On May 20, 2015, the Defendant made a false statement to the victim E, who was aware of it in the office of Gangnam-gu Seoul (hereinafter referred to as "D") in Gangnam-gu (hereinafter referred to as "D"), that "if he/she lends only KRW 30 million, he/she will use it to purchase the clothing unit and pay interest of 10% per month."

However, in fact, when paying a high interest, the company's financial situation was difficult to expand its business by excessively lending funds from the applicants, and the company's sales was unable to meet all kinds of expenses, such as employee's pay and repayment of borrowed money, etc., and it was thought that the company would not return the existing debt without purchasing the money from the victims, and thus, there was no intention or ability to pay the money even if it borrowed money from the victims.

The Defendant received KRW 30 million from the victim to the corporate bank account under the name of the Defendant and received KRW 1,769,09,000 in total from around August 5, 2016 to around 35 times, as indicated in the list of crimes, from around that time, from the victim to August 5, 2016. Accordingly, the Defendant received a total of KRW 1,769,09,000 from the victim to the corporate bank account under the name of the Defendant.

Summary of Evidence

1. The defendant's partial statement in the first protocol of trial;

1. Entry of E in the third protocol of trial, and entry of F in part of the third protocol of trial;

1. Partial statement of each police interrogation protocol against the accused;

1. Statement to E by the police;

1. A written complaint, a written petition, and a written statement prepared by E;

1. A report on investigation (calculated amount of damage);

1. Statement of transactions in each passbook (No. 2, 17, 23, and 25; hereinafter the same shall apply), certificate of loan, certificate of right transfer, contract, lease contract, business registration certificate, register of real estate register, copy of the register of real estate register, each case [No. 10 and 19], G investment proposal, certificate of balance, investment agreement, H P P Pamp, sheet of balance, certificate of balance, etc., debt sheet, value-added tax base certificate, and judgment;

Application of Statutes

Article 14 of the Act applicable to the crime

Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 15256, Dec. 19, 2017); Article 347(1)2 of the Criminal Act; and Article 347(1) of the Criminal Act (amended by Act No. 15256, Dec.

1. Summary of the defendant's defense counsel

A. The Defendant is anticipated to recover his/her business that he/she had run, and only borrowed funds from the victim, and there is no fact of deceiving the victim, and the Defendant does not borrow funds from the victim from the beginning with the intention of defraudation, such as repaying a total of one billion won to the victim.

B. Even if it is not so, it is not possible to recognize the intention of defraudation with respect to one billion won paid by the defendant to the victim, and this part must be excluded from the amount of defraudation.

2. Determination on the criminal intent of deception and deception

A. Relevant legal principles

1) The intent of the crime of defraudation, which is a subjective constituent element of the crime of fraud, shall be determined by comprehensively taking into account the objective circumstances, such as the financial history, environment, details and details of the crime before and after the crime, and the process of transaction execution, insofar as the defendant does not confession (see, e.g., Supreme Court Decision 2009Do5047, Sept. 10, 2009

2) The deception, which is a requirement for fraud, refers to all affirmative or passive acts that have a good faith and sincerity to observe each other in property transaction. It is sufficient to say that the deception does not necessarily require false indication as to the important part of a juristic act, but rather constitutes the basis of judgment for making an actor take a disposition of property which he/she wishes by omitting the other party into mistake (see, e.g., Supreme Court Decision 2011Do1856, Jan. 16, 2014).

B. Specific determination

In full view of the following circumstances acknowledged by the evidence duly adopted and investigated by this court, it can be sufficiently recognized that the defendant did not intend to use the funds for the original purpose of the victim, such as the purchase of clothes, and as if the business was normally conducted and there is no problem in paying the money, thereby deceiving the victim and deceiving him/her of funds from the victim.

1) The Defendant explained to the effect that the Defendant would expand the business by showing data on one’s own business and bring considerable profits to the victim. The victim, who had no expertise in the business explained by the Defendant, believed that the Defendant used the funds borrowed from the victim for the purpose of operating or expanding the business, and that the Defendant would not only receive the principal from the proceeds of the business, but also receive considerable interest. Such belief may be deemed to have become an important basis for determining that the victim was a lending of funds to the Defendant.

2) The victim continued to lend funds to the Defendant even for the purpose of collecting the principal which was not already repaid, rather than simply expecting to receive a high rate of interest from the beginning of the loan to a certain extent after the commencement of the lending of money to the Defendant. In this regard, the purpose and purpose of the loan that the Defendant is to use funds for a business in which considerable profits are expected to accrue from the Defendant’s lending of money to the Defendant is an important basis for the judgment on continuing the lending of funds to the victim.

3) However, the Defendant, who started to borrow funds from the victim around May 20, 2015, disbursed a large amount of monthly rent, employee salary, etc., by expanding D’s business, and did not meet the financial conditions, such as failure to repay debts owed to others. Furthermore, the amount of D’s sales from May 20, 2015 to August 5, 2016, which the victim lent to the Defendant, was merely KRW 167 million for the first half of 2015, KRW 30 million for the second half of 2015, KRW 248 million for the first half of 2016, KRW 442 million for the second half of 2016, and KRW 200 million for the second half of 2016, KRW 2000 for the second half of 2016, and KRW 42 million for the second half of 2016.

4) The Busan project explained by the defendant to the victim is "G project for the development of yachts, hotels, residential facilities, commercial facilities, etc. in Busan." In this regard, the defendant shows Pample to the victim in relation to this project and stated that "the defendant can pay money immediately because it has been almost all of the projects." However, the above project is not actually in progress and it is not a situation where the defendant can pay money borrowed from the victim. Further, the Chinese project explained to the victim is a branch office of Korea in China in the international sector of L, but its representative director was changed to the victim, and it is not possible for the defendant to explain the fact that the above project was completely suspended, and that there was no specific fact that the defendant is currently being 0 U.S. dollars to the extent that the defendant's investment had been made within 0 U.S. factories and 6 U.S. factories and 6 U.K. factories and 6 U.M. factories and 6 U.K. factories and 6 U.K. factories and 6 U.K. factories should be explainedn's.

5) From June 7, 2015 to June 7, 2015, the Defendant started business expansion and continued to return money from around the beginning. The Defendant stated to the effect that the Defendant began to borrow money from around the beginning to cope with the fact that there was a large amount of sales compared to the high-end maintenance, and that there was a situation in which the Defendant should take interest expenses and interest expenses. (Evidence No. 180, 181 of the record) The Defendant began business by lending money from the victim at a high interest rate as above, and the Defendant cannot pay a high interest on the Defendant’s business continuously, even though the Defendant’s business cannot pay a certain amount of money, it appears that the Defendant is unable to pay the Defendant’s debt to the victim.

6) The Defendant did not use funds borrowed from the victim for the purpose of operating or expanding his/her business, but used most of the borrowed funds for the purpose of using them for all other purposes, such as repayment of the principal and interest of the previous loan or repayment of the investment money, etc. within a short period of time (this also applies to the funds received at the initial stage of the instant crime, including the borrowed funds from May 20, 2015, which are the initial amount obtained by fraud). Although the Defendant appears to have used some of the funds borrowed from the victim for his/her business, the Defendant appears to have used them for the victim’s own business, it appears that the size of the funds disbursed is only small amount compared to the funds that the Defendant demanded to lend to the victim. Therefore, the Defendant’s intent of defraudation cannot be denied solely on the basis of such circumstances.

7) As seen earlier, the circumstance that a considerable profit accrued from the Defendant’s business and the expansion of business is expected to increase the profit therefrom is a very important basis for the victim’s lending of funds to the Defendant. As such, the victim did not have any sufficient ability to expand business due to the lack of economic conditions of the Defendant, and the Defendant did not intend to use the funds borrowed from the victim for its original purpose if he knew of the fact that he did not have any intention to use the funds borrowed from the victim for the original purpose, or did not continue to lend the funds for the purpose of recovering the existing borrowed funds.

3. Judgment on the assertion of the amount acquired through deception

In a crime of fraud, which aims at the deception of property, if there is a delivery of property by deception, it constitutes a crime of fraud by itself, thereby infringing on the property of the victim, and thus, it has been paid a considerable amount of money or there has been no damage to the whole property of the victim. Even if such money has not been affected by the establishment of a crime of fraud, even if the money has been partially paid in the crime of fraud, it shall be the whole property received, not the difference between the value of the property given from the victim and the price deducted from the value of the property (see, e.g., Supreme Court Decision 2006Do7470, Jan. 25, 2007). Since the defendant acquired funds in the name of the borrowed money from the victim in mind that he would prevent the return of existing debts, it shall not be said that even

Therefore, we cannot accept the above argument of the defendant and his defense counsel.

Reasons for sentencing

1. The scope of punishment by law;

Imprisonment with prison labor for not less than three years nor more than thirty years;

2. Scope of recommendations according to the sentencing criteria;

(a) Determination of types: General fraud (not less than 50 million won, but less than 5 billion won). (b) The scope of recommendation punishment: Imprisonment with prison labor for not less than 3 years but not more than 6 years (basic area);

3. Determination of sentence;

The following circumstances and the Defendant’s character, conduct, environment, motive and background of the crime, means and consequence of the crime, and all sentencing factors shown in the trial process of this case, including the circumstances before and after the crime, shall be determined as ordered.

○ Unfavorable Circumstances: The Defendant committed several acts of fraud against the victim several times over a considerable period of one year and two months with borrowed funds from the victim, and the amount of damage therefrom also exceeds KRW 1.7 billion. In light of the method of the Defendant’s criminal act, the period of the crime, and the amount of damage, etc., the crime of this case is very poor. The victim appears to have suffered a considerable economic and mental distress for a considerable period of time. The victim appears to have suffered considerable economic and mental harm due to the Defendant’s criminal act. The Defendant is not in good faith in the trial process of this court, such as the Defendant’s failure to faithfully engage in the trial process, and does not seem to have made efforts to recover the damage of the victim. Accordingly, the victim is sufficiently punished against the Defendant.

The favorable circumstances of ○○: The Defendant appears to have actually carried out the business of D in this case, and some of the funds borrowed from the victim appears to have been actually used for D’s business expenses. The Defendant appears to have paid a considerable portion of the principal and interest of the funds borrowed from the victim in the course of the instant crime and the amount of profit actually acquired in the course of the instant crime is less than the amount of the fraud recorded in the facts constituting the crime. The Defendant has no record of punishment other than one fine due to the violation of the Labor

Judges Lee Jong-soo

Judge Kang Han-soo

A person shall be appointed.