Open Decision Ledger · Economic crime
Calculation of the Amount of Gain under the Act on the Aggravated Punishment, etc. of Specific Economic Crimes for Fraud Conspired in Sequence, and Joint Principal Offense of an Illegal Check by a Person Other Than the Named Issuer
Translated from the Korean original. Read the Korean
Supreme Court, July 13, 1993, 93Do1341 (judgment)
Case name: 특정경제범죄가중처벌등에관한법률위반(사기)·부정수표단속법위반
Official text on the National Law Information Center
Question
Where the defendant, having sequentially conspired with other accomplices, distributed checks and bills of exchange and thereby obtained property by fraud, is the amount of gain under the Act on the Aggravated Punishment, etc. of Specific Economic Crimes calculated solely on the basis of the profit the defendant actually took?
Holding
No. The amount of gain is not calculated merely by totaling the profit actually taken by one of the accomplices; it is calculated by totaling the value of the property or pecuniary benefit obtained by fraud from the victim by the final joint principal offender in the sequential conspiracy. Even where one is neither the person in whose name the check was issued nor the direct issuer, one may become a joint principal offender of the offense under Article 2, paragraph (2) of the Illegal Check Control Act by conspiracy.
Summary of the holding, verbatim
공범 중 1인이 실제로 취한 이익만을 합산하여 산정할 것이 아니라 순차 공모의 최종공범이 피해자로부터 편취한 재물 또는 재산상 이익의 가액을 합산하여 산정하여야 한다.
Unofficial English translation
the amount must not be calculated by aggregating only the profits actually taken by one of the accomplices, but must be calculated by aggregating the value of the property or pecuniary benefit obtained by fraud from the victim by the last accomplice in the successive conspiracy.
Disposition
Dismissed Stated in the decision
상고를 기각한다.
Unofficial English translation
The appeal is dismissed.
Form of the test
Elements stated Stated in the decision
순차 공모의 최종공범이 피해자로부터 편취한 재물 또는 재산상 이익의 가액을 합산하여 산정하여야 한다
Unofficial English translation
the amount must be calculated by aggregating the value of the property or pecuniary benefit obtained by fraud from the victim by the last accomplice in the successive conspiracy
Factors
- 공범 중 1인이 실제로 취한 이익만을 합산하여 산정할 것이 아니라
- 순차 공모의 최종공범이 피해자로부터 편취한 재물 또는 재산상 이익의 가액을 합산하여
- 발행명의인이나 직접 발행자가 아니라 하더라도
Unofficial English translation
• the amount must not be calculated by aggregating only the profits actually taken by one of the accomplices,
• by aggregating the value of the property or pecuniary benefit obtained by fraud from the victim by the last accomplice in the successive conspiracy,
• even though the person is neither the issuer of record nor the direct issuer
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 1991.10.8. 선고 91도1911 판결
Unofficial English translation
Supreme Court Decision 91Do1911 decided October 8, 1991
Decisions referred to
대법원 1991.10.8. 선고 91도1911 판결(공1991,2757)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
What are the limits of the scope of conspiracy as to whether the entire value obtained by the final joint principal offender may be attributed, as the amount of gain, to an accomplice who participated in only some stages of the sequential conspiracy?
If there is a subsequent judgment on the calculation of the amount of gain under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, or an amendment to Article 2 of the Illegal Check Control Act, 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 admitted as Evidence the record of interrogation of the suspect prepared by the prosecutor, and found that the defendant, having sequentially conspired with other accomplices, habitually distributed demand checks, bills of exchange, etc. and caused them not to be settled, thereby obtaining pecuniary benefit by fraud. Holding that the amount of gain exceeded 1.2 billion won, it applied Article 3, paragraph (1), subparagraph 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, and applied Article 2, paragraph (2) of the Illegal Check Control Act on the ground that the defendant had conspired to issue demand checks and caused them not to be paid.
Supreme Court standard: The Supreme Court, holding that the court below's measures of calculating the amount of gain by totaling the value obtained by fraud by the final joint principal offender, and of recognizing the defendant as a joint principal offender of a violation of the Illegal Check Control Act notwithstanding that the defendant was not the person in whose name the check was issued, were just, dismissed the final appeal, and credited 35 days of the period of detention after the final appeal against the principal sentence.
Distinguishing conditions
- A case where the defendant does not fall within the scope of the sequential conspiracy and conspiracy with respect to the act of obtaining property by fraud by the final joint principal offender is not recognized
- A case where the value of the property or pecuniary benefit obtained by fraud cannot be specifically calculated
- A case where, absent any conspiracy regarding the issuance of the check, the defendant merely delivered the check or was involved only in its distribution
Record verification notes
Before asserting the same conclusion, verify in the Records how far the sequential conspiracy among each accomplice extends, and whether the amount obtained by fraud by the final joint principal offender is confirmed for each victim.
From the official text
Points at issue
가. 순차 공모하여 재산상 이익을 편취한 경우 특정경제범죄가중처벌등에관한법률 제3조 제1항 소정의 이득액 산정방법 나. 발행명의인이나 직접 발행자가 아닌 자가 부정수표단속법 제2조 제2항의 죄의 공동정범이 될 수 있는지 여부
Unofficial English translation
a. Method of calculating the amount of gain prescribed in Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes where persons successively conspire to obtain a pecuniary benefit by fraud / b. Whether a person who is neither the issuer of record nor the direct issuer may become a joint principal offender of the crime under Article 2 (2) of the Illegal Check Control Act
Summary of the holding
가. 다른 공범들과 순차 공모하여 상습으로 당좌수표와 어음 등을 유통시키고 이를 결제하지 아니하여 재산상 이익을 편취한 경우의 이득액은 공범 중 1인이 실제로 취한 이익만을 합산하여 산정할 것이 아니라 순차 공모의 최종공범이 피해자로부터 편취한 재물 또는 재산상 이익의 가액을 합산하여 산정하여야 한다. 나. 발행명의인이나 직접 발행자가 아니라 하더라도 공모에 의하여 부정수표단속법 제2조 제2항 소정 범죄의 공동정범이 될 수 있다.
Order
상고를 기각한다. 상고 후의 구금일수중 35일을 본형에 산입한다.
Unofficial English translation
The appeal is dismissed. 35 days of the detention after the final appeal is counted toward the principal sentence.
Provisions referred to
특정경제범죄가중처벌등에관한법률 제3조 제1항, 부정수표단속법 제2조 제2항, 형법 제30조
Read 2026-10-16 · Cross-read 2026-10-16. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
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