On January 18, 2018, the Defendant was sentenced to a suspended sentence of two years for criminal fraud at the Ulsan District Court on August 18, 2018, and the said judgment became final and conclusive on April 14, 2018.

“2018 Highest 648

The Defendant leased a building owned by the Korea 000 Mutual Aid Association in the Nam-gu Incheon, and operated the “Yinging-to-land of Ying Incheon Holdings”. On May 2016, the Defendant was in a situation in which the lease contract could be terminated at any time due to the aggravation of management at the time of around September, 2016, and due to the aggravation of management, the amount of KRW 170,000,000 corresponding to the rent and management fee for nine months could not be paid at any time.

1. Victims B;

On May 2, 2016, the Defendant, at around May 2, 2016, made a false statement to the said victim, “The money to be used in the business due to the current employee’s monthly salary, etc.” On the one-year loan of money, the Defendant would make a false statement to the said victim one hundred thousand won upon receipt of an application for wedding from customers while operating a wedding hall and operating a wedding hall.

However, there was no intention or ability to repay the borrowed money to the injured party according to the promise because the economic situation was difficult at the time and the management has deteriorated.

The Defendant, as such, by deceiving the victim, received KRW 50 million from the victim on the same day as the loan, under the pretext of the loan.

2. Victim c

On May 3, 2016, the Defendant entered into a service contract with the said victim to take exclusive pictures from May 3, 2016 to June 30, 2017.

However, since the above management has deteriorated at the time, there was no intention or ability to properly guarantee the contract term to the victim.

The Defendant, by deceiving the victim as such, received KRW 100 million from the victim on the same day as the contract deposit.

3. Victims D;

The victim entered into a service contract with the victim from November 21, 2016 to November 20, 2017 to operate an exclusive beauty room in the above wedding hall.

However, since the above management has deteriorated at the time, there was no intention or ability to properly guarantee the contract term to the victim.

As such, the Defendant, by deceiving the victim as such, received KRW 120 million from the victim on the same day as the contract deposit.

“2018 Highest 1651

From July 2013 to January 2017, the Defendant operated ○○○, 357, Nam-gu, Incheon, Nam-gu, Incheon. On July 15, 2016, the Defendant entered into a service contract for photographing the Plaintiff’s pictures with the victim E in the said service contract around July 15, 2016, and the Defendant paid KRW 10,000,000 to the victim when entering into the service contract for photographing the pictures with the victim E, and paid KRW 450,000 to the victim by the end of the following month from the date of settlement, and the deposit was returned at the time of termination of the contract.

However, at the time of the termination of the contract, the Defendant had been in arrears with the amount of KRW 200 million, and the Defendant had a business obligation equivalent to KRW 600 million, and the victim did not have the intent or ability to pay the price even if the Defendant had been engaged in the photographing. However, there was no intention or ability to return the deposit of KRW 10 million following the termination of the contract.

As such, the Defendant, by deceiving the victim, received KRW 10,00 as a check immediately from the victim’s face value, and had the victim take photographs of crowdfunding over a total of 12 times from August 5, 2016 to December 4, 2016, thereby acquiring the pecuniary benefit equivalent to KRW 5,940,000 in total, from the victim’s face value.

Summary of Evidence

Omission

Application of Statutes

1. Relevant Article of the Criminal Act and the selection of punishment for the crime;

Article 347 (1) of the Criminal Act (Selection of Imprisonment)

1. Handling concurrent crimes;

The latter part of Article 37 and Article 39(1) of the Criminal Act

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

The defendant and defense counsel's assertion and judgment

1. Summary of the defendant and his defense counsel;

As to the fraud against the victim C in the facts charged of 2018 Godan648, the defendant and his defense counsel held that at the time, the defendant entered into a service contract with the former contractor F to maintain the present situation at the request of F, which is the same as that of the existing contract term, and therefore it is difficult to say that there is a fraudulent act. At the time of the above contract, C merely takes over the claim for the return of the contract deposit from F, the transferor contractor, and it is not deemed that C was engaged in any property disposal due to the defendant's deception because it was not issued with KRW 100 million as the contract deposit, and even if there was the wife division of C, it is difficult to view that the defendant acquired any property profit, thereby it is difficult to say that the crime of fraud against the victim is not established, and the criminal intent of defraud is not recognized.

2. Determination

A. Fraud is established when a person deceptions another person into mistake, thereby inducing the victim to perform a dispositive act, thereby inducing the latter to obtain property or pecuniary gains. Therefore, in order to establish fraud, there should be deception by the actor, mistake on the part of the defrauded and the subsequent dispositive act, acquisition of property or pecuniary gains by the perpetrator, etc., and there should exist a causal relationship among them (see, e.g., Supreme Court Decision 89Do346, Jul. 11, 1989). In addition, “property gains” includes passive profits such as acquisition of claims or provision of collateral, and exemption from obligations (see, e.g., Supreme Court Decision 2012Do983, Apr. 13, 2012).

B. In full view of the following circumstances acknowledged by the evidence duly adopted and investigated by this court in light of the aforementioned legal principles, the Defendant, while recognizing that the management of the instant wedding hall becomes worse at the time of entering into the instant service contract with the victim C at the time of entering into the said service contract, was unable to properly guarantee the contract period stipulated in the said service contract, the Defendant, while hiding such circumstance, entered into a service contract with the said victim to allow the victim to take exclusive scam photographs from May 3, 2016 to June 30, 2017, thereby deceiving the said victim. Accordingly, the Defendant believed that the above service contract would be normally implemented (realizing) and would have been paid to the Defendant on behalf of the Defendant, thereby allowing the said victim to pay KRW 100,000,000 to F before entering into the said service contract with the Defendant, and eventually, the Defendant would not be able to accept the Defendant’s allegation that the Defendant acquired the aforementioned scambling interest and obtained the aforementioned pecuniary benefit from the Defendant at the time of fraud.

1) At the time of entering into a service contract with the Defendant, the victim C paid KRW 100 million to F, who had taken the photograph of the instant wedding Chapter prior to the time of entering into the service contract with the Defendant, and took over the business from the Defendant, and accordingly, stated to the effect that the Defendant would have a security deposit of KRW 100 million. Meanwhile, the victim, before entering into the service contract with the Defendant, retired from office by F, who had entered into a contract with the same content as the Defendant prior to his own entering into the service contract with the Defendant, was to take over the said business at his own request, and entered into the service contract with the Defendant and newly entered into the service contract with the Defendant. At the same time, the Defendant and F, prepared the above service contract and the credit transfer contract with the Defendant at the same time, and stated that the Defendant paid KRW 100 million to F by check. The victim’s statement concluded the service contract with the Defendant and stated that it was consistent with the details of the deposit and its credibility at the time of issuing the cashier’s checks, as well as consistent with the objective and objective details at the present situation.

2) Meanwhile, from this law to July 2014, F, which had concluded a service contract with the Defendant before the victim C, concluded a service contract to take up 100 million won as security deposit between the Defendant and the victim of the contract, and paid KRW 100 million as security deposit to the Defendant, with two years of the contract period, and thereafter, as security deposit should be transferred to any other trust service provider, C proposed the acquisition of the above service contract with the Defendant and subsequently entered into a new service contract with the Defendant. Not only was the memory of whom C received 100 million won as security check, but also it stated that C prepared a credit transfer contract for the purpose of increasing the amount of money that he received money on its own proposal. Even if F and the victim C were to take into account the circumstances such as the office used in Incheon, the statement made at the time of the service contract to take up for credibility and credibility cannot be found as well as the statement of motive and reason for the above transfer and takeover, and thus, C cannot be found to meet the aforementioned motive and reason for criminal punishment.

3) In addition, on May 3, 2016, the victim C entered into a service contract with the Defendant, issued a cashier’s check of KRW 100 million at the Nonghyup Bank (Evidence No. 57), and the service contract with the Defendant and C’s seal attached thereto stated that C shall pay KRW 100 million to the Defendant in cash or by a cashier’s check issued at the city at the time of entering into the said contract (Evidence No. 13 of the evidence list), and on the same day, the business and the contract for transfer and takeover of bonds made between the Defendant and C, and the third party of F with respect to the Defendant (the lessor and the third party debtor), the victim transferred all rights and obligations related to photographing business and the claim for refund of KRW 100 million to C (the transferee), and the Defendant holding the above service and the Defendant related to the lease deposit and the Defendant did not claim all rights to the Defendant at the time of transfer and termination of the above lease contract, and even if the contents of the contract are stated in C’s sequence No. 14.

4) In light of these circumstances, at the time of concluding a contract agreement with the Defendant and the instant wedding place, the victim C paid KRW 100 million on behalf of the Defendant and the Defendant on behalf of the Defendant, instead of paying KRW 100 million to the Defendant, upon consultation with the Defendant and F, prior to the conclusion of the contract agreement with the Defendant, and thereby, the Defendant exempted the Defendant from the obligation to refund the deposit amount equivalent to KRW 100 million to F.

5) On May 2016, at the time of entering into a service contract with the victim C, monthly average sales of the instant wedding hall operated by the Defendant around KRW 80,00,00,000. On the other hand, the monthly fixed expenses of KRW 95,00,000 per month, such as rent, management fee, employee's salary, and operating expenses, were disbursed, and the amount of KRW 15,50,000 per month to KRW 1,50,000 per month to KRW 20,000 to KRW 20,000,000, and the amount of KRW 9,000 to KRW 9,00,00 was overdue, and the amount of rent for nine months to KRW 9,00,00 to KRW 9,00,00,00 to KRW 169,00,00,000 to be paid for the first half of the second half of the year, which was difficult to pay the entire amount of rent.

6) However, at the time of concluding a service contract with the victim C, the Defendant did not mention the circumstances that the management situation of the instant wedding hall is difficult as seen above, and even until January 2017, C did not know of such circumstances, as well as at the time of concluding the said contract, and thereafter, at the mutual aid association’s 00 mutual aid association’s late payment, such as the Defendant’s rent.

7) Since January 23, 2017, the Defendant was under termination of the lease contract from the 00 Mutual-Aid Association, a lessor, due to default on payment of rent, etc., and closed down the instant wedding hall. After that, the Defendant was arrested on July 13, 2017 by the police around July 13, 2017 on the ground that: (a) the Defendant was under termination of the lease contract; (b) had kept contact with the victims and was living in the country of Seoul and Ulsan, and was under the duty to escape with the victims; and (c) had been under arrest by the police around the same day.

8) The Defendant, at the prosecution around May 3, 2016, entered into a contract for photographing C with the victim at the office of the Franchising Pream Office, and the said victim stated that the Defendant paid KRW 100 million to F, the president of the existing company, on behalf of the Defendant, on behalf of the Defendant. In addition, the Defendant acknowledged the fact that the Defendant, at the prosecution, by deceiving the victims as if the victims were to pay money on the date of the promise despite the aggravation of the management of the instant wedding hall at the time of borrowing money from the victims, including the victim C, or entering into the service contract, was unable to normally operate, due to the aggravation of the management of the instant wedding hall at the time of the conclusion of the service contract, by deceiving the victims as if they were to pay money to the victims on the date of promise.

Reasons for sentencing

In light of the fact that the crime of this case was committed in a situation in which the defendant was unable to regularly operate the wedding hall due to the aggravation of business management, excessive burden of damages, etc., it is inevitable to sentence punishment corresponding to the criminal liability against the defendant for the crime, considering the following: (a) the crime was committed in light of the method and manner of the crime; (b) the details and circumstances at the time of the crime; (c) the crime was committed; (d) four victims of this case were totaled; and (e) the amount of damage exceeds 280,500,000 won; and (e) the victims were punished against the defendant as the victims did not agree with the victims or have not been recovered properly until now; and (e) the punishment for the defendant is sought.

However, it appears that the defendant generally had the attitude to recognize and reflect his criminal act, and that the fraudulent act was caused to the criminal act in this case due to the deficit accumulation and debt burden increase while operating the wedding hall in this case, it is difficult to view the fraudulent act as the active and planned act, and it appears to be the criminal act due to the willful negligence. At the time of this case, there was no criminal power at the time of this case, and there was no criminal history at the time of this case, and the equity should be taken into account in the case of the judgment of fraud that became final and conclusive, the fact that the defendant supports the mother by negligence after divorce with his wife, and other circumstances such as the defendant's age, character and behavior, environment, motive and background of the crime, circumstances after the crime, etc., and the circumstances of the crime, etc., as shown in the records and arguments, the punishment shall be determined like the order.