[1] The standard for determining legal holiday agreements

[2] Relationship between the act of unregistered business and the act of actual monetary transaction under the Door-to-Door Sales, etc. Act (=the act of actual concurrent crimes)

[3] The relationship between the crime of fraud under Article 347 (1) of the Criminal Code and the crime of violation under Article 28 (1) of the Door-to-Door Sales, etc. Act and Article 45 (2) 1 of the same Act (=the crime of actual concurrent crimes)

[1] Legal concurrence refers to a case where a single act appears to be an external constituent element of several crimes, but actually constitutes only one crime. Whether a single crime or several crimes are actually a single crime shall be determined by considering the evaluation of the constituent elements and the legal interest and protection of the law.

[2] Under the Door-to-Door Sales, etc. Act, a non-registered business and a business which actually engages in money transactions are different from each other (Article 45(2)1) by multi-level marketing without being registered, or using a multi-level marketing organization (Article 28(1)). Furthermore, one of such acts cannot be deemed to include another act. The legal interests protected by the Act also are different from all other acts, and thus, it cannot be deemed that one of the crimes constitutes a separate crime. Thus, the two crimes are in the relation of substantive concurrent crimes.

[3] Article 28 (1) of the Door-to-Door Sales Act provides that "any person who intends to operate a multi-level marketing business shall register with the Mayor/Do governor." Article 45 (2) 1 of the same Act provides that "No person shall engage in only monetary transactions without any transaction of goods or services or engage in actual monetary transactions in disguise of any transaction of goods or services, using a multi-level marketing organization or any similar multi-level marketing organization, which is composed of subscribers, consecutively or in a successive and phased manner," and each act itself cannot be regarded as a fraudulent act, and each of such acts under Article 347 (1) of the Criminal Act and Article 28 (1) of the Door-to-Door Sales Act and Article 45 (2) 1 of the Door-to-Door Sales Act through such unregistered act of business or monetary transactions do not constitute one act of violation of the law, and it is reasonable to view that each separate crime has different legal interests and interests, and each of the two crimes is not a substantive competition relationship.

[1] Article 37 of the Criminal Act / [2] Article 37 of the Criminal Act; Articles 28 (1) and 45 (2) 1 of the Door-to-Door Sales, etc. Act / [3] Articles 37 and 347 (1) of the Criminal Act; Articles 28 (1) and 45 (2) 1 of the Door-to-Door Sales, etc. Act

[1] [3] Supreme Court Decision 200Do1899 decided Jul. 7, 200 (Gong2000Ha, 1911) / [1] Supreme Court Decision 84Do782 decided Jun. 26, 1984 (Gong1984, 1381) Supreme Court Decision 97Do2956 decided Mar. 24, 1998 (Gong198Sang, 1248)

Defendant 1 and three others

Defendant 1, 2, and Prosecutor

Attorney Park Hyun-sik et al.

Seoul High Court Decision 2000No1788 delivered on October 31, 2000

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the defendant 1 and 2's appeal

A. As to the ground of appeal No. 2 by the defense counsel and his defense counsel Kim Yong-chul, and the ground of appeal by the Jinology

In light of the records, the court below is just in finding the defendants guilty of committing the crime of fraud in collusion with the co-defendants of the court below, and there is no error of law by misunderstanding the facts against the rules of evidence or misunderstanding the legal principles on fraud, since it is sufficiently recognized that the above defendants could not return the principal and interest of the victims even if they received investments or investments from the victims, by deceiving the victims through the same means as stated in its reasoning, even though they are well aware that they could not return them properly.

B. As to the ground of appeal No. 1 by defense counsel Kim Yong-chul and Jinology

Legal concurrence refers to a case where a single act appears to be an external constituent element of several crimes, but actually constitutes only one crime. Whether a single crime is established or several crimes must be determined by considering the evaluation of the constituent elements and the legal interests protected by law (see, e.g., Supreme Court Decisions 9Do2956, Mar. 24, 1998; 2000Do1899, Jul. 7, 2000).

However, in this case, the act of non-registration and actual monetary transaction under the Door-to-Door Sales, etc. Act is an act of multi-level marketing without registration and carrying on only money transaction (Article 28(1) of the Act) with multi-level marketing organization (Article 45(2)1 of the Act), and it cannot be deemed that one act includes another act, and the protected legal interest also consists of a separate act. Thus, it cannot be deemed that one crime is incorporated into another crime. Therefore, it is reasonable that the court below's two crimes constitute substantive concurrent crimes, and there is no error of law such as misunderstanding of legal principles as pointed out in the ground of appeal. However, in light of the court below's reasoning, the court below did not accept Article 30(2)1 of the Criminal Act and Article 30 of the Act on Door-to-Door Sales, etc. (Article 28(3) of the Act on Door-to-Door Sales, etc. (Article 28(3) of the Act on Door-to-Door Sales).

C. As to the ground of appeal No. 3 by defense counsel Kim Yong-chul and Jinology

Article 28 (1) of the Door-to-Door Sales Act provides that "any person who intends to operate a multi-level marketing business shall register with the Mayor/Do Governor." Article 45 (2) 1 of the same Act provides that "No person shall conduct any monetary transaction without any transaction of goods or services or make any actual monetary transaction in disguise of any transaction of goods or services, using a multi-level marketing organization or any similar multi-level marketing organization, which is composed of subscribers successively and in a multi-level marketing organization." It cannot be viewed that each act itself is a fraudulent act, and the violation of the crime of fraud under Article 347 (1) of the Criminal Act and Article 28 (1) of the Door-to-Door Sales Act and Article 45 (2) 1 of the same Act through such unregistered act or monetary transaction does not constitute one act, and it does not constitute a separate crime that differs from each of its constituent elements, and therefore, it shall not be deemed that each of these crimes is a commercial competition relationship, and the court below's decision is justified in the misapprehension of the legal principle.

2. As to the Prosecutor’s Grounds of Appeal

According to the reasoning of the judgment of the court below, the court below held that the defendants' crime of this case committed the fraud of this case is hard to view that the defendants repeatedly committed the crime as a result of the commission of the fraud, and on the grounds that there is no other evidence to acknowledge the habit of the fraud, the defendants are not guilty of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against the defendants, and determined each fraud of the defendants as the substantive concurrent crimes of simple fraud.

In light of the records, we affirm the judgment of the court below, and it cannot be said that there is an error of law by misunderstanding the legal principles as to habituality in fraud in the judgment below. The prosecutor's ground of appeal cannot be accepted.

3. Conclusion

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

Justices Seo-sung (Presiding Justice)