentencing of the lower court (fine 30 million won) is too unreasonable.

2. Ex officio determination

Before the judgment on the grounds for appeal by the defendant was made ex officio, the prosecutor applied for changes in the indictment with the contents of the facts charged as stated in the following facts. Since this court permitted this, the judgment of the court below based on the original facts charged cannot be maintained any more.

However, part of the defendant's assertion of misunderstanding the above legal principles and the assertion of misunderstanding the facts is still subject to the judgment of this court, and this is examined separately in the following items.

[Defendant’s defense counsel’s defense counsel’s defense counsel’s written opinion submitted after the deadline for submitting the appellate brief, that part of the criminal facts acknowledged by the court below do not constitute elements, or that the Defendant’s principal act constitutes a justifiable act or an emergency evacuation, but this part of the criminal facts cannot be a legitimate ground for appeal as it was brought subsequent to the deadline for submitting the appellate brief (see Supreme Court Decision 2005Do1603, May 8, 2008). Thus, the Defendant’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense counsel’s defense right does not constitute a legitimate ground for appeal.

3. Conclusion

Therefore, the judgment of the court below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and the judgment below is reversed, and the following is again decided after pleading.

Anyone who intends to engage in foreign exchange business shall have capital, facilities and human resources sufficient for conducting foreign exchange business and shall register such business with the Minister of Strategy and Finance in advance.

Nevertheless, on February 8, 207, the Defendant received KRW 1,00,00 from Nonindicted 1 to the bank account under the name of the Defendant, and deposited money to China, such as expenses for North Korea's escape from North Korea, and remittance to North Korea's family members, in the name of the Defendant agricultural bank under the name of the Defendant, and on October 27, 207, operated as North Korean defectors and North Korean remittance co-operations at KRW 468, 47, 366, 47, 47, 36, 47, 47, 47, 97, 47, 297, 396, 47, 47, 297, 47, 297, 369, 47, 297, 397, 47, 297, 297, 397, 297, 297, 397, 297, 2007, 197.

Since the corresponding column of the judgment of the court below is the same as the corresponding column of the judgment below, it shall be quoted by Article 369 of the Criminal Procedure Act.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Comprehensively, Articles 27(1)5 and 8(1) of the former Foreign Exchange Transactions Act (Amended by Act No. 10618, Apr. 30, 201);

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. As to the assertion that the statute of limitations for part of the crime has expired

The statutory penalty for the crime of violating the Foreign Exchange Transactions Act is a fine not exceeding three years or a fine not exceeding 300 million won, and the statute of limitations expires after the lapse of five years from the end of the criminal act pursuant to Article 249 of the Criminal Procedure Act. Meanwhile, the statute of limitations for a single comprehensive crime shall run from the time the final criminal act was committed (see Supreme Court Decision 96Do1088 delivered on October 25, 1996).

In this case, the defendant continued to conduct a foreign exchange business without registration for a certain period under the single and continuous criminal intent and deemed to have the same legal interest as that of the damage. Thus, as an inclusive crime (see Supreme Court Decision 2002Do5341, Aug. 22, 2003, etc.) the end of the crime shall be August 19, 2009, and it is apparent that the defendant was prosecuted against the defendant on August 31, 2010, which was five years after the end of the crime. Thus, the defendant's assertion that the statute of limitations for part of the crime has expired is without merit.

2. As to the assertion that part of criminal facts is not related to foreign exchange business

In full view of the evidence duly admitted and examined by the court below, the defendant's assertion that part of the criminal facts is an individual transaction that is not related to foreign exchange business is without merit, since it can be sufficiently recognized that the defendant has made a deposit and withdrawal transaction over 816 times as recognized in the above criminal facts in relation to foreign exchange business.

[Attachment]

Judges Jeong Chang-hun (Presiding Judge)