What Is Included in, and What Is Excluded from, the Amount of Gain in Fraud and Extortion: Valuation and the Unit of Aggregation under Article 3 of the Specific Economic Crimes Act

Question

When fraud and extortion cases grow in scale, the applicable provision shifts from the Criminal Act to the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the "Specific Economic Crimes Act"). Article 3(1) of that Act imposes aggravated punishment on a person who commits a crime under Article 347 (Fraud), Article 347-2 (Fraud by Use of Computers, etc.), Article 350 (Extortion), Article 350-2 (Special Extortion), Article 351 (Habitual Offenders of the Relevant Crimes), Article 355 (Embezzlement and Breach of Trust) or Article 356 (Occupational Embezzlement and Breach of Trust) of the Criminal Act, where the value of the property or pecuniary advantage which that person has acquired, or has caused a third party to acquire, through the criminal act (that is, the amount of gain) is KRW 500 million or more. Where the amount of gain is KRW 5 billion or more, the penalty is life imprisonment or imprisonment with labour for not less than five years; where it is KRW 500 million or more but less than KRW 5 billion, the penalty is imprisonment with labour for a limited term of not less than three years. Paragraph (2) permits a concurrent fine of up to an amount equivalent to the amount of gain.

The amount of gain is both part of the constituent elements of the offence and the factor that fixes the sentencing band. Because the difference between KRW 490 million and KRW 500 million, or between KRW 4.9 billion and KRW 5 billion, translates into a difference in the statutory penalty, what is included in and what is excluded from the amount of gain determines the outcome of the case. The current statutory penalty under Article 347(1) of the Criminal Act, marked as amended on 23 December 2025, is imprisonment with labour for not more than 20 years or a fine not exceeding KRW 50 million; for acts committed before that amendment, the statutory penalty in force at the time of the act must therefore be confirmed separately.

This brief examines four questions separately. First, where a person receives money by deception while paying part of the consideration, whether that consideration is deducted. Second, whether security subsequently obtained to secure an extorted claim is added to the amount of gain. Third, as at what time the amount of gain is calculated, and whether subsequent changes in circumstances are taken into account. Fourth, where there are multiple victims, whether the amounts of damage are aggregated and treated as a single amount of gain.

This brief sets out the strands of the valuation criteria only to the extent stated in the issues and the summaries of holdings of four Supreme Court judgments. It does not calculate the amount of gain in, or determine the applicable provision for, any particular case. The amount of gain and the calculation of loss in breach of trust are addressed in a separate brief, so this brief is confined to fraud and extortion.

Material to check

First, the current text of Article 3 of the Specific Economic Crimes Act can be confirmed. The current provision was wholly amended on 10 February 2012 and subsequently amended on 6 January 2016 and 19 December 2017 (in force 20 March 2018, Act No. 15256). The reference provision of Judgment 2023Do13514 is Article 3(1) of the former Specific Economic Crimes Act before its amendment on 10 February 2012, and the 1990 and 1995 judgments applied the statute of an even earlier period; each judgment should therefore be read against the wording and monetary thresholds in force at the time of the act.

Second, the structure of Articles 347 and 350 of the Criminal Act. Fraud covers cases where a person, by deceiving another, receives delivery of property or obtains a pecuniary advantage; extortion covers cases where a person, by extorting another, receives delivery of property or obtains a pecuniary advantage. Paragraph (2) of each Article punishes in the same way a person who causes a third party to receive delivery of property or to obtain a pecuniary advantage. Since the amount of gain under the Specific Economic Crimes Act is likewise the value acquired, or caused to be acquired by a third party, it must first be determined whether the object is property or a pecuniary advantage, and who acquired it.

Third, the provisions on the number of offences. Article 37 of the Criminal Act defines, among other things, several crimes for which no judgment has become final as concurrent crimes. Judgment 95Do825 held that the amount of gain under Article 3(1) of the Specific Economic Crimes Act is the aggregate amount of gain where a simple single offence or a single comprehensive offence is established; the scope of aggregation therefore differs depending on whether multiple acts constitute a single offence or concurrent crimes.

Fourth, Article 1 of the Criminal Act. The constitution and punishment of a crime are governed by the law in force at the time of the act (paragraph (1)), and where, after a crime is committed, the law is changed so that the act no longer constitutes a crime or the punishment becomes lighter than under the former law, the new law applies (paragraph (2)). Because the statutory penalty under Article 347 of the Criminal Act and the wording of Article 3 of the Specific Economic Crimes Act changed at different times, the time of the act and the time of each amendment need to be placed in a single table and compared.

Fifth, materials on the transactions and their value. The following can be arranged in chronological order: the amount and timing of money delivered by the victim, the details of consideration paid by the defendant, the documents creating security and the content of the secured claims, and materials showing the value at the time of completion of the offence (agreed price, appraisal, market price). Whether there are materials from which the value of the pecuniary advantage can be specifically calculated is particularly important.

Sixth, materials on the victims' side. It is possible to confirm, for each victim, the name in which the account is held, the remittance route, the process by which the assets were formed and maintained, and by whom and how the decision to deliver was made. Judgment 2023Do13514 took into account, in determining the identity of the legally protected interest infringed, such matters as the commonality of the deceptive acts, the circumstances leading to the deceptive acts, the commonality of the decision-making on the delivery of assets, the process by which the assets were formed and maintained, the purpose and method of the delivery of assets, and the circumstances after the deceptive acts.

Possible readings

The first axis lies between the entire amount delivered and the difference. One reading holds that receiving delivery of money by deception constitutes an infringement of property in itself, so that even where part of the consideration has been paid, the amount defrauded is the entire sum delivered. Another reading holds that the value serving as the benchmark for aggravated punishment should correspond to the victim's substantive loss or the defendant's substantive gain. Judgment 2023Do18971 applied the former reading, that the amount defrauded is the entire sum delivered, to the Specific Economic Crimes Act as well, while at the same time adding the requirement that the value be calculated strictly and carefully.

The second axis lies between nominal value and substantive value. Judgment 90Do1815 held that the amount of gain is the total value of the property or pecuniary advantage that was the object of unlawful appropriation, and that whether the gain will ultimately be realised, or whether any conditions or burdens are attached to it, has no bearing. Judgment 95Do825 held that the amount of gain means the substantive amount of gain, and did not separately add a right to collateral security (Geun-mortgage) obtained to secure and strengthen an extorted promissory-note claim. The two judgments can be read together in that neither asks whether the gain has been realised and neither counts the same benefit twice, but tension remains as to how far the word "substantive" should be extended.

The third axis is the time of valuation. Judgment 90Do1815 held that the amount of gain obtained by extortion is to be calculated as at the time of completion of the offence, and that subsequent changes in circumstances are not taken into account even if they were foreseeable at the time of the extortion. On this reading, a decline or rise in value or a partial return after completion becomes a matter for a different stage, not for the amount of gain. A reading that would take subsequent circumstances into account, relying on the wording of Judgment 95Do825 emphasising the substantive amount of gain, is conceivable, but the summary of holdings in Judgment 90Do1815 did not adopt that direction.

The fourth axis is the unit of aggregation. The principal reading is that, where there are multiple victims, a separate crime of fraud is established for each victim even if the criminal intent is single and the method of the offence is the same, so the amount of gain must be considered separately for each victim. Judgment 2023Do13514 confirmed this principle while holding that, where there are circumstances in which the legally protected interests infringed can be regarded as identical, the offences may constitute a single comprehensive offence; in a case where a married couple remitted money, raised by disposing of their joint property, from accounts held in their respective names, it treated the total of KRW 575 million as a single offence. Here the reading that divides the legally protected interests solely by the civil-law attribution of rights parts ways with the reading that considers all the circumstances of the case together, including the commonality of the deception and of the decision-making.

The fifth axis is the treatment of cases where valuation is impossible. Judgment 2023Do18971 held that where the value of a pecuniary advantage cannot be specifically calculated, Article 3 of the Specific Economic Crimes Act cannot be applied. On this reading, what decides the outcome is not the mere existence of a gain but materials specifically proving its amount; the summary of holdings cited the principle of proportionality between crime and punishment and the principle of culpability as the basis for the requirement that the value be calculated strictly and carefully.

The four judgments contain both a direction that takes the amount of gain broadly (the entire amount delivered, irrespective of realisation) and a direction that takes it narrowly (substantive gain, strict calculation, and exclusion of application where valuation is impossible). Which direction fits a particular case is left for the reader to judge after comparing the transaction materials with the circumstances of each victim. This brief does not determine the amount of gain in any particular case.

What the decisions held

Supreme Court Judgment 90Do1815 delivered 16 October 1990 held that the amount of gain obtained by extortion is based on the value of the property or pecuniary advantage agreed to be acquired through the extortion, that is, the object of unlawful appropriation, and that it "is to be calculated as at the time of completion of the offence, and subsequent changes in circumstances are not to be taken into account", even where the possibility of such changes was foreseeable at the time of the extortion. It further held that the amount of gain under Article 3(1) of the Specific Economic Crimes Act is the total value of the property or pecuniary advantage that was the object of unlawful appropriation and that was acquired, or caused to be acquired by a third party, through the enumerated criminal acts, and that "whether such gain will ultimately be realised, or whether any conditions or burdens are attached to it, has no bearing." The operative part dismissed the appeal.

Supreme Court Judgment 95Do825 delivered 30 June 1995 held that the amount of gain under Article 3(1) of the Specific Economic Crimes Act "means the aggregate amount of gain where a simple single offence or a single comprehensive offence is established", but that, in light of the legislative purpose of that provision, "the amount of gain refers to the substantive amount of gain." In a case where the defendant extorted a promissory note with a face value of KRW 600 million issued and notarised by the victim, applied for compulsory auction of the victim's real estate using the notarial deed as the title of debt, and then obtained a right to collateral security (Geun-mortgage) with a maximum secured amount of KRW 300 million on condition of withdrawing the auction, the Court held that the right to collateral security "merely secures and strengthens the existing promissory-note claim of KRW 600 million", so that the substantive amount of gain could not exceed KRW 600 million. The operative part dismissed all the appeals.

Supreme Court Judgment 2023Do13514 delivered 21 December 2023 held that where a person defrauds multiple victims of property by deceiving each of them, a separate crime of fraud is established for each victim even if the criminal intent is single and the method of the offence is the same, and stated: "However, where there are circumstances in which the legally protected interests of the victims can be regarded as identical, the crimes of fraud against them may be regarded comprehensively as a single offence." In a case where the defendant deceived the victims, a married couple, by promising to buy land, subdivide it and sell it in lots and then pay them the principal and profits, and received remittances of KRW 100 million and KRW 475 million from accounts held in each victim's name out of money the victims had raised by selling a building that was their joint property, the Court held that, even though the rights to the deposits in each account belonged separately to each victim, "the identity of the legally protected interest infringed, which is one of the criteria for determining a single comprehensive offence, must be determined by considering, in addition to the civil-law attribution of rights, the other circumstances appearing in the case", and treated the two crimes of fraud as a single comprehensive offence. The operative part dismissed the appeal.

Supreme Court Judgment 2023Do18971 delivered 25 April 2024 held that, in a crime of fraud consisting in obtaining money, the delivery of money induced by deception in itself constitutes an infringement of the victim's property, so that even where part of the consideration has been paid, the amount defrauded is the entire sum delivered, and that the same applies to an offence under the Specific Economic Crimes Act. It went on to state that, because in an offence of fraud under the Specific Economic Crimes Act a value of KRW 500 million or more, or KRW 5 billion or more, is part of the constituent elements of the offence and the punishment is aggravated accordingly, "care must be taken, by calculating the value of the property or pecuniary advantage obtained by fraud strictly and carefully, not to undermine the principle of proportionality between crime and punishment, which requires an appropriate balance between crime and punishment, or the principle of culpability, which requires that punishment be based on culpability and proportionate to it", and held that "where the value of the advantage cannot be specifically calculated, Article 3 of the Specific Economic Crimes Act, which imposes aggravated punishment based on the value of the pecuniary advantage, cannot be applied." The operative part read: The judgment below is reversed, and the case is remanded to the Suwon High Court.

Practical checklist

This section is not advice but a set of questions that can be asked when reviewing the record. First, the object of acquisition can be examined. It is possible to set out, item by item, whether what the defendant acquired was property or a pecuniary advantage, whether the defendant or a third party acquired it, and, if it was a pecuniary advantage, whether there are supporting materials from which its value can be specifically calculated.

Second, deduction and double counting can be examined. If the defendant paid any consideration, it is possible to compare, in the order of the transactions, how that consideration relates to the money delivered, and whether security or additional benefits received later constitute a new gain or merely a means of securing an existing gain. It may be borne in mind that the holding denying deduction of consideration and the holding denying double counting answer different questions.

Third, timing can be examined. A table can be prepared showing when each act was completed, which materials show the value at that time, and whether there was any change in value or any return after completion. If the dates of amendment of Article 347 of the Criminal Act and Article 3 of the Specific Economic Crimes Act are entered in the same table, whether Article 1(2) of the Criminal Act applies can also be checked at the same time.

Fourth, the unit of aggregation can be examined. Where there are multiple victims, it is possible to set out, for each victim, the amount delivered, the name in which the account is held, the process by which the assets were formed, and who made the decision to deliver and how, and to examine whether there are circumstances in which the legally protected interests infringed can be regarded as identical. It is also possible to calculate whether aggregation changes whether the KRW 500 million or KRW 5 billion threshold is exceeded. This is solely a list of materials to check; the conclusion is for the reader to draw.

Glossary

"Amount of gain" is the term used in Article 3(1) of the Specific Economic Crimes Act and refers to the value of the property or pecuniary advantage acquired, or caused to be acquired by a third party, through the enumerated criminal acts. The statutory penalty differs according to whether it is KRW 500 million or more, or KRW 5 billion or more.

"Amount defrauded" is an expression used in judgments to refer to the value of property delivered, or of a pecuniary advantage obtained, through fraud. Judgment 2023Do18971 held that, in fraud consisting in obtaining money, the amount defrauded is the entire sum delivered even where part of the consideration has been paid.

"Single comprehensive offence" refers to a case in which several acts together comprehensively constitute one crime, and is distinguished from concurrent crimes. Judgment 95Do825 treated the amount of gain as the aggregate amount of gain where a simple single offence or a single comprehensive offence is established.

"Time of completion" refers to the point at which a crime is completed. Judgment 90Do1815 held that the amount of gain in extortion is calculated as at the time of completion and that subsequent changes in circumstances are not taken into account.

Sources and limitations

The statutory sources are the current texts on the Korea Law Information Center. Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (in force 20 March 2018, Act No. 15256) and Articles 1, 37, 347, 347-2, 350, 350-2, 351, 355 and 356 of the Criminal Act (in force 2 October 2026, Act No. 22007) were checked on 16 October 2026.

The sources for the judgments are the issues, the summaries of holdings and the operative parts of Supreme Court Judgments 90Do1815, 95Do825, 2023Do13514 and 2023Do18971 published on the Korea Law Information Center. The wording and statutory penalties of the former Specific Economic Crimes Act and of Article 347 of the Criminal Act before amendment, as applied in those judgments, were not checked against the original texts in this brief.

The calculation of the amount of gain in breach of trust and embezzlement falls outside the scope of this brief. The calculation of the amount of gain in fraud by use of computers, etc., special extortion and habitual offences is likewise not separately addressed, and the specific transactions in the case underlying Judgment 2023Do18971 are not described because they do not appear in the summary of holdings.

Points left open

Judgment 2023Do18971 treated the amount defrauded as the entire sum delivered while also requiring that the value be calculated strictly and carefully. When the two holdings apply together, at which stage of valuation the payment of consideration is taken into account is a point requiring further confirmation from the full text of the judgment and subsequent judgments.

It also remains open to what types of case, beyond the strengthening of security, the concept of the substantive amount of gain in Judgment 95Do825 extends. The criterion for distinguishing whether several benefits received from the same victim at different times are separate gains or means of securing a single gain may be contested case by case.

The factors for determining the identity of the legally protected interest infringed, as set out in Judgment 2023Do13514, were presented in a case involving the joint property of a married couple. How the same factors will apply in other relationships, such as a family company and its representative, or a group of co-investors, remains an open question.

Following the change in the statutory penalty under Article 347 of the Criminal Act by the amendment of 23 December 2025, how the relationship between the aggravated bands under Article 3 of the Specific Economic Crimes Act and the statutory penalty under the Criminal Act will be settled is also a matter to be confirmed in future.

When to reconsider

This brief will be rewritten if Article 3 of the Specific Economic Crimes Act or Article 347 or 350 of the Criminal Act is amended, or if the Supreme Court issues a new ruling on the criteria for calculating, or the unit of aggregation of, the amount of gain in fraud or extortion.

At that time, the entire amount delivered and the substantive amount of gain, together with the time of valuation and the unit of aggregation, will be set out again to the extent stated in the issues and summaries of holdings in the original texts of the judgments.

Statutes referred to

• 특정경제범죄 가중처벌 등에 관한 법률 제3조
• 형법 제1조, 제37조, 제347조, 제347조의2, 제350조, 제350조의2, 제351조, 제355조, 제356조

Decisions referred to

• 대법원 1990. 10. 16. 선고 90도1815 판결 · Decision ledger
• 대법원 1995. 6. 30. 선고 95도825 판결 · Decision ledger
• 대법원 2023. 12. 21. 선고 2023도13514 판결 · Decision ledger
• 대법원 2024. 4. 25. 선고 2023도18971 판결 · Decision ledger

Verification status

The cited provisions (Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes; Articles 1, 37, 347, 347-2, 350, 350-2, 351, 355 and 356 of the Criminal Act) were checked against the current texts on the Korea Law Information Center on 16 October 2026. The cited judgments (Supreme Court 90Do1815, 95Do825, 2023Do13514 and 2023Do18971) were checked against the issues, the summaries of holdings and the operative parts in the original texts of the judgments on the Korea Law Information Center.