[1] The case holding that the facts charged of habitual fraud, which is a single comprehensive crime, are not specified

[2] 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 of the principal and interest of the existing loan is made without receiving real funds for the purpose of evading the return after deceiving the victim by deceiving the victim (negative)

[3] Whether a person can be punished pursuant to Article 28 (1) 1 of the Merchant Banks Act in a case where only a business falling under any of the subparagraphs of Article 7 (1) of the Merchant Banks Act, which is an unmanned bank's business (negative)

[1] The case holding that "the defendant habitually obtained KRW 1737,984,00 from members including the victim from August 24, 199 to May 24, 200, and acquired KRW 17321 million in total from the victim and the members including the victim in Incheon and Seocheon-si in the same number of laws, on the grounds that "the defendant was unable to know at least the amount of damage by the victim and the victim's sub-party's sub-party's sub-party's sub-party's sub-party's sub-party office at the Dongcheon-gu Office of Seocheon-si, Seocheon-gu, 2000, the defendant's non-indicted sold 40,000 won of similar financial product at the victim's seat, i.e., the defendant sold 40,000 won in cash and acquired it, and therefore, it cannot be seen that the defendant's right of defense was restricted to exercise his right of defense, and therefore, there is no possibility to limit the specific criminal facts charged.

[2] The amount of profit under Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes refers to the aggregate of the actual profits acquired through the criminal act. In the case of fraud, if there is a delivery of property by deception, the crime is established immediately, and even if it was done in the form of a new investment without actually receiving funds for the purpose of evading the return of the property acquired by deception, it does not infringe a new legal interest and thus does not constitute a separate crime.

[3] Article 28 (1) of the Merchant Banks Act provides that "a person who falls under any of the following subparagraphs shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding 20 million won" and subparagraph 1 of Article 28 provides that "a person who conducts the business referred to in each subparagraph of Article 7 (1) without obtaining authorization under Article 3". Since it is apparent that a person subject to punishment under the above provision is a person who conducts the business referred to in each subparagraph of Article 7 (1) comprehensively, it does not constitute a person who conducts only the business referred to in any subparagraph of Article 7 (1).

[1] Article 254 of the Criminal Procedure Act / [2] Article 347 (1) of the Criminal Act, Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes / [3] Articles 7 (1) and 28 (1) 1 of the Merchant Banks

[2] Supreme Court Decision 95Do825 delivered on June 30, 1995 (Gong1995Ha, 2691) Supreme Court Decision 2000Do3483 Delivered on November 10, 200 (Gong2001Sang, 91) / [3] Supreme Court Decision 2000Do4005 Delivered on December 27, 2000 (Gong2001Sang, 410)

Defendant

Defendant

Attorney Kim Jong-il

Seoul High Court Decision 2000No2549 delivered on January 16, 200

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 held that "the defendant habitually obtained KRW 17.377,984,00 from members including the victim from August 199 to May 24, 200, and acquired KRW 2,321,00 in total from members including the victim from August 21, 199 to May 24, 200, on this part of the facts charged, that "The defendant acquired KRW 17.37,984,00 in total from the victim and acquired KRW 17.37,984,00 in total from the victim from the victim and the other party to the crime of habitual fraud, which is a single comprehensive crime, even if it is not specifically specified in the individual act constituting the crime of the day, the whole period of the crime, the damage amount, or all the other party to the crime cannot be specified in the crime of habitual fraud."

However, even if considering the characteristics of the inclusive crime, the above facts charged cannot be deemed to have been specified on the sole basis of the facts charged. There is no room for doubt as to the fact that the Defendant, whose amount of damage is not known at all by the victim and the victim, suffers a huge disadvantage in exercising his/her right of defense. Therefore, the facts charged contravenes the purport of the law that limits the object of adjudication by specifying the facts charged, and makes it easy for the Defendant to exercise his/her right of defense.

In addition, in this case, all of the loans from the victims were issued in the form of new loan and the newly issued investment certificate. However, if the loan acquired by the defendant has been invested again to the victims at maturity, it is the full amount or part of the principal and interest to be returned by deceiving the defendant to guarantee such high profit as the previous loan if it is invested again, and it is merely the issuance of the investment certificate and it is true that the loan equivalent to the amount indicated on the certificate is not received. Furthermore, 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. In fraud, if there is a delivery of property due to deception, the crime is established, and even if it was made in the form of new investment without receiving the funds by deceiving the victims, it does not constitute a separate crime because it does not violate the new legal interests. Therefore, the court below should consider the amount of the loan to be received by the victim as the amount of profit prior to the issuance of the new certificate of profit and it does not constitute an amount of profit.

Therefore, the court below's determination that this part of the facts charged was specified is erroneous in the misunderstanding of legal principles as to the specification of the facts charged, which affected the conclusion of the judgment, and this part of the grounds of appeal assigning this error is with merit. Therefore, this part of the judgment below cannot be maintained without

2. Judgment on the violation of the Merchant Banks Act

Article 28(1) of the Merchant Banks Act provides that "a person who falls under any of the following subparagraphs shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding 20 million won," and subparagraph 1 of Article 28 provides that "a person who conducts the business referred to in each subparagraph of Article 7(1) comprehensively without obtaining authorization under Article 3." Since it is apparent that a person subject to punishment under the above provision is a person who conducts the business referred to in each subparagraph of Article 7(1) comprehensively, and therefore, a person who conducts only the business referred to in any subparagraph of Article 7(1) does not fall under such provision (see Supreme Court Decision 200Do4005, Dec. 27, 200).

However, the summary of this part of the facts charged against the defendant is as follows: "the defendant purchased at a discount rate of 11,232,320 won at the rate of 2.1% of the amount issued by TF electronic from a person who was absent from the name of his/her employees of TF Co., Ltd. on August 23, 199, and then sold at a rate of 1.4% again to a bondholder with no name at that time, and from April 19, 200, he/she purchased at a discount of 643,840,956 won in total from 56 times until April 19, 200, and thereafter, he/she again purchased at a discount of 643,840,956 won with a discount of 56 won in total, and thereafter, the defendant's act was merely a discount or trading of a promissory note, which is a merchant bank's business without the authorization of the Financial Supervisory Commission, and thus, it cannot be punished pursuant to Article 28 (1)1) of the Merchant Banks Act.

Therefore, the judgment of the court below guilty of this part of the facts charged is erroneous in the misapprehension of legal principles as to Article 28 (1) 1 of the Merchant Banks Act, and such illegality affected the judgment. Therefore, the ground of appeal pointing this out also has merit.

3. Therefore, the judgment of the court below cannot be maintained with respect to the defendant's violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and the Merchant Banks Act. Since each of the above crimes was sentenced to a single punishment in relation to the remaining convictions against the defendant and concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment of the court below is reversed in entirety,

Justices Zwon (Presiding Justice)