Open Decision Ledger · Economic crime
Calculation of the amount defrauded in fraud involving the taking of property where part of the consideration is paid as advance interest or fees, and whether the appellate court failed to rule on an issue
Translated from the Korean original. Read the Korean
Supreme Court, Oct. 26, 2017, 2017Do10601 (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)·공문서위조·위조공문서행사·뇌물공여의사표시·사문서위조·위조사문서행사·사기
Official text on the National Law Information Center
Question
In fraud involving the taking of property, where part of the consideration is paid as advance interest, fees or the like, is the amount defrauded the balance remaining after that consideration is deducted?
Holding
The Supreme Court held that once property is delivered by deception, the offense of fraud is established in itself, so even though part of the consideration was paid, the amount defrauded is not the difference but the entirety of the property delivered. It also held that the fact that the appellate court, after reversing the case ex officio, did not separately set out the grounds of appeal, and the fact that the offense under paragraph (2) rather than paragraph (1) of Article 347 was established, were not unlawful matters affecting the judgment.
Points at issue, verbatim
재물편취를 내용으로 하는 사기죄에서 선이자나 수수료 등의 명목으로 대가가 일부 지급된 경우, 그 편취액
Unofficial English translation
In the offense of fraud involving the taking of property, where consideration has been paid in part under the pretext of advance interest or fees or the like, the amount taken
Disposition
Dismissed Stated in the decision
상고를 기각한다.
Unofficial English translation
The appeal is dismissed.
Form of the test
Existing test applied Read from the decision
원심의 판단은 위 법리에 기초한 것으로 보이고
Unofficial English translation
The determination of the court below appears to be based on the foregoing legal principle
Factors
- 항소심이 항소이유에 포함되지 아니한 사유를 직권으로 심리하여 제1심판결을 파기하고 다시 판결하는 경우
- 선이자나 수수료 등의 명목으로 대가가 일부 지급된 경우
- 피해자로부터 교부받은 재물 전부
- 형법 제347조 제1항의 죄가 아닌 같은 조 제2항의 죄가 성립한다는 사정
Unofficial English translation
• When the appellate court ex officio examines grounds not included in the grounds of appeal, reverses the judgment of the court of first instance and renders a new judgment
• Where consideration has been paid in part under the pretext of advance interest or fees or the like
• All the property delivered by the victim
• The circumstance that the offense under paragraph (2) of Article 347 of the Criminal Act, and not the offense under paragraph (1) of the same Article, is established
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 1995. 3. 24. 선고 95도203 판결
Unofficial English translation
Supreme Court Decision 95Do203 decided March 24, 1995
Decisions referred to
[1] 대법원 2006. 6. 27. 선고 2005도4177 판결(공2006하, 1453) / [2] 대법원 1995. 3. 24. 선고 95도203 판결(공1995상, 1786), 대법원 2000. 7. 7. 선고 2000도1899 판결(공2000하, 1911) / [3] 대법원 2005. 4. 29. 선고 2005도741 판결(공2005상, 897)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
In fraud under Article 347 paragraph (2), where a pecuniary benefit rather than property is obtained, must the entirety of the gain, without deducting the partially paid consideration, also be regarded as the amount of gain under the Act on the Aggravated Punishment, etc. of Specific Economic Crimes?
If the method of calculating the amount of gain under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes is amended, or if Supreme Court precedent on the deduction of consideration changes, 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
When compared with an independent reading by another line of AI (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”
Since the original text sets out general propositions concerning procedural unlawfulness and the amount defrauded and dismisses the final appeal, the first may be classified as application to the case, while the independent may be classified as centered on general decision elements.
재물편취를 내용으로 하는 사기죄에서 선이자나 수수료 등의 명목으로 대가가 일부 지급된 경우, 그 편취액(=피해자로부터 교부받은 재물 전부)Axis 8 (Open question and revisit condition): Primary “In fraud under Article 347 paragraph (2), where a pecuniary benefit rather than property is obtained, must the entirety of the gain, without deducting the partially paid consideration, also be regarded as the amount of gain under the Act on the Aggravated Punishment, etc. of Specific Economic Crimes?” vs Independent “In the course of rendering judgment again after reversal ex officio, is omission of a separate holding permitted even where the grounds of appeal were not in fact examined?”
The first asks whether, in gain-based fraud as well, the amount of gain for aggravated punishment is calculated without deducting the consideration, while the independent asks whether a separate holding may be omitted even where the grounds of appeal were not actually examined.
재물편취를 내용으로 하는 사기죄에서 선이자나 수수료 등의 명목으로 대가가 일부 지급된 경우, 그 편취액Raw 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 (Daegu High Court Judgment 2016No31, 2017No141 decided June 22, 2017) reversed, in both first instance judgments, all of the guilty portions and again determined the sentence, on the ground of consolidated proceedings and partial amendment of the indictment, and applying Article 3 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, found each of the charged facts of violation of that Act (fraud) guilty. It did not separately set out whether the grounds of appeal contesting the defendant's intent and the like were meritorious.
Supreme Court standard: The Supreme Court held that because the merits of the grounds of appeal must be regarded as having been adjudicated in the course of reversal ex officio, there was no omission of holding, and that the court below had proceeded on the established legal principle that the amount defrauded is the entirety of the property delivered. It held that the offenses under Article 347 paragraph (1) and paragraph (2) carry the same statutory penalty and thus had no effect on the outcome of the judgment, accepted the determination of the court below as it was, and dismissed the final appeal.
Distinguishing conditions
- Cases where only the obtaining of a pecuniary benefit, rather than the delivery of property through deception, is at issue, and the method of calculating the amount of gain is separately contested
- Where the record shows that the appellate court did not examine at all the grounds of appeal contesting the charged facts for reasons unrelated to the grounds for reversal ex officio
- Where, if a different statutory provision were applied, the statutory penalty would differ so as to affect the outcome of the judgment
Record verification notes
Before asserting the same conclusion, it is first necessary to check whether what the victim delivered was property, whether the advance interest or fees paid were consideration for a separate ordinary transaction unrelated to the deception, and whether the appellate court in fact examined the grounds of appeal together.
From the official text
Points at issue
[1] 항소심이 항소이유에 포함되지 아니한 사유를 직권으로 심리하여 제1심판결을 파기하고 다시 판결하는 경우, 공소사실을 다투는 항소이유에 대한 판단을 따로 설시하지 아니한 것이 위법한지 여부(소극) [2] 재물편취를 내용으로 하는 사기죄에서 선이자나 수수료 등의 명목으로 대가가 일부 지급된 경우, 그 편취액(=피해자로부터 교부받은 재물 전부) [3] 사기범행의 공소사실에 대하여 형법 제347조 제1항의 죄가 아닌 같은 조 제2항의 죄가 성립한다는 사정이 판결 결과에 영향을 미치는 사유에 해당하는지 여부(소극)
Unofficial English translation
[1] Whether it is unlawful for the appellate court, when it ex officio examines grounds not included in the grounds of appeal, reverses the judgment of the court of first instance and renders a new judgment, not to state separately its determination on the grounds of appeal contesting the facts charged (negative) [2] In the offense of fraud involving the taking of property, where consideration has been paid in part under the pretext of advance interest or fees or the like, the amount taken (= all the property delivered by the victim) [3] Whether the circumstance that, with respect to the facts charged of a fraudulent act, the offense under paragraph (2) of Article 347 of the Criminal Act, and not the offense under paragraph (1) of the same Article, is established, constitutes a ground affecting the outcome of the judgment (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 기각한다.
Unofficial English translation
The appeal is dismissed.
Provisions referred to
[1] 형사소송법 제364조, 제369조, 제383조 제1호 [2] 형법 제347조 [3] 형법 제347조, 형사소송법 제383조 제1호
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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