2013Gohap623 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

A

Maximum Britain (Public Prosecution), Kim Pream (Public Trial)

Attorney B (Korean National Assembly)

February 19, 2014

A defendant shall be punished by imprisonment for not less than one year and six months.

Criminal History Office

The defendant is the representative director of D Co., Ltd. (hereinafter referred to as "D") responsible for the implementation of the building in Seoul Special Metropolitan City, Gwanak-gu.

Around July 3, 2010, the Defendant explained the progress of the business to the victim F F who was aware of the aforementioned D's prior representative director in the coffee shop, and provided on-site confirmation, and then, the value of the unsold apartment part of the above building is KRW 10 billion, and the value of the unsold apartment part is KRW 30 billion, and it is worth KRW 40 billion in total. The claim against the building owned by the Bank is KRW 2.3 billion, and the claim for indemnity held by E's father G, who is the D's former representative director, is KRW 5.9 billion. In order to receive G's claim for indemnity, it is necessary to promptly conduct provisional attachment on the building, and it is necessary to deposit the pre-paid deposit with the court for the purpose of deposit KRW 500 million, and it is not possible to use it for any other purpose, and it is possible to make up for the principal by the end of 200,000 won by the end of 20,000.

However, the defendant thought that the money borrowed from the victim F for the purpose of deposit was used for the repayment of personal debt, and there was no intention or ability to pay the money on the date of repayment because the defendant did not own property at the time and the company's financial status was not good.

Nevertheless, the Defendant, as seen above, by deceiving the Victim F and by deceiving the Victim F, remitted KRW 500 million from the Victim F to the Party I’s account from the F on July 5, 2010, to the E’s account.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of the witness H, E, and F;

1. An agreement of lease and a decision on provisional seizure;

1. A report on investigation, a report on investigation, and a report on investigation (K phone statement of a reference witness);

Application of Statutes

1. Article applicable to criminal facts;

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347 (1) of the Criminal Act [However, the upper limit of the punishment shall be governed by the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259 of April 15, 2010)]

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

Judgment on the argument of the defendant and defense counsel

1. Summary of the defendant and his defense counsel's assertion

Around July 3, 2010, the Defendant stated to the effect that G had a claim for reimbursement against D while explaining the current status of the victim and the obligation to sell in lots and explaining the claim and obligation of the victim, and that E received KRW 420 million out of the KRW 500 million received from the victim, but the Defendant was aware that E repaid the Defendant’s obligation to the Defendant, and the Defendant did not deceiving the victim to the effect that he borrowed KRW 500 million in relation to the application for provisional attachment as stated in the facts constituting the instant crime.

2. Determination

In full view of the following circumstances acknowledged by the above evidence, the defendant can sufficiently recognize the fact of deceiving the victim as stated in the crime of this case by deceiving the victim as a deposit money. Thus, the defendant's and the defense counsel's assertion is not accepted.

① With respect to the reasons for delivery of KRW 500 million to E, the victim consistently requested from the investigative agency that he/she lent KRW 500 million as a deposit money to the Defendant on July 3, 2010, when he/she requested that the Defendant and E use KRW 500 million as a deposit money, from July 3, 2010. In addition, on July 3, 2010, H in which the Defendant and E met with the Defendant had known that the direct deposit amount is KRW 500 million, but H in this court stated that he/she would use the borrowed money as a deposit money necessary for applying for provisional seizure.

On July 3, 2010, the Defendant made a statement to the effect that the term "provisional seizure or deposit money was given to the victim as of July 3, 2010, and that the victim should receive this money from the victim E as the deposit money, and that the national tax problem can not be resolved." In the end, the Defendant appears to have lent the money to the victim as the deposit money in the first place as stated in the criminal facts.

③ On July 5, 2010, the victim prepared a loan certificate stating that "a loan agreement on the procedures for seizure and collection of approximately KRW 7 billion is a loan agreement for the amount of indemnity amount held by G with respect to building C," and then remitted KRW 500 million to the SC bank account (L) in the name of E. On July 6, 2010, E deposited KRW 420 million out of that on July 6, 2010.

④ The Defendant alleged that E was merely aware that E would have repaid its debt owed to the Defendant and the Defendant’s her husband. However, in light of the fact that E received KRW 500 million from the victim’s “in this court, E received KRW 320 million from the victim, and subsequently, it was necessary to pay the Defendant deposit, and the Defendant stated to the effect that it would have remitted KRW 420 million to the Defendant. At the time of receiving KRW 420 million, the Defendant stated to the effect that “E was aware that E was the money received from the victim.” As seen earlier, the Defendant stated to the effect that E was to lend money directly to the victim as deposit money, and that the Defendant and E appeared to have discussed the provisional seizure procedure for the building C before this case and the amount of deposit needed therefor.

⑤ On July 6, 2010, the amount of KRW 420 million was deposited in the account (N) account in the name of the Defendant’s East M, and the amount of KRW 30 million was transferred to J, which appears to be the Defendant’s creditor, and the amount of KRW 50 million was most used before applying for provisional attachment of the right to claim ownership transfer registration of the building C, and the remainder was KRW 74 million at the time of applying for provisional attachment. In conclusion, the Defendant appears to have no intention to use KRW 420 million received from E as the deposit related to the building C.

Reasons for sentencing

1. The scope of punishment: Imprisonment for not less than one year and not more than six months but not more than seven years and not more than six months;

2. The scope of recommended sentences according to sentencing standards;

[Determination of Punishment] Fraud, General Fraud, More than 500 million won, less than 5 billion won

【Determination of Recommendation Area】 Basic Area

[Scope of Recommendation] From 3 to 6 years

[Determination of Sentence] Imprisonment with prison labor of one year and six months

The crime of this case is a large amount of money obtained 50 million won by deceiving the victim while using it as deposit money by the defendant, and obtained it from the victim, and the amount of fraud by the crime of this case reaches 500 million won. The defendant acquired and used 420 million won by himself, most of them, and the victim did not recover most of the damages up to now, and the victim wanted a strict punishment against the defendant. In full view of the above, a sentence of punishment is inevitable as a severe punishment against the defendant.

However, the defendant has no record of criminal punishment for the same crime (which has a record of punishment of fines several times for the same crime), some of the amount of defraudation is used by E, the defendant deposited KRW 100 million for the victim, and all the sentencing factors specified in the arguments of this case, including the age, character and conduct, family environment, and circumstances after the crime, shall be determined as ordered by taking into comprehensive account the following factors.

It is so decided as per Disposition for the above reasons.

Freeboard of the presiding judge;

Judges Seo-won

Judges 00 Efficacy