Defendant

Defendant

Kim Jong-mun

Law Firm Han-do et al.

Suwon District Court Decision 2010Gohap164 decided February 16, 2011

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

However, the execution of the above punishment shall be suspended for three years from the date of the final judgment.

The defendant shall be ordered to provide community service for 80 hours.

1. Summary of grounds for appeal;

A. Legal principles

The court's ruling of recommending reconciliation does not constitute a disposal of fraud.

B. Unreasonable sentencing

The punishment sentenced by the court below (one year and six months of imprisonment) is too unreasonable.

2. Determination

A. Judgment on the misapprehension of legal principles

In a lawsuit fraud, the judgment of the court, which is the defrauded, should have the content and effect in lieu of the victim's dispositive act, and in other cases, there is no act of giving property by mistake (see, e.g., Supreme Court Decision 2000Do1881, Jan. 11, 2002). In the case of a court's ruling of recommending reconciliation, the decision of recommending reconciliation has the same effect as the final and conclusive judgment (Article 231, Article 220 of the Civil Procedure Act). The decision of recommending reconciliation requires the court's decision different from judicial reconciliation or voluntary conciliation, so the decision of recommending reconciliation constitutes a dispositive act with the content and effect in lieu of the victim's dispositive act.

Therefore, we affirm the judgment of the court below as just, and there is no error in the misapprehension of legal principles as alleged by the defendant. Thus, this part of the defendant's assertion is without merit.

B. Determination on the assertion of unfair sentencing

The Defendant appears to have prepared and executed the instant crime in a planned manner, and the amount of damage caused by the instant crime reaches KRW 400 million, and the damage was not completely recovered. As such, the nature of the instant crime is not good.

However, when the defendant was found to have committed the crime of this case in the first instance, and the defendant made an agreement with the buyer of the land of this case who suffered substantial damage from the crime of this case in the first instance, and the buyer did not want to be punished against the defendant. The profit gained by the defendant from the crime of this case is 40 million won, and the defendant made efforts to recover damage by returning it to the non-indicted 6 law firm. The defendant is the first offender, the defendant is aged and is not good, and the defendant is old and healthy, and other various sentencing factors specified in the arguments of this case, such as family environment of the defendant, motive for the crime, and circumstances after the crime, are considered, it is unfair that the sentence imposed by the court below is too unreasonable.

Therefore, the defendant's assertion of unfair sentencing is justified.

3. Conclusion

Therefore, since the defendant's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is decided as follows.

The summary of the facts charged and the evidence presented by this court is the same as the part of the judgment of the court below, and thus, they are cited in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

The point of false entry into the original public electronic record: Articles 228(1) and 30 of the Criminal Act

Article 229, Article 228(1), and Article 30 of the Criminal Act shall apply to any event, such as false entry and electromagnetic records.

each fraud: Articles 347(1) and 30 of the Criminal Code

each attempted fraud: Articles 352, 347(1), and 30 of the Criminal Act

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (Aggravated Punishment between Misappropriation and Attempted Fraud, and Punishment as provided for in the Judgment with which the nature of the crime is more severe)

1. Selection of punishment;

Determination of imprisonment in the punishment prescribed in each of the crimes;

1. Aggravation of concurrent crimes;

Article 37 (Aggravation of Concurrent Punishment as provided in Judgment of Aggravation of Aggravation of Punishment)

1. Suspension of execution;

Article 62 (1) of the Criminal Act (Consideration of favorable Grounds for Sentencing in front)

1. Social services;

Article 62-2 of the Criminal Act

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

Judges Sung-dae (Presiding Judge) (Presiding Judge)