[1] The meaning of "amount of profit" under Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, and whether a separate crime of fraud is established in a case where a new investment is made in the existing principal and interest of a loan without receiving real funds for the purpose of evading the return after deceiving the victim by deceiving the victim (negative)

[2] Criteria to determine whether habitual fraud exists

[3] The extent to which the indictment is effective for habitual offenders

[1] The amount of profit under Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes refers to the sum of the actual profits acquired through the criminal act. The crime of fraud is established immediately if there is a delivery of property through deception, and even if it was done in the form of new investment in the purchase fund of stocks or new loan without actual financing for the purpose of evading the return of the property acquired through deception by deceiving the victim, it does not infringe new legal interests and thus does not constitute a separate crime.

[2] Habitualness in habitual fraud is a habit of repeated fraud, and the existence of such habition should be taken into account not only the previous criminal records of fraud, but also the frequency, means, methods, and motives of the crime.

[3] The effect of a public prosecution for habitual offenders extends to the whole criminal facts identical to that of the prosecuted crime, and the time limit for sentencing, which is the last point at which it is possible to examine the facts. As such, once a prosecutor institutes a public prosecution for habitual fraud (including cases where a public prosecution is instituted in simple fraud but the indictment is changed due to habitual fraud) and then a part of the fraudulent act is instituted for separate independent fraud until the above standard on which the effect of the public prosecution is effective (including cases where a public prosecution is instituted in simple fraud but the indictment is changed due to habitual fraud), it cannot be permitted as it constitutes a double prosecution for the same case in which a public prosecution is instituted without asking whether the time when the fraud, which is the charged crime, was committed, is prior to or after the crime committed.

[1] Article 347 (1) of the Criminal Code, Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes / [2] Articles 347 and 351 of the Criminal Code / [3] Articles 347 and 351 of the Criminal Code, Article 327 subparagraph 3 of the Criminal Procedure Act

[1] [2] Supreme Court Decision 200Do3483 decided Nov. 10, 200 (Gong2001Sang, 91) / [1] Supreme Court Decision 95Do825 decided Jun. 30, 1995 (Gong1995Ha, 2691) Supreme Court Decision 2001Do661 decided Apr. 10, 2001 (Gong2001Sang, 1176) / [3] Supreme Court Decision 82Do1463 decided Sept. 7, 1982 (Gong1982, 978); Supreme Court Decision 82Do2829, 82Ga612 decided Apr. 26, 198 (Gong1983, 1926) / [3] Supreme Court Decision 190Do979 decided Apr. 29, 199; Supreme Court Decision 2000Do9497 decided Apr. 29, 1997

Defendant

Defendant

Attorney Kim Jong-il

Seoul High Court Decision 2000No3408 delivered on April 6, 2001

The judgment below is reversed and the case is remanded to Seoul High Court.

1. Judgment on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

The court below found that the defendant habitually received 2,629,90,000 won in total from victims and acquired the money of 2,629,90,000 won in total from the victims, on the ground that the defendant's management of the multilevel financial sales organization of the non-indicted 1 corporation or the non-indicted 2 corporation, and habitually made investments in funds to customers, "to pay the principal and interest with interest of 20% interest added thereto on the 42th day of the 42th day," or "to pay the principal and interest by adding interest of 23.4% per annum," or "to pay the principal and interest to the shares of the effective mining industry of the corporation."

However, examining the criminal facts of Article 3 of the decision of the court below that the defendant sold the shares of effective mining business and acquired the above shares to the victims and entered the price in the share certificate issuance register, etc. However, the substantial part of the funds is merely that the defendant distributed the above shares to the victims for the repayment of principal and interest of the loan acquired before, and it is true that the amount of the shares is not actually received by the victims. Furthermore, even if examining the remaining criminal facts, the borrowed funds from the victims are newly issued in the form of new loan and the certificate of the investment was also newly issued. However, if the borrowed funds from the victims reach the maturity of the previous borrowed funds, the substantial part of the funds is that the defendant would be 10 new borrowing of all or part of the principal and interest to be returned by deceiving the victims to guarantee the same high-income as the previous funds, and the new funds are not received by the defendant prior to the issuance of the new 60 certificate, and it is not reasonable that the new funds are not received by the victim for the purpose of the crime of fraud.

Ultimately, the court below recognized that the share price and the amount recorded in the share certificate, etc. as the amount of investment recorded in the share certificate issued register, etc. as the amount of profit without regard to the part not recognized as a crime of fraud as above is recognized as the amount of profit. The court below erred by misapprehending the legal principles on the amount of profit under Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, failing to exhaust all necessary deliberations, or violating

2. Determination on fraud

The court below found the defendant guilty on the facts charged of the fraud of this case, separate from the crime of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), which is recognized as a comprehensive crime of habitual fraud, on the premise that this does not arise from the realization of the defendant's fraudulent habits.

However, habitual fraud refers to repeated fraud that repeatedly commits such fraud, and it is necessary to consider not only the previous criminal record of fraud, but also the frequency, means, methods, and motives of the crime (see Supreme Court Decision 2000Do3483, Nov. 10, 200). In this case, the defendant was sentenced to a suspended sentence of one year for the crime of breach of trust and fraud on May 8, 1990, and the defendant began to commit the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) recognized by the court below as a comprehensive crime of habitual fraud by any similar method after the lapse of seven months after the crime of the fraud in this case. Accordingly, it is recognized that the fraud in this case was caused by the realization of the defendant's fraudulent behavior, and therefore all of the facts of the fraud in this case and the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) are related to the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud).

However, the effect of a public prosecution in habitual crimes extends to the whole criminal facts identical to the criminal facts in which the public prosecution is instituted, and the trial scope that affects the validity of the public prosecution should be based on the time of sentencing, which is the last point at which it is possible to examine the facts. As such, once a prosecutor institutes a public prosecution for habitual fraud (including the case in which the indictment was instituted simply by fraud but the indictment was modified to be habitually fraudulent crimes) and then a part of the fraudulent act is instituted as separate independent fraud until the above standard on which the effect of the public prosecution is effective. It cannot be allowed as it constitutes a double prosecution for the same case in which a public prosecution is instituted without asking whether the time when the fraud, which is the facts charged, was committed, is prior to or after the crime committed (see Supreme Court Decision 99Do3929, 99Do997, Nov. 26, 199).

Therefore, even though the prosecution against the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) due to habitual fraud first instituted in this case was not effective, and the indictment against the fraud constitutes double prosecution against the same case, the court below erred by misapprehending the legal principles as to the crime of fraud of this case and thereby affecting the conclusion of the judgment, and the ground of appeal pointing this out also has merit.

3. Conclusion

Therefore, the judgment of the court below cannot be maintained without examining the remainder of the grounds of appeal. Thus, the judgment of the court below is reversed, and the case is remanded to the court below. It is

Justices Zwon (Presiding Justice)