Open Decision Ledger · Economic crime
Calculation of the Amount Obtained by Fraud in Fraud Through False Progress Payment Claims, and Proof of the Amount of Damage in Breach of Trust Under the Act on the Aggravated Punishment, etc. of Specific Economic Crimes
Translated from the Korean original. Read the Korean
Supreme Court, Apr. 12, 2018, 2017Do21196 (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)(일부인정된죄명:사기·사기방조)·특정경제범죄가중처벌등에관한법률위반(배임)(일부인정된죄명:업무상배임)·배임수재·배임증재·특정범죄가중처벌등에관한법률위반(허위세금계산서교부등)·뇌물공여·뇌물수수·특정범죄가중처벌등에관한법률위반(뇌물)
Official text on the National Law Information Center
Question
Where work was carried out by a method other than the one in the contract and progress payments were claimed as though it had been carried out under the contract, is the amount obtained in fraud in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes the difference from the actual construction cost, or all the progress payments received?
Holding
Where an act of deception is of such a degree that it cannot be tolerated, in light of generally accepted social standards, as a means of exercising a right, the exercise of that right constitutes the offense of fraud, and even where consideration has been paid in part, the amount obtained by fraud is the entirety of the money received. The Supreme Court held that this legal principle applies equally to the offense of fraud in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, and determined that the entirety of the progress payments paid was the amount obtained by fraud. By contrast, with respect to the offense of breach of trust in violation of the same Act, the Court held that the occurrence of pecuniary damage and the amount thereof must be proved.
Points at issue, verbatim
금원 편취를 내용으로 하는 사기죄에서 대가가 일부 지급된 경우, 그 편취액(=교부받은 금원 전부)
Unofficial English translation
In the offense of fraud based on obtaining money by fraud, where a consideration has been paid in part, the amount obtained by fraud (= the entire sum of money delivered)
Disposition
Partly reversed and remanded Stated in the decision
이 부분 사건을 서울고등법원에 환송한다.
Unofficial English translation
This part of the case is remanded to the Seoul High Court.
Form of the test
Existing test applied Read from the decision
위와 같은 사실을 앞에서 본 법리에 비추어 살펴보면
Unofficial English translation
Examining the facts as stated above in light of the legal principle examined earlier,
Factors
- 재산상 손해의 발생 및 그 액수에 관한 증명
- 기망행위를 수단으로 한 권리행사가 사기죄를 구성하는 경우
- 대가가 일부 지급된 경우, 그 편취액(=교부받은 금원 전부)
- 사기로 인한 특정경제범죄 가중처벌 등에 관한 법률 위반죄에서도 마찬가지인지 여부(적극)
Unofficial English translation
• proof of the occurrence of pecuniary loss and the amount thereof
• where the exercise of a right by means of an act of deception constitutes the offense of fraud
• where a consideration has been paid in part, the amount obtained by fraud (= the entire sum of money delivered)
• whether the same holds true for an offense of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes arising from fraud (affirmative)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2009. 1. 15. 선고 2008도6983 판결
Unofficial English translation
Supreme Court Decision 2008Do6983 decided January 15, 2009
Decisions referred to
[1] 대법원 2001. 11. 13. 선고 2001도3531 판결(공2002상, 122), 대법원 2012. 8. 30. 선고 2012도5220 판결 / [2] 대법원 1997. 10. 14. 선고 96도1405 판결(공1997하, 3551), 대법원 2002. 12. 24. 선고 2002도5085 판결, 대법원 2011. 11. 24. 선고 2010도15454 판결 / [3] 대법원 2007. 10. 11. 선고 2007도6012 판결, 대법원 2009. 1. 15. 선고 2008도6983 판결
Burden of proof
The prosecution Read from the decision
재산상 손해의 발생 및 그 액수에 관한 증명이 있어야 하는지 여부(적극)
Unofficial English translation
Whether proof of the occurrence of pecuniary loss and the amount thereof is required (affirmative)
Open question and revisit condition
Where construction under the contract method was carried out in part, where lies the boundary, in terms of the proportion of construction or the point in time, at which the act of deception remains within the degree that can be tolerated as a means of exercising a right and the amount obtained by fraud can therefore be limited to the difference?
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 precedents on the amount obtained by fraud under the offense of fraud are changed, this reading will be re-examined.
Cross-family AI independent reading & axis check
5 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
When compared with an independent reading in which another AI in the same series (GPT-6 Astra) read only the original text without seeing the primary reading, 5 of the 8 axes matched, and the readings diverged on the fourth axis (Form of the test), the seventh axis (Burden of proof), and the eighth axis (Open question and revisit condition).
Axis 4 (Form of the test): Primary “Existing test applied” vs Independent “Elements stated”
Because the Holdings state general standards for the establishment of fraud, the calculation of the amount obtained by fraud, and the proof of damage in breach of trust, while the disposition partly reverses and remands, the emphasis may differ between application to the facts and the statement of requirements.
업무상 배임행위를 특정경제범죄 가중처벌 등에 관한 법률 위반(배임)죄로 가중 처벌하기 위해서는 재산상 손해의 발생 및 그 액수에 관한 증명이 있어야 하는지 여부(적극)Axis 7 (Burden of proof): Primary “The prosecution” vs Independent “Not addressed”
Although the Holdings make clear the need to prove the occurrence of damage and the amount thereof, they do not specify who bears the burden of proof, so the primary reading may read it as the burden of the prosecution, while the independent reading may classify it as not expressly addressed.
재산상 손해의 발생 및 그 액수에 관한 증명이 있어야 하는지 여부(적극)Axis 8 (Open question and revisit condition): Primary “Where construction under the contract method was carried out in part, where lies the boundary, in terms of the proportion of construction or the point in time, at which the act of deception remains within the degree that can be tolerated as a means of exercising a right and the amount obtained by fraud can therefore be limited to the difference?” vs Independent “On remand, when the entirety of the progress payments is reflected as the amount obtained by fraud, how is each defendant's final sentence determined?”
The primary reading asks about the permissible scope of deception arising from partial construction and the possibility of limiting the amount obtained by fraud, while the independent reading asks about each defendant's final sentence on remand.
금원 편취를 내용으로 하는 사기죄에서 대가가 일부 지급된 경우, 그 편취액(=교부받은 금원 전부)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 it difficult to view the defendants as having intended from the outset to obtain the entire amount of the progress payments, and held that the substantive amount of gain was the amount of an unknown difference between the construction cost for the super wedge method and the actual excavation construction cost. As a result, finding the proof insufficient that the amount of gain was KRW 5 billion or more, or KRW 500 million or more, the court below found the defendants not guilty of fraud and breach of trust in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, and found them guilty only as joint principal offenders of the offense of fraud, of the offense of aiding and abetting fraud, and of the crime of occupational breach of trust.
Supreme Court standard: With respect to the breach of trust portion, the Supreme Court concurred in the conclusion of the court below that the proof of the amount of damage was insufficient. With respect to the fraud portion, however, the Court held that actual construction using the super wedge method was confined to an initial part of the work, and that the act of deceiving others into believing that construction contrary to the intent of the contract had been carried out in accordance with the contract was of such a degree that it cannot be tolerated, in light of generally accepted social standards, as a means of exercising a right. Accordingly, holding that the entire aggregate of progress payments paid, KRW 16,837,000,000, was the amount obtained by fraud, the Court found that the court below had misapprehended the legal principle concerning the calculation of the amount of gain, and reversed and remanded that portion.
Distinguishing conditions
- Cases where construction in accordance with the contract was carried out to a considerable extent and the act of deception remains within the degree that can be tolerated, in light of generally accepted social standards, as a means of exercising a right
- Cases where, as when aggravated punishment is imposed for occupational breach of trust rather than fraud, separate proof of the occurrence of pecuniary damage and the amount thereof is required
- Cases where, because the subject matter is the acquisition of a pecuniary benefit rather than the obtaining of money by fraud, the amount of gain must be calculated differently
Record verification notes
Before asserting that the entirety of the money received is the amount obtained by fraud, one must check whether the facts appearing in the record—such as the period and proportion of construction under the actual contract method, the record of equipment deployed, and the quantity of explosives used—sufficiently support an assessment that the act of deception as a whole is of such a degree that it cannot be tolerated as a means of exercising a right.
From the official text
Points at issue
[1] 업무상 배임행위를 특정경제범죄 가중처벌 등에 관한 법률 위반(배임)죄로 가중 처벌하기 위해서는 재산상 손해의 발생 및 그 액수에 관한 증명이 있어야 하는지 여부(적극) [2] 기망행위를 수단으로 한 권리행사가 사기죄를 구성하는 경우 [3] 금원 편취를 내용으로 하는 사기죄에서 대가가 일부 지급된 경우, 그 편취액(=교부받은 금원 전부) / 이는 사기로 인한 특정경제범죄 가중처벌 등에 관한 법률 위반죄에서도 마찬가지인지 여부(적극)
Unofficial English translation
[1] Whether proof of the occurrence of pecuniary loss and the amount thereof is required in order to impose aggravated punishment for an act of occupational breach of trust as an offense of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (breach of trust) (affirmative) [2] Where the exercise of a right by means of an act of deception constitutes the offense of fraud [3] In the offense of fraud based on obtaining money by fraud, where a consideration has been paid in part, the amount obtained by fraud (= the entire sum of money delivered) / whether the same holds true for an offense of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes arising from fraud (affirmative)
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
원심판결 중 피고인 1, 피고인 2에 대한 유죄 부분(이유무죄 부분 포함), 피고인 3, 피고인 4, 피고인 7, 피고인 9, 피고인 10, 피고인 11, 피고인 12에 대한 부분을 파기하고, 이 부분 사건을 서울고등법원에 환송한다. 검사의 피고인 1, 피고인 2에 대한 나머지 상고와 피고인 6에 대한 상고 및 피고인 5, 피고인 8, 피고인 13, 피고인 14, 피고인 15의 상고를 모두 기각한다.
Unofficial English translation
The parts of the judgment of the court below finding Defendant 1 and Defendant 2 guilty (including the parts not guilty as to the grounds), and the parts as to Defendant 3, Defendant 4, Defendant 7, Defendant 9, Defendant 10, Defendant 11, and Defendant 12, are reversed, and this part of the case is remanded to the Seoul High Court. All of the prosecutor's remaining final appeals against Defendant 1 and Defendant 2 and final appeal against Defendant 6, and the final appeals of Defendant 5, Defendant 8, Defendant 13, Defendant 14, and Defendant 15 are dismissed.
Provisions referred to
[1] 형법 제355조 제2항, 제356조, 특정경제범죄 가중처벌 등에 관한 법률 제3조, 형사소송법 제308조 [2] 형법 제347조 [3] 형법 제347조, 특정경제범죄 가중처벌 등에 관한 법률 제3조
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.
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