Once a prosecutor was indicted for a habitual fraud crime, whether the prosecution box is appropriate as a habitual fraud crime of the same type committed later (negative)

In the case of habitual crime, the effect of a public prosecution is identical to that of the offense against which the public prosecution is instituted, and the time limit that affects the validity of the public prosecution should be based on the time of sentencing, which is the final point of time at which it is possible to examine the facts. Thus, once a prosecutor institutes a public prosecution for habitual fraud and then has the effect of the public prosecution, a part of a fraudulent act by the time the public prosecution is instituted for the crime of habitual fraud by the time of the above standard that affects the effect of the public prosecution by the public prosecutor is not permissible as it constitutes a double prosecution for the same case against which the public prosecution is instituted, even though the facts charged are related to the fraud

Articles 347 and 351 of the Criminal Act; Articles 247(2) and 327 subparag. 3 of the Criminal Procedure Act

Defendant 1 and one other

Prosecutor (Defendant 2) and Defendants

Attorney Lee Im-soo

Profit-style et al. and six others

Cheongju District Court Decision 82No96 delivered on April 20, 1982

The prosecutor's appeal is dismissed.

The conviction part of the judgment of the court below against the Defendants shall be reversed, and the case shall be remanded to Cheongju District Court Panel Division.

1. Judgment on the grounds of appeal by the prosecutor

Since the crime of habitual fraud is a group of crimes committed by a person who has the habitive wall of the crime of habitual fraud repeatedly commits several acts, the effect of the indictment is identical to the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime

However, according to the records, it is evident that the public prosecutor's prosecution of prosecution against the defendant 2 (as of October 31, 1981) committed between March 17, 1980 and June 25, 1981 by the same defendant is a habitual fraud crime (as of October 15, 1981), and the same type of fraud has been committed even after the date of the above crime. Thus, it is obvious that the first instance court made a new public prosecution under the same name of the same crime. Thus, it is reasonable that the above public prosecution constitutes a double indictment for the same case having the effect of the public prosecution, and that the judgment dismissing the public prosecution pursuant to Article 327 subparagraph 3 of the Criminal Procedure Act is justified, and there is no error of law by misapprehending legal principles, such as the theory of lawsuit, in the judgment of the court below that maintained it. Therefore, it is groundless.

2. Determination on the grounds of appeal by Defendant 2, his defense counsel, and Defendant 1

(1) As to the part concerning the crime of fabrication and uttering of seals:

According to the evidence of the first instance court cited by the court below, the defendants' criminal facts, such as the contents of the judgment, can be legitimately recognized, and the process of the preparation of evidence and fact-finding shall be examined by the records, and there is no violation of the rules of evidence or incomplete deliberation, such as the theory of lawsuit, and therefore,

(2) As to the part concerning habitual fraud:

According to the reasoning of the judgment of the court below, comprehensively taking into account the evidence of the first instance court and the evidence adopted at the court below, the court below decided that the defendants shall receive the down payment and business funds by falsely publicizinging as if they were companies identical to the above new interest corporation, which is the Cheongju District, and by taking a contract between the above company and the new interest corporation under which the above company will be supplied with the cryp and the KON, and by establishing a business place of the trade name of the new interest corporation, which is the general director, Defendant 1 and Defendant 2, who managed the new interest corporation by holding the office as the head of the business; although the above new interest corporation was not merely a private company that purchases and sells in cash the food produced by the new interest corporation, the above new interest corporation was merely a private company that purchases and sells in cash the food, such as the Japanese cryp and KON, which are produced by the new interest corporation.

A. The Defendants, in collusion and habitually, deceiving each victims as stated in (1) through (9) of the Schedule of Crimes in the annexed Table (1) by deceiving them and deceiving them by receiving each amount of damage from them;

B. Defendant 2 recognized the fact that he habitually deceives each victims as described in (1) through (31) of the same crime list, and obtained the amount of damages from them, and obtained them by deceit. In light of the contents of the judgment acknowledged by the original judgment as an act of deceiving victims, in the course of concluding a contract with the Defendants to supply the products of the new interest company at the agreed price and the victims to sell these products monopoly within a certain area, unlike the contents of the contract, the new interest comprehensive food is the same company as the new interest comprehensive food company. ② The new interest comprehensive food guarantees 15 percent of the profits. ③ The fixed amount of business funds (1.6 million won in this area, 5 million won in non-regional area, 3 million won in weather area, and 3 million won in the suspect examination statement and the evidence that the contract was concluded with the public prosecutor and the newly constructed prosecutor's evidence to the extent that the contract was made with the new interest comprehensive food company and the newly prepared prosecutor's evidence to the extent that the contract was made.

However, according to the records, the defendants' statements are not worth evidence because they were closed at the time and denied the fact that they did not deceiving the victims as in the original statement. The victims' statements are not subject to deception as in the original statement, but the victims' statements are not subject to deception as in the original statement, and when they concluded a provisional contract with the office of the new interest comprehensive food industry, they merely merely merely decided that they concluded a false contract by hearing the words such as the time of original judgment from the working-level officers such as the director of the division and the director of the Hemomoto division, etc. When they concluded a provisional contract with the office of the new interest comprehensive food industry, or that they concluded a false contract with the victim. Such act of deception by the foreign affairs members or the working-level officers was based on the intentions of the defendants, or whether the defendants neglected their intent to participate in the contract with their deception, etc. Thus, it does not include all the contents of statements sufficient to recognize the defendants' joint processing facts. Thus, the evidence cited in the original judgment can not be proven as evidence of guilt against the defendants.

Therefore, the judgment of the court below which found the defendants guilty of habitual fraud only with the above statement of evidence alone is not erroneous in the incomplete hearing or it is erroneous in the violation of the rules of evidence by recognizing the facts constituting an offense without any evidence. Therefore, there is a justifiable ground for appeal pointing this out. The judgment of the court below is a single punishment for concurrent crimes with the seal forgery and the crime of uttering which are judged to have no ground for appeal prior to the crime of habitual fraud against the defendants. Thus, the judgment of the court below is not reversed in its entirety.

3. Therefore, the prosecutor's appeal is dismissed, and all convictions against the Defendants are reversed, and remanded to Cheongju District Court Panel Division which is the original court. It is so decided as per Disposition by the assent of all participating judges' opinions.

Justices Yoon Il-young (Presiding Justice)