Defendant

Formation leap (prosecution, public trial)

Attorney Park Do-young in charge of law firm

A defendant shall be punished by imprisonment for four years.

861,850,000 won shall be additionally collected from the defendant.

Nonindicted 1, in collusion with Nonindicted Co. 10, Nonindicted Co. 11, Nonindicted Co. 12, Nonindicted Co. 13, Nonindicted Co. 14, Nonindicted Co. 15, Nonindicted Co. 15, and Nonindicted Co. 16, the executive vice president of the 22 illegal multi-level fund-raising company, including Nonindicted Co. 3, Nonindicted 17, Nonindicted Co. 18, Nonindicted Co. 19, Nonindicted 20, Nonindicted Co. 21, Nonindicted Co. 22, and the head of the computer office, who is the chairperson, operated the said similar fund-raising company in Daegu, Incheon, and Busan, from around October 31, 2004 to October 31, 2008, habitually committed multi-level fund-raising fraud in the amount of KRW 29,207,00,000.

On the other hand, around October 31, 2008, Nonindicted Party 1 requested Nonindicted Party 2, who is the principal agent, to exchange in cash a check equivalent to KRW 1,92,370,000 of the criminal proceeds acquired in the course of operating the said 22 illegal multi-level receiving companies. Nonindicted Party 2 was introduced by Nonindicted Party 4, who is the principal agent, around that time.

1. Violation of the Act on the Regulation and Punishment of Criminal Proceeds Concealment;

On November 2008, the Defendant received the above check from Nonindicted 4 in exchange for cash exchange of the check 1.923.7 million won from Nonindicted 4 at the sub-indicted 4’s French specialty store located in Guro-gu Seoul Special Metropolitan City on November 2008, and received the above check after receiving a proposal.

The Defendant knowingly known that the check was the proceeds of crime acquired by Nonindicted 3, etc. through the act of receiving the same kind of money without permission from November 6, 2008 to July 7 of the same month, and exchanged the amount of KRW 1.5 billion from KRW 1.4 billion to KRW 1.5 billion in cash through Nonindicted 5, which was located from November 6, 20

Accordingly, the Defendant conspiredd with Nonindicted 1, 2, 4, and 5 in order, and concealed them for the purpose of pretending the acquisition or disposition of 1.4 billion won or 1.5 billion won, including criminal proceeds, and pretending to be the property lawfully acquired.

2. Violation of the Act on Specific Economic Leave Punishment, etc. (Embezzlement);

On November 208, 2008, the Defendant exchanged the check in cash at a place on which he was not a policeman, and used that Nonindicted 4, etc. could not actively exercise his right to the check and cash, and conspired to use it at his own discretion after deducting it from Nonindicted 6 and Nonindicted 7, who was his own seat, and distributing it to use it.

On November 9, 2008, the Defendant, along with Nonindicted 6 and Nonindicted 7, distributed 200 million won out of the above KRW 1.92 billion to Nonindicted 6, and distributed the remaining amount to Nonindicted 7 for use by the Defendant and Nonindicted 7, and used it voluntarily for personal use from November 9, 2008 to February 2009.

Accordingly, the Defendant embezzled KRW 1.92 billion in collusion with Nonindicted 6 and Nonindicted 7.

1. Defendant's legal statement;

1. Each prosecutor's interrogation protocol on Nonindicted 23 and Nonindicted 1

1. Each prosecutor’s protocol on Nonindicted 2, Nonindicted 4, Nonindicted 25, Nonindicted 5, and Nonindicted 9

1. The part concerning Nonindicted 24’s statement in the prosecutor’s protocol against the Defendant (Evidence List No. 11)

1. An investigation report (the appendix of data on tracking funds for KRW 90 million out of KRW 260,000,000,000, which is KRW 150,000,000, the Defendant paid to Nonindicted 6, and the attachment of data on tracking checks);

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

Article 3 (1) 1 and 3 of the Act on the Regulation and Punishment, etc. of Concealment of Criminal Proceeds, Article 30 of the Criminal Act (the most and concealment of Criminal Proceeds and Concealment of Criminal Proceeds, Selection of Imprisonment), Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 355 (1) and Article 30 of the Criminal Act (the point of embezzlement: Provided, That the upper limit of the punishment shall be governed by the main sentence of Article 42 of the former Criminal Act (wholly amended by Act No. 10259, Apr. 15, 2010))

1. Aggravation of concurrent crimes;

Articles 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes within the scope of adding up the long-term punishment for the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) with heavier punishment]

1. Additional collection:

Articles 6(1), 3(1), and 5(1) of the Act on Special Cases Concerning the Confiscation and Restoration of Decomposed Property

○ Amount of 861,850,000 [= (1.92 billion won - 200 million won) / 2]

○ The purpose of the above additional collection is to deprive the defendant of unlawful profits and prevent him from possessing them. Therefore, if the defendant actually acquired the profits, but it is impossible to determine the distributed money, the amount equally divided shall be collected from the defendant.

First, if Nonindicted 6 deducts KRW 200,000,00 which was received by the Defendant from KRW 1.922,370,000, the remaining amount to be additionally collected is KRW 1.72,70,000,000, which is clearly distributed by Nonindicted 6, such as

Next, according to the evidence duly adopted and examined by the Defendant and Nonindicted 7, the following circumstances, namely,: (a) the Defendant asserts that Nonindicted 7 went through distribution of KRW 1.35 million; (b) Nonindicted 7’s statement was inconsistent with the Defendant’s assertion and amount; and (c) Nonindicted 7’s statement was returned to Nonindicted 7 for the purpose of returning part of the statement to the Defendant; and (d) Nonindicted 7’s statement on the details of distribution was not ensured due to uncertainty of the present location; and (e) there was no objective data that can identify the details of distribution between the Defendant and Nonindicted 7, such as the details of account or the details of check; and (e) the evidence submitted in the instant case alone is impossible to determine the amount distributed between the Defendant and Nonindicted 7.

Therefore, the above KRW 1.72 billion is reasonable to collect the amount equally divided between the Defendant and Nonindicted 7. As such, the above KRW 861,850,000 corresponding to 1/2 of the above amount shall be collected from the Defendant.

1. Summary of the assertion

Nonindicted 1’s delivery of the receipt of KRW 1.92 million to the Defendant via Nonindicted 2 and Nonindicted 4 constitutes illegal consideration as it is in accordance with the purpose of washing money from criminal proceeds, and thus constitutes illegal consideration. Therefore, even if the Defendant used it at will without returning it, it does not constitute embezzlement.

2. Relevant legal principles

The illegal cause under Article 746 (a) of the Civil Act refers to a case where the act that caused it violates good morals and other social order (see Supreme Court Decisions 2004Da27488, 27495, Sept. 3, 2004; 2004Da27488, 27495, etc.). An act of anti-social order null and void under Article 103 of the Civil Act not only violates good morals and other social order, but also goes against the duty of the right and obligation which is the object of the juristic act, and its content itself does not go against social order, even if it is legally enforced or it does not go against social order, and it includes a case where the nature of anti-social order is maintained by any condition or monetary consideration that is contrary to the juristic act, and the motive of the juristic act indicated or known to the other party is contrary to social order (see, e.g., Supreme Court Decisions 2009Da12580, May 27, 2010>

However, Article 746 of the Civil Act states that a person who has committed an act without social validity expressed his/her intention not to be protected by the law by asserting the invalidation of such unlawful act, and thus, even if a prohibition provision is in violation of the prohibition provision from a policy point of view of the State, the payment of property in violation of the prohibition provision does not constitute a violation of good customs and other social norms (see Supreme Court Decision 98Da34669 delivered on October 20, 198). The act of depositing the property in order to passive concealment of the property already created by an anti-social act does not immediately constitute a juristic act contrary to social order (see Supreme Court Decision 2000Da49343 delivered on April 10, 200).

Meanwhile, even if the funds given to a trustee were created by criminal proceeds acquired through a criminal act, and there was an anti-social element in the process of creation, the act to be entrusted to the trustee thereafter cannot be deemed an act of anti-social order, barring special circumstances, such as ordering the delivery to use the funds for another criminal act, such as the price manipulation, using the funds (see Supreme Court Decision 201Do5822, Nov. 29, 2012).

3. Determination

In full view of the aforementioned legal principles and the following circumstances acknowledged by the evidence duly admitted by the court, the delivery of the instant check cannot be deemed as illegal consideration. Thus, the Defendant’s act of selling the check at will without returning the check and the funds exchanged therefor can be deemed as having been at the rate of embezzlement.

① The check of this case is a criminal gain acquired by Nonindicted 3 and Nonindicted 1 through a multi-stage fraud crime, or a property derived from such criminal gain, as seen earlier.

② As seen earlier, the instant check does not constitute illegal consideration in the case of simply depositing criminal proceeds (Provided, That the aforementioned Supreme Court Decisions 2000Da49343, 201Do5822, supra, do not purely mean the deposit or storage of all the funds received in kind, but rather the same amount is returned at the request of the trustor when the trustor permits the management or use of the said funds.) In that the instant check does not request the delivery trustee to keep the check in cash within the short period, the legal relationship cannot be assessed in the same category as the case of each of the above Supreme Court precedents in that it requires that the check be exchanged for cash and returned within the short period of time.

③ However, from the standpoint of the delivery, the delivery is identical when the trustee keeps the check by depositing it in his account for a considerable period of time according to the purport entrusted, and then withdraws it in cash or other checks thereafter, or the trustee immediately returns it by exchanging it in cash through a third party, or obtains the effect of money laundering from the proceeds of the crime concerned.

In addition, from the viewpoint of the trustee, it is difficult to say that there is an essential difference in the intention or result of the return immediately after changing the money through another person in cash, while keeping the money in the account in order to help the deliveryer and to easily conceal and conceal criminal proceeds.

Therefore, there is no reason to view the act of issuing a check when requesting exchange in cash as in the instant case, and simply keeping it in custody, and the act of issuing a check when demanding a return later, from the viewpoint of normative evaluation, is different.

④ The performance of an asset in violation of the prohibition provision cannot be deemed illegal consideration if it does not constitute a juristic act contrary to social order. Whether it constitutes a juristic act contrary to social order should be determined in accordance with the purpose and character of the performance itself. The consignment relationship between Nonindicted 4 and the Defendant with respect to checks is to exchange checks in cash, and the check is not issued with funds to use other criminal acts. Thus, even if the check constitutes criminal proceeds and the delivery of checks is subject to criminal punishment, it cannot be said that the delivery of checks according to the contents of the consignment relationship itself has the character of anti-social order.

4. Conclusion

Therefore, the defendant and his defense counsel's assertion is not acceptable.

1. Scope of punishment by law: Imprisonment with prison labor for not less than three years but not more than 20 years;

2. Scope of recommendations based on the sentencing criteria: Imprisonment with prison labor for at least two years;

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

[Determination of Punishment] Type 3 (not less than KRW 500,00 but less than KRW 500,000) of Embezzlement/Misappropriation

【Determination of Recommendation Area】 Basic Area

[Scope of Recommendation] 2 to 5 years

○ Violation of the Act on Regulation and Punishment of Concealment of Criminal Proceeds: Non-establishment of sentencing guidelines;

○ Application of the standards for handling multiple crimes

Since the crimes on which the sentencing criteria are set and those on which the sentencing criteria are not set are concurrent crimes under the former part of Article 37 of the Criminal Act, compliance with the lower limit of the sentencing range of the recommended crimes for which the sentencing criteria

3. Restrictions by applicable sentences of Acts;

Since the lower limit of the range of sentencing recommended by the sentencing guidelines is lower than the lower limit of the statutory applicable sentencing range, the lower limit of the sentencing range shall accord the lower limit of the statutory applicable sentencing range.

4. Determination of sentence: Four years of imprisonment;

[Unfavorable Circumstances] The Defendant, despite being aware that the instant check was criminal proceeds due to Nonindicted 3’s fraud, exchanged it in cash and attempted to conceal or conceal it. In addition, the Defendant embezzled large amount of money exceeding KRW 1.9 billion in collusion with Nonindicted 7 and Nonindicted 6, and made it impossible for the Defendant to recover from the victims of fraud in fact because he/she embezzled a large amount of money exceeding KRW 1.9 billion in collusion with other Nonindicted 7 and Nonindicted 6, and distributed embezzled money with his/her accomplice who conspired to commit the crime or consumed his/her escape. Such an act of the Defendant is very heavy in terms of the nature of the crime, and the possibility of social criticism is very high.

[Egrative circumstances] The Defendant is not directly related to Nonindicted 3 and Nonindicted 1’s fraud. However, upon the request by Nonindicted 4, etc., the commission was involved only in money laundering for the purpose of getting access, but the commission was caused to the instant crime, and the part of the amount embezzled by the Defendant is deemed to have been reverted to the accomplice who is not the Defendant. As a result, the Defendant spent considerable amount to return part of the embezzled amount to Nonindicted 1, and thereby, the Defendant suffered economic difficulties so far. The Defendant’s primary offender is divided into the instant crime, against himself, and the Defendant’s wife, and many other persons including the Defendant’s wife seek the countermeasures against the Defendant.

In addition, the punishment shall be determined as ordered in consideration of the age, character and conduct, environment, family relationship, etc. of the defendant and all the sentencing conditions shown in the pleading.

Judges Kim Jong-chul (Presiding Judge)