2016 Highest 5349, 5779 (combined) Fraud

A

Voluntary defense and So-young (public trial)

Law Firm B

Attorney C

January 19, 2017

A defendant shall be punished by imprisonment for one year.

Criminal facts

[2016 Highest 5349]

The Defendant was the representative director of (State)D who was a company (State) that was a company that was a company that was a company that was a company that was a company that was a company that was a company that was a company that was a company that was a company in the Philippines.

In around 2006, the Defendant carried out a project for construction of Baba in the area F, which consists of Baba and condominiums located in the area F, but since 2007, the management of the said company became difficult due to lack of funds. Since 2007, as long as the construction of the said Baba has been discontinued, so long as no large-scale investment has been made, the Baba could not be completed, and as a result, the construction and sale of the Baba has not been found in a large scale of investment. Therefore, the Baba has been indefinitely suspended. Therefore, the Baba sales contract, which created the value of completion, did not have the value of collateral.

1. Fraud against the victim G;

On June 19, 2008, the Defendant stated, “Around June 25, 2008, the Defendant: (a) at the fourth floor of the H building in Gangnam-gu Seoul, that “A victim G is constructing a real transport in the Philippines; (b) the project fund borrowed the mother and child amounting to KRW 30 million,00,000,000,000,000,000 won, from June 25, 2008.”

However, since the Defendant did not have any particular property or income at the time, and the said real estate was not in progress as above, the Defendant did not have any intent or ability to repay money from the victim until June 25, 2008, even if it borrowed money from the victim.

Nevertheless, the Defendant, by deceiving the victim as above, received money of KRW 26.5 million from the victim to the foreign exchange bank account (I) in the name of E after deducting the amount of KRW 3.5 million from the same day.

2. Fraud to the victim J;

At the above office around July 10, 2008, the Defendant stated that “Around July 10, 2008, the Defendant borrowed KRW 50 million from the victim J as security the K realty 101-Dong 106, and L department stores and coffee shop contract which are constructed in the Philippines. The Defendant borrowed KRW 50,000,000 from the loan to the 5% of the interest per month and September 10, 2008.”

However, as seen above, there was no collateral value in the contract for sales in the Philippines, and in the case of L department stores coffee contracts, the Defendant exchanged with the above contract for sales in the Philippines that did not have any collateral value as seen above prior to the above coffee shop M, and thus, there was no actual collateral value, and at the time, the Defendant did not have any intent or ability to pay back to the victim two months even if he borrowed money from the victim because there was no particular property or import.

Nevertheless, the Defendant, by deceiving the victim as above, deducted eight million won, such as the interest in advance from the victim, and acquired it by transfer from the victim, to the foreign exchange bank account in the above state E name, 6 million won in the same day, 11.24 million won in the same month, 23.12 million won in the same month, and 42 million won in the same month.

3. Fraud against the N of a victim;

A. On August 8, 2008, the Defendant: “Around the same day, the Defendant constructed a real transport in the Philippines; and, at the above office, leased KRW 35 million to the said foreign exchange bank account in cash and KRW 20 million to the said foreign exchange bank account in the name of the EE, the Defendant borrowed KRW 15 million from the victim as security for the contract for sale in lots No. 101 Dong 106 of the K realtyty 101, K realty 106.”

On the 24th of the same month, the Defendant continued to lend 65 million won to the victim, stating that “If the Defendant additionally lends 65 million won to the victim, it will offer the above K 101 Dong 102 as collateral, and repay 100 million won to the said foreign exchange bank account by September 2, 2008, together with the borrowed money previously borrowed.” The Defendant received 65 million won from the victim to the said foreign exchange bank account on the 25th of the same month.

However, the above sales contract did not have any value as collateral as stated in the preceding paragraph, and at the time, the defendant did not have any property or income, so even if he borrowed money from the victim, he did not have any intent or ability to repay it until September 2, 2008.

Nevertheless, the defendant deceivings the victim as above and took over the sum of KRW 100 million from the victim.

B. On November 2008, the Defendant stated to the effect that, by borrowing KRW 30 million from the victim, the Defendant would offer the victim as security by borrowing KRW 30 million.

However, the above visibility offered as security is merely equivalent to KRW 10 million at the market price at the time, and there was no value as security for the full amount of KRW 30 million, and the defendant did not have any intent or ability to repay even if he borrowed money from the victim because there was no particular property or income.

Nevertheless, the Defendant, by deceiving the victim as above, obtained KRW 30 million on the same day from the victim and acquired it by deceit.

[2016 Highest 5779]

On September 2015, the Defendant stated that Q apartment owned by P in Gwangjin-gu Seoul Special Metropolitan City P will pay the victim R a total amount of KRW 29 million for the construction cost if the P-owned apartment interior construction is completed. The Defendant said that “The remainder will be paid if the construction is completed with KRW 10 million during the construction phase.”

However, since the defendant did not have any property or income, there was no intention or ability of the victim to pay the whole construction cost as the victim completed the above construction work.

Nevertheless, the Defendant, by deceiving the victim as above, had the victim complete the above construction work on October 2015, and paid the balance to the Corporation with KRW 10 million from P during the construction work, and did not pay the balance of KRW 19 million, thereby acquiring property benefits equivalent to the same amount.

Summary of Evidence

[2016 Highest 5349]

1. Partial statement of the defendant;

1. Each legal statement of the witness N, G and J;

1. Each prosecutor's protocol of suspect examination of the accused (including substitute part);

1. Statement to the prosecution of J and G;

1. Each police suspect interrogation protocol on the defendant and T (including substitute part);

1. Statement of the N in the police station;

1. Each complaint (including attached documents, such as carnets and sales contracts);

1. Copies of the loan certificate (No. 6 of the evidence list);

1. An investigation report (related to visual appraisal of the AP) and a clock book, data submitted by the complainant (Evidence Nos. 26) (Evidence List Nos. 26), a criminal investigation report (Submission of Reference Materials by the complainant), account and remittance details, a criminal investigation report (report on the results of the account tracking), a criminal investigation report (report on the results of the account tracking), an investigation report (Attachment of Internet search screen), an investigation report (Attachment of Reference Materials), U-registration, E-registration, personal immigration status, an investigation report (specific amount of damage), and a criminal investigation report

1. Requests for international cooperation and investigation (Seoul Gangnam Police Station) and replies thereto (Evidence Nos. 64 through 72, original text, attached files, translation, etc. of evidence lists);

[2016 Highest 5779]

1. Statement by the defendant in court;

1. Police suspect interrogation protocol of P;

1. The police statement concerning R;

1. A complaint;

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 347(1) of the Criminal Act (the point of fraud), each choice of imprisonment

1. Aggravation for concurrent crimes;

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

Reasons for sentencing

【Scope of Recommendation】

General Fraud Type 2 (at least KRW 100, less than KRW 500,000)

[Special Mitigation]

In the case of intentional deception, or where the degree of deception is weak;

【Determination of Sentence】

The punishment as ordered shall be determined in consideration of the following circumstances and the defendant's age, character and conduct, environment, family relationship, motive and consequence of the crime, circumstances after the crime, etc. and the conditions for the sentencing as shown in the argument of this case.

The circumstances favorable to ○○ may be deemed as a crime by willful negligence. It appears that the victim G was paid KRW 18 million to the victim G and KRW 5 million to the victim J as interest. The victim G agreed with the Defendant and the J did not want punishment.

○ Unfavorable Normals: multiple victims and the sum of the acquired amount exceeds KRW 200 million (in particular, when considering the prices at the time of 2008, the amount of defraudation related to the Philippines is appraised as much as now more than the present amount. Even after a long time has elapsed since the crime, damage recovery has not been achieved, and the agreement with N, which is the victim R and the largest amount of money, has not reached. There are many records of punishment for multiple crimes including fraud.

Judges Kim Jong-san

1) S shall bring about the victim’s visibility of the Defendant and receive KRW 30 million from the victim and deliver it to the Defendant.