2014No98 Fraudulent

1. A and other projects;

2. B, Agriculture

Both parties

Kim Byung-Jin (Lawsuits) and Lee Jin (Trial)

Attorney Lee Dong-ho (Apon for Defendant A)

Attorney Soh-young (private ships for Defendant B)

Ulsan District Court Decision 2012No3869 Decided January 16, 2014

July 11, 2014

The part of the judgment of the court below regarding Defendant B shall be reversed.

Defendant B is innocent.

The appeal by the defendant A and the prosecutor shall be dismissed respectively.

1. Summary of the grounds for appeal;

A. Defendant A

1) misunderstanding of facts

The complainant C is an investment in the Dispute Resolution and does not receive money under the pretext that the above defendant received the removal construction, and the amount received is about KRW 140 million.

2) Unreasonable sentencing

The sentence (one year of imprisonment) sentenced by the court below to the defendant is too unreasonable.

B. Defendant B

1) misunderstanding of facts

Although it was true that the above defendant received KRW 65 million from C, it was merely received the interior cost and the purchase cost of the house for the interior work while managing the store leased by C (hereinafter referred to as "the store of this case") on behalf of C, and it was merely received as the interior cost and the purchase cost of the house, not the removal construction.

2) Unreasonable sentencing

Punishment (six months of imprisonment, two years of suspended execution) imposed on the defendant by the court below is too unreasonable.

(c) Prosecutors;

The sentence imposed by the court below to the defendants is too uneasible and unfair.

2. Determination

A. Determination as to Defendant A’s assertion of mistake of facts

6) The following circumstances acknowledged by the lower court and the first instance court’s duly adopted and examined the evidence that the Defendant had no capacity to remove C-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U.

B. Judgment on Defendant B’s assertion of mistake of facts

The establishment of facts constituting a crime in a criminal trial ought to be based on strict evidence with probative value, which leads a judge to confluence to the extent that there is no reasonable doubt. As such, in a case where the prosecutor’s proof fails to sufficiently reach the extent that such conviction would lead to such conviction, the determination ought to be made in the interests of the defendant even if there is a doubt of guilt, such as the defendant’s assertion or defense contradictory or unfluenced, etc. (see, e.g., Supreme Court Decision 2010Do1487, Apr. 28, 201).

According to the evidence duly adopted by the court below and the court of the first instance, it is recognized that C remitted each of the amounts of KRW 10 million to the same account under Defendant B’s name on January 22, 2007, KRW 5 million to the same account on February 23 of the same year, KRW 10 million to the same account on February 23 of the same year, KRW 30 million to the same account on May 14 of the same year, and KRW 30 million to the same account on May 30 of the same year, and KRW 10 million to the same account on the same date on January 30 of the same year.

However, Defendant B demanded the above 80,000 won for the removal of construction work, and there is only C’s direct evidence consistent with the facts charged that the said 65 million won was paid. In other words, the following circumstances acknowledged by the above evidence: ① immediately after the commencement of the transfer of the above money to Defendant B, Defendant B transferred the construction cost to E who performed the instant construction work; and C’s considerable amount of KRW 65 million paid to Defendant B’s 50,000 (the prosecutor also stated 50,000 won) to Defendant B’s 7th anniversary of the fact that the said 30th anniversary of the above 0th 7th 20th 13th 26th 2013 7th 7th 20 7th 20 7th 200 3th 20 3th 20 3th 3th 201 3th 2th 3rd 201. 3rd 3rd 26th 201.

On the other hand, G, the new lessee, stated that there was little statement that Defendant B and F should receive money from Defendant B, but this is nothing more than Defendant B and F, but it appears that the purchaser would have been able to take over the right of lease in order to recover the royalties from Defendant B and F, and that C would have been able to take the right of lease early departure from G. ② C was 1.6 million won a sub-lease contract with the Defendant to lease this private store to F, but F was 1.6 million won a monthly, and F was able to obtain the above deposit or monthly rent from the Defendant at the time of the above sub-lease contract, but the Defendant did not have been able to obtain the right of lease for the purpose of collecting the rent from Defendant B and F, and it was 1.6 million won a statement from the Defendant’s store at the time of this case’s testimony. However, the above sub-lease contract was 80% abundled with the Defendant’s testimony that it was impossible to obtain the right of lease of this case’s bar.

Therefore, without any reasonable doubt, evidence submitted by the prosecutor alone is sufficient to recognize that Defendant B received money from Defendant B in return for promising the right to remove the interior expenses, not for the use of the interior expenses. There is no other evidence to acknowledge that it received money from Defendant B. He managed the store of this case without any particular consideration for aiding and abetting C, and even if Defendant B’s assertion that he received KRW 65 million from C and used it for the interior expenses, it should be determined as Defendant’s interest.

Therefore, Defendant B’s assertion of mistake is justified.

C. Determination on the assertion of unreasonable sentencing by Defendant A and the Prosecutor

In light of the following circumstances: (a) the amount obtained by Defendant A has reached KRW 150 million and did not amount to 2.6 million and did not amount to damage; (b) the victim and the above Defendant did not reflect on the crime; (c) the victim had maintained her friendship over 10 years; (d) the victim had been able to rely on the above Defendant even though she had observed the business contents of the above Defendant at a reasonable ground; and (e) the damage was increased by providing funds continuously; (c) the above Defendant has given the victim’s her status as a director with D’s shares and directors under the victim’s her name; (d) the above Defendant did not have the same criminal record and was only punished; (e) the motive and background leading up to the instant crime; (e) the circumstances before and after the instant crime; (e) the Defendant’s age, character and behavior, environment, occupation, family relations, etc., the sentence imposed by the lower court cannot be deemed to be too heavy or unreasonable.

3. Conclusion

Therefore, the appeal by the above defendant and the prosecutor about the part against the defendant A among the judgment below is without merit, and it is dismissed pursuant to Article 364 (4) of the Criminal Procedure Act, and since the appeal by the defendant B is well-grounded, the part concerning the defendant B among the judgment below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act without claiming unfair sentencing by the above defendant and the prosecutor, and it is also decided as follows through pleading.

[Judgment as to Defendant B]

1. Summary of the facts charged

Defendant B was a person who is in office as a general director of the committee for the promotion of redevelopment in Ulsan-dong C-03 area. On January 22, 2007, Ulsan-dong, Ulsan-dong, Seoul-dong, and Seoul-dong, Seoul-dong, and 03 rebuilding offices, Defendant B made a false statement to the effect that he would be able to carry out removal works directly through the middle route, and that he would be able to carry out removal works. However, the Defendant did not have an intention or ability to reduce the removal works. Nevertheless, the Defendant received KRW 10 million from the victim’s agricultural bank account in the same name on the same day and received KRW 50 million in total from the victim’s account on the same day, and KRW 50 million in total, KRW 300,000,000 in the same account on February 31, 200 and KRW 500,000 in the same year and KRW 300,000 in the same account on the same day.

2. Determination:

This part of the facts charged constitutes a case where there is no proof of a crime for the same reasons as the judgment 2-B on the grounds of the above appeal, and thus, the defendant is acquitted pursuant to the latter part of Article 325 of the

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