Open Decision Ledger · Economic crime
Fraud through multi-level sales schemes: deception by breach of the duty of disclosure, sequential conspiracy, calculation of the amount obtained by fraud including repurchases and consideration, and habitualness
Translated from the Korean original. Read the Korean
Supreme Court, Oct. 28, 2005, 2005Do5774 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 특정경제범죄가중처벌등에관한법률위반(사기)·방문판매등에관한법률위반·유사수신행위의규제에관한법률위반
Official text on the National Law Information Center
Question
In fraud committed through multi-level sales schemes, must the amount the victim spent on further goods after actually receiving allowances, or the value of the goods provided as consideration, be deducted from the amount obtained by fraud under the Act on the Aggravated Punishment, etc. of Specific Economic Crimes?
Holding
Amounts repurchased after allowances were actually received, such as into a bank account, are not deducted from the amount obtained by fraud, because they constitute a fresh infringement of a legally protected interest. Even where consideration has been provided in part, the amount obtained by fraud is the entirety of the property delivered, and the Supreme Court held that the judgment of the court below, which found deception by breach of the duty of disclosure, sequential and implicit conspiracy, and habitualness despite the absence of prior convictions, was also proper.
Points at issue, verbatim
재물편취를 내용으로 하는 사기죄에 있어서 편취액의 산정방법 및 그 대가가 일부 지급된 경우의 편취액(=교부받은 재물 전부)
Unofficial English translation
In the offense of fraud involving acquisition of property, the method of calculating the amount fraudulently acquired and the amount fraudulently acquired where part of the consideration therefor has been paid (= the entirety of the property delivered)
Disposition
Dismissed Stated in the decision
상고를 모두 기각한다.
Unofficial English translation
All appeals are dismissed.
Form of the test
Existing test applied Read from the decision
기록과 위 법리에 비추어 살펴보면, 원심이 같은 취지에서
Unofficial English translation
Looking at this in light of the records and the above legal principle, the court below, on the same reasoning,
Factors
- 사기죄의 요건으로서 '기망'의 의미
- 법률상 고지의무가 인정되는 경우
- 공모공동정범에 있어서 공모관계의 성립 요건
- 상습사기에 있어서 상습성의 의미 및 판단 방법
Unofficial English translation
• The meaning of 'deception' as a requirement of the offense of fraud
• Cases where a duty to disclose under the law is recognized
• Requirements for the formation of a conspiratorial relationship among joint principal offenders by conspiracy
• The meaning of the habitual nature in habitual fraud and the method of determining it
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2000. 7. 7. 선고 2000도1899 판결(공2000하, 1911)
Unofficial English translation
Supreme Court Decision 2000Do1899 decided July 7, 2000 (Gong 2000 Ha, 1911)
Decisions referred to
[1] 대법원 2004. 4. 9. 선고 2003도7828 판결(공2004상, 844] /[2][4] 대법원 2000. 11. 10. 선고 2000도3483 판결(공2001상, 91) /[2] 대법원 2004. 3. 12. 선고 2004도126 판결 /[3][4] 대법원 2001. 7. 13. 선고 2001도1707 판결 /[3] 대법원 2000. 7. 7. 선고 2000도1899 판결(공2000하, 1911) /[4] 대법원 1986. 6. 10. 선고 86도778 판결(공1986, 904), 대법원 1995. 7. 11. 선고 95도955 판결(공1995하, 2846)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Where the boundary is unclear between amounts merely reinvested on the books without actual receipt and amounts repurchased after actual receipt, what criterion should be used to distinguish them?
This reading will be checked again 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 Supreme Court precedent on the amount obtained by fraud under the offense of fraud, changes.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
Compared with an independent reading by another AI line (GPT-6 Astra), which read only the original text without seeing the initial reading, 7 of the 8 axes agreed, and the readings diverged on Axis 4 (Form of the test).
Axis 4 (Form of the test): Primary “Existing test applied” vs Independent “Elements stated”
Because the original text sets out the elements of deception and conspiracy and the method of determining the amount obtained by fraud and habitualness while dismissing the final appeal, the initial reading may focus on the application to the case, while the independent reading may focus on the general elements for decision.
사기죄의 요건으로서 '기망'의 의미 및 법률상 고지의무가 인정되는 경우Raw 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 (Busan High Court, Decision 2005No166) rejected the defendants' argument that they had sufficiently explained the possibility that the allowances would not be paid, and held that they had committed deception through high-rate allowances that could not realistically be realized; it found sequential and implicit conspiracy on the part of Defendant 3, a managing director; it did not deduct from the amount obtained by fraud the amounts repurchased after actual receipt of the allowances or the value of the goods and sponsorship allowances; and it found habitualness even though there were no prior convictions for fraud. As to the violation of the Door-to-Door Sales, etc. Act, it held that the AD business operators did not exist or were merely nominal.
Supreme Court standard: The Supreme Court confirmed the established legal principles concerning deception and the duty of disclosure, conspiracy, calculation of the amount obtained by fraud, and habitualness, and accepted all of the findings of the court below as proper. Because this was a case in which a sentence of imprisonment of less than 10 years or a fine was imposed, it held that an unjust sentence was not a lawful ground for final appeal and dismissed all grounds for final appeal.
Distinguishing conditions
- Where the matter was treated as involving amounts merely reinvested on the books without any actual transfer of funds after the property was obtained by fraud (in that case, the reinvested amount is excluded from the aggregate amount obtained by fraud)
- Where the issue is the obtaining by fraud of a pecuniary benefit rather than of property, so that the amount of gain cannot be regarded as the entirety of the property
- Where the victim engaged in the transaction knowing the basic facts underlying the transactional decision, such as the company's financial condition and the source of funding for the allowances, so that no relationship between breach of the duty of disclosure and mistake is found
Record verification notes
Before asserting the entirety of the amount obtained by fraud, one must first check the account records to determine whether the allowances were actually paid to the victim and freely disposable by the victim, or whether the matter went no further than a reinvestment recorded on the books.
From the official text
Points at issue
[1] 사기죄의 요건으로서 '기망'의 의미 및 법률상 고지의무가 인정되는 경우 [2] 공모공동정범에 있어서 공모관계의 성립 요건 [3] 재물편취를 내용으로 하는 사기죄에 있어서 편취액의 산정방법 및 그 대가가 일부 지급된 경우의 편취액(=교부받은 재물 전부) [4] 상습사기에 있어서 상습성의 의미 및 판단 방법
Unofficial English translation
[1] The meaning of 'deception' as a requirement of the offense of fraud and cases where a duty to disclose under the law is recognized [2] Requirements for the formation of a conspiratorial relationship among joint principal offenders by conspiracy [3] In the offense of fraud involving acquisition of property, the method of calculating the amount fraudulently acquired and the amount fraudulently acquired where part of the consideration therefor has been paid (= the entirety of the property delivered) [4] The meaning of the habitual nature in habitual fraud and the method of determining it
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
상고를 모두 기각한다. 상고 후의 구금일수 중 95일을 피고인 1에 대한 본형에 산입한다.
Unofficial English translation
All appeals are dismissed. Of the days of detention after the final appeal, 95 days are computed into the principal sentence imposed on Defendant 1.
Provisions referred to
[1] 형법 제347조 [2] 형법 제30조 [3] 특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항 , 형법 제347조 [4] 형법 제347조 , 제351조
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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