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

Defense Counsel E, F

【Criminal Power】

On January 13, 2005, the defendant was sentenced to 10 years in Seoul High Court for the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and completed the execution of the sentence in the female prison on June 26, 2013.

[2016Gohap380]

1. Violation of the Act on the Aggravated Punishment of Specific Economic Crimes;

In January 2014, the Defendant made a false statement to the victim G at the coffee shop located in the Gwanak-gu Seoul Special Metropolitan City, Seoul Special Metropolitan City, to the effect that "if he/she newly constructs a tourist hotel with the building located in Dongdaemun-gu, Seoul, he/she will grant the right to operate the hotel and pay the principal and interest within two months if he/she lends KRW 60 million to him/her."

However, even if the Defendant did not have any apparent asset and did not borrow money from the victim because there was no fixed income after his life for ten years, the Defendant did not have any intent or ability to repay the money, and did not have any intention or ability to proceed with the business.

Nevertheless, the Defendant, as above, by deceiving the victim, received KRW 60 million from the victim, around February 17, 2014, and obtained KRW 138,346,19,510 from around that time to May 29, 2015, such as the list of crimes in each category 138 times as the list of crimes.

2. Fraud;

피고인은 2014. 1. 15.경 서울 관악구 | 소재 상가 건물 2층 사무실에서 피해자 J에게 "10년을 징역 살고 나와서 이제 동대문 K 쇼핑몰, H 빌딩 지분을 찾아와야 된다.

However, the representative of K corporation has a current representative L, and the current representative L can find 40% shares in H building if he/she pays KRW 50 million to the present representative L, which means that if he/she lends KRW 50 million to only KRW 50 million, he/she will pay interest even after a week, he/she will repay the money.

However, even if the defendant borrowed money from the victim, he did not have the intention or ability to repay it.

Nevertheless, on January 16, 2014, the Defendant, by deceiving the victim as above, obtained a cashier's checks from the restaurant located in the Dongjak-gu Seoul Metropolitan Government, and acquired a copy of KRW 50 million from the victim.

[2016Gohap55]

Around 18:00 on February 28, 2015, the Defendant made a false statement to the effect that “A victim M is holding 230 K store and holding 49% of the shares in H building because there is no cash expense, if he/she lends 50 million won per week, he/she will use 50 million won per week and pay interest at least ten times.”

However, even if the defendant borrowed money from the victim, he did not have the intention or ability to repay it.

Nevertheless, on March 4, 2015, the Defendant, by deceiving the victim as above, received 30 million won from the victim to the bank account in the name of Defendant N, a woman living together with Defendant (Korean Bank 0) and took advantage of it.

[2016Gohap776]

1. Fraud on May 24, 2012

On May 20, 2012, the Defendant made a false statement to the Victim P, who had been interviewed in a female correctional institution, that “The Defendant would immediately pay for parole when paroled.”

However, even if the defendant borrowed money from the victim, he did not have the intention or ability to repay it.

Nevertheless, on May 24, 2012, the Defendant, as seen above, by deceiving the victim and deceiving it from the victim, wired KRW 20 million to the bank account (O of a new bank) in the name of the Defendant who is a female student.

2. Fraud on 12, 2013

On December 5, 2013, the Defendant made a false statement to the victim P by developing K and H shopping mall in the vicinity of the AZ as a hotel, etc. at the R office operated by the Defendant, a corporation operated by the Seoul Special Metropolitan City Q Q Q 305, stating that “If he/she sells it in lots, he/she will make a high profit.” The Defendant made a false statement to the effect that he/she will make a business trip in Hong Kong in order to recover his/her equity interest, if he/she loans expenses incurred in making a business trip to the Hong Kong in order to attract the investment.”

However, the Defendant was unable to repay money from the victim because he did not have any share in K, etc. even if he borrowed money from the victim because he did not have any intent or ability to promote the above development project.

Nevertheless, the defendant deceivings the victim as above and acquired 8,90,000 won from the victim to the account specified in paragraph (1) on the same day.

3. Fraud on January 24, 2014

On January 24, 2014, the Defendant made a false statement to the victim P with the same purport as the stated in the aforesaid paragraph (2) at the R Office Co., Ltd. as the victim P.

However, in fact, the defendant did not have any intention or ability to pay the money under the circumstances as described in the above 2 above, and at that time there was no plan to make a business trip to Hong Kong.

Nevertheless, the defendant deceivings the victim as above and acquired 9,450,000 won from the victim to the account specified in paragraph (1) on the same day.

[2016Gohap951]

around August 2013, the Defendant came to know of the Victim S through the branch of the Defendant. The Defendant did not have any intent or ability to repay even if he/she borrowed money from the victim due to lack of certain income or specific assets.

Nevertheless, the defendant has already committed the following crimes on the old room, where there is no possibility of failure or promotion, or where there is little possibility to do so.

1. Fraud on December 12, 2013

Around October 2013, the Defendant made a false statement to the effect that “The Defendant would repay the amount without a mold three days after he/she borrowed the amount of attorney’s fees to the victim, who is urgently required in a lawsuit to operate a excursion ship business in Busan Special Metropolitan City, from the office operated by the Defendant.”

On December 12, 2013, the Defendant, by deceiving the victim as above, obtained money of KRW 15 million from the victim to a new bank account in the N’s name and acquired money by deceiving the victim.

2. Fraud on March 3, 2014

Around March 3, 2014, the Defendant made a false statement to the effect that “If the Defendant borrowed money due to the shortage of business expenses, such as advance payment, etc., he/she will repay without any mold” to the victim at the place stated in the above paragraph (1).

As above, the Defendant, by deceiving the victim, received from the victim the money of KRW 9 million in the name of the said borrowed money from the victim to the account in the N’s name on the same day.

3. Fraud on March 18, 2014

Around March 18, 2014, the Defendant made a false statement to the effect that “If the Defendant lends money to the victim as the expenses for translation of the documents to be received from Makao for running a business in Makao, he/she will complete the payment without a mold after one week,” at the place specified in the above paragraph (1).

The Defendant, by deceiving the victim as above, received money of KRW 1,80,000 from the victim as above, from the victim to the account in the N’s name on the same day.

[2016Gohap1344]

around 14:00 on June 5, 2015, the Defendant made a false statement to the victim V to the victim V, “from August 30, 2015, the entire sale of the Seoul metropolitan shopping district was commenced at the latest, and from November 30, 2015, the total sale of the H hotel was 8% on the basis of the profit as a sales agency fee. Of this, the Defendant distributed 70% among this, and designated as an exclusive position in connection with the sales agency. The Defendant made a false statement to the effect that “The payment will be made after 30 million won after the expiration of 3 months” is made.

However, in fact, the Defendant did not have acquired the right to sell a hotel store and H hotel sales agency at the time, and did not have any other property or income. Even if 200 million won was invested by the victim, it was thought that most of the said money was used for personal debt repayment and living expenses. Thus, the Defendant did not have the intent or ability to distribute the profit to the victim or to designate the victim as the exclusive status or person related to the sale of the land within each of the above periods, and there was no intention or ability to pay KRW 300 million after three months as agreed in the event that the above contents were not sexual intent.

Nevertheless, the defendant deceivings the victim as above and acquired 200 million won through the N's account (new bank 0) used by the defendant on the same day from the victim.

Summary of Evidence

【Prior Records at the Time of Sales】

1. Inquiry reports on criminal records, etc., previous records of dispositions, results of confirmation, judgments, and current status of acceptance by individuals;

[2016Gohap380]

1. Partial statement of the defendant;

1. Statements of witnesses G and J in the second trial records;

1. Partial statement of the suspect interrogation protocol of each prosecution against the accused (including the part concerning the statement of G and J);

1. Partial statement of each police interrogation protocol against the accused (including the statement part of G and J);

1. Each investigation report (number 56, 57, 59 through 62, 64, 66, 67, 69, 71) , investigation reports ( X account analysis), investigation reports (Presentation of J data and Statement), investigation reports (Presentation of Defendant Data), investigation reports (Presentation of Defendant Data), and investigation reports (personal immigration status);

1. Each certificate (No. 12, 13, 42, 49, 50), each financial transaction (No. 14 through 20), each copy of each real estate register (No. 22,23), each notarial deed (No. 24,25, 38, and 41) and each certificate [No. 26,27], each receipt [No. 26,27], each receipt [No. 36,46], a loan certificate (No. 36,46], a note of performance, a copy of a check, a real estate sales contract, a contract for transfer and takeover of a goodwill, a pre-sale franchise, a hotel, a Kakaoox, a copy of a copy of a passbook, a loan, a statement of loan transactions (a bank, money and money), a creditor, a certificate of payment of interest payment, a creditor, a creditor of a credit card sales slip, a creditor of AB, a statement of loan transaction (aBC), a statement of loan holders, a loan transaction statement;

[2016 70-55]

1. Partial statement of the defendant;

1. Partial statement of the witness M in court;

1. Partial statement of the police interrogation protocol of the accused;

1. The police statement of M;

1. Written complaint;

1. Investigation report (person for reference AD and telephone communications);

[2016Gohap776]

1. Partial statement of the defendant;

1. The statement of witness P in the first trial record;

1. Partial statement of the suspect interrogation protocol of the accused by the prosecution;

1. Partial statement of each police interrogation protocol against the accused;

1. A written confirmation of details of transactions of entry and departure, and personal immigration status;

[2016Gohap951]

1. Partial statement of the defendant;

1. The witness's partial statement in the fourth trial record;

1. Partial statement of the suspect interrogation protocol of the accused by the prosecution;

1. Partial statement of the police interrogation protocol of the accused;

1. The police statement of S;

1. A report on investigation (a statement by telephone for a specific fact against which the complainant is accused);

1. Each payment note (No. 2, 4) and the statement of passbook transactions;

[2016Gohap1344]

1. Partial statement of the defendant;

1. Legal statement of witness V;

1. Statement of witness V in the seventh trial records;

1. Partial statement of the suspect interrogation protocol of the accused by the prosecution (excluding the part in which the statement of the AE and AF is written);

1. Partial statement of each police interrogation protocol against the accused;

1. Investigation report (the nominal and telephone call of the account holder after his post);

1. A written certification (this No. 2, 13), a cash storage certificate, a deposit statement, a promissory note, and the details of each entry and withdrawal (No. 15 through 36).

Application of Statutes

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

Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 13719, Jan. 6, 2016); Article 347(1) of the Criminal Act (referring to fraud against victim G); Article 347(1) of each Criminal Act (referring to fraud against victim J, M, P, S, and V; choice of imprisonment)

1. Aggravation for repeated crimes;

Articles 35 and the proviso to Article 42 of the Criminal Act [the proviso to Article 42 of the Criminal Act shall apply to each other crime except the crime of fraud of May 24, 2012 against P: Provided, That the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)]

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, Article 50, and the proviso to Article 42 of the Criminal Act [limited to the proviso to Article 42 of the Criminal Act] concerning the defendant's and defense counsel's assertion (reasons)

1. Summary of the defendant's defense counsel's assertion

A. The argument as to the overall facts charged

The victims do not lend money to the defendant, but invested in the business of the defendant, and some of the money that the victims delivered to the defendant was actually used by the defendant, and the rest is either delivered directly to a third party or delivered for their own needs, and thus, the defendant does not have taken money by deceiving the victims (the defendant argued specifically as to the facts charged in relation to the victim G, but it seems that the facts charged in relation to the other victims are argued on the same reasoning).

B. Of the instant case No. 2016Gohap380, the part concerning the victim G

The defendant has not taken money by deceiving the victim for the following reasons:

1) Attached No. 1 No. 1

Although the Defendant received KRW 60 million from the victim, the Defendant actually received 43.5 million from the victim to AG for the investment in Cambodia's Go-gu project and for the purchase of K shopping mall, and in fact, the amount of KRW 43.5 million was delivered to AG for the investment in Cambodia's Go-gu project, and the remainder of KRW 16.5 million was used for the purchase of the 61 unit of K shopping mall.

2) No. 2 of [Attachment 1] List of Crimes

The injured party, through the Defendant, entered into a real estate sales contract with K shopping mall 61 unit of KRW 1.525 million with K shopping mall 61 unit of KRW 1.525 million, and paid 150 million to the Defendant the down payment.

3) No. 9,10 Nos. 9, 10

There is no fact that the Defendant told the victim that he would change the amount of 18,000 square meters of land AH in Seoul to the cash of 2.3 billion won.

4) The victim, No. 29 No. 29 of the annexed Table 1, paid the H shopping mall purchase, the expenses for the development of an AI hotel, and the office expenses. The defendant paid KRW 65 million out of KRW 300 million to AJ at the cost of developing an AI hotel. The defendant used KRW 120 million as the price for the successful bid of H shopping mall, and approximately KRW 80 million as the office expenses.

5) The victim, Nos. 30, 31, and 32, transferred to the N bank account in the name of N, KRW 12.4 million out of KRW 145 million, which was used as the cost related to the auction of H shopping mall in the name of payment.

6) AK, at No. 66 No. 66 of the List of Offenses 1, intended to create a business fund for the Defendant, demanded to request the cost of KRW 10 million and paid KRW 10 million received from the victim to AK before viewing that the victim was the victim.

7) Attached No. 68 No. 68 of the List of Crimes Nos. 1 paid KRW 100 million to J on the ground that the cost of KRW 200 million is necessary to attract KRW 20 billion.

8) Attached No. 138 No. 138

From around 2015, the Defendant was running a business to place a duty-free shop with the office located in K shopping mall. Of the KRW 40 million received from the victim, the Defendant used the KRW 30 million for the prior cost of attracting a duty-free shop, and used the KRW 10 million for the expenses of operating the office.

C. Of the instant case No. 2016Gohap380, the victim J part was given the Defendant a KRW 50 million as business expenses on January 16, 2014, and only received it as business expenses, and the Defendant did not speak as stated in the facts constituting the crime in the judgment of the victim.

(d) Cases No. 2016 Gohap555 (victim M);

In relation to H shopping mall business, the defendant used 30 million won as part payment of office loaned by the victim. However, the victim did not speak as stated in the facts constituting a crime.

(e) Cases 2016Gohap776 (victim P)

The Defendant borrowed a total of KRW 18,350,00 from the victim, KRW 24,200,000,000 from the victim, and borrowed KRW 1,835,00 on two occasions as business travel expenses related to H shopping mall development projects. Since then, financial circumstances make it difficult to do so, the Defendant did not acquire it by fraud without the intention of repayment or ability.

(f) Cases No. 2016 Highis951 (victim S);

Although there is a fact that the defendant received a total of KRW 25,80,000 from the victim on three occasions, there is no such fact as stated in the facts constituting the crime.

(g) Case No. 2016 Highis1344 (victim V);

Although the defendant received KRW 200 million from the victim, the defendant merely borrowed money from the victim for the expenses of K shopping mall business and did not speak as stated in the facts of the crime.

2. Determination

A. Judgment on the criminal intent of the defendant by deceit (determination on the overall facts of prosecution)

1) Relevant legal principles

The intent of defraudation, which is a subjective constituent element of fraud, shall be determined by comprehensively taking into account the objective circumstances such as the Defendant’s financial history, environment, details and details of the crime before and after the crime, and the process of performing the transaction, so long as the Defendant does not confession (see, e.g., Supreme Court Decision 96Do481, May 14, 196).

2) Determination

A) The following circumstances are acknowledged according to the evidence duly adopted and investigated by this Court.

① From January 2014, the Defendant began to borrow money from the victims under the name of K shopping mall business, H hotel business, etc. In fact, the above period constitutes a period for which the Defendant had not elapsed since the completion of a ten-year life. Furthermore, the Defendant assumed a large amount of debt to K, Inc., Ltd., and the Defendant appears to have no fixed income after the completion of the said life (the Defendant alleged that the property in the name was KRW KRW 100,000,000,000). However, the Defendant did not make a concrete statement about the details of the property from the investigative agency to this court, and it is difficult to believe that the Defendant did not submit objective data. In fact, the Defendant used N’s account under his name, not his own name, and used considerable part of the money received from the victims for personal purposes, such as personal debt and monthly payment.

② The Defendant created most of the funds for promoting K shopping mall business, H hotel business, and K duty-free shop business by means of lending from the victims. The Defendant appears to have been in need of large amount of funds to proceed with such business, but it appears that the Defendant failed to prepare a specific and realistic plan to prepare funds in addition to borrowing money from the victims, and whether the business has been successful or not. Nevertheless, the Defendant failed to prepare a specific and realistic plan for the repayment of the funds borrowed from the victims, if the above business is not successful.

③ In light of the fact that creditors of AL appear to be K, not the Defendant, and the Defendant drafted a written agreement on the termination of a contract with AL corporation around February 3, 2006, it is difficult to believe that the Defendant was capable of running the K shopping mall, H hotel business, etc. because the Defendant had a claim of 14 billion won against AL corporation and a claim of 40% of H shopping mall, and the Defendant had a claim of 14 billion won against AL corporation and a share of 40% of H shopping mall.

B) In full view of the above circumstances, the Defendant did not have the ability to normally carry out the K shopping mall business, H hotel business, and K duty-free shop business, and accordingly, the Defendant did not have the intent or ability to repay the money from the victims. Therefore, it is reasonable to deem that the Defendant had the intent to obtain the money from the victims.

B. Individual determination

1) Of the instant case No. 2016 high-priced3800, the victim G part

In full view of the following circumstances acknowledged by the evidence duly adopted and investigated by this court, which are deemed to have the intent and ability of the Defendant’s repayment as seen in the above paragraph (a), the Defendant could be recognized by deceiving the victim and deceiving the victim of KRW 1,346,19,510 from the victim.

A) Attached 1 No. 1

① From January 2014 to this court, the victim expressed to the effect that “the defendant would be entitled to operate a hotel if he lends KRW 210 million to H shopping mall.” As such, on February 17, 2014, the victim made a statement to the effect that “the defendant changed the check into a unit check of KRW 1 million and KRW 60 million,00,000,000,000,000,000,000,000,000,000 won.”

② In light of the fact that there is no objective evidence to acknowledge that the Defendant invested KRW 60 million in Cambodia’s Go-gu business on February 17, 2014, or used it as the purchase name for the K shopping mall, etc., the Defendant’s assertion that the Defendant invested KRW 60 million from the victim in the Cambodia’s Go-gu business and used it as the purchase name for the K shopping mall’s purchase name is difficult to believe that the Defendant used it for the K shopping mall’s purchase name.

B) No. 2 of the list of offenses No. 1

① From the police around February 19, 2014 to this court, the victim made a concrete and consistent statement to the effect that “Around February 19, 2014, the Defendant was to sell and sell the 5-7th unit of K shopping mall, so the Defendant was a person with bad credit standing, thus entering into a sales contract with K and the above 61 unit under his name, and instead of the Defendant at the Defendant’s request, paid KRW 150,000,000 to K as down payment.”

② In the event that the above sales contract with K Co., Ltd. is cancelled due to the unpaid payment of the remaining amount, etc., the Defendant entered into a sales contract with K without preparing a specific and practical plan to procure the remaining amount up to approximately KRW 1.3 billion, without having prepared the specific and practical plan, and had the victim pay the said down payment.

C) The victims Nos. 9 and 10 No. 9 and 10 of the List of Crimes No. 1 were from the police to the court of this Court, “Around March 2014, the Defendant has a lot of approximately KRW 18,00 square meters owned by the Defendant in Seocho-gu, Seoul. Three tin-types have ownership-related documents. Around March 8, 2014, three tin-types have given KRW 300 million to the tin-types, and the documents were found to have been assigned to the person who owns the land in the name of a tea, thereby giving KRW 2,30 million to the person who owns the land in the name of a tea.” Moreover, the Defendant refused to raise money to the tin-types without any method of raising money, and the Defendant agreed to receive KRW 100 million and KRW 100 million from the tin-types to receive all money.” The Defendant consistently stated to the purport that the Defendant consistently stated to the effect that the Defendant “on March 8, 20100.”.

D) No. 29 of [Attachment 1] List of Crimes

① At the prosecution around June 17, 2014, the victim rejected the right to construct a hotel automatically if the defendant purchased the Gu unit of H shopping mall and made it known to the public. The right to create a loan to the extent that it can be raised at the future, and there is no way to seek more money. The defendant was aware of the fact that he/she knew with the bond company AM, and that he/she lent 400 million won to him/her when establishing a provisional registration for sale and purchase in the hotel "Zel where he/she owns" and "AAAAA", and that he/she borrowed 300 million won among them.

② The Defendant’s assertion that the Defendant used KRW 300 million from the victim for the above purpose is difficult to believe, in light of the following: (a) there is no objective evidence to acknowledge that the Defendant used part of KRW 300 million received from the victim for the amount of investment in the hotel business, expenses for purchasing H shopping mall, and office expenses; and (b) there is no objective evidence to acknowledge that the Defendant used it for the above purpose.

E) Nos. 30,31, and 32 of [Attachment 1] List 30,32

Although the Defendant was awarded a bid for H shopping mall 9001 and 9003 in the name of NO, AO, etc. and paid a deposit for purchase of real estate with the money borrowed from others, the Defendant failed to prepare the balance, and the sales thereof was revoked several times. Nevertheless, the Defendant still borrowed H shopping mall 9001 and 9003 under the victim’s name without preparing a specific and realistic plan to procure the balance, and paid the deposit with the money borrowed from the victim.

F) No. 66 of [Attachment 1] List of Crimes

① From the police around September 2014 to this court, the victim stated that “AK granted 60 billion won underground funds to the Defendant,” “AK had to keep the said money in cash. It has to obtain 60 billion won from the Defendant, and that it would be repaid if money entered and departed from the Republic of Korea after having cash as soon as possible.” Accordingly, the victim made a relatively concrete and consistent statement to the effect that “AK had talked with the Defendant and talked with any woman.”

② The Defendant’s assertion that the Defendant paid KRW 10 million received from the victim to AK under the pretext of preparing business funds is difficult to believe, in light of the following: (a) whether the Defendant was able to receive KRW 10 million from AK, and whether the Defendant actually intended to take custody of KRW 60 billion; (b) whether the Defendant actually paid KRW 10 million received from the victim to AK; and (c) there is no evidence to prove whether the Defendant actually paid KRW 10 million to AK.

G) No. 68 of [Attachment 1] List of Crimes

① The victim stated to the effect that “on September 1, 2014, the police sent KRW 70 million to J, and the remainder of KRW 30 million to the Defendant used as expenses for Hong Kong.” In this court, the Defendant stated that “on August 1, 2014, at the end of 2014, the Defendant entered the money from her seat at her seat around 200 million won.” The Defendant stated that “on August 1, 2014, the Defendant entered the money from her seat around her seat.” The Defendant stated that “on the other hand, the Defendant paid off the money to her seat at 10 million.” The Defendant stated that “on the other hand, the Defendant paid off the money to her seat at her seat and transferred the money to her seat.” The Defendant’s statement to the effect that the amount of credibility of the Defendant’s statement to the police is different from the amount of credibility of the Defendant’s statement to the effect that it differs from the amount of credibility of the police.”

② The Defendant created funds from J to borrow from the victim the expenses to be invested in KRW 20 billion. According to a concrete and consistent statement from the Police of J to this Court, according to the Justice’s specific and consistent statement, the Defendant required KRW 200 million to obtain an investment in the business fund of KRW 20 billion from J. The Defendant appears to have not prepared a specific and realistic plan to raise the above funds in addition to the method of borrowing money from the victim (the Defendant was unable to obtain an investment in KRW 20 billion from J because the Defendant failed to prepare expenses other than the money paid by the victim to J). Nevertheless, if the Defendant is unable to obtain an investment in KRW 20 billion, it appears that the Defendant failed to prepare a specific and realistic plan for the repayment of money borrowed from the victim.

H) No. 138 No. 138

The Defendant provided funds for promoting the K duty-free shop business by means of borrowing KRW 40 million from the victim. To proceed with the above business, the Defendant is required to obtain a license for the three-point shop in Seoul Special Metropolitan City, and the Defendant appears to have applied for a bid by 10 middle-standing and small-medium enterprises that select only the first place of business, and the acquisition of the patent and further the success of the business are inappropriate. Nevertheless, the Defendant failed to prepare a specific and practical plan to repay KRW 40 million borrowed from the victim if he/she fails to obtain a patent for the city duty-free shop business or the business is not successful.

2) Of the instant cases No. 2016 high-priced3800, the part victim J

A) According to the above evidence, the following circumstances are acknowledged.

① From the prosecutor’s office to January 2014, the victim stated to the effect that “the defendant lent KRW 50 million to the defendant who is a representative of the K corporation of the K corporation to him/her, while paying KRW 50 million to L, the victim may bring about K corporation. If the victim pays KRW 50 million to L, he/she may bring about 40% of the shares in H shopping mall, and may receive KRW 3 billion from AP. If the victim borrowed KRW 50 million to L, he/she will receive KRW 3 billion from AP and complete payment of interest and principal,” and on the following day, he/she stated to the effect that “the defendant lent KRW 50 million to Q and AR from among the restaurants located in this area of the Dongjak-gu Seoul Metropolitan Government, which are located in Q and AR,” the victim’s statement is consistent with the fact that Q Q written confirmation (which is evidence No. 208).

② From January to February 2014, the victim and GIST seems to have been unaware of each other. In light of the fact that at the police, the Defendant made a statement to the effect that “the Defendant would receive money from the victim with the acquisition cost of K corporation at the time of the investigation into the replacement with the victim,” “G and Q invested KRW 2.5 billion in K and H shopping mall business, and the victim agreed to receive 30 billion capital from the above business fund until March 25, 2014, to have the share of the victim and the above business 5:5. The Defendant’s assertion to the effect that “the Defendant would have received money from the victim as the acquisition cost of K corporation at the time of the investigation into the replacement with the victim,” it is difficult to believe that the Defendant stated that “the Defendant would have received KRW 50 million from the victim as the business expense.”

③ In addition, according to the circumstances described in the above paragraph (a), even if the Defendant paid KRW 50 million to L, it is difficult to deem that the Defendant could have recovered the claim for KRW 40% shares in K corporation, H shopping mall, and KRW 3 billion against AP.

B) In full view of the above circumstances in light of the Defendant’s intent and capacity to repay the shares in H building as seen in the foregoing A, the Defendant can be recognized by deceiving the victim with regard to the return of the shares in H building, the name of its use, etc.

3) The Case No. 2016 Gohap555 (victim M)

A) According to the above evidence, the following circumstances are acknowledged.

① The victim has consistently stated to the effect that “The Defendant would take over K again on February 28, 2015, and currently holds 230 K store, and the ownership of H building also holds 49%. If the Defendant borrowed 50 million won or more, the victim stated to the effect that “the Defendant will guarantee interest exceeding 10 times a week thereafter.”

② The Defendant asserts to the effect that he borrowed money from the victim to the effect that he is not able to borrow money from the victim due to the shortage of the cost of intermediate payment, collection, and equipment purchase. However, the victim stated to the effect that “I wish to know whether he or she or not he or she or she would do so.” In light of the fact that the Defendant did not use part of KRW 30 million transferred from the victim for the purchase of furniture or equipment (see, e.g., account transaction statement (see, e., evidence record 15)), it is difficult to believe that the Defendant’s assertion that he or she actually lent money from the victim for the purpose of using it as part of intermediate payment, etc.

B) In full view of the above circumstances in light of the Defendant’s intent and capacity to repay, the Defendant can be recognized by deceiving the victim with regard to the possession of K commercial buildings and the possession of H building shares, payment of interest, etc., and by deceiving the victim of money from the victim.

4) The Case No. 2016 Gohap776 (victim P)

A) According to the above evidence, the following circumstances are acknowledged.

① In relation to the fraud of May 24, 2012, the Defendant alleged to the effect that “the Defendant received money from the victim who was released from parole through AS” from the police to this court. However, as the pedagos were detained as a fact that he received money from other prisoners, giving money to the pedagos could not be provisionally released.” However, there is no evidence to prove that the Defendant received KRW 20 million from the victim on May 24, 2012, and then sent it to AS as a secret for pedagos, it is difficult to believe that the Defendant’s assertion is difficult to believe, and even if the Defendant borrowed money from the victim on account of the lack of any property or income for the nine-year life at the time, the Defendant did not have the ability to repay the money.

② The Defendant’s assertion that he/she was making a business trip to a foreign country from January to February 2014 (see, e.g., evidence No. 185 of the record) by borrowing money from the Hong Kong branch of Linman’s Hong Kong branch on January 24, 2014 in order to conclude a private contract with Linmanman’s creditor of H shopping mall in light of the current status of individual entry and departure (see, e.g., evidence No. 185 of the record) is difficult to believe.

B) In full view of the above circumstances in light of the Defendant’s intent and capacity to repay, as seen in the above A., the Defendant may be recognized by deceiving the victim on the pretext of the use thereof, etc. and by deceiving the victim of money from the victim.

5) The case No. 2016 Gohap951 (victim S)

A) According to the above evidence, the following circumstances are acknowledged.

① With respect to the fraud of March 3, 2014, the victim is relatively specific and consistent to the purport that “the Defendant, from the police to the present court, was awarded a successful bid for the auction goods coming from K and H around March 2013, he/she shall pay the auction commission to the AU who vicariously executes the bid. As the victim did not have money at this time, he/she stated to the effect that he/she would pay the following money if he/she is awarded a successful bid.”

② The victim stated in a concrete and consistent manner to the effect that, with respect to each fraud as of December 12, 2013 and March 18, 2014, “the Defendant, at the police around October 2013, he/she is urgently required for attorney’s fee in a lawsuit between Busan and himself/herself, and at the time of his/her lawsuit between Busan and the viewing of the case, he/she borrowed money.” On March 2014, the victim stated to the effect that “a person shall repay money after one week, if he/she lends money to him/her, since the documents to be received from Makao are in English, and thus, he/she shall pay money after one week if he/she lends money to him/her.”

③ On the other hand, the victim made a statement in compliance with the Defendant’s argument that “ around October 2013, the Defendant lent KRW 15 million to himself/herself, and around March 2014, with respect to each fraud on December 12, 2013 and March 18, 2014.” However, the victim’s above statement in the court was made after the victim received full payment from the Defendant, and the victim’s statement in the police was made more than 1 year prior to the above legal statement, and it was difficult to find out the credibility of the victim’s statement in light of the following: (a) around October 2013, 201, the Defendant and the victim did not have any special reasons to make a statement in the police station; and (b) around March 2014, it was difficult to find out the credibility of the victim’s statement in the police station’s relationship with the Defendant and the victim’s statement in light of the above facts.

④ The Defendant, at an investigative agency, remitted the amount of KRW 15 million, out of the amount of KRW 15 million remitted on December 12, 2013, to AT operating a high-gu distribution plant from Cambodia, paid KRW 4 million as attorney’s fee to AJ operating a high-gu distribution plant in Busan. On March 3, 2014, the Defendant paid KRW 9 million, which was remitted on March 3, 2014, to AU, for auction commission.

C. The Defendant’s aforementioned assertion is difficult to believe, inasmuch as it did not submit objective data to the purport that “the amount of KRW 1.8 million remitted on March 18, 2015 was disbursed as translation cost.”

B) In full view of the above circumstances in light of the Defendant’s intent and ability to repay, as seen in the above A., the Defendant may be recognized by deceiving the victim on the pretext of the use thereof, etc., and by deceiving the victim of money.

6) Case No. 2016 Gohap1344 (victimV)

A) According to the above evidence, the following circumstances are acknowledged.

① From the police to June 5, 2015, the aggrieved party entered into a contract on the exercise of each city and sales agency contract between the World Trade Organization and H hotel around 2015. From August 30, 2015 to November 30, 2015, the World Trade Organization and H hotel will start sales from November 30, 2015, and the H hotel will start sales. 8% based on sales agency fees. Of these, the victim would receive 70% of the sales agency fees and designate 200 million won as an exclusive position in relation to sales agency. The victim stated to the effect that the above contents will be paid KRW 30 million after the three-month period.”

② The Defendant asserts to the effect that, while soliciting the original victim to make an investment in connection with the attraction of K duty-free shops, the Defendant merely called “a repayment of KRW 300 million to be made at the end of August 2015, if the Defendant lent KRW 200 million to the original victim,” and that in the process, AF would make the victim’s re-investment of KRW 300 million in W zone. However, the Defendant stated to the effect that he did not deceiving the victim in connection with the Defendant’s investment. However, the victim consistently stated to the effect that at the time of lending KRW 200 million to the Defendant, the Defendant and the victim did not have any such words as above from the Defendant and AF. The Defendant and the victim prepared a business performance contract containing the same contents as described in the above paragraph (1) on June 5, 2015, and that the Defendant cannot be held liable for damages when he was aware of the lower part of the Defendant’s self-written loan.” In light of the Defendant’s right to request the payment of KRW 13700 million from the victim.

B) Comprehensively taking into account the above circumstances, the Defendant could recognize the fact that the Defendant, by deceiving the victim with regard to the sale in lots and profits of the World Trade Organization and H hotel, by deceiving the victim to acquire money from the victim.

Reasons for sentencing

1. The scope of punishment by law;

Imprisonment with prison labor for not less than three years nor more than 50 years;

2. Application of the sentencing criteria;

[Determination of Punishment] General Fraud 3 types (not less than 500 million won but less than 5 billion won)

[Special Aggravationd Persons] When committing a crime against many victims or repeatedly over a considerable period of time, the victim has caused serious damage.

[Scope of Recommendation] Imprisonment with prison labor of not less than four years but not more than ten years and six months (special aggravation area)

3. Determination of sentence of imprisonment (four years of imprisonment).

The following circumstances shall be taken into account; the defendant's age, health, character and conduct, environment, relationship with victims, motive and background of the crime, means and results of the crime, and the circumstances before and after the crime, etc. shall be determined as ordered by taking into account all the various factors of sentencing as shown in the arguments in this case.

○ Circumstances unfavorable to the Defendant: The Defendant repeatedly committed a crime against several victims for a period of three years, and the amount obtained by defraudation is a large amount of KRW 1.7 billion. The Defendant began to borrow money from the victim on several occasions with trust when the victim believed that he/she was married to the victim G. The victim, who did not have money, got the victim to sell real estate owned by the victim or to pay money to himself/herself as security, or introduce directly bonds to the victim, thereby allowing the victim to pay money to himself/herself. Furthermore, the Defendant’s criminal act is not good. Furthermore, in light of the fact that the Defendant committed the crime as above, the Defendant committed a crime, such as having the victim bear the obligation to pay KRW 00 million to the financial institutions or debentures, and the Defendant was sentenced to the attendance of investigative agencies several times, and the Defendant did not have any strong criminal liability for the same kind of crime during which he/she did not appear in the court’s sentencing period, and thus, the Defendant did not have any strong criminal liability for the victim during the two-year period.

The favorable circumstances of ○○: The Defendant appears to have actually used part of the money borrowed from the victims for the instant business promoted by using it as the sales contract amount of the K shopping mall or the cost of the H shopping mall auction. The victim M, S, and the victim J, and P expressed their intent not to be punished against the Defendant. In addition, the victim V also expressed their intent not to be punished against the Defendant. Meanwhile, in relation to the victim G, the Defendant committed the instant crime in the process of maintaining a very close relationship between the victim and the victim, such as promising marriage with the victim, and there is no room for some consideration in the process of the instant crime.

The acquittal portion

1. Summary of the facts charged

With respect to the facts charged against the Victim G in the case No. 2016 high-level380, as shown in the separate list of crimes No. 2, the Defendant, by deceiving the victim, was delivered KRW 6 million from July 2014 to August 2014 as a credit card settlement (No. 1), and received KRW 5.7 million from September 5, 2014 as an aviation fee (No. 2), received KRW 11,10 million from November 11, 2014 (No. 3), received as an activity expense (No. 3), and received KRW 25 million from AV on March 15, 2015, and March 19, 2015.

2. Relevant legal principles

The establishment of facts constituting a crime in a criminal trial ought to be based on strict evidence with probative value, which leads a judge to have such convictions as to the extent that there is no reasonable doubt. Therefore, in a case where the prosecutor’s proof does not sufficiently reach the extent that such convictions are to be followed, it should be determined in the interests of the defendant (see, e.g., Supreme Court Decision 2010Do1487, Apr. 28, 2011).

3. Determination

A. From July to August 2014, 600,000 won (No. 1)

A victim submitted to an investigation agency a letter of complaint stating that the victim paid 6 million won in cash, such as the sales amount of the telecom operated by the victim, to the defendant as the card settlement name of the defendant at any time between July and August 2014. However, the statement in the above letter of complaint alone is insufficient to recognize this part of the facts charged, and there is no other evidence to acknowledge this part of the facts charged.

B. The portion of KRW 5.7 million (No. 2 No. 1) on September 1, 2014

On September 1, 2014, the victim submitted to an investigative agency a letter of complaint stating that he/she paid 5.7 million won in lieu of the defendant's flight fee. However, the statement in the above letter of complaint alone is insufficient to recognize this part of the facts charged, and there is no other evidence to acknowledge this otherwise.

(c) The part of KRW 10 million on November 11, 2014 (No. 3, 2014)

On November 11, 2014, the victim submitted to an investigative agency a letter of complaint stating that he/she lent KRW 10 million from AW to the defendant as activity expenses for the defendant on the same day. However, the statement in the above letter of complaint alone is insufficient to recognize this part of the facts charged, and there is no other evidence to acknowledge this otherwise.

(d) The part of KRW 25 million (No. 4, 5) on March 15, 2015 and March 19, 2015;

1) Fraud is established by deceiving another person to omit it in mistake, causing such dispositive act to gain property and financial gains. Here, the act of dispositive act refers to property dispositive act, and it requires subjectively that the defrauded recognizes the consequences of dispositive act, namely, the consequences of dispositive act, and there is an act that is objectively controlled by such intent (see, e.g., Supreme Court Decision 9Do1326, Jul. 9, 199).

2) According to the statements from the police of the victim to this Court, from the police of the AV to the statement (Evidence No. 828 of the Evidence), and from the AV account transaction details (Evidence No. 471, 472 of the Evidence No. 472 of the Record), the fact that the defendant was transferred KRW 25 million out of the money that the AV should issue to the victim on March 15, 2015 and March 19, 2015 to the N bank account in the name of the victim without the victim’s consent.

3) However, the above facts alone are insufficient to recognize that the victim committed any act of disposal against the above KRW 25 million, and there is no other evidence to acknowledge it.

4. Conclusion

Therefore, this part of the facts charged should be acquitted under the latter part of Article 325 of the Criminal Procedure Act because it is a case where there is no proof of crime. However, as long as it is found guilty of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), the judgment of

Judges Man-ho

Judges Han Han-chul

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A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.