Open Decision Ledger · Economic crime
Whether the Amount of Damage for Each Victim Must Be Specified in a Single Comprehensive Offense of Embezzlement under the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, and Determinations Concerning Hearsay Evidence and the Taking of Evidence
Translated from the Korean original. Read the Korean
Supreme Court, Feb. 27, 2014, 2013Do12155 (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(횡령)(피고인2에대하여일부변경된죄명:업무상횡령)·특정경제범죄가중처벌등에관한법률위반(배임)(인정된죄명:업무상배임)·특정경제범죄가중처벌등에관한법률위반(저축관련부당행위)
Official text on the National Law Information Center
Question
Where acts of embezzlement are collectively charged as the offense of embezzlement under the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, does the inability to specify the amount of damage for each victim mean that the facts charged have not been specified?
Holding
The amount of gain under Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes is the amount of gain of a single offense or the sum of the amounts of gain of a single comprehensive offense, so that, in principle, the amount of damage for each victim must be specified. However, in this case, where the funds of the two victim companies were deposited into a single account without being separated such that specification was impossible, and where, whichever ratio was applied, the amount of damage for each company was at least 5 billion won and thus had no effect on the application of the law, the Supreme Court held that the facts charged could not be regarded as unspecified.
Points at issue, verbatim
횡령행위를 포괄하여 같은 법 위반(횡령)죄로 의율하기 위해서는 피해자 및 피해자별 피해액에 관한 공소사실의 특정이 필요한지 여부(원칙적 적극)
Unofficial English translation
whether, in order to hold a defendant liable for a violation of the same Act (embezzlement) covering acts of embezzlement, the facts charged need to be specified as to the victims and the amounts of loss by victim (in principle, affirmative)
Disposition
Dismissed Stated in the decision
상고를 모두 기각한다.
Unofficial English translation
All appeals are dismissed.
Form of the test
Existing test applied Stated in the decision
따라서 피해회사별 피해액을 특정하지 아니하였다고 하여 이 부분 공소사실 및 범죄사실이 특정되지 아니하였다고 볼 것은 아니다.
Unofficial English translation
Accordingly, the fact that the amounts of loss by victim company were not specified cannot be regarded as meaning that these facts charged and the facts constituting the crime were not specified.
Factors
- 피해자 및 피해자별 피해액에 관한 공소사실의 특정이 필요한지 여부
- 타인의 진술을 내용으로 하는 진술이 본래증거 또는 전문증거인지 판단하는 기준
- 비상장주식 등 주식의 매수와 관련한 배임죄에서 손해액을 산정하는 방법
- 저장매체 자체를 수사기관 사무실 등 외부로 반출할 수 있는 예외적인 경우
Unofficial English translation
• whether the facts charged need to be specified as to the victims and the amounts of loss by victim
• the criterion for determining whether a statement whose content is another person's statement is original evidence or hearsay evidence
• the method of calculating the amount of loss in the offense of breach of trust relating to the purchase of shares such as unlisted shares
• the exceptional cases in which a storage medium itself may be taken out of an investigating agency's office or the like
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2011. 2. 24. 선고 2010도13801 판결
Unofficial English translation
Supreme Court Decision 2010Do13801 decided February 24, 2011
Decisions referred to
[1] 대법원 2011. 2. 24. 선고 2010도13801 판결(공2011상, 681) / [2] 대법원 2008. 11. 13. 선고 2008도8007 판결, 대법원 2012. 7. 26. 선고 2012도2937 판결(공2012하, 1530) / [3] 대법원 1989. 10. 10. 선고 87도966 판결(공1989, 1703), 대법원 2009. 5. 28. 선고 2008도10787 판결 / [4] 대법원 2011. 1. 27. 선고 2010도7947 판결 / [5] 대법원 2002. 10. 11. 선고 2002도2939 판결(공2002하, 2778), 대법원 2008. 3. 14. 선고 2007도7568 판결 / [6] 대법원 2005. 4. 29. 선고 2005도856 판결(공2005상, 902), 대법원 2007. 3. 15. 선고 2004도5742 판결(공2007상, 569), 대법원 2012. 6. 28. 선고 2012도2623 판결 / [7] 대법원 2009. 10. 29. 선고 2008도11036 판결(공2009하, 2048), 대법원 2012. 1. 26. 선고 2011도15179 판결 / [8] 대법원 2011. 5. 26.자 2009모1190 결정(공2011하, 1342), 대법원 2012. 3. 29. 선고 2011도10508 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Even where the amount of damage for each victim cannot be distinguished and whether the case falls within the aggravated punishment range under the Act on the Aggravated Punishment, etc. of Specific Economic Crimes varies according to the respective proportions, may the facts charged still be regarded as specified?
If the Supreme Court's precedents on the standard for the amount of gain under Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes or on the specification of the facts charged for a single comprehensive offense change, this reading will be re-examined.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
In a comparison with an independent reading conducted by another AI family (GPT-6 Astra), which read only the original text without seeing the first reading, 7 of the 8 axes agreed, and the readings diverged on the 4th axis (Form of the test).
Axis 4 (Form of the test): Primary “Existing test applied” vs Independent “Elements stated”
Because the original text acknowledges in principle the need to specify the amount of damage for each victim and dismisses the final appeal, the first reading may emphasize the application of the principle and its exception to the facts, while the independent reading may emphasize the requirements for specifying the facts charged.
횡령행위를 포괄하여 같은 법 위반(횡령)죄로 의율하기 위해서는 피해자 및 피해자별 피해액에 관한 공소사실의 특정이 필요한지 여부(원칙적 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 the defendant not guilty on the primary charge alleging that he had conspired to raise funds for Defendant 2, and recognized the alternative charge concerning the raising of entrusted investment funds for Defendant 1 only as to the 45 billion won portion. The prosecution indicted 46.5 billion won based on the time of withdrawal from the account, but the court below took the time of actual remittance to Non-indicted 1 as the time of the embezzlement and recognized only 45 billion won as the amount of damage, holding that the facts charged were specified even though the amount of damage for each victim company had not been specified.
Supreme Court standard: While confirming the existing legal principle that the amount of damage for each victim must in principle be specified, the Supreme Court, on the ground that the funds of the two companies were deposited without being separated such that specification was impossible and that, whatever proportion was used, the amount of damage for each company was at least 5 billion won and thus had no effect on the application of the law, found the determination of the court below tenable and rejected all of the grounds for final appeal concerning the principle of no adjudication without accusation, amendment of the indictment, the conspiracy relationship, and hearsay evidence.
Distinguishing conditions
- Where the funds for each victim are separated so that the amount of damage can be specified, yet this has not been specified
- Where, depending on the respective proportions, the amount of damage for each victim company may fall short of the threshold for aggravated punishment under the Act on the Aggravated Punishment, etc. of Specific Economic Crimes and thus affect the application of the law
- Where each act of remittance cannot be regarded as an expression of a single criminal intent and constitutes an offense punishable as a concurrence of offenses
Record verification notes
Before asserting the same conclusion, it needs to be checked whether specifying the amount of damage for each victim was in fact impossible, and whether, however the division is made, the amount of gain for each victim exceeds the threshold amount of the applicable statutory provision.
From the official text
Points at issue
[1] 특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항에서 정한 ‘이득액’의 의미 및 횡령행위를 포괄하여 같은 법 위반(횡령)죄로 의율하기 위해서는 피해자 및 피해자별 피해액에 관한 공소사실의 특정이 필요한지 여부(원칙적 적극) [2] 타인의 진술을 내용으로 하는 진술이 본래증거 또는 전문증거인지 판단하는 기준 [3] 피고인이 무죄에 관한 자료로 제출한 증거를 유죄인정의 증거로 사용하기 위한 요건 [4] 증거신청 채택 여부가 법원의 재량인지 여부(적극) 및 적법하게 공판 심리가 종결된 후에 피고인의 증인신청이 있는 경우, 법원이 반드시 공판 심리를 재개하여 증인신문을 하여야 하는지 여부(소극) [5] 목적·용도를 정하여 위탁받은 금전을 사용하는 경우, 횡령죄의 성립 여부 [6] 비상장주식 등 주식의 매수와 관련한 배임죄에서 손해액을 산정하는 방법 [7] 주식 거래 관련 배임행위로 인한 손해의 발생 여부를 판단할 때 유의할 사항 [8] 전자정보에 대한 압수·수색영장을 집행할 때 저장매체 자체를 수사기관 사무실 등 외부로 반출할 수 있는 예외적인 경우 및 수사기관 사무실 등으로 옮긴 저장매체에서 범죄 혐의와 관련성에 관한 구분 없이 임의로 문서를 출력하거나 파일을 복사하는 행위가 적법한 영장 집행인지 여부(원칙적 소극)
Unofficial English translation
[1] The meaning of "amount of gain" as provided in Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, and whether, in order to hold a defendant liable for a violation of the same Act (embezzlement) covering acts of embezzlement, the facts charged need to be specified as to the victims and the amounts of loss by victim (in principle, affirmative) [2] The criterion for determining whether a statement whose content is another person's statement is original evidence or hearsay evidence [3] The requirements for using evidence submitted by the defendant as material on not guilty as evidence supporting a finding of guilty [4] Whether the adoption of an application to admit evidence is within the court's discretion (affirmative) and whether, where the defendant applies to examine a witness after the trial hearing has been lawfully closed, the court must reopen the trial hearing and examine the witness (negative) [5] Whether the offense of embezzlement is established where money entrusted for a specified purpose or use is used [6] The method of calculating the amount of loss in the offense of breach of trust relating to the purchase of shares such as unlisted shares [7] Matters to be noted in determining whether loss has arisen from an act of breach of trust relating to share transactions [8] The exceptional cases in which a storage medium itself may be taken out of an investigating agency's office or the like when executing a search and seizure warrant for electronic information, and whether an act of arbitrarily printing documents or copying files from a storage medium transferred to an investigating agency's office or the like, without any distinction as to relevance to the suspicion of a crime, constitutes lawful execution of a warrant (in principle, negative)
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.
Unofficial English translation
All appeals are dismissed.
Provisions referred to
[1] 형법 제37조, 제355조 제1항, 특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항, 형사소송법 제254조 제4항 [2] 형사소송법 제310조의2, 제311조, 제312조, 제313조 제1항 [3] 형사소송법 제307조, 제318조, 제325조 [4] 형사소송법 제294조, 제295조, 제305조 [5] 형법 제355조 제1항 [6] 형법 제355조 제2항, 제356조 [7] 형법 제355조 제2항, 형사소송법 제308조 [8] 헌법 제12조 제1항, 제3항, 형사소송법 제114조, 제215조
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