[1] Requirements for the establishment of the conspiracy relationship in the co-principal and the method of proof where the defendant denies the conspiracy

[2] In a case where the defendant conspired with Gap et al. to issue the so-called breabbbbb area bill in bulk and distributed it at a certain price, and Eul et al. acquired part of it and delivered it to the victims with the concealment of such fact, thereby acquiring the discount of the bill or delaying the fulfillment of obligation, the case affirming the judgment below which acknowledged the joint principal offense of fraud on the ground that there was a conspiracy between the defendant et al. and the issuer of the breab area B et al.

[1] In relation to accomplices who are co-processed with two or more crimes, the conspiracy does not require any legal punishment, but is only a combination of two or more persons to jointly process and realize crimes. Although there is no process of the whole conspiracy, if a combination of intent is made by objectively or implicitly going through several persons in order or secretly, even though there is no process of the whole conspiracy, a conspiracy relationship is established. In addition, in the event that the defendant denies the conspiracy, which is a subjective element of the crime, there is no strict proof to prove it by means of proving indirect facts or circumstantial facts having considerable relevance to the nature of the crime, and in such a case, what constitutes indirect facts having considerable relevance should be reasonably determined based on normal empirical rule.

[2] In a case where the Defendant, in collusion with Gap et al., opened a bank account under the name of the company, secured a large quantity of bills, and distributed them at a certain price after issuing a large amount of bills which are unlikely to be settled on the date of payment, and Eul et al., acquired part of them, requested the victims to discount bills or deliver them as compensation for delaying performance of obligations, and obtained the discount money of bills, or suspended performance of obligations, the case affirming the judgment below which acknowledged the Defendant et al.’s direct relation between the Defendant et al. and the purchaser of the intermediate bill by recognizing that the crime was committed in a large-scale manner through the public offering and selling of the bill was committed, on the grounds that there was no difference between the Defendant et al., and the Defendant et al., obtained the bill after the issuance of the B/L to the victims, and delivered it to the victims as if they were normally issued with the knowledge that the bill was not the last holder of the B/L in the distribution process of the relevant bill.

[1] Article 30 of the Criminal Act, Article 308 of the Criminal Procedure Act / [2] Articles 30 and 347 (1) of the Criminal Act

[1] Supreme Court Decision 97Do1706 delivered on September 12, 1997 (Gong1997Ha, 3215), Supreme Court Decision 98Do2654 delivered on November 24, 1998 (Gong1999Sang, 81) Supreme Court Decision 2002Do6103 Delivered on January 24, 2003 (Gong2003Sang, 758), Supreme Court Decision 2001Do606 Delivered on December 12, 2003 (Gong2004Sang, 192)

Defendant

Defendant

Attorney Park Hon-soo

Busan District Court Decision 2011No810 decided July 8, 2011

The appeal is dismissed.

The grounds of appeal are examined.

1. Part of the violation of the Financial Investment Services and Capital Markets Act

According to the reasoning of the judgment below, the court below found the defendant guilty by applying the Financial Investment Services and Capital Markets Act, which was enforced at the time of the completion of the act, on the ground that the act was in a single comprehensive crime, since the defendant's act was in a single comprehensive crime, in collusion with the non-indicted 1, 2, 3, and 4, and was engaged in short-term financial business without obtaining authorization from the Financial Services Commission.

In light of the evidence duly admitted by the court below, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors of law such as recognizing facts beyond the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or applying the law that

2. Part on fraud

A. As to the assertion that the crime was not specific

Examining the evidence legitimately admitted by the court below in comparison with the record, it is clear that the bill listed in the [Attachment 40] No. 40] of the court of first instance cited by the court below is unrelated to the bill of KRW 106,100,000 (No. 1st page 245 of the evidence record) attached to the protocol of interrogation of the suspect against Non-Indicted 5 by the prosecution against Non-Indicted 5, and it is a bill of KRW 26,000 per face value as stated in the above [Attachment 7] (refer to the evidence record]. On the other hand, it is clear that the bill’s default amount of KRW 36,862,00 as stated in [Attachment 7] No. 14] is 26,862,00, and 25,500,000 won in default amount of the bill of exchange as stated in [Attachment 41] 5,500,000 won.

Therefore, this part of the facts charged by the court below are specified, and the ground of appeal is without merit.

B. As to the assertion of misapprehension of legal principles as to the establishment of joint principal offense in fraud

In relation to accomplices who are jointly processed with two or more persons in a crime, the conspiracy is not required under the law, but is a combination of two or more persons to jointly process a crime and realize a crime. Although there is no process of the whole conspiracy, if the combination of opinions is made in order or implicitly through several persons, the conspiracy is established (see, e.g., Supreme Court Decisions 97Do1706, Sept. 12, 1997; 97Do1706, Sept. 12, 1997; 2008Do667, Jun. 16, 2007). In a case where it is necessary to establish such conspiracy, it is inevitable to prove it by the method of proving indirect facts or circumstantial facts having considerable relevance in the nature of the crime, and what constitutes indirect facts should be reasonably determined by the close observation or analysis power based on normal empirical rule (see, e.g., Supreme Court Decisions 2002Do6176, Jan. 24, 2003>

Examining the reasoning of the judgment below and the evidence legitimately employed by the court below, the defendant accepted the victims who did not actually engage in business activities with the non-indicted 1, opened a current account in the name of the above company, secured the site, and offered to sell proceeds at a certain price after distributing the current bill at a certain price. Accordingly, the defendant established a current account and secured a large quantity of bills by using the connection with the personnel of financial authority, etc., and issued approximately 357 copies of the bill in the name of the above company. The above non-indicted 1 et al. issued the bill to the victims who acquired the bill at a certain price in return for the purchase of the bill, and sold the bill to the consumers by being aware of the fact that the bill was acquired in return for the purchase or sale of the bill, etc., as well as the fact that the bill was delivered to the non-indicted 5, non-indicted 6,7,8, non-indicted 9, non-indicted 10, non-indicted 12, 1314, and 15

Examining the above facts in light of the legal principles as seen earlier, the Defendant and Nonindicted 1 et al., while recognizing the fact that they were to realize the crime of fraud, they can be deemed that there was a public collusion relationship between Nonindicted 5 et al. and the purchaser of the bill subject to the judgment of brea district of brea district of 2000, by systematically issuing and distributing the bill of brea district of 2000, which was scheduled to be defaulted, and thereby distributing it in the city.

In the same purport, the decision of the court below that rejected the defendant's assertion that denies the conspiracy or participation in each fraud, and that recognized the defendant's liability as a joint principal offender of each fraud is just, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles as to the establishment of joint principal offender

3. As to the assertion of unreasonable sentencing

According to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years has been imposed, an appeal on the ground of unfair sentencing is allowed. Thus, in this case where a more minor sentence has been imposed, the argument that the amount of punishment is unreasonable is not a legitimate

4. Conclusion

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

Justices Min Il-young (Presiding Justice)