Name of crime recognized: Fraud

Attorney C, D, E, and F

However, the execution of the above punishment shall be suspended for three years from the date this judgment becomes final and conclusive.

【Criminal Power】

On May 1, 2013, the defendant was sentenced to 4 years of imprisonment and 3 million won of fine in Seoul High Court due to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), etc., and the above judgment became final and conclusive on June 27, 2013.

【Criminal Facts】

The Defendant was solicited from G, H, etc. to operate the I business in Dobong-gu Seoul Metropolitan Government, and had already been offered as security to a third party, and had the blade copy of the investment certificate with no value as security, and had the intent to raise funds necessary for the above business, as if it had not been offered as security.

On July 22, 2010, the Defendant issued to the victims L and the victim L a copy of the investment certificate (the number of the investment certificate : A: 2007-1-1) in the name of the Led Private Equity Fund in the name of the Hddd's private equity fund, which proves that the N company operated by the Defendant invested 10 billion won in the Nd's private equity fund in the name of the victim L and the victim L and the Nd's private equity fund, as if it were the original. On August 22, 2010, the Defendant provided the victims with one copy of the investment certificate proving the amount of 10 billion won invested in the Korean land trust from the Nd's private equity company operated within the limit of 80 million won, which provides the victims with one copy of the investment certificate proving the amount of 10 billion won invested in the Korean land trust by August 22, 201

However, on August 3, 2007, the original copy of the above investment certificate was already offered by the Defendant as security while raising funds of KRW 10 billion from the new securities which had been issued with the right to demand the payment of the deposit and offered as security, and thereafter, from February 2, 2009, the above investment certificate was extended to two financial institutions, such as mutual savings banks, etc., as one of the above investment certificates. Thus, the copy of the above investment certificate offered by the Defendant to the victims was not worth at all secured value, and there was no intention or ability to repay the above loan at once because the Defendant had already been liable for the debt due to the above loan, etc.

As such, the Defendant, by deceiving the victims, received KRW 300 million from the victim L to the new bank account in the name of the Defendant at the seat, and received KRW 500 million in total from the victim M.

Summary of Evidence

1. Partial statement of the defendant;

1. Each statement of a witness L in the second and fourth trial records;

1. The statement of K witness in the third protocol of the trial;

1. Statements of witnesses M in the fourth trial records;

1. A copy of the examination protocol of the accused;

1. A copy of the prosecution, which is the defendant (No. 29 of the evidence list and the defendant);

1. A certificate;

1. Business registration certificate for the N;

1. A cash loan agreement, a contribution quota transfer and takeover contract, a Ninvestment certificate, a deposit certificate, and a settlement agreement;

1. Previous records of judgment: Criminal records, references to criminal records, and copies of each judgment;

Application of Statutes

1. Article applicable to criminal facts;

Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 11304, Feb. 10, 2012); Article 347(1) of the Criminal Act; 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; the main text of Article 42 of the former Criminal Act (Amended by Act No. 10259, Apr. 15, 2010; hereinafter the same shall apply);

1. Commercial competition;

Articles 40 and 50 of the Criminal Act

1. Handling concurrent crimes;

The latter part of Article 37 and Article 39(1) of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following grounds for sentencing has been repeatedly taken into consideration for favorable circumstances)

Judgment on the defendant and his defense counsel's assertion

1. Summary of the assertion

A. The Defendant’s investment certificate provided to the victims is not a securities itself, so it is not valuable as a security. Thus, the Defendant did not have to deliver the investment certificate to the victims as the original, and did not deceiving the victims as above.

B. The Defendant offered as security to the victims the N Co., Ltd. (hereinafter “N”)’s contribution shares (hereinafter “the instant contribution shares”) to N Co., Ltd. (hereinafter “N”), and provided the said contribution shares by means of transfer for security, not by establishing a pledge right, but by means of transfer for security (hereinafter “instant contribution shares”). The Defendant offered effective security to the victims without the consent of the general partner.

C. Although the instant equity shares were provided as security for the new securities, etc., and the pledge was already established, the instant equity shares had sufficient value as security even after deducting the borrowed money for the new securities, which had been rejected. Therefore, the Defendant had the intent or ability to repay the borrowed money from the victims at the time of borrowing the funds, and had no intent to commit fraud.

2. Determination

In light of the following circumstances recognized by the evidence, etc. as above, it is reasonable to view that the defendant delivered a copy of the investment certificate without providing effective security to the victims even though he/she did not have the intent or ability to repay the borrowed money to the victims, and deceiving the victims as if the investment shares in this case were provided as effective security and acquired money from the victims. Accordingly, the defendant and his/her defense counsel are not acceptable.

A. Whether there was a value of security in the instant equity shares

① Around August 2007, the Defendant invested a total of KRW 23.8 billion in A.S., a private equity fund (PEF), N, etc., in A.S., a private equity fund (PEF) established to secure the sale and management of shares of Korea Land Trust Co., Ltd. (hereinafter referred to as “Korea Land Trust”), and N was issued a certificate of investment of KRW 10 billion in A.S. for A.S. T.

Around August 3, 2007, the Defendant borrowed the money of KRW 10 billion from the financial institution as one of the two financial institutions, including a mutual savings bank, by delivering the original copy of the said investment certificate to the new securities, and providing the instant equity shares as collateral. From February 3, 2009, the Defendant: (a) concealed the fact that the said security was provided; (b) forged the consent form of the general partner, etc. necessary for the transfer of equity shares; and (c) by deceiving the Defendant to offer the said equity shares as collateral; and (d) by deceiving the said financial institution to additionally borrow KRW 11 billion from the said financial institution (such act, etc.,

③ The Defendant was scheduled to sell the land trust to the public in A.S., and, in the event that the Korea Land Trust is sold to the public, the value of the instant equity shares was sufficiently high since the amount borrowed from the new securities, etc., which had been 18 billion won or more. However, as alleged by the Defendant, even if the value of the instant equity shares reaches 18 billion won, it is an amount that falls short of the principal borrowed from the mutual savings bank, etc., as one of the new securities, which had been ended.

④ According to the Aussim business report from July 1, 2009 to June 30, 2010, the first half of 2010 was converted to the enemy due to the invasion of the continuous real estate competition after the financial crisis in the last half of 2008, and the business loss occurred KRW 14.2 billion. The sale procedure of the Korean Land Trust Co., Ltd. held by the Korea Land Corporation was final due to the final failure (the Korean Land Trust was sold to the public on June 2015 after five years from the crime of this case). In light of these circumstances, it cannot be deemed that the value of the instant equity share at the time of the instant offering of the collateral was sufficient as alleged by the Defendant.

B. Whether the defendant deceivings the victims as a criminal intent of defraudation

① The general partner, managing partner, and managing partner of A.S., A.S., A.S. and A.S., a limited partner of A.S., are individuals, such as A.S., A.S., A.S., A.S., A.S., A.S., A.S., A.S., and A., A.S., B.A., a limited partner of A.S., a private equity fund, should obtain the consent of all general partners and transfer their shares to another person without dividing the shares with the consent of all general partners under Article 273(2) of the former Financial Investment Services and Capital Markets Act (amended by Act No. 1348, Jul. 24, 2015). Accordingly, in order for N.S. to effectively transfer the shares to the victims by means of transfer for security, the Defendant concluded N.S.’s agreement to provide the victims’ share as security, and thus, the Defendant did not obtain the consent of N.S. and A.A., a copy of the investment agreement.

2) On March 2010, 2010, the Appellant had already forged the consent of the general partner and provided a copy of the investment certificate and a copy of the investment certificate, one of which was investigated by a financial institution, including a mutual savings bank, and had been aware of the illegality of the above act, but had been given a copy of the investment certificate to the victims as security.

③ The victims consistently asserted that the aforementioned investment certificate was an original copy because they did not make any statement from an investigative agency to the effect that a copy of the investment certificate was issued by the Defendant, or that they offered a security at any other place. The victims are likely to think that the original copy of the investment certificate is sufficient to receive the original of the investment certificate on the transfer of equity shares and the investment certificate on the transfer of equity shares in order to receive the equity shares as a security. Furthermore, the victims believed that the Defendant was aware of the original investment certificate issued as the original copy of the investment certificate, and believed that the said investment certificate was not offered as security at any other place. Nevertheless, the Defendant made the victims believe that the victims had acquired sufficient security by deceiving the victims as if the original investment certificate was delivered to the victims for the transfer of equity shares in the instant case.

④ The Defendant appeared as a witness in the case of violation of the Act on Registration of Credit Business, etc. and Protection of Financial Users of the Seoul Central District Court Decision 2014Da3906, the Defendant testified to the effect that “The equity shares in this case were offered as security by submitting the original investment certificate to the new securities, and offered in knife a copy of the investment certificate to a mutual savings bank, etc., and obtained a loan of KRW 16.8 billion by acquiring money by fraudulent means to the mutual savings bank, etc., the Defendant was aware that there was no effect of transferring the investment certificate or the equity shares to L or K, and that the victims should not take a discretionary measure without stating that the equity shares in this case are provided as security.”

⑤ On August 22, 2010, the Defendant failed to repay the borrowed money until August 2, 2010, and as the victims resist this, the Defendant prepared a written confirmation to the victims on August 31, 2010 that the investment certificate issued by the Defendant to the victims is the original.

Reasons for sentencing

1. Scope of applicable sentences under Acts: Imprisonment for one year and six months to seven years; and

2. Scope of recommendation on the sentencing criteria: Each of the crimes of this case shall not be subject to the sentencing criteria, since the crimes of this case are formally concurrent crimes, and the concurrent crimes of violation of the Act on the Punishment, etc. of Specific Economic Crimes (Fraud) for which the judgment has become final and conclusive, and the latter part of

3. Determination of sentence;

The crime of this case is a situation unfavorable to the defendant, such as the fact that the defendant deceivings the victim as if the copy of the investment certificate without any value as security had been worth completing, and that it is not good to commit the crime, and that the victims still have been punished because the damage of this case was not recovered.

다만 피고인의 이 사건 각 죄가 판결이 확정된 판시 특정경제범죄가중처벌등에관한 법률위반(사기)죄 등과 형법 제37조 후단 경합범의 관계에 있어 동시에 판결할 경우와의 형평을 고려하여야 하는 점, 편취금 중 일부는 G, Q가 사용한 것으로 보이는 점, 피고인이 희귀 난치성 질병인 강직성 척추염을 앓고 있는 점, 피고인이 이 사건 범행이후 편취금을 변제하지 못하자 피해자 L 및 K이 피고인을 협박하여 피고인으로 하여 금 41억 원의 상당의 정산약정서와 48억 원 상당의 약속어음 공정증서를 교부받아 피고인으로 하여금 위 금액 상당의 변제 위험에 빠지도록 하였고 피해자 [이 위 사실로 피고인에 대한 채권의공정한추심에관한법률위반죄 등으로 처벌받기도 한 점, 피해자 L이 K에게 피고인에 대한 대여금 채권과 출자증서 사본, 피고인 및 N, 아이스텀앤어소 시에이트 명의의 48억 원 상당의 약속어음 공정증서를 양도하였고 K이 이를 이용하여 R으로부터 6억 3,000만 원을 차용한 뒤 이를 변제하지 못하여 R이 아이스텀레드가 N와 아이스텀앤어소시에이트에 분배하여야 할 분배금에 관하여 위 약속어음 공정증서에 기하여 각 채권압류 및 추심명령(인천지방법원 2011타채32054호, 2011타채36411호)을 받아 인천지방법원 S 배당절차에서 775,983,043원을 배당받는 것으로 배당표가 작성되어 R이 이의 유보 없이 위 배당금을 수령한 것으로 보이는 점(피고인은 이 과정에서 피해자 L이 K으로부터 대여금 채권 및 출자증서 등 양도 명목으로 8억 원을 교부받았으므로 피해가 회복되었다는 취지의 주장도 하고 있으나 K이 피해자 L로부터 5억 원을 초과하여 지급받았음을 인정할 만한 증거가 없고, 위 5억 원도 K이 피해자 L과 공모하여 주식회사 T의 공동경영권자로서 업무상 보관하던 주식회사 T의 신주 납입자금을 횡령하여 피해자 L에게 지급한 것으로 3), 피해자 L은 위 금원이 횡령 된 것이라는 사실에 대하여 악의 또는 중과실이 있어 주식회사 T에 대한 부당이득반환의무를 부담하게 될 가능성이 있는바 결국 이러한 점을 피고인에게 유리한 정상으로 고려할 수는 없다), 판시 특정경제범죄가중처벌등에관한법률위반(사기)죄 등으로 처벌받은 외에는 별다른 범죄전력이 없는 점 등 유리한 정상과 그 밖에 피고인의 연령, 성행, 가족관계, 범행의 수단과 결과, 범행 후의 정황 등 이 사건 변론에 나타난 모든 양형요소 및 양형기준을 종합적으로 고려하여 주문과 같이 형을 정한다.

It is so decided as per Disposition for the above reasons.

The same judge's identity

Judges Lee Young-young

2) Although the changed facts charged stated that "the deceiving and deceiving the victims from them to the new bank account under the name of the defendant was remitted KRW 800 million from the victims, i.e., from the victims, i., the money borrowed from the new bank account under the name of the defendant." However, if the other party by deceiving the other party with a single criminal intent and omitting it into mistake, the total amount shall be a single crime, and if the property is acquired through deception several times through the same method, it shall be deemed as a single crime. However, even if the criminal intent is single and the method of crime is the same, the damage legal interest of each victim is independent, so it shall not be deemed as a single crime, and there is a number of crimes of fraud independently committed against each victim (see, e.g., Supreme Court Decisions 89Do582, Jun. 13, 1989; 2003Do382, Apr. 8, 2003). 201.

3) On December 12, 2014, K was prosecuted for the above violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), but previously been punished, and was acquitted on the grounds that it was a single comprehensive crime (Seoul Central District Court Decision 2014Gohap25 decided July 3, 2014, Seoul High Court Decision 2014No2012 decided December 4, 2014).