Open Decision Ledger · Economic crime
The meaning of the amount defrauded in the offense of fraud under the Criminal Act and how it differs from the method of calculating the amount of gain when applying the Act on the Aggravated Punishment, etc. of Specific Economic Crimes
Translated from the Korean original. Read the Korean
Supreme Court, Dec. 9, 2010, 2010Do12928 (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: 사기·특정경제범죄가중처벌등에관한법률위반(사기)(인정된죄명:사기)·부정수표단속법위반·사문서위조·위조사문서행사
Official text on the National Law Information Center
Question
For the offense of fraud under the Criminal Act, as opposed to the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, does the fact that the specific amount defrauded, calculated after deducting encumbrances such as a maximum amount mortgage, is zero or small affect whether the crime is established?
Holding
The offense of fraud is established by the acquisition of property or a pecuniary benefit through deception, so actual loss or value is not at issue. The Supreme Court held that the calculation of a concrete amount of gain after deducting encumbrances is required only when applying Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, and that in the offense of fraud under the Criminal Act it is merely a sentencing factor.
Points at issue, verbatim
재물편취를 내용으로 하는 사기죄에서 상당한 대가가 지급되었다거나 피해자의 전체 재산상에 손해가 없더라도 사기죄가 성립하는지 여부(적극)
Unofficial English translation
Whether the offense of fraud is constituted even if a considerable consideration has been paid or there is no loss to the victim's entire property, in the offense of fraud involving obtaining property (affirmative)
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
편취액 산정에 관한 피고인의 상고이유 주장을 배척한 사례
Unofficial English translation
A case in which the defendant's grounds for final appeal regarding the calculation of the amount obtained by fraud were rejected
Factors
- 사기죄가 성립하기 위하여 피해자의 현실적 손해발생을 요하는지 여부(소극)
- 타인 소유의 부동산에 제3자 앞으로 근저당권을 설정케 한 자가 그로 인하여 취득하는 재산상 이익의 내용
- 피고인이 편취한 재산상 이익의 구체적인 가액은 양형사유에 불과하여 범죄 성립에 영향을 미치지 못한다
- 부동산 등의 시가 상당액에서 근저당권 등에 의한 부담 금액을 공제하여야 하는지 여부(적극)
Unofficial English translation
• Whether actual loss to the victim is required for the offense of fraud to be constituted (negative)
• The content of the pecuniary benefit acquired by a person who causes a maximum amount mortgage to be established in favor of a third party over real estate owned by another person
• The specific amount of the pecuniary benefit obtained by the defendant is merely a sentencing factor and does not affect the constitution of the crime
• Whether the amount of the burden arising from a maximum amount mortgage, etc. must be deducted from the amount corresponding to the market value of the real estate, etc. (affirmative)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2007. 4. 19. 선고 2005도7288 전원합의체 판결
Unofficial English translation
Supreme Court en banc Judgment 2005Do7288 decided April 19, 2007
Decisions referred to
[1][5] 대법원 2007. 4. 19. 선고 2005도7288 전원합의체 판결(공2007상, 923) / [1] 대법원 2003. 12. 26. 선고 2003도4914 판결(공2004상, 298) / [2] 대법원 2000. 4. 25. 선고 2000도137 판결(공2000상, 1360) / [4] 대법원 2000. 7. 7. 선고 2000도1899 판결(공2000하, 1911), 대법원 2007. 1. 25. 선고 2006도7470 판결(공2007상, 401)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
In a case involving the creation of a junior maximum amount mortgage, under what standard is recognized the special circumstance that the security value of the senior maximum amount mortgage is deemed to have been ascertained only to the extent of the actual secured claim?
If the standard for the amount of gain under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes or the legal principle for calculating the amount of gain in the Supreme Court's en banc judgment 2005Do7288 is changed, this reading will be re-examined.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
In comparison with the independent reading of another AI in the same family (GPT-6 Astra), which read only the original text without seeing the first 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 “Existing test applied” vs Independent “Elements stated”
The original text contains both general legal principles on the establishment of the offense of fraud and the calculation of the amount of gain, and a case in which the grounds for final appeal were rejected, so the first reading may place weight on the application to the facts while the independent reading places weight on the general elements.
사기죄가 성립하기 위하여 피해자의 현실적 손해발생을 요하는지 여부(소극) 및 재물 또는 재산상 이익의 가액이 사기죄 성립에 영향을 미치는지 여부(소극)Axis 8 (Open question and revisit condition): Primary “In a case involving the creation of a junior maximum amount mortgage, under what standard is recognized the special circumstance that the security value of the senior maximum amount mortgage is deemed to have been ascertained only to the extent of the actual secured claim?” vs Independent “If the encumbrance is deducted on the premise that the aggravated punishment provision is applied in this case, what is the concrete amount of gain for each act of fraud?”
The first asks the standard for recognizing the special circumstance under which the security value of the senior mortgage is ascertained by the actual amount of the claim, while the independent reading asks the concrete amount of gain for each act of fraud.
재물편취를 내용으로 하는 사기죄에서 상당한 대가가 지급되었다거나 피해자의 전체 재산상에 손해가 없더라도 사기죄가 성립하는지 여부(적극)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 found that the defendant had prepared and used a real estate sale and purchase contract in the name of Non-indicted 1 without consent, and found the defendant guilty of forgery of a private document and use of a forged private document; as to the portion concerning Non-indicted 4, after examining the amount defrauded, taking the appraised value of 1,035,000,000 won as the objective standard for evaluating the market price of the commercial premises, it rejected the defendant's assertions and found the defendant guilty of the offense of fraud.
Supreme Court standard: The Supreme Court pointed out that parts of the reasoning stated by the court below did not accord with the legal principle concerning the amount defrauded in the offense of fraud, but held that, since in the offense of fraud under the Criminal Act the concrete amount of gain does not affect the establishment of the crime, the conclusion finding guilt was justifiable, and dismissed the final appeal. It stated that the assertion of unjust sentencing could not constitute a lawful ground for final appeal because this was not a case in which imprisonment of 10 years or more or the like had been imposed.
Distinguishing conditions
- Cases in which Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes is applied and the amount of gain becomes a constituent element
- Cases involving the creation of a junior maximum amount mortgage in which there is a special circumstance warranting deducting only the actual secured claim of the senior maximum amount mortgage
- Cases in which the causation between the act of deception or the disposition and the delivery of the property is itself in dispute
Record verification notes
Before asserting the same conclusion, one must first check whether the provision applied is limited to Article 347 of the Criminal Act, or whether this is a case in which Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes is applied so that the actual exchange value is calculated by subtracting from the market price the amount of the secured claim of the maximum amount mortgage, the amount of the attachment enforcement claim, the amount claimed in the provisional attachment, etc., and whether there is proof of that amount of gain.
From the official text
Points at issue
[1] 사기죄가 성립하기 위하여 피해자의 현실적 손해발생을 요하는지 여부(소극) 및 재물 또는 재산상 이익의 가액이 사기죄 성립에 영향을 미치는지 여부(소극) [2] 제3자로부터 금원을 융자받거나 물품을 외상으로 공급받을 목적으로 타인을 기망하여 그 타인 소유의 부동산에 제3자 앞으로 근저당권을 설정케 한 자가 그로 인하여 취득하는 재산상 이익의 내용 및 특정경제범죄 가중처벌 등에 관한 법률 제3조의 적용을 전제로 한 구체적 가액(이득액)의 산정 방법 [3] 특정경제범죄 가중처벌 등에 관한 법률 위반(사기)죄가 아닌 형법상 이득사기죄의 경우, 피고인이 편취한 재산상 이익의 구체적인 가액은 양형사유에 불과하여 범죄 성립에 영향을 미치지 못한다는 이유로, 편취액 산정에 관한 피고인의 상고이유 주장을 배척한 사례 [4] 재물편취를 내용으로 하는 사기죄에서 상당한 대가가 지급되었다거나 피해자의 전체 재산상에 손해가 없더라도 사기죄가 성립하는지 여부(적극) [5] 부동산 등 재물편취의 경우 특정경제범죄 가중처벌 등에 관한 법률 제3조의 적용을 전제로 구체적 가액(이득액)을 산정할 때에, 부동산 등의 시가 상당액에서 근저당권 등에 의한 부담 금액을 공제하여야 하는지 여부(적극) [6] 특정경제범죄 가중처벌 등에 관한 법률 위반(사기)죄가 아닌 형법상 재물사기죄의 경우, 피고인이 편취한 구체적 이득액 여하는 범죄 성립에 영향을 미치지 못한다는 이유로, 편취액이 없어 사기죄가 성립하지 않는다는 취지의 피고인의 상고이유 주장을 배척한 사례
Unofficial English translation
[1] Whether actual loss to the victim is required for the offense of fraud to be constituted (negative) and whether the value of the property or pecuniary benefit has an effect on the constitution of the offense of fraud (negative) [2] The content of the pecuniary benefit acquired by a person who, for the purpose of borrowing money from a third party or being supplied with goods on credit, deceives another person into establishing a maximum amount mortgage in favor of the third party over real estate owned by that other person, and the method of calculating the specific amount (amount of gain) on the premise of the application of Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes [3] A case in which, in the case of the offense of fraud for pecuniary benefit under the Criminal Act, not the offense of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (fraud), the defendant's grounds for final appeal regarding the calculation of the amount obtained by fraud were rejected on the ground that the specific amount of the pecuniary benefit obtained by the defendant is merely a sentencing factor and does not affect the constitution of the crime [4] Whether the offense of fraud is constituted even if a considerable consideration has been paid or there is no loss to the victim's entire property, in the offense of fraud involving obtaining property (affirmative) [5] Whether, when calculating the specific amount (amount of gain) on the premise of the application of Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes in the case of obtaining property such as real estate, the amount of the burden arising from a maximum amount mortgage, etc. must be deducted from the amount corresponding to the market value of the real estate, etc. (affirmative) [6] A case in which, in the case of the offense of fraud by obtaining property under the Criminal Act, not the offense of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (fraud), the defendant's grounds for final appeal, to the effect that the offense of fraud is not constituted because there is no amount obtained by fraud, were rejected on the ground that the specific amount of the benefit obtained by the defendant does not affect the constitution of the crime
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 기각한다.
Unofficial English translation
The appeal is dismissed.
Provisions referred to
[1] 형법 제347조 [2] 형법 제347조, 특정경제범죄 가중처벌 등에 관한 법률 제3조 [3] 형법 제347조, 특정경제범죄 가중처벌 등에 관한 법률 제3조 [4] 형법 제347조 [5] 형법 제347조, 특정경제범죄 가중처벌 등에 관한 법률 제3조 [6] 형법 제347조, 특정경제범죄 가중처벌 등에 관한 법률 제3조
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