[1] In a case where a crime of fraud committed before the judgment becomes final and conclusive is in the relationship between the crime of fraud for which judgment becomes final and the crime of habitual fraud, whether the res judicata of the final and conclusive judgment affects the charges of simple fraud committed before the final and conclusive

[2] The meaning of habitual fraud

[3] In a case where there is a final judgment on the same kind of crime in the middle of a series of fraud crimes that can be covered by habitual fraud, whether the identity is recognized between each case before and after the final judgment (negative)

[4] Whether a case prosecuted for simple fraud can be punished as habitual fraud without modification of an indictment (negative)

[1] If the criminal facts of a crime of fraud for which a judgment of conviction was rendered, and the criminal facts of a crime of fraud committed prior to the final judgment, were committed in the criminal records of a crime of fraud committed by a defendant as well as the criminal facts of a crime of fraud committed prior to the final judgment, the criminal facts of the above crime of fraud and the criminal facts of a crime of habitual fraud prior to the above judgment are in the relation of a crime of habitual fraud, which is a single comprehensive crime under the substantive law. Therefore, the res judicata effect of the final judgment of the above crime of fraud is in the relation

[2] Habitualness in the crime of habitual fraud refers to the nature of the actor as a habitive wall repeatedly committing the fraud. The habitive wall of the fraud in this context refers not to the habitive wall of the fraud in accordance with the same number of laws, as long as it is recognized as the creation of the actor's fraudulent habitive wall, but also includes the habitive wall of the fraud that covers the fraud in accordance with the applicable number of laws.

[3] In a case where there exists a final judgment on a series of offenses of the same kind in the middle of a series of fraud crimes which can be covered by habitual fraud under the substantive law, the series of offenses that could have been covered by the original one by the final judgment shall be separated before and after the final judgment, and each of the separate cases so separated shall be sentenced to each of the respective orders even if they are charged twice since they cannot be deemed identical to each other.

[4] In a case where a prosecutor is indicted by applying Article 347(1) of the Criminal Act to the facts charged of simple fraud, even if habituality is recognized, the court cannot be deemed as habitual fraud and punished without changing the indictment.

[1] Article 326 subparagraph 1 of the Criminal Procedure Act, Articles 347 (1) and 351 of the Criminal Act / [2] Article 351 of the Criminal Act / [3] Article 326 subparagraph 1 of the Criminal Procedure Act, Articles 39 (1) and 351 of the Criminal Act / [4] Article 298 of the Criminal Procedure Act, Article 351 of the Criminal Act

[1] Supreme Court Decision 89Do1984 delivered on May 2, 1990 (Gong1990, 1403) Supreme Court Decision 91Do1874 delivered on October 8, 1991 (Gong1991, 2755), Supreme Court Decision 91Do3170 delivered on October 13, 1992 (Gong1992, 3184), Supreme Court Decision 92Do2585 delivered on May 14, 1993 (Gong1993Ha, 1760) / [2] Supreme Court Decision 90Do653 delivered on April 24, 199 (Gong190, 1199), Supreme Court Decision 9Do3979 delivered on September 29, 197 (Gong1994, 197) / [309Do9799 delivered on September 19, 197)

Defendant

Defendant

Law Firm Son Law Firm, Attorneys Park Jong-soo et al.

Seoul District Court Decision 99No7843 delivered on October 12, 1999

The appeal is dismissed. 110 days out of the number of detention days after the appeal shall be included in the original sentence.

We examine the grounds of appeal.

1. The summary of the facts charged of this case is as follows: (a) in collusion with the accomplices in the judgment of the court of first instance cited by the court below by means of purchasing a house with no collateral value, such as a lease deposit claim, and receiving the money as a collateral, and (b) in collusion with them (1) from August 5, 1997 to November 7, 197, by acquiring a loan of KRW 70 million and KRW 60 million from the total face value of two surety bonds; and (2) from May 28, 1998 to July 23, 198 to take over a total of KRW 4845 million from around July 27, 1999 to KRW 30,000 and KRW 50,000 from around January 27, 1999 to KRW 198; and (3) from around September 19, 199 to KRW 198; and (3) from around September 198, 199.

On the other hand, the court below rejected the defendant's assertion that the defendant should be acquitted on the grounds that each of the crimes of this case is related to the fraud of which judgment has already become final and conclusive and the habitual fraud, and reversed the judgment of the court of first instance which accepted the defendant's assertion of unfair sentencing and convicted the defendant of the charges, and sentenced the defendant to three years of imprisonment with labor

2. If the criminal facts of a crime of fraud for which the judgment of conviction was affirmed and the criminal facts of a crime of fraud committed prior to the final judgment were committed in the criminal records of a criminal defendant as well as the criminal facts of a crime of fraud committed prior to the final judgment, the criminal facts of the above final judgment and the criminal facts of a crime of habitual fraud prior to the above judgment are in the relation of a single comprehensive crime under the substantive law. Therefore, although the res judicata effect of the final judgment of the above crime of fraud is in the relation of a single comprehensive crime, it constitutes a criminal facts prior to the final judgment which was prosecuted for a simple fraud, and thus, the judgment of acquittal should be pronounced as a judgment of acquittal is delivered (see, e.g., Supreme Court Decisions 89Do1984, May 22, 1990; 91Do3170, Oct. 13

However, according to the records, on December 25, 1994, the defendant was sentenced to a fine of KRW 1,00,000 for fraud from the Northern Branch of the Seoul District Court on January 12, 1999 to a fine of KRW 1,00,00,000 for his own loan of KRW 25,000 to Nonindicted Party 1 without any intention or ability to perform the guaranteed obligation at the branch of the Korea-U.S. Bank. On June 16, 1999, the judgment became final and conclusive on June 16, 199, on the charge that the defendant got the above Nonindicted Party 1 to borrow KRW 25,00,00 for the above Nonindicted Party 1 as a guarantor, and on the charge that the defendant acquired the loan from the Seoul District Court on June 16, 199, the judgment became final and conclusive on September 16, 199 that he purchased the loan from the Seoul District Court on 194's loan of KRW 90,530,50, Dong-dong 165399.

Habitualness in the crime of habitual fraud refers to the nature of the actor as a habit of repeatedly committing the fraud. The habit of the fraud in this context refers to not only the habit of the fraud by the same type of methods recognized as the creation of the fraud habit by the actor, but also to the habit of the fraud that covers the fraud by the several methods (see, e.g., Supreme Court Decisions 91Do1874, Oct. 8, 1991; 90Do653, Apr. 24, 1990; 99Do3929,99Do97, Nov. 26, 199); the defendant's age, character, occupation, criminal records, motive and method of the crime, interval with the crime committed before, and frequency and type of the crime, there is room to view that all of the criminal facts in this case and the criminal records of this case are established.

However, even if both the above crimes and the crimes of this case were committed by the defendant's fraud, which were caused by the defendant's fraud, and were in a relationship that can be covered by the crime of habitual fraud under the substantive law, if there was a final judgment on the same kind of crime in the middle of a series of fraud crimes as seen above (Supreme Court Decision 96Da944 delivered on July 9, 1996), a series of crimes that could have been covered by the original one by the final judgment are separated before and after the final judgment, and even if each of the separate cases is charged twice, it shall be sentenced to each order for each case.

Therefore, on January 12, 1999, the defendant was sentenced to a fine of 1,00,000 won in the North Branch of the Seoul District Court on the criminal conduct committed before the above Gwangju District Court's final judgment, and even if this judgment became final and conclusive thereafter, the res judicata effect of the judgment sentenced to the above fine shall not be deemed to affect this case ( even in a case where the above case for which a fine and a fine are imposed are concurrently tried at the same time, the above case shall be sentenced to acquittal in relation to the final and conclusive judgment of the Seoul District Court's Northern Branch of the Seoul District Court and the above case shall be sentenced to a final and conclusive judgment of January 12, 199, and a separate order shall be sentenced after making a substantial judgment on this case). As such, it cannot be said that the above circumstance affected this case by being convicted of not guilty of a separate crime that is not identical to this case.

3. Meanwhile, in a case where the prosecutor indicted the charges of simple fraud by applying Article 347 (1) of the Criminal Act to the charges of simple fraud, even if habituality is recognized, the court shall not be punished by deeming the charges as habitual fraud without changing the indictment (see, e.g., Supreme Court Decisions 89Do582, Jun. 13, 1989; 93Do86, Oct. 12, 1993). As alleged in the ground of appeal, even if each of the crimes of this case constitutes habitual fraud, unless there is any change in the indictment, the court below recognized the charges of this case as substantive concurrent crimes of simple fraud, and there is no illegality in the misapprehension of legal principles as to habitual crimes, and in this case where a sentence of imprisonment with prison labor for three years is imposed, the defendant's punishment cannot be deemed a legitimate ground of appeal.

4. Therefore, the appeal shall be dismissed, and part of the number of detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Im-soo (Presiding Justice)