(영문) 서울중앙지방법원 2019.1.17. 선고 2018고합1017 판결

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특정경제범죄가중처벌등에관한법률위반(사기),사기,배상명령신청

Cases

2018Gohap1017 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud);

Fraud

2018 early 2817, 2820, 2821, 2823, 2835, 2836, 2837, 2851, 2852

Application for remedy order

Defendant

Prosecutor

The oral (prosecutions) and the ruptures (public trials)

Defense Counsel

Law Firm Two others

Attorney Kim Young-jin

Applicant for Compensation

1. B

2. C

3. D.

4. E.

5. F;

6. G.

7. H;

8. I

9. J;

Imposition of Judgment

January 17, 2019

Text

The defendant shall be exempted from punishment.

Each application for compensation filed by B, C, D, E, F, G, H, I, and J shall be dismissed in entirety.

Reasons

Criminal History Office

【Criminal Power, etc.】

On August 10, 2017, the Defendant was sentenced to six years of imprisonment for fraud, etc. at the Seoul Central District Court on March 29, 2018, and the judgment became final and conclusive on March 29, 2018. On December 18, 2018, the Seoul High Court sentenced six years of imprisonment with labor for the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

【Criminal Facts】

The defendant is a person who was the representative of the Gangnam-gu apartment P, Gangnam-gu, Seoul (hereinafter referred to as "the research institute of this case") and the head of the N branch of the N branch of the Gangnam-gu, Seoul (hereinafter referred to as "the church of this case") and the representative of the Q2 Research Institute in the Gangnam-gu, Seoul.

The Defendant, one of the facts at the above church and research institutes, etc., did not have invested in shares or made high profits through stock investment in the venture business, and did not have any intended fact that the said church and research institute had invested in or invested in the venture business, but did not intend to list the venture business, the Defendant, as if he would raise high profits through stock investment or make an investment in the venture business with a high possibility of listing and stock price increase, received money from the believers of the church as if he would make an investment, received the money as if he would raise high profits through stock investment, and received the money as if he would bring about a high interest or profit, and received the money from the previous investors of the church or their members of the church by paying interest from 1% to 4% per month, and received money from the newly invested funds, and received money from them

1. Fraud against the victim C, J, D, I, F, B, or H;

On August 4, 2009, the Defendant stated in the instant church that “I would make an investment because I would like to make a high profit by investing shares according to the credit of N.B. When making an investment, I would guarantee the principal of 50% at the maturity of 10 years and pay the 4% profit per month.”

However, in fact, the defendant did not have the ability to guarantee high-income from investing in stocks, and even if he received money from the above victim, he would be able to avoid returning, such as paying money to other investors' profits.

As above, as shown in Table 1 of Crimes List 1 from August 4, 2009 to November 16, 2016, the Defendant deceptioned the victim C and received a total of KRW 341,945,000 from the victim C in cash or transferred it to the account used by the Defendant for investment. Other crimes table 2 (the sum of the victim J, damage amount of KRW 50,000,000) of the daily crimes list 3 (victim D, damage amount of KRW 134,440,00), daily crimes list 4 (the sum of the victims I, total of KRW 208,00,00,000), list 6 (victim amount of damage amount of KRW 340,300,00), list of crimes (the sum of the victims, total of KRW 300,000,000, KRW 800,000, and KRW 300,000,000).

Accordingly, the defendant acquired money from victims respectively.

2. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against victims G and E;

On May 2, 2011, the Defendant delivered the instant church to the victim G through the victim C, etc. to the same purport as the above paragraph 1.

However, in fact, the defendant did not have the ability to guarantee high profits by investing in stocks, and even if he received money from the victim, he would be able to avoid return, such as paying the money to other investors' profits.

As above, the Defendant: (a) deceiving the victim G and received totaling KRW 979,70,000 from May 2, 201 to September 2, 2016, totaling KRW 31 times from May 2, 2011 to September 2, 2016 from the victim G as investment money; (b) deceiving the victim E by the same method; and (c) was granted KRW 517,00,000 in total over 25 times from July 6, 2015 to October 20, 2016, as shown in attached Table 7.

Accordingly, the defendant acquired money from victims respectively.

Summary of Evidence

1. Partial statement of the defendant;

1. C’s legal statement;

1. A protocol of examination of part of the defendant by prosecution;

1. Statement made to C and I by the police;

1. Details of each account (No. 70, 71 No. 50);

1. Previous records: Criminal records and investigation reports (written judgments and accompanying documents);

Application of Statutes

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

Each of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 15256, Dec. 19, 2017); Article 3(1)2 of the Criminal Act; Article 347(1) of the Criminal Act (including fraud againstG and E; and each victim); Article 347(1) of the Criminal Act (including fraud against the victims of money; choice of imprisonment, inclusive, for each victim)

1. Concurrent crimes and exemption from punishment;

Article 37 (latter part) and Article 39 (1) of the Criminal Act (the crime of this case is included in the criminal records on which judgment has become final and conclusive along with the crimes on which judgment has become final and conclusive. The defendant was sentenced to six years of imprisonment through the research institute of this case with respect to the act of receiving investment funds of approximately KRW 2 billion from the church believerss by fraud, etc. This case is a crime committed in the same way during the same period as the above case in which judgment has become final and conclusive. Meanwhile, the defendant is a crime committed in the same way as the above case in which judgment has become final and conclusive. Meanwhile, in addition to the above case in which judgment has become final and conclusive, the defendant was sentenced to six years of imprisonment with prison labor in the appellate court (Seoul High Court 2018No397) on December 18, 2018 and filed an appeal against other victims. It seems that there is no possibility that the sentence will be changed considering the circumstances that the defendant led to confession of all crimes and appealed only by unfair sentencing. In light of the above circumstances, the above circumstances are more exempt from punishment.

[Reference, the above judgment becomes final and conclusive, and the sum of the amount of the fraud of this case and this case, which was sentenced by the appellate court on December 18, 2018, are approximately KRW 8.1 billion, and where the above three cases are prosecuted at once, the recommended sentence according to the sentencing guidelines shall be more than four years but not more than nine years when the sentencing guidelines are based only on the fraud for which the sentencing guidelines are established (the 1-stage increase in the type of fraud as a result of adding up the same kind of competition in accordance with the teaching criteria. As such, the lower limit of 1/3 shall be mitigated from the sentencing standards for the aggravated area between 5 billion won and 30 billion won among general fraud)]

1. Dismissal of an application for compensation order;

According to Articles 32(1)1 and 26(1) of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings (Article 26(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings), a victim shall file an application for compensation before the closure of pleadings at the court of first instance or the court of second instance. However, according to the records, each of the instant applications for compensation order is clearly filed on December 1, 2018 or December 13, 2018, all of which were after the closing of pleadings. Thus, each of the applications for compensation order filed by each applicant for compensation is unlawful and rejected).

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

The crime of fraud against other victims is recognized. However, from January 201 to February 2017, C, with the Defendant, engaged in an act of fund-raising without permission from January 2010 to February 2017, and engaged in an investment and making an amount of profit calculated by calculating profits to investors. It was well aware that the Defendant was leveled to pay profits to investors in the way of “irrehion” rather than actually paying profits by stock investment. Therefore, C cannot be deemed as deceiving the Defendant.

2. Determination

In light of the following facts and circumstances acknowledged by the evidence duly adopted and examined by this court, it is reasonable to view that C had paid investment money to the Defendant with the belief that the Defendant would raise high profits through stock investment without knowing the fact that the Defendant would pay the investors a return method, and thus, it is recognized that C had induced C. The argument by the Defendant and the defense counsel is not acceptable.

① The content of the Defendant’s investment business through the instant research institute is that the Defendant received the reduction of gender and guidance from the Defendant as a pastor and raises profits from the investment of stocks, and allocate profits therefrom to the believers. Accordingly, investors comprised of church believers believed the Defendant’s words of creating high profits by mediating a religious belief.

C From 204 to 2004, he was aware of the Defendant as his wife’s husband’s wife, left from the dental college, which was guaranteed by the Defendant’s solicitation, and was in a relationship with the Defendant’s in depth and with the Defendant’s depth to the extent that he would have been able to go to the new school, and that the Defendant’s church did not have any other social experience in age 28 at the time when he first worked at the research institute of this case in 2010. In light of other faith, it seems that the Defendant believed that he was able to create high profits on the basis of a deep trust between the religious trial and the Defendant as well as a deep trust.

② In order to recognize that C had a relationship between the Defendant and the instant fraud crime, it should have been aware that the Defendant was unable to obtain profits more than the return rate promised to the victims through the management of investment funds, and that the profits from the investors are being paid out of the new investors’ investment funds, i.e., the payment of profits by the means of return prevention.

However, C does not appear to have been directly involved in the management of the account, such as the payment of investment money and the payment of proceeds, while managing the details of the investment money to be paid to the relevant investor in the file, by analyzing the difference between the comprehensive share price index and the specific share items and reporting them to the mail, text messages (the content thereof is nothing more than the extent of arranging trends, such as the increase and decline of share price, trading volume, the proportion of foreign and institution investors, etc.) according to the direction of the Defendant. It appears that C was in charge of ancillary business, such as managing the details of the investment money to be paid to some investors in the file, and reporting it to the relevant investor. It does not seem to have been directly involved in the management of the account, even though it was aware that the Defendant was involved in the act

The stock transaction was conducted through a computer located in the Defendant’s room, the representative of the instant research institute, and most of the accounts that paid investment money and that received revenue were accounts in the Defendant’s wife name, and the remaining accounts were also accounts in the name of the Defendant or the church. The account books and files in which the details of the investment money of the entire investors and the details of the calculation of the profits to be paid to the relevant investors were kept in the R’s room where the research institute was in charge of the head of the instant research institute.

On the other hand, C worked together with other employees in the ward, and only the details of investment funds of some investors were kept in the computer used by C. In accordance with various evidence, including text messages sent and received by the Defendant and C, R and S (No. 1st 409 pages), and U’s statement (No. 412 pages of investigation records) worked at the instant research institute, it seems that A had a relationship unilaterally directed C.

③ A first invested in the instant research institute on August 4, 2009, and from January 201, C went to work at the instant research institute from around January 201. A retired as a matter of marriage preparation around August 201, but returned to the original state around August 2012. On the other hand, the instant research institute was already established around October 2008, which was one year before the date of the first investment by C (Evidence No. 74), and all duties were performed for one year during which C retired.

④ From August 4, 2009 to November 16, 2016, C consistently invested (C has received a loan from a lending company to make investments). However, upon the occurrence of the crime of this case, the crime of this case led to the occurrence of failure to recover the principal amount of KRW 00 million even if the proceeds received are considered as the principal amount to be recovered. If C was aware of the fact that the investment project of this case was operated in a manner that does not pay profits due to stock investment, etc., and is operated in a manner that prevents return, it was not intended to make investments to his/her relatives and relatives, or relatives. At least after September 20, 2016, the search and seizure of the research institute of this case conducted the search and seizure of the research institute of this case, the research institute suspended investment and sought measures to escape himself/herself from damages, such as principal recovery, etc., and in fact, it continued to invest his/her own money by November 16, 2016.

⑤ 피고인은 2013년 말경부터 벤처기업에 투자하는 상품을 만들어 투자자를 모집하였고, 2015년경에는 엔터테인먼트 사업을 투자 종목으로 선정하였다. 이후 실제로 연예계 관계자들과 접촉하였으며 엔터테인먼트 회사를 설립하고 콘서트를 개최하기도 하는 등 사업의 실체가 어느 정도는 존재하였던 것으로 보인다. 이 사건 연구소 내에서 C의 지위나 역할에 비추어 볼 때, C은 피고인의 지시를 수행하는 업무를 담당했던 것에 불과한 것으로 보일 뿐 주도적으로 사업을 기획하거나 추진할 수 있는 능력이 있었다고 보이지 않는다. 따라서 C이 피고인과 벤처사업 또는 엔터테인먼트 사업에 투자하는 시늉만 내고 이를 빙자해 투자금을 편취하려는 계획을 공모하였을 것으로 보기도 어렵다.

6) The Defendant’s statement is consistent, specific, and consistent with the relevant evidence from the investigative agency to this court. On the other hand, the Defendant’s statement is generally falling short of the existence of body, is merely an unilateral criticism of C, and it is difficult to view that the Defendant’s statement itself is highly reliable because there are many parts inconsistent with that of the statement.

On the other hand, the defendant asserts that "C was a core point to the defendant himself/herself, such as substantially leading the management of the stock investment and the deposit and withdrawal account of the research institute in this case," and on the other hand, the head office opened the door today, and the password of the computer in the head office was known only to himself/herself. OTP of the deposit and withdrawal account was also kept directly by himself/herself, and when R, C, etc. transfers money from the deposit and withdrawal account of the investment deposit, it was stated that "the identification number of the OTP was cut directly from the next side (843 pages of the investigation record) and it is difficult to obtain it by itself because it is not consistent with the front and rear.

On the other hand, the defendant argued that he should not be involved in the work of the church or research institute, and that R was the center of his own, and that it was entirely in accordance with this. However, on the other hand, R was aware that R was carrying out the work of transferring the church and missionary work with the computer of the head of the headquarters, and R was aware that R was carrying out the work of the church by using the computer of the head of the headquarters and it was recognized that R was carrying out the work of the church by using the computer of the research institute. Furthermore, as regards the details of the investment money seized in the head of the headquarters and the different principles related to the payment of the profits, the "h was arranged to C by a computer", stating that R was involved directly in the management of the investment money (Article 1843 of Investigation Records).

After having known of the fact that C is operating in the form of return at the instant research institute, the Defendant threatened the Defendant. C subsequently proposed that R, with the intent to avoid its responsibility in preparation for the occurrence of the instant crime, which would not be involved in the research institute’s failure to take part in the event of the occurrence of the instant crime, was seated with the head of the headquarters, and R’s computer stated that the R stored all the data on the details of investment and stored only some of the details of investment on its own computer. However, there is no circumstance or evidence supporting the instant assertion.

The Defendant asserted that the management of investment funds was complicated and could not be headed C, and that the investment of shares is an expert to the extent of the investment-related certificate, and the Defendant was entirely aware of C. However, the instant research institute has been operated without interruptions during the period before or after C’s leave of absence. The details of the investment funds were arranged, calculation of earnings, etc. without any special knowledge, and it is a business that can sufficiently be performed if the investment ability is limited to the degree of production capacity, such as minor accounting, etc., and C stated that it obtained a certificate of qualification to enter the management graduate school, and there is physical evidence to support the management graduate school (No. 374-383 pages of investigation record). In light of the above, it is difficult to believe the instant assertion.

Judges

The presiding judge, the highest judge;

Judges Gin-type money

Judges Shin Jae-ho

Attached Form

A person shall be appointed.

참조조문

-소송촉진 등에 관한 특례법 제26조 제1항

-소송촉진 등에 관한 특례법 제32조 제1항 제1호

-특정경제범죄 가중처벌 등에 관한 법률

-특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항 제2호

-형법 제37조

-형법 제39조 제1항

-형법 제347조 제1항