Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), fraud, and Receipt

Violation of the Act on the Regulation of Activities

However, the execution of the above punishment shall be suspended for three years from the date this judgment becomes final and conclusive.

Of the facts charged in the instant case, the fraud against the victim D (2015 Gohap555) is acquitted.

The defendant is the representative of the E Farming Cooperative established with the aim of running business, such as slaughter and sale of Korean cattle.

[2015, 507]

On May 22, 2014, the Defendant: (a) at a notarial office located in Ansan-si, Seoul-si, Inc., the Defendant: (b) provided 3,00,000 won and 15,000 won and 2,60,000 won and 15,000 won and 2,000 won and 1.6 billion won and 1.6 billion won and 2,000,000 won and 2,000,000 won and 2,000,000 won and 2,000 won and 2,00,000 won and 3,00 won and 2,00,00 won and 2,00 won and 2,00,00 won and 3,00 won and 2,00,00 won and 1,000 won and 2,00,00 won and 1,000 won and 2,00,00 won and 16.

Nevertheless, the Defendant, by deceiving the victim as above, had the victim establish the right to collateral security of KRW 962 million with respect to real estate owned in the name of the victim’s wife, and had the victim obtain pecuniary benefits equivalent to the said amount.

[2015 Gohap607]

1. Fraud;

In fact, the Defendant had not been able to obtain the investment money by soliciting investors by soliciting investors, while guaranteeing the principal, even though the Defendant was able to use it as a new construction of a factory, or as a interest, etc. on existing investors even if he received the investment money from investors, and thus could not bring about a high rate of 6% per month.

A. On April 201, 201, the Defendant made a false statement to the victim L, who was introduced by K, an existing investor, within the office of the Defendant in Suwon-si, Suwon-si, Suwon-si, Suwon-si, that the Defendant would deposit KRW 10 million per 1stma, 10 million per 1st, and pay 6% interest per 1st unit, and pay 6% interest per 3 months thereafter.

Around May 4, 2011, the Defendant, by deceiving the victim as such, received KRW 14 million from the victim’s account in the name of the Defendant to the company bank account in the name of the Defendant and received KRW 14 million from that time to December 5, 201, and received KRW 91 million in total on seven occasions, as shown in the list of crimes in attached Table 1, from that time.

B. On January 2012, 2012, the Defendant had 0 employees, who were employees, explain the above investment terms and conditions to the victim N in the M Office operated by the Defendant at Ansan-si, and received 30 million won from the victim’s workplace as a check.

2. Violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission;

No one shall engage in an act of receiving money without permission, permission, registration, report, etc., under which many and unspecified persons agree to pay the whole amount of principal or an amount in excess thereof for an unspecified number of persons, and without permission, registration, etc. of

Nevertheless, the Defendant does not obtain authorization from, or file a registration report to, the authority;

A. From May 4, 201 to December 5, 2011, when investing in the small business from L from L as described in paragraph (a) of Article 1-A, 6% interest shall be paid every month, and 91 million won shall be paid every seven times on the condition that “the full amount of principal shall be repaid after three months.” As described in paragraph (b) of Article 2-B of the Early Police Officers, N was delivered KRW 385 million as a check under the aforementioned conditions of investment between the first and the first time of March 2012. From March 4, 2011 to the first time of December 201, 201, the amount of KRW 385 million from P, KRW 30 million from K, KRW 24 million from Q, KRW 59 million from R, and KRW 300 million from each of the said terms of investment to KRW 30 million from 30 million from 3.5 million from 3 million to 3 million from S.

B. From April 2012, the amount of KRW 10,000 per 1math of the world at the V hotel coffee shop located in the Changwon-si, Changwon-si (U.S.) was KRW 10,000,000,000 per 1,000 won, and the amount of KRW 10,000,000 per 1,000 won was supplied from W as investment condition that “I will pay interest of KRW 10 per 10% per month with the profits accrued therefrom after slaughter and sale,” and that “I will also guarantee the principal amount.”

Accordingly, the defendant did the act of fund-raising without permission.

[2016Gohap146]

The Defendant was thought to have used to newly construct a factory or to use it as interest for existing investors, not to use it, even if it was not used to purchase money from investors.

Nevertheless, around April 2012, the Defendant received KRW 10 million from the victim’s bank in the name of the Defendant to the account bank in the name of the Defendant, and received KRW 10 million in total through X around July 26, 2012, the Defendant received KRW 20 million from the victim to the account bank in the name of the Defendant, and received KRW 10 million in total from the company bank account in the name of the Defendant via X to the account bank account in the name of the Defendant on July 26, 2012.

Summary of Evidence

[2015, 507]

1. Witnesses G and Y respective legal statements;

1. Partial statement of the suspect interrogation protocol of the accused by the prosecution;

1. Each police suspect interrogation protocol of Z and H:

1. The police statement concerning G;

1. AA's certificate;

1. Business plans, a certificate of a contract for a loan for consumption, and a certificate thereof, a real estate sales contract and certificate thereof, an intermediate payment and any balance payment proposal among purchase funds, each certified copy of the register, a property tax search, a judgment (Evidence No. 27);

[2015 Gohap607]

1. The statements of witnesses, N and K in the fourth trial records;

1. The defendant's partial statement in the interrogation protocol of the first and third prosecutor's office against the defendant (including K, L, N, etc.);

1. Examination protocol of suspect X-2 to the prosecution;

1. Written statement by the prosecution;

1. The suspect interrogation protocol of the police against K;

1. Each police statement concerning L/N;

1. A statement of account details and account statement;

[2016Gohap146]

1. Defendant's legal statement;

1. Examination protocol of suspect X-2 to the prosecution;

1. Written statement by the prosecution;

Application of Statutes

1. Article applicable to criminal facts;

Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347(1) of the Criminal Act (the fraud of the victim G), Article 347(1) of each Criminal Act (the fraud of the victim L, N, W, and the choice of imprisonment), Articles 6(1) and 3(1) of the Act on the Regulation of Unauthorized Receiving of Penalties (the choice of imprisonment), Articles 6(1) and 6(1)3

1. Aggravation for concurrent crimes;

The punishment of the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act shall be the largest penalty, and the punishment of the Specific Economic Crimes shall be aggravated for concurrent crimes prescribed by the Act on the Punishment, etc. of Specific Economic Crimes (

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following grounds for sentencing has been repeatedly taken into consideration for favorable circumstances)

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

(a) Fraud in relation to the victim G (2015,507);

In fact, the Defendant attempted to establish a meat processing factory on the land AB when the name of the E farming association corporation was commercialized. However, the Defendant’s shortage of construction funds, such as a loan of KRW 740,000,000, which did not reach half of the originally scheduled 1.5 billion, led to damage to the victim, and there was no intention to deceive the victim.

(b) Each fraud with respect to victim L and N (2015 high-priced607);

The defendant was scheduled to pay profits to the victims by operating a private business chain AC (AC) and E agricultural partnership, but it was only impossible to pay the victims inevitably because the attempted bonds have occurred too much in the course of requesting meat processing after purchasing Korea-do, and there was no intention to deceive the victims.

2. Determination

A. As to the argument in Paragraph 1-A

In full view of the following facts and circumstances acknowledged by the evidence duly adopted and investigated by the court, the court can fully recognize the fact that the defendant had the intent to deceiving the victim G, and that the defendant deceivings the victim as stated in the facts constituting the crime, thereby defrauding the victim KRW 962 million from the victim. Accordingly, the above assertion by the defendant and the defense counsel is not acceptable.

1) At the time when the Defendant solicited the victim to offer collateral, the costs for the installation of the land-processing factory was not properly procured, and from July 2013, 2013, the installation of the land-processing factory was suspended. The Defendant promised to use the loan provided by the victim as collateral to build the land-processing factory facility except KRW 350 million, which is paid as the down payment, to the victim as the down payment. However, the Defendant used the remainder of the loan excluding the down payment as KRW 390,00,000,000,000,000,000,000,000,000 won, which is the creditor, as the cost for removal of the building installed in the real estate owned by the victim, which

2) Even according to a certified copy of the register (Evidence 6 of the Evidence List Nos. 2015 High 507 case), a provisional attachment of KRW 47,500,000 was established on July 11, 2013 regarding the above factory building at the time, and a provisional attachment was established on September 30, 2013 by a disposition agency’s emulative tax secretary, and a provisional attachment of KRW 37,00,000 was established on October 18, 2013. AE, a creditor’s claim amount of KRW 37,00,000 was issued at the request of a creditor of the Industrial Bank of Korea on October 18, 2013. A decision to commence voluntary auction was established on October 10, 2013 by the right holder of the National Health Insurance Corporation on November 19, 2013. The seizure of the right holder was established on November 19, 2013.

3) As such, it is difficult to understand that the construction of the processing plant was suspended, and that the Defendant purchased the victim’s real estate in KRW 2.6 billion by punishing money by operating the factory in a situation where the decision to commence an auction was rendered on the processing factory building. The Defendant also stated in the prosecution that it is unreasonable to accept a loan from the victim’s real estate as security and to complete the factory facilities and purchase the victim’s real estate because the financial situation was difficult at the time of the “public prosecutor’s office.” The Defendant stated that there was no particular measure in a case where the construction of the processing factory was completed, because most of the funds near to the establishment of the processing factory were borrowed and used.

4) In this court, the victim had been in the situation where a processing factory facility was suspended at the time when the Defendant solicited the offer of security, and the bank applied for a voluntary auction on the processing factory building, and did not at all talk about the situation where the auction procedure was in progress. If such circumstances were to be discussed, the victim stated that the Defendant would not have provided a security.

5) The Defendant anticipated that he could obtain a loan of KRW 1.5 billion as collateral provided by the victim, but claimed that he did not receive a loan of KRW 740 million. However, according to the prosecutor’s interrogation protocol and the monetary loan contract document against the Defendant, the Defendant anticipated that he could obtain a loan of KRW 890 million at the time of soliciting the Defendant to offer security, and that he set the loan under the monetary consumption contract as above amount. Moreover, if the Defendant intended to obtain a loan of KRW 1.5 billion and the Defendant did not receive a loan of KRW 740 million, it should not proceed with the loan procedure.

6) In addition, the Defendant asserts that there was no fact that the Defendant intended to purchase the instant mortgaged real estate at KRW 2.6 billion from the victim. However, according to the real estate sales contract, the certificate thereof, the intermediate payment and the payment of remainder among the purchase price, the Defendant’s intent to purchase the instant mortgaged real estate at KRW 2.6 billion can be fully recognized.

B. As to the allegation in Article 1-2(b)

In full view of the following facts and circumstances acknowledged by the evidence mentioned above, the defendant had the intent to deceive the victim L or N, and the victim could be sufficiently recognized that he/she deceivings the victims as stated in the facts of the crime, thereby deceiving the victims of KRW 91 million, and 30 million from the victim N. Therefore, the above assertion by the defendant and the defense counsel cannot be accepted.

1) At the time of soliciting the victims to make an investment, the Defendant purchased a lawsuit with the money received from the victims, performed direct slaughter, and asked the victims to pay interest for the profits accrued from the sale. However, the Defendant used part of the money received from the victims to establish the meat processing factory facilities without the understanding or consent of the victims.

2) According to the statement of transaction by account (the evidence list No. 15 of 2015Gohap607 case No. 5), the Defendant can confirm the fact that part of the amount received from the victims was paid to the persons who invested in the previous Defendant as interest (for example, the Defendant received KRW 14 million from AG (the victim L’s wife) on May 4, 201, and then remitted the amount of KRW 5 million to AH, an existing investor, and KRW 2.5 million on May 7, 201, and remitted the amount of KRW 3 million to the above AH and KRW 2.7 million to the above P, an investor.

On the other hand, the transaction statement by the above account does not include the details of the Defendant’s purchase and withdrawal of the lawsuit, or the details of the deposit of the profits from the business. On the other hand, the Defendant asserted that the purchase price was paid in cash, but the documents such as receipts were not submitted at all.

3) The victim L made a statement at an investigative agency that “the Defendant paid interest as initially promised, and paid it by gradually decreasing the interest, and the Defendant would return the principal to the Defendant before August 201, 201, and the Defendant should be secured more than in the lawsuit when the lower amount of the lawsuit was brought down.” The Defendant stated that “the funds need to be more needed, thereby lending money to himself/herself.”

4) The victim N borrowed money to the Defendant on the ground that the Defendant was sufficiently 6% per month and the principal was clearly returned after 3 months in the investigative agency and this court where the amount was insufficient at the time of “in this court,” and that the Defendant did not lend money for a longer period of time. If the Defendant stated that the amount of money lent to the Defendant would be invested in the meat processing factory facilities, etc., the Defendant would have never been lent from the beginning.”

5) The Defendant asserts to the effect that the amount of the outstanding amount was not received from AI (from around December 201 to February 2012) and AJ (from around August 201, to February 2012, 201) and the victims were unable to return the principal amount. However, the Defendant did not submit all evidentiary materials on the outstanding amount, and instead, based on each standard financial statement certificate of 2011 and 2012 submitted by the Defendant, it can be confirmed that the outstanding amount occurred during the pertinent period is 0. In addition, the Defendant stated that the outstanding amount was first incurred in the course of distributing a lawsuit at an investigative agency around January 201, 201, which is the time before the Defendant recommended the victims to make an investment.

Reasons for sentencing

1. Application of the sentencing criteria;

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

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

[Special Mitigation] Ad hoc Inspector

[Scope of Recommendation] Reduction Area, Imprisonment with prison labor for not less than one year and not more than 6 months but not more than 4 years

(b) Handling multiple crimes: Imprisonment with prison labor for not less than one year and six months (the sentencing criteria are not set in respect of a violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission, so that the sentencing criteria are not set, only the lowest limit

2. Determination of sentence;

Among the crimes of this case, the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and each crime of fraud is heavier in light of the fact that the defendant acquired approximately KRW 1.1 billion against the victims (G, L, N, and W) and suffered considerable mental suffering and property damage. The defendant committed the crime of this case even though he had the record of fine and the suspended execution once for the same crime. Considering these circumstances, the defendant should be punished strictly.

However, the fact that the defendant recognized the crime against the victim W, the fact that the defendant caused the crime of this case in the course of raising funds unreasonable because it is difficult for the defendant to carry out the business of slaughter sales, and the fact that the victim G and W do not want the punishment of the defendant shall be considered as favorable circumstances to the defendant. In addition, the defendant's age, character and behavior, environment, the result of the crime of this case, circumstances after the crime, etc. shall be comprehensively considered, and the punishment shall be determined as ordered by the order.

Parts of Innocence (2015Gohap55)

1. Summary of the facts charged

On October 2013, at the EAF office located in Suwon-si, Suwon-si, Suwon-si, the Defendant made a false statement that the Defendant would pay 6% interest to the victim D with a her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her hers her her her

However, in fact, the Defendant established an EFF association with an amount of KRW 900 million invested on September 201, but purchased a building and site to be used for a livestock product processing plant on October 8, 2012 due to a shortage of funds, but failed to appropriately raise the cost of installation works up to KRW 2.4 billion from July 2013, and the Defendant failed to pay the principal and interest borrowed from the bank due to the failure to pay the loan borrowed from the bank. Therefore, the Defendant did not have any intent or ability to repay the loan even if it borrowed money from the victim in the form of money investment.

A victim D, along with AK, recruited members to invest in the business of the said E Farming Cooperative, including AL, AM, N, and AO, and the Defendant received from the victim D the transfer of KRW 10 million to the Cit Bank account in the name of the Defendant on October 15, 2015, and acquired the money by transfer of KRW 22 million in total nine times from the date of the transfer from December 4, 2013 to December 4, 2013, as shown in the List of Crimes 2.

2. As to the frauds Nos. 1, 2, 4, and 9 of the annexed Table 2.

A. Key issue

The object of fraud is the "other person's property or property interest" possessed by the other person (see Supreme Court Decision 2010Do6256, Dec. 9, 2010). The prosecutor considers that the fraternity transferred to the accused constituted D's property, and specified the victim as D. In this regard, the defense counsel claims that the fraternity transferred to the accused is the property of the fraternity. Accordingly, the issue of this part is first determined.

B. Determination

In full view of the evidence duly adopted and examined by this court and the facts and circumstances acknowledged by the record, it cannot be readily concluded that only the evidence submitted by the prosecutor constituted the victim’s property, and there is no other evidence to acknowledge this.

1) Characteristics of the limits organized by the victim

In general, the fraternity shall pay the fraternity to the fraternity for a certain period of time, and if the fraternity pays the fraternity to the fraternity according to the sequence of the fraternity's holders, the fraternity who has received the fraternity's money can operate the fraternity according to the individual intention.

On the other hand, the limit organized by the victim (hereinafter referred to as the "limit") was created for the purpose of preparing investment funds for the defendant, and thus, the fraternity members make an investment in the defendant for the purpose of the above purpose. In this case, the fraternity members may receive the fraternity from the victim and make an investment directly in the defendant, and make an investment in the fraternity funds that the victim should pay to the fraternity members.

2) Part remitted under the name of the fraternity (Attached 2, 5, 6, 8)

Due to the characteristics of the instant fraternity, the money remitted to the Defendant in the name of the fraternity (AK, AL, AM,N, and AO) may be deemed as having invested directly by the fraternity in the Defendant after receiving the guidance from the victim. In other words, the money remitted in the name of the fraternity is not deemed as the property of the victim.

3) Part remitted under the name of the victim (attached Form 2 Nos. 1, 4, 7, 9)

A) The Defendant stated in an investigative agency and in this court that the money transferred to himself in the name of the victim is not the money of the victim, but the money of the fraternity members. The Defendant paid the money to himself/herself (the Defendant) through the passbook of the Si bank and made it difficult for the victim to pay the interest on the account if he/she made an investment in his/her name or notified him/her of the money in the name of the office in the domain form. The Defendant stated that he/she would have made it difficult to deliver the money to A0 without the victim’s own account. When the money was deposited to the Defendant, AO, which is the guidance of the instant fraternity, made a statement that “the fact that he/she received the relevant guidance information, etc. from the victim and delivered it in the name of the Defendant’s office,” thereby supporting the Defendant’s statement.

B) The victim stated that the money (90 million won) transferred to the defendant under the name of the investigative agency and this court in the name of the victim is money invested by himself (20 million won) and received the guidance. The money that was transferred to the defendant under his own name was directly invested in the Defendant at the request of the guidance commissioner. However, the victim failed to submit the documents from the investigative agency to this court, even though the victim had failed to submit the documents, which form the basis for distinguishing his money from the money that was transferred to the defendant under his name, from among the money transferred to the defendant under his own name.

C) AM, which is the cause of the instant fraternity, stated that it was transferred to the Defendant under the name of the victim as a member of the fraternity in this court, and stated that “AP and Q also submitted to the investigation agency that “the victim was born KRW 20 million on a one-time basis to him/her and deposited the said fraternity directly to E Union.”

D) Ultimately, comprehensively taking account of the above statements, the money remitted in the name of the victim is mixed with the money invested by the victim and the money invested by the fraternity members, and the money invested by the victim cannot be specified among them. Ultimately, the money remitted in the name of the victim cannot be deemed as the property of the victim.

E) The victim, in this Court, remitted the fraternity money of some of the members to the Defendant under his name, and then closed his business two months after the date of the transfer to the Defendant, and then the said fraternity was completely withdrawn. In that process, the victim stated to the effect that, because he was able to settle the accounts to the said fraternity and received the money invested by the said fraternity members, the money remitted to the Defendant under his name is all his own name. However, this is not only the situation after the occurrence of the instant case, but also the status of the victim of the criminal case cannot be changed due to the settlement of the victims’ interest.

3. As to the fraud Nos. 3 of Attached 2 Crime List 3

A. Examining this part of the facts charged, the purport of the facts charged is that a member of the fraternity AK of this case remitted the amount of KRW 30 million from the fraternity of this case to the defendant in the form of an investment in the fraternity of this case, and the victim becomes a member of the fraternity D as seen earlier.

B. This part of the facts charged is identical to the case Nos. 2 and the case of the annexed crime No. 2. As such, the money remitted to the defendant under the name of the fraternity members can be viewed as having invested directly in the defendant after receiving the fraternity from the victim, and it cannot be viewed as the property of the victim.

C. However, with respect to the above KRW 30 million, AK stated in this Court that "the above KRW 30 million was sent to the victim only KRW 70 million out of the total amount of KRW 100 million, and the remainder was forwarded to the defendant." The victim stated in the investigative agency that "the above KRW 30 million was transferred to the defendant by sending it to the defendant." The victim stated that "the money was transferred to AK was that it was paid as a deposit in the fraternity where AK was located in the main place, and that "the money was transferred by AK was arbitrarily investing in the defendant." In other words, although there was a difference in the transfer circumstance, the above KRW 30 million was identical in that it was the money paid to the victim in the limit where AK was located in the main place, separate from the instant fraternity."

D. Therefore, this part of the facts charged, premised on the fact that the above KRW 30 million was a fraternity incurred in the instant fraternity organized by the victim, cannot be acknowledged as is (it cannot be deemed that there exists a disposal act in the facts charged). Ultimately, this part of the facts charged cannot be seen as a part of the charge.

4. Conclusion

Therefore, this part of the facts charged is judged not guilty in accordance with the latter part of Article 325 of the Criminal Procedure Act, since there is no proof of crime.

Judges Sung Jae-in

Judges Park Jae-chul

A person shall be appointed.