A defendant shall be punished by imprisonment for not less than eight months.

Of the facts charged in the instant case, each of the lending of the means of access to the account (Account Number: omitted), Nonindicted Co. 1’s name (Account Number: omitted), Nonindicted Co. 2’s account (Account Number: omitted), and Nonindicted Co. 3’s name (Account Number: omitted) in the attached Table 2, 47, and 114 of the crime sight table of the lower judgment is acquitted.

The summary of the judgment of innocence shall be publicly notified.

A. Defendant

(1) misunderstanding of facts

Of the facts charged in the instant case, the Defendant did not constitute a public offering relationship with regard to the part on the establishment of partial establishment of the company and the means of access. Specifically, the part on the establishment of Nonindicted Co. 4, Nonindicted Co. 5, Nonindicted Co. 6, Nonindicted Co. 7, Nonindicted Co. 7, and Nonindicted Co. 8 were not involved in the Defendant. In addition, Nonindicted Co. 4 (No. 2 No. 10, 14-18, 22, 69, 71, and 72) and Nonindicted Co. 4, Nonindicted Co. 5 (29-3, 62, 60, 61), Nonindicted Co. 60, 102), Nonindicted Co. 5 (29-3, 62, 100, 102), Nonindicted Co. 8 (35, 40, 43, 45, 89, 95, 124), Nonindicted Co. 368, 469, Nonindicted Co. 6364 and 6368).

2) Unreasonable sentencing

The punishment sentenced by the court below (one year of imprisonment) is too unreasonable.

(b) Prosecutors;

The sentence sentenced by the court below is too uneasible and unfair.

2. Ex officio determination

In the trial of the case, the prosecutor applied for changes in the indictment in which the part concerning the exercise of the public records, etc. in paragraph (1) and the public records, etc. in the indictment of this case was changed as follows, and since this court was permitted and tried, the judgment of the court below was no longer maintained. However, although there is a ground for ex officio reversal, the defendant's assertion of misunderstanding of facts is still subject to the judgment of this

【Revised Indictment】

Around June 23, 2016, in collusion with Nonindicted 11 and Nonindicted 12, the Defendant submitted a document for registration of incorporation of a corporation to a public official in charge of registration of incorporation, such as “the name: Nonindicted 13 Company; the head office of Gyeonggi-do; the total number of issued stocks: KRW 5,000, KRW 200, KRW 1,000, KRW 1,000: 1,000, KRW 1,000: 1,000, KRW 1,000; 1, electronic commerce; 1,000, KRW 1,000, and the business entity ancillary to each subparagraph” in the Incheon District Court’s branch office, Kimpo-si, which was in the form of 16, 201, in collusion with the Defendant.

However, in fact, the defendant established a stock company and opened a passbook in the name of the stock company for the purpose of distributing the passbook, and did not have paid the capital, and did not have established the stock company.

On June 23, 2016, the Defendant: (a) had a public official in charge of registration of a court, who knows the above fact, enter the entries in the corporate register of the commercial registration electronic data processing system; and (b) around that time, had him use it by keeping the commercial registration electronic data processing system in which the false facts are entered; and (c) filed an application for establishment of false corporate registration with the above method ten times from that time to January 18, 2017, as shown in the attached list 1 of the lower judgment, with the public official in charge, submitted an application for establishment of the false corporate registration in the above manner, and exercised it by having the commercial registration

3. Judgment on the defendant's assertion of mistake of facts

A. The part on Nonindicted Co. 4, Nonindicted Co. 5, Nonindicted Co. 8, Nonindicted Co. 7, and Nonindicted Co. 6’s public electromagnetic records, etc., and the part on the use of the means of access relating to Nonindicted Co. 9, Nonindicted Co. 10

1) In relation to co-offenders who are jointly engaged in a crime by more than two persons, the conspiracy does not require any legal penalty, but is only a combination of intent to realize the crime by combining two or more persons in a specific crime. Even though there was no process of conspiracy, if the combination of will is achieved by either successively or implicitly through several persons, the conspiracy is established. A person who does not directly participate in the act of conspiracy is liable for criminal liability as a co-principal against another person’s act. The above conspiracy may be acknowledged by the circumstantial facts and empirical rules, even if there was no direct evidence (see Supreme Court Decision 2003Do4320, May 11, 2006).

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court below, the defendant can sufficiently recognize the fact that the defendant served as a broker in the name of the juristic person and opening of an account in this part of the crime, and in light of such defendant's role and the circumstances leading to this part of the crime, it is reasonable to view that the defendant conspiredd with non-indicted 15 regarding the lending of the means of access to the account opened in the name of the non-indicted 15 (the non-indicted 4 corporation), the defendant's corporate office (the non-indicted 5 corporation), the defendant's corporate office (the non-indicted 14, and the non-indicted 15 corporation (the non-indicted 8, the non-indicted 7, and the non-indicted 6 corporation) related to the non-indicted 15 (the non-indicted 9 corporation), the non-indicted 14 corporation (the non-indicted 10 corporation). Therefore, the judgment of the court below

A) The Defendant led to confession of the facts charged in the lower judgment. The Defendant also acknowledged the public offering relationship with respect to the establishment of the legal entity and the lending of the means of access (investigative Records 114-1145, 1151-1153).

B) From Jun. 2016 to Sept. 2018, the Defendant distributed the “Soverbook” under the name with Nonindicted 11, along with Nonindicted 11, from Jun. 2016 to Sept. 2018. The Defendant: (a) received documents from Nonindicted 11, and received the means of access; (b) served as the role of opening an account in the name of the legal entity; (c) soliciting the title of the legal entity; (d) attending the registry office, bank, etc. along with the title of the legal entity recruited by Nonindicted 11; and (e) stated that Nonindicted 11 played the role of selling and distributing the account under the name of the legal entity; and (e) Nonindicted 12 took the role of assisting Nonindicted 12 in opening an account (i.e., the Investigation Record 106-1067 pages). The Defendant also made it a substitute passbook in the name of the legal entity that the Defendant was named as his representative; and (e) the Defendant also stated that the account was opened under the name of another (i).

C) The Defendant directly recruited Nonindicted 14, Nonindicted 15, and Nonindicted 16 in the name of the representative of the corporation (hereinafter “Investigation Record 1068”).

D) Nonindicted 15, upon receiving a proposal from the Defendant, took part in the instant crime by: (a) Nonindicted 15, who participated in the instant crime (which means of access was issued by Nonindicted 11), Nonindicted 11, Nonindicted 12, and the Defendant, together with the Defendant, made the means of access; (b) the means of access that was issued was transferred to Nonindicted 11; (c) Nonindicted 12 and Nonindicted 11, together with Nonindicted 12, in the absence of the Defendant; and (d) Nonindicted 11, in the absence of Nonindicted 12 and Nonindicted 12, Defendant 12, together with Nonindicted 12, and Defendant 12, took bank (around 861 pages of investigation record).

2) However, this paper will examine ex officio the point of any false entry into public electromagnetic records, etc., and any use of such electromagnetic records, etc.

The prosecutor asserts that it constitutes a crime of false entry into public electronic records, false entry into public electronic records, etc., and an event of public electronic records, etc., because the defendant did not actually establish a corporation.

The crime of false entry in the original of a notarial deed under Article 228(1) of the Criminal Act is a crime, the legal interest of which is protecting the public credibility of which is recognized, and is established by having a public official enter or register false facts inconsistent with the substantive relations, such as the original of a notarial deed or the same electronic record, by filing a false report contrary to the truth. Thus, if there is no matter stated in the original of a notarial deed or there is a defect in appearance, if there is a defect in the invalidation, such entry constitutes a false entry (see Supreme Court Decision 2006Do8488, May 31, 2007).

Defects related to the establishment of a corporate corporation shall be classified into “cases where a company exists” and “cases where there exists grounds for invalidation in the establishment of a company” depending on the degree of such defects.

According to the evidence duly adopted and examined by the court below, the defendant and accomplice (hereinafter "defendants, etc.") have made a false document and filed an application for registration of incorporation without taking the procedure for the establishment of a company. However, even if the defendant et al. did not intend to operate the company for the purpose prescribed in the articles of incorporation, the defendant et al. had an intention to establish a company at least to open an account in the name of the company, and it cannot be evaluated that the company has no existed unless the registration of incorporation was made and the account in

Meanwhile, even if there is a legal ground for invalidation in the establishment of a company, the nullification of the incorporation of the company can be asserted only by a lawsuit within two years from the date of incorporation only to shareholders, directors, or auditors, and the effect of the judgment is not retroactive (Articles 328 and 190 of the Commercial Act). Thus, the act of reporting the establishment of a company to the public official in charge of public officials in charge of the establishment before the invalidation of the judgment becomes final and conclusive by judgment and having the public official in charge record the establishment in the commercial register system cannot be deemed to constitute a false report to a public official or a false record (see Supreme Court Decision 2006Do8488, May 31, 2007).

Therefore, even though the defendant et al. did not establish a company normally, it cannot be deemed that the company of this case did not exist, and since the establishment of a company did not become null and void by judgment, the defendant et al. cannot be deemed to have recorded false facts as to the establishment of a company (see Supreme Court Decision 2016Do19133, Feb. 3, 2017, etc.). This part of the facts charged constitutes a case where there is no proof of crime.

However, the changed facts charged include the facts charged that the Defendant filed a false report without actual payment of capital, and recorded false facts in the public electronic record as if the Defendant was paid in capital. According to the evidence duly adopted and investigated by the lower court and the trial court, the following circumstances are acknowledged. The Defendant, without operating a corporation, recognized that accomplices were to establish a false corporation to create a “definite passbook” (in fact, 1070 pages), established a corporation whose representative is himself/herself, or recruited the representative of the corporation in order to establish such corporation’s name. The Defendant knows the process of receiving money from Nonindicted 11 to issue a balance certificate (1070 pages of investigation record), and was aware of how the said money was used, such as paying money deposited in the account of the representative of the corporation (1070 pages of investigation record), and, in full view of the circumstances that the Defendant did not actually use the money deposited in the account of issuing a balance certificate (i.e., false entry in the investigation record), and thus, did not recognize that the Defendant did not use the stock in advance.

B. The loan of the means of access relating to Nonindicted Co. 1, Nonindicted Co. 2, and Nonindicted Co. 3 [the lending of each means of access to Nonindicted Co. 1’s account (Account Number: omitted), Nonindicted Co. 2’s account (Account Number: omitted), and Nonindicted Co. 3’s name (Account Number: omitted) in attached Table 2 to the judgment of the lower court]

In light of the following circumstances acknowledged by the evidence duly adopted and examined by the court below, the court below found the defendant guilty even though the evidence submitted by the prosecutor alone is insufficient to acknowledge the fact that the defendant lent the means of access to Nonindicted Co. 1, Nonindicted Co. 2, and Nonindicted Co. 3, which affected the conclusion of the judgment by misunderstanding the facts. Therefore, this part of the defendant's argument is justified

1) Directors of Nonindicted Co. 1, Nonindicted 17, Nonindicted 18, and the auditor are Nonindicted 17; the directors of Nonindicted Co. 2 are Nonindicted Co. 19, Nonindicted 20, Nonindicted 21, Nonindicted 22, and the auditor are Nonindicted 23 and Nonindicted 22; the directors of Nonindicted Co. 3 are Nonindicted Co. 3, Nonindicted 24, Nonindicted 25, and the auditor are Nonindicted 21 and Nonindicted 24 (the investigative record 402 pages, 5 pages, 489-490 pages).

2) From Jun. 2016 to Sept. 2018, the Defendant distributed a tentatively named “the passbook” with Nonindicted 11 from Jun. 2016, the Defendant: (a) received documents from Nonindicted 11 and received the means of access; (b) served as the role of opening an account in the name of the juristic person; (c) soliciting the title of the juristic person; (d) opening a registry office, bank, etc. along with the title of the juristic person recruited by Nonindicted 11; and (e) assisting Nonindicted 11 in establishing a juristic person and opening an account. Nonindicted 11 played the role of selling and distributing the account under the title of the juristic person; and (e) Nonindicted 12 took the role of assisting Nonindicted 12 in opening an account (i.e., opening an account with Nonindicted 12; (e) however, the Defendant appears to have played the role of opening an account in compliance with Nonindicted 11’s instructions (i.e., investigation records).

3) The representative of the corporation directly recruited by the Defendant is Nonindicted 14, Nonindicted 15, and Nonindicted 16 (Investigative Records 1068).

4) Meanwhile, with respect to Nonindicted Co. 1, there is no relevance between Nonindicted Co. 14 and the Defendant on the record except that Nonindicted Co. 14 was examined as a witness for a telephone financial fraud case in the name of ○○ Bank Account under the name of Nonindicted Co. 1 (hereinafter investigation record 300 pages).

5) In relation to Nonindicted Co. 2 and Nonindicted Co. 3, it appears that Nonindicted Co. 12 established several corporations together with Nonindicted Co. 21, 23, 25, and 24, and distributed “large passbook” (the investigative record 302 pages, 400-407 pages). However, the circumstance in which the Defendant established a corporation with those other than Nonindicted Co. 12 and distributed “large passbook” is difficult to be recorded.

4. Conclusion

In the judgment of the court below, there is a ground for ex officio reversal as above regarding the use of false entry into public electronic records, etc. and the use of false entry into public electronic records, etc., and the defendant's assertion of mistake as to the lending of the means of access to the account in the name of non-indicted 1 stock company (Account Number omitted), non-indicted 2 stock company name (Account Number omitted), and the account in the name of non-indicted 3 stock company (Account Number: Account Number omitted), and therefore, the judgment of the court below is reversed pursuant to Article 364(2) and (6) of the

【Revised Part】

Around June 23, 2016, in collusion with Nonindicted 11 and Nonindicted 12, the Defendant submitted a document for registration of incorporation of a corporation to a public official in charge of registration of incorporation, such as “the name: Nonindicted 13 Company; the head office of Gyeonggi-do; the total number of issued stocks: KRW 5,000, KRW 200, KRW 1,000, KRW 1,000: 1,000, KRW 1,000: 1,000, KRW 1,000; 1, electronic commerce; 1,000, KRW 1,000, and the business entity ancillary to each subparagraph” in the Incheon District Court’s branch office, Kimpo-si, which was in the form of 16, 201, in collusion with the Defendant.

However, in fact, the defendant established a stock company and opened a passbook in the name of the stock company and did not have paid capital only for the purpose of distributing the passbook.

On June 23, 2016, the Defendant: (a) had a public official in charge of registration of a court, who knows the above fact, enter the entries in the corporate register of the commercial registration electronic data processing system; and (b) around that time, had him use it by keeping the commercial registration electronic data processing system in which the false facts are entered; and (c) filed an application for establishment of false corporate registration with the above method ten times from that time to January 18, 2017, as shown in the attached list 1 of the lower judgment, with the public official in charge, submitted an application for establishment of the false corporate registration in the above manner, and exercised it by having the commercial registration

Articles 228(1) and 30 of the Criminal Act, Articles 229, 228(1), and 30 of the Criminal Act, Articles 49(4)2 and 6(3)3 (a) of the Electronic Financial Transactions Act, and the choice of imprisonment for each term

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

On the other hand, the following facts are favorable to the defendant. Although the defendant has been punished for a fine for the same kind of crime two times, it seems that the defendant was punished for a crime that lent and transferred means of access under several methods such as this case during the period of the principal crime, it seems that he/she could have been investigated and tried like this case. The defendant has no record of criminal punishment exceeding a fine, in addition to the punishment of a fine twice for the same crime.

Other factors such as the circumstances of the crime of this case, the circumstances after the crime of this case, the age, character and conduct, environment, etc. of the defendant, and the various sentencing conditions shown in the records and arguments of this case shall be determined as ordered.

(a) Any false entry into public electronic records, and any event such as false entry into public electronic records;

Around June 23, 2016, in collusion with Nonindicted 11 and Nonindicted 12, the Defendant submitted a document for registration of incorporation of a corporation to a public official in charge of registration of incorporation, such as “the name: Nonindicted 13 Company; the head office of Gyeonggi-do; the total number of issued stocks: KRW 5,000, KRW 200, KRW 1,000, KRW 1,000: 1,000, KRW 1,000: 1,000, KRW 1,000; 1, electronic commerce; 1,000, KRW 1,000, and the business entity ancillary to each subparagraph” in the Incheon District Court’s branch office, Kimpo-si, which was in the form of 16, 201, in collusion with the Defendant.

However, in fact, the defendant established a stock company and opened a passbook in the name of the stock company and did not have established a stock company only for the purpose of distributing the passbook.

On June 23, 2016, the Defendant: (a) had a public official in charge of registration of a court, who knows the above fact, enter the entries in the corporate register of the commercial registration electronic data processing system; and (b) around that time, had him use it by keeping the commercial registration electronic data processing system in which the false facts are entered; and (c) filed an application for establishment of false corporate registration with the above method ten times from that time to January 18, 2017, as shown in the attached list 1 of the lower judgment, with the public official in charge, submitted an application for establishment of the false corporate registration in the above manner, and exercised it by having the commercial registration

(b) Violation of the Electronic Financial Transactions Act;

No person shall borrow or lend a means of access, or keep, deliver or distribute a means of access, knowing that he/she is to be used for a crime or to be used in such crime.

Nevertheless, the Defendant knew that he was using the means of access that was sent to the public prosecutor via “Non-Indicted 17 director” in the crime of scaming or illegal gambling site, etc., but, on July 26, 2016, opened the △△△△ account (Account Number: omitted) in the name of Non-Indicted 1 Company, and lent the ecke cards and OTP cards connected to the said account through Non-Indicted 11 and Non-Indicted 17’s “Non-Indicted 17 director” and lent the ecam cards and OTP cards connected to the said account to the Non-Indicted 11, and from that time until January 19, 2017, the Defendant knew that the means of access would be used for the crime of using the means of access more than three times, such as the list of crimes (not guilty part) in attached Form 11 and “Non-Indicted 17 director.”

2. Determination

(a) Parts concerning false entry into public electronic records, etc. and events such as false entry into public electronic records;

This part of the facts charged constitutes a case where there is no proof of crime as seen in the above 3-A.2, and thus, the defendant should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, inasmuch as the defendant is found guilty of the crime of false entry in public electronic records, etc. related to the payment of the price of the stock price, and the crime of uttering of false entry in public electronic records, etc

B. Part on violation of the Electronic Financial Transactions Act

This part of the facts charged constitutes a case where there is no proof of crime as seen in the above 3-B B-B, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure

C. Disclosure of the acquittal portion

In accordance with Article 58 of the Criminal Act, the summary of the judgment of innocence (including the part of innocence) shall be published.

[Attachment]

Judges Park Jong-chul (Presiding Judge)