2013Gohap696(combined) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

J., Attorney J

[2013] 70643]

The defendant was a person who operated the above companies with the president of K Co., Ltd. (hereinafter referred to as "K") and L Co., Ltd. (hereinafter referred to as "L"), and he was aware of M through the introduction of victim N on April 2007 by the victim M, and M was a 3rd disabled person, but M was aware of the ownership of a cost of KRW 00 million in the course of operating a mobile phone agency, and he was aware of the ownership of a mobile phone agency, he was aware of M by deceiving M as he could guarantee high-profit profits through access to and real estate development.

At the time, the Defendant was a bad credit holder due to the default of taxes of KRW 20 million, and the Defendant did not have any intent or ability to repay money even if he borrowed money without any assets.

1. Fraud on April 6, 2007 against the victim M;

On April 6, 2007, the defendant conspired with the above K and LP, borrowed KRW 1 billion from M from the L office located in Q Q in Gangnam-gu, Seoul on April 6, 2007. The defendant agreed to obtain the above loan amount of KRW 327m R, S 100m, T 9m, U 532m, and two-story buildings on the ground (hereinafter referred to as the "real estate in this case"), which were registered as a collateral for the above loan, and the defendant did not have an intention to make the registration of the creation of the neighboring mortgage over KRW 30 billion. The defendant did not have any actual profits of the principal and interest of KRW 1 billion, and the defendant did not have any intention or ability to pay the principal and interest of KRW 300 billion to the third party on the loan of KRW 20 billion, the maximum debt amount of KRW 15 billion, KRW 700,000,000,000 and KRW 164,000,00 remaining agricultural cooperatives.

2. Fraud against the victim M on May 3, 2007

On May 3, 2007, the fact that the above L was located in the same place is a building owned by a large road (hereinafter referred to as "sken road"), the lessee is a stock company, new E&G (hereinafter referred to as "new E&G"), and the above new E&G was terminated on February 28, 2007. The above L was the relationship between new E&G; the sub-lease from the new E&G; the fact was that there was no intention or ability to purchase the land or borrow the land as collateral; even if the sale and purchase of the above land was merely 1.9 billion won, and there was no intention or ability to borrow the above land as collateral; and even if the above land was not 1.0 billion won, the lessee did not have an intention or ability to sub-let the above land in the name of the public trust institution such as the bank, etc., and there was no intention or ability to sub-let the above 1.5 billion won and no intention or ability to sub-let it in the name of the Incheon MN.

3. Fraud on May 7, 2007 against the victim M

On May 7, 2007, in collusion with X, the Defendant did not have the intent or ability to purchase the land or to obtain a loan as security, even if there was no actual sales contract for the land in Seo-gu Incheon, Seo-gu, Incheon. The contract itself was nonexistent on May 4, 2007. The above land sales price was merely KRW 1.9 billion, and it was not regularly known to a reliable institution, such as a bank, etc. whether the above land can be borrowed as security, and even if the above money was not used as a down payment and was planned to use it individually, the Defendant acquired the above land as security and acquired a cashier's checks at a face value of KRW 3.3 billion by adding KRW 5.3 billion to the above land. At that time, the Defendant acquired the above land as security and acquired it by deception at a face value of KRW 500 million from M.

4. Each fraud against the victim M and N;

On May 23, 2007, the Defendant conspired with V and used it for personal use, not for Y, even if he received the money from M as a Y expense, and used M’s money as a down payment to 2 federation, even if Y expenses were received from M, M did not have the intent or ability to reduce the profit. Notwithstanding that M did not have the intent or ability to do so, M is entrusted with the chairperson of the Y event execution committee held in the Gu-Si, Gyeonggi-do from June 7, 2007 to June 13, 2007. The Y event is a profit of 30-4 billion won. Along with the loan of the expenses, half of the profit generated from Y’s first loan of Y, including the first loan of 300 million won, and all of 300 million won from Y’s deposit account will be remitted to 300 million won in the name of 50 billion won in the name of each of the Defendant’s bank management.

[2013 12696]

5. The fact of fraud against the victim 0 is that the defendant had no intention or ability to actually operate the above terminal business, and the victim obtained money from M and AC as a security, and the victim did not have an intention or ability to resolve the lending of money from M and AC under the victim's name, it is possible to obtain an investment for the victim who was known on April 5, 2007 at issue to M and AC as a security, and the remaining amount is 1.7 billion won, 7 billion won, 1.7 billion won, 1.7 billion won, 1.7 billion won, 7 billion won, 1.7 billion won, 1.7 billion won, 4 billion won, 1.7 billion won, 1.7 billion won, 1.7 billion won, 1.7 billion won, 1.7 billion won, 1.7 billion won, 205 billion won, and 1.7 billion won, 2.7 billion won, 3.7 billion won, 3.7 billion won, and 4 billion won, 7.7 billion won, .7 billion won, .7 billion won,

Summary of Evidence

[paragraph 1 of this Article] - 2013 Highest 643]

1. Partial statement of the defendant;

1. Statements and records of witnesses M in the first protocol of trial;

1. Statement of M in the interrogation protocol of the accused by the prosecution (third time);

1. Statement 0 of the suspect interrogation protocol of the accused by the prosecution (five times);

1. Statement AD among suspect interrogation records of the prosecution (second time) concerning 0;

1. A suspect interrogation protocol concerning V by the prosecution;

1. Statement of M made by the prosecutor's office (second time) 1. Entry of M in the police interrogation protocol of the police officer as to M;

1. Each police statement of M;

1. A written statement of the preparation of the E;

1. Japanese bank account (AF, 1 billion won supporting evidence of deposit), K representative V deposit account number table, copy of promissory note (1 billion won as security), certificate (1 billion won as security) and written agreement, authentic deed (1 billion won as notarized promissory note amounting to 1 billion won after 3 days of deposit in the own land), certified copy of the certificate (1 billion won as notarized note amounting to 1 billion won), certified copy of the certificate (1 billion won), written confirmation (AH), written confirmation (AH), written confirmation (AH), written confirmation of real estate auction decision, appraisal report, investigation report (to be accompanied by this statement), witness examination report, investigation report (1 billion won as a result of account tracking);

[paragraph 2 of this Article] - 2013 Highest 643]

1. Each statement of witness M and N in the first trial record;

1. Each statement of M and N in the suspect examination protocol of the accused by the prosecution (third time);

1. A suspect interrogation protocol concerning V by the prosecution;

1. Each prosecutor's statement of M and N (the second prosecutor's statement);

1. Real estate lease contract (payment in lieu of KRW 100 million), pre-announcement of transfer, real estate lease contract, and investigation report (report on results of account tracking);

[paragraph 3 of this Article] - 2013 Highis643]

1. Partial statement of the defendant;

1. Each statement of witness M and N in the first trial record;

1. Partial statement of a witness X in the 11th trial record;

1. Some statements of each prosecutor's protocol of examination of the accused (2 and 4 times) to the prosecution;

1. Each statement of M and N in the suspect examination protocol of the accused by the prosecution (third time);

1. Examination protocol of the suspect of X-type prosecutor's office (the first time);

1. Each police statement of M;

1. An agreement (as of May 7, 007, A, X-Wil, Incheon Land-related), a copy of a cashier's check, confirmation of KRW 500 million, certificate of confirmation, agreement, agreement (X, A Preparation), defense counsel's opinion (Evidence No. 115), investigation report (a copy of the judgment attached thereto), investigation report (report on the results of account tracking), and investigation report (as of confirmation of the facts that A withdraws money from V's passbook);

【Paragraph 4’’ 2013 Gohap643】

1. Each statement of witness M and N in the first trial record;

1. Entry of a witness AK's partial statement in the fourth trial record;

1. Partial statement of the suspect interrogation protocol of the accused by the prosecution (fourth time);

1. Statement of M in the interrogation protocol of the accused by the prosecution (third time);

1. A suspect interrogation protocol concerning V by the prosecution;

1. Each prosecutor's protocol of statement about M and N (second time);

1. The prosecutor's statement to AK;

1. Each police statement of M;

1. AK’s statement;

1. Agreements (V, A Agreement, Y-related KRW 700 million), deposit receipts (300 million won), loan receipts (cash storage certificate, L representative V writing) and evidential documents on deposit, Y-related data (Gu Council of AA Organization in Gu/ri), summary of the execution details of daily expenses related to Y, daily table, photo (related to AA's position), and protocol of examination of witnesses;

[paragraph 5 of this Article] - 2013 Highis696]

1. Statement of witness 0 in the third protocol of the trial;

1. Statement 0 of the suspect examination protocol of the accused by the prosecution;

1. Statement made by the police about 0;

1. A complaint (Evidence Nos. 3), content certification, bill notarial deed, note, investigation report (aduplicating a copy of a document), investigation report (aduplicating a copy of a notarial deed);

Application of Statutes

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

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347 (1) of the Criminal Act, Article 30 of the Criminal Act [the 15-year imprisonment in accordance with the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010; hereinafter the same shall apply], Article 347 (1) of the Criminal Act (amended by Act No. 10259, Apr. 15, 2010; hereinafter the same shall apply], Article 347 (2) of the Criminal Act, Articles 347 (1) and 30 (4) of the Criminal Act, Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 10250, Apr. 15, 2010)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2 and Article 50 of the Criminal Act and Article 50 of the Judgment with the largest sentence shall be deemed concurrent crimes with the punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)]

Judgment on the argument of the defendant and defense counsel

1. As to paragraphs 1 through 3 of the holding

A. Summary of the defendant and his defense counsel

(1) In the case of paragraph (1) of the judgment, the victim M received KRW 1 billion from the victim M as an investment money for the multi-stage business, not the borrowed money, and there was no criminal intent to acquire it, and even if the domestic loan is a domestic loan, the lender is a representative director, this or K representative director, and the defendant was not involved in the above monetary transaction, and there was no deception of the victim M.

(2) In the case of paragraph (2) of the holding, the building leased with the money received from the victim M was used as the L's office operated by V, and it was merely borrowed from V, and it is irrelevant to the defendant, and the defendant did not make a statement as stated in the facts constituting the crime in the judgment against the victim M.

(3) In the case of paragraph (3) of the holding, the Defendant received KRW 500 million from the victim M. However, the Defendant did not have been involved in the money transaction related to the Seo-gu Incheon Metropolitan City land (hereinafter “WW land”) between X and the victim M. However, the Defendant arbitrarily used KRW 300 million while receiving the above KRW 500 million from the victim M to the effect that it should be delivered to X as the sexual death down payment of the said land sales contract.

B. Determination

In full view of the following circumstances recognized by the evidence duly adopted and investigated by this court, the defendant can be fully recognized as a substantial manager of K and L, as stated in paragraphs 1 through 3 of the judgment of the victim M, and thus, the defendant and his defense counsel are not allowed to accept each of the above arguments.

(1) In relation to the status of the Defendant’s K and L, N,O, V, X, AD, AD, AK, AH, AI, etc. stated that the Defendant was the actual manager of each of the above companies, and the Defendant also stated that “K, L is a financial multi-level company, its name is different, and is a single company (Evidence No. 166),” and even the agreement (Evidence No. 14) signed and sealed by the Defendant is written as L’s representative director.

(2) As to paragraph (1) of the judgment

① The victim M lent KRW 1 billion to the defendant in an investigative agency and this court, and the defendant and this court stated that the defendant would offer the real estate of this case as security for the above KRW 1 billion, and the statements made by N in investigative agency also conform to the statements made by the victim.

② The victim M remitted the above KRW 1 billion to the account in the name of V registered as K’s representative director at the time of the Defendant’s order, and V was only the Defendant at the investigative agency, and the Defendant was merely the head of the branch office. Upon the Defendant’s request, the Defendant stated that, although the Defendant opened the account in the name of the principal, he was in charge of his personal seal impression, etc., the Defendant’s payment was transferred to another passbook. (Evidence No. 126). (Evidence No. 126) 0 was stated to the effect that the said KRW 1 billion was transferred to the other passbook (Evidence No. 130,205). (Evidence No. 130,205), the above KRW 1 billion was immediately transferred to the account in the name of AD, and the Defendant’s payment was withdrawn from the account in the name of V (Evidence No. 210). (Evidence No. 2111).

③ In addition, even if the Defendant and the Defendant delivered the above KRW 1 billion in relation to the Defendant’s multi-stage business operated by the Defendant, in light of the fact that the Defendant and the Defendant promised to establish the instant real estate as a collateral for the said KRW 1 billion, and in light of the fact that a promissory note No. 1 billion was prepared and executed, it is difficult to view it as an agreement to assume not only the profit but also the loss according to the business failure, and rather, it is natural to view that the Defendant and the Defendant agreed to pay the profits through the K’s multi-stage business under the terms

(3) In relation to Paragraph (2) of the holding, the victim M made a statement that "the defendant was given KRW 100 million upon the request of the investigative agency and the defendant to lend the lease deposit for the lease of the office to be used by L, and the N's investigation agency and the statement in this court also conforms with the above victim's statement.

(4) As to paragraph (3) of the judgment

① The victim M made a statement in the investigative agency and in this court that “When the Defendant and X lend down payment of KRW 500 million to purchase W land, the victim M said that it would incur a loan of KRW 300 million by offering the said land as security and would pay KRW 800,000,000,000.” The N’s investigative agency and the statement in this court conform to the above victim’s statement.

X worked as the vice-chairperson at K operated by the defendant, and was in charge of the re-examination and asset management of the above company.

③ Around May 4, 2007, the Defendant and X provided a written agreement (Evidence No. 11) stating that “Around May 7, 2007, the Defendant and X shall accept KRW 500 million as the down payment of W land and shall preferentially pay KRW 11,000 upon occurrence of PF,” and at the same time received a cash check of KRW 500 million issued by the victim M through N, and thereafter notified the victim M of the fact that the contract was nonexistent or did not return KRW 500 million. In relation to the preparation of the above written agreement, in X’s criminal case, the accomplice of the instant crime, stated that X purchased W land at KRW 1.9 billion to the Defendant and used it as a golf practice course, and the Defendant also agreed that the Defendant and the Defendant signed and sealed it as the down payment of KRW 1.5 billion as the borrowed money by signing and sealing it as the down payment from each of the Defendant and the Defendant.

④ From May 10, 2007, the Defendant received the above KRW 500 million, the Defendant paid KRW 200 million among them as Y event down payment, and used KRW 100 million as L’s operating fund at will.

2. As to paragraph 4 of the holding

A. Summary of the defendant and his defense counsel

The defendant only recommended the victim M and N to invest in a Y event, and did not deceiving the victims.

B. Determination

The court stated that "the defendant was entitled to 1 billion won for the above 5 billion won for the enforcement of the YM 200 million won for the defendant's 1's own interest at the time of the enforcement of the YM 1'. The defendant was entitled to 30 billion won for the above 4's own interest at the time of the enforcement of the YM 2's 1'. The defendant was entitled to 5's interest by the defendant's 1's own interest and 70 billion won for the above enforcement of the Y 1'. The defendant was entitled to 1's interest at the time of the above enforcement of the YM 2'. The defendant was entitled to 70 billion won for the above enforcement of the YM 2's interest. The defendant was entitled to 1's interest at the time of the above enforcement of the YM 2'. The defendant's interest and 1's interest in the 300 billion won for the above enforcement of the YM 2's interest.

3. As to paragraph 5 of the holding

A. Summary of the defendant and his defense counsel

The Defendant did not agree to the effect that each promissory note No. Ma and AC is to be resolved later by the victim, and each of the above notarial deeds is written by the victimO under its own responsibility and judgment in order to attract investment funds from M and AC.

B. Determination

The following circumstances acknowledged by the evidence duly adopted and investigated by the court, i.e., ① the victim's right to receive investment for the terminal business from the investigative agency to this court, and the victim's right to request M and AC to provide collateral, and so, even if the promissory note is notarized, it would not cause damage to the investors. ② the defendant made a statement that "the victim would immediately terminate the authentication if the business profit accrues," and ② the defendant made the victim's investment of KRW 1 billion to M and ordered M to cancel the authentication immediately after 1 billion investment to the above 0 billion won, and the defendant did not accept the above promise five times as stated in the judgment that "the defendant would not have been subject to the above notarial deed" and "the above notarial deed was issued to M and 10 billion won," and the defendant would not be subject to the above notarial deed at the request of the defendant. The defendant knew that the above notarial deed was issued to M and 200 billion won.

Reasons for sentencing

1. Application of the sentencing criteria;

[Types] Fraud, general fraud, and not less than 5 billion won but less than 5 billion won (type 3)

【Special Convicted Person】

[Scope of Recommendation] Three to Six years of imprisonment (Basic Area)

2. Determination of sentence;

Considering the fact that the Defendant took advantage of approximately KRW 2 billion for each of the instant crimes, thereby causing considerable damage to the victims, the amount of damage not recovered until now, the Defendant appears not to have made a special effort to recover from damage, and the victims strongly wanted to punish the Defendant, it is reasonable to impose strict punishment on the Defendant.

However, given the favorable circumstances that the defendant has no particular criminal record to be considered in the instant case, the defendant's age, occupation, family relationship, personality and behavior, living environment, etc. shall be determined by comprehensively taking into account various sentencing factors expressed in the instant case's trial process.

Judge Senior Professor

Judges Park Jong-young