Open Decision Ledger · Economic crime
Judgment treating the amount of gain from obtaining securities by fraud as the face value, and judgment recognizing a different victim without an amendment of the indictment
Translated from the Korean original. Read the Korean
Supreme Court, Oct. 23, 1992, 92Do1983 (judgment)
Case name: 특정범죄가중처벌등에관한법률위반(사기),사기,업무상횡령,업무상배임
Official text on the National Law Information Center
Question
May the amount of gain from fraudulently obtaining securities be treated as the face value so that the Act on the Aggravated Punishment, etc. of Specific Economic Crimes may be applied, and may the court, without following the procedure for amendment of the indictment, recognize a victim different from the one stated in the indictment and render a guilty judgment?
Holding
The Supreme Court affirmed the court below, which treated the face values of the fraudulently obtained checks and promissory note as the amount of gain and applied Article 3, paragraph (1), subparagraph 1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes. It also held that, where the identity of the facts charged in the indictment is not impaired and there is no substantial disadvantage to the exercise of the right of defense, recognizing a different victim without an amendment of the indictment does not violate the principle prohibiting reformatio in peius.
Summary of the holding, verbatim
공소사실의 동일성을 해하지 않고 피고인의 방어권 행사에 실질적인 불이익을 주지 않는 한, 공소장변경의 절차 없이 공소장에서 적시된 피해자와 다른 피해자를 인정하여 피고인에 대한 범죄사실을 유죄로 인정하였다 하여도 불고불리의 원칙에 위배한 위법이 있다고 할 수 없다.
Unofficial English translation
Provided that the identity of the facts alleged in the indictment is not impaired and no substantial disadvantage is caused to the exercise of the defendant's right of defense, even though the court, without the procedure of amending the indictment, recognizes a victim other than the one specified in the indictment and finds the criminal facts against the defendant guilty, it cannot be regarded as an illegality violating the principle that no person may be found guilty without an accusation.
Disposition
Dismissed Stated in the decision
상고를 기각한다.
Unofficial English translation
The appeal is dismissed.
Form of the test
Existing test applied Stated in the decision
기본적 사실에 있어서 차이가 없으므로 불고불리의 원칙에 위배되지 않는다고 한 사례
Unofficial English translation
A case in which it was held that, as there was no difference in the basic facts, the principle that no person may be found guilty without an accusation was not violated
Factors
- 유가증권에 대한 사기범행의 이득액을 액면가액이라고 보아
- 공소사실의 동일성을 해하지 않고
- 피고인의 방어권 행사에 실질적인 불이익을 주지 않는 한
- 기본적 사실에 있어서 차이가 없으므로
Unofficial English translation
• Deeming the amount of gain from a fraud offense involving negotiable securities to be the face value,
• without impairing the identity of the facts alleged in the indictment,
• provided that no substantial disadvantage is caused to the exercise of the defendant's right of defense,
• as there is no difference in the basic facts,
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 1978.2.28. 선고 77도3522 판결
Unofficial English translation
Supreme Court Decision 77Do3522 pronounced on February 28, 1978
Decisions referred to
나.다. 대법원 1978.2.28. 선고 77도3522 판결, 1987.12.22. 선고 87도2168 판결(공1988,381) / 나. 대법원 1990.3.13. 선고 90도94 판결(공1990,921), 1990.6.8. 선고 89도1417 판결(공1990,1494), 1992.9.22. 선고 92도1751 판결(공1992,3043)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Even where the securities obtained by fraud are unlikely to be honored or their actual value falls far short of the face value, may the amount of gain always be calculated on the basis of the face value?
If subsequent decisions present a different standard concerning the criteria for calculating the amount of gain under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes or concerning the need for an amendment of the indictment, this reading will be checked again.
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Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The court below found that the defendant conspired with others, deceived the victim, received and thereby obtained by fraud two checks and one promissory note amounting to approximately 25 billion won, and, treating the amount of gain as the face value, applied Article 3, paragraph (1), subparagraph 1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes. Although the facts charged in the indictment for the criminal facts of II-4 stated that the victim, Kim Hak-jun, was defrauded of a total of 98,500,000 won on nine occasions, the judgment of the first instance, which the court below upheld, recognized Kim Hak-jun as the victim on four of those occasions and Yu Bok-sun as the victim on the other five.
Supreme Court standard: The Supreme Court found no violation of the rules of evidence and no misapprehension of legal principles in the determination of the amount of gain. As to the matter of the victim, it held that, since only the identity of the victim differed, while the object obtained, the time and method of the deception, and the amount were all identical, there was no difference in the basic facts, and therefore a guilty finding without an amendment of the indictment did not violate the principle prohibiting reformatio in peius. The Supreme Court accordingly accepted the determination of the court below as it was and dismissed the final appeal.
Distinguishing conditions
- Where not only the victim but also basic facts, such as the object obtained, the time or method of the deception, and the amount, differ from the facts charged in the indictment
- Where, by recognizing a different victim, the defendant has in substance had no opportunity to mount a defense regarding his or her relationship with that victim
- Where the object obtained is not a security with a fixed face value, or where circumstances requiring that the amount of gain be valued differently from the face value appear in the record
Record verification notes
Before asserting the same conclusion, one must first check whether the facts other than the victim are in fact identical between the facts charged in the indictment and the facts found, and whether the defendant had a sufficient opportunity to mount a defense regarding the new victim.
From the official text
Points at issue
가. 유가증권에 대한 사기범행의 이득액을 액면가액이라고 보아 특정경제범죄가중처벌등에관한법률 제3조 제1항 제1호에 해당한다고 한 사례 나. 공소사실의 동일성을 해하지 않고 피고인의 방어권 행사에 실질적인 불이익을 주지 않는 한, 법원은 공소장변경 절차 없이 공소장기재와 다른 피해자를 인정하여 유죄로 인정할 수 있는지 여부(적극) 다. 공소사실의 사기피해자와 인정된 범죄사실의 사기피해자가 일부 다르지만 기본적 사실에 있어서 차이가 없으므로 불고불리의 원칙에 위배되지 않는다고 한 사례
Unofficial English translation
A. A case in which the amount of gain from a fraud offense involving negotiable securities was deemed to be the face value, and the offense was found to fall under Article 3, paragraph (1), subparagraph 1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes. B. Whether, provided that the identity of the facts alleged in the indictment is not impaired and no substantial disadvantage is caused to the exercise of the defendant's right of defense, the court may, without the procedure of amending the indictment, recognize a victim other than the one stated in the indictment and find the defendant guilty (affirmative). C. A case in which, although the victim of the fraud in the facts alleged in the indictment and the victim of the fraud in the criminal facts found were partly different, it was held that there was no difference in the basic facts and therefore no violation of the principle that no person may be found guilty without an accusation
Summary of the holding
가. 유가증권에 대한 사기범행의 이득액을 액면가액이라고 보아 특정경제범죄가중처벌등에관한법률 제3조 제1항 제1호에 해당한다고 한 사례. 나. 공소사실의 동일성을 해하지 않고 피고인의 방어권 행사에 실질적인 불이익을 주지 않는 한, 공소장변경의 절차 없이 공소장에서 적시된 피해자와 다른 피해자를 인정하여 피고인에 대한 범죄사실을 유죄로 인정하였다 하여도 불고불리의 원칙에 위배한 위법이 있다고 할 수 없다. 다. 공소사실의 사기피해자와 인정된 범죄사실의 사기피해자가 일부 다르지만 기본적 사실에 있어서 차이가 없으므로 불고불리의 원칙에 위배되지 않는다고 한 사례.
Order
상고를 기각한다. 상고 후의 구금일수 중 100일을 제1심판시 제1, 제2의 마, 바, 사의 죄에 대한 징역형에 산입한다.
Unofficial English translation
The appeal is dismissed. 100 days of the detention after the final appeal shall be counted toward the imprisonment imposed for the crimes of Ma, Ba, and Sa of Items 1 and 2 as adjudicated by the court of first instance.
Provisions referred to
가. 특정경제범죄가중처벌등에관한법률 제3조 제1항 제1호 나.다. 형법 제347조, 형사소송법 제298조
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