2018Gohap103 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

name of the crime, fraud, fraud

2019Gohap94 (Consolidated) Fraud

A

Dogjin (prosecution) and Kim Young-ju (Trial)

Attorney Kim Jong-soo (Korean)

March 22, 2019

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

Criminal facts

“ 2018Gohap1103

The Defendant had become a bad credit position since 2010, and around that time, had already been liable for 1 billion won, and began to run the business of distributing and exporting mobile phones from around 201, but was so-called ‘the so-called ‘the repayment of the existing obligation by lending the remaining money due to the accumulation of deficit', and even if the Defendant borrowed money from another person due to no particular property or profit, there was no intention or ability to repay the money.

1. Crimes against the victim B;

(a) Fraudation of a nominal loan of a simple business fund;

On April 28, 2015, the Defendant made a false statement to the victim B's office located in Gangnam-gu Seoul, Seoul, that "the Defendant will repay all of the funds to the victim within one month if he/she lends the funds to the domestic business."

The Defendant, by deceiving the victim as such, received KRW 28 million from the victim to the corporate bank account (E) in the name of the Defendant-friendly parent-child relationship, under the pretext of borrowing money from the victim, and received KRW 46 million in total by remitting KRW 18 million around April 30, 2015.

(b) Fraudulent of the nominal loan money for purchasing apartment houses;

1) On June 4, 2015, the Defendant, at the victim’s office located in Gangnam-gu Seoul Metropolitan Government, purchased the victim’s F apartment G, “Seoul Songpa-gu F apartment G, and the down payment is less than the down payment.” On July 24, 2015, the Defendant made a false statement that “A part of the remainder is less than the balance, and the loan is less than the balance.”

Around June 4, 2015, the Defendant: (a) by deceiving the victim as such; (b) transferred KRW 70 million to an enterprise bank account (I) in H’s name; and (c) received KRW 40 million in total from D’s corporate bank account (E) around July 24, 2015; and (d) received KRW 110 million in total from D’s corporate bank account.

2) On June 12, 2015, the Defendant purchased apartment houses in the name of another person in the name of a person with bad credit standing, and made a false statement to the victim that “on the part of the victim’s office located in Gangnam-gu Seoul, the Defendant would be able to pay the remainder. If the Defendant borrowed funds necessary to collect the remainder, the Defendant would receive the remainder and receive the bank loans.”

As such, the Defendant, by deceiving the victim, received KRW 200 million from the victim to the K Bank account (L) in the name of J on the same day as the loan money.

(c) Fraudation of nominal loan funds for projects related to merchandise coupons;

Around July 9, 2015, the Defendant, at the victim’s office located in Gangnam-gu Seoul Metropolitan Government, purchased at the discount of the department store stores in the city, and then again made a profit of 10% per transaction during the market. The Defendant made a false statement that “I will pay 246 million won as well as 200 million won already borrowed if I borrowed the business funds.” However, the Defendant did not run the gift certificate-related business, and the Defendant did not have any intention or ability to complete the payment even if I borrowed money from the victim.

The Defendant, by deceiving the victim as such, received KRW 18 million from the victim to the corporate bank account (E) in the name of D on the same day.

(d) Fraudation of nominal loan money for business related to mobile phones;

On January 18, 2016, the Defendant made a false statement to the victim's office located in Gangnam-gu Seoul, Seoul, that the victim's initial funds are insufficient to start the mobile phone business. The Defendant borrowed money to the victim within one month.

The Defendant, by deceiving the victim as such, received KRW 10 million from the victim to the corporate bank account (E) in the name of D on the same day.

(e) Fraudulent of money borrowed under the name of business funds related to M;

Around April 1, 2016, the Defendant made a false statement to the victim in the teahouse near the victim's office in Gangnam-gu, Seoul, that "I would pay money to the victim within one month because I would be able to get the deposit because I would be able to get the purchase of goods from MM Chinese exclusive right." However, in fact, the Defendant did not proceed with M-related business, and the Defendant took so-called "the so-called "the so-called "the so-called" as above. Therefore, even if I borrowed money from the victim, the Defendant did not have any intention or ability to pay the money.

The Defendant, as such, by deceiving the victim, received KRW 200 million from the K Bank account (N) under the name of J on the same day as the loan money from the victim.

(f) Borrowing money as a nominal loan of expenses for appointing tax accountants;

On October 20, 2016, the Defendant, at a teahouse near the victim’s office located in Gangnam-gu Seoul Metropolitan Government, demanded the victim to deposit money immediately in order to appoint a certified tax accountant in the current National Tax Service. The Defendant borrowed money short of money. However, the Defendant did not want to appoint a certified tax accountant, and the Defendant did not have any intention or ability to complete payment even if he borrowed money from the victim.

The Defendant, as such, by deceiving the victim, received 25 million won from the K Bank account in the name of D on the same day as the loan money from the victim.

2. Crimes against victims P;

(a) Fraud of a nominal loan of business funds;

Around April 22, 2015, the Defendant: (a) purchased and exported mobile phones in Q Q Q Q in Gangnam-gu; and (b) made a false statement to the Victim P to the effect that “A project is not sufficient to secure the exclusive right to supply them to the Chinese government; (c) to loan money, the Defendant would make a full payment within one year.” However, the Defendant did not run the M-related business, and the Defendant did not have any intention or ability to complete payment even if he/she borrowed money from the victim.

The Defendant, by deceiving the victim, had the victim borrow KRW 89 million from 11 to 11, 205, from May 11, 2015 to June 1, 2015, received 27,300,000 from the victim to the company bank account (T) in the name of D’s name from May 11, 2015, and transferred KRW 8,00,000 to D’s bank account (E), and received KRW 4,55 million in cash from the Defendant’s post office account (U), and received KRW 2.9 million in cash.

(b) Fraudulent of the nominal loan money for purchasing apartment houses;

On December 18, 2015, the defendant made a false statement that "If the victim lends the amount of KRW 20 million to the Seoul Special Metropolitan City, Nowon-gu V apartment W WW, the apartment will be disposed of, and the apartment will be disposed of." On January 25, 2016, "if the apartment balance is short of money, the apartment will be repaid at the time of disposal of the apartment."

Around December 18, 2015, the Defendant, by deceiving the victim, had the victim transfer KRW 20 million to the X bank account (Z) in the name of the owner of the above apartment, under the pretext of the loan, and received KRW 21.5 million in total from the victim to the post office account in the name of the Defendant on January 25, 2016.

3. Crimes committed against AA by a victim;

On May 13, 2015, the Defendant made a false statement to the victim that “The victim would pay interest on the loan to the lending company and repay the loan at the expiration of the loan period.”

As such, the Defendant, by deceiving the victim, had the victim borrow a total of KRW 30 million from five of the lending companies, respectively, and then withdrawn KRW 30 million from the AC Bank account (AD) where the above loan was deposited by the victim on the same day, and acquired pecuniary benefits equivalent to the same amount.

4. Crimes against AE;

On July 3, 2015, the Defendant made a false statement that “RR in Q Q Q in Gangnam-gu, Seoul, requires a victim AE to borrow money in the name of KRW 100 million, which is currently bad credit standing. If the Defendant borrowed money to B, the Defendant would pay monthly interest and principal.”

As such, the Defendant, by deceiving the victim, had the victim borrow a total of KRW 87 million from five lending companies, and received from the victim a total of KRW 84,86 million from the same date to August 10, 2015.

5. Crimes against victims H;

On January 16, 2015, the Defendant made a false statement to the victim H that “In order to refund a loan that he is using, credit rating should be raised if he/she intends to repay the loan to the other lending institution within a short period after receiving the loan from the other lending institution. If he/she borrowed the loan from the 11 lending institution within a short period of time, he/she would be able to raise the credit rating of the party and to arrange the loan to repay the loan at the present time by paying the loan within 2 months.” However, the Defendant did not have any intention or ability to arrange the repayment of the loan to the victim, even if he/she borrowed money from the victim.”

As such, the Defendant: (a) by deceiving the victim; (b) had the victim borrow a total of KRW 80 million from 11 to 11 of the lending company; (c) received from the victim a transfer of KRW 50 million to the post office account (AF) in the name of the Defendant on the same day; and (d) received KRW 30 million from the victim on January 21, 2015, in total, KRW 80 million.

"2019, 94"

6. Crimes against AG;

A. On October 13, 2016, the Defendant issued a false statement that “AH sales store in Jung-gu Seoul Special Metropolitan City SH Sychobroporo sales store” and “AG purchases and sells Sychosch Rex from the U.S. to South Korea. There is a need for money to see the U.S. in the U.S..... In short, the Defendant borrowed money from the other party in low interest if he/she lends money to the other party at low interest rate of five days.” However, the fact is that:

As above, the defendant did not have any intention or ability to pay the money properly even if he borrowed the money from the victim because he was in a so-called "fashion" situation.

The Defendant, as such, by deceiving the victim, received KRW 30 million from the victim on the same day.

B. On November 17, 2016, the Defendant continued to make a false statement that “Around November 17, 2016, the Defendant would pay the victim with the money borrowed 2,300,000 won after 2,000 won.” However, the Defendant did not have the intent or ability to pay the money properly even if he borrowed the money from the victim because the Defendant was under so-called so-called “losting” as above.

The Defendant, as such, by deceiving the victim, received KRW 7 million from the victim on the same day.

Summary of Evidence

【2018Gohap103 (Criminal facts in the case of sale)

1. The defendant's legal statement (the third trial date);

1. Statements made by witnesses B and P in the second trial records;

1. Each police statement made to B, P, AE, H, and AJ;

1. Each written statement of B, P, and E;

1. The part concerning the statement made by B, P, E, and H in the complaint;

1. A report on investigation (including attached materials);

1. Details of account transactions (Evidence Nos. 10), each AC bank account details, copies of remittance receipts, copies of account transactions in J-name K bank accounts, copies of account transactions in AC bank accounts in AA name, copies of account transactions in each company bank accounts, copies of account transactions in AC bank accounts, and documents of account transactions in AC bank;

1. Data submitted to the complainant (the details of transactions of withdrawals, etc.);

1. Notification of data on financial transaction status;

1. Response to a request for financial transaction information;

"2019Gohap94 (Article 6 of the Criminal Act in the market)"

1. The defendant's legal statement (the third trial date);

1. The part concerning AG's statement among the prosecutor's interrogation protocol against the defendant

1. AG complaint;

1. Recording records;

Application of Statutes

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

Article 347 (1) of the Criminal Code [However, Articles 1-2 (1) (b), 347 (2) (2) and 6-1 (b) of the Criminal Code as stated in the holding shall be included separately, each choice of imprisonment with prison labor]

The prosecutor indicted all of the criminal facts of the judgment as a single comprehensive crime. However, as examined in the part of innocence in the second part, the crime of fraud is established according to the contents of deception and each of these fraud is in the relation of substantive concurrent crimes. However, there is a different legal evaluation as to whether the same crime is considered as a comprehensive crime or a single crime, and each fraud is included in the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud). Since the defendant recognizes facts, and even if the court recognizes each fraud, it does not have any concern over causing a substantial disadvantage to the defendant's exercise of his right to defense, the defendant is guilty of each fraud ex officio without changing the indictment.

The prosecutor indicted the entire criminal facts of the crime No. 2 as an inclusive crime, but the contents of the deception and the use of the fraud amount are different from each other, and it is difficult to regard the same method by the same crime with a single and continuous criminal intent at intervals of not less than 7 months. Thus, even if the same criminal facts charged as a single comprehensive crime are concurrent crimes, it is merely a different legal evaluation as to the number of crimes, and it is merely a different one, and it is not likely that the defendant's exercise of his/her right to defense may substantially disadvantage because he/she recognizes facts, and therefore, he/she is guilty of each fraud ex officio without changing the indictment.

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (1-2 of the Judgment with the most severe penalty) of the Criminal Act

Reasons for sentencing

1. The scope of punishment: Imprisonment for not more than 15 years;

2. Scope of recommended sentences according to the sentencing criteria;

(a) A primary crime;

[Determination of Punishment] The General Fraud [Type 2] is more than KRW 100 million, less than KRW 500 million

[Recommendation and Scope of Recommendation] Basic Field, Imprisonment with labor for up to four years

(b) Second crime;

[Determination of Punishment] The General Fraud [Type 2] is more than KRW 100 million, less than KRW 500 million

[Recommendation and Scope of Recommendation] Basic Field, Imprisonment with labor for up to four years

(c) A third crime;

[Determination of Punishment] The General Fraud [Type 2] is more than KRW 100 million, less than KRW 500 million

[Recommendation and Scope of Recommendation] Basic Field, Imprisonment with labor for up to four years

(d) Scope of recommendations according to the standards for handling multiple crimes: One to seven years of imprisonment (the upper limit of the first crime + the upper limit of the second crime + 1/2 of the upper limit of the second crime + 1/3 of the upper limit of the third crime);

3. Determination of sentence: Imprisonment for 2 years and 6 months; and

○ Unfavorable Circumstances: The fact that the victims of the instant crime are many victims and the amount of damage therefrom reaches a total of at least 1095,500,000 won, etc., and the victims have not recovered, and the victims have also sought a strict punishment against the Defendant.

The favorable circumstances: The defendant recognized the crime of this case and is against the defendant, and partly damaged the victim B and E, and the defendant has no record of criminal punishment for the same kind of crime before committing the crime of this case.

○ Other factors of sentencing indicated in the instant case, including the Defendant’s age, character and conduct, environment, motive, means and method of committing the crime, and circumstances after committing the crime, shall be determined as ordered.

The acquittal portion

1. Summary of the facts charged regarding the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

The Defendant, in the same manner as stated in paragraph (1) of the facts constituting the crime in the judgment, by deceiving the victim B in the manner as indicated in the judgment, and by deceiving the victim B from April 28, 2015 to October 20, 2016, he acquired a total of KRW 690 million from the victim.

2. Determination,

In the case of fraud, in which the money is acquired through deception several times against the same victim, if the criminal intent is single and the method of the crime is the same, only the comprehensive crime of fraud is established, and if the single and continuous nature of the crime is not recognized or the method of the crime is not the same, each crime constitutes a substantive concurrent crime (see Supreme Court Decision 9Do4862 delivered on February 11, 200, etc.).

In addition, whether each crime constitutes a single comprehensive crime or concurrent crime, depending on the difference between the applicable special law that requires aggravated punishment based on the amount of damage, etc., and the determination of sentencing and the judgment of statute of limitations and res judicata, and thus, seriously affected the defendant. In particular, the unity and continuity of the criminal intent shall be reasonably determined based on logical and empirical rules by thoroughly examining the method and form of individual crimes, motive for the crime, interval between each crime, time interval between each crime, and whether there is a follow-up crime while the situation using the same opportunity or relationship continues (see, e.g., Supreme Court Decision 2016Do11318, Oct. 27, 2016).

The prosecutor charged the defendant with the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) on the premise that the whole fraud of the victim B constitutes a single comprehensive crime.

As seen earlier, the Defendant acquired money from the victim B 1, but the crime of Paragraph 1-A of the crime stated in the judgment was to be repaid within one month if it is necessary to provide funds for the business on April 28, 2015, and Paragraph 1-b of the crime is to be provided with bank loans if it is lent on June 4, 2015 or June 12, 2015. The crime of Paragraph 1-c is to be provided with money for gift certificates business on July 9, 2015, to the effect that the crime of Paragraph 1-d of the crime is to be provided with money for KRW 246 million already borrowed from the money, or to be provided with money for a single crime of Paragraph 1-d of the crime is to be provided with money for the same purpose as the initial business fund for mobile phone-related business on January 18, 2016, and thus, it is difficult to acknowledge that each of the crime of deception is to be provided with money for the same purpose within 16-month or 16-month period.

However, the amount obtained by the defendant from the victim B is KRW 46 million (the crime of paragraph (1)), KRW 30 million (the crime of paragraph (1)-2), KRW 180 million (the crime of paragraph (3)-3), KRW 10 million (the crime of paragraph (1)-3), KRW 10 million (the crime of paragraph (5)-4), KRW 200 million (the crime of paragraph (5)-5 million), and KRW 15 million (the crime of paragraph (1)-5 million) and all of such amount of profit does not constitute "50 million or more" as prescribed by Article 3 (1)-2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 15256, Dec. 19, 2017). Therefore, the above provision on the facts charged cannot be applied to this part, and there is no evidence to acknowledge that the amount of profit of the defendant is more than 50 million.5 billion.

3. Conclusion

Thus, since the facts charged in the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes fall under a case where there is no proof, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, but as long as it is found not guilty as stated in its reasoning,

The presiding judge, assistant judge and assistant judge

Judges Lee Jae-in

Judges Seo-gu