2016 Highest 1067 A. Fraud

B. Violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission

1. A;

2. B

Pedon (prosecutions), term of office (Public trial)

1. C Law Firm, Attorneys D (private ships for Defendant A);

2. Law Firm E, Attorneys Kim F (private ships for Defendant B);

2016,9.1

1. Defendant A

Defendant A shall be punished by imprisonment with prison labor for six years.

Seized Nos. 1 to 3, 6 to 10, 17 shall be forfeited from Defendant A.

2. Defendant B

Defendant B shall be punished by imprisonment for three years.

Of the facts charged against Defendant B, each indictment against the fraud described in the attached Table No. 46,48, and 49 is dismissed.

Criminal facts

Defendant A operated a business name in Busan Shipping Daegu G and 1304 (Htel) around October 26, 2015, and had worked as the representative director of the said corporation by establishing the said officetel No. 3706 around December 10, 2015, and Defendant B had worked as the said director of the said corporation, and Defendant B had worked as a director of the said I and (State).

1. Fraud;

The Defendants, using the Internet, mobile, banner, etc., will change the thoughts of various kinds for import vehicle purchase to an unspecified number of victims. The Defendants publicized the car joint purchase program in the title of 17,500,000 won, "I first deposit 17,500,000 won as the joint purchase price for automobiles, and then join the group (hereinafter referred to as 'pathm') composed of 7 members by recommending 2 persons again and recommending 17,50,000 won as the joint purchase price for automobiles, and then after the completion of the program, I would like to purchase (hereinafter referred to as 'path graduation'), 68,00,000 won as the high-class benz vehicle or pay 58,000,000 won in cash.

However, in fact, the Defendants did not have any official with which they would be supplied with the above benz vehicles from the beginning. The above benz co-purchase program promoted by the Defendants to the victims is in the form of the bend 'cimer' structure that allows the number of subscribers to purchase the above benz vehicles and redeem the above benz vehicles to the existing investors by means of purchase of benz vehicles or cash by using deposit deposited from the subordinated investors. Ultimately, unless the new investors are forced to suspend the above benz vehicles, the above benz vehicles which were agreed to be purchased or repaid in cash to the victims are bound to be purchased or repaid in the said benz vehicles.

Nevertheless, Defendant A’s publicity to the victims as above; Defendant B, while assisting the victims, conspired with each other to manage the head of the Tong and deposit money; Defendant B, around January 4, 2016, received KRW 1750,000 from the victim J as deposit money in the bank account (Account Number K) in the name of the Korean bank account in the name of the victim J. A; Defendant A, as shown in the Attached Crime List (1) from November 9, 2015 to January 28, 2016, obtained KRW 2.71,40,000 won in total from 117 victims from around November 9, 2015 to January 28, 2016; Defendant B, as stated in the Attached Crime List (1) with the exception of KRW 46,48,499, a total of KRW 1416,590,00,000,000 from the victims.

2. Violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission;

No person shall engage in a business of receiving contributions under an agreement to pay the total amount of contributions or an amount in excess thereof to many and unspecified persons in the future without obtaining authorization or permission, making registration, making a report, etc. under other Acts and subordinate statutes.

Nevertheless, the Defendants conspired as above without obtaining authorization, permission, registration, or reporting under other laws and regulations, and explained to the J on January 4, 2016 to the same effect as the preceding paragraph, and even if the termination is in progress, the Defendants received KRW 17.5 million from the said J to the bank account (on the face number K) in the name of the said J in full and received KRW 17.5 million from the Korean bank account (on the face number K), as shown in the attached Table of Crimes List (2), and imported KRW 6.16 billion from the 176 investors from November 3, 2015 to January 28, 2016.

Summary of Evidence

1. Each defendant's partial statement in court;

1. Each legal statement of the witness J and L;

1. Protocol concerning the interrogation of the Defendants by the prosecution

1. Each police statement made by the J, M, N,O, P, Q, R, T, U,V, and W;

1. A report on internal investigation (Attachment of a list of vehicles' joint purchase contracts), internal investigation report (Attachment of a photo around the office (in the presence of an office), investigation report (Attachment of an office contract, etc. I) (Attachment of an office contract, etc.), and investigation report (Attachment of a map of search site and photograph of office supplies);

1. (States) request to investigate any business registration certificate (I), certificate of deposit transaction performance, copy of the same business contract;

Application of Statutes

1. Relevant Article of the Criminal Act and the choice of punishment (the Defendants)

Articles 347(1) and 30 of the Criminal Act (the point of fraud), Articles 6(1) and 3 of the Act on the Regulation of Conducting Fund-Raising Business without Permission, Article 30 of the Criminal Act (the point of performing Fund-Raising Business without Permission) and the choice of imprisonment, respectively.

1. The Defendants among concurrent crimes (the Defendants)

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Confiscation (Defendant A);

Article 48(1) of the Criminal Act

The defendants and defense counsel's arguments and judgments

1. The defendants and defense counsel's assertion of denial of fraud

A. Defendant A and his defense counsel asserted that the program that was already conducted in other areas prior to the commencement of the business of this case was initiated without problems, and that the victims of this case have sufficiently explained the contents of the business of this case, and that Defendant A had no intention to commit fraud.

B. Defendant B and his defense counsel explained the contents of the business, and they delivered money to the victims after sufficiently reviewing and assessing the amount of money. Thus, they asserted that there was no deception against the victims.

2. Determination

The following circumstances acknowledged by the evidence duly adopted and investigated by this Court:

In other words, ① deposit of KRW 17.5 million and acquisition of more than KRW 60 million and continuous operation of such business is not always possible. ② The Defendants could have sufficiently anticipated that their business will be suspended unless the new investors are kept in custody; ③ the name or temporary name of the person in charge of being kept in custody due to the lack of proper custody of the members.

In full view of the fact that there seems to be many cases in which the Defendants joined the membership, and in particular, the Defendants continued to engage in the business after having received opinions from the law firm around the end of November 2015 that the instant transaction might violate the Act on the Regulation of Conducting Fund-Raising Business and Door-to-Door Sales, Etc. Act, and the Defendants did not properly explain the structural problems of the business as seen earlier to the victims, and rather, the victims explained that it is possible to refund if requested by the victims at the time of entering into the contract. In full view of the above, the above arguments that the Defendants did not have any criminal intent to acquire by deception or that the Defendants did not commit a fraudulent act cannot be accepted.

Reasons for sentencing

[Scope of Recommendation Form 3 (at least KRW 500, but less than KRW 500,00) basic area (at least KRW 500,000, KRW 5 billion) * Along with the same class of competition * Along with the results of adding up two stages of general frauds

【Final Recommendation Form】

From June to June of one year and six (in the case of a violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission, the sentencing criteria are not set, and therefore, the lower limit of the above recommended punishment is observed).

【Determination of Sentence】

In addition, there is a very large size of the Defendants’ act of defraudation and fund-raising without permission. In addition, the majority of victims complained against economic and mental suffering. Meanwhile, there is no objective evidence as to whether the Defendants made a statement on the distribution of profits generated from the instant case and the method of disposal of remaining funds and the amount of recovery from damage after the investigation by the Fair Trade Commission on January 2016, and there is no objective evidence as to whether the actual damage was recovered. In addition, Defendant B would have been tried to recover damage at the time of the examination on the warrant quality, and disposed of considerable parts of the Defendants’ property immediately after the release to other persons than the victims. In the meantime, it is unclear whether Defendant B agreed with the victims after the instant indictment, even though it is deemed that there was a fact that they reached an agreement with the victims after the instant indictment, and whether they reached an agreement on the actual payment of money. The punishment shall be determined by taking into account such circumstances and nature of crimes, degree of participation by the Defendants, profits obtained by the Defendants in this case, degree of reflection, age, character and conduct, etc.

Defendant B’s rejection of prosecution

1. Summary of this part of the facts charged

Defendant B, in collusion with A, obtained money (Y: 1:7.5 million won, 17.5 million won, 17.5 million won, 17.5 million won, and 7.5 million won) as stated in the corresponding column of the sight table by deceiving Y, Z, and A in collusion with A in the manner described in paragraph (1) of the crime committed.

2. Determination

According to Articles 354 and 328 (2) of the Criminal Act, if a crime of fraud is committed between lineal blood relatives, spouse, relatives living together, family members living together, or relatives other than their spouse, a public prosecution may be instituted only upon a complaint of the victim.

However, according to the records, it is recognized that the victim Y, Z, and A mentioned in the attached list of crimes (1) No. 46, 48, 49 are the relatives and relatives of the defendant B, and the above victims are not living together with the defendant B. Thus, the above victims are relatives prescribed in the above provision. Nevertheless, there is no evidence to deem that the above victims filed a complaint against the defendant B.

Therefore, this part of the public prosecution is dismissed in accordance with Article 327 of the Criminal Procedure Act, since the procedure of prosecution is invalid in violation of the law.

Judges Doo-rayia