(영문) 서울중앙지방법원 2017.4.13. 선고 2016고합1329 판결

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특정경제범죄가중처벌등에관한법률위반(사기),사기,유사수신행위의규제에관한법률위반

Cases

2016Gohap1329 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud);

Violation of the Act on the Regulation of Fraud, Receipt without Permission

Defendant

Prosecutor

Mobile (prosecution) and fump (public trial)

Defense Counsel

Attorney B (Korean National Assembly)

Imposition of Judgment

April 13, 2017

Text

A defendant shall be punished by imprisonment for not less than three years and six months.

Reasons

Criminal History Office

1. Violation of the Act on Specific Economic Crimes, Crut Punishment, etc. (Fraud), fraud;

On October 19, 2012, at a place where a place is unknown, the Defendant made a business with the victim C to the effect that “it is a business with a total plate dealing with imported cameras in Yongsan, with which the Defendant received the goods and sold the goods to the customer located in southwest, the Defendant would not pay taxes and no less than 15% of the profits. The Defendant made an investment to the effect that the Defendant would pay 4-10% of the investments every month, and the principal would pay without the mold upon the request of the investors for recovery in advance of two months prior to the two-month period.”

However, even if the defendant receives money from the victim, he/she thought that the defendant would take a method of paying the principal, profits and various allowances to the existing investors by using the investment funds attracting from subordinated investors, without any idea of investing in the carmer sales business, so long as a new investor is not continuously induced, he/she was in a structure of not paying the agreed high rate profits and allowances. Therefore, the victim did not have the intent or ability to pay the agreed principal, profits, and allowances.

Nevertheless, the Defendant received KRW 10,000,000 from the national bank account (Account Number D) in the name of the Defendant for the same day as the investment money, and acquired KRW 5,38,031,610 in total from October 21, 2010 to May 23, 2016, as shown in attached Table 1-6 from around October 21, 2010 to May 23, 2016.

2. Violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission;

No person shall engage in a business of importing investments under an agreement to pay the total amount of investments or an amount in excess thereof to many and unspecified persons in the future without obtaining authorization or permission or making registration, report, etc.

Nevertheless, the Defendant agreed to pay an amount exceeding the investment amount in the future from C in the manner described in paragraph (1) at the time, place, as described in paragraph (1), and received KRW 10,000,000 from the national bank account (Account Number D) in the name of the Defendant under the name of the Defendant, as well as from October 21, 2010 to May 23, 2016, the Defendant imported KRW 5,38,031,610 in total from six persons, such as the list 1 to 6 of the list of crimes in the annexed crime.

Summary of Evidence

1. Defendant's legal statement;

1. Each prosecutor's statement concerning E and F;

1. Each police statement of G.H.C and I;

1. Account transactions;

1. Each investigation report (attached to records submitted in the Republic of Korea and attaching a list of crimes);

Application of Statutes

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

Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347(1) of the Criminal Act (hereinafter referred to as "victim H, I, F, and E") Article 347(1) of the Criminal Act, Article 347(1) of each Criminal Act (including each victim's fraud against G and C, and each victim's identity), Articles 6(1) and 3 of the Act on the Regulation of Conducting Fund-Raising Business without Permission, and Articles 6(1) and 6(1) of the same Act (a)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Article 50 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) for Victims E with the largest penalty and penalty)

Reasons for sentencing

1. Scope of recommendations according to the sentencing criteria;

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

[Determination of Punishment] Fraudulent Crime Group, General Fraud, Type 4 (at least five billion won, but less than 30 billion won)

[Special Emotionals] Reductions: Where the risk of damage has not been substantially realized: Where the risk of damage has been committed repeatedly over an unspecified or large number of victims or over a considerable period of time.

[Scope of Recommendation] Three-Year 4-8 years of imprisonment (in the case of the rise in the first step as a result of adding up the basic area and the same kind of competition, the minimum of sentence range shall be mitigated by 1/3)

(b) No sentencing guidelines are set for a violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission. The scope of recommending punishment according to the guidelines for handling multiple crimes;

Imprisonment for not less than three years and not less than four months;

2. Determination of sentence;

The crime of this case is a crime that promises to guarantee the principal and the payment of profits to six victims for a period exceeding five years, and receives money exceeding five billion won in total in the unrealistic car sales business. When the defendant operates the fund by the so-called "domination" method, even if he appropriates all the money paid to the victims as profits from the investment principal, a large amount of damage exists, and it is inevitable for the victims to be punished for the defendant, and it is inevitable to punish the defendant for a considerable period of time.

However, there are favorable circumstances, such as the fact that the Defendant actually worked in the Maga Card Distribution Company and paid investment profits, which led to the instant crime committed in the financial crisis, that the amount finally acquired by the Defendant is about KRW 950 million, and that it appears that he would transfer the entire property owned by him to the victims around May 2016, that it would be against the fact that he would repay the remaining amount of damage in the future, and that there is no criminal history except that he was fined once.

In addition, the defendant's age, character and conduct, environment, relationship with victims, circumstances after the crime, etc. and various circumstances shown in the arguments shall be determined within the scope of recommended sentencing guidelines.

Judges

The presiding judge and judges;

Judges Sung Jae-in

Judges' Index

Attached Form

A person shall be appointed.

참조조문

-유사수신행위의 규제에 관한 법률 제3조

-유사수신행위의 규제에 관한 법률 제6조 제1항

-특정경제범죄 가중처벌 등에 관한 법률

-특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항 제2호