Attorney in charge C

On June 2, 2008, the Defendant received an entertainment drinking house in the second floor of the Gangnam-gu Seoul Metropolitan Government DD Building and changed its trade name to a 'F entertainment drinking house (representative G)' and operated until October 201.

On June 2009, the Defendant knew that Korea Mutual Savings Bank Co., Ltd., Ltd., Ltd., (hereinafter referred to as the “Korea Mutual Savings Bank”) provides a special loan for entertainment establishments (hereinafter referred to as the “specialized loan for entertainment establishments”) as security, with the prior payment (forcing inception) documents delivered to the employees of entertainment establishments in Gangnam-Nam through the lending brokerage hub H, and received a false prepaid payment loan from the victim bank by submitting it to the victim bank, and used it as a fund for the operation of the said entertainment bars.

Accordingly, on July 2009, the Defendant submitted a false loan certificate and a letter of credit guarantee to the bank employees at around that time, and applied for a loan in the name of the Defendant’s father G by submitting a false prepaid document equivalent to KRW 863 million for the total amount of 20 million to the victim bank employees at around that time, even though the Defendant did not have actually paid the pre-paid payment to the employees listed in the attached table, such as I, or only paid the pre-paid payment, and some of them did not have any reason to pay the pre-paid payment since they did not work at the above entertainment drinking house.

As such, the Defendant, by deceiving the victim bank, received the total amount of KRW 798,757,00 from the victim bank to the national bank account in the name of G on July 3, 2009; KRW 200,000; KRW 199,378,500 on August 27, 2010; and KRW 10,000 on March 11, 201, respectively; and acquired the total amount of KRW 798,757,00 from the victim bank.

Summary of Evidence

1. Partial statement of the defendant;

1. Partial statement of the witness J;

1. Prosecutions and police interrogation protocol of the accused;

1. Copies of each police interrogation protocol of K, L, H, M, and N;

1. Each police statement made to J,O, I, P, Q, R, and S;

1. A copy of each police statement made to K, T, or U;

1. Each investigation report (investigation into telephone conversations between the person who prepares the F prepayment document and V counterpart telephone conversations, and investigation into the details of repayment of the F overdue loan);

1. A copy of the current status of an enterprise operating a specialized product of KRW 300 million (L), each application for each benefit loan (30 million, G), each copy of each letter of guarantee (A), each copy of the current status of an enterprise operating a specialized product of KRW 200 million (L), each application for benefit loan (200 million, G), each copy of each credit transaction agreement (G, A), each copy of each credit transaction agreement (G, A), the current status of an enterprise operating a specialized product of KRW 300 million (K), a copy of the business license certificate (F, G), the copy of the business registration certificate (F, G), the copy of the lease contract (G), the copy of the driver's license (A), the copy of the passbook of the G bank account (W), the copy of each resident registration certificate, each copy of each resident registration certificate, each letter of loan, each

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 [General Provisions: Provided, That the upper limit of the punishment shall be governed by the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010)]

1. Discretionary mitigation;

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

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

Although it was true that the defendant received the remittance of the instant loan from the victim bank, demanding the victim bank to submit the documents was merely a formal procedure for carrying out the loan as a guarantee, and most of the employees of the victim bank were actually paid the advance payment.In addition, while the principal and interest of the loan was preferentially repaid from the card sales amount generated from the "F" entertainment drinking house operated by the defendant, the defendant was not repaid the principal and interest of the said card sales in the "Y" entertainment drinking house around October 5, 201, the defendant was unable to pay the principal and interest of the said card sales by being subject to the seizure, collection order, and thus, the defendant did not have any intention to commit the crime of deception and deception.

2. Determination

A. In the context of fraud, deception as a requirement for fraud refers to all affirmative and passive acts that have a good faith and sincerity to fulfill one another in property transaction. It is sufficient if it does not necessarily require false indication as to the important part of a juristic act, and it is related to the facts that form the basis of judgment for allowing an actor to perform the act of disposal of property he/she wishes by omitting the other party in mistake (see, e.g., Supreme Court Decision 2003Do7828, Apr. 9, 2004). In addition, in order to establish fraud, there is a successive causal relationship between deception and the other party’s mistake and the other party’s property or the grant of pecuniary profit, but even if there is a negligence on the part of the defrauded among the grounds for omission in mistake, fraud is established (see, e.g., Supreme Court Decision 2008Do1697, Jun. 23, 2009).

나. 위 법리와 앞서 든 각 증거에 의하여 알 수 있는 다음과 같은 사정들을 종합해 보면, 비록, 피해자 은행이 대출금융기관으로서 그 서류의 진위를 면밀하게 조사하지 아니한 과실이 있다 하더라도, 마이낑 대출은 피해자 은행의 직원들이 실사를 통해 파악한 월 매출액, 룸의 개수 등 업소 현황에 기초하여 해당 업소에 대한 대출 여부가 일차적으로 결정되므로 대출 여부 및 한도액 결정에 있어 가장 중요한 판단 기준은 당해 유흥업소의 월 매출액 및 현황 등과 같은 실제 영업력 내지 현금 유동성 등이기는 하였으나, 실제 대출이 실행되기 위해서는 희망 대출금액의 약 150%에 해당하는 선불금 서류가 제출되어야 한다는 점에서 실제 근무하는 종업원 수 및 지급한 선불금 액수는 피해자 은행이 대출 여부 및 대출금 규모를 최종적으로 결정함에 있어 중요한 판단자료로 활용되었고, 마이 대출에서 업주가 대출금을 상환하지 않을 경우 선불금 채권은 피해자 은행이 대출금을 회수할 수 있는 마지막 방법이라는 점에서 실제 그에 따른 채권회수절차가 이루어진 바 없다 하더라도 이 사건 선불금 서류의 제출이 형식적인 절차에 불과하다고 볼 수 없으므로, 피고인이 마이 대출에서 대출 여부를 결정함에 있어 판단의 기초가 되는 선불금 서류를 허위로 작성·제출한 것은 피해자 은행에 대한 기망행위에 해당하고, 피고인이 피해자 은행으로부터 허위 선불금 서류를 통해서, 이 사건 대출금을 지급받으면서 이와 같은 사실을 고지하지 아니한 이상 피고인에게 이 사건 대출금을 변제할 의사나 능력이 있었는지 여부와는 관계없이 이 사건 대출금을 편취할 범의가 있었다고 봄이 상당하다

1) 피해자 은행이 2008. 10.경 개발한 마이낑 대출은 서울 강남에 있는 유흥업소를 운영하는 사업자들을 대상으로 하는 신용대출상품으로, 피해자 은행은 유흥업소가 자금 회전율도 좋고 현금이 풍부하므로 유흥업소 업주에게 신용대출을 해주면서 업주의 신용만을 보고 대출을 해 주는 데 따른 위험을 감안하여 이자율을 연 18~23% 정도의 고금리로 책정하고, 향후 업주들이 돈을 갚지 못할 경우 업주들이 종업원들에 대하여 가지는 선불금 채권을 대위행사함으로써 채권을 확보하려는 차원에서 희망 대출금의 약 150%에 해당하는 선불금 서류의 제공을 대출조건으로 요구하였다.

2) From June 2008 to November 201, the Defendant, a bad credit standing, operated an entertainment tavern in Gangnam-gu’s name, “F” in the name of the Defendant’s father G from around 2008 to around 201. However, as a result of a lack of business performance, the Defendant submitted a loan agreement, a business registration certificate, a business license certificate, etc. to the victim bank through the Defendant’s lending brokerage broker H around June 2009. The employees of the victim bank, such as L/K directly visited the said entertainment tavern to visit the Defendant to conduct an actual inspection on the current status of the business establishment, such as asking the size of the business place, the number of employees, monthly sales, and studio.

3) In determining whether to grant a loan and amount at the victim bank based on the above data, the employees of the victim bank visited the above entertainment tavern directly and confirmed whether they work or not, and prepare and submit the relevant documents, such as a letter of guarantee for good attendance, loan certificate, etc. In order to prepare the documents necessary for taking the entertainment drinking loan, the Defendant agreed to receive commission fees and make a false prepaid document as if he/she was an employee, or to prepare a false prepaid document as if he/she was an employee, although some of the employees were not employees, although they did not actually receive the prepaid loan, and to collect the part of the prepaid loan and pay it in advance, or to prepare the prepaid document, or to make the employees who paid the part of the prepaid loan prepare the prepaid document by paying the amount higher than the amount actually received. On the other hand, the Defendant paid part of the above amount by adding the amount of the prepaid money to the borrowed amount.

A) Q (attached Table 3; hereinafter the same shall apply) collected the amount of KRW 10 million from the Defendant, KRW 50 million from X (No. 11), KRW 150 million from the Defendant, and KRW Q (No. 12 in the order) from the amount of KRW 45 million in the case of Q, KRW 60 million in the case of X, and KRW 30 million in the case of R, respectively.

B) Although the Defendant did not have received the actual advance payment from the Defendant, the Defendant prepared and submitted a false advance payment as shown in the table in the attached sheet, (No. 4), Y (No. 5), J (No. 8), P (No. 9), V (No. 14), and Z (No. 15), the Defendant paid KRW 20 million to P, and KRW 30 million to J, V, and Z, different from the record in the attached sheet after the instant loan.

C) AA (C) received a payment of KRW 30 million in advance, but completed a document of advance payment of KRW 50 million in advance, and received an additional payment of KRW 15 million after making a loan. AB (C) received advance payment of KRW 30 million in advance, and AC (C (C No. 18) received KRW 20 million in advance and prepares a false document of advance payment of KRW 55 million in advance, and received each remainder after making a loan.

D) In the case of AD (P) (P) only prepared and submitted a false prepaid document, and there is no amount actually received.

E) I (19) and S (20) received each commission fee of KRW 60 million at the request of the Defendant even though they are not the employees of the amusement establishments operated by the Defendant, and prepared and submitted each false prepaid document of KRW 40 million.

4) After that, the Defendant, within the scope of a prepaid amount equivalent to approximately 150% of the desired amount of loans based on the prepaid payment documents submitted three times by the victim bank, was loaned KRW 100 million on March 11, 201, respectively, as ① loans from the No. 1 through No. 99,378,500 on July 3, 2009, ② loans from the No. 10 or 18 related to August 27, 2008; ③ loans from the No. 19,378,50 on January 19, 2010, and KRW 100,000 on March 11, 2010.

Therefore, we cannot accept the defendant's and defense counsel's arguments.

Reasons for sentencing

1. Scope of applicable sentences under Acts: Imprisonment for one year and six months to seven years; and

2. Application of the sentencing criteria;

[Determination of Punishment] The amount of not less than 50 million won but less than 5 billion won for general fraud (Type 2)

[Special Sentencings] Mitigations: Where the victim is fully responsible for the occurrence of the crime or the expansion of damage;

[Scope of Recommendation] Imprisonment of 1 year and 6 months to 4 years (Mitigation)

3. Determination of sentence: Imprisonment with prison labor for one and half years; and

The crime of this case is that the defendant submitted a false prepaid payment document to the victim bank and acquired the loan amounting to KRW 800 million in total, by actively preparing and submitting false documents, and the crime of this case was not committed in that it is not clear that the crime of this case and the crime of this case were committed in that the victim bank was deceiving the victim bank by actively preparing and submitting a false document, and the amount of damage caused by the crime of this case was large, but more than 70% of the current amount of damage was not recovered, and there was no agreement with the victim bank, and there is little possibility that

However, the crime of this case was committed by the victim bank neglected to perform its high-level duty of care required at the time of lending by the financial institution specialized in lending, such as not closely investigating the authenticity of the documents of this case, and it appears to have caused damage or expansion of damage caused by the fraud of this case. It appears that the amount equivalent to about 30% of the total amount of prepaid money would have been paid to the actual employees. The defendant did not have any record of punishment for the same crime, and all of the sentencing conditions specified in the arguments of this case, such as the defendant's age, character, character, environment, family relationship, circumstances after the crime, etc., shall be determined as ordered by the order.

Judges Kim Gin-hee

Judges Lee Jae-ho