What is the 'gain' and how many fraud offences arise when several victims are deceived? Decision 2014Do16980 on the gain under Article 3 and offences counted by victim

Question

Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes aggravates punishment where the value of the property or property benefit a person obtains, or causes a third party to obtain, by fraud under Article 347 of the Criminal Act reaches a stated amount, and calls that value the 'gain'. Article 37 of the Criminal Act defines concurrent crimes, and Article 40 governs ideal concurrence, under which one act that constitutes several offences is punished by the penalty prescribed for the most serious of them. When one defendant defrauds several victims, the question is whether the gains from each victim may be added together for the purposes of Article 3, and how many fraud offences are established.

Decision 2014Do16980 addresses that question in a case where Defendant 1 was charged with fraud under the Act for deceiving three co-owners of forest land in Paju into concluding a sale and into having one mortgage set over the whole property in favour of Non-party 4. The court below upheld the first-instance conviction, treating the conduct as one comprehensive single offence and taking as the gain the maximum amount of the secured claim under the mortgage over the whole property.

Material to check

The cited provisions are Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, which sets out the 'gain' as the value of the property or property benefit obtained through the listed offences or caused to be obtained by a third party, with punishment aggravated where the gain is KRW 5 hundred million or more and aggravated further where it is KRW 50 hundred million or more; Article 347 of the Criminal Act on fraud, punishing a person who deceives another into delivering property or who thereby obtains a property benefit, and equally one who thereby causes a third party to obtain property or a property benefit; Article 37, defining concurrent crimes; and Article 40, on ideal concurrence.

The cited decisions are Decision 93Do743 (22 June 1993), holding that separate deceptions of several victims give rise to one fraud per victim and that the 'gain' under Article 3 is the gain of a single offence or the aggregated gain of a comprehensive single offence; Decision 2000Do28 (24 March 2000) and Decision 2000Do1899 (7 July 2000), to the same effect on the gain; Decision 2011Do769 (14 April 2011), holding that offences against several victims may nonetheless be one comprehensive single offence where the protected legal interest is the same, as where the victims form one economic unit; Decision 2010Do9330 (13 January 2011), holding that several fraud offences arising from one act against several victims stand in ideal concurrence; and Decisions 84Do119 (10 April 1984), 96Do384 (22 March 1996) and 2000Do137 (25 April 2000), on the benefit obtained by having a mortgage set over another's property in favour of a third party and on how that benefit is valued.

Possible readings

Read with Decisions 93Do743, 2000Do28 and 2000Do1899, the 'gain' under Article 3 is the gain of a single offence or the aggregated gain where a comprehensive single offence is established. It does not mean the sum of the gains from several offences punishable as concurrent crimes. How the offences are counted therefore determines how the gain is calculated.

Second, offences are counted by victim. Where the defendant separately deceives several victims and takes a property benefit from each, each victim's protected legal interest is independent, so the offences cannot be treated as a comprehensive single offence and one separate fraud is established per victim, even if the intent was single and the method the same. A different result is possible where the victims form one economic unit or some other circumstance shows that the protected legal interest is the same; Decision 2011Do769 recognises that exception. Where one deception obtains a benefit from each of several victims, several fraud offences arise and stand in ideal concurrence under Article 40, as Decision 2010Do9330 held.

Third, where a person deceives another into having a mortgage set over that other's real property in favour of a third party, in order to borrow money from that third party or to receive goods on credit, the property benefit the person obtains is the benefit of being able to use that real property as security for the person's own transaction with the third party, and its value is in principle the maximum amount of the secured claim, within the market value of the property. The decision restates this rule, drawing on Decisions 84Do119, 96Do384 and 2000Do137.

What the decisions held

Decision 2014Do16980 (23 April 2015) set aside the part of the Seoul High Court's judgment of 20 November 2014 (2014No2152) concerning Defendant 1 and remanded that part to the Seoul High Court, and dismissed the prosecutor's appeal. The court below had held that the victims, co-owners of the forest land in Paju who shared a common interest in disposing of their shares simultaneously and as a single lot, had been deceived into having one mortgage set over the whole property in favour of Non-party 4; that the protected legal interest was therefore the same; and that the conduct was one comprehensive single offence of fraud under the Act, with the gain being the maximum amount of the secured claim under the mortgage over the land, about KRW 7 hundred million. It upheld the first-instance conviction on that charge.

The decision held that finding untenable on the record. The victims had acquired their respective one-third shares in the property on different grounds and at different times: registration of the one-third shares was completed on 29 May 1962 on the basis of a sale on 10 May 1962, and Non-party 3 completed registration of the transfer of Non-party 5's one-third share on 24 September 2009 on the basis of inheritance under an agreed division dated 5 July 2002. They met Defendant 1 and others together at a judicial scrivener's office and concluded a sale contract for the property, each of them signing and sealing the sale contract and the mortgage contract separately. Non-party 1 told the prosecution that the property was registered jointly in the three names, so he could not give permission alone, which refuted the excuse offered by co-defendant 2 at the court below; and nothing else showed that the victims formed one economic unit or that their protected legal interest was otherwise the same. On those facts, each victim's protected legal interest was independent, so a separate fraud arose for each victim; and because Defendant 1 and the others obtained the benefits from the victims at the same time and place, their conduct can be assessed as one act under social conception, so the frauds stand in ideal concurrence. The court below therefore misunderstood the law on the gain under Article 3 and on the number of fraud offences.

On the remaining grounds the decision upheld the court below. It rejected the complaint that the judgment named only the court-appointed counsel, not the privately retained counsel who had filed a notice of appearance, together with an application to reopen argument, on 19 November 2014, the day before the pronouncement. The court below had named counsel as at the close of argument, so it did not breach Article 40(3) of the Criminal Procedure Act, and the point did not affect the outcome. It also upheld the findings of guilt on the other charges against Defendant 1 and the acquittal of Defendant 2 for want of proof. Because the court below had punished the remaining offences against Defendant 1 as concurrent crimes, the whole part concerning Defendant 1 was set aside, and the sentencing complaint was left unexamined.

Points left open

The decision leaves the gain per victim to be worked out on remand. It states that the value of a mortgage set in favour of a third party is in principle the maximum amount of the secured claim within the market value of the property, but it does not decide what each victim's share of that gain is, nor what each victim's gain amounts to once the frauds are counted separately rather than as one comprehensive offence.

The decision also leaves the boundary of the exception open. It accepted from Decision 2011Do769 that offences against several victims may be treated as one where the victims form one economic unit or a similar circumstance shows one protected legal interest, and held only that being co-owners with a common interest who were induced to have a mortgage set over the whole property is not, by itself, enough. What other circumstances would suffice, and when conduct spread over different times and places would fail to be assessed as one act under social conception, remain unsettled.

When to reconsider

This brief would change if the judgment on remand fixes the gain per victim or the sentence for Defendant 1, if a later decision states what circumstances beyond forming one economic unit make the interests of several victims one, or if Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes is amended in its amounts or its definition of the gain.

Statutes referred to

• 특정경제범죄 가중처벌 등에 관한 법률 제3조
• 형법 제37조, 제347조, 제40조

Decisions referred to

• 대법원 2015. 4. 23. 선고 2014도16980 판결 · Decision ledger
• 대법원 1993. 6. 22. 선고 93도743 판결
• 대법원 2000. 7. 7. 선고 2000도1899 판결 · Decision ledger
• 대법원 2000. 3. 24. 선고 2000도28 판결 · Decision ledger
• 대법원 2011. 4. 14. 선고 2011도769 판결 · Decision ledger
• 대법원 2011. 1. 13. 선고 2010도9330 판결

Verification status

All texts used for this brief were read at the National Law Information Center on 24 October 2026. For the decision, the published issues, the cited provisions and precedents, and the full reasons were read; the current text of the cited articles and the published issues and summaries of the cited decisions were also read.