Defendant 1 and two others

Defendants

Dang-ho (Court) and Kim Ho-young (Court of Justice)

Law Firm LLC et al. and three others

Seoul Central District Court Decision 2016Gohap510 Decided November 4, 2016

The judgment of the court below is reversed.

Defendant 1 is punished by imprisonment with prison labor for three years, by imprisonment for two years and six months, and by imprisonment for three years and by imprisonment for two years, respectively.

1. Summary of grounds for appeal;

A. Defendant 1

1) misunderstanding of facts or misunderstanding of legal principles as to the fraud against ○○ Savings Bank

Defendant 1 recognized that ○○ Savings Bank was false at the time of submitting a written confirmation of free residence and lease contract at the ○ Savings Bank’s request. Defendant 1 did not deceiving ○ Savings Bank.

In addition, Defendant 1, who had already been given a loan to the ○ Savings Bank before the loan, presented all lessees with the loan to the ○○ Savings Bank, and the ○ Savings Bank extended a loan to Defendant 1 by combining the real estate mortgage loan and the credit loan with the knowledge of the existence of the ○ Savings Bank. Thus, even if the Defendant’s deception was made, there is no causal relationship between the deception and the ○○ Savings Bank.

In addition, Defendant 1 was set up and loaned both the purpose of use and the repayment plan, but there was no intention to commit the crime of defraudation, since Defendant 1 was fully repaid the loan at three months after the loan to the wind that some residents will continue to reside, stating that the original purpose of use ceases to exist.

Therefore, the judgment of the court below which found Defendant 1 guilty on this part of the facts charged is erroneous in the misunderstanding of facts or in the misunderstanding of legal principles, which affected the conclusion of the judgment.

2) misunderstanding of facts or misunderstanding of legal principles as to the fraud of △△ Savings Bank

Defendant 1 had no reason to commit fraud at △△ Savings Bank, etc., on the grounds that Defendant 1 could sell △△△ Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog dog Dog Dog e., KRW 6 billion. On the contrary, Defendant 3 and Defendant 2, regardless of Defendant 1, submitted each sales contract of the purchase price of KRW 6.7 billion and KRW 5 billion to the △ △ Dog Dog Dog Dog Dog

In addition, Defendant 1 was aware of put put to put in place the instant situation after entering into a sales contract, but Defendant 1 prepared a written confirmation of August 13, 2015 and a written confirmation of August 26, 2015 to clarify the responsible location. On or around August 19, 2015, Defendant 3 asked Defendant 1 to cooperate with Defendant 1. Defendant 1 was first put in place a sales contract of 6.7 billion won for the first time during the settlement of accounts around September 3, 2015, and Defendant 2 did not go against this. Defendant 1 cannot be deemed to have led Defendant 1 to commit the instant crime on or around October 7, 2015 only by sending the written confirmation to Defendant 2, and Defendant 1 cannot be deemed to have led Defendant 1 to commit the instant crime.

In addition, there is no agreement between the Defendants to distribute loans, and Defendant 2 participated in the process of settlement of the subsequent purchase price even after receiving only KRW 285 million out of the loans. Therefore, there was no agreement among the Defendants on distribution of loans. Accordingly, Defendant 1 did not agree with the rest of the Defendants.

In addition, Defendant 1 offered to Defendant 2 and Defendant 3 a lease agreement as a seller of Yeng-si, and did not enter the documents, etc. necessary for the above Article into Kwikset service. Defendant 3 requested a lease agreement form. Defendant 1’s contact address of a forged lease agreement does not have any intention. Defendant 1 sent Defendant 1 a monthly deposit passbook with the request of Nonindicted 1. Therefore, Defendant 1 did not have any awareness of the forgery of the lease agreement and its exercise.

Finally, Defendant 1 did not lead the lending of bonds to raise the buyer’s own share. The statements of Defendant 3 and Defendant 2 and the statements of Nonindicted 2, Nonindicted 3 and Nonindicted 4, who led the lending of bonds by Defendant 1, and the statements of Nonindicted 2, Nonindicted 3 and Nonindicted 4, cannot be trusted.

Therefore, the judgment of the court below which found Defendant 1 guilty on this part of the facts charged is erroneous in the misunderstanding of facts or in the misunderstanding of legal principles, which affected the conclusion of the judgment.

3) Unreasonable sentencing

The imprisonment with prison labor for Defendant 1 (seven years of imprisonment) of the lower court is too unreasonable.

B. Defendant 2: Unfair sentencing

The imprisonment with prison labor for Defendant 2 (4 years and six months) of the lower court is too unreasonable.

C. Defendant 3: Unreasonable sentencing

The imprisonment with prison labor for Defendant 3 (four years of imprisonment) of the lower court is too unreasonable.

2. Judgment on the misconception of facts or misapprehension of legal principles as to the fraud against the ○○ Savings Bank

A. Whether Defendant 1 committed deception or not

Degination as a requirement for fraud refers to all affirmative and passive acts that have to observe each other in a property transactional relationship, and it is sufficient if it does not necessarily require false indication as to the important part of a juristic act, but is related to the facts that form the basis of judgment in order to allow an actor to perform a disposal act that he/she wishes by omitting the other party into mistake (see Supreme Court Decision 2014Do909, Oct. 15, 2014, etc.).

In addition to Non-Indicted 5's legal statement in the appellate court's evidence duly adopted and examined at the court below, it is fully acceptable to recognize the facts and circumstances of the judgment below as legitimate. Examining these facts in light of the above legal principles, it is reasonable to view that Defendant 1's submission to ○ Savings Bank of this part of this case is clearly a fraudulent act by forging a false certificate of free residence and lease contract in order to make it possible for ○ Savings Bank to evaluate the legitimate value of the collateral in the course of obtaining a loan to ○○ Savings Bank. Therefore, this part of the allegation by Defendant 1 is without merit.

B. Whether there exists a causal relationship between deception and ○ Savings Bank loan

In full view of the facts and circumstances acknowledged by the lower judgment, it is reasonable to view that the ○○ Savings Bank erroneously assessed the security value on the basis of the falsified free housing certificate and lease agreement, and erroneously assessed the security value, and that such mistakenly assessed security value had a considerable impact on the loan of KRW 3 billion. Therefore, since there exists a causal link between Defendant 1’s deception and the loan due to the mistake of ○○ Savings Bank, this part of the allegation by Defendant 1 is without merit.

C. Whether Defendant 1 had the intent to commit the crime of defraudation

In addition to the statement of Nonindicted 5 at the appellate court’s witness in the evidence duly admitted and examined at the lower court, the following circumstances may be revealed in addition to the facts and circumstances duly admitted in the lower judgment, and considering these facts in full view, Defendant 1 recognizes and intended to obtain a loan of KRW 3 billion by forging and submitting a false certificate of free residence and a lease contract to a lessee in order to obtain a loan of KRW 3 billion by combining a secured loan and a credit loan. As such, Defendant 1 is deemed to have a criminal intent to obtain a loan by deception. Therefore, this part of Defendant 1’s assertion is without merit.

① Defendant 1 needed KRW 3 billion to raise the construction balance of an urban residential house in the Dong-dong. However, in order to extend the credit loans of KRW 1 billion to Defendant 1, the ○○ Savings Bank presented the condition that Defendant 1 should receive a loan of KRW 2 billion on real estate.

② When Defendant 1 consulted with Nonindicted 5 in charge of loans in ○○ Savings Bank for the said loan, the previous lessee said that he was the Defendant 1’s restaurant employee. Accordingly, Nonindicted 5 believed that he was the horse and explained to the effect that there was an improvement in the collateral ratio in the event he was a free lessee. This conversation took place when Defendant 1 could not predict whether to grant a loan.

3. As to the assertion of misconception of facts or misapprehension of legal principles as to the other party fraud, such as △△ Savings Bank

(a) Requirements for establishing joint principal offenders;

In order to constitute a joint principal offender, two or more persons must jointly commit a crime. The fact that the commission of a crime is required by the intent to jointly process a subjective element and the functional control by a joint doctor, which is an objective requirement, is required. The intent to jointly process is insufficient to recognize another person’s crime and to accept it without preventing it. The purport of the joint process is to jointly engage in a specific criminal act with the intent to jointly commit a specific criminal act, and to transfer one’s own intent by using another person’s act (see, e.g., Supreme Court Decisions 92Do3204, Mar. 9, 1993; 2016Do15470, Jan. 12, 2017).

(b) Fact of recognition;

Of the evidence duly adopted and examined by the court below, if the court below added the legal statement of Non-Indicted 6, Non-Indicted 4, Defendant 3 (Defendant 1), and Defendant 2 (Defendant 1), the following facts can be acknowledged, and contrary thereto, the legal statement of Non-Indicted 7 and Non-Indicted 8 of the appellate court witness is difficult to believe in light of the content and attitude of the statement.

1) Possession of real estate

On July 15, 2005, Defendant 1 entered into a contract to purchase the land and its ground building in Gwanak-gu in Seoul Special Metropolitan City ( Address 1 omitted), and completed the registration of ownership transfer based on the sale in its own future on August 31, 2005, Defendant 1 removed the building and changed the registration of ownership transfer based on the construction of detached houses and neighborhood living facilities buildings on October 14, 2005 to the new building on July 9, 2006, and registered the ownership transfer in its own future on the new building on July 25, 2013, and changed the building and its site into “△△dong Complex Building” (hereinafter referred to as “one real estate”) which is a multi-household housing on March 25, 2013.

On August 11, 2009, the registration of transfer of shares was made on July 24, 2009 between Defendant 1 and Nonindicted 8 on July 24, 2009 with respect to the 6th apartment building in Gwanak-gu in Seoul Special Metropolitan City ( Address 2 omitted) an officetel building (the defendant et al. is referred to as "the 2nd apartment building"; hereinafter referred to as "the 1st real estate"; hereinafter referred to as "the instant real estate").

Defendant 1 reported the acquisition price of the first real estate as KRW 1.5 billion, and the acquisition price of the second real estate as KRW 1.55 billion.

2) Defendant 1’s endeavor to sell real estate

Defendant 1 had already been liable for KRW 2.363 million in total with respect to the instant real estate during the first half of 2015 (i.e., KRW 1.175 million in total + KRW 2.188 million in total with respect to the instant real estate) and KRW 2.67 million in total with the first priority collateral obligation (i.e., KRW 1,967,094,72 in total + KRW 210,555,100 in total with respect to the instant real estate + KRW 5.3 billion in total with respect to the instant real estate at the end of 2015. Accordingly, Defendant 1 had already refused to sell the instant real estate to the head of the ○○ bank for reasons of loans, including food expenses, from December 2014 to KRW 1,500 in total with the intention of selling the instant real estate in short of interest on loans (as of September 2, 2015).

Defendant 1 introduced Defendant 3 on March 2015, Defendant 3: “The instant real estate is not readily sold.” (Evidence No. 992 pages); Defendant 3 sent text messages (hereinafter “Character”) to Defendant 3 on March 2, 2015 (Evidence No. 1071 page); Defendant 1 sent to Defendant 3 on March 16, 2015 (Evidence No. 1071 page); Defendant 3, on March 16, 2015, read “No. 300,000 or 80,000,000 won or more; Defendant 1’s staff Nonindicted 7, on March 16, 2015, entered the leased real estate in e-mail; Defendant 300,000,000 won or more; Defendant 3, on March 10, 2015, entered the leased real estate in e-mail; and Defendant 37,770,000,000 won or more.

around May 2015, Non-Indicted 7 sold the instant real estate to the real estate brokerage office in accordance with the direction of Defendant 1, and requested mediation. The applicant for purchase through the real estate brokerage office presented the purchase price of KRW 6 billion, and Defendant 1 proposed again that the purchase cost was KRW 1 billion if the purchase price was the same as KRW 6 billion, which would have been the same as KRW 6 billion. However, the applicant for purchase would not purchase the instant real estate on such condition because it can be deemed that the excessive payment of capital gains tax would have been caused by the last transfer of the real estate, and thus, the sales negotiation was concluded.

3) Sales mediation between Defendant 1 and Defendant 2

around July 2015, Defendant 1 presented to Defendant 3 the condition that the seller will accept the instant real estate purchase price from the collateral loan of the instant real estate and that if the intermediary dies, Defendant 1 would return the real estate in response thereto, and requested the buyer’s active physical color.

Accordingly, on August 2015, Defendant 3 explained to Defendant 2 on the first day of August 2015, Defendant 2: “The purchase price of real estate was KRW 6.7 billion (the purchase price of real estate was KRW 6.7 billion and the loan was received from the seller, and the buyer does not need to use it at all), the deposit amount was KRW 2.37 billion; the remainder was deducted from the seller’s loan on the other side; and the other is to pay KRW 600 million.” Defendant 2 had the intention to purchase the real estate on the condition of this case’s explanation. Defendant 2 accepted Defendant 3’s proposal, followed Defendant 1 for the first time through Defendant 3’s introduction at a container 2-3th day after 2-3 days thereafter at a coffee shop (the second △△ Doz. 762 page of the trial record).

4) Defendant 1’s request for a loan of the purchase price

피고인 1은 피고인 3에게 이 사건 부동산의 매매 중개를 부탁할 무렵 평소 친분이 있던 ☆☆☆☆☆☆☆☆☆☆(이하 ‘☆☆☆☆☆’라 한다) 소속 모 과장에게 ‘이 사건 부동산을 팔려고 하는데 매매잔금을 대출해 줄 만한 저축은행이나 캐피탈회사를 알아봐 달라’는 취지로 부탁하였다. 그 과장은 저축은행이나 캐피탈회사에 아는 사람이 없었으나, 마침 ☆☆☆☆☆에서 함께 근무하는 직원이고 예전에 저축은행에서 근무한 경력이 있는 공소외 9 심사팀원에게 피고인 1의 위와 같은 부탁을 전달하며 같은 취지의 소개를 부탁하였다(공판기록 462면).

Nonindicted 9 accepted the request and received Defendant 3’s telephone number on the part of the loan applicant’s contact, and then, on August 2015, Nonindicted 10, the head office of △△ Savings Bank’s head office, the head office of △△△ Bank’s corporate finance 4 team 10 worked in a savings bank with himself/herself prior to the example, Nonindicted 9 called “the seller of the instant real estate is in the shape of selling it and doing his/her business.” The purchaser is the buyer, and the bank loan was examined. The several cooperation requested to the effect that the savings bank will know about the loan.”

In addition, Nonindicted 10 introduced Nonindicted 9 with the above circumstances, and received Defendant 3’s mobile phone numbers (the trial record No. 479 pages) and sent Defendant 3’s contact address by examining the loan case of the instant real estate to Nonindicted 1 affiliated with the team. Nonindicted 1 notified Defendant 3 of the fact that he was in charge of lending the instant real estate by telephone.

5) Submission of documents related to Defendant 3’s loan

Defendant 3, at the time of finding Nonindicted 1 as the head office of △△△ Savings Bank, consulted on the loan of remaining money, and on August 4, 2015, Defendant 3 received e-mail the file of “the current status of rent ( August 3, 15)” with respect to the instant real estate from Nonindicted 7, and delivered Nonindicted 1, 18:40 on August 4, 2015, as it is, Nonindicted 7’s mail, and submitted the loan review and review data, as well as Nonindicted 4’s current status as a legal borrower to △△△ Savings Bank. In addition, Nonindicted 100,000 won, including the name, tenant, monthly classification and rent of the instant real estate, and monthly rent of KRW 15 billion, KRW 100,000,000,000,000,000,000 won, and KRW 1850,000,000,00 won, and KRW 1850,000,0,000.

In order to review the application for the loan of this case on August 11, 2015, Nonindicted Party 1 visited the site and visited Defendant 1 for the first time at the site, and took the mortgaged object as a motion picture, Nonindicted Party 1’s image (the trial record No. 460 pages) and Defendant 1 was sold to Defendant 1 at that time.

그 무렵 △△저축은행은 주식회사 ◁◁저축은행(이하 ‘◁◁저축은행’이라 한다)과 이 사건 부동산에 관한 매매대금 대출의 대주단(컨소시엄)을 구성하여 그 대출을 신디케이티드 론의 형태로 하되, △△저축은행이 간사은행을 맡기로 하였다(이하에서 ‘대주단’을 칭할 때에도 ‘△△저축은행’이라고만 표시한다).

6) Preparation of a sales contract

피고인 2는 공소외 4의 대리인으로서 2015. 8. 11. 피고인 1과 “피고인 1이 공소외 4에게 제1부동산을 32억 원, 제2부동산을 18억 원의 합계 50억 원에 매도하기로 하고, 가계약금 100만 원을 지급한다.”는 매매계약서를 작성하였으나, 실제로 피고인 1에게 가계약금을 지급하지 않았다. 피고인 2는 곧바로 2015. 8. 11. 19:05 피고인 3에게 “미팅 중이시라 생각되어 문자를 드립니다. 계약은 마쳤습니다. ▷ 대리가 없어 이제사! 송도 들어가고 있어요. 일마치고 전화주세요”라는 문자를 보기도 하였다(공판기록 766면).

한편, 공소외 1은 2015. 8. 12. 15:50 이 사건 부동산의 전입세대(동거인 포함)를 열람하였다. 그리고 그 무렵 공소외 1은 피고인 3으로부터 받은 여러 자료를 검토한 후 감정평가법인 ♤♤감정원(이하 ‘♤♤감정원’이라 한다)에 이 사건 부동산에 대한 감정의뢰를 하였다.

On August 13, 2015, Defendant 1’s Nowon-gu loaned bank notes on August 10:45, 2015, including that “The part of the bank notes that Nonindicted 4 would receive is unrelated to Defendant 1, and that the contract other than the actual transaction sales contract is not recognized by Defendant 1, the seller, and that the contract other than the actual transaction sales contract is not recognized by Defendant 1, Defendant 1, etc., shall be confirmed.” 1) A written confirmation (Delegation Certificate).hwp file was revised last note 2).

그 다음 날인 2015. 8. 14.에는 이 사건 부동산에 관하여 피고인 1, 피고인 2와 공소외 8 이름으로 합계 67억 원짜리 계약서가 작성되었고(공판기록 763면), ♤♤감정원에서 이 사건 부동산에 대한 현장실사를 하였다(증거기록 217면).

공소외 7은 2015. 8. 16. 10:07 피고인 3에게 이 사건 부동산의 임대차보증금이 합계 3억 7,500만 원으로 정리된 “□□□하우스 임대현황” 파일을 이메일로 보내주었고, 피고인 3은 공소외 1에게 이를 그대로 전달하였다. 공소외 1은 다시 ♤♤감정원에 전달하였다.

♤♤감정원 소속 감정평가사 공소외 11은 2015. 8. 18. 이 사건 부동산의 시가에 관하여 2015. 8. 14. 기준으로 제1부동산의 경우 3,203,684,130원(토지 2,571,200,000원, 건물 632,484,130원), 임대 특기사항으로 임대차보증금 1억 8,000만 원, 월세 합계 1,540만 원, 제2부동산의 경우 1,799,000,000원, 임대 특기사항으로 임대차보증금 1억 9,500만 원, 월세 1,108만 원을 기재한 감정평가서를 작성한 다음, △△저축은행에 제출하였다.

7) Explanation of the purchase price by Defendant 1

On August 18, 2015, Non-Indicted 1 went through an on-site inspection team and the on-site inspection team, and Defendant 1 met. Defendant 1 said that “At that time, Nonindicted 1 was the first real estate building, but at that time, tried to sell and purchase the excess at a low cost amount of KRW 6.7 billion after the completion of the construction work without any basis, so that transfer would be too high, and the buyer would use a multiple contract with KRW 5 billion in consultation with the buyer.” In addition, the current status of the lease of the instant real estate was asked by the head of the review team that “It would be easy for the tenants to make another investigation, as the appraiser conducted the current status of the tenant before ice,” and that “In another case, it would be easy for the tenants to make another investigation.”

8) Forgery 27 of false lease contract

On August 18, 2015, Non-Indicted 7 sent e-mail to Defendant 3, 18:11, 2015, the file of “sumpty” was sent to Non-Indicted 12, who was aware of in Pyeongtaek on August 19, 2015, via Kwikset service, the document stating Defendant 1’s seal and the lessee’s personal information, and each of the real estate of this case (Evidence No. 279-287 page) were sent to Non-Indicted 12, who was aware of in Pyeongtaek, via Kwikset service, and then requested “The document form from e-mail is confirmed, and sent again by preparing the content of the data received from Kwikset.”

공소외 12 등은 그 무렵 서울 동대문구 (주소 4 생략)에 있는 ♡♡♡♡ 사무실에서, 가짜 임대차현황표 등을 바탕으로 컴퓨터를 이용하여 임대차계약서 용지의 부동산 표시 란에 ‘1차 □□□하우스 B1/(호수 1 생략)’의 소재지 및 호실을, 보증금 란에 ‘오천만원’을, 차임 란에 ‘사백만원’을, 임차인 란에 공소외 13의 주민등록번호 등 인적사항을 입력하여 출력한 후, 임차인 란에 기재되어 있는 공소외 13의 이름 옆에 무인을 날인한 것을 비롯하여 이 사건 부동산의 임차인들 명의로 허위의 임대차계약서 27장(증거기록 67~93면)을 위조하였다. 그 임대차계약서에는 이 사건 부동산 임차인들의 실제 주민등록번호가 기재되어 있다(증거기록 37~66면). 공소외 12 등은 피고인 3의 요청에 따라 위와 같이 위조한 허위의 임대차계약서 27장을 공소외 1에게 팩스로 보냈다.

On August 19, 2015, Defendant 3 sent to Defendant 2 the word “Seng Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog 2000,000,000 bank 2.” Of this, Defendant 2’s mobile phone number Dog Dog Dog Dog Dog Dog Dog 3 omitted) was the end of Defendant 2’s mobile phone number (number 2 omitted). Defendant 2 understood Defendant 2 in this letter “or Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog 3, even at any time on August 16, 2015.”

On August 19, 2015, Defendant 1 received a call from Nonindicted 1 to “to prepare a report on actual transaction of 5 billion won in order to continue to provide a loan,” and sent a call to Defendant 3 to confirm the circumstances. Accordingly, Defendant 3 respondeded to the following: “I am able to know about the representative son’s identity, example, and example. I am see that the representative son’s identity should be known. I am see that I am now, I am ever. I am see that I am. I am. I am. I am. I am now we am. I am. I am we am. I am see that the bank will accept a contract only once by telephone, but I am am son? I am? I am am?? I am? I am? I am am?? I am?? I am? I am??

However, Non-Indicted 1 did not know that 27 of the lease agreement delivered by facsimile as above was falsified. In relation to this point, Non-Indicted 1 stated in the court of original instance that “The market price of the instant real estate at the time of the loan on September 2, 2015 was KRW 6 billion, and the senior collateral security obligation was KRW 2,677,649,82, and the first priority collateral security obligation was KRW 2,370,000,000,000,000,000 won. Thus, if the lease contract was forged and applied for the true loan without any concealment of the deposit, Non-Indicted 1 stated that the loan was likely to not be loaned KRW 4.2 billion.”

9) Credit approval of △△ Savings Bank

On August 19, 2015, Nonindicted Party 1 received 27 billion won from Defendant 3 as above, and predicted and prepared a statement of expenses based on 6.7 billion won from the purchase price. The content of Nonindicted Party 1: (a) 2,76,763,590 won plus commission and other expenses; (b) 2,590 won from 6.7 billion won from the purchase price to 4.2 billion won; (c) the purchaser must prepare for the loan at his own expense; (d) however, inasmuch as the purchase price was adjusted at KRW 5 billion from 2,776,763,590 from 2,76,763,590 to 1.7 billion from 2,776,763,590 to 1.7 billion won from 2,000 won from 2,000 won from 6.7 billion won from the purchase price to 1.7 billion won from 2,000 to 5.28.

Accordingly, on August 21, 2015, the △△ Savings Bank’s credit deliberation committee appeared on August 21, 2015, and Defendant 1 et al. explained that, as Defendant 1 et al., the new construction cost of the building among the real estate No. 1 (hereinafter “first building”) was KRW 2 billion, and the acquisition value of the Si construction was KRW 500 million, the transfer income tax was prepared in documents as KRW 5 billion, but the actual purchase price was calculated based on the fact that the actual purchase price was 6.7 billion.

On August 21, 2015, the credit deliberation committee of the △△ Savings Bank approved the loan of KRW 3 billion to the seller including the loan after the receipt of the branch of the lender with self-payment of the balance of the purchase and sale, the conditions of withdrawal after the inspection of the transfer household and the investigation of the lease, and the conditions of direct payment before the seller.

(x) the completion of preparatory work for loans under the terms and conditions of loan approval;

공소외 1은 여신심의위원회의 위와 같은 조건부 대출승인이 난 후 곧바로 2015. 8. 21. 피고인 1에게 전화로 “월세가 정말 지급되는지를 확인하여 달라”고 요구하였다. 피고인 1은 2015. 8. 21. 11:36부터 11:38까지 공소외 1에게 “돈 부치는 분들은 부모님들의 이름으로 부치곤 합니다. 참고하세요”는 문자와 함께 자신 명의의 ●●은행, ▲▲은행 계좌 거래내역을 찍은 사진[거래내역 상의 보낸 사람 이름 옆에는 예를 들어 “(주소 4 생략) (호수 2 생략)”와 같이 건물 번지와 호수가 수기로 기재되어 있다]을 문자메시지 첨부 파일로 보내고, 이어서 “월세 통장입니다”, “●●은행, ▲▲은행 두 군데서 들어오곤 합니다. 자료가 많아 대충 보냅니다”, “월세가 밀리면 목돈으로 부칠 때도 있습니다”, “정확한 금액은 안 들어 올 때가 많고, 되는 대로 부칠 때가 많습니다. 그래도 한 달 안에는 다들 관리비까지 잘 부치곤 한답니다”는 문자를 보냈다(증거기록 579~589면).

In addition, in the process of the above deliberation by the Credit Deliberation Committee, Nonindicted Party 1 asked one member of the credit deliberation committee to “I see the borrower?” and visited Defendant 3 immediately after conditional approval. Nonindicted Party 4 and Defendant 2 visited the △△△ Savings Bank for the first time with Defendant 3 on August 24, 2015. Nonindicted Party 1 explained to the effect that “The purchase price is five billion won, excluding loans 4.2 billion won, the remainder of the purchase price and the transfer of ownership, etc., excluding loans 4.2 billion won, should be deposited before the buyer prepared for the loan. In fact, since the purchase price is KRW 6.7 billion, Nonindicted Party 4 and Defendant 2 visited Defendant 3, along with Defendant 3. Nonindicted Party 1 explained to the effect that “The bank may directly confirm the difference between KRW 5 billion and the loan amount to KRW 1.7 billion.”

In addition, Nonindicted Party 1 confirmed that the name of the tenant and the name of the tenant in the Chapter 27 of the lease contract are consistent.

이어서 ◁◁저축은행도 2015. 8. 26. 10:00 여신심의회를 개최하여 공소외 4에게 12억 원을 대출하는 것을 승인하였다.

On the other hand, Defendant 1’s files on August 26, 2015 were corrected lastly in the Nowon-gu’s letter of confirmation (a certificate of delegation). The content of the confirmation (a letter of delegation) is as follows: “The part of the bank loan that Defendant 4 wishes to receive is not superior to Defendant 1 by the seller, and Defendant 1 cannot be recognized at the time of occurrence of a sales contract that is not stamped by the seller’s seal impression and the private person (Evidence 1515 page)” (Evidence 15 page), and it is completely identical to the attached Form 3 attached hereto submitted by Defendant 1 to the prosecution.

On August 26, 2015, Defendant 3 sent to Defendant 2 a list of prepared documents, such as the original sales contract and the original registration statement (registration certificate) necessary for preparing loan application documents on the following day, in writing.

공소외 4는 2015. 8. 27. △△저축은행 본점에서 대출금 30억 원에 관련하여서는 △△저축은행과, 대출금 12억 원과 관련하여서는 ◁◁저축은행과 각 여신거래약정서를 작성하고, ‘아시아신탁 주식회사에 이 사건 부동산을 담보목적으로 신탁하고 △△저축은행, ◁◁저축은행을 공동1순위 우선수익자로 지정하여 신탁하기로 한다’는 담보신탁계약서를 작성하였다. 이에 따라 대출은 2015. 8. 28. 실행하기로 하였다.

1) The non-performance of a loan on August 28, 2015

Between the Defendants and Nonindicted 4, the buyer’s own share necessary for the execution of the loan was procured from Defendant 3 to deposit approximately KRW 1.07 billion in the account of the △△ Savings Bank in the name of Nonindicted 4, and the remaining KRW 1.3 billion (the amount deducted from the expenses) was expressed to be delivered to Defendant 1 with the direct purchase price in the front of the bank deemed to be the bank. However, on August 28, 2015, the scheduled date for the execution of the loan was that Defendant 3 failed to procure the buyer’s own share, as well as that it did not contact the buyer. The date on which the loan was executed was postponed on August 31, 2015.

On August 28, 2015, Defendant 1 sent a bond business operator’s contact number to Defendant 3 in writing, and added an explanation to Defendant 1, Defendant 1, on August 28, 2015, stating that “I am in written in written form”. Defendant 1, on August 30, 2015, sent to Defendant 3 the word “I am in written form.” On August 30, 2015, Defendant 1 sent to Defendant 3 the word “I am in written form”, “I am in written form (F am in written form) to be resolved from August 31, 2015 to bank am in written form.” On the same day, Defendant 1 sent to Defendant 3 the word “I am in written form” (Evidence No. 1080, 1081 page).

12) The non-performance of a loan on August 31, 2015

On August 31, 2015, the provision of the loan was extended on September 1, 2015 by the Defendants only with the following letters, but not with the buyer’s own share, and the execution of the loan was postponed on September 1, 2015.

본문내 포함된 표 시간 발신인 수신인 문자 내용 13:48 피고인 1 공소외 1 이왕 △△에서 고생하였으니 △△서 하기로 했구요 ~ 늦어두 6시로 알겠습니다 13:56 공소외 1 피고인 3 계좌..상호저축은행 (계좌번호 1 생략) 금액 1,076,363,590원 사장님 위 금액 저희 △△저축은행 위 계좌로 입금하시고 나머지 13억 3,000만 원은 수표로 끊어서 오셔야 합니다. 14:16 공소외 1 피고인 3 위와 같은 내용 14:40 공소외 1 피고인 3 사장님 3시가 넘어가면 오늘 대출 진행이 불가능합니다 서둘러주세요 14:48 피고인 1 피고인 3 오늘 어려운건가요 은행서 3시까지 안 들어오면 어렵다구 합니다 14:55 공소외 1 피고인 3 사장님 저 지금 ◇◇동으로 출발합니다 계좌.. 상호저축은행(계좌번호 1 생략) 금액 1,076,363,590원 사장님 위 금액 저희 △△저축은행 위 계좌로 입금하시고 나머지 13억 3,000만 원은 수표로 끊어서 ◇◇동으로 3시 반까지 오셔야 합니다 16:01 공소외 1 피고인 3 사장님 저 ◇◇동 ◆ 사장님 만났습니다 전화주세요 16:10 공소외 1 피고인 3 사장님 오늘 진행 못합니다 은행시간 및 등기소 시간을 못 맞춰서 진행이 불가능합니다

13) On September 1, 2015, non-performance of loans and change of a person in charge of procuring self-charges

On September 1, 2015, Non-Indicted 1 sent to Defendant 3 the word “Irrebibibibibibibibibibibibibibibibibibiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii

On the other hand, Defendant 2 met Defendant 3 at the morning on September 1, 2015 and immediately returned to Defendant 1 as the end of Defendant 1 by receiving an envelope containing Defendant 1’s delivery or interest money in the vicinity, but Defendant 3 already left the envelope and returned the envelope to Defendant 1.

On September 1, 2015, Non-Indicted 1 sent the same letter to Defendant 2,776,763,590 won for the principal’s reserve, and to Defendant 1 in writing on September 1, 2015 (Evidence No. 1553 page), Non-Indicted 1 sent the same letter to Defendant 1 on September 15, 2015 (Evidence No. 734 page). However, since Defendant 3 failed to procure the buyer’s own share, the loan execution was postponed on September 2, 2015.

피고인 2는 2015. 9. 1. 피고인 3에게 “◇◇동 건 최종적으로 답을 주세요. 안 한다고 들었는데 정리를 어찌할 건지 지금 답 주세요”라는 문자를 보내고, 피고인 1은 2015. 9. 1. 17:58 피고인 3에게 “★ 사장님은 손떼는 걸로 알겠습니다”는 문자를 보냈다.

Then, Defendant 1 asked Defendant 2 to “or is going to know about bonds?” Defendant 2, who was aware of his intention, requested Defendant 2 to lend money by telephone to Nonindicted Party 2, and Defendant 2 changed the phone to Defendant 1 so that he could communicate with the seller of the building. Defendant 1 requested Nonindicted Party 2 to pay KRW 40 million to Nonindicted Party 2 as interest, but was refused by Nonindicted Party 2. On that day, Defendant 2 and Defendant 1 asked Nonindicted Party 2 to find Nonindicted Party 2 as the office of Nonindicted Party 2 and to borrow money, and Nonindicted Party 2 transferred Nonindicted Party 3 to Nonindicted Party 3 as the so-called “loan” for the purpose of lending (the amount to be used as a new loan after prior loan cancellation).

14) On September 2, 2015, Defendant 1-led procurement and loan execution

사채업자 공소외 3은 2015. 9. 2. 아침에 자신의 사무실에서 공소외 4, 공소외 2, 피고인 2를 만나 급전 대출에 관하여 확인하고 담보설정을 위하여 공소외 4와 대부계약서를 작성한 후, 피고인 1과 승용차로 함께 이동하면서 피고인 1에게 돈을 빌리는 이유, 변제 방법, 대출 내용 등을 확인하였고, 피고인 1, 피고인 2 그리고 공소외 4, 공소외 2, 사채업자 일명 ▼ 여사와 함께 △△저축은행 본점을 방문하였다.

공소외 3은 △△저축은행 본점에서 대출 실행 여부를 확인한 뒤 2015. 9. 2. 12:08 아래 표 기재와 같이 자신 명의의 ◀◀◀◀증권 계좌(계좌번호 2 생략)에서 △△저축은행 예치금계좌인 ▶▶은행 계좌(계좌번호 3 생략)로 10억 7,700만 원을 송금하였고, 이 돈은 곧바로 공소외 4 명의의 △△저축은행 계좌(계좌번호 1 생략)로 입금되었다(증거기록 274, 775면). 또한, 공소외 3이 13억 원(= ▼ 여사에게서 빌린 10억 원 + 공소외 3의 돈 3억 원)의 자기앞수표를 확인시켜주기 위해 공소외 1에게 주었고, 공소외 1은 매수인이 매도인에게 매매대금 중 자기부담금을 직접 지급하였다는 것을 확인하는 차원에서 그 자기앞수표를 사진 촬영한 뒤(증거기록 178면) 돌려주었다(공판기록 520면). 공소외 3은 그 자리에서 ▼ 여사에게 10억 원의 자기앞수표를 돌려주었다.

본문내 포함된 표 시각 자금원 돈 거래의 출구 금액(원) 명의 은행 계좌번호 명의 은행 계좌번호 12:08 공소외 3 ◀◀◀◀증권 (계좌번호 2 생략) △△저축은행 ▶▶은행 (계좌번호 3 생략) 1,077,000,000 △△저축은행 ▶▶은행 (계좌번호 3 생략) 공소외 4 △△저축은행 (계좌번호 1 생략) 1,077,000,000

Nonindicted 4 received an envelope (including KRW 29 million) in which interest-based money was paid to Defendant 1, and the envelope was paid to Nonindicted 2 along with Defendant 2, and Nonindicted 2 paid KRW 20 million among them to Nonindicted 3 as interest payment.

15) Conduct of loans and disbursement of loans

임대차계약서 27장이 허위로 위조된 사실을 알지 못하는 △△저축은행과 ◁◁저축은행은 2015. 9. 2. 대출금 30억 원과 12억 원을 이자 합계 월 2,200만 원 정도에 대출하여 공소외 4 명의 △△저축은행 계좌(계좌번호 1 생략)로 지급하였고, 이 사건 부동산에 관하여 2015. 9. 2. 공소외 4 명의로 2015. 8. 11. 매매를 원인으로, 아시아신탁 주식회사 앞으로 2015. 8. 28. 신탁을 원인으로 순차로 소유권이전등기가 이루어졌다.

대출금 42억 원은 2015. 9. 2. 12:27 아래 표 기재와 같이 근저당권채무 등을 공제하고 남은 2,322,350,178원이 매매잔금 명목으로 피고인 1 명의의 ♠♠은행 계좌(계좌번호 4 생략)에 입금되었다(증거기록 274, 519, 775면).

4,200,00,000 4,200,000 4,200,000,000,000 4,650,000,000 4,199,650,000,000 5,276,650,000 5,650,000 1,006,650,000 1,00,000 1,000,000 5,276,276,76,750,00 12,60,005,00 267,264,150,150,000 28, 268,000 268,264,15,006,000 7,065,06,05,0636,05,05,067,05,06,05,067, etc.

그리고 피고인 1은 공소외 3에게 10억 7,700만 원을 돌려주기 위하여 피고인 2와 공소외 4, 공소외 3과 함께 △△저축은행 본점에서 ♠♠은행 교대역지점으로 이동하여, 그곳에서 공소외 1에게서 연락 받은 다음 2015. 9. 2. 12:52경 출금전표를 작성하여(증거기록 524면) 피고인 1 명의의 위 ♠♠은행 계좌에서 공소외 3 명의의 ◀◀◀◀증권 계좌로 10억 7,700만 원을 송금하고(공판기록 527면), 2015. 9. 2. 13:03 현금 100만 원을 인출하며, 13:05 피고인 1 명의의 ●●은행 계좌(계좌번호 7 생략)로 1,244,360,178원을 송금하였다.

In addition, Defendant 1, along with Nonindicted 4 on September 2, 2015, visited Nonindicted 4, recommended Nonindicted 4 to open a “BB Bank account (Account Number 5 omitted)” in the name of Nonindicted 4, and then transferred KRW 63 million from the “BB Bank Account (Account Number 6 omitted)” in the name of Defendant 1 on September 2, 2015, and KRW 1,244,361,178 from the “BB Bank Account (Account Number 7 omitted)” in the name of Defendant 1 to the “BB Bank Account” account in the name of Nonindicted 4 (Evidence Number 49,775 of the evidence record), to KRW 28,500,000,000,000 from September 2, 2015, to KRW 15:52,361,178,000,000,000 won and KRW 360,000,000,00 cashier’s checks as follows.

본문내 포함된 표 시각 자금원 돈 거래의 출구 금액(원) 명의 은행 계좌번호 명의 은행 계좌번호 12:27 공소외 4 △△저축은행 계좌번호 1 생략 피고인 1 ♠♠은행 계좌번호 4 생략 2,322,350,178 12:52 피고인 1 ♠♠은행 계좌번호 4 생략 공소외 3 ◀◀◀◀증권 계좌번호 2 생략 1,077,000,000 13:03 피고인 1 ♠♠은행 계좌번호 4 생략 현금 인출 1,000,000 13:05 피고인 1 ♠♠은행 계좌번호 4 생략 피고인 1 ●●은행 계좌번호 7 생략 1,244,360,178 15:46 피고인 1 ●●은행 계좌번호 6 생략 63,000,000 15:52 피고인 1 ●●은행 계좌번호 7 생략 공소외 4 ●●은행 계좌번호 5 생략 1,244,361,178 16:02 공소외 4 ●●은행 계좌번호 5 생략 1,000만 원 권 자기앞수표 6매와 300만 원 권 자기앞수표 1매 63,000,000 16:08 공소외 4 ●●은행 계좌번호 5 생략 2억 8,000만 원 권 자기앞수표 1매 285,000,000 1억 원 권 자기앞수표 9매 900,000,000 1,000만 원 권 자기앞수표 5매 50,000,000 현금 인출 360,178 16:50 2억 8,500만 원 권 자기앞수표 1매 공소외 4 ●●은행 계좌번호 5 생략 285,000,000

As above, three of the three of the three of the KRW 63 million cashier's checks issued as above was deposited in the Bilateral Bank account (Account Number 8 omitted) in September 3, 2015, and the remaining three of the three were deposited in the Bilateral Bank account (Account Number 9 omitted) in September 4, 2015, and one of the three million won cashier's checks deposited in the Bilateral Bank account (Account Number 6 omitted) in September 21, 2015 (Evidence No. 775 of the evidence record) under Defendant 1's name.

그리고 2억 8,500만 원 자기앞수표 1장은 2015. 9. 2. 16:50경 공소외 4 명의의 ●●은행 계좌로 다시 입금된 후 이 중 2억 3,400만 원이 2015. 10. 28. 공소외 4의 아들 공소외 14 명의의 ●●은행 계좌(계좌번호 10 생략)로 이체되어 2015. 11. 2.부터 2016. 4. 4.경까지 매월 이 사건 대출금 이자로 월 약 2,200만 원, 총 130,435,853원이 △△저축은행 명의의 ▶▶은행 예치금 계좌로 송금되어 이자비용으로 납부되었다.

16) Circumstances after loan

around September 3, 2015, Defendant 1 and Defendant 2 entered the following dialogues (Evidence Records 1595 to 1599).

본문내 포함된 표 피고인 1: 아, 근데 ★ 사장님하고는 어떻게 했냐면은 무조건 뭐 사장님이 6억을 얘기하시더라고. 피고인 2: 6억이요? 피고인 1: 예. 근데 이제는 6억을 얘기해서 저 어저께 계산을, 이거를 이런거 따지시면 안돼. 복잡스러우니까 사장님이 6억에서, 6억에서 사장님 그, 그 뭐야, 그거 할 거, 한 거 빼고 나머지 드린 거예요. 그렇게 계산하셔야 돼요. 이거 뭐 6, 60 얼마 이런 거 계산... (중략) 피고인 1: 아이, 그거는 모르겠어요. 저는 무조건 사장님하고 나하고는, 그니까 그렇게 자꾸 하면 안 돼. 50억 외에서는 더 이상 그걸 논하면 안 되고 사장님 6억이잖아요. 6억 그거 외에는 얘기하면, 6억에서 그거 하는 거 계산을 하셔야지. 나머지 이제는 거기에 뭐 한 조금 남는 금액은 ★ 사장님하고 이제 계산하기로 했던 부분이었는데 ★ 사장님이 손을 뗐기 때문에 저는 더 이상 그거는 사장님이 저, 저한테 자꾸 얘기를 하시면 안 되지. 사장님은 6억에서만 계산을 하셔야지.

피고인 1은 2015. 9. 15. 15:45 피고인 3에게 “공소외 15란 사람 전화 와서 어쩌구저쩌구 하는데 분명 ★ 사장님은 그날 내가 그리 애타게 부탁했을 때 본인은 손 뗄 테니 두 분 알아서 하라곤 하구 훌쩍 가 버렸고~~”라는 문자를 보냈다. 그리고 2015. 9. 23. 15:28 피고인 3에게 “부동산 소개란 게 마무리가 안 되면 다른 중개자가 하면 고생했어도 마무리한 중개자가 소개비 받는 거구 그게 건물 거래 상도가 아닙니까”라는 문자도 보냈다.

피고인 1은 2015. 10. 7. 11:36 공소외 7의 휴대전화로 피고인 2에게 “저도 법원 경찰에 알아봤더니 법정에서 다 같이 만나면 난 건물 돌려받고, ★ 사장(피고인 3) 사문서위조로 징역살고, ♥ 사장님(피고인 2)은 6억 오바대출 받은 것만큼 못 갚으시면 돈만큼 징역산다구 하더이다~”라는 문자를 보냈다(증거기록 1554면).

17) Removal of a loan from a false lease agreement

Defendant 2 paid interest on loans by March 2016. However, as the lessee of Nonindicted Property 2 (No. 2 omitted) was unable to receive a refund of KRW 60 million even after the lease term expires on or around February 2016, Defendant 2: (a) discovered that the parents’ parents’ real estate registration were available for loans to the △△ Savings Bank as collateral and registered as trust in Asian trust; and (b) stated on March 29, 2016 that “△△ Savings Bank was not liable for a fake loan with the owner of the building; (c) Nonindicted 1 sent the name of the principal office of the △△△ Savings Bank to Nonindicted 1, 2016 (Evidence 158 pages of evidence record); (d) provided that “When Nonindicted 1 was first heard, Nonindicted 2, 360 million won was excluded from Defendant 2,300 million, 360 million won was excluded from the first application for the lease deposit at the location of Nonindicted 1 and the above lessee’s parents; and (d) agreed Defendant 26163 billion won.”

Nevertheless, Defendant 1 asked Nonindicted 1 to the effect that “it is difficult for Defendant 3 to talk with Defendant 3 because he threatened himself, Defendant 3 was mobilized,” and Nonindicted 1 again called Defendant 1 as “I am only about four-to-face and only Defendant 1 and bank talked with Defendant 1.” However, Defendant 1 respondeded to Defendant 1 to the bank that I would go to the bank, but only sent the word “I am to commit a crime” to Nonindicted 1 in a situation where I come to contact with the bank on the day of the promise without being opened to the bank. (See 464 pages of the trial record).

C. Determination

In addition to the following circumstances in the above facts, the facts charged that the defendants conspired to forge the false lease agreement on the real estate of this case, and submitted to △△ Savings Bank that is not aware of such circumstances to obtain a loan of KRW 4.2 billion and acquired it by fraud are proved by evidence of probative value to the extent that there is no reasonable doubt. Thus, this part of the allegation by Defendant 1 is without merit.

(1) Existence of motive for committing the crime

Defendant 1 intended to sell the instant real estate at the first 6.5 billion won due to the interest, repayment, transfer income tax, etc. of the existing loan, but the purchaser did not appear in that price. Accordingly, Defendant 1 presented the condition that he himself, by obtaining a loan of the instant real estate as collateral, would receive a full payment of the purchase price, requested Defendant 3 to change the purchaser in physical color, and directly sought financial institutions that would provide such loan of the purchase price.

However, as of August 14, 2015, the real estate in this case was appraised at the market price of KRW 5,002,684,130 (= KRW 1,203,684,130 of the real estate + KRW 1,799,00,000 of the secondary real estate + KRW 5,000 of the total amount of KRW 5,000,000 [the total amount of KRW 2,363,00,000 of the repayment obligation of the first priority lease deposit = KRW 1,175,00 of the real estate + KRW 2,188,00 of the total amount of the senior collateral security deposit obligation + KRW 2,67,00,00 of the senior collateral security deposit obligation + KRW 1,96,00,000 of the real estate + KRW 2,71,000,00 of the real estate].

Therefore, it was practically impossible for Defendant 1 to receive a loan of KRW 4.2 billion as security, and this was also the same as the market price of the real estate was 6.0 billion. Moreover, the amount of senior loan obligation under the name of a financial institution was not hidden in the course of the loan. However, the amount of the lease deposit with respect to the real estate in this case was known by Defendant 1 at the beginning, and if Defendant 1 did not disclose it properly, the financial institution could not properly grasp it. Therefore, if the amount of the lease deposit is hidden with the financial institution, if it is hidden, it would be possible to obtain a loan of KRW 4.2 billion from the financial institution without knowledge. To this end, it is essential to forge a false lease contract.

In 2014, Defendant 1 had a history of forging and submitting a false certificate of free residence or lease contract in order to meet the loan conditions in the process of obtaining a loan from ○○ Savings Bank for business financing.

(2) Recognition and participation in forgery or use of a lease contract.

Unlike the false lease deposit in Chapter 27 of the lease contract that Defendant 3 forged with false content and submitted to the △△ Savings Bank, the name and resident registration number, and the monthly deposit account number of the lessees are in accord with that of the actual lessee. If the name and resident registration number of the lessees are the same as those of the actual lessee in the forged lease contract, even if Nonindicted 1 confirmed the identity of the actual resident and lessee through the inspection of the household moving into the real estate in the process of loan examination, it is difficult to find out the falsity of the lease contract.

However, the resident registration number and monthly tax deposit account number of the lessee are not only information that could not be known by Defendant 1, a lessor, but also the current status of the lease that Defendant 1 transferred to Defendant 3 cannot be known.

Defendant 1 stated in the prosecutor’s investigation that “Around August 3, 2015, at the time of the provisional contract, Defendant 1 provided 18 copies of the second real estate lease agreement to Defendant 3, but did not provide the first real estate lease agreement because it did not change (Evidence No. 635, 636).” Defendant 1 stated that “The original copy of the lease agreement was transferred to Nonindicted 7 on September 3, 2015, after the loan was executed, and Nonindicted 7 instructed Nonindicted 7 to provide a copy of the second real estate lease agreement at the time of the provisional contract, but Nonindicted 7 did not confirm whether it was the first real estate” (Defendant 1’s record No. 16). In other words, Defendant 1 did not reasonably explain the lessee’s resident registration number and the monthly deposit account under the second real estate lease agreement, which he managed, to Defendant 3 more reasonably.

Moreover, Defendant 1’s employee Nonindicted 7 sent Defendant 3 the form of the lease contract to Defendant 3 before the date of forgery of the lease contract, and Defendant 3 forged the lease contract using this format. Nonindicted 7 did not have any reason to transfer the lease contract and the form file to Defendant 3 irrespective of Defendant 1.

또한, 피고인 1은 2015. 8. 21.경 당시 이 사건 부동산 중 월세 거주자는 단 4채에 불과한데도, 공소외 1에게서 월세 입금을 확인하여 달라는 요구를 받고, 공소외 1에게 월세 입금 내역으로 자신 명의의 ●●은행, ▲▲은행 계좌 거래내역을 첨부한 문자를 보낼 당시 그 거래 내역에 월세 입금 대상 목적물이 수기로 기재되어 있었을 뿐 아니라, 월세가 모두 제대로 입금되지만 계약과 일치하지는 않는다는 설명까지 곁들였다. 이것은 공소외 1이 위조된 임대차계약서와 같이 월세가 피고인 1에게 제대로 지급되어 왔다고 잘못 판단하도록 하는 데 충분하였다.

In full view of these circumstances, it is reasonable to view that Defendant 1 was aware that the 27th lease contract was forged and submitted in order to obtain the instant loan, and that the loan was carried out based on it.

(3) Procurement of a purchaser's own share.

Non-Indicted 1 calculated the necessary expenses based on the purchase price of KRW 6.5 billion (in consideration of registration expenses, etc.), and accordingly, the part of KRW 2.3 billion exceeding the amount of KRW 4.2 billion out of the purchase price was procured by the buyer, and deposited KRW 1.07 billion out of the purchase price to △△ Savings Bank, and withdrawn the remainder of KRW 1.3 billion to the seller before the loan manager.

Defendant 2 and Nonindicted 4 did not cut down money on their own in order to purchase the instant real estate. On August 28, 2015, which was the scheduled date of the first loan execution, Defendant 3 had the agreement between the Defendants that Defendant 3 would raise funds to the bond company, etc.

However, Defendant 3’s failure to procure the instant loan and went away from the process of loan, and Company B, Defendant 1, who was the seller of the instant real estate, bears interest on his own money to receive the instant loan, and raised the amount of KRW 2,3770,000 from the bondholder to Nonindicted 1. Among them, KRW 1,300,000 to the buyer’s own share of KRW 1,30,000. Of them, the fact that Defendant 1, Defendant 2, and Nonindicted 4, and the bond company confirmed the fact that the said money was delivered to Nonindicted 1 (only the process of mere showing the preparation and delivery of the said money, and there is no sufficient evidence to deem that there was no actual payment of the purchase price). Moreover, KRW 1,07,000,000 deposited into the account of △△ Savings Bank, which was deposited in the buyer’s own share of money, was immediately transferred from Nonindicted 4’s account to Defendant 1, and immediately returned

(4) The amount of sales proceeds

The actual purchase price of the instant real estate is 6.7 billion won, 6.0 billion won, and 5 billion won are not included in the Defendants’ deception against △△ Savings Bank.

Non-indicted 1, who is in charge of the loan business of the △△ Savings Bank, is 5 billion won or more, but the market price is equivalent to 6 billion won, and is 2.6 billion won with prior collateral security obligations, and only the amount is 370 million won or more as the repayment obligation of the deposit for lease. Unlike this, since the actual purchase price is not 5 billion won but 6 billion won or 6.7 billion won, the real estate in this case was not loaned as security.

However, Nonindicted Party 1, as Defendant 1 and Defendant 3, explained that the actual purchase price of this case is KRW 6.7 billion, but Defendant 1’s explanation that the contract was prepared for the settlement of KRW 5 billion due to Defendant 1’s transfer income tax, was actually calculated based on KRW 6.7 billion, and accordingly, calculated the registration cost, etc. based on the amount of KRW 6.7 billion. Accordingly, Nonindicted Party 1 first explained Defendant 3 and Defendant 1 and Defendant 2 of the cost statement, etc.

In relation to this, Defendant 1 submitted an attachment contract in attached Form 3 on the grounds of the assertion that the purchase price is five billion won, and stated that, on the premise that the purchase price is five billion won, Defendant 1 paid to Nonindicted 4 the remainder of KRW 63 million after settling accounts of the purchase price, collateral security payment, and the obligation to refund the lease deposit, and that there was no return.

When Defendant 1’s above statement is true, the settlement amount must be reverted to Nonindicted 4, 63 million won. On the contrary, this money was transferred from the account under Defendant 1 to the account in the name of Nonindicted 4, and was immediately deposited into the check and then deposited into the account in the name of Defendant 1 again. Defendant 1 stated in the original court that Defendant 1 was paid as a set of KRW 900 million or a part of KRW 1 billion for the test cost by the reversal of the statement (No. 7 of Defendant 1’s transcript). However, there is no reasonable reason or explanation as to the reversal of the statement. Accordingly, this part of the statement by Defendant 1 is not reliable.

Defendant 1 also stated that Defendant 1 was aware of the forgery of a sales contract in the course of settlement after the loan was implemented and that the phrase confirming the forgery was added to attached Form 3.

However, from August 13, 2015, Defendant 1’s Nowon-gu’s files of “a confirmation (a certificate of delegation).hwp” as indicated in [Attachment 4] as of August 13, 2015 were finally revised, and on August 26, 2015, the files of “written confirmation (a certificate of delegation).hwp” were finally revised as of August 26, 2015. Furthermore, the third sentence of [Attachment 4] written confirmation and the fourth sentence of [Attachment 3] attached document are the same in fact. In light of this, Defendant 1 was aware that several sales contracts were prepared from the initial date of the instant loan application and prepared for this. Accordingly, Defendant 1’s above statement cannot be accepted.

In addition, around August 13, 2015, Defendant 1’s employee Nonindicted 7 entered the contents that Defendant 3 would prepare the integrated contract amounting to KRW 6.7 billion in his or her or her or her ore in his or her or her ore. In light of the content and form of his or her ore stated statement, the state of falling short, and the traces of decoration, etc., it does not appear that Nonindicted 7 merely entered his or her or her name with Defendant 3 and delivered it to Defendant 1.

⑤ Roles sharing and functional control between the Defendants

Defendant 1, as the owner of the instant real estate, actively colored the financial institutions that are able to borrow and sell residual loans, and Defendant 3 provided the lessee’s resident registration number so that it can forge a false lease contract with the loan application document, and Defendant 1 provided the bond company with interest on raising the buyer’s own charges, which is a loan condition. Defendant 1 sold the instant real estate through this process, and Defendant 1 repaid the senior collateral security debt upon receiving a full payment of the purchase price.

Defendant 3, upon Defendant 1’s request, actively carried out the procedures to receive loans from △△ Savings Bank. Defendant 1’s name and resident registration number, etc., forged a false lease contract with Defendant 1, and actually carried out all the procedures necessary for the instant loan (except for the procurement of the buyer’s own charges) including the submission of a false lease contract to △△ Savings Bank that may know of the fact.

Defendant 2, despite being aware of the forgery and submission of a false lease agreement, applied for a loan in the name of Nonindicted 4 with no interest rate on the loan, and borrowed the real estate in the name of Nonindicted 4 with the buyer’s own share to acquire the ownership of the real estate, and used part of the loan in the name of Nonindicted 4 as interest rate on the loan.

Therefore, it is reasonable to view that the Defendants, with a false forged lease contract, moved their own will by using one another’s act in order to induce △△ Savings Bank to obtain a loan.

D. Sub-determination

Therefore, this part of Defendant 1’s assertion is without merit.

4. Determination on the Defendants’ assertion of unfair sentencing

피고인들 [판시 ○○저축은행에 대한 특정경제범죄 가중처벌 등에 관한 법률위반(사기)죄는 피고인 1에 한한다]은 허위의 대출 관련 서류를 위조하여 금융기관에 제출함으로써 금융기관의 적절한 담보물 가치평가와 대출요건의 준수 여부 등 대출 실행 여부를 결정하는 데 필요한 요소에 관한 판단을 그르치게 하여 거액을 대출받음으로써 이를 편취하였다. 그 범행 수법이 매우 대범하다. 피해자 △△저축은행, ◁◁저축은행에 대한 특정경제범죄 가중처벌 등에 관한 법률위반(사기)죄의 경우 은행들이 피고인 1에게서 대출금의 상당 부분을 실제로 회수하였고, 이 사건 부동산에 관한 수익권을 보유하며 공소외 4 소유 부동산 등에 대한 가압류를 함으로써 남은 대출금을 상환 받을 여지가 있지만, 아직 그 피해가 전부 회복되었다고는 보이지 않는다.

피고인 1 은 편취금액이 합계 72억 원이다. 그 범행 과정에서 이 사건 부동산의 임대인이자 매도인으로서 대출 은행을 물색하며 허위 임대차계약서의 위조에 필요한 정보를 제공하고 대출 실행을 위한 매수인 자기부담금을 조달하는 등 실질적으로 주도적인 역할을 하였다. 다만, 피해자 ○○저축은행에 대한 편취금은 모두 변제되어 피해가 회복되었다. 그리고 이종 범죄로 벌금형을 한 차례 받은 외에는 형벌을 받은 전력이 없다. 피고인 1이 항소심에 이르러 △△저축은행, ◁◁저축은행에 대출금 상당의 피해를 전부 회복시키지는 못하였지만, 상당 금액을 실제로 지급하여 피해의 상당 부분을 회복시켰고, 이에 △△저축은행, ◁◁저축은행은 피고인 1에 대한 처벌불원의 의사표시를 하였다.

피고인 2 는 편취금액이 합계 42억 원이다. 피해자 △△저축은행, ◁◁저축은행에 대한 편취금 중 2억 8,500만 원을 실제로 취득하고, 이 사건 부동산의 소유권을 공소외 4 명의로 취득하였다. 동종 전과로 징역형의 실형을 선고받은 전력이 있다. 다만, 자신의 범행을 모두 인정하고 깊이 반성하고 있다. 피고인 2의 사실혼 처인 공소외 4 소유 부동산 등을 △△저축은행과 ◁◁저축은행이 가압류함으로써 이 사건 부동산만으로는 부족할 수 있는 책임재산이 어느 정도 추가로 확보됨에 따라 그 피해가 대부분 회복될 여지가 있다고 보인다.

Defendant 3 plays a key role in committing a crime, such as linking a person in charge of loan affairs of the △△ Savings Bank with Nonindicted 1, implementing the procedures for filing a loan application, and forging a false lease agreement directly. On September 2, 2015, Defendant 3 went away in the course of lending prior to the implementation of the loan, but did not make any effort to prevent the implementation of the loan. There was a history of having been sentenced to three times imprisonment with labor for the same kind of criminal record, and the crime is also related to the loan of the financial institution. However, the crime is a crime involving the loan of the financial institution: Provided, That it is recognized in fact that all of the criminal acts are committed, and it is against his own mistake. There is no profit directly acquired in the money acquired.

In addition, the lower court’s punishment against the Defendants is unreasonable in light of the following factors: (a) the Defendants’ age, character and conduct, motive for the commission of crime, and circumstances after the commission of crime; and (b) the various sentencing conditions indicated in the instant records and pleadings.

5. Conclusion

Since the defendants' appeal is well-grounded, the judgment of the court below shall be reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the judgment shall be rendered again after pleading as follows.

Since the judgment on the facts constituting an offense acknowledged by this court, the summary of the evidence, and the admissibility of evidence is the same as that of the original judgment, it is cited in accordance with Article 369 of the Criminal Procedure Act, and the summary of the evidence is added to “I.S. witness of the appellate court, Nonindicted 5, 4, 6, 3 (Defendant 1), and Defendant 2 (Defendant 1)’s legal statement.”

1. Article applicable to criminal facts;

Defendant 1: Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 13719, Jan. 6, 2016); Article 347(1) of the Criminal Act (amended by Act No. 13719, Mar. 1, 201); Article 231 of the Criminal Act (amended by Act No. 1371, Jan. 6, 201); Article 231 of the Criminal Act (the use of each private document related to ○○ Savings Bank); Articles 234 and 23

피고인들 각각에 대하여: 구 특정경제범죄 가중처벌 등에 관한 법률(2016. 1. 6. 법률 제13719호로 개정되기 전의 것) 제3조 제1항 제2호 , 형법 제347조 제1항 , 제30조 (피해자 △△저축은행, ◁◁저축은행에 대한 각 사기의 점), 형법 제231조 , 제30조 (△△저축은행 관련 각 사문서위조의 점), 형법 제234조 , 제231조 , 제30조 (△△저축은행 관련 각 위조사문서행사의 점)

1. Commercial competition;

Defendant 1: Articles 40 and 50 of the Criminal Act (the punishment imposed on Nonindicted 16 in the name of Nonindicted 16 in the holding that the most severe crime is committed between the crimes of uttering of each of the above investigation documents related to the ○○ Savings Bank, and the punishment imposed on the crimes of uttering of each of the above investigation documents related to the △△ Savings Bank as indicated in the holding, shall be imposed on Nonindicted 17 in the name of the holding that the most severe crime is committed)

1. Selection of punishment;

Election of imprisonment with prison labor for all the crimes of forging each private document and the uttering of each private document;

1. Aggravation for concurrent crimes;

Defendants: 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 the Victim △△ Savings Bank with the largest punishment and punishment for concurrent crimes committed]

1. Discretionary mitigation against Defendant 2 and Defendant 3

Articles 53 and 55(1)3 of the Criminal Act

1. The scope of punishment;

Defendant 1: Imprisonment with prison labor for up to 45 years

Defendant 2 and Defendant 3: Imprisonment with prison labor for one year and six months to 45 years.

2. Scope of recommendations;

A. Defendant 1

[Determination of Types] 4 types of general frauds that can be applied to a fraud group (a decision of types shall be made by adding the amount of profit according to the methods of dealing with the same concurrent crimes, and the amount of profit in accordance with the methods of dealing with the same concurrent crimes)

[In the event that the risk of the occurrence of damage is not substantially realized, if the risk of the occurrence of damage is not realized, the amount of punishment shall not be imposed (special mitigation factors), and if the method of the occurrence of crime is very poor (special aggravation factors)

[Scope of Recommendation] Imprisonment of 3 years to 9 years (Mitigation)

B. Defendants 2 and 3

[Determination of Type] 3 as a general fraud type (not less than 500 million won, less than 5 billion won, and the amount of profit calculated by adding the amount of profit according to the method of dealing with the same concurrent crimes).

[Special Sentencing] In the event that the risk of damage has not been substantially realized (requirements of mitigation), or in the event that the method of receiving crimes is very poor (Aggravated factor)

[Scope of Recommendation] One year to four years (Basic Area) imprisonment

3. Determination of sentence: Three years for defendants 13, two years and six months for defendants 2, and thirty-two years for defendants 3.

As seen earlier, the sentence shall be determined as above in consideration of all the circumstances.

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

[Attachment]

Judges Park Jae-young (Presiding Judge)

Note 1) 1 Doz. 1 Doz. (name 1 omitted) documents Doz. (name 1 omitted) Doz.) 1 Doz. Doz. (a certificate of delegation).hwp

Note 2) The attached document 4 is similar to the previous part of the attached document 3 attached hereto (the part other than paragraphs 1 to 3 of the attached document, the settlement of the purchase price of KRW 63 million). The file name of the attached document and the file name of the attached document are the same. The above written document is prepared first, and it appears that the details of settlement of purchase price were added.

Note 3) 1 Doz. Doz. ( Address 1 omitted) Doz. Doz. Doz. Doz. Doz. Doz. Doz. Doz. Doz. Doz. Doz.