Rational interpretation of the concept of ‘profit amount’ in Article 3, Paragraph 1 of the 「Act on the Aggravated Punishment, etc. of Specific Economic Crimes」
Authors:   The Institute of Legal Studies, Kyunghee University, Lee Hak-Chul 
Published: October 2023

Article 3, Paragraph 1 of the 「Act on the Aggravated Punishment, etc. of Specific Economic Crimes; the Act」 should be punished based on the profit amount. Therefore, profit amount should be calculated strictly and carefully as it corresponds to the factors that determine the applicable law and legal sentence as the basis for punishment. There is a discussion on the systematic status of the profit amount, and there is a view that it is a constituent element only when the Act is applied, and regardless of whether the Act is applied, the precedent is a constituent element only. Given that the profit amount itself is the result of a property crime, and that the Act stipulates that the gain exceeds the standard amount as a requirement for aggravated payment, it is reasonable to understand only “whether the gain is 500 million won or more”.
On the other hand, as the Act stipulates the value of the property or property profit acquired as the profit amount, there is a problem that the value of the property or property profit, which is the object of the property crime, is inconsistent with the value of the profit actually acquired by the actor due to the crime. The theory mainly suggested the real value theory, which requires the calculation standard for the amount of profit to be evaluated as the value of the gain actually acquired, as a solution, and the precedent also adopted the position of the real value theory in some cases. However, the above problem is based on the fact that the Act prescribes the value of property or property profit acquired as the profit amount, and precedents have already been interpreted to achieve the principle of balance of criminal punishment or accountability to the maximum extent possible within the statutory language and text, presenting the theory of real value as the basis for calculating the amount of profit is not a fundamental measure to solve the problem.
Therefore, in order to solve the above problem, it is necessary to conceptually distinguish the value of acquired property or property profits and the profit amount. Since property and property profits are objects of property crimes, the “value of property or property profits” is purely identified in terms of objects of property crimes, and profit amount is separately understood as the value of gains (earned) as a result of property crimes. If the profit amount and the value of property or property profits are conceptually distinguished, the applicable laws (the Act or criminal law), and statutory sentences that are the basis for punishment can be determined based on the results of profit amount. In addition, it is consistent with precedents and theories that identify “whether the gain exceeds 500 million won or 5 billion won” as an equivalent component of a specific property crime by determining the profit amount according to the criteria for calculating the profit amount.
Of course, criticism may be raised that the above interpretation theory is an interpretation that goes beyond the possible scope of legal text. Therefore, under the current Act, in order to apply the Criminal Act on the basis of balance of criminal punishment and accountability, Article 3 (1) of the Act’s “value of property or property profits” shall be interpreted within the limit of the profits amount acquired through actual profit, but ultimately, Article 3 (1) shall be amended to ensure that the Criminal Act is applied in accordance with balance of criminal punishment as well as accountability based on the profit amount obtained without any controversy.