(영문) 서울중앙지방법원 2016.4.21.선고 2015노3975 판결

Defendant shall be punished by imprisonment with prison labor of one year and six months and by a fine of fifty thousand won. If the Defendant fails to pay the above fine, the above Defendant shall be confined in a workhouse for the period calculated by converting 100,000 won into one day.

Of the facts charged against the Defendant, the Defendant is not guilty of any of the fraud charges listed in the Nos. 3, 19, 28, 42, 94, 101, 115, 128, 146, 240, 264, and 265 listed in the separate sheet of crimes (2) in the separate sheet of crimes (1).

The summary of the judgment of the acquittal shall be disclosed.

2. Defendant B

A defendant shall be punished by imprisonment for nine years.

Of the facts charged against the accused, entry in the table of crimes (1) Nos. 3, 19, 28, 42, 94, 101, 115, 128, 146, 240, 264, and 265 in the attached table of crimes (1), 2, 3, 5, 11, 13, and 16 in the attached table of crimes (5) in the attached table of crimes (1), 2, 5, 27, 30, 40, 40, 43, 61, 72, 73, and 77 in the attached table of crimes (7), 6,20, 26, 42, 42, 41, 215, 231, 16, 305, 200 among the attached table of crimes (5) in the attached table of crimes.

The summary of the judgment of the acquittal shall be disclosed.

Reasons

1. Summary of grounds for appeal;

A. The Prosecutor (Defendant B)

(1) misunderstanding of facts or misapprehension of legal principles

Defendant B is a person who has led all of the crimes related to NCO (hereinafter referred to as “N”), and thus, it is sufficiently recognized that there was collusion with U,V, etc., as to the crime of violating the Act on the Regulation of Fraud and Unauthorized Receipt of Crimes (hereinafter referred to as “Act on the Receipt of Goods without Permission”) listed in the separate sheet (3) and (4) (hereinafter referred to as “attached Form”) in the separate sheet of crimes. However, the lower court erred by misapprehending the facts, thereby acquitted Defendant B of this part of the facts charged.

(2) Unreasonable sentencing

The punishment sentenced by the court below against Defendant B (12 years of imprisonment) is too unhued and unfair.

B. Defendant B1

(1) misunderstanding of facts or misunderstanding of legal principles

The charge of fraud against the defendant is illegal because it is not specified to the extent that the exercise of the defendant's right to defense is practically impossible because the name and role of the fund raiser, who is a joint principal offender, is not specified in the name and role of the fund raiser.

The Defendant was entrusted only with the sale of NCP2 (Cash Pint) (hereinafter referred to as “AL, etc.”) which is a virtual currency in which he/she owns, and only delivered the CP to an investor who purchased the CP through solicitation of BU, etc. according to the purport of such delegation and kept the sales proceeds therefrom. Therefore, the Defendant did not recognize N’s fraud and cannot be said to have conspired to commit a crime with N head office AL, etc. or BU, etc. which intended to attract an actual investor. Thus, it cannot be said that he/she intended to jointly process as a criminal or joint principal offender.

C. Other arguments

(1) Each amount transferred from each exchange bank T (hereinafter referred to as "R") account in the name of R Co., Ltd. (hereinafter referred to as "R") listed in the list of crimes (hereinafter referred to as "the list of crimes (hereinafter referred to as "the list of crimes") through (4) is merely a part of the money transferred by the defendant while being transferred from investors to each of the accounts listed in the list of crimes (5), (6), and (7) and is merely a part of the money transferred by the defendant to the investors, and it is not a separate receipt of a new investment.

② From among the persons indicated as investors in the table of crimes (1), (2), (5), (6) and (7), ① those who have already been indicted as co-principals with the defendant, ① those who have already been indicted as co-principals with the defendant, ② those who have received more allowances than the CO which was charged as co-principals with the defendant, or those who have received more allowances than the CO which was charged as co-principals with the defendant, shall be deemed as having the relation of co-principals with the defendant. However, as the co-principals of each crime and cannot be the other party to the fraud or the act of receiving the same kind of money, the part in the table of crimes in which the above persons are written as investors shall be excluded.

Of the crime sight table (6), KRW 50 million in 40,000 (BT) should be excluded because it is irrelevant to N's investment.

(2) Unreasonable sentencing

The punishment sentenced by the court below against the defendant (12 years of imprisonment) is too unreasonable. The defendant A is a defendant A.

(1) misunderstanding of facts or misunderstanding of legal principles (as to aiding and abetting fraud and aiding and abetting Violation of the Act on the Receipt of Similar Funds)

A) In order to carry out the agreed duties with A, the Defendant opened each account in the name of the list of crimes (1) through (4) and opened an overseas remittance agency for AA, and did not have direct connection with N. Accordingly, the Defendant did not have any awareness that the amount transferred to each R account was acquired through an act of fund-raising fraud, such as the above Defendant B, U,V, etc. Accordingly, the Defendant did not have any intention as an aiding and abetting offender. The Defendant in the Republic of Korea was merely an act of remitting each amount indicated in the list of crimes (2) to the RT account and keeping it in custody in the RT account as a result of the completion of the fraud committed by the Defendant B, who is the principal offender, and cannot be held liable for the crime as an aiding and abetting offender.

(2) Unreasonable sentencing

The punishment sentenced by the court below against the defendant (two years of imprisonment and fine of one hundred million won) is too unreasonable.

2. Determination

A. Ex officio determination

Before determining the grounds for appeal by the prosecutor and the Defendants, this paper will examine ex officio.

Of the facts charged against Defendant B and the facts charged against Defendant A, the prosecutor applied for the amendment of a bill of amendment to the indictment with respect to aiding and abetting, and aiding and abetting, and aiding and abetting, in violation of the Foreign Exchange Transactions Act, as set out in the following facts: (a) and (b) the Defendant B applied for the amendment of a bill of amendment to the indictment; (c) this court permitted the amendment of the indictment; (d) the subject of the judgment was changed [excluding each part of the above facts charged, and the remainder of the facts charged are not changed.” In reference, the indictment against Defendant B is a list of crimes (1) through (7). The indictment against Defendant A is a list of crimes (1) through (4) and (85). In addition, the part of the remaining facts charged against Defendant A, which is the offense of the Foreign Exchange Transactions Act, shall be sentenced to a single punishment in relation to a concurrent crime under the former part of Article 37 of the Criminal Act.

Therefore, the lower judgment against the Defendants was no longer maintained in its entirety.

However, even if there are such reasons for ex officio reversal, the prosecutor's and the Defendants' assertion of misunderstanding of facts or misapprehension of legal principles still are subject to the judgment of this court.

B. Judgment on the prosecutor's assertion of mistake of facts [as to each of the frauds described in B (3) and (4) and the violation of the law on the act of receiving the same kind of money]

(1) Summary of this part of the facts charged

Defendant B, in collusion with one-time AL, AK, and one-time funding sources, by deceiving investors in the following manner as stated in the following criminal facts, and then, Defendant B received total amount of KRW 5,835,750,729 [the total amount of KRW 5,398,740,500, and KRW 437,019,229] from December 2014 to April 2015, as indicated in the list of crimes (3), from 82 investors to April 2015:

(2) The judgment of the court below

The court below testified to the effect that the following circumstances (i.e., ① the Defendant’s statement of crime (3) and (4) among the R respective accounts, the RW and X accounts are not the one used by the Defendant, and there are no data used by the Defendant or data transferred from the R T and S accounts to AA with respect to the above W and X accounts, whereas there are no such data regarding the above W and X accounts, ② the RW account is confirmed to be U, RX account was used by U, and U, U, and V were not well aware of the Defendant. The Defendant, U, U, and V testified are different. Furthermore, since U is strictly separated from and operated by the investigative agency to the court of the court of the court of the court below, it is difficult to recognize that there is no evidence from the Defendant’s participation in the crime, not the Defendant’s participation in the crime.

(3) Judgment of the court below

According to the evidence duly adopted and examined by the court below and the trial court, there were 4-5 organizations different from those of N, and the defendant's AM-related organization was competitively related with other organizations, such as U.S. using the RW account in the crime sight list (3) and V organizations using the RX account in the crime sight list (4). Therefore, it is recognized that the defendant was not in a position to be involved in each crime listed in the list of crimes (3) and (4).

Therefore, the court below is just to have judged the defendant not guilty on this part of the facts charged on the same purport on the grounds that it is difficult to recognize that the defendant had a functional control over his intent of joint processing and functional control, and there is no illegality in misunderstanding of facts (it is recognized that the defendant requested the above defendant A to open a RW and X account according to the direction of AL, etc., but in light of the above circumstances and U or V contacted with AL and U or V regardless of the defendant, and they committed a crime, it is difficult to deem that the above facts alone have a functional control over the defendant's intent of joint processing or functional control over the crime in this part). Therefore, among the facts charged against the defendant, each of the facts charged against the defendant, and the facts of violation of the Act on the Fraudulent and Unauthorized Receipt of Fraud Act, as alleged by the prosecutor, constitutes a case where there is no proof of a crime.

(1) Judgment on the unspecified assertion of facts charged

The purpose of the law that allows the court to specify the facts charged by specifying the time, place, and method of a crime in the opening of the facts charged is to limit the scope of the trial against the court and to facilitate the exercise of the right of defense by specifying the scope of the defense against the defendant. As such, the specification of the facts charged is sufficient if a certain part of the facts underlying the prosecution is specified by pointing out the time, time, place, method, purpose, goods, etc. to the extent that it can distinguish the facts underlying the prosecution from those of other facts charged, and even if some of them are clearly unclear, the validity of the prosecution as long as the facts charged can be specified by other matters indicated in the indictment is not affected (see, e.g., Supreme Court Decision 2008Do164, Jul. 10, 2008).

B) In the case of the facts charged as to the fraud against the defendant, each victim, date and time of remittance, amount invested (amount of damage) by victim, etc. who remitted investment money is clearly specified to the extent that it is unlikely to confuse with other crimes, and there is no influence on the validity of the indictment because the means and method of deception by the defendant and the co-principal are specified to the extent that it does not interfere with the defendant's exercise of his right to defense. Meanwhile, although the defendant does not specify the specific name and role of the co-principal, it is difficult to distinguish between the victim and the perpetrator, and it is difficult to distinguish the victim from the perpetrator, and considering the characteristics of the crime of fraud of fund-raising, it cannot be viewed that the facts charged is not specified solely for the reasons as alleged. Accordingly, this part of the defendant's assertion cannot be accepted.

(2) Judgment on the assertion that denies the criminal intent of defraudation and the conspiracy relationship

A) In order to recognize the criminal intent to commit fraud, which is a subjective constituent element of fraud, or a conspiracy in the accomplice relationship, strict proof is required. However, if the criminal defendant denies it, it is inevitable to prove it by means of an indirect fact or circumstantial fact that has considerable relevance to this given the nature of the object. In such a case, what constitutes an indirect fact that has considerable relevance should be determined by means of a reasonable method of determining the link of facts through a thorough observation and analysis based on normal empirical rule (see, e.g., Supreme Court Decision 2007Do6706, Sept. 11, 2008).

In light of the above legal principles, according to the following indirect facts or circumstantial facts, which can be seen through the evidence legitimately adopted and examined by the court below in addition to the circumstances properly explained by the court below, it is sufficiently recognized that the defendant had the intent to obtain fraud against each of the crimes in violation of the Act on the Fraudulent and Unauthorized Receipt of Goods, and the Act on the Punishment of Fraud (3), (4) and the part not guilty below are excluded.) and that the defendant conspired with the AL et al. of the same organization and BU of the same organization as the N head office. In addition, the defendant is strong that the defendant only received a request from AL et al. for only the entrusted board of the CP possessed by himself and committed acts in accordance with the purpose of the delegation, but it is not acceptable for the following reasons.

① According to the Defendant’s assertion, the investor may at any time claim the CP that is paid by dividend or recommendation allowances for investment funds to the N head office and be commercialized through the Irac Account. If so, AL et al., even though it would be sufficient to encash the CP individually owned by it through the N head office and I-C Account in a simple way as above, it is not easy to legally transfer overseas due to the restrictions on the laws and regulations such as the Foreign Exchange Transactions Act, in Korea where it is not easy to make legal transfers abroad due to such risks, and there is no ground to en masse through a consignment sale (the Defendant asserts that N is an institution specialized in FXM transactions, and it cannot be said that AL et al., an executive officer of the N is unaware of the restrictions on foreign remittance). Moreover, L et al. continuously delivered the CP to the Defendant who received illegal transfers by using money exchange or using false documents through A et al.

② In light of the Defendant’s assertion that the CP amounting to KRW 14 billion to KRW 15 billion was consigned to the N account under the name of the Defendant, the Defendant stated that he did not make a separate written agreement on the basis of mutual-friendly relationship, and that he believed that he was aware of the fact later without setting specific sales commission (Evidence Records 1979), the Defendant’s assertion that the CP has the same value as the CP, and the quantity of the CP received CP, the above statement does not need to be persuasive.

③ As to which method the AL et al. has been possessed, only a mere statement (1141, 1151 pages of the trial record) which means a long-standing N activities that only submitted through a defense counsel of the defendant, and objective data that can confirm the circumstances and the actual possession of the CP are not submitted.

④ It is difficult to understand that the Defendant, who received only a consignment on the CP owned by him as delegated by AL et al. as an individual qualification, instead of the CP exchange work for investors whose headquarters is to be performed by NA head office.

⑤ Around September 2014, N head office prepared a list of 351 Korean investors in relation to the invitation of investors to hold events held in Bolitha, and the name of the defendant is written in the highest place, and the defendant is written as the defendant's highest amount ($ 460,000), and 350 other investors' 'Person Leader' (Evidence record, Nos. 2665, 2677-2683), which shows that the N head office was aware of the defendant as the highest business entity participating in the actual invitation of investors, and therefore, it is not consistent with the above consignment claim.

6) On September 2014, the Defendant: (a) requested the Defendant A to set up a ES account; (b) opened the AL account; and (c) induced investors’ trust by creating an appearance that the N head office seems to receive the investment money directly from investors; (d) it is possible for investors to sufficiently explain the investor’s trust in the TR account because the Z account was already posted on the NN website to the account for deposit of the investment money; and (b) furthermore, the Defendant A testified that the NA account was able to sufficiently explain the investor’s trust in the TR account; and (c) at the lower court, the Defendant A testified that the NA account was acting as one credit in order to verify that the NA account was receiving the investment money from investors as the NA head office (the 303 pages of the trial record)). This behavior also does

0. After the initial prosecutor’s examination of suspect, the Defendant received the CP from N headquarters at USD 1,00,00 and managed the CP upon receipt of the CP at KRW 200,000,000, without the aforementioned request for deposit sale. However, even if the Plaintiff requested payment of allowances, the Plaintiff stated that it is related to the N headquarters when the Plaintiff received the N headquarters’s permission (Evidence No. 1728, 1729) (Evidence No. 1729). 8 According to the Defendant’s assertion, even if the new investor did not pay the CP directly to N headquarters and registered the CP as the consignment sale method of the Defendant’s assertion, the CP’s recommendation allowances and other allowances should be paid to the existing investor who recommended the new investor, and if the CP is not actually able to receive the actual amount of money as the N headquarters’s investment, the CP’s payment of allowances should be included in the CP’s recommendation or re-investment of the CP.

C) Comprehensively taking account of the following circumstances, the Defendant was aware of N’s fraud and was sufficiently recognized as being conspired with BU, etc. in charge of the actual investor recruitment business within the same organization, such as AL, etc. that supplied the CP.

① The circumstances at the front line include: (a) the fact that the AL et al. was unable to find out a large quantity of CPs in Korea; (b) the Defendant’s statement on the contractual relationship between the Defendant and the AL; (c) the Defendant’s enormous amount of CPs issued; and (d) there were no objective data on the circumstances in which the AL et al. possessed a large amount of CPs; and (c) the Defendant was aware of the N’s fraud and was able to have conspired with the AL et al.

② The BU and Q had already continued multi-stage projects even before N, and in the instant case, they mobilized multi-stage officers who had been currently managed by them to perform the investor recruitment work, and the Defendant was linked to AL and AK.

③ Although it is difficult to find evidence to find out that the Defendant was carrying out the business of directly soliciting investors, the Defendant sent N promotional video to be used at the time of soliciting investors to BU, Q, etc. (Evidence Records 2639, 2656), and Q, etc. (Evidence Records 2639, 2656), and instructed the Defendant to send investment money to such account.

An act was committed.

④ The Defendant made a statement at the prosecutor’s office that he is the highest business operator (Evidence No. 2656 pages), and AM is an organization that takes charge of the preparation and progress of the N-related events held in the Republic of Korea with N Investor meetings and the participation in the N-related events held in a foreign country. The Defendant is the chairman of the above AM. And as seen earlier, the list of investors prepared by N-main company is also written in the highest line of the name of the Defendant, and the “Tot Ss” amount is also written in the highest place of the name of the Defendant, and the Defendant is written in the “Peron Leperer” of other investors.

(5) After receiving an investment money from an investor to an investor’s own account or R’s account, the Defendant directly provided the corresponding CP to the investor via electronic means. In addition, when the investor requests the exchange of the CP corresponding to the dividend or allowances, the investor made payment in cash.

④ On April 14, 2015, the day before the Defendant was arrested as the instant case, the Defendant transferred KRW 1.2 billion out of the investment money deposited in the future deposit account under the Defendant’s name to his wife and children’s name (Evidence No. 1980 of the record, as seen earlier, the Defendant A notified the fact of arrest to N officers including the Defendant at the same time and was detained on April 14, 2015. The Defendant appears to have immediately remitted the investment money kept by the Defendant to his family members). Moreover, among NF money kept by the Defendant, 1.5 billion won out of the NF amount was used for the company of CR operated by the Defendant (the Defendant asserted that K was partially invested in the consignment amount to be remitted to AK, but the consignment consignment relation cannot be acknowledged as seen earlier).

7) AM held a variety of events related to N in Korea over several occasions, including N’s CEO, N’s CEO, directors, etc. However, various expenses incurred in the N-related events held by AM were appropriated from the N investment funds held by the Defendant. The N head office invited good investors to exercise its head office held in a foreign country. At this time, the N head office was appropriated as the N-investment funds held by the Defendant (Evidence No. 2291, No. 2291, this also does not coincide with the consignment relationship claimed by the Defendant).

④ U, who is the highest business operator of another ND, sought advice from the Defendant on the measures to cope with the escape after having been issued a warrant of arrest against himself (Evidence No. 2560). In this regard, the Defendant made a false statement that he was unaware of the circumstances U at the time of his escape (Evidence No. 2279 of the Evidence No. 2279).

9) It is reasonable to deem that an investor affiliated with the Defendant was unable to exchange and trade the CP with another investor, such as U and V, and that the Defendant, who directly carried out the business of transferring the CP and receiving investment funds, was also aware of the fact that there was any unreasonable restriction among the same N Investors, and that the circumstance that the Defendant was aware of the N’s fraud is an indirect circumstance that the Defendant was aware of the N’s fraud.

(10) In addition, in light of the organization status of the highest-level business operator recognized by the defendant as seen above, the apparent fraud of N, as properly stated by the court below, is a sufficient basis for inducing the criminal intent and the conspiracy of the defendant.

(3) Determination on other allegations

(6) According to the evidence duly admitted and duly examined by the court below's judgment on September 3, 2014 (2) part of the crime table (2) (2) and the court below's judgment (2,15,000,000) and the court below's judgment, the defendant sent NF amount received from investors to the trust account of the law firm "S" and the law firm CS concluded an agreement to deliver such amount to N through foreign exchange transaction companies designated by the defendant. 2 The defendant transferred 5 billion won to the trust account under the name of the law firm's name (2) and 50 billion won among NF amount kept in CTS (2). 3) The defendant transferred the money to the trust account under the name of the law firm's name (20 billion won) excluding the above NF amount transferred to the defendant 20 billion won under the name of the defendant's own name (3) 10 billion won under the name of the defendant 20 billion won under the name of the defendant 40 billion won.

In light of the above facts and circumstances, the evidence submitted by the prosecutor alone is insufficient to recognize that the defendant committed each crime as stated in the list of crimes (5), (6), and (7) separate from each crime as stated in the list of crimes (5), (2), and there is no other evidence to acknowledge it differently.

Therefore, among the facts charged against the defendant, each fraud listed in the list of crimes (2) and the violation of the Act on the Act on the Receipt of Duals without proof of the crime is applicable only to the case where there is no proof of the crime) and the defendant was prosecuted as the victim of the fraud or the other party to the act of receiving the same kind of money (excluding the part of the

The burden of proof for the facts constituting an offense charged in a criminal trial shall be borne by the prosecutor, and the conviction shall be based on evidence with probative value sufficient to conclude that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is doubt of guilt against the defendant, it shall be determined as the benefit of the defendant (see, e.g., Supreme Court Decision 2002Do6110, Feb. 11, 2003). It shall not be deemed that there was deception against other co-principals of the fraud, or that there was deception against other co-principals. In addition, in light of the language and legislative intent of Article 2 of the Act, it is reasonable to view that it does not include those who correspond to the above co-principals of an unspecified number of investors who are the other party to the financing, who are recruited to commit a crime of violating the Act on the act of Receiving Similar Names, which is recorded in ABD 10 or BD 10, which is recorded in the evidence duly adopted by the lower court and the lower court, CBD 19 or CD 10.

(Voting 1)

A person shall be appointed.

In light of these facts, the above 15 persons, such as Q2, Y, COY, CY, CY, CY, CZ, DA, DB, AB, DB, DC, DD, DD, DE, and DF, are highly likely to be joint principal offenders who committed a crime in violation of the Act on Fraudulent and Unauthorized Receiving Act. The evidence submitted by the prosecutor alone is insufficient to recognize the above persons as the victim of fraud or the other party to the act of fund-raising (i.e., the above 15 persons among the above funds clearly include a considerable portion of the funds received from other investors who are actual victims, but it is difficult to find the defendant not guilty of the whole amount in favor of the defendant unless there is any evidence to specify the amount invested by the actual victim and the victim).

Therefore, among the facts charged against the defendant, each fraud listed in the table 1 and the violation of the Act on the Receipt of Similar Funds constitutes a case where there is no proof of crime.

Meanwhile, the Defendant asserts that the Defendant is in a co-principal relationship with the Defendant as well as the Defendant’s co-principal by receiving more allowances than CO12, DH13, DH14, DJ15, DJ16). However, considering the fact that there is no evidence that there is no evidence to see the current status of the victims in multi-level fraud and the current status within the multi-level fraud organization, it is inappropriate to distinguish the Defendant as the perpetrator or the victim depending on the amount of the paid allowances. Thus, it is reasonable to view the above person as the other party to the fraud or the act of receiving the same kind of money only with the evidence submitted by the Prosecutor. Accordingly, this part of the allegation is not acceptable.

(C) According to the evidence duly adopted and examined by the court below and the court of first instance [the 40,000,000 won Nos. 40,000 in the list of crimes (6)], BT received approximately KRW 400,000 as the name of allowing the defendant to transfer money to a foreign country on April and May, 2014, BT received KRW 40,000,000 from the defendant as above, immediately after being notified that the defendant was stolen, it is necessary to recover the theft, and additionally borrowed KRW 50,00,000 from the defendant, and ③ BT borrowed KRW 50,000,000 from the defendant on August 25, 2014.

According to the above facts, 50 million won in 40 million won in the list of crimes (6) is unrelated to the defendant's crime of violating the Act on Fraudulent and Unauthorized Receiving Act. The evidence submitted by the prosecutor alone is insufficient to recognize that the defendant committed the crime of violating the Act on Fraudulent and Unauthorized Receiving Act.

Therefore, among the facts charged against the defendant, the fraud of the No. 40 in the list of crimes (6) and the violation of the Act on the Act on the Receipt of Unauthorized Money constitutes a case where there is no proof of

D. Judgment on Defendant A’s assertion of mistake or misapprehension of legal principles

(1) On the assertion that there was no intention as a principal offender, the act of aiding and abetting and abetting and aiding and abetting and aiding and abetting and aiding and abetting and aiding and abetting and aiding and abetting the principal offender to commit a crime is all direct and indirect acts that facilitate the principal offender’s implementation, and the principal offender’s act is an act that constitutes elements of a crime. However, such intent does not require recognition of the specific contents of a crime realized by the principal offender and it is sufficient to do so (see, e.g., Supreme Court Decision 2010Do9500, Dec. 8, 2011).

(B) The lower court: (a) on September 2014, stated the following circumstances; (b) on the N homepage, posted the RZ account as an account for deposit of investment; (b) the Defendant’s receipt of such large amount of money into the R account exceeds KRW 20 billion; (c) it is difficult for the Defendant, who wired such large amount of money, to be unaware of the nature of the said money; (d) rather, the Defendant did not know of the fact that “N was about N from B, who sought R at the investigative agency; (e) at the time, the Defendant did not receive an investment bond and gave a statement to the effect that it would hinder principal payment (Evidence 1561 of the evidence record); and (iii) the Defendant did not know that it was a direct remittance of money deposited into the R account to A; and (e) the Defendant did not receive an order from the Defendant and the Defendant did not receive any more than KRW 200,000 from the NA and did not receive any direction from the NA, nor did the Defendant did it receive any direction from the NA to transfer money.

C) The following circumstances revealed through evidence duly adopted and examined by the court below and the court below. ① The defendant opened a R name account for BR, which is an illegal multi-level organization, separate from N, and conducted overseas remittance or purchase business on behalf of non-coin, and in addition, there was only an alternative for the remittance of allowances to investors of the aforementioned organization (Evidence Nos. 1564, 2269). ② The defendant informed the above defendant B and other N officers of the situation at the same time around the time of emergency arrest (Evidence No. 2698 of the evidence record), ③ The defendant created a false advisory contract with AA to transfer money deposited in the R account (Evidence No. 1501, 1559 of the evidence No. 150 of the record No. 269 of the record). The defendant did not know that there was a large amount of money deposited in the NA's account under the name of 6 U.N.'s prosecutor's office, but did not change its identity into the NA's account.

Therefore, the defendant had the intention to commit a aiding and abetting crime, and therefore, the defendant's above assertion cannot be accepted.

(2) Ex officio determination

We examine ex officio the defendant's assertion of ex post facto assistance as to the crime sight table (2) prior to the judgment.

As seen earlier, among the facts charged against Defendant B, each of the frauds and the violation of the Act on the Act on the Frauding and Receiving Crimes entered in the List of Offenses (1) and the List of Offenses (2) constitutes a case where there is no proof of a crime. As such, aiding and abetting under the Criminal Act refers to direct and indirect acts that facilitate the commission of a principal offender while knowing the fact that the principal offender is committing a crime, and therefore, it shall be deemed that there is no proof of a crime against the principal offender unless there is proof of a crime.

Therefore, among the facts charged against the defendant, ① The facts charged against the defendant are as follows: ① The facts charged against the defendant are as follows: ① The facts charged against the defendant’s fraud in the table of crime (1) and as follows: ① The facts charged against the defendant’s fraud in the table of crime (1) and the facts charged against the non-violation of the Act on the Prevention of Crimes (2) are as follows: there is no proof of the crime.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and the judgment below is reversed and it is so decided as follows.

Criminal facts

1. Defendant BN received funds from unspecified persons through fund-raising sources, etc. consisting of braille organizations, through which NF is a financial institution specializing in FXM trading, which is a kind of futures trading of foreign exchange derivatives, and from which N is admitted as a member, a fixed amount of dividends and principal of 3 to 8% per month may be guaranteed. Defendant BN received funds through the personal account opened on the above Internet website to verify the details of investment funds, recommendation allowances, and dividends to be paid in the future. However, N does not know the location, operation status, whether the funds are remitted overseas, the actual user, and the source of dividends delivered to investors, and it does not have any qualifications for FDM (FD) necessary for FXM trading, and is not established in Korea as a branch.

In light of this point, the Defendant and one-person AL, AK, and one-time fund raisers of the name in order to acquire money by means of explaining as if they would be able to guarantee the principal and high-profit profit if they make investments in N in the Republic of Korea at the top level investors at the N Headquarters delegated by the N Headquarters in a foreign country against many and unspecified persons, and by receiving investment money from the investors who believe that they would be able to receive the investment money from the investors who believe that the investment money was made in the personal account of the above Internet site, and inserting it as if they were deposited normally

(a) Fraud;

The Defendant and one-time AL, AK, and one-time fund-raising sources are the subsidiaries of Q, an affiliated company of Thailand, which have a branch office in Singapore, with the authorization of NDM for investors. N creates high profits through FX-related transactions with its members, as the best domestic member with a close relationship with the executives of NN headquarters, they may transfer dividends to NN head office in cash if they make a direct deposit to NF head office. “FX-related transactions would receive dividends from N, 3% per month, 5,000 U.S. dollars, 6% per month, 100 U.S. dollars, 20,000 U.S. dollars, 100 U.S. dollars, and 108 U.S. dollars, 308 U.S. dollars, and 100 U.S. dollars, and 100 U.S. dollars, and 108.08 U.S. dollars, and 18.08 months of investment dividends.

However, in fact, N is an organization that is not qualified for FDM and its substance and method of fund management is unclear. Since it is illegal for the Defendant to directly remit investment funds to N head office whose substance is unclear even if it receives investment funds, the funds actually received shall be transferred to a foreign country under other names or operated by exchanging the CP held as dividend or allowances by domestic investors with resources, even if it is received investment funds from the victims, there is no intention or ability to pay the principal and the agreed dividend.

The Defendant, in collusion with one-person AK, AL, and name-free fund raisers, by deceiving investors as above, and from February 2014 to April 2015, the Defendant received total of KRW 37,696,964,359 from the victim of the crime, as described in the remaining parts of (i), (v), (6), and (7), with the exception of the sequences described in the table in (ii), (vi), (vi), and (vii), total sum of KRW 684 from the investors and intermediate fund raisers.

Accordingly, the defendant, in collusion with one-day AL, AK, and IK, acquired money from the victims.

Table 2

A person shall be appointed.

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

No person shall make an agreement to pay an amount of investment in the future or an amount in excess thereof to an unspecified number of persons without obtaining authorization, permission, etc. or making registration, report, etc., and shall import the investment.

Nevertheless, the Defendant and one-person AL, AK, and the name-free fund-raising sources, as described in the above paragraph (a) above, make the horses to many unspecified investors, and receive money from investors and intermediate fund-raising sources as the investment funds for N as described in the above paragraph (a). Accordingly, the Defendant conspired with one-person AL, AK, and the name-free fund-raising sources to receive money without obtaining authorization, permission, etc. under the above statutes.

2. Defendant A

① The fund raisers B and one-day AL, K, and one-time fund raisers in the same manner as described in the above paragraph (1) deceiving investors and deceiving them from investors and intermediate fund raisers in the name of R operated by the Defendant from around 10, 2014 to April 2015 through the S account opened in the name of R operated by the Defendant, and from around 28, 42, 94, 101, 115, 128, 146, 240, 264, and 265 in total from 311 victims to 19,192,209,324 won in total as investment money, ② from around 200, 500 to April 25, 2015 to be obtained from investors and intermediate fund raisers through the same method as the list of offenses (i) 3, 199, 205, 207, 325, 254, 265).

(a) Any aiding and abetting fraud and aiding and abetting in violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission;

On September 2014, the Defendant received explanations from B about N from B, and received the following investment money from the R account to manage the investment money by means of transferring it to a foreign country.

The Defendant received 19,192,209,324 won from the 311 victim in total, as indicated in the remaining part except 128,146,240,264, and 265, from October 25, 2014 to April 2015, the Defendant received 200,000 won from the 311 victim in total from the 311 victim to the 310 victim in total from October 25, 2014 to the 82 victim in total from October 28, 2014 to April 2015. The Defendant received 19,192,209,324 won in total from the 311 victim in total from the 82 victim in total as indicated in the list of crimes (3), and remitted 5,835,75,779,779, and 265 won in total to the domestic intermediary account.

As above, the Defendant provided R name S, W, and X accounts with knowledge that B, U,V, and AL, with the intent to assist them in receiving money by deceiving investors and without delay, and aided and abetting the Defendant to commit a crime in violation of the Act on the Regulation of Fraud and Unauthorized Receipt of Money by way of providing various remittances on behalf of others.

(b) Any person who intends to engage in a business of foreign exchange such as payment, collection and receipt between the Republic of Korea and a foreign country violating the Foreign Exchange Transactions Act shall prepare sufficient capital, facilities and professional human resources for conducting foreign exchange business and register them with the Minister of Strategy and Finance in advance

As a representative of R, the Defendant transferred funds that are difficult to be taken out of Korea normally, such as N Investments, and received 0.5-1% fees.

On February 9, 2014, the Defendant transferred KRW 179,996 to AAA bank account in the name of R from February 9, 2014, although the Defendant was not an institution registered to engage in foreign exchange business, and transferred KRW 27,361,94,643 in total on 72 occasions between around that time to March 2015, such as the list of crimes (8). Accordingly, the Defendant carried out a non-registered foreign exchange business.

Summary of Evidence

The summary of the evidence recognized by this court is the same as the corresponding column of the judgment below, and thus, it is cited in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

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

○ Defendant B: Articles 347(1) and 30 of the Criminal Act (the point of fraud, the choice of imprisonment), Articles 6(1) and 3 of the Act on the Regulation of Conducting Fund-Raising Business without Permission, Article 30 of the Criminal Act (the point of performing fund-raising business without permission, and the choice of imprisonment)

○ Defendant A: Each of Article 347(1) of the Criminal Act, Article 32(1) of the Criminal Act, Articles 6(1) and 3 of the Act on the Regulation of Conducting Fund-Raising Business without Permission, Article 32(1) of the Criminal Act, Article 32(1) of the Criminal Act, Article 27(1)5 of the Foreign Exchange Transactions Act, Articles 27(1) and 8(1) of the Foreign Exchange Transactions Act (the provision of foreign exchange business without registration and the provision of imprisonment and fine concurrently)

1. Statutory mitigation;

Articles 32(2) and 55(1)3 of the Criminal Act (as to the crime of aiding and abetting fraud, and the crime of aiding and abetting in violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission)

1. Aggravation of concurrent crimes (defendants);

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (in case of Defendant A, Article 38(1)3 of the Criminal Act is added)

1. Detention in a workhouse;

On the grounds of sentencing under Articles 70(1) and 69(2) of the Criminal Act, the sentence was determined as ordered in consideration of the motive, means and result leading to the instant crime, the circumstances after the commission of the crime, the age of the Defendants, character and conduct, environment, etc., and all other circumstances constituting the conditions of sentencing as shown in the records and arguments.

1. Defendant B

○○ Unfavorable Circumstances: (a) The crime of fund-raising fraud is likely to distort the sound economic order of our society and disrupt the general public’s sense of work; (b) there are significant harm and injury inflicted upon the society throughout the short term, such as that many victims are fluened in a short period of time, and the victims are placed in serious economic difficulties. In particular, the crime of this case is committed by arbitrarily manipulating various Internet data by using a company located in a foreign country, which is not familiar with the general public, and thus, it is inevitable to impose strict punishment even in order to prevent any possible and continuous occurrence of the crime of similar laws. Although the Defendant emphasizes that he did not raise funds to directly investors, it is clear that he is the highest-ranking business entity who played a key role within his organization when considering the aforementioned various behaviors, and thus, it is hard to accept the Defendant’s 684 billion won out of the total amount of damage or injury caused by the crime of this case, even if it appears that there was a considerable amount of damage or injury caused by the crime of this case.

According to the agreement with a large number of victims using the investment amount of 16.6 billion won which the defendant keeps in his own future account in the trial, 180 persons among the victims of the crime of this case do not want to be punished by the defendant, and 340 persons who hold the CP by converting it into the shares of AS (AS Co., Ltd., hereinafter referred to as the "AJ") that the CP is the holding company of N and held after the transfer of the CP from other investors, and they do not want to be punished by the defendant. Thus, the efforts to recover the damage of the defendant are not to be reflected in the sentencing of the punishment of the defendant. It seems that there is no domestic criminal power except when 50,000 won is punished by the Labor Standards Act, and that the victims are not engaged in the multi-stage business until the crime of this case. The victims' excessive desire to obtain high profits in a short period is not reasonable and reasonable.

2. Defendant A

○ Unfavorable Circumstances: The content of the crime committed by providing an account to be used for committing the crime of fund-raising fraud with extremely without fault, and aiding and abetting the taking out of the money obtained through the crime of this case, the nature of the crime is poor. The profits through the crime of this case recognized by the Defendant also amount to KRW 270,00,000. There is no attitude to continue to provide a defense that is difficult to understand and properly reflect.

The circumstances favorable to ○○: (a) after the decision of the lower court was rendered, the bankruptcy was declared by filing an application for the bankruptcy against the R Fund that could reasonably be used for the recovery of damage; and (b) the said money is likely to be used for the recovery of damage by the victims through the trustee in bankruptcy. As seen earlier, the above money appears to have been used for the recovery of damage by the above Defendant B. There is no criminal power against the Defendant. There was no criminal history against the Defendant, which was adopted overseas at the age of six, and led to an unaffortuous growth environment, such as the adoption into a foreign country to the Korean language.

Parts of innocence

1. Defendant B

A. Summary of the facts charged

The Defendant conspiredd to raise funds in one name AL, AK, and name in collusion with investors as stated in paragraph (1) of the crime, and by deceiving them, from investors and intermediate fund raisers, the Defendant received a total of 158 victims total of KRW 17,079,140,004 won from around December 2014 to April 2015, as indicated in the list of crimes and the sequences described in Table 3 as follows: (a) from investors and intermediate fund raisers, the Defendant acquired them as investments in N, and acquired them by defrauding them and received them as investments.

Table 3

A person shall be appointed.

B. Determination

As seen in the above 2-b. C., since this part of the facts charged constitutes a case where there is no proof of crime, the judgment of not guilty under the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment under Article 58(2) of the Criminal Act, but as long as it is found guilty of a violation of the Act on the Receipt of Similar Information in the Case of Violation of the Act on the Receipt of Similar Information, the judgment of not guilty shall not be rendered separately in the text.

2. Defendant A

A. Summary of the facts charged

B In collusion with one-time AL, AK, and one-time fund raisers, by deceiving investors in the same manner as described in paragraph (1) of the crime, and deceiving them from investors and intermediate fund raisers in the same manner as described in paragraph (1) of the crime, the Defendant, despite being aware of the above fact, 1, 3, 19, 28, 42, 94, 101, 115, 128, 146, 240, 264, 265 of the crime list (1), and 2, as described in the list of crimes (2) and 4,456, 076, 400 won from December 2014 to April 2015, 200 and 4,4,56,076,400 won and 23) of the Act on the Regulation of Fraud and the Prevention of Misappropriation by providing them with S and T Accounts and assisting them to commit each act of receiving money on behalf of others.

B. Determination

As examined in Section 2-D., this part of the facts charged is without proof of a crime.

As such, ① a person who commits fraud is not guilty under the latter part of Article 325 of the Criminal Procedure Act; ② a summary of the judgment shall be publicly announced under Article 58(2) of the Criminal Act; ② a person who commits a crime of aiding and abetting in violation of the Act, which constitutes a single comprehensive crime, shall not be acquitted in the disposition.

Judges

The presiding judge, Park Jae-sik

Judge Kim Gung-hun

Judges Park Jong-young

Note tin

1) Defendant B’s defense counsel (LLC) LLC LLC 2016,315, the grounds for appeal arranged by Defendant B’s defense counsel’s defense counsel’s opinion, are cultivated in the logical order.

and described in this chapter.

2) The lower judgment referred to as “e-mone” in the lower judgment.

3) The Defendant B and the Defendant’s non-name fund raiser changed “The Defendant B and one-person fund raisers in the name of the Defendant B and one-person AK and AL.”

4) “However, fact N is an organization that does not qualify as FDM and whose substance and financing management method are unclear, and the Defendant did not send investment funds to N.

prior investors and victims shall be discharged from the use of the funds, dividends, personal expenses, etc., and the remainder shall be a place unrelated to N.

(b) shall deliver the investment funds to the N, or shall reimburse the principal and interest of the investment funds properly, even if the return victims receive the investment funds.

"However, the N does not have intention or ability," and the defendant is an organization whose substance and method of fund management are not clear.

Since it is illegal to directly remit the investment money to the N head office whose substance is unclear even if the investment money is received, the funds actually received shall be different from the actual ones.

(b) the transfer of money to a foreign country or the exchange of the CP owned by domestic investors as dividend or allowances;

Inasmuch as it is inevitable to operate, even if the victims receive the investment money, the principal of the investment money and the agreed dividends shall be paid properly.

There was no intention or ability to refund or pay."

5) The list of crimes (1) through (4) is a list of crimes relating to aiding and abetting fraud and aiding and abetting in violation of the Act on Receiving and Receiving and Otherwise, and the list of crimes (8) is relating to a violation of the Foreign Exchange Transactions Act.

It is a list of crimes.

6) AL and AK mean that the CP entrusted by the court below to the defendant is equivalent to USD 32 million (AL) and USD 12 million (AK) compared to the defendant's assertion.

141, 1151 of the trial records), which submitted a written statement;

7) The Defendant received a remittance of investment money to each account under the name of the Defendant, such as in the list of crimes (5) through (7), and then re-in the above future.

The Fund has been transferred to the Fund account and kept.

8) A public prosecution was instituted pursuant to this Court Order 2015No342, and five years have been sentenced to imprisonment in the first instance court on April 8, 2016, and the appellate court on April 8, 2016.

20154070) After being reversed as a result of the acquittal of a part of the facts charged, 4 years have been sentenced to imprisonment for the guilty portion, and the above appeal has been filed.

As to the judgment of the court, Q Q has submitted a petition of appeal.

9) A public prosecution was instituted under this Court Order 2015No3620. On November 13, 2015, three years of suspended sentence was sentenced in the first instance trial on November 13, 2015, and both parties were sentenced to suspended sentence.

It became final and conclusive as it did not appeal.

10) The prosecution was instituted under this Court Order 2015No3677. On December 17, 2015, three years of suspended sentence was sentenced to imprisonment in the first instance court on December 17, 2015, and both parties were sentenced to suspended sentence.

It became final and conclusive as it did not appeal.

11) This Court was prosecuted as 2015 Godan5341, which was sentenced to imprisonment in the first instance trial on February 12, 2016, and was appealed by both parties and thereafter, this Act.

The appeal is pending in the appellate court as the Won 2016No649.

12) Of the list of crimes (7) 187 (131,010,000)

13) Of the crime sight table (1) 290474,415,00 won, among the crime sight table (7), 254 (24,552,500 won), total 498,967,500 won

14) Of the crime sight table (1) 208 (96,202,50 won) and the crime sight table (7) 191 (56,827,150 won), total 153,029,650 won

15) Of the crime sight table (6) 39 (10,840,00 won) and the crime sight table (7) 145 (34,564,950 won), total 45,404,950 won

16) An order of 236 (71,300,000) in the list of crimes (1) and an order of 26 (48,000,000) in the list of crimes (2) and an order of 28 (33,248,000) in the list of crimes (5);

Of the list of crimes (7) 220 (263,283,106 won, total of 415,831,106 won)

17) The Defendant first hostingd the Defendant B and the Defendant at the end of September 2014 through October 10, 2014, followed by the second hosting after one week, and 13 weeks thereafter.

Third, I stated that the following account was opened and the transfer was agreed upon (Evidence Records 2231, 2232 pages);

18) As the number of victims in each list of crimes is simply added up, there seems to be some overlapping victims. The person is guilty (Defendant B).

The reorganization of the prescribed parts is as follows:

A person shall be appointed.

19) The parts found guilty (Defendant A) are arranged as follows:

A person shall be appointed.

20) Upon the commencement of the investigation of the instant case, the N head office shall induce or enforce the victims to convert the CP individually possessed by the victims into the AJ’s shares.

As a result, currently people holding AJ's shares can be seen as substantial victims. AJ is an out-of-the-counter item in the United States of America.

Since a company registered in the market (OTC) or its entity is unclear, the shares can be said to have no value.

21) The Defendant seems to have restored the damage by purchasing the shares of the AJ against the victims. The Defendant shall acquire the shares from the individual victims.

There is a doubt as to whether to properly recover from damage by paying money equivalent to the gold. In addition, some victims have value.

on the basis of vain expectation, N or the defendant's non-founded trust of the AJ shares' share price inflation.

There is a doubt that the victims do not reach an agreement even though they did not recover from damage properly. However, they are true and true.

As long as the defendant has submitted a written application to fill in the sentencing according to his will, such intention shall be reflected in the sentencing.

22) The conciliation of the parts acknowledged as not guilty (Defendant B) is as follows:

A person shall be appointed.

23) The parts to be recognized as not guilty (Defendant A) are arranged as follows:

A person shall be appointed.