Open Decision Ledger · Economic crime
The Maximum Amount Mortgage Securing an Extorted Promissory Note Claim and the Actual Amount of Gain under the Specific Economic Crimes Act
Translated from the Korean original. Read the Korean
Supreme Court, June 30, 1995, 95Do825 (judgment)
Case name: 특정경제범죄가중처벌등에관한법률위반(공갈),폭력행위등처벌에관한법률위반,공정증서원본불실기재,공정증서원본불실기재행사,사문서위조,사문서위조행사,공갈,권리행사방해
Official text on the National Law Information Center
Question
If a maximum amount mortgage was established as consideration for withdrawing a compulsory auction filed on the basis of a notarized promissory note obtained by extortion, must the maximum amount of the claim be added to the amount of gain from the extortion?
Holding
The amount of gain under the Act on the Aggravated Punishment, etc. of Specific Economic Crimes means the actual amount of gain, and if the maximum amount mortgage merely secures or reinforces the existing promissory note claim, the amount of gain cannot exceed the amount of that claim. The Supreme Court pointed out the error of the court below in adding the maximum amount of the claim, but dismissed the final appeal on the ground that the case falls within the same statutory sentencing range and the error did not affect the judgment.
Summary of the holding, verbatim
특정경제범죄가중처벌등에관한법률 제3조 제1항의 이득액은 단순1죄 또는 포괄1죄가 성립하는 경우의 이득액의 합산액을 의미하지만, 그 법조항의입법취지에 비추어 그 이득액은 실질적인 이득액을 말한다.
Unofficial English translation
The amount of gain under Article 3, paragraph (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes means the aggregate amount of the gains where a single offense or a comprehensive offense is established, but, in light of the legislative purpose of that statutory provision, the amount of gain means the substantial amount of gain.
Disposition
Dismissed Stated in the decision
상고를 모두 기각한다.
Unofficial English translation
All appeals are dismissed.
Form of the test
Elements stated Stated in the decision
그 이득액은 실질적인 이득액을 말한다
Unofficial English translation
the amount of gain means the substantial amount of gain
Factors
- 단순1죄 또는 포괄1죄가 성립하는 경우의 이득액의 합산액을 의미하지만
- 그 이득액은 실질적인 이득액을 말한다
- 그 강제경매를 취하하는 조건으로
- 그 근저당권은 피고인이 갈취한 기존의 약속어음채권 금6억 원을 확보 강화하는 것에 불과하여
Unofficial English translation
• means the aggregate amount of the gains where a single offense or a comprehensive offense is established, but
• the amount of gain means the substantial amount of gain
• under the condition of withdrawing the compulsory auction
• the maximum amount mortgage is nothing more than securing and reinforcing the existing promissory note claim of 600 million won that the defendant extorted,
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
If the maximum amount mortgage taken as security for the extorted claim is later enforced and a distribution is received, must that distribution amount be regarded as a separate amount of gain?
This reading is to be rechecked if the method of calculating the amount of gain under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes or the aggravated punishment ranges is amended.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
In comparison with an independent reading in which another AI (GPT-6 Astra) read only the original text without seeing the initial reading, 6 of the 8 axes agreed, and the readings diverged on the 4th axis (Form of the test) and the 8th axis (Open question and revisit condition).
Axis 4 (Form of the test): Primary “Elements stated” vs Independent “Existing test applied”
As the original text presents both the general standard of the actual amount of gain and the case-specific determination that it cannot exceed KRW 600 million, the initial reading may have focused on the general elements and the independent reading on the application to the facts.
그 근저당권은 피고인이 갈취한 기존의 약속어음채권 금6억 원을 확보 강화하는 것에 불과하여 피고인의 실질적 이득액은 금 6억 원을 넘어설 수 없다고 한 사례.Axis 8 (Open question and revisit condition): Primary “If the maximum amount mortgage taken as security for the extorted claim is later enforced and a distribution is received, must that distribution amount be regarded as a separate amount of gain?” vs Independent “How is the amount of gain calculated where the maximum amount mortgage additionally established provides an independent economic benefit beyond securing the existing claim?”
The initial reading asks whether the distribution amount received upon enforcement of the security is a separate amount of gain, while the independent reading asks how to calculate the gain where the security provides an independent economic benefit.
특정경제범죄가중처벌등에관한법률 제3조 제1항의 이득액은 단순1죄 또는 포괄1죄가 성립하는 경우의 이득액의 합산액을 의미하지만, 그 법조항의입법취지에 비추어 그 이득액은 실질적인 이득액을 말한다.Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The court below, while affirming the judgment of the first instance, added to the amount of gain the maximum amount of the claim, KRW 300 million, under a maximum amount mortgage that Defendant 1 received as consideration for withdrawing the compulsory auction that had been commenced on the notarized promissory notes, with an aggregate face amount of KRW 600 million, obtained by extortion from the victim, in addition to those notes.
Supreme Court standard: The Supreme Court viewed the measure of the court below in adding the maximum amount of the claim as improper, because the maximum amount mortgage merely served to secure or reinforce the promissory note claim of KRW 600 million that had already been extorted. However, it dismissed all final appeals and credited 60 days of Defendant 1's detention after the final appeal against the principal sentence, on the ground that, even excluding that amount, the total amount of gain from the extortion, KRW 720 million, likewise falls within the range under Article 3, paragraph (1), subparagraph 2 of the same Act and the error did not affect the judgment.
Distinguishing conditions
- Where the maximum amount mortgage secures a new claim unrelated to the claim already extorted
- Where, in addition to providing the security, property or a pecuniary benefit was separately extorted
- Where the applicable aggravated punishment range differs depending on whether the amount is aggregated
Record verification notes
Before contesting the aggregation of the amount of gain, it is first necessary to check whether the additional right acquired is a means of securing the existing claim or an independent pecuniary benefit, and whether the applicable range differs depending on whether it is aggregated.
From the official text
Points at issue
가. 특정경제범죄가중처벌등에관한법률 제3조 제1항 소정의 “이득액“의 의미 나. 갈취한 액면금 6억 원의 약속어음 공정증서로 피해자 소유 부동산에 대하여 강제경매를 신청하였다가 강제경매를 취하하는 조건으로 채권최고액 3억원의 근저당권을 설정 받은 경우의 갈취 이득액
Unofficial English translation
A. The meaning of the "amount of gain" as provided in Article 3, paragraph (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes B. The amount of gain from extortion where a notarial deed of a promissory note in the face amount of 600 million won obtained by extortion was used to apply for a compulsory auction against real property owned by the victim, and then, under the condition of withdrawing the compulsory auction, a maximum amount mortgage with a claim ceiling of 300 million won was established
Summary of the holding
가. 특정경제범죄가중처벌등에관한법률 제3조 제1항의 이득액은 단순1죄 또는 포괄1죄가 성립하는 경우의 이득액의 합산액을 의미하지만, 그 법조항의입법취지에 비추어 그 이득액은 실질적인 이득액을 말한다. 나. 피고인이 피해자로부터 피해자가 발행하여 공증을 받은 액면금 6억 원의 약속어음을 갈취한 후, 그 공정증서를 채무명의로 하여 피해자 소유 부동산에 대한 강제경매신청을 하였다가 그 강제경매를 취하하는 조건으로 그 부동산에 관하여 근저당권자를 피고인으로 하는 채권최고액 금 3억 원의 근저당권을 설정받은 경우, 그 근저당권은 피고인이 갈취한 기존의 약속어음채권 금6억 원을 확보 강화하는 것에 불과하여 피고인의 실질적 이득액은 금 6억 원을 넘어설 수 없다고 한 사례.
Order
상고를 모두 기각한다. 피고인 1에 대하여는 상고 후 구금일수 중 60일을 본형에 산입한다.
Unofficial English translation
All appeals are dismissed. As to Defendant 1, 60 days of the days of detention after the final appeal shall be counted toward the principal sentence.
Provisions referred to
특정경제범죄가중처벌등에관한법률 제3조 제1항 , 형법 제350조
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.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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