[1] The meaning that Article 746 of the Civil Code provides that "if a property was provided for a reason of illegality, no return of the benefit shall be demanded."

[2] In a case where the defendant was indicted for violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) on the ground that he voluntarily consumed in cash after acquiring a bearer deposit certificate, such as the criminal proceeds acquired by Gap, etc. through a multi-level fraud from Eul, the case affirming the judgment below holding that the defendant's bearer deposit certificate, which the defendant received from Eul, to conceal criminal proceeds, belongs to the defendant because it constitutes an article provided for illegal causes, and thus the defendant is not guilty of embezzlement

[3] Whether the criminal proceeds, etc. related to the criminal acts under Article 3 or 4 of the former Act on the Regulation and Punishment of Criminal Proceeds Concealment, or the property generated by the criminal acts under the above provision, or the property acquired by the remuneration for such criminal acts, are subject to each collection (affirmative) / Whether the value of the above property may be additionally collected if it is a criminal damage property (negative)

[1] Article 746 of the Civil Code provides that a person who provided a benefit may not claim the return of the benefit in a case where he provided a benefit for an illegal cause, provided that the person who provided the benefit cannot claim the return of the benefit in question against the other party on the ground that the act is legally null and void, and that the person who provided the benefit cannot claim the return of unjust enrichment against the other party, as well as that the ownership of the benefit in question belongs to himself,

Meanwhile, in order to establish “illegal” under Article 746 of the Civil Act, the act that caused the payment of benefits constitutes not only a violation of good customs and other social order, but also a violation of good customs and other social order, i.e., reflective ethics, and morality, or a case in which the payment of benefits was made in violation of the mandatory law but rather does not conform to the normative purpose.

[2] In a case where the defendant was indicted for violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) on the ground that he voluntarily consumeds the certificate of bearer deposit, which is the criminal proceeds acquired by Gap, etc. through a multi-level fraud, after acquiring seven copies of the certificate of bearer deposit, such as criminal proceeds, from Eul, which was acquired through a multi-level fraud, the case affirming the judgment below holding that the crime of embezzlement is not established even if the defendant voluntarily consumeds the cash that was delivered by Eul to conceal criminal proceeds, since the certificate of bearer deposit, which was delivered by Eul, constitutes an object paid for illegal cause

[3] Criminal proceeds, etc. related to criminal acts under Article 3 or 4 of the former Act on Regulation and Punishment of Criminal Proceeds Concealment (amended by Act No. 10201 of March 31, 2010), or property generated by criminal acts under Article 3 or 4, or property acquired by compensation for such criminal acts shall be subject to additional collection in accordance with Article 8(1)3 and 4 of the same Act and Article 10(1) of the same Act. However, where such property is a criminal victim property under Article 8(3) of the same Act, the equivalent amount shall not be collected in accordance with Article 10(2) of the same Act.

[1] Articles 103 and 746 of the Civil Act, Article 355 (1) of the Criminal Act / [2] Article 355 (1) of the Criminal Act, Article 3 (1) 2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 11304, Feb. 10, 2012); Article 3 (1) 1 and 3 of the former Act on the Regulation and Punishment, etc. of Criminal Proceeds Concealment (Amended by Act No. 10201, Mar. 31, 2010); Article 746 of the Civil Act; Article 325 of the Criminal Procedure Act / [3] Articles 3, 4, 8 (1) 3, 4, and 10 (3), and 10 (1) of the former Act on the Regulation and Punishment, etc. of Criminal Proceeds Concealment (Amended by Act No. 10201, Mar. 31, 2010)

[1] Supreme Court Decision 2016Do18035 Decided April 26, 2017 (Gong2017Sang, 1215)

Defendant

Defendant and Prosecutor

Attorney Han-chul et al.

Daegu High Court Decision 2016No671 decided June 1, 2017

The guilty part of the judgment of the court below is reversed, and that part of the case is remanded to the Daegu High Court. The prosecutor's appeal is dismissed.

The grounds of appeal are examined.

1. As to the prosecutor's grounds of appeal

Article 746 of the Civil Act provides that a person who provided a benefit may not claim the return of the benefit, provided that the person who provided the benefit cannot claim the return of the benefit, on the ground that the act was null and void by law, and that the person who provided the benefit cannot claim the return of unjust enrichment to the other party, and that the ownership of the benefit cannot be claimed based on ownership on the ground that the act was null and void by law. Thus, the ownership of

Meanwhile, in order to establish “illegal” under Article 746 of the Civil Act, the act that caused the payment of benefits constitutes not only a violation of good customs and other social order in light of its content, nature, purpose, or relationship, but also a case where anti-sociality, anti-social ethics, and anti-competence are remarkable, or where the payment of benefits was made in violation of the mandatory law but rather does not comply with the normative purpose (see, e.g., Supreme Court Decision 2016Do18035, Apr. 26, 2017).

For the reasons indicated in its holding, the lower court determined that it is reasonable to view that the instant bearer deposit certificate issued by the Defendant to conceal criminal proceeds, etc. by Nonindicted 1 constitutes an article provided for illegal causes, and thus, the ownership belongs to the Defendant, and therefore, even if the Defendant voluntarily consumed the cash exchanged with the instant bearer deposit certificate, the crime of embezzlement is not established.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on

2. As to the Defendant’s ground of appeal

A. The incomplete hearing, violation of the rules of evidence, and the argument on the completion of the statute of limitations

Examining the reasoning of the lower judgment in light of relevant legal principles and evidence duly admitted, the lower court is justifiable to have found the Defendant guilty of violating the Act on Regulation and Punishment of Criminal Proceeds Concealment among the facts charged in the instant case on the grounds stated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on fact-finding beyond the bounds of the principle of free evaluation of evidence against logical and empirical rules

B. As to the misapprehension of legal principles as to collection and the assertion of mistake of facts

(1) Criminal proceeds, etc. related to criminal acts under Article 3 or 4 of the former Act on Regulation and Punishment of Criminal Proceeds Concealment (amended by Act No. 10201, Mar. 31, 2010; hereinafter “Criminal Proceeds Concealment Regulation Act”), or property generated by criminal acts under Article 3 or 4, or property acquired in return for such criminal acts, shall be subject to additional collection in accordance with Articles 8(1)3 and 4, and 10(1) of the same Act. However, if the above property is criminal damage property under Article 8(3) of the same Act, the equivalent value thereof shall not be collected in accordance with Article 10(2) of the same Act.

(2) The lower court found the Defendant guilty of violating the Act on the Regulation of Criminal Proceeds Concealment, and sentenced the Defendant to collect the penalty in accordance with Articles 10(1) and 8(1) of the Act on the Regulation of Criminal Proceeds Concealment as to KRW 1,241,95,269, which was the remainder after deducting KRW 17 million returned from KRW 1,258,95,269, which was deposited in the account of Nonindicted Party 1’s account, from KRW 1,258,95,269, which was returned to Nonindicted Party 2 and Nonindicted Party 3’s account.

(3) However, we cannot accept the above determination by the court below for the following reasons.

Comprehensively taking account of the reasoning of the lower judgment and the evidence duly admitted, the following facts are revealed: (a) the Defendant’s bearer deposit certificate of this case, which Nonindicted 1 received from Nonindicted 1, falls under the criminal proceeds acquired by Nonindicted 4, etc. through a multi-level fraud; and (b) thus, this constitutes the property acquired from the victim by a criminal act of a crime of property or the property acquired by the possession and disposition of such property, which constitutes criminal injury under Article 8(3) of the Regulation of Criminal Proceeds Concealment Act. Moreover, since the termination of the bearer deposit certificate of this case arising from the criminal act under Article 3 of the Regulation of Criminal Proceeds Concealment Act that the Defendant conceals such criminal proceeds, etc., is also deemed as criminal damage property, it cannot be collected in accordance with the Regulation of Criminal Proceeds Concealment Act.

In this case, the Defendant only committed a violation of Article 3 of the Act on the Regulation of Criminal Proceeds Concealment, and did not violate any independent legal interests other than the above crime, and thus, it cannot be deemed that the exceptional case where the provisions on the restriction of confiscation and collection under Articles 8(3) and 10(2) of the Act on the Regulation of Criminal Proceeds Concealment do not apply (see Supreme Court Decisions 2010Do7129, Oct. 11, 2012; 2014Do13446, Jan. 29, 2015) are not applicable.

Nevertheless, the lower court sentenced the Defendant to collect KRW 1,241,95,269 from the Defendant solely on the grounds stated in its reasoning. In so doing, the lower court erred by misapprehending the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on confiscation and collection under the Regulation of Criminal Proceeds Concealment Act, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the defendant, the part of the judgment below's conviction is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The prosecutor's appeal is dismissed. It is so decided as per Disposition by the assent

Justices Kim Yong-deok (Presiding Justice)