(영문) 서울고등법원 2014.12.19.선고 2014노2995 판결

A. The court below recognized the admissibility of evidence by misunderstanding the legal principles on the revenue from fake foreign currency (E's admissibility of evidence) in view of the fact that the statement of investigation agency E, which the defendant did not consent to the admissibility of evidence, was unable to attend and make a statement in the official ruling and constitutes "when it is proved that it was made in a particularly reliable state" under Article 314 of the Criminal Procedure Act. However, the statement of investigation agency E is clearly contrary to the F and Y's original statement, ② its statement is reversed several times, and it is not consistent, ③ although there is a possibility that E might have violated its responsibility to the defendant, the defendant was not given an opportunity to reply to the unilateral argument of E, and ④ there is no proof of special circumstances, and thus, it is not admissible.

B. misunderstanding of facts as to counterfeit foreign currency revenues

The criminal day indicated in this part of the facts charged is the time when E, F, an accomplice, was aware of the defendant, and E, E, F traded fakes without the involvement of the defendant, and even related persons, such as Y and F, made a statement to the effect that they traded counterfeited USDs without the involvement of the defendant. Thus, the defendant cannot be deemed to have participated in this part of the crime.

The case of ‘Modern item removal construction' is that AV directly talks with AA and Z, and the defendant only delivered money, and there was no deception of the victim G by misrepresenting the relative of the AW Chairperson. In addition, there was no pecuniary benefit of the defendant.

D. misunderstanding of facts as to the fraud against victim N,0, etc.

The defendant did not have any fact that the victims other than the victim N, R, andO did not contact with the victims, and the persons who recommended them to make investments and received funds from them are victims N, R and Q, and there was no fact that the defendant deceivings the victims. The defendant did not receive any money from the victim N, R, and the defendant did not receive a letter of borrowing KRW 160 million from September 27, 2006 without receiving the money to obtain investors' trust related to the new business. The letter of borrowing KRW 160 million from September 27, 2006 was prepared and delivered without knowing the fact that the defendant received the money from the victim's Dong L and AB. Thus, the defendant did not receive the money from the victims.

E. Unreasonable sentencing

The punishment (two years and six months of imprisonment) imposed on the accused by the court below is too unreasonable.

2. Determination

A. Judgment on the misapprehension of legal principles as to forged foreign currency earnings

1) “When the statement or preparation is made under particularly reliable circumstances” as referred to in Article 314 of the Criminal Procedure Act refers to cases where there is little room for false intervention in the preparation of the contents of the statement or the protocol or documents concerned, and specific and external circumstances exist to guarantee the credibility or voluntariness of the contents of the statement (see, e.g., Supreme Court Decision 2006Do9561, Apr. 14, 2006). Furthermore, in cases where Article 314 of the Criminal Procedure Act is unknown where the relevant witness’s statement or written statement is admissible, it is difficult to recognize the admissibility of evidence of the written evidence, such as the statement or written statement by the relevant witness under Article 312 or 313 of the Criminal Procedure Act, only if such strict conditions are met, such as guarantee of the right of cross-examination of the accused or his defense counsel, so that the admissibility of evidence can be acknowledged without any opportunity to cross-examination on the basic principles, such as direct examination, etc., conducted within 2014 square meters of evidence.

2) In light of the aforementioned legal principles, considering the following circumstances acknowledged by the evidence duly adopted and investigated by the lower court, it can be recognized that there was a specific and external circumstance that sufficiently guarantees the credibility and arbitability of the statement, and that there was proof to the extent that reasonable doubt was excluded from the scope of doubt, in particular, under particularly reliable circumstances as stipulated in Article 314 of the Criminal Procedure Act.

① From May 29, 2008, E made a statement to the same effect as consistently in the interrogation of the suspect, which was conducted six times more than six times from the prosecution, to the same effect. Inasmuch as E has a level of recognizing one’s act of taking part in the receipt of counterfeited USD by such a statement, E has a high credibility of the above statement that he/she had been under his/her punishment. Furthermore, from the perspective of E, even if he/she was given a counterfeited USD from other than the Defendant (infinites introduced by F according to the Defendant’s assertion, there is no reason to regard the Defendant as the delivery of fake USD consistently, even if it is not true.

② The Defendant, at his apartment building located in the Chinese Cheongdo, provided forged USD AX and Y, etc. three times in China to E and F, and argued that he merely introduced them. However, there is no reasonable explanation as to why such an act should have been done in the Defendant’s house without the involvement of the Defendant, and it is difficult to believe that the Defendant’s explanation was made.

③ In the interrogation of suspect, E’s explanation was made in detail without any contradictions before and after confirming the forgery of the Defendant’s 10 foot 100 foot from the Defendant, or purchasing the lapsying machine in Seoul, etc., and then making a separate statement in detail without any direct experience. Furthermore, the aforementioned statement in E is consistent with F’s statement (271,278,353 pages, etc.), and is supported by objective data such as pictures (191, 201, 201, 208, 201, 201, 201, 201, 201, 201, 201, 201, 201, 201, 201, 201, 201, 201, 201, 201, 201, 201, 201, 201).

④ The Defendant alleged that Y purchased USD 1 from E did not receive a false offer or forged offer from the Defendant, and the Defendant testified clearly that there was no mentioning fact in relation to USD 10,207. However, the Defendant stated at the police that Y would not make any offer if the Defendant had any money at the time when Y met with the Defendant and China (130,205 pages of investigation records No. 2013Da398), and at the prosecutor’s office, Y stated that Y would have any money if Y appears to have ‘E' (2013Da398, 348, the investigation records No. 2013, 208, 2000). However, the lower court stated that Y would have a direct statement about USD 100,000,000 and Y270,000,000,000,000,000).

⑤ The Defendant clearly testified that F had been present as a witness in the lower court and stated that E had not been given forgerys from the Defendant. However, F made meals at the Defendant’s house located in China’s Cheongman on September 2007, and at the time, the Defendant appeared in the warehouse “I can use the 100 US dollars 100 US$ 20. At this time, I can use the f.m. from the warehouse.” The phrase “I am out of the warehouse? I am? I am am ? I am ? I am ? I am ? I am ? I am ? I am ? I am ? I am ? I am ? I am ? I am ? I am ? I am ? I am ? I am ? I am ? I am ? I ? I am ? I am ? I ? I am ? I am ? I ? I am ? I ? I am ? I ? I will see ? I ? I ? I ? I would am am ? I will............................

④ The Seoul Central District Court case No. 2008Da614 decided March 15, 2013, and the Seoul High Court case No. 2009Do284 decided May 23, 2007; and the prosecutor’s office and the court of appeal recognized E’s above prosecutor’s office and the court’s statement through such process and punished E, etc. As such, the above statement of E is deemed to be reliable in terms of the procedural aspect where various newspapers were conducted. Meanwhile, the defendant was found to have left China on April 27, 2006 and did not enter the Republic of Korea for seven years from the time when it was discovered to be illegal aliens in China on March 15, 2013. This is ultimately attributable to the defendant’s violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, and thus, the defendant did not appear to have been aware of the illegal aliens in Korea.

3) Therefore, the defendant's above assertion disputing the admissibility of evidence of the testimony of investigation agency E is without merit.

B. Determination of misconception of facts as to counterfeit foreign currency revenues

In light of the following circumstances acknowledged by the evidence duly adopted and investigated by the court below, the court below's judgment that found the defendant guilty of this part of the facts charged is justified, and there is no ground for this part of the defendant's assertion.

(1) As seen earlier, E is a concrete and consistent statement that he/she received the above USD from the Defendant in China in the prosecutor’s statement, etc., and thus, he/she may recognize its credibility.

F also stated in the prosecutor's office and the court below's court that there was little amount of US dollars 100, and that the defendant was the total manager of the property concealed by AZ, and that he was talked about the Z, and made a statement supporting E's statement.

③ At the prosecutor’s office, “E has received USD A from the head of the Chinese Congress, and the name of the president “A” was known to the police investigation.” (2013Dahap398) and “A” made a statement to China around September 27, 2007, around September 27, 2007, in order to return the US dollars received from A as of July 27, 2007. At that time, Cheongdo and Cheongdo Cheongdo Do Do Do Do Do Do Do Do Do. At that time, Do Do Do Do Do returned USD to A and Do Do Do Do Do Do Do Do Do Do was changed to the US available in Korea, and Do Do Do Do Do Do Do Do Do Do 2013Da3984 was also changed to the actual number of US dollars Do Do Do 2013.

① Meanwhile, the Defendant points out that the criminal day indicated in this part of the facts charged is the time prior to knowing E and F, and it appears that E appears to have made a statement by mistake as to the time when the Defendant was introduced by the police. However, in relation to this, E’s statement after the prosecutor’s office corrected the time and made a statement in compliance with this part of the facts charged, this corresponds to E’s entry and departure records (the investigation records of No. 2013No. 398 less than 65 pages). Moreover, as seen earlier, the Defendant vindicates to the effect that E, etc. was issued to Chinese people, and thus, it is recognized by himself as to the fact that the Defendant was aware of E, etc. before that time.

(5) In addition, as seen earlier, Y, F, etc. stated to the effect that the Defendant would deliver counterfeited USD E. In addition, the circumstances that E and F received forged USD from another person other than the Defendant do not interfere with recognizing the Defendant’s facts of the crime in this part.

C. Determination on the mistake of facts against the victim G

The court below found the defendant guilty of this part of the facts charged on the ground that the victim G police and the court below's oral statement in the court below, etc. are not reliable. In light of the following circumstances acknowledged by the evidence duly adopted and investigated by the court below, the above judgment of the court below is just and acceptable, and there is no error of law of misunderstanding of facts as alleged by the defendant.

① The Defendant received the specifications of removal from Z and BB to the victim G during the interrogation of suspect, and recognized that 100 million won stories were given and received funds from the victim G (No. 122, 125, 126 of the investigation records No. 2013Gohap549).

② On December 9, 2005, the confirmation of the monetary lending relationship between the Defendant and the victim G, prepared and sealed by the Defendant and signed and sealed by the Defendant on December 9, 2005, includes the content that the victim G lends KRW 100 million to the Defendant in relation to the said construction, and that the Defendant shall offer real estate owned by the same living L as security (Article 1, 1, 123, 2, 5 of the investigation record No. 2013, 2049). In addition, the written consent to change the conditions of the confirmation of the above monetary lending relationship prepared to change the conditions of the said written consent to change the terms and conditions of the said written consent on December 16, 2005, stating that the amount was changed to KRW 47 million (Article 1, 124, 2, 6 of the investigation record No.

③ The fact that the Defendant received KRW 3 million from the Victim G around December 19, 2005 by a copy of three copies of the check (No. 2. 8 of the investigation records No. 2013Gohap549) in his/her own right of KRW 1 million, one million issued by Han Bank dated December 19, 2005, signed by the Defendant, may also be recognized.

④ The victim G made a statement to the effect that “the Defendant was unaware of the Z at all at the time of the entry of money.” The Defendant included only the account in the passbook, which would cause the entry into a low account” (the trial record 108 pages). The victim G appears to have transferred money to the account designated by the Defendant. Even if the Defendant transferred the said money to the Z and BB, it is nothing more than the situation after the Defendant acquired the said money.

D. Determination of the misapprehension of facts against the victim N,O, etc.

The court below found the defendant guilty of this part of the facts charged by taking into account the macroficial evidence, by deceiving the victims directly or indirectly, and convicted him of this part of the facts charged. In full view of the following circumstances recognized by the evidence duly adopted and investigated by the court below, such judgment of the court below is just and acceptable, and there is no error of law of misunderstanding of facts as alleged by the defendant.

(1) Q, as the Defendant, intended to carry out a joint business related to new materials with the funds to dispose of the Chinese yellow relics, was a general manager in charge of the Defendant frequently found from March 2006 and conducting a business related to the yellow relics in China, and was explained in a bank, and had an interest in water disposal. The Defendant jointly carried out new materials in China and Korea with the funds raised therefrom. The Defendant, as the Defendant, entered a mountain, made an organization of the Chinese representative Q, the Asian representative Q, the American representative AG, and the Korean representative BC, and made a consistent statement on September 2006 that the Defendant’s new materials were to be disposed of by the Chinese company, including the following: (a) the Defendant’s considerable amount of funds raised from the Chinese company; and (b) the Defendant’s new materials were to be jointly carried out by the Chinese company.

(No. 2, 301, 302, 389, 390 to 392, 3, 112, 113, 40 pages of investigation records of heading 2013, 2013.

② The victim N,O, R, U,V also stated at an investigation agency or court of the lower court that he provided money as stated in this part of the facts charged, directly or by account transfer from the Defendant, L or Q to the Defendant or L. This conforms to the above statement of Q. The Defendant attempted to operate a new business and to attract investors, and argued that Q and Q and Q and Do-friendly BE, which were trying to be interpreted as interpretation, made an investment in the Chinese Yellow Book and deceiving the victims by deceiving the victims. However, if L were to invest in the Defendant’s new business, 30,000 won, 40,000 won, 76,000 won, which were delivered by the victim N,O, etc., and 30,000 won, 50,000 won, 20,000 won, 30,000,000 won, 30,000,000 won, 30,000,000 won.

③ Meanwhile, even though L has performed the role of delivering the victims’ investments to the Defendant according to the direction of the Defendant in relation to the Chinese Yellow Dust business, L was transferred a sum of KRW 76 million from the victims to the victims’ own AF account or to the designated accounts of L, or received each through AB (No. 2013 high-class 950 pages 2, 162, 179, 180 pages), L’s AB’s statement to the investigation agency, the professor of L, and “L was working to translate the U.S. certificate of deposit or all kinds of certificates of certificates of deposit which are the Chinese Yellow Dust’s property (No. 3rd 950 pages of the investigation records No. 2013Gohap950), “The right to talk related to the Chinese Yellow Dust was also the same location at the time of the Defendant in China,” and “The right to talk from the victim N, U.S. 20, V. 293, 2904, 29325-134, 29451.

① In addition, with respect to the Defendant’s direct contact of the victims N, R,O, and other victims, “five persons, including N, Denial, two women, and one male and female, have been in Korea at the time when the Defendant met the Victim N in China” (No. 1st right 74 of the investigation records No. 2013Gohap950) and “No. 1st right 74 of the investigation records No. 2014) of the Defendant’s police statement (No. 1st right 750 of the investigation records No. 1st right 74 of October 3, 10), there was a fact that R, T, U, U, U, and U.S. had been released from the Defendant’s office around the north.” The Defendant’s statement by the police (No. 2013 high-class950) of the Defendant’s police (No. 240, 333,101 of the investigation records No. 950), the Defendant’s statement that the Defendant directly shows or the goods are the victim’s police record No. 6360, U. 29652, 2965-1-650, U.

⑤ As to the fact that the Defendant received a total of KRW 177 million from the victims directly or through L, the Defendant, around September 27, 2006, may consistently obtain a loan certificate of KRW 160 million (No. 4 right of KRW 950,000 issued to the victim N orO (No. 4 right of investigation records No. 2013hap950), and the victim N directly deliver the amount to the Defendant in China from the victim N around September 28, 2006, KRW 20,000 and KRW 40 million (No. 246,330 of the investigation records No. 200, Sept. 29, 2006) from the victim N to the victim’s account of KRW 160,000,000,000,000 from the victim’s account or KRW 761,706,000,000,000 from the investigation agency or the victim’s account.

E. Determination on the assertion of unfair sentencing

The crime of forging foreign currency revenue of this case was imported by the defendant in collusion with E, etc. 80 million Won which was forged over three times. The crime was committed and the amount of the defendant's participation is small, and the crime related to fake currency is impairing the distribution order by impairing the safety and public credibility in the transaction of currency which is the basis of economic life. When counterfeit currency is distributed, there is a risk of multiple victims if counterfeit currency is distributed, and there is a very high risk of social harm and danger. In addition, in the case of each fraud of this case, the amount of defraudation was about KRW 270 million + KRW 170 million + KRW 270 million + KRW 170 million ( KRW 30 million) + KRW 20 million + KRW 177 million + KRW 70 million, and the defendant was punished several times, including the same kind of fraud and securities forgery, before the crime was executed, and the defendant was not punished for the last five years but for each of the crimes.

However, it appears that the forged USD imported is not actually distributed in large quantities, the defendant is against the fact that the defendant has committed fraud against the victim M late at the court of the court of the court below, and in the case of the crime of fraud against the victim G, the actual amount of profit of the defendant seems not to have been considerable since considerable part of the fraud amount was reduced beyond Z, etc., the victim G and M expressed their intent not to be punished against the defendant, the defendant is suffering from all kinds of diseases, such as pulmonary tuberculosis, etc. due to the age of 69 years old at the present, and the health condition of the defendant's age, family relations, criminal records, criminal records, character and conduct, environment, means and methods of the crime, and circumstances after the crime, etc., the defendant's punishment imposed by the court of the court below is unreasonable. Thus, this part of the defendant's assertion is justified.

3. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the following is ruled again

Criminal facts and summary of evidence

The summary of this court's criminal facts and their evidence is as follows: "Transfer of L's AE account designated by L' among the crimes listed in the [Attachment] No. 4 in the judgment of the court below to AE account designated by L'; 1. In the summary of the evidence [2013 Ma398], "part of the protocol of examination of the defendant in the prosecution against B", "1. Investigation report (verification of multiple facts)", "A's direction on entry", 1. 1. 1. 1. 6. 6. 1. 1. 1. 1. 3. 6. 3. 6. 6. 6. 2. 2. 3 of the court below's protocol of examination of the suspect as witness's witness's witness's statement in the 10th trial record," 2013 / 549 / 2013 / 36. 4. 1. 5. 5. 5. / 1. /6. 5. /6 of each of the suspect interrogation protocol of the suspect interrogation protocol as evidence.

Application of Statutes

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

Article 10 of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 10210, Mar. 31, 2010); Article 207(4) and (2), and Article 30 of the Criminal Act [the importation of counterfeited foreign currency and choice of limited imprisonment: Provided, That the maximum punishment shall be 15 years of imprisonment provided for in the main sentence of Article 42 of the former Criminal Act (Amended by Act No. 10259, Apr. 15, 2010; hereinafter the same shall apply]; Article 347(1) of each Criminal Act (each fraud means fraud; Ga, N, and R2) of the Criminal Act (Amended by Act No. 10210, Apr. 15, 2010); Article 347(1) of the former Criminal Act

1. Aggravation for repeated crimes;

Article 35 of each Criminal Code (Provided, That the proviso of Article 42 of the former Criminal Code shall apply to each violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Forgery)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2 and Article 50 of the Criminal Act and Article 1-3 (C) of the Judgment with the largest number of crimes

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act ( considered as favorable circumstances among the grounds for sentencing)

Judges

The presiding judge Kim Gung-jin

Judges Lee Jong-chul

Judgment of the Supreme Court

Note tin

1) The trial date of the Seoul Central District Court case 2008Gohap614

2) The victim N and R are married couple and they appear to have delivered the joint property of the married couple under the pretext of investment to the defendant. As such, the damage law

As it can be seen that the benefits are the same, the part of the fraud crime against the victim N and R is considered to be a single crime.

심급 사건

-서울중앙지방법원 2014.9.26.선고 2013고합398

서울고등법원 2014.12.19.선고 2014노2995

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