Residence

Reference domicile

A defendant shall be punished by imprisonment for not less than two years and six months.

According to the evidence duly admitted and investigated by the court below, the fact that the defendant deceivings the victim and defrauds the victim of KRW 145 million is sufficiently recognized. Nevertheless, the court below acquitted the defendant of the facts charged in this case, and there is an error of law that affected the remaining judgment of the court below.

2. Determination

A. Summary of the facts charged in this case

Around July 2013, the Defendant made a false statement to the effect that, “Around July 2013, the Defendant would pay KRW 150 million per 1,000,000 per 1,000 won per 1,00,000 won per 1,00 won if he/she purchased and operated three new vehicles with the said money.” The Defendant made a false statement to the effect that the principal would be sold and repaid after five years.

However, at the time, tourism of 00 did not make profits to the extent that it is not able to repay the fixed costs, such as employees' wages and oil expenses, and debts to the capital capital company, and the above company was not in a situation where it was able to obtain loans from financial institutions, such as banks, due to capital erosion. In addition, the defendant was planned to receive money from the victim to use it for operating expenses or debt repayment of the company, not for new purchase, so there was no intention or ability to pay the victim profits or principal at time.

Ultimately, the Defendant, from August 6, 2013 to September 11, 2013, acquired money from the victim to the bank account in the name of 00 bank accounts in the name of 00 bank and the name of 00 tourist account in the name of 00 tourism, as shown in the attached list of crimes.

B. The judgment of the court below

In light of the facts that the defendant received 100 million won from the victim as stated in the list of crimes, the defendant was at the time of transfer of 100 million won to the victim, the victim was given money under the name of 100,000 won per vehicle, and the defendant was given testimony to the victim for 100,000 won for each of the above facts. However, the court below found that the defendant received 40 billion won from 100,000 won for each of the above facts charged, 1.5 billion won for each of the above facts charged, 2.5 billion won for each of the above facts charged, and 100,000 won for each of the above facts charged, 40,000 won for each of the above facts charged, 1.4 billion won for each of the above facts charged, and 1.5 billion won for each of the above facts charged, 1.4 billion won for each of the above facts charged, and found that the defendant was guilty for 14 billion won for each of the above facts charged.

C. Judgment of the court below

1) The deception as an act of fraud does not necessarily require false indication as to the important part of a juristic act, and it is sufficient to view that it is the basis of the judgment in order to enable the actor to conduct a disposition of property which he wishes to take by mistake. Therefore, in a case where the use of money belongs to the purpose and the lending of money is in a relationship that would not have been lent to the other party if the genuine use was notified, the deception, which is an act of fraud, shall be deemed to have been committed (see Supreme Court Decision 95Do707, Sept. 15, 1995).

2) The amount remitted by the victim (the victim in 1971) was set out as insurance money and apartment sales proceeds received by the husband of the victim who died of cerebral math on August 201, 201. The two children (the first and third grades of elementary school at that time) were very heavy money, which serves as the basis for survival, and thus, it was very important task to preserve the principal. The fact that the victim, who was in such a situation, remitted the principal amount of KRW 145 million to the defendant by purchasing three vehicles, was derived from the proceeds if the defendant purchased and operated three vehicles, and the principal amount was paid to the victim and paid to the victim one million won per vehicle after five years.

Therefore, it is reasonable to view that it is the basis for the determination whether the defendant has the intent or ability to purchase the actual vehicle when the victim remitted the amount of KRW 145 million to the defendant as property disposal act (if the defendant uses the remittance money for any other purpose, it may be paid the agreed profit in the short term, but there is no means to secure the repayment of the principal in the long term. This is the same even if the defendant had a plan to repay the principal by any other method. This is because the same is the case where the victim transferred the money on the premise that the newly purchased vehicle guarantees the repayment of the principal.

3) As seen earlier, the lower court acquitted the Defendant of this part of the facts charged on the grounds that the Defendant was holding a heavy tourist bus in substance and paid the amount agreed upon by the victim ten times in total, but the lower court’s aforementioned determination is not acceptable in light of the following circumstances.

① In the first instance, the Defendant stated that “the Defendant would purchase three new vehicles,” but “the Defendant would be able to buy more promptly the proceeds if the vehicle was purchased.” The Defendant stated that “the Defendant would purchase more heavy and new two vehicles.”

② The victim transferred money to the Defendant’s reliance on the Defendant’s speech to purchase three vehicles as above. Of that, the amount of KRW 40 million was to purchase a second class of the vehicle.

(3) Although the victim was aware that he was a new purchase of a used vehicle, the defendant did not purchase a new used vehicle, but paid the proceeds accrued from operating a used bus in the existing possession to the victim.

(4) When the Defendant newly purchased a heavy vehicle, the victim may claim his/her right against the newly purchased heavy vehicle. On the other hand, when using a heavy vehicle previously owned, the victim ought to bear the risk of not being able to claim his/her right due to the circumstances such as the existence of another right holder.

⑤ The Defendant intended to purchase a new vehicle at the beginning, and the principal was paid by selling a vehicle at the end of five years from the date of lease. The consent of the victim to purchase one vehicle for a middle-lane tourist bus was merely to receive the proceeds as soon as possible as presented by the Defendant, and it is difficult to deem that the victim intended to advance payment of the proceeds even when he/she renounces the physical security called a new purchase tourist bus and bears the risk of the redemption of principal due to the default of principal. Furthermore, if a vehicle is used in an old vehicle that had been previously owned without a new purchase of the vehicle, it would cause a big trouble in the victim’s claim to recover principal by selling the vehicle after five years. This is because the annual formula of the previous vehicle is too old compared to the vehicle that newly intended to purchase, and substantial security may not be realized (the expiration date of the age of the passenger bus held by the Defendant is December 30, 2017).

4) As to the amount of KRW 5 million in the list of crimes Nos. 6

The court below found the defendant not guilty of this part of the charges on the ground that the above five million won was lent for the purpose of coloring, etc. of the used vehicles, and it appears that it was actually used for such purpose.

However, the above judgment of the court below is not acceptable in light of the following circumstances.

① In light of the fact that the time when the victim remitted to the defendant the amount of KRW 40 million as the purchase cost of the second class, the time from August 6, 2013 to August 7, 2013, and that the time when the victim remitted the amount of KRW 5 million in the name of the second class color expenses is very adjacent, it is reasonable to view that the victim remitted the money to the defendant on August 9, 2013, under the premise that "the defendant purchased the second class of KRW 40 million and color the second class purchased at KRW 5 million after he purchased the second class of KRW 40 million."

② Therefore, it is reasonable to view that it is the basis for determining whether the defendant has the intention or ability to purchase the vehicle when the victim conducts a disposition of disposal of property that remitted five million won to the defendant on August 9, 2013.

③ As long as the Defendant did not purchase the vehicle as promised, it is merely using the money for painting other than the originally scheduled vehicle, and there is no difference in that it borrowed money.

5) As to the sum of KRW 100,000,000,000 from Nos. 7 to 16

The lower court found the Defendant not guilty of this part of the facts charged, and presented it as a ground for “the fact that the Defendant was unable to pay the profits (one million won per month) due to the delay in the purchase of the two new vehicles by the victim, and the Defendant paid the interest (one million won per month) over nine times in total.” However, the victim had an important interest in collecting not only the profits or the interest accrued therefrom but also the principal. As such, it does not interfere with recognizing the Defendant guilty of the facts charged even if the Defendant did not have the intention or ability to purchase the actual vehicle and paid the profits or the interest accrued therefrom to the victim. However, in light of the following circumstances, it is reasonable to deem that the Defendant had no intention or ability to purchase the vehicle at the time when he received the money from the victim.”

① The Defendant asserts that 40 million won was paid 5 million won under the name of “investment money for high-speed tourist buses” and 100 million won as “amount of stock increase”. The Defendant’s argument is that there was no promise to purchase 3 vehicles to the injured party.

② 그런데, 그 피해자는 「피고인이 '차량 3대를 구입하겠다'고 하여 1억 4,500만 원을 송금하게 된 것」이라고 일관되게 진술하고 있는 점, Ⓒ ○○ 관광 직원이었던 원심증인 B 역시 「피고인이 '피해자가 돈을 입금하면 차 3대를 살 것이다'라고 이야기하는 것을 들었다」고 증언하여 위와 같은 피해자의 진술을 뒷받침하고 있는 점(공판기록 제293쪽 참조), C 피고인은 과거, ⓐ 주식회사 XX의 대표이사로 재직할 당시인 2008. 8. 18.경 피해자 C에게 XX아XXXX호 버스를 매입하여 지입할 것을 제의하면서 실제로는 할부금이 연체되어 압류가 예상되는 경기 7307356호 버스에 XX아 XXXX호 버스의 번호판을 부착하여 제공하는 방법으로 위 피해자로부터 1,500만 원을 편취한 전력이 있고(수사기록 제142쪽, 제143쪽 참조),2) ⑥ ○○ 관광여행사를 운영할 당시인 2008. 12.경에는 피해자 D으로부터 신차 구입비용 5,000만 원3)과 차량 인테리어 비용 800만 원을 편취한 전력이 있는 점(수사기록 제138쪽, 제139쪽 참조)4) 등에 비추어 볼 때 피고인이 피해자에게 차량 3대를 구입하겠다고 거짓말하여 피해자로부터 1억 4,500만 원을 편취한 사실이 충분히 인정된다.

③ The court below decided that the defendant distributed 10,00 won of the company's shares to the victim, and that the company's capital increase from 150,000 to 500,000 won, it is difficult to see that there was a criminal intent to obtain fraud from the defendant. However, the allocation of shares to the victim is to clarify that the victim has a right to 1,00 won of 1,000 won of 150,000 won of 10,000 won of 10,000 won of 20,000 won of 20,000 won of 20,000 won of 1,00 won of 1,00 won of 20,000 won of 20,000 won of 20,000 won of 20,000 won of 20,000 won of 20,000 won of 20,00 won of 20,00 won of ever.

④ Even though the Defendant promised to purchase three vehicles, it is sufficiently recognized that the Defendant did not have the intent or ability to purchase the vehicle, in light of the following: (a) the Defendant’s continued similar criminal act method, as seen earlier; and (b) the Defendant stated that the Defendant used the money that he received from the victim for operating expenses of the company (see, e.g., Investigation Records No. 158).

3. Conclusion

Since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

Criminal facts

【Criminal Power】

On November 26, 2010, the Defendant was sentenced to ten months of imprisonment for fraud in the Suwon District Court’s Ansan Branch’s Ansan Branch, and was released on January 30, 2012 during the execution of the sentence and passed on March 22, 2012.

Around July 2013, the Defendant made a false statement to the effect that “Around July 2013, the Defendant would pay KRW 150 million per 1,000,000 per 1,000 won per 1,00,000 won per 3,000 won per 1,00 won if he/she purchased and operated a new 3 vehicle with the said money.” The Defendant made a false statement to the effect that the principal would be sold after five years.

However, at the time, ○○ Tourism did not make profits to the extent that it is difficult to repay the fixed costs, such as employees’ wages and oil expenses, and the debts to the capital capital company, and the above company did not receive loans from financial institutions, such as banks, due to capital erosion. Moreover, the Defendant was planned to receive money from the victim to use it for operating expenses or debt repayment, etc. of the company, not for new purchase, so the Defendant did not have the intent or ability to pay the victim the profits or principal at time.

Ultimately, the Defendant, from August 6, 2013 to September 11, 2013, acquired money from the victim to the account in the name of ○○ Bank and the account in the name of ○○ Tourism (State) in the name of ○ Bank, as shown in the attached crime list, from August 6, 2013 to KRW 145 million.

Summary of Evidence

1. The original legal statement of the witness E and B;

1. Indicating some of the records concerning the examination of the second prosecution against the accused;

1. Investigation report (for a stock company, a certified copy of the register of 00 tourism, 000 registration certificate, and attachment report of the register);

1. Investigation report (report attached to the suspect's previous records and written judgments);

1. Before judgment: Application of the inquiry report and the personal identification records to the Acts and subordinate statutes;

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

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

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act: Reasons for Sentencing

[Extent of Recommendation] In the area of aggravation of Type 2 (at least KRW 100,000, less than KRW 500) (at least KRW 2.6 months to 6 years), General Fraud

[Special Persons] Same Cumulative Offense:

【Determination of Sentence】

The fact that the defendant denies and does not reflect the crime, the amount acquired by the defendant was the foundation for the survival of the victim and his family members due to the death insurance money of the husband of the victim, etc., and the damage amount also exceeds 145 million won, the defendant did not agree with the victim, and did not recover from the damage (limited to payment of 12.7 million won as interest on the profit or profit as stated in the original judgment). The defendant has six criminal records for the same crime, and the defendant committed the crime in this case during the period of repeated crime due to the same crime, and all of the sentencing conditions specified in the arguments of this case, such as the defendant's age, circumstances of the crime, and circumstances after the crime, shall be determined as ordered by the disposition.

Judges Gangseo-Appellee

Judges Yoon kyl-ran

Since people exercise their rights, it does not affect the finding of guilty of the facts charged against the victim.

2) As stated in the paragraph.

2) In the case of acquiring money by acquiring money by means of a change of vehicle, 40 million won is acquired under the pretext of purchasing a heavy vehicle.

The parts of the law are identical (2 years of suspended sentence in August, 2010 in the case of Ansan Branch of the Suwon District Court of March 30, 2010 209dan846);

Social service work was sentenced to a punishment for 120 hours, and on June 25, 2010, the above punishment became final and conclusive.

3) The portion obtained by defraudation of KRW 100 million under the pretext of purchasing a new vehicle without the intention or ability to purchase the new vehicle and the method of acquisition

on November 26, 2010, the Suwon District Court was sentenced to imprisonment for 10 months in the case No. 2010Kadan1817, and was sentenced to imprisonment;

May 20, 201, the above sentence became final and conclusive.

4) Since a new vehicle was not purchased, the new test cost is not required. It is not 5 million won in terms of the middle and high color expenses.

It is the same with the part obtained by deceit (in the case No. 2010 Godan1817, Nov. 26, 2010), which is sentenced to imprisonment with labor for 10 months in the Suwon District Court case No. 2017

on May 20, 201, the sentence was sentenced, and the sentence became final and conclusive on May 20, 201.