(영문) 서울중앙지방법원 2019.1.10. 선고 2018고합653 판결

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특정경제범죄가중처벌등에관한법률위반(사기)

Cases

2018Gohap653 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

Defendant

Prosecutor

Lee Young-hun (prosecution) and friendly (public trial)

Defense Counsel

Attorney Park So-young

Imposition of Judgment

January 10, 2019

Text

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

Reasons

1. Summary of the facts charged

The defendant is the representative director of the corporation B (hereinafter referred to as "B"), and C is the representative director of the corporation D (hereinafter referred to as "D"). The defendant, together with C, was willing to raise investment funds for B's business to acquire and sell patent rights of patent engines.

From July 4, 2006 to December 26, 2007, the Defendant, along with C and D’s directors and headquarters directors, acquired the Roter engine’s Asian manufacture and sales licensing from the Roter engine’s Asian research and development from G company (hereinafter “G”), at the location of the 7th floor D office in Gangnam-gu Seoul, Seoul, Seoul, 2007. The Defendant issued 10-100 shares at the time of listing the Roter engine’s stocks when it exclusively manufactures and sells the Roter engine. The Defendant issued Roter engine’s stocks as if it invested in the Roter engine-related business promoted by B and D, with a false statement that the Roter engine’s exclusive business license is worth several trillion won and thus, issued shares equivalent to the stock subscription price.

In fact, D's business structure is 35% of the investment funds received from investors, 35% of the investment funds is divided into officers, the head of the headquarters, and the salesperson. Of the investment funds, 55% of the investment funds is paid as licensing expenses to B and the defendant who acquired the exclusive business right in Liter engine Asia. The remainder of 10% of the investment funds is also disbursed as the corporate operating expenses, such as corporate card expenses, purchase cost of external vehicles, office rent, etc., and there was no possibility of causing sales or realizing profits within a short time due to the absence of any funds to be invested in the establishment of a factory for the sole purpose of manufacturing and selling the exclusive business. As a result, D's listing was impossible, and Hiter engine was not completed, and since D's investment funds was not completely developed after the commencement of the business, it was possible to divide the profits from the investment funds to the date of its acquisition of exclusive rights, its business plan and business plan, profit-making, etc., even if it was not possible to manufacture and sell the investment funds.

Accordingly, the Defendant conspired with C in collusion, and received KRW 20,000,000 under the name of the share subscription price having a substantial nature of investment money from the said I around July 4, 2006, and received KRW 11,875,31,000 in total from the victims through the same method over 2,384 times between December 26, 2007 and until December 26, 2007, as shown in the attached list of crimes.

2. Summary of the defendant and his defense counsel

The Defendant recognized the fact that he operated B. However, the Defendant did not jointly operate D with C, and did not participate in C’s solicitation. The Defendant acquired the right to manufacture and sell the HH Roz engine’s right to manufacture and sell in the Asian region, the development of which was completed from G, and only received funds from D that evaluated the technology and business feasibility. The investment funds received from D were actually paid in G. Accordingly, the Defendant did not induce investors in collusion with C.

3. Facts of recognition.

According to the evidence duly adopted and investigated by this Court, the following facts and circumstances are recognized:

① The Defendant served as the head of J (hereinafter referred to as the “J”)’s branch office, and the Defendant was in the position of the director in charge of foreign affairs of J. On January 29, 2008, K’s representative director, “Seoul Eastern District Court 2007No1255 (hereinafter referred to as “Seoul Eastern District Court 2005, Sept. 29, 2005, developing the so-called public pressure vehicle engine operated only through electricity and compressed air without using oil at all and from September 2006, thereby acquiring 5.6 billion won from investors.” The judgment became final and conclusive after having been sentenced to five years of imprisonment with prison labor for the crime of fraud, such as “the purchase of J’s shares and acquired 5.6 billion won from investors” (hereinafter referred to as “the Seoul East East East District Court 2006Da23201, Sept. 14, 2006).

② On May 19, 2006, C established D, and the Defendant established B on May 25, 2006. D drafted a content-based partnership agreement with B on June 2, 2006, in order to make an investment of KRW 2 billion and acquire 30% of B’s share in return, and drafted a license agreement with the effect that it shall acquire B’s domestic business rights on the half-Vel engines in return for making an investment of KRW 2 billion in B on September 19, 2006. A number of agreements have been concluded even after September 2, 2006.

③ Roter engine is a type of engine developed in the 1950s by German Litop in Germany, unlike ordinary engines that obtain power by making a round-to-way movement in the straight line. The Liter engine is a kind of engine developed in the 1950s. The Liter engine is currently being used in unmanned aircraft, etc. because of small size compared with ordinary engines. The halfel engine is not referred to as a particular company or a particular trade name, but is produced by various companies as a kind of Liter engine that occupies a large number of Liter engines.

④ On December 9, 2015, Seoul East Eastern District Court Decision 2015Rahap191 (hereinafter “D’s multilevel organization from July 4, 2006 to December 26, 2007, by deceiving the investment of 10 to 12.3 billion won in stocks subscription price for D, thereby obtaining an investment amount of KRW 12.3 billion from November 19, 2007 to November 13, 2008, by deceiving M Co., Ltd. (hereinafter “M”) to make an investment in the Round engine business through the multilevel organization of D’s multilevel organization. The judgment of the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter “Act on the Aggravated Punishment, etc.”) was rendered final and conclusive as the crime of violation of the Act on the Aggravated Punishment, etc. of Door-to-Door Sales, etc. of Specific Economic Crimes (hereinafter “Act”).

6C transferred the amount of KRW 4.5 billion out of the investment amount of KRW 12.3 billion, which was received as the price for subscription of D’s shares, to the Defendant or B’s account.

(6) B has not sold Groter engines or sold them through its license until now.

4. Determination,

In light of the above facts, the defendant is suspected of not deceiving the investors of D in collusion with C.

However, in full view of the following facts and circumstances acknowledged by the evidence duly admitted and investigated by this court, it is insufficient to recognize that the facts charged in this case, which the defendant recruited to commit fraud with C while operating D along with C, was proven to the extent that there is no reasonable doubt.

A. Whether the defendant D is running

The facts charged of this case are premised on the Defendant’s operation of D along with B as well as C, but it is difficult to view that the Defendant directly operated D beyond the receipt of investment from D.

① The employees of D, together with the first C, were composed of the persons employed in the J or the investors of the J, and thereafter C’s dynamics were employed in D. Meanwhile, there was no fact that the Defendant participated in D’s personnel management.

② If investors invite other investors, D paid an amount equivalent to 35% of the investment amount as an allowance for investment attraction. There is no evidence to deem that there was a defendant involved in the expenditures of the company operating expenses, such as the calculation and payment process of such allowances and the wages for executives and employees.

③ As seen earlier, multiple partnership contracts, etc. were prepared between D and B. In light of C’s legal statement, such contracts, etc. do not appear to have been prepared for the purpose of tending the external appearance as two corporations.

The CD’s directors asserted that D and B were substantially a single legal entity in this Court, and stated to the effect that “D was invested and promised to share B in return for their investments.”

However, in light of the fact that only the D’s stock storage certificate was issued to investors, and no written document was issued to deliver B’s stocks, and that investors 0 and F, which had been the starting point of this Act, agreed to receive the D’s first stocks, were later notified to the effect that D will deliver B’s stocks in lieu of D’s later from the D’s point of view, and that, in fact, C was actually aware of the fact that the said statement was made to the effect that the investors were unable to pay profits to D’s investors and delivered B’s share certificates equivalent to the shares in D’s stocks that the investors attempted to commit fraud, etc., the said statement made by C and N is difficult to believe.

B. In the degreeD to which the Defendant was involved in the solicitation of investors, it is difficult to readily conclude that the Defendant was involved in providing an explanation that constitutes deception in the process of soliciting investors by offering specific figures of investment return, investment value, etc. and providing an explanation and soliciting investors.

① Even according to the D’s legal statement, the explanation of D’s investment to investors was first made by D employees at the office, and the Defendant explained the D’s technology to investors in the open space and stated that there was sufficient vision due to an innovative business item. However, there is no fact that the Defendant presented a specific amount of profit (No. 39:41 pages). Even according to N’s statement, it is unclear whether the Defendant made a fraudulent act beyond the positive expression of the business prospects possible under social norms. N is infinite from the Defendant in this court to determine the business prospects in D separately from the Defendant, and it is not a defense counsel to the effect that “the Defendant would not gather the investment money,” and that it was not an exaggeration in D’s business prospects, and that it was not an “the Defendant or the Defendant’s profit return for a few years” (no. 2) but it was not an “the Defendant or the Defendant’s profit return for a few years.”

③ The 0.F stated to the effect that, after investing in D in this Court, the Defendant came to know of the fact that the Defendant had not promised to make profits while referring to specific figures.

C. The credibility of C’s statement

C In the investigative agency and this court, “Defendants have acquired the exclusive license for the manufacture and sale of Asia of Loter engine H, which they have developed in Germany from G. However, since certain amount of money is required, the C branch office collects investment money in the same way as in J only to the amount of KRW 2 billion, and the remaining amount of money necessary may be punished by 10 to 100 times the investment money in a short term by receiving the investment from the institution, and making an investment with the intent that “I will attract investors and make an investment in B,” it means that “I will make an investment in trust and make an investment.”

However, it is difficult to believe the above C’s statement for the following reasons.

① During the process of being investigated as the principal offender for multi-stage fraud crimes using D and being prosecuted, C expressed his/her responsibility to the maximum extent possible to the accused. C was sentenced to the judgment of the first instance court and sent a letter to the prosecutor demanding the investigation of the accused. Although C’s punishment becomes final and conclusive at the time of this legal statement, the possibility that the Defendant’s act and role were distorted due to the intentional and private responsibility to investors, existing statements during the investigation process, etc. cannot be ruled out.

② On November 16, 2005, C was sentenced to a fine of KRW 15 million due to a violation of the Act on the Regulation of Temporary Receiving of Funds in the Incheon District Court’s Branch Branch, and as seen earlier, the J also made a public offering of investment by using a multi-level organization. C returned to the investors of J, when it is necessary to refund the investment money which is unable to cope with by himself/herself due to his/her economic power, he/she directly visited G of Germany and made an investment again through D and invested it in B (C record 6-7 pages of the C recording), and C used the investment fund in the name of D by making use of the defective M& who would not receive any investment money any more from D and would not take place at all from the beginning, and used the investment fund as D’s operating funds by making use of the multi-level investment scheme under the name of D (C-176-276).

As such, C has been in a situation in which it is necessary to continuously search for high-risk and high-risk business and invest in order to maintain its own multi-level organization and investors, and in fact, B has continuously recruited investment funds using a multi-level organization for other business purposes. Accordingly, C is likely to have neglected the possibility of success of business and expected profit because it determines investment in B based on one’s own interests, and it is necessary for investors recruitment.

D. It is difficult to view that B’s Loterar engine project is not premised on the technology that is impossible to realize the project of B’s Loterian engine project, but only the evidence submitted by the prosecutor that does not have a high possibility of creating revenues.

① The Korea Institute of Machinery and Technology, which is a government-invested institution, was given technical guidance regarding “P” by supporting technical assistance programs for small and medium enterprises of the Korea Institute of Machinery and Technology. The Korea Institute of Machinery and Technology, along with B, offered support as a research task called Q Q to the Korea Institute of Military Cooperation and Cooperation under the Korea Institute of Defense and Technology. Accordingly, R, working in the Korea Institute of Machinery and Technology, stated to the effect that this Court could have failed to implement the Roter engine domesticization project, but it could be technically transferred.

② From July 3, 2006 to December 21, 2017, the Defendant and B remitted a total of KRW 3,695,492 luxs (in total, KRW 4.4 billion) to G and its holding companies, and G has the exclusive power to produce and sell G’s Hhoter engine Hprop since November 2, 2018.

e-mail was sent.

5. Conclusion

The facts charged in this case constitute a case where there is no proof of facts constituting the crime, and thus, is pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, and a summary of the judgment of the defendant is publicly announced pursuant to

Judges

The presiding judge, the highest judge;

Judges Gin-type money

Judges Shin Jae-ho

Attached Form

A person shall be appointed.

참조조문

-방문판매 등에 관한 법률

-유사수신행위의 규제에 관한 법률

-특정경제범죄 가중처벌 등에 관한 법률

-형법 제58조 제2항

-형사소송법 제325조