2012 Highest 3869 Fraudulent

2013 initially 335 Application for a compensation order

1. A;

2. B

Kim Byung-Jins (prosecutions) and dives (trials)

Attorney C (for the defendant)

2014,16

Defendant A shall be punished by imprisonment with prison labor for one year and by imprisonment for six months.

However, with respect to Defendant B, the execution of the above sentence shall be suspended for two years from the date this judgment becomes final and conclusive. An application for compensation by the applicant for compensation shall be dismissed.

Criminal History Office

1. On September 8, 2006, Defendant A made a false statement to the victim D at a temporary office of "F" in the Nam-gu, Ulsan-gu, Seoul-gu, Seoul-gu, with G, to the effect that "F joint representative is the same as G, and the said company will be selected as a rebuilding project operator of the E zone." The above company will give priority to allowing the removal project if selected as a maintenance project operator, which would give priority to giving subsidies. However, even if the Defendant is selected as a maintenance project operator, the Defendant had no intention or ability to give the removal project. Nevertheless, the Defendant received from the victim a total of KRW 150,260,00 from the victim by November 8, 2007, including that he received KRW 300,000 from the victim. Accordingly, the Defendant acquired the property by deceiving the victim.

The list of crimes)

A person shall be appointed.

2. Defendant B

On January 22, 2007, Defendant B made a false statement to the effect that “I will use money without using it” to the victim D at the office reconstruction office in Ulsan-gu, Ulsan-gu, Seoul-gu, a general director of the committee for the promotion of redevelopment of Zone E, and that “I will order the removal of the removal of the removal of the removal of the removal of the removal of the KRW 80 million directly after going through the middle route because I would be the president of the reconstruction association.” However, the Defendant did not have the intent or ability to reduce the removal of the victim. Nevertheless, the Defendant received from the victim the total amount of KRW 10 million from the victim’s account in the name of the Defendant on the same day, KRW 5 million from the same account on the 23th of the same month, KRW 10 million from the same account on the same day, KRW 3 million from the same account on the same day, KRW 5 million from the Plaintiff’s agricultural bank account in the name of the Defendant under the name of the Defendant under the same year, and KRW 3.5 million from May 14 of the same year.

Summary of Evidence

1. Defendants’ partial statement to the effect that money was received from D

1. Each prosecutor's interrogation protocol against the Defendants

1. Each legal statement of the witness D, U, V, W, X;

1. Each legal statement of witness S and A;

1. Agreements, receipts, etc., and notarial deeds;

1. A statement of transfer (B, S);

1. A copy of the public notice letter, a copy of the real estate lease contract, and a cash receipt and disbursement;

1. Police investigation report (to be submitted by a suspect A);

1. Police investigation report (to be accompanied by B data submitted by a suspect);

1. Police investigation report (Submission of details of the check for victims);

1. A Y copy of a bankbook;

1. To attach a report on investigation to the prosecution (U submitted data);

1. Judgment on the defense counsel's assertion of investigation report by the prosecution (report on the result of tracking checks)

1. Defendant A’s defense counsel merely invested in the KU and did not receive money under the pretext that the said Defendant ordered the removal construction work, and the received amount also exceeds KRW 130,000,000.

However, according to the evidence duly adopted and examined by this court, such as the above defendant's each legal statement and written agreement, performance guarantee, etc., the above defendant and D agreed that the above defendant would have a high possibility of receiving the reconstruction improvement project in the E zone, and agreed that D would be able to carry on the demolition project, and accordingly, D would have been able to carry on the demolition project, the above defendant's provision of large amount of business funds as requested by D. However, in fact, the above defendant and the defense counsel asserted that D had no ability to allow D to carry on the removal project, etc. according to D's proposal. However, in light of the above agreement and the contents, form, and preparation process of the performance guarantee, monetary transaction between the above defendant and D, and the progress of the above defendant's business, it can be sufficiently recognized that the above defendant prepared the above agreement and concluded the above agreement in order to give D's expectation that D will be able to carry on the removal project.

Furthermore, the above defendant asserted that only the sum of KRW 130 million was paid by D and argued that only KRW 16 million was paid by the above defendant around September 13, 2006, but in full view of the receipts (the amount of KRW 44 million on September 13, 2006), the part of the check number of September 13, 2006 among the police investigation report (the submission of the records of the victim's check), the prosecution investigation report (the report on the result of tracking check), etc. on September 14, 2006, the fact that the above defendant received KRW 40 million on September 14, 2006 is recognized. Accordingly, all of the charges charged are proved, and the above assertion by the defense counsel cannot be accepted.

2. Although it was true that the above Defendant’s defense counsel received KRW 65 million from D, Defendant B’s defense counsel asserted that, while managing the leased store in lieu of D, it was only received as construction cost and the cost of purchasing office fixtures, and not received as the pretext of ordering the removal work. However, according to the evidence, such as each legal statement of D, X, and AA, it can be acknowledged that the above Defendant was paid KRW 65 million from D who believed that the above Defendant would give the removal work even without the intention to give the removal work. Thus, all facts charged are proven.

Meanwhile, according to evidence, such as U, V, W, and X’s respective legal statements and partial legal statements, etc., the above defendant spent in relation to a shop leased from D, but it can be acknowledged that the above defendant was actually engaged in opening and operating the main office in the above store with S, which is the amount of money paid for his own interest. Contrary thereto, S and A’s partial legal statements are difficult to believe, and there is no other counter-proof. Accordingly, we cannot accept the defense counsel’s assertion that the above defendant is a mere nominal lender of the above store, or that the above defendant was only in charge of managing D’s store instead of D’s store.

Application of Statutes

1. Article applicable to the facts constituting the crime and the choice of punishment (defendants);

Article 347(1) of the Criminal Act (Appointment of Imprisonment)

1. Inclusion of days of detention pending trial in the defendant A;

Article 57 of the Criminal Act

1. Suspension of execution (Defendant B);

Article 62(1) of the Criminal Act

1. Dismissal of an application for compensation order;

Articles 32(1)3, 25(3)3, and 25(2) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (the scope of liability is not clear)

Grounds for sentencing

Defendant A: The punishment for a considerable period of time should be imposed because the acquired amount of money reaches KRW 152.6 million and the damage was not caused, and there was no reflect on the crime. However, the punishment for a considerable period of time should be taken into account the following: (a) the victim and the above Defendant had been maintained prone over 10 years; (b) the victim had been able to observe the business contents of the above Defendant; (c) the damage was expanded by continuously providing funds depending on the above Defendant; (d) the above Defendant got the status of a director of the Z in the victim’s name; (c) the said Defendant did not have the same criminal record and did not have the same kind of punishment; and (d) the

0. Defendant B: The amount acquired by the above Defendant did not reach 65 million won and did not seem to be against it, and thus, the above Defendant is deemed to have spent a considerable amount of money out of the amount acquired by the above Defendant as the opening cost of Y store. The victim also has an interest in the use of the above Defendant as the lessee of the above store, and the victim did not receive any deposit or monthly rent, and even if X through S/A could have received the above store after receiving the above store, it did not actively recover the amount paid as the test or house cost, etc. even though the above Defendant could have received the management right after receiving the above store, and the execution of the sentence shall be suspended by taking into account the fact that the above Defendant was the first offender who has no criminal power, and there is no actual profit.

Judges Hah-sik