crime name fraud)

Attorney C, D

except that the execution of the above sentence shall be suspended for four years from the date this judgment became final and conclusive.

Of the facts charged in the instant case, each fraud listed in the attached list of crimes shall be acquitted.

The defendant is the representative of E Co., Ltd. (hereinafter referred to as E) that aims to import alcoholic beverages.

On July 24, 2006, the defendant entered into a contract for the supply of china (hereinafter referred to as "the first contract of this case") with the victim G Limited Company (Representative Director H1) in Jongno-gu Seoul Metropolitan Government on behalf of the victim and the defendant to import 300 Schina with the Doz futures trading method (En Prime). However, when the victim receives the down payment from the victim and transfers it to the local liquor wholesale market in France and supplies Dopoju two years after the payment, the defendant would receive the balance.

However, on April 2008, even if the Defendant received any balance from the victim due to the shortage of operational funds, etc., even if he did not intend to receive it in advance, the Defendant was false to use the balance in advance for customs clearance and supply it to the victim.

On April 22, 2008, the Defendant, by deceiving the victim and deceiving the victim, transferred the balance of KRW 141,240,000 to the new bank account (K) under the name of the Defendant on July 14, 2008 and KRW 227,70,000 in total twice.

Summary of Evidence

1. Partial statement of the defendant;

1. Legal statement of the witness H;

1. Examination protocol of the accused by prosecution;

1. Each goods delivery contract, orders-related documents, dialogue details, and evidence description;

1. Text documents and text-related documents;

1. Copy of the bankbook, the director of the customer, the details of banking transactions (E), and the details of banking transactions (A);

1. Written judgment (2008Gahap95187) and judgment (2009Na4333);

Application of Statutes

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

Article 347(1) of the Criminal Act (to be chosen as imprisonment, inclusive)

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following consideration of favorable circumstances among the reasons for sentencing):

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

The defendant explained that it is difficult for the victim to take account of E’s financial conditions and received any balance in advance, and there is no deception of the victim as soon as he/she supplied Potteries.

2. Determination

In light of the following facts and circumstances acknowledged by the evidence duly adopted and examined by the court, the defendant could be recognized to have received the balance of the first contract of this case by deceiving the victim as if he did not intend to supply the victim with the intent to supply the share. Thus, the above assertion is not accepted (if the defendant explained that the financial situation of the victim is difficult, and did not explain the fact that the defendant received the balance in advance, even if he did not explain the fact that the supply of the share is de facto impossible, it is merely a deception by omission).

① As consistent from an investigative agency to this court, H consistently stated that the Defendant could supply the Posking immediately to the Defendant’s payment of the remainder for the purpose of using the Posking for customs clearance costs, etc. Moreover, the Defendant and H’s Messen dialogue (111 pages) and the statement that H sent the victim’s executive officers around 2014 (a written investigation record 373-379 pages) correspond thereto.

② At the time of the first contract, the Defendant entered into a gift contract with a foreign vendor for the supply of approximately 850 million won to a stock company (hereinafter referred to as a "stock company") around the time of the first contract, but the head office cannot be recognized as a transaction equivalent to the above daily amount, and the payment of the price was prevented until the end of December 2006 due to the fact that the payment of the price to a foreign vendor was difficult to be made on the grounds that the four orders for the first contract for the second contract for alcoholic beverage sales were lawfully cancelled on December 2006, and that the Defendant could not receive the payment of the price from a foreign vendor for the first contract for the first contract for the second time, and that the first contract for the second time was concluded on the grounds that it was difficult to expect the payment of the price to a foreign vendor for the second time after the conclusion of the contract for the second time of the first contract for the second time to supply the quantity of alcoholic beverage sales. In light of the fact that the Defendant could not receive the payment of the price for the second time after being executed on December 2008,008.

③ At the time of the prosecution’s receipt of the remaining amount of money, the Defendant stated that the victim was unable to explain the progress of the progress of the primary contract of this case for the implementation of the primary contract of this case (in the investigation record 357 pages), and that there was no explanation from the victim as to the occurrence of the circumstances in which the implementation of the primary contract of this case was difficult to be done properly (the investigation record 357 pages).

④ Although the defense counsel argues to the effect that the performance of the first contract of this case was sufficiently possible, the defense counsel only supplied approximately KRW 18 million with the amount of 30% of the amount paid by the injured party from the end of October 2008 to the end of October 1, 2008. The defense counsel's assertion that the remainder of the first contract of this case was not paid as goods for customs clearance, but as the company is difficult to use the remainder of the first contract of this case as goods for customs clearance, it is difficult for the defense counsel to request it in advance (as mentioned above, H stated only as customs clearance cost, as it was stated), and such assertion that the payment of the remainder is not for the performance of the first contract of this case.

Reasons for sentencing

1. The scope of punishment by law: Imprisonment with prison labor for not more than ten years;

2. Application of the sentencing criteria;

[Determination of Punishment] General Frauds (at least KRW 100,000, less than KRW 500,000)

[Special Dog-types] Reduction element (in the case of a person who commits willful deception, or in the case of a person who has weak degree of deception)

[Scope of Recommendation] Reduction Area, 10 months to 2 years and 6 months

3. Determination of sentence: Determination of sentence: Imprisonment with prison labor for a period of two years and six months, suspension of execution for a period of four years and the following circumstances shall be taken into consideration, taking into account the defendant's age, character and conduct, environment, motive, means and consequence of the crime, various factors of sentencing as shown in the arguments in this case, such as the circumstances after the crime, and the scope of recommended sentencing guidelines

【Unfavorable Circumstances】

The crime of this case was committed by deceiving a victim who has a fiduciary relationship with a long-term transaction, and by deceiving such victim through deceptioning KRW 227,700,00,00, in light of the method of crime and the amount of damage, the liability for the crime is not less and less in light of the method of crime and the amount of damage. The defendant supplied the victim about KRW 18,00,000 to the victim at the end of October 2008 and did not take any measures for about 6 years, but neglected for a long period of time due to the victim’s demand on around October 2014, such as providing the victim with delivery of approximately KRW 12,00,00 as a substitute for the victim’s delivery. The victim paid KRW 642,420,000 to the defendant for the import agency by the method of Dopo futures trading, including the first contract of this case, but only KRW 122,00,000 was supplied to the victim.

【Free Circumstances】

The Defendant appears to have become unable to supply spores to the victim because of changes in circumstances, such as the dispute over spores daily business, rather than having no intention to supply spores to the victim from the beginning. During that process, the Defendant suffered losses, such as taking part of spores to a foreign vendor. The Defendant also endeavored to implement a contract with the victim by importing some sporess after the crime and supplying the victims with the efforts to implement the contract. The Defendant is making efforts to recover damages, such as sending the repayment plan to the victim late or late. The victim is making efforts to ensure that he/she does not necessarily believe the Defendant’s horse and does not take any measures, but filed a complaint against the Defendant more than eight years after the date on which the crime was completed

Innocence and acquittal parts

1. Summary of the facts charged

On July 24, 2006, the Defendant: (a) entered into the instant primary contract with the victim on July 24, 2006, by deceiving the victim even if the Defendant did not intend to keep the victim, and (b) entered into the instant secondary contract with the victim on July 24, 2007; (c) entered into a contract with the victim on behalf of 600 disease victims on July 24, 2007 (hereinafter referred to as “the instant secondary contract”); and (d) acquired the money as the down payment by remitting KRW 148,50,000 on August 10, 207, 200, and 16,200,000 from August 28, 2007.

2. Determination

A. The prosecutor charged the Defendant with the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) on the ground that the act of receiving the first and second down payment (148,500,000 won and 266,220,000 won) as stated in the crime list in the attached list of crimes committed by the Defendant is an inclusive crime. The prosecutor charged him for the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) on the ground that the sum of the acquired money is more than 50 million won.

B. First, we examine the down payment part of the first contract of this case (attached Form No. 1)

1) The following facts and circumstances found by the evidence duly adopted and examined by the court of this case, namely, ① the Defendant entered into a gift contract with four foreign liquor wholesalers prior to the first contract of this case, and the Defendant already paid approximately KRW 235,00,000 to the above foreign liquor wholesalers before receiving the first contract deposit of this case; ② the first contract of this case was entered into with the foreign liquor wholesalers including the supply portion of daily oil as well as the first contract of this case, and the payment of the price to the foreign liquor wholesalers as the daily oil markets has not been anticipated to refuse the payment of the price. In light of the following facts and circumstances, it is difficult to conclude that the documents submitted by the prosecutor alone submitted by the prosecutor alone received the down payment without the intention to import and supply the liquor from the beginning (if so, the Defendant’s fraud amount cannot be deemed to have been 50,500,000 won or more, and thus, the Defendant cannot be deemed to have been acquitted under the latter part of Article 25 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter referred to be found guilty).

2) Therefore, as long as it is judged not guilty of this part of the facts charged, it cannot be deemed that there is a relation between the facts charged in the attached Table 2 and the facts charged in the judgment, this part of the facts charged is not a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) but a crime of fraud is applied under the Criminal Act which is not a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) or a fine not exceeding 20,000,000 won. Article 250 of the Criminal Procedure Act, Article 50 of the Criminal Act, Article 3 of the Criminal Procedure Act, Article 249 (1) 3 of the Addenda of the Criminal Procedure Act (amended by Act No. 8730 of Dec. 21, 2007), and Article 249 (1) 3 of the former Criminal Procedure Act (amended by Act No. 8730 of Dec. 21, 2007).

C. We examine the down payment part of the second contract of this case (attached Form No. 2)

1) The prosecutor prosecuted the facts charged in this part of the facts charged, the facts charged in the judgment, and the attached list Nos. 1 on the premise that the facts charged were related to each other, but as seen earlier, the facts charged in the above No. 1 did not prove any crime, and this court was acknowledged through the evidence duly adopted and investigated, i.e., the following circumstances: ① the facts charged in the judgment pertaining to the payment of balance under the first contract of this case; ② the time when the first contract of this case was concluded and the time when the second contract of this case was concluded and the time when the second contract of this case, which is the facts charged, was about about 1 year. ② The time when the first contract of this case was concluded and the time when the second contract of this case was concluded are not a futures trading method, but a multiple supply contract was concluded between the defendant and the victim, and ③ the defendant concluded a delivery contract with the victim through a futures trading method, it is reasonable to view that this part of the facts charged and the judgment in this case is not a single criminal offense, continuity of act, and the identity of substantive concurrent crimes.

2) Thus, not the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) but the statutory penalty is not more than ten years, and the crime of fraud under the Criminal Act is applied. Article 250 of the Criminal Procedure Act, Article 50 of the Criminal Act, Article 3 of the Addenda of the Criminal Procedure Act (amended by Act No. 8730 of Dec. 21, 2007), Article 249 (1) 3 of the former Criminal Procedure Act (amended by Act No. 8730 of Dec. 21, 2007), and Article 249 (1) 3 of the former Criminal Procedure Act (amended by Act No. 8730 of Dec. 21, 2007). Since the prosecution of this case is obviously raised on March 20, 2017 after the expiration of the statute of limitations, this part of the facts charged shall be acquitted under Article 326 (3) of the Criminal Procedure Act.

Judges in the order of precedence

Judge Kang Dong-hun

2) Although the facts charged are transferred to a new bank account in the name of E, it appears to be simple clerical error (see, e.g., steam No. 9, 14, 24).

3) Seoul Central District Court Decision 2009Gahap95187, Seoul High Court Decision 2009Na4333, Supreme Court Decision 2010Da17666.

4) The case where a continuous monetary transaction continues without giving notice of business issues arising during the middle of money transaction.