Defendant 1 and one other

Both parties

Kim Yong-sik, supreh, half-in, gambling (prosecutions), leaptains (trials)

Law Firm, et al.

1. Incheon District Court Decision 2015Gohap770 Decided May 25, 2016 / 2. Incheon District Court Decision 2015Gohap6796, 6985, 7278 (Joint) and 2016Gohap961 (Consolidated) (Joint)

All convictions in the judgment of the court of first and second instance shall be reversed.

Defendant 1 shall be punished by imprisonment for three years.

Of the facts charged in the instant case, the prosecution against the employee Nonindicted 4 on the violation of the Labor Standards Act due to the payment of wages in August 2015 is dismissed.

The prosecutor's appeal concerning the portion not guilty among the judgment of the court below is dismissed.

1. Scope of the judgment of this court;

The second instance court sentenced the dismissal of prosecution on the part of the facts charged as to the violation of the Labor Standards Act and the violation of the Guarantee of Workers' Retirement Benefits Act. The prosecutor did not appeal against this, and the Defendant appealed against the conviction part of the second instance judgment. Thus, the dismissal part of the second instance judgment was excluded from the scope of the judgment of this court, since it was separated and determined as the appeal period.

2. Summary of grounds for appeal;

A. Defendant 1

1) misunderstanding of legal principles (the part of the judgment of the court of first instance guilty)

A) Even if the Defendant: (a) donated KRW 3 million to Nonindicted 1, 2, and 3 (hereinafter “Nonindicted 1, etc.”) each of the contributions; and (b) completed the registration of incorporation with the authorization for the establishment of Nonindicted 5 (hereinafter “instant association”) by Nonindicted 1, etc., the Defendant does not constitute the registration of incorporation by false or other unlawful means, regardless of whether the grounds for corrective order, revocation of the authorization for establishment, or imposition of fines for negligence exist.

B) The instant association is qualified to establish a medical institution because there is no defect in the registration of incorporation, and the Defendant was paid medical care benefits by establishing and operating a Council member with the legitimate ○○○○○○○○○○○ in the name of the instant association, △△△△△△△△△△△, △△△△△△△ Hospital (hereinafter “instant hospital”). As such, not only violates the Medical Service Act, but also constitutes a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), and fraud

C) Therefore, the first instance judgment convicting of this part of the facts charged is erroneous in the misapprehension of legal principles.

2) Unreasonable sentencing

The punishment sentenced by the court of first and second instance (the first instance court's imprisonment with prison labor for four years and the second instance court's imprisonment for eight months) is too unreasonable.

(b) Prosecutors;

1) misunderstanding of facts and misunderstanding of legal principles (not guilty part of the judgment of the first instance)

With the absence of a security for KRW 300 million, the victim believed the Defendants’ deposit return and the promise to guarantee the normal payment of food, and entered into an agreement on the entrusted operation of the restaurant (hereinafter “instant entrustment agreement”) with △△△ Hospital Hospital Hospital Hospital. The Defendants did not have the ability to guarantee the three-year contract period and to return or pay the deposit and food. Therefore, even if the facts charged were found guilty, the court below erred by misapprehending the legal principles and misapprehending the legal principles.

2) Unreasonable sentencing

The punishment sentenced by the court below to Defendant 1 is not reflected in the above fraud.

3. Determination

A. Ex officio determination

1) The first and second judgment against Defendant 1 was rendered, and the prosecutor filed an appeal against each of the convictions in the first and second judgment, and this court decided to hold a joint hearing of each of the above appeals. Since the first and second judgment against Defendant 1 is in a concurrent relationship under the former part of Article 37 of the Criminal Act with regard to the concurrent crimes under Article 38(1) of the Criminal Act, one of the convictions in the first and second judgment of the court below cannot be maintained.

2) Of the facts charged in the second instance judgment, as to the violation of the Labor Standards Act due to the payment of wages in August 2015 to the employee non-indicted 4, this is a crime falling under Articles 109(1) and 36 of the Labor Standards Act, which cannot be prosecuted against the victim's explicit intent pursuant to Article 109(2) of the Labor Standards Act. However, according to the records, it can be acknowledged that Non-indicted 4 withdrawn his wishing to punish Defendant 1 on January 27, 2016, prior to the pronouncement of the judgment of the second instance (the non-indicted 4 was prosecuted two cases on the non-indicted 4's payment of wages, and Non-indicted 4 appears to have expressed his intention not to punish both the two cases, but the court below should dismiss the prosecution pursuant to Article 327 subparag. 6 of the Criminal Procedure Act. This part of the facts charged and the judgment below found Defendant 2 guilty on the grounds that Article 27 of the former part of the Criminal Procedure Act and Article 21 of the remainder of the facts charged is reversed.

3) Despite the existence of the above reasons for ex officio destruction, Defendant 1 and Prosecutor’s assertion of misunderstanding of facts and misapprehension of legal principles are still subject to the judgment of this court, and we will

B. Judgment on Defendant 1’s assertion of misapprehension of the legal principle

1) The Defendant asserted the same purport as this part of the allegation in the first instance judgment, and the first instance court found the Defendant guilty of all of the charges by providing a detailed statement on the decision.

2) Violation of the Consumer Cooperatives Act

In light of the following facts and circumstances acknowledged by the evidence duly adopted and examined by the court below, the judgment of the court below of first instance is just and there is no error in the misapprehension of legal principles as alleged by the defendant.

① The Defendant lent the name of Nonindicted Party 1, etc. to Nonindicted Party 1 and Nonindicted Party 3 as a director of the instant association, and paid the investment money under the name of Nonindicted Party 1, etc., but Nonindicted Party 1, etc. did not participate in the establishment of the instant association. Therefore, it cannot be deemed that the Defendant lent or donated the investment money to Nonindicted Party 1, etc. In the end, the Defendant’s number of contribution units exceeds the limit of contribution units stipulated in Article 15 of the Consumer Cooperatives Act (hereinafter “Consumer Cooperatives Act”). The Defendant submitted a false investment certificate and a false list of executives to obtain authorization for the establishment of the instant association. Based on this, the Defendant completed the establishment of the instant

(2) Article 82 (1) 1 of the Trade Union Act provides that the authorization for establishment may be revoked if the authorization for establishment has been obtained by fraud or other improper means (Article 82 (2) 2 of the same Act). Article 88 (2) 2 of the same Act provides that an administrative fine may be imposed if the authorization for establishment has been obtained by fraud or other improper means (Article 85 (2) 3 of the same Act).

③ According to the Biological Cooperation Act, except as otherwise provided for in the above Act, the provisions concerning incorporated associations in the Civil Act shall apply mutatis mutandis (Article 12) and Article 33 of the Civil Act shall be established upon the registration of incorporation at the seat of its principal office. Thus, the instant association shall be established upon the completion of registration of incorporation pursuant to Article 22 of the Biological Cooperation Act.

④ Considering the fact that the establishment of an association is invalidated without registration of incorporation within three months from the date of authorization for establishment (Article 22(1) of the Mutual Cooperation Act), the establishment of an association is authorized to be established by registering the establishment thereof by false or other unlawful means, and the establishment of an association by registering the establishment thereof at the preceding stage is considerably larger than that of authorization obtained by false or other unlawful means, it may be deemed that even if a defendant registers the establishment in accordance with the authorization obtained by obtaining authorization for establishment by false or other unlawful means, such registration constitutes a case where the establishment is registered by false or other unlawful means.

3) Violation of the Medical Service Act, violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and fraud

제1 원심이 적법하게 채택하여 조사한 증거들에 의하여 인정한 그 판시와 같은 사정들에다가 위 증거들에 의하여 인정되는 다음의 사정들, 즉 ① 이 사건 조합의 출자금 총액은 3,061만 원에 불과한데, 이 사건 조합 명의로 동시에 최대 3개의 병원이 개설·운영된 점, ② 피고인이 지인으로부터 빌린 돈 등 피고인의 자금으로 ○○○한의원, △△의원의 인테리어비용, 의료장비 구입비용, 임대차보증금 등을 지불한 점, ③ 피고인은 종전에 공소외 9가 운영하던 ☆☆☆의원의 채무를 승계하는 조건으로 이를 인수하여 ◎◎◎◎병원을 개설하였고, 공소외 9가 운영하던 또 다른 병원의 매출 3%를 이 사건 조합이 받는 조건으로 이 사건 조합 명의로 ◇◇◇◇병원을 개설한 점, ④ 앞서 본 바와 같이 이 사건 조합의 설립등기가 허위 또는 부정한 방법으로 마쳐진 점 등을 더하여 보면, 의료기관을 개설할 수 없는 피고인이 이 사건 조합의 명의로 이 사건 병원들을 개설·운영한 사실을 인정할 수 있으므로 제1 원심의 판단은 정당하고, 거기에 법리오해의 위법이 없다.

C. Judgment on the prosecutor's misconception of facts and misapprehension of legal principles

1) Summary of this part of the facts charged

The Defendants, while giving the victim non-indicted 6 the right to operate the restaurant of the △△△△△ Hospital, guaranteed the contract term of three years even if they received KRW 300 million as the deposit money, and did not have the intent or ability to return the deposit at the time, they solicited the victim to use it as the hospital operating expenses by deceiving the victim to give the right to operate the restaurant and by

On October 2, 2014, Defendant 2 stated that “When operating a cafeteria located in a hospital with a deposit of KRW 300 million, Defendant 2 would be punished by KRW 16 million per month to the victim.” Defendant 2 stated that “When high income is guaranteed without a mold and calculated according to the number of booms offered in a restaurant, food expenses would be paid at the time, and it would not be known that the hospital will continue to be operated in a compromise, the term of the contract shall be three years, and when the contract is terminated, the deposit of KRW 300 million will be returned without a mold.”

Therefore, it received a total of KRW 300 million from the victim on October 2, 2014, including the receipt of KRW 300 million from the victim in cash, and then prepared a contract for the entrustment of facilities in the name of Defendant 1, the representative of the association of this case, around October 17, 2014, which is the outstanding payment date. Accordingly, the Defendants conspired to acquire a total of KRW 300 million from the victim.

2) Determination

A) The first instance court determined that it is difficult to readily conclude that the Defendants, by deceiving Nonindicted 6 of the victim Nonindicted 6, acquired KRW 300 million as a security deposit, even though the Defendants did not have the intent or ability to return the deposit amount of KRW 300 million to Nonindicted 6 at the time of concluding the instant consignment contract, based on the evidence submitted by the prosecutor, with detailed explanation of the basis for the determination in

B) Whether fraud is established should be determined at the time of the act. As such, if a borrower has an intent and ability to repay money at the time of lending money in a loan for consumption, even if the borrower fails to repay money thereafter, this is merely a civil default, and criminal fraud is not established. Therefore, in a loan for consumption, in cases where the lender recognizes the credit status of the borrower in terms of the relationship between the lender and the borrower as well as his/her personal relationship, such as relatives and relatives, and the continuous transaction relationship, and it is anticipated or could have anticipated the risk of delay in repayment or impossibility of repayment in the future, barring any other circumstance, such as the borrower’s awareness of the credit status of the lender, and there is a false fact about the important matters that could have been determined at the time of borrowing the loan for consumption with regard to the specific intent, ability to repay, and conditions of the loan for consumption, it cannot be readily concluded that the borrower, only with the fact that he/she failed to repay the loan properly, had the capacity to repay, or had the intent to commit the crime of defraudation (see Supreme Court Decision 2012Do145

In light of the above legal principles, the first instance court stated the following circumstances acknowledged by the evidence duly adopted and investigated by the court below. ① At the time of entering into the instant entrustment contract, the victim non-indicted 6 stated in the court of first instance that “at the time of entering into the instant entrustment contract, the victim 2 did not provide any security to the victim's first day, and he did not have any property, and that he did not make a decision at his own discretion. The victim's recognition of the security deposit can be held responsible, and the victim did not appear to have been Defendant 2. However, the victim stated that the hospital building was about 10, and it was easily thought that the victim was the victim, and the victim did not appear to have been the victim's sale on the second day of October 2014, the victim was returned to 00 million won again, and the victim did not appear to have been aware of the fact that the victim was the victim's sale on the first day of December and the first day of December 1, 2012, the victim did not appear to have been the victim 10 billion.

4. Conclusion

Therefore, the judgment of the court below of first instance and the judgment of the court below of second instance on the conviction grounds as seen earlier, without examining the allegation of unfair sentencing by Defendant 1 and the prosecutor, are reversed pursuant to Article 364(2) of the Criminal Procedure Act, and it is decided as follows through oral argument. The prosecutor's appeal against the acquittal portion among the judgment of the court of first instance is without merit, and it is dismissed in accordance with Article 364(4)

The summary of the facts of the crime acknowledged by the court of first instance and the summary of the evidence therefor are as follows: “A part of Defendant 1’s statement in the second trial record of January 1 and the second trial record of the court of first instance” shall be deemed as “part of Defendant 1’s statement in the court of first instance and the court of second trial”; “crime 9” in the second trial record of the court of second instance shall be deleted; “The summary of evidence” in the second instance judgment under “2015 Man-Ma6796” in “the summary of evidence” and “the statement of Defendant 1’s statement in arrears” in “2015 Man-Ma7278,” and “the statement of Defendant 1” in the second instance judgment shall be cited as it is in accordance with Articles 369 and 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Article 85 (2) 3 of the former Consumer Cooperatives Act (amended by Act No. 12833, Oct. 15, 2014); Articles 85 (1) 2 and 33 (2) of the Medical Service Act; Articles 87 (1) 2 and 33 (2) of the same Act; Articles 347 (1) of the Criminal Act (amended by Act No. 1283, Oct. 15, 2014); Article 347 (1) of the same Act (amended by Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 1283, Oct. 15, 2014); Article 347 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 12833); Article 109 (1); Article 36 (1); Article 109 (1) of the Labor Standards Act; Article 109 (1); Article 43 (1); Article 43 (1); Article 2) of the unpaid Retirement Allowance Act (1); Article 4 (1) of the Labor Standards Act

1. Commercial competition;

Articles 40 and 50 of the Criminal Code (Punishmenting a worker who has not paid both wages and retirement allowances upon retirement, for a violation of the Labor Standards Act due to unpaid wages for each worker, for a violation of the Guarantee of Workers' Retirement Benefits Act, for a violation of the Guarantee of Workers' Retirement Benefits Act, and for a crime with larger arrears)

1. Selection of punishment;

The crime other than the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud): Imprisonment;

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Article 50 (Concurrent Punishment of Specific Economic Crimes (Fraud) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, which is the largest penalty and penalty)

1. Scope of applicable sentences under law: Three years to forty-five years of imprisonment;

2. Application of the sentencing criteria;

(a) Each violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and each fraud;

[Determination of Punishment] General Fraud> Type 4 (at least five billion won, but less than 30 billion won)

【Special Convicted Person】

[Scope of Recommendation] Basic Field, 3 years to 4 years to 8 years

B. The sentencing guidelines are not set for the remaining crimes.

(c) Standards for handling multiple crimes: Imprisonment with prison labor for at least three years and four months;

3. Determination of sentence;

The circumstances are that the Defendant established the instant association by abusing the Biological Cooperation Act and established and operated the instant hospital in the name of the following: (a) the sum of the medical care benefit costs acquired by deceit from the National Health Insurance Corporation while operating the instant hospital from July 201 to September 2015; and (b) the fact that the relevant employees of the instant hospital were unable to pay wages, retirement allowances, etc. to the relevant employees; (c) however, the Defendant recognized the facts of each of the instant crimes; (d) the medical examination and treatment by the medical personnel in the course of operating the instant hospital; (e) the Defendant was actually performing the medical care benefit cost; and (e) the actual amount of profit gained by the Defendant as a claim for the medical care benefit cost is considerably short of the amount obtained by deceit; and (e) considerable workers were aware of the intention of punishment or received substitute payments, etc. in the final trial.

The sentencing guidelines set by the Sentencing Committee and other factors, such as the defendant's age, character and conduct, environment, motive, means and result of each of the crimes of this case, and the circumstances after the crime, etc., shall be determined as ordered in full view of all the sentencing conditions as shown in the arguments of this case.

Of the facts charged in the instant case, the summary of the violation of the Labor Standards Act with respect to workers Nonindicted 4 is that Defendant 1 is the chief director of the instant association, who is engaged in the medical business with 100 regular workers, who are the operator of the instant △△△ Hospital, and the employee Nonindicted 4-2 retired from the △△△ Hospital in August 2015 did not pay the wages of KRW 334,000 within 14 days from the date of retirement without agreement on the extension of the due date. As seen in the instant paragraph (2), this constitutes a case where the victim expressed his wish not to prosecute a case which cannot be prosecuted against the explicit intent of the victim, and thus, the prosecution on this part is dismissed in accordance with Article 327 subparag. 6 of the Criminal Procedure Act.

Judges Yoon Jin- (Presiding Judge) Lee Jin-young