Open Decision Ledger · Economic crime
Criteria for calculating the amount of gain under Article 3, paragraph (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes in a joint offense of fraud, and comparison of the severity of punishment before and after the amendment
Translated from the Korean original. Read the Korean
Supreme Court, Oct. 8, 1991, 91Do1911 (judgment)
Case name: 특정경제범죄가중처벌등에관한법률위반,협박,사기
Official text on the National Law Information Center
Question
Where the offense of fraud is committed jointly, is the amount of gain that determines the applicability of Article 3, paragraph (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes fixed on the basis of the share received by each accomplice, or on the basis of the aggregate of the gains received by all accomplices?
Holding
Because an accomplice cannot be exempted from criminal liability in respect of the gain received by another accomplice, the amount of gain is fixed on the basis of the aggregate of the gains received by all accomplices to the offense. Where the amount of gain was 500 million won, the Supreme Court found no difference in the severity of punishment before and after the amendment, and accordingly approved the court below's application of the pre-amendment statute, which was the law in force at the time of the act.
Summary of the holding, verbatim
특정경제범죄가중처벌등에관한법률 제3조 제1항의 적용 여부를 가리는 이득액을 정함에 있어서는 그 범행의 모든 공범자가 받은 이득액을 합한 금액을 기준으로 하여야 한다.
Unofficial English translation
In determining the amount of gain on which to base the applicability of Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, the amount must be based on the sum of the gains received by all accomplices to the offense.
Disposition
Dismissed Stated in the decision
상고를 각 기각한다.
Unofficial English translation
The appeals are dismissed.
Form of the test
Elements stated Stated in the decision
그 범행의 모든 공범자가 받은 이득액을 합한 금액을 기준으로 하여야 한다.
Unofficial English translation
the amount must be based on the sum of the gains received by all accomplices to the offense.
Factors
- 공범자는 자기가 받은 이득액뿐만 아니라 다른 공범자가 받은 이득액에 대하여도 그 죄책을 면할 수 없는 것이므로
- 그 범행의 모든 공범자가 받은 이득액을 합한 금액
- 개정 전후를 통하여 형의 경중은 없으므로
- 행위시법인 개정 전 법률을 적용하여야 한다
Unofficial English translation
• Since an accomplice cannot be absolved of criminal liability not only with respect to the gain received by himself or herself but also with respect to the gain received by other accomplices,
• the sum of the gains received by all accomplices to the offense
• since there is no difference in the severity of the punishment before and after the amendment,
• the law prior to the amendment, which is the law in force at the time of the act, must be applied
Relation to precedent
Cannot be determined Not in the decision
Decisions referred to
None listed
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Where the accomplice relationship extends to only part of the offense, is the gain acquired by another accomplice beyond the scope of the conspiracy also included in the aggregation?
If the bracket of the amount of gain or the statutory penalty under Article 3, paragraph (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes is amended, this reading will be re-examined.
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Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The court below (Seoul High Court Judgment 91No1277 decided June 27, 1991) regarded the amount of gain of the first offense of fraud of Defendant 2, as stated in the holding, as 500 million won, being the sum of the 300 million won received by Defendant 2 and the 200 million won received by another accomplice, and applied the relevant provision of the pre-amendment statute, which was the law in force at the time of the act, on the view that there is no difference in the severity of punishment before and after the amendment.
Supreme Court standard: The Supreme Court, taking the view that it is correct to aggregate the gains of all accomplices, affirmed the court below's calculation of the amount of gain and its application of the pre-amendment statute as they stood, and rejected both the grounds for final appeal alleging a violation of the rules of evidence and those asserting the contrary view, thereby dismissing the final appeal.
Distinguishing conditions
- Cases in which no relationship of joint principal offenders is recognized between the defendant and the other recipient of the gain, and the involvement takes the form of aiding or the like
- Cases in which the gain acquired by another accomplice derives from a separate offense falling outside the scope of the conspiracy
- Cases in which the statutory penalty for the relevant bracket of the amount of gain differs before and after the amendment, so that the application of the new law under Article 1, paragraph (2) of the Criminal Act is at issue
Record verification notes
Before asserting the aggregation of the amounts of gain, it is first necessary to check whether each gain derives from a single offense arising from the same conspiracy, and whether the severity of the punishment for the relevant bracket of the amount of gain has changed between the law at the time of the act and the law at the time of trial.
From the official text
Points at issue
가. 특정경제범죄가중처벌등에관한법률 제3조 제1항의 적용 여부를 가리는 이득액을 정함에 있어서는 그 범행의 모든 공범자가 받은 이득액을 합한 금액을 기준으로 하여야 하는지 여부(적극) 나. 특정경제범죄가중처벌등에관한법률 제3조 제1항의 개정 전후를 통하여 형의 경중은 없으므로 행위시법인 개정 전 법률을 적용하여야 한다고 한 사례
Unofficial English translation
a. Whether, in determining the amount of gain on which to base the applicability of Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, the amount must be based on the sum of the gains received by all accomplices to the offense (affirmative) / b. A case in which it was held that, since there is no difference in the severity of the punishment before and after the amendment to Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, the law prior to the amendment, which is the law in force at the time of the act, must be applied
Summary of the holding
가. 공동으로 사기죄를 범한 경우에 공범자는 자기가 받은 이득액뿐만 아니라 다른 공범자가 받은 이득액에 대하여도 그 죄책을 면할 수 없는 것이므로, 특정경제범죄가중처벌등에관한법률 제3조 제1항의 적용 여부를 가리는 이득액을 정함에 있어서는 그 범행의 모든 공범자가 받은 이득액을 합한 금액을 기준으로 하여야 한다. 나. 특정경제범죄가중처벌등에관한법률 제3조 제1항이 1990.12.31. 개정되었다 하더라도 범행으로 취득한 이득이 5억원인 경우는 개정 전후를 통하여 형의 경중은 없으므로, 행위시법인 개정 전 법률을 적용하여야 한다.
Order
상고를 각 기각한다.
Unofficial English translation
The appeals are dismissed.
Provisions referred to
가.나. 특정경제범죄가중처벌등에관한법률 제3조 제1항 가. 형법 제30조 나. 구 특정경제범죄가중처벌등에관한법률(1990.12.31. 법률 제4291호로 개정되기 전의 것) 제3조 제1항, 형법 제1조 제1항, 2항
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