(영문) 서울중앙지방법원 2017.5.11. 선고 2017고합87 판결

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가.특정경제범죄가중처벌등에관한법률위반(사기)나.사기

Cases

2017Gohap87, 242(combined)

(a) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes;

(b) Fraud;

Defendant

Prosecutor

Red, Kim Ho-ho (criminals) and Kim Jung-ho (trials)

Defense Counsel

Attorney B (Korean National Assembly)

Imposition of Judgment

May 11, 2017

Text

A defendant shall be punished by imprisonment for not less than three years and six months.

Reasons

Criminal facts

"2017 Highly 87"

【Criminal Power】

On October 7, 2010, the Defendant was sentenced to 8 months of imprisonment for violating the Punishment of Tax Evaders Act at the Busan District Court on October 7, 2010.

【Criminal Facts】

1. Frauds related to the tax investigation;

On November 2012, the Defendant made a false statement to the effect that “D”, which was known to the victim C while engaging in usual cargo transport brokerage in a restaurant in Incheon's trade name, was subject to a tax investigation, and that deposit is necessary to prove the amount of KRW 14 million, which is the transaction performance of the previous year. The Defendant made a false statement to the effect that “I will return money again after the completion of the tax investigation at the face of deposit.”

However, the defendant did not have any particular property, and there was no intention or ability to repay the money borrowed from the victim.

Ultimately, around November 20, 2012, the Defendant, by deceiving the victim as such, received KRW 600,000 from the foreign exchange bank account (Account Number: E) under the name of the Defendant from the victim, and acquired KRW 15,000 in total from the victim 1 to December 5, 2012 as shown in the attached Table 1 (victim C) to 19, as shown in the attached Table 1 (victim C) from around the above time to December 5, 2012.

2. Frauds related to the additional tax investigation;

Around December 2012, the Defendant made a false statement to the effect that “The Defendant would pay additional money to the said victim as it comes to the end of the deposit of the said additional money because the tax investigation was not completed.”

However, the defendant did not have any particular property, and there was no intention or ability to repay the money borrowed from the victim.

Ultimately, the Defendant, as described in the attached Table 1 (victim C) from around December 6, 2012, by deceiving the victim, received KRW 1,500,00 from the victim to the above account under the name of the Defendant, and received KRW 1,50,00 from the victim on December 6, 2012, and obtained KRW 59,228,50 in total from the victim on 39 occasions, as described in the attached Table 1 (victim C) from around the above time to February 22, 2013.

3. Frauds related to criminal cases;

Around March 2013, the Defendant continued to engage in a criminal investigation and was charged with a fine of KRW 80,000,000 for the above victim. When a fine is imposed, the Defendant made a false statement to the effect that “the money should be refunded to the head of the Tong.”

However, the defendant did not have any particular property, and there was no intention or ability to repay the money borrowed from the victim.

Ultimately, the Defendant, as described in the attached Table 1 (victim C) between around March 9, 2013 and around December 30, 2013, by deceiving the victim as such, received KRW 400,000 from the victim’s account under the name of the Defendant and received KRW 400,00 from the victim, and acquired it by deceptioning KRW 92,420,000 in total over 47 times from the victim, as described in the attached Table 1 (victim C) from around the above time to December 30, 2013.

4. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes;

Around January 2014, the Defendant made a false statement to the effect that “the money received from the Defendant is all deposited in the court.” The Defendant borrowed money to the effect that “the money should be claimed.”

However, the defendant did not have any particular property, and there was no intention or ability to repay the money borrowed from the victim.

Ultimately, the Defendant, as described in the attached Table 1(C) from around January 2, 2014, by deceiving the victim, received KRW 2,000,000 from the victim’s account in the name of the Defendant, and acquired KRW 79,321,00 on a total amount of 295 occasions from the victim as stated in the attached Table 1(C) to June 19, 2016, as stated in the attached Table 1(C) from around the above time to June 19, 2016.

5. Frauds in connection with cargo transport;

On August 21, 2016, the Defendant posted the contents of “Seoul Maga, 50,000 won and toys” on the “original call bulletin board,” which is a mobile cargo brokerage brokerage brokerage, in the “original call bulletin board,” and the Defendant made a false statement to the effect that “The Defendant would give 50,000 won for the delivery of toys from the Gyeonggisan to the Magwon-dong, Seoul, with the victim’s telephone call when the victim F expressed his intent to transport the goods through the above fishing call.”

However, the Defendant had no particular property, and had been in arrears with a large amount of debt from several lending companies, and had been used to repay the transport expenses received from the owner of the goods as a bond, and there was no intention or ability to pay the transport expenses agreed upon even if the said victim transported the goods with the above content.

As such, the Defendant: (a) obtained pecuniary benefits equivalent to the same amount from 78 victims to 16,25,000 won in total from 78 victims during the period from around the above time to November 2, 2016, including the acquisition of pecuniary benefits equivalent to the same amount by deceiving the victim and allowing the victim to transport cargo; and (b) not paying the transport expense, as indicated in attached Table 2 (victim 78).

“2017Gohap242

1. On September 7, 2016, the Defendant posted a false statement to the effect that “The Defendant would call the victim to transport the freight through the aforesaid fish rink and would bring the mushroom 230,000 won if he/she had transported the freight from the Gangnam Gangnam-do to the Sungnam-dong, a mobile freight brokerage brokerage frown-dong,” on the “original call bulletin board”, and “The Defendant would bring the Defendant to KRW 230,000,000 if he/she would transport the freight through the aforesaid fish rink.”

However, the Defendant did not have any particular property, and was in arrears with a large amount of debt from several lending companies, and was used to repay the transport expenses received from the owner of the goods with the bonds. However, the above victim did not have any intent or ability to pay the transport expenses agreed upon even if transporting the goods with the above content.

Nevertheless, the Defendant, by deceiving the victim as above, had the victim carry out cargo transport and did not pay the transport cost of KRW 230,000,000.

2. On September 7, 2016, the Defendant posted a notice on the “original call” bulletin board, which is a mobile cargo brokerage brokerage, of the content that the Defendant “original call,” 110,000 won, for the purpose of sending off the petition from the Gangnam-gu Doro, Gangnam-gu, Seoul. The Defendant made a false statement to the effect that, as the said victim expressed his intent to transport the freight through the above fish fry, the Defendant called the victim to “on the phone, 110,000 won, for the transport of the event goods from the Gangnam-gu, Seoul to the Cheong-si, Chungcheongnam-si, Chungcheongnam-do.”

However, the defendant did not have the intention or ability to pay the transport cost agreed to by the victim as stated in Paragraph 1.

Nevertheless, the Defendant, by deceiving the victim as above, had the victim carry a cargo transport and had the victim do so, acquired pecuniary benefits equivalent to the same amount in a manner that does not pay transportation cost of KRW 110,000.

Summary of Evidence

"2017Gohap87 / [the points of subparagraphs 1 through 4 in the market];

1. Defendant's legal statement;

1. Statement of amnesty against C;

1. A statement of bank transactions, 70 million won notarial deed, a statement of bank transactions from November to December 2013, 2012, a statement of text between the criminal suspect and the complainants, a statement of bank transactions from around November 2012 to around December 2013, a statement of intent between the criminal suspect and the complainants, a statement of bank transactions from around June 2014 to around June 2016, a certificate of promissorysory note with KRW 80 million, a certificate of loan with KRW 110 million, each notarial deed, a statement of intent forwarded by the complainant to the criminal suspect (a statement of intent to make a loan for consumption from around June 2016).

[No. 5]

1. Defendant's legal statement;

1.Each explanatory statement of H, I, J, K, L, M, N, P, Q, Q, S, T, U, V, W, X, and Y

1. Each written statement of the Z, AA, AB, AC, AD, AE, F, AF, AH, AI, AJ, AK, AL, AM,N, and AO;

1. Each complaint filed by AP, Q, AR, AS, ATS, AU, AV, and AW;

1. AX accusation;

1. National examinations of the AY, Z, BA, BB, BC, BD, and BF;

1. Each investigation report (the sequence 108, 114, 116 of the evidence list);

1. Full certificate of the registered matters of BG Co., Ltd., suspect A NICE Evaluation Information Co., Ltd., BG's account transaction statement, BG's account transaction statement, BG's account transaction statement, BG's account transaction statement;

1. The data on each source call display, each tax invoice, the dispatch details, each mobile phone transport brokerage data, each mobile phone transport brokerage data, each data on mobile phone transport brokerage, each electronic tax invoice, the details of failure to pay the BG transport expenses, the detailed statement of transactions, the copy of the BG passbook, each copy of the BG freight transfer fee, the electronic tax invoice, etc., and a certificate of measurement;

【Prior Records at the Time of Sales】

1. Current status of confinement by individual and seven cases of judgment; and

“2017Gohap242

1. Defendant's legal statement;

1. The statement of resignation concerning G;

1. Other closure photographs of a cargo transport pet system and a text message course photograph;

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347(1)201 of the Criminal Act, Article 347(1)201 of the Criminal Act, Article 347(1) of each Criminal Act (as a whole, Article 4 of the Criminal Act), Article 347(1) (Article 347(1) through 3 and 5 of the Criminal Act, Article 1 and 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 1 and 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 2017

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act (As there is a criminal record of the violation of the Punishment of Tax Evaders Act in the market, each crime of fraud is committed against the violation of Articles 1 through 3 of the Decision 2017 Gohap87)

1. Aggravation for concurrent crimes;

Article 37 (Aggravation of Concurrent Punishment of Specific Economic Crimes (Fraud) and Article 38 (1) 2 and Article 50 of the Criminal Act

Reasons for sentencing

1. The scope of applicable sentences by law: Imprisonment for not less than three years nor more than 45 years;

2. Scope of recommendations according to the sentencing criteria; and

[Determination of Punishment] Fraud, General Fraud, Type 3 (at least 500 million won, less than 5 billion won)

[Special Convicts]

[Scope of Recommendation] Three to Six years of imprisonment (Basic Area)

3. Determination of sentence;

Considering the fact that the Defendant received a large amount of money from the victim C for expenses or deposit money in connection with the tax investigation, acquired it by fraud, and repeatedly committed each of the instant frauds against many unspecified victims who are the trucking business operator, the Defendant did not know of the crime during the period of repeated offense, and committed each of the crimes listed in Articles 1 through 3 of the judgment of 2017 Height87 against the victim C without being aware of it, the Defendant had the history of punishing the same crime, and the damage to some victims, including the victim C, is not recovered, the Defendant’s criminal liability is not easy.

However, considering the fact that the defendant recognized his mistake and reflects, the fact that the defendant compensated the victims who are majority of the cargo transport business operators, the defendant's health conditions are not good due to congenital disorder, the defendant's age, character and conduct and environment, motive, means and consequence of the crime, and other various sentencing conditions specified in the arguments of this case, such as the circumstances after the crime, etc., the punishment shall be determined as ordered.

It is so decided as per Disposition for the above reasons.

Judges

For the presiding judge or judge;

The same judge's identity

Judges Lee Young-young

Note tin

1) Attached Table 1 No. 156 of the List of Offenses 156 appears to be a clerical error in the phrase " June 3, 2015" (the investigative record 1078 pages).

The â€˜ August 8, 2014' of the same table 177 seems to be the clerical error in August 6, 2014 (the investigative record 1065 pages).

In May 9, 2016, "No. 393" appears to be a clerical error in June 9, 2015 (Investigative Records 1078 pages).

2) Attached Table 2 No. 70 of "No. 70" on October 8, 2016 appears to be a clerical error of "No. 8, 2016" (No. 228 pages of investigation records).

3) Since it is the case of concurrent crimes of the same kind, the type and the recommended area were determined on the basis of the aggregate amount corresponding to the single comprehensive crime.

Attached Form

A person shall be appointed.

참조조문

-조세범 처벌법

-특정경제범죄 가중처벌 등에 관한 법률

-특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항 제2호