2016Gohap260 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

1. A;

2. B

The prosecution (prosecution) and Kim Jong-gm (Trial)

Law Firm C (For Defendant A)

Attorney D, E, and F

Law Firm G (Defendant B)

[Defendant-Appellant]

July 13, 2017

Defendant B shall be punished by imprisonment for two years.

Defendant A is innocent.

The summary of the judgment against the defendant A shall be announced publicly.

Criminal facts

Defendant A is the owner of 4 lots (8,312m, approximately 2,512m, hereinafter referred to as “the instant land”) such as J, K, and L in Gyeyang-gu, Youngyang-gu, the Gyeonggi-gu, the Gyeonggi-gu, and has worked as a major shareholder and representative director of the KCAM (hereinafter referred to as “M”), and Defendant B is a person who has a de facto marital relationship with the above A and works as the representative director of the KAUN (hereinafter referred to as “N”) in which Defendant A is a major shareholder.

Defendant B told Defendant A to sell the instant land after obtaining the consent, and then asked 0 victims who wish to operate a waste disposal business during the physical display of the land purchaser. However, Defendant B expressed that he would purchase the instant land on the condition of permission for waste disposal business from the said victim, and Defendant B was willing to sell the land to the victim as if he were to obtain permission.

Defendant B knew that he was unable to obtain a waste disposal business license from the competent authority on the instant land, he/she would allow the said victim to obtain a waste disposal business license on March 15, 2012 at the N office located in Yongsan-gu P, Yongsan-gu P, Yongsan-gu, Busan-si, in order to obtain a waste disposal business license on the instant land from the said victim. The down payment and intermediate payment shall be determined as KRW 1 billion, and the balance of KRW 2 billion shall be replaced by the receipt of bank loan obligations, but the bank loans secured by the instant land shall be reduced to KRW 2 billion by the due date for the remainder payment.” On the contrary that it is false, Defendant B wired the victim a total of KRW 10 million on the same day, KRW 20 million on March 16, 2012, KRW 30 million on April 40, 2012, KRW 1 billion on October 30, 2012.

However, in fact, Defendant B was aware that it was practically impossible for the pertinent land to obtain waste disposal business permission from the competent authorities because it was located in the development restriction zone, and Defendant B did not have an intention or ability to reduce the loan amount to KRW 2 billion, which is the remainder by paying a part of bank loans.

As a result, Defendant B deceiving the victim 0, and caused the victim to deliver the sum of KRW 1 billion to Defendant A.

Summary of Evidence

1. A’s legal statement;

1. Statements of Defendant B in part of the first trial records;

1. Part of the statement of witness in the first trial record;

1. Each prosecutor's protocol of statement about Q and R;

1. Full certificate of registered matters, land cadastre, real estate sales contract, details of transfer of account, land use plan, response to questionnaire in Gyeyang-gu, examples of statutory interpretation of Acts and subordinate statutes of the Ministry of Government Legislation, and response to the details

1. Each investigation report (verification of whether a person applies for authorization or permission to operate a waste disposal business on this case's land, which he/she received on October 11, 2012, with a summary order issued by N pre-public official T taking the statement, B accompanied by a summary order punished by this case's land collateral loan, financial transaction confirmation related to this case's land collateral loan, A's intermediate payment amounting to KRW 300 million,

Application of Statutes

1. Article applicable to criminal facts;

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(2) of the Criminal Act

[The facts of Defendant B’s crime are acknowledged as they were, and thus, the relationship with Defendant A’s conspiracy cannot be recognized as being followed, and thus, the party who received KRW 1 billion is not a direct receipt of the property acquired by the Defendant A or the property acquired by the Defendant as it is, but a third party. Accordingly, Article 347(1) of the Criminal Act shall apply to the facts charged in collusion with Defendant A, but this court applied Article 347(2) of the Criminal Act with regard to the facts charged that Defendant B acquired by fraud in collusion with Defendant A, but this court applied Article 347(2) of the Criminal Act. The basic facts of the facts charged are not changed if Defendant A’s participation did not change, and Defendant B does not dispute the facts transferred to the account under the name of Defendant A, contrary to the indictment, so even if Article 347(2) of the Criminal Act is applied (see Supreme Court Decision 200Do4419, Nov. 22, 2002).

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

Judgment on Defendant B and his defense counsel’s assertion

1. Summary of the defendant's assertion

The fact that the victim made the victim conclude a sales contract and wired money to the victim is recognized. However, inasmuch as Defendant A believed that he/she may obtain a permit for waste disposal business on the instant land by using the connection, he/she is able to obtain sufficient permission with the capacity of Defendant A, and only delivered Defendant A’s horses to the victim as it is, there is no criminal intent of defraudation, and there is no fact that he/she has made any profit through the sale of the instant land. Therefore, there is no motive for the crime.

2. Determination

In light of the following circumstances, the part of Defendant B’s statement, Q, and R among the first prosecutor’s protocol of examination of Defendant A (B, 0 comparisons) of Defendant B, the part of Defendant B’s statement, each prosecutor’s protocol of examination of Defendant A of the first prosecutor’s protocol of examination of Defendant A (B, 0 comparisons) and each investigation report (which is acknowledged as follows: (a) the submission of N’s Twitment by employees; (b) the attachment of a summary order punished by B; and (c) the intermediate payment of KRW 300 million received by A on October 11, 2012, it is sufficiently recognized that Defendant B deceiving the victim and had the victim deliver money under the name of the purchase price to Defendant A, and thus, Defendant B’

① In fact, M and N used the same office and operated the same office as a single company, and both M and N were practically operated by Defendant B (Defendant B also stated at an investigative agency that M and N was actually in fact in the management of the company (Article 653 pages, 1,958 pages, 2,314 pages, 653 pages, 2,314 of the investigation record), Q and R worked as a M’s employee, although the Defendant A was the representative of M, they did not perform the work but did not perform the work after obtaining approval from Defendant B (Article 844, 286 pages, 84 of the investigation record)).

② At around October 201, Defendant B asked Defendant A, who was in a de facto marital relationship, to purchase the instant land as the land to be used as a camping site was necessary. Defendant A purchased the instant land and got Defendant B to use the instant land after acquiring ownership.

Defendant B, while using the instant land on June 2009, was fineded on the ground that the instant land was loaded without permission, such as scrap iron, on the instant land, which is a development-restricted zone (in fact, 352 pages of investigation records). Defendant B knew that the instant land is located within the development-restricted zone, making it impossible to take waste disposal facilities out of the instant land (such as investigation records 299 pages, 2,326 pages, and the installation of waste disposal facilities within the development-restricted zone is allowed only when the urban planning facilities are determined as urban planning facilities (in fact, it is impossible to obtain permission for waste disposal business on the instant land, which is the development-restricted zone).

③ Defendant B asserted that there was no benefit from the sale of the instant land by deceiving the victim and there was no motive for selling the instant land. However, Defendant B was investigated by the Prosecutor’s Office, and Defendant B was liable for a loan of at least KRW 2.10 million to the bank with the instant land as collateral, but offered the instant land to Defendant A by having repaid the Plaintiff’s obligations with a view to facilitating the N’s financial structure, thereby selling the instant land (i.e., KRW 1,809), and (ii) stated that part of the purchase price was to be used as M’s operational fund at the time of concluding a sales contract for the instant land (i.e., KRW 1,865 of the Investigation Record). Moreover, if N substituted the remainder of the purchase price for the instant land owned by Defendant A with the buyer’s obligation equivalent to the amount of the loan granted as collateral, the effect of Defendant B’s obligation becomes extinct, and thus, Defendant B’s motive for committing the instant crime is extinguished.

4. The sales contract for the instant land was concluded by Defendant B on behalf of the victim, and the victim did not have any fact in the process of concluding the contract. While the victim was aware of the fact that it was difficult to obtain permission for the instant land, the victim entered into the contract with Defendant A after hearing the horses that Defendant A would have obtained permission from Defendant B, even though it was difficult to obtain permission for the instant land.

Defendant B stated that Defendant A obtained a license for a waste disposal business by using a beer and used, and the instant land was located in the development restriction zone, but it was sufficiently possible to obtain the license in view of Defendant A’s status and capacity at the time. However, as seen later, Defendant B’s above statement is difficult to believe that Defendant B made a false statement to the victim, and Defendant B considered that Defendant B made a false statement [it is possible to see how Defendant A would obtain the license even if based on Defendant B’s statement, it would be possible to block without any factual basis (the investigation record No. 143 pages). However, Defendant A did not directly perform a waste disposal business license prior to the fact that Defendant A did not have any fact or any person related to the permission. As such, the credibility of the statement is broken.

(5) After the conclusion of the instant contract, Defendant B received demand for permission from the victim, and the victim continued to obtain permission, once Defendant A sent the remaining intermediate payment of KRW 300 million to the Defendant A, and immediately transferred the said KRW 300 million to the corporate account of M he operated by Defendant B to use it as operating funds (the Defendant B is the representative director of Defendant A, and the Defendant A was used for his own personal use. However, as seen earlier, M was the company in which Defendant B was actually operated, and Defendant B prepared the loan certificate of KRW 300 million to Defendant A on October 12, 2012. However, Defendant A did not know that it was possible to obtain permission from Defendant B, and Defendant B did not find out whether to grant permission for the instant land.

Reasons for sentencing

1. Scope of punishment by law: Imprisonment with prison labor for not less than one year and six months, but not more than 15 years;

2. Scope of recommended sentences according to the application of the sentencing criteria: Imprisonment with prison labor for not less than one year and six months, but not more than four years;

【Scope of Recommendation】

General Fraud Type 3 (not less than KRW 500, not more than KRW 5000, less than KRW 5 billion)

【Special Convicted Persons】

○ Elements of mitigation: Non-conformity of Punishment

3. Determination of sentence: Two years of imprisonment;

Defendant B’s loss amount due to the instant crime reaches KRW 1 billion, but Defendant B’s consistent attitude that takes all responsibility to Co-Defendant B is disadvantageous to Defendant B.

However, the actual gain of Defendant B through the instant crime appears to be about KRW 300 million, which is a part of the amount of damage, and that the victim had been able to receive part of the damage from Defendant B and had expressed his wish not to punish Defendant B is favorable to Defendant B.

Other factors of sentencing, such as Defendant B’s age, character and conduct, environment, motive and consequence of the crime, circumstances after the crime, etc., shall be determined as per the order.

The acquittal portion

1. Summary of the facts charged against Defendant A

Defendant A instructed Defendant B to make a false statement to the victim as stated in its reasoning, and, in collusion with Defendant B, deceiving the victim and issued KRW 1 billion from the victim.

2. Summary of the defendant A and his defense counsel

Defendant B, in relation to the N and M’s operation, was required to sell the instant land, and it was only permitted to sell the land to the effect that the purchaser was found, and there was no fact that Defendant B intended to obtain permission for a waste disposal business as stated in the facts charged, or conspired with Defendant B to commit the instant crime.

3. Determination

A. Details of deception stated in the facts charged

In the facts charged of this case, "the defendant knew that the land of this case is in fact impossible to obtain permission for waste disposal business, and that he did not have the intention or ability to reduce the loan amount to KRW 2 billion, the defendant Eul ordered the defendant Eul to obtain permission for waste disposal business by using the connection of the defendant Eul and would reduce the bank loan amount to KRW 2 billion by the due date for the remainder payment." The defendant Eul signed a direct contract with the victim on behalf of the defendant Eul and deceiving the victim by making the above remarks as stated in the facts charged of this case on behalf of the defendant Eul, so in order to be found guilty of the facts charged of this case against the defendant Eul, the public relations with the defendant Eul should be proved to the extent that there is no reasonable doubt.

B. The part that Defendant A said that he would obtain permission for waste disposal business by using beer

1) Evaluation of direct evidence corresponding to the facts charged

A) According to Defendant B and 0’s statement, real estate sales contract, and each investigation report (as to KRW 700 million, KRW 300 million, KRW 300 million, KRW 300 million, and KRW 100,000, KRW 2000, KRW 3000, and KRW 3000, and KRW 200,000, KRW 700,000, KRW 700,000, which was deposited in Defendant A’s account, were used for personal purposes, such as repayment of loans to Defendant A’s large shareholder, and the fact that Defendants did not have applied for permission for waste disposal business of the instant land. Thus, there is doubt that Defendant A conspired with Defendant B to commit the instant crime in collusion with Defendant B.

B) Meanwhile, the Defendant A consistently stated from the first prosecutor’s investigation to the present court that “Defendant B would only be granted permission by suggesting that the instant land was sold and did not intend to obtain permission for waste disposal business.”

As indicated in the facts charged in this case, the direct evidence that Defendant A instructed Defendant B to sell the land of this case and to obtain permission for waste disposal business on the land of this case by using his connection, and that the remainder of KRW 2 billion will be replaced by the acceptance of loan obligations, but the loan would be reduced to KRW 2 billion by the date on which the balance is paid." In fact, Defendant B’s statement is virtually insufficient (It is difficult to view that the victim0’s statement is directly admitted as evidence that Defendant B’s statement was transferred from Defendant B while entering into a contract with Defendant B who represented the Defendant, and that it was admissible. Of the Defendant’s statement duly adopted and recognized as admissible, the part related to the facts charged in this case’s statement is part of the witness’s written statement, the first, second, and fifth prosecutor’s protocol of suspect examination (B andO) of Defendant A (B and O) of the prosecution.

C) Defendant B was examined by the prosecution against Defendant A and 0, and the first investigation was conducted on the basis that “The internal government proposed to sell the instant land first to Defendant A. The N had a debt of at least 2.1 billion won at a bank as collateral, but proposed to Defendant A to repay the obligations of the bank in order to facilitate N financial structure, and that Defendant A sold the instant land with the consent of Defendant A. Although Defendant A had to sell the instant land at a price of KRW 2.5 billion, Defendant A had to purchase the instant land at a price of KRW 3 billion, and Defendant A had to purchase the instant land at a price of KRW 3 billion on the condition that 00 million would have to be able to purchase recyclable products, and Defendant A had to purchase the instant land at a price of KRW 3 billion on the condition that 0 would have been able to purchase the instant land on the condition that she would have obtained a permit for disposal of recyclable products, and Defendant A made a false statement to Defendant A and Defendant A (hereinafter “Defendant A’s initial investigation into the instant land to be sold at a price of KRW 5.”).

After that, in this court, the defendant A appeared as a witness and entered into a contract with the victim who wanted to operate the waste disposal business, and the defendant A would be able to obtain permission for the waste disposal business on the land of this case by using the beer. Specifically, it would be the direction of granting permission as to whether there is a connection between inside and outside. "The permission relationship will be reviewed by signing a contract."

Defendant B’s statement is not consistent with the core part that recognizes Defendant A’s solicitation, such as the developments leading up to the sale of the instant land and the content of the statement that Defendant A had made, and Defendant B’s statement is a party who directly entered into a contract with the victim, and since all the parties asserted that he was one of the parties under the direction of Defendant A, it is difficult to exclude the possibility that Defendant A would have made a false statement to transfer or reduce his responsibility. In addition, considering the fact that Defendant A would be allowed to use the connection, it is difficult to believe that Defendant B’s statement that Defendant A made it difficult to believe that it would have been allowed to use the connection.

2) Evaluation of the remainder of evidence submitted by the prosecutor

A) In addition to Defendant B’s statement, the remaining evidence as shown in the above facts charged are examined as to the statement of 0, real estate sales contract and each investigation report (the down payment and intermediate payment KRW 700 million, KRW 300 million, and whether the waste disposal business license application for this land is filed).

B) All of the statements by the victim 0 were made by the defendant Eul to the end of the defendant Eul, and the defendant Eul could not be deemed to have delivered the matters regarding the contract to the defendant Eul. Thus, the defendant Eul's statement is not sufficient to acknowledge credibility in the defendant Eul's statement, and it is difficult to view that there is an independent value of evidence as well as an independent value of evidence.

C) The fact that Defendant A received a contract from Defendant B by facsimile and directly read the terms of the contract and then affixed a seal imprint appears to have existed. However, it is insufficient to recognize that Defendant A’s signing of the contract on the land of this case on the sole basis of the fact that Defendant A affixed a written contract stating the said special terms and conditions to the effect that “the purchaser would cancel the sale and purchase at the time when the purchaser would not obtain any permission on the said real estate, and refund the down payment and the intermediate payment by July 30, 2012,” is not construed to mean that Defendant A obtained a license on the waste disposal business, but rather affixed the written contract stating the said special terms and conditions.

D) Defendant A’s details of the use of the purchase price (as seen earlier, Defendant A used KRW 700 million out of the purchase price to repay U’s loan, etc., but it is not a problem because the land owner used the purchase price in one’s own place as necessary) and Defendant A’s investigation report on whether to apply for authorization and permission for waste disposal business is insufficient evidence to acknowledge the facts charged that Defendant A expressed that he would be granted a license for waste disposal business by using beer.

C. The portion that the bank loan was to be reduced to KRW 2 billion until the balance is paid.

The evidence revealed that Defendant A conspired with Defendant B to offer a bank loan amounting to KRW 2 billion until the outstanding payment date is made is also true and consistent with the facts charged. However, even according to the witness B’s legal statement, Defendant B did not appear to have made a contract on behalf of the Defendant A on behalf of the Defendant with the content of taking over the above bank loan amounting to KRW 2 billion in lieu of the payment of the balance of the purchase price, while Defendant B entered into a contract on behalf of the Defendant A with the content of taking over the above bank loan amounting to KRW 2 billion in lieu of the payment of the balance of the purchase price, but did not say that the amount should be reduced to KRW 2 billion until the outstanding payment date. The debtor of the right to collateral security established on the land of this case is N operated by Defendant B (not more than 18 pages of investigation record, not more than 462 pages), and since the loan from the bank was used as the operating fund of M and N in substance operated by Defendant B [It is difficult to view that the balance of the loan amount exceeded KRW 2.

In addition, the remainder amount of KRW 2 billion stated in the sales contract of the instant land is paid on July 30, 2012 (only in substitution for bank loans). However, it is difficult to recognize that Defendant A knew that he/she had to pay a bank loan of KRW 2.4 billion to KRW 2 billion, and it is insufficient to deem that Defendant A conspired with Defendant B and made a false statement on the fact that Defendant A had read and sealed the said contract.

D. Sub-determination

The evidence submitted by the prosecutor alone is insufficient to recognize that the facts charged against Defendant A, such as the public contest relationship with Defendant B, was proven beyond reasonable doubt.

4. Conclusion

Since the facts charged against Defendant A constitute a time when there is no proof of crime, the court rendered a verdict of innocence against Defendant A pursuant to the latter part of Article 325 of the Criminal Procedure Act, and publicly announced the summary of the judgment of the above Defendant pursuant to Article 58(2

The presiding judge, the highest judge;

Judges of the High Instance

Judges Kim Dong-dong