2013Gohap299 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

A

He/she shall file a prosecution (prosecution) and conduct a new trial

Law Firm (LLC) B C, D

February 10, 2014

The prosecution of this case is dismissed.

1. The facts charged (E) of this case (hereinafter referred to as the "E") prevents the payment of the construction cost to be paid to the victim F due to the default. On October 27, 2004, 17 households of 19 units of apartment units on the Yongsan-gu Seoul Special Metropolitan City G G G site where the preservation of ownership has been completed under the name of E on October 27, 2004, shall be sold to the victim and H in total amount to KRW 7.2 billion, but the down payment shall be replaced by the construction cost of KRW 85 million held by the victim against E, and the victim shall pay the intermediate payment to E in total to KRW 150 million, the remainder, KRW 350 million,00,000,000,000 from the remainder, and KRW 5.63 billion,5,600,000,000,000 to be underwritten by the victim, etc. while transferring the above apartment units to the victim, etc., and the agreement was made to transfer the registration of ownership.

On November 2, 2004, the above apartment 17 households registered the right to claim the transfer of ownership on the ground of the promise to trade in H name.

(3) around May 1, 2006, the Defendant sold 10 households (101, 102, 103, 201, 202, 203, 301, 303, 401, 403, hereinafter referred to as the “ apartment of this case”) out of 17 households of apartment owned by the victim to purchase and sell the remaining amount of 5.2 billion won to the victims of the purchase and sale contract (the remaining amount of 39 billion won for the down payment, 30,000 won for the remainder of 4.5 billion won for the purchase and sale contract to be paid to the victims of the above apartment, and the remaining amount of 3.5 billion won for the purchase and sale contract to be paid to the victims of the apartment of this case without any agreement between the victim and the public bank, and the victims of this case to pay the remainder of 3.5 billion won for the purchase and sale contract to the victims of the apartment of this case including the above purchase and sale contract of this case.

However, in fact, the Defendant paid only a total amount of KRW 547 million, including KRW 20 million on May 9, 2006 and KRW 390 million on May 19, 2006, among the real estate (Seoul Mapo-gu land and ground buildings, K and Ltel 608, 609 located outside six parcels) owned by the Defendant to secure the payment of intermediate payments and incidental expenses. According to the above sales contract, the Defendant made a registration of ownership transfer on May 9, 2006, the Mapo-gu Seoul Mapo-gu J building had it completed the registration of ownership transfer in the future. According to the above sales contract, the Defendant did not have the capacity to pay the remainder of the sales contract to the Defendant by negotiating a collateral obligation against the National Bank or by having the National Bank pay the remainder of the contract without any intention or ability to pay the remainder.

Nevertheless, the Defendant, by deceiving the victim as above, paid only an amount equivalent to KRW 547 million to the victim under the pretext of KRW 390 million as contract deposit, intermediate payment, and incidental expenses. Of the apartment of this case on May 17, 2006, the Defendant acquired property profits equivalent to KRW 4.56 million in total, including the additional registration of the provisional registration of the transfer of the right to claim the ownership transfer in the future and the registration of transfer of ownership based on the provisional registration of the above provisional registration. As to subparagraph 401, as to subparagraph 101, as to subparagraph 101, P, Q, 301, as to subparagraph 201, as to subparagraph 303, by completing the additional registration of the transfer of the right to claim the ownership transfer and the registration of transfer of ownership based on the provisional registration of the above provisional registration.

2. Defendant and his defense counsel’s assertion

A. The instant case is deemed to have violated Article 262(4) of the Criminal Procedure Act that the prosecution cannot be initiated except where other important evidence is discovered with respect to a case for which the decision to dismiss an application for adjudication became final and conclusive, and constitutes a case where the prosecution procedure is unlawful

B. The Defendant did not deceiving the victim or obtain the same content as the facts charged or pecuniary advantage equivalent to the same amount as the amount of the charges, and the victim did not have been damaged by the instant case.

3. Relevant principles.

A. The system of an application for a ruling is a trial procedure by a court to examine the propriety of a non-prosecution disposition, and a case for which a ruling to dismiss an application for a ruling has become final and conclusive shall not be prosecuted except for "the discovery of other important evidence" (the latter part of Article 262(4) of the Criminal Procedure Act). The purpose of restricting prosecution against a case for which a ruling to dismiss an application for a ruling has become final and conclusive is to examine all the evidence collected by an investigation agency, as well as, to determine whether the decision of the court which has undergone such a process is illegal or unjust. As such, it is necessary to respect the decision of the court that has undergone an investigation by itself, and there is no change in circumstances, such as where the prosecutor permits a public prosecutor to institute a prosecution on the case for which a ruling to dismiss an application for a ruling has become final and conclusive, the application would be placed in an unstable situation for an excessive period of time, and it would be extremely poor that the court personnel and budget have been wasteed in the case for which a ruling to dismiss an application for a ruling has become final and conclusive.

B. In light of the above legislative purport and the interpretation theory concerning "a case where other important evidence is discovered as an element for instituting a public prosecution again when a ruling dismissing a public prosecution becomes final and conclusive due to cancellation of a public prosecution (see Articles 327 subparag. 4 and 329 of the Criminal Procedure Act, and Supreme Court Decision 77Do1308, Dec. 27, 197)", "a case where other important evidence is discovered" in the above provision refers to a case where there is sufficient evidence to prove sufficient conviction if the newly discovered evidence is added to the evidence at the time of the ruling dismissing a public prosecution after the ruling dismissing a public prosecution is made.

4. Facts of recognition;

A. Details of the instant case

1) The Defendant entered into the instant contract with the victim on May 1, 2006, as indicated in the facts charged, and on May 17, 2006, the victim completed the additional registration of transfer of provisional registration and registration of transfer of ownership with respect to the instant apartment to the Defendant, N,O, P, Q, R, etc.

2) However, on May 9, 2006, the Defendant failed to implement the procedures for registering the creation of a neighboring mortgage on each real estate which was offered as security for intermediate payments and incidental expenses, and completed the registration of ownership transfer on some of them. On September 2006, if the victim agreed to reduce the secured obligation between the National Bank and the National Bank to 2.4 billion won, the Defendant sought payment of the remainder, but tried to cancel the right to collateral security by mutual agreement with the National Bank on October 2006 without paying the remainder, intermediate payments and incidental expenses. On October 18, 2006, the Defendant completed the registration of ownership transfer on the instant apartment 302 with S on October 18, 2006.

3) In light of the above circumstances, the complainant filed a fraudulent complaint with the Defendant several times as follows, on the ground that the Defendant had no intent and ability to implement the instant sales contract from the beginning of the year, according to the agreement.

(b) Progress of civil litigation between the defendant and the victim;

1) On October 2006, the victim and H filed a lawsuit with the Seoul Western District Court against Defendant, N,O, P, Q, and R seeking cancellation of the ownership transfer registration of each apartment of this case against Defendant, N, P, Q, and R on January 11, 2007. The victim and H expressed their intent to cancel the instant sales contract.

2) On December 6, 2007, the Seoul Western District Court kept the documents required for registering the establishment of a neighboring mortgage in the I certified judicial scrivener office and provided legitimate performance by notifying the victim thereof. ② There is no circumstance to deem that the victim settled the national bank and the secured debt or took measures to enable the defendant to settle the secured debt in order to solve the problem of the right to collateral security of the national bank established in the entire apartment site that is closely combined with the outstanding payment. ③ The defendant also dismissed his claim by the victim and H on the ground that it is difficult to perform the obligation to pay the balance relating to the settlement of the secured debt and the settlement of the secured debt of the above national bank, under the circumstance that the defendant's disposal of the above subparagraph 302 cannot be deemed to violate the sales contract.

(207Gohap422)

3) On September 18, 2009, the Seoul High Court rendered a judgment in favor of the plaintiffs that "the defendant received KRW 237,700,00 from the victim and H, and at the same time the defendant fulfilled the registration procedure for the transfer of ownership and the additional registration for the transfer of provisional registration with respect to each apartment (five households)" (Supreme Court Decision 2008Na17207). The reasons are as follows: (1) there is no evidence to deem that the defendant kept the registration documents in the office of certified judicial scrivener from May 8, 2006 and notified the victim and H of the incidental expenses; (2) there is no evidence to deem that the defendant could establish a collateral security right on the building in the name of M with the documents kept by the defendant; (3) the defendant could not be deemed to have lawfully performed its obligation to pay the intermediate payment and incidental expenses; (5) the defendant could not negotiate with the National Bank, the victim and the National Bank, and even if the defendant violated the obligation to pay the remainder to the victim and the defendant, the remainder 206.

C. Criminal complaint of the victim and disposition against the defendant

1) On April 20, 2007, the victim filed a fraudulent complaint on the grounds that the defendant, in collusion with Q, R, N, P, andO, by deceiving the victim without the intention or ability to pay the apartment price and did not pay the intermediate payment and the balance. However, the Seoul Central District Prosecutors' Office: ① paid the defendant in excess of KRW 30 million as incidental expenses; ② the victim transferred the ownership of the apartment of this case to M on May 18, 2006, he seems to have been aware of the fact that the defendant had already trusted the building and land of this case to M as a matter of course; ③ the defendant should have established a collateral mortgage to secure intermediate payment to M on May 9, 2006 without the victim’s consent, and ③ if the defendant title trust the real estate to M without the victim’s consent on May 20, 2006, it would be difficult to recognize that the defendant did not directly acquire the remaining office 200 million won (the remaining office 200 million Won was 4.75 billion won.

2) The victim appealed against the above non-prosecution decision, but the appeal was dismissed, and the application for the Seoul High Court's ruling was also dismissed on April 4, 2008 and became final and conclusive around that time.

(208 early 260).2

3) In around 2007, the victim complained against the charge of fraud on the grounds that the defendant conspireds with U, V, W, etc. to the Seoul Northern District Prosecutors' Office and was rendered a favorable judgment by deceiving the court in the Seoul Western District Court 2007Gahap422 case. However, the Seoul Northern District Prosecutors' Office dismissed the complaint on March 26, 2012 on the ground that it is impossible to hear the complainant's statement (No. 6641).

4) On March 15, 2012, the victim filed a complaint against the Defendant, P, M, X, Q, Q, R, H, U, Y, V, V, W, and Z on the charge of fraud related to the implementation of the instant sales contract, and the lawsuit in the above Seoul Western District Court Decision 2007Gahap422, Seoul Western District Court, but the Seoul Central District Prosecutors' Office paid the down payment amount of KRW 390 million and the intermediate payment and the incidental expenses of KRW 60 million, which was KRW 547,770,000,000,000 out of KRW 60,000,000,000 for the land other than the instant apartment, ② The right to collateral security was established only on the land other than the instant apartment, ③ The sales contract cannot be deemed to have acquired the proceeds by deceiving the victim, and ④ the statement and decision of dismissal by the U, Y cannot be deemed to have been newly discovered for the reason that there was no significant evidence related to the instant fraud (2014.25).

5) Accordingly, on October 22, 2012, the victim filed an appeal (2012, 10576). The Seoul High Prosecutors' Office issued a second investigation order on November 201, 2012, and the prosecutor examined the victim as witness on March 2013;

After additional examination of the defendant, M, P, X, Q, and AA, the defendant was indicted for the instant case on April 8, 2013, and the rest of the suspect was subject to a disposition not to be suspected of suspicion (defluence of evidence).

5. Determination

A. In light of the following circumstances acknowledged by the record as a result of the examination of existing evidence as to the facts charged of this case, it is difficult to view that the Defendant did not have any intent or ability to implement the registration at the time of the conclusion of the sales contract, solely on the ground that the Defendant did not pay part of the circumstances, part of the intermediate payments and incidental expenses, or refused to pay the balance on the ground of the failure to satisfy the right to collateral security at the national

① It is reasonable to view that the Defendant, on May 9, 2006, completed MB ownership transfer registration on a building on the AB as a tool to reduce transfer tax, and that it does not constitute a purpose to avoid the obligation to create the instant right to collateral security. MDo also agrees to create the victim’s right to collateral security on the building and keep relevant documents in the I certified judicial scrivener office.

② The value of AB’s land, K, and 608, and 609, which are the remainder of the secured real estate except the AB building, is sufficient to secure the intermediate payment and incidental expenses of the victim. In fact, the reason why the establishment registration of a mortgage is not completed is that the victim actively paid the registration cost and did not request it.

③ The Defendant agreed to pay an intermediate payment and incidental expenses upon a victim’s request without specifying the date for the payment of intermediate payments and incidental expenses, and paid KRW 547,77 million corresponding to most part of the intermediate payments and incidental expenses requested by the victim.

① In the case of the remainder of the obligation, the instant sales contract did not specify the period for repayment, and the victim decided to link the Defendant with the settlement of the secured obligation against the instant apartment site under the name of the National Bank on the instant apartment site. Each apartment of the instant case has a risk of not being guaranteed the Defendant’s ownership due to not only the aforementioned right to collateral security, but also the provisional disposition, provisional seizure, etc., and the third party’s fact that each of the instant apartment premises is in danger of not being guaranteed the Defendant’s ownership. Therefore, it was difficult to expect that the Defendant would pay

3. Meanwhile, unlike the agreement, the victim did not express the apartment to the defendant, and the defendant, from December 2, 2006 to March 2, 2008, left the apartment in direct agreement with the possessor of the apartment of this case, and the victim recognized the expenses incurred by the defendant as expenses incidental to the expenses incurred by the defendant.

6) Around September 2006, the victim requested the Defendant to negotiate with the National Bank and pay any balance amounting to KRW 2.4 billion. However, the Defendant did not present objective data on the conclusion of the agreement, and in fact, the negotiations with the National Bank were not concluded with the National Bank. The Defendant independently proceeded with the negotiations with the National Bank on the ground that the victim declared the termination of the contract on September 20, 2006 and the contact was interrupted.

7) The Defendant’s resale of each of the instant apartment units to N,O, P, Q, and R is not intended from the beginning to acquire apartment units by acquiring them in good faith after the rescission of the instant sales contract, but rather to obtain profits by resale of the apartment units acquired by the Defendant on the premise of the normal implementation of the instant sales contract.

B. The evidence submitted following the decision to dismiss the application for the ruling of this case is admitted as evidence; the victim's defense counsel stated the above Seoul Central District Prosecutors' Office 2012-type 56427 rejection as "new material evidence after the decision to dismiss the application for ruling of this case"; the Seoul Western District Court 2008Na17207 decided; the victim's statements, Y, AC and AD's respective statements; H's respective statements; the Seoul Central District Court 2010Ka6210 decided; 207Ma422 decided; U's written statements and recording; 201-type 42 decided; 201-type 72 decided; 201-type 207Da21407 decided on the Seoul Western District Court; 204 decided on the Seoul Western District Court 201-type 2067 decided on the 201-type 2014 decided on the 201-type 2014 decided on the evidence of each case.

Among them, the testimony and statement of the victim does not contain a new content to support the facts charged for the same purpose as that of the existing investigation record, and it was already investigated or could have been investigated before the decision to dismiss an application for adjudication. Each statement of Y and AD is about a separate case (such as the defendant's accusation and murder, etc. against the victim) that is not directly related to the facts charged, and the statement of AC is also related to the non-registration resale, and it is not related to the facts charged of this case.

In addition, the facts charged in the instant case are not directly related to the facts (in fact, whether the victim has a legitimate right to receive the price by concluding the instant sales contract, and the terms and conditions of the H’s contract and provisional registration) that are submitted in the course of the previous investigation, excluding the written judgment, the records of the instant case, the testimony of H and AF, and written statements.

The respective statements, etc. of U and E, related to the facts charged, is a part that the defendant had no intent and ability to pay the purchase price. However, this is merely a vague trend that is not based on objective facts, or it is inconsistent with the results of examination of existing evidence under Paragraph (a) of the above Article, which are the premise of the decision to dismiss an application for adjudication and the decision to dismiss the application for adjudication, and is thus inconsistent with the credibility and credibility thereof. In full view of each of the above evidence, it cannot be deemed as a new evidence to the extent that the conviction of guilt is ensured. This also applies to the evidence additionally examined after M, P, X, Q, AA, etc.

The Seoul High Court Decision 2008Na 17207 decided on the interpretation of the instant sales contract and the validity of the Defendant’s breach of contract and the cancellation thereof in terms of civil legal relations. It is only based on facts revealed during the investigation process, and does not otherwise determine based on new evidence and findings based thereon. Furthermore, it does not include the contents on the Defendant’s deception or intent to defraud, etc. Furthermore, the Defendant paid the victim the remainder of 4.5 billion won with the exception of the remainder of down payment and intermediate payment. Furthermore, the Defendant paid the victim the remainder of 17 households of apartment subject to purchase, which is much more than the remainder of the above remainder, 5.6 billion won, provisional attachment, temporary injunction, collateral security, etc., and in some cases, the Defendant’s position did not constitute the Seoul High Court Decision 200Da16200 decided on the ground that it was difficult to view that the Defendant did not directly acquire the ownership of the said apartment subject to purchase and sale contract or the evidence of the Seoul High Court Decision 2000Da16220 decided on the grounds of this case.

6. Conclusion

The defendant was investigated by the investigative agency for seven years in the instant case. The victim was investigated by the investigative agency on October 2007, and the defendant was ruled not to have any suspicion (defluence of evidence) and the appeal was dismissed on April 2008, and was dismissed on April 3, 2012, the defendant filed a second complaint with the same content, and was dismissed on August 201, 201, and the appeal was dismissed on August 8, 2012.

However, even if the newly discovered evidence was examined in addition to the newly discovered evidence after the decision to dismiss an application for adjudication in this case, it cannot be deemed that the facts charged in this case constitute a sufficient conviction. Therefore, the indictment in this case violates Article 262(4) of the Criminal Procedure Act, and the indictment in this case constitutes a violation of Article 262(4) of the Criminal Procedure Act, and thus, the prosecution in this case is dismissed in accordance with Article

presiding judge, judge, full-time leaves

The number of judges

Judges Doo-leap

1) However, since the remaining Defendants constitute a third party under Article 548(1) of the Civil Act and thus have no effect of rescission, they determined that their claims are groundless.

2) A decision to dismiss an application for adjudication is not allowed except for reappeals (Immediate Appeal) under Article 415 of the Criminal Procedure Act (see, e.g., the first sentence of Article 262(4) of the Criminal Procedure Act; the Constitutional Court Order 2008Hun-Ma578, Nov. 24, 201); and it seems that the decision to dismiss the application for adjudication of this case becomes final and conclusive around that time because there is no reappeal