(영문) 서울중앙지방법원 2017.10.12. 선고 2017고합81 판결

On December 7, 2007, the Defendant was sentenced to imprisonment with prison labor for fraud, etc. at the Seoul Northern District Court on December 7, 2007, and was released on January 30, 2009 and the parole period expired on March 2, 2009.

【Criminal Facts】

"2017Gohap81"

1. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), fraud against the victim J;

(a) nominal fraud of stock investment;

On March 2010, the Defendant stated that “I will pay 10% of the principal as interest along with the principal three months after the date when I lent the securities account to I and I would like to pay I and I will pay I and I will pay I and I will pay I will pay I and I will pay I and I will pay I will pay I and I will pay I and I will pay I will pay I and I will pay I will pay I and I will pay I will pay I will pay I and I will pay I will pay I and I will pay I will pay I and I will pay I will pay I and I will pay I will pay I and I will pay I and

However, in fact, the defendant was not a person of Japanese nationality but has not been specialized in asset investment in M-securities, and there was no special property or income, so even if he receives money from the victim as a share investment, he did not have an intention or ability to repay the principal and interest thereof.

The Defendant, as above, by deceiving the victim, received shares equivalent to the total amount of 87,243,830 won from the market price deposited in the Nsecurities account under the victim’s name on March 2, 2010, and received shares of 84,540,729 won and cash in total from around that time to May 28, 2010, as shown in attached Table 1, from around 46 times as shown in attached Table 1.

(b) Borrowing;

The defendant did not have any intention or ability to repay money even if he borrowed money from the victim due to the absence of any special property or income.

Nevertheless, around March 12, 2010, the Defendant received or remitted KRW 119,651,790 in total on 43 occasions from the victim’s house in Gangnam-gu, Seoul to July 15, 2010, as shown in the attached Table 2 of the Crimes List 43 times from the day to July 15, 2010, by stating that “the Defendant has no money that he/she intends to do so, i.e., to do so., to pay the drinking value.” First, he/she borrowed money necessary to pay the drinking value, and then he/she has received or remitted money from the victim’s house in Gangnam-gu, Seoul to the day when he/she received cash 1,50,000 as a loan from the victim’s house in Gangnam-gu.

The defendant did not have any intention or ability to repay the price even if he borrowed a credit card from the victim due to a lack of special property or monthly income.

Nevertheless, the Defendant, at the main point located in Q Q in Gangnam-gu Seoul on March 2010, stated that “The Defendant would use the credit card to pay the credit card to the Defendant, because he had no money to use it on the wind that his parents cut off,” and that he would use the credit card in the name of the victim after being issued with the credit card in the name of the victim, and did not pay the credit card amounting to KRW 36,773,106 in total, even if he had the victim pay the credit card amounting to KRW 36,73,106, and did not pay the credit card amount from around that time until August 2010.

2. Fraud against victims S;

(a) Fraud of vehicle security loans;

The defendant thought that he is operating the E-car owned by C to offer the said car as security and to lend money to the victim S who is a loan service provider.

However, in fact, since the D E car offered as security by the defendant to the victim is a car owned by C, the defendant did not have the right to offer it as security, and since the defendant did not have any special property or income, there was no intention or ability to repay it even if he borrowed money from the victim

Nevertheless, on October 30, 2012, the Defendant concluded that “if he/she lends money to the victim as collateral for a vehicle under his/her own operation, he/she shall pay the interest and principal without any framework,” and that he/she received from the victim a remittance of KRW 16,00,000 to the deposit account in T’s name on November 6, 2012.

(b) Fraud in terms of attorney appointment costs;

When the Defendant came to know that he was arrested by the Daejeon Police Station on the ground that U.S. dealt with a large-sized vehicle, he was aware of the fact that he was receiving an investigation, he did not want to obtain money as a lawyer fee for U's release.

Accordingly, on November 23, 2012, the Defendant called the victim to “in order to promptly release the detained sentence, the Defendant must appoint a competent lawyer from the former officer. In order to transfer the attorney fee, the Defendant would appoint a senior lawyer and release him from the sentence.”

However, in fact, the defendant received money from the victim as a lawyer's fee and did not intend to appoint a lawyer for U.S. as a victim.

The Defendant, by deceiving the victim as above, received KRW 8,50,000 from the victim to the deposit account in the name of each V, under the pretext of attorney-at-law appointment on November 26, 2012, and KRW 14,00,000,000 around December 7, 2012, and around December 8, 2012.

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3. Fraud against W.

On April 1, 2010, the Defendant made a false statement to the victim W, stating that “If he/she lends money to the victim in exchange for shares, he/she will pay the principal to him/her within three months.”

However, the defendant did not have a certain occupation, and even if he received money from the victim under the pretext of stock investment, there was no intention or ability to pay the proceeds and principal on the date of promise.

Nevertheless, the defendant was issued a cashier's check equivalent to KRW 28,00,000 from the victim on April 1, 2010.

4. Fraud to victim X;

(a) Fraud of credit cards;

On October 6, 2010, the Defendant concluded that “The Defendant would purchase goods necessary for the use of the credit card if he/she borrowed the credit card because he/she was making shares of the victim X” at the Zc shop in Gangdong-gu Seoul, Gangdong-gu, Seoul.

However, the defendant did not have a certain occupation, and there was no special property or income, so even if he received a credit card from the victim, he did not have the intention or ability to pay the user fee.

Nevertheless, the Defendant, in its possession, obtained a credit card (AA card and AB) from the victim and settled KRW 1,550,000 on October 6, 2010 as a computer purchase name, and used the credit card amounting to KRW 2,074,850 in total four times from October 24, 2010 from that time to October 24, 2010, and did not pay the credit card amount.

(b) Borrowing;

On October 25, 2010, the Defendant made a false statement to the victim X that “If an officetel rent of KRW 2,500,000 is insufficient, the Defendant would pay up to October 25, 2010.”

However, the defendant did not have a certain occupation, and there was no special property or income, so even if he borrowed money from the victim, he did not have the intention or ability to pay the money.

Nevertheless, on October 22, 2010, the Defendant received 2,500,000 won from the victim to the AD bank account (AE) in the name of AC on October 22, 2010.

5. Fraud against victim AF and AG;

On December 2, 2012, the defendant made a false statement to the AH hotel AI, the victim AF, and the AG located in Busan Shipping Daegu, "B was living in Japan, and no domestic deposit passbook transaction is possible due to stock experts or current circumstances. Therefore, if you use the passbook in the name of the party, you will guarantee the profits of 5% per month for the investment money."

However, in fact, the defendant merely has invested in shares, but is not an expert in shares, and there was no certain occupation or special property or income. Therefore, even if the investment is paid, there was no intent or ability to pay the proceeds promised to the victims through stock investment.

Nevertheless, the Defendant received KRW 20,00,000 from the victims as share investment money on December 2, 2012 and December 22, 2012, and received KRW 187,862,219 in total from May 22, 2013 as shown in attached Table 5 of the Crimes List.

6. Fraud to AJ;

On October 2016, the Defendant made a false statement to the victim AJ house located in AK at the time of Masan, and to the victim that “if invested, the Defendant will continuously grant 10% of the monthly profits.”

However, in fact, the defendant did not have certain occupation, special property or income, and was investing in high risk shares, so there was no intention or ability to pay the victim 10% monthly income.

Nevertheless, around October 4, 2016, the Defendant received KRW 20,000,00 from the victim’s house as investment money from the victim’s house, and by the same method, received KRW 277,677,364 in total from January 23, 2017 as shown in the attached Table 6.

7. Fraud against AL;

On December 2, 2016, the Defendant made a false statement to the victim AJ as stated in paragraph (6) of the AJ, that “the incident of gold in a foreign country would be done, and the deposit will be necessary. There will be no loss of principal and no loss of principal and 8% profits will continue to be guaranteed against principal.”

However, in fact, the defendant did not have certain occupation, special property or income and was in danger of high risk derivatives, so there was no intention or ability to continuously guarantee 8% profits of the principal against the victim without loss of principal.

Nevertheless, the Defendant received total of KRW 37,000,000 from the victim on January 3, 2017, and KRW 14,000,000 on January 4, 2017, and KRW 37,000,000 on January 5, 2017 from the victim as a Nsecurities account in the name of AJ.

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8. Fraud against victim V;

(a) Mixed fraud;

From August 2012, the Defendant started living together with the victim from around 2012 to around 2012 with the victim from around 13, 2012, and around that time, the victim was pregnant with the victim. Accordingly, the victim demanded marriage and decided to marry with the victim, and then the victim was in need of a mixed cost for marriage preparation. However, the Defendant did not have any intention to marry with the victim, and there was no actual pregnancy.

The Defendant, by deceiving the victim as such, received KRW 10,00,000 from the victim’s account under the name of the victim used at the time of August 4, 2012.

In addition, the Defendant received KRW 192,64,590 from the victim from the above date and time to December 7, 2012, as shown in attached Table 7, over 13 times, as shown in attached Table 7.

(b) nominal fraud of land rents;

Around August 2012, the Defendant: (a) knew that the Victim’s new father was operating a farming association in the AP set up in the AP set up in Dongdaemun-gu Seoul, Dongdaemun-gu, the Defendant made a false statement to the victim, stating that “The father token owns the land in the Gyeonggi-gu AR unit; (b) so that he/she can grow ginseng from the land to the large father; and (c) thereby, he/she changed the cost of the land rent.”

However, the majority father of the defendant did not own the land in the Gyeonggi-gu Group as above, and even if he received money from the victim, he did not have the intention or ability to lease the land.

The Defendant, as such, by deceiving the victim, received 10,000,000 won in cash under the pretext of land rent for the temporary border.

9. Fraud of victim AS;

On August 16, 2012, the Defendant made a false statement to the victim AS who became aware of the Defendant’s house located in Gangnam-gu Seoul AM apartmentN in Seoul and the introduction of V, “it is possible to establish a financial institution in the domestic finance-related license.”

However, even if the defendant received money from the victim, he did not have the intention or ability to establish a financial institution.

Around August 16, 2012, the Defendant, by deceiving the victim, received KRW 20,000 from the victim to the account in the name of V used by the Defendant.

In addition, the Defendant, from the above date and time to November 26, 2012, by deceiving the victim as shown in the attached Table 8, and then receiving KRW 95,500,000 from the victim six times.

10. Fraud against the victim T;

On August 17, 2012, the Defendant made a false statement to the victim T, who became aware of the introduction of V, to the effect that “in Korea, financial institutions may be established at the license related to finance.”

However, even if the defendant received money from the victim, he did not have the intention or ability to establish a financial institution.

Around August 17, 2012, the Defendant, by deceiving the victim, received KRW 10,00,000 from the victim, to the account in the name of V used by the Defendant.

In addition, the Defendant, from the above date and time to December 5, 2012, by deceiving the victim as shown in the attached Table 9, and was remitted KRW 87,393,973 from the victim over 28 times.

"2017 Highly 772"

11. Fraud against victims AT, etc.;

On April 2014, the Defendant made a false statement to the victim AT, “B is a stock expert residing in Japan, and cannot engage in domestic transaction of a deposit passbook under the current circumstances. If I would like to make a stock investment transaction by using a current account under the name of the party, I would like to pay dividends of 7-10% per month for the amount invested.”

However, in fact, the Defendant did not have a certain occupation, and there was no special property or income, and there was no effort or ability to pay the profits as agreed and the principal, even if they were to receive the investment from the victim, because it was used in the form of so-called â€˜probied' as the profits that would be paid from investors in the situation of not less than 10% of the monthly investment to the previous investors.

Nevertheless, on May 19, 2014, the Defendant received KRW 1,000,000 from the victim’s bank account in the name of the victim who was lent by the Defendant on May 19, 2014, from that time, the Defendant received KRW 21,856,000 in total seven times as shown in No. 10 of the crime list in the same manner from November 3, 2015.

As such, the Defendant received a total of KRW 2,515,450,294 from the victims by the same method as indicated in No. 10 Nos. 10 through 3, 5, 7, and 16 of the annexed crime sight table.

12. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) of Victims;

On September 2, 2014, the defendant made a false statement to the victim AU that "if a stock investment is made, he/she will pay the dividend of 10% per month for the investment amount."

However, even if the Defendant received the investment money from the victim, the Defendant did not have the intent or ability to pay the proceeds and principal as above.

Nevertheless, on September 2, 2014, the Defendant received a total of KRW 5,000,000 from the victim from the victim to the AV bank account in the name of AV bank used by the Defendant on September 2, 2014, and from that time, from May 23, 2016, the Defendant received KRW 1,428,463,50 in total over 61 times, as shown in No. 10 No. 6 of the AV list from the victim.

13. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) of Victims AW;

The Defendant, on August 23, 2014, issued 742,639,226 won in total over 137 times from the victim, from the time on May 23, 2016, to the victim AW, who became aware of through AX, by means of the same method, stating that “B would make an investment as at the present time by a stock expert, he/she will make an amount of 10% per month of the investment amount as dividends.” The Defendant received cash 3,00,000 won from the victim on August 18, 2014 and received from the victim until May 23, 2016.

14. Fraud by using computers, etc.;

On October 20, 2010, the Defendant, at the residence of the victim AY located in Gangdong-gu Seoul Metropolitan Government, connected the "AZ" which is an Internet lottery site using the victim's mobile phone, and used the victim's number and telephone number to pay the total sum of KRW 291,250 by the victim's mobile phone small payment.

Accordingly, the defendant, without authority, made data processed by inputting the data of the victim into the data processor, such as computer, etc., thereby taking property benefits equivalent to the above amount.

Summary of Evidence

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1. Court statement of the defendant (the second trial date);

1. A suspect interrogation protocol of the prosecution against BA;

1. A suspect interrogation protocol of the police concerning V;

1. Each police protocol against T, S and J;

1. Each complaint filed by the S and J;

1. Investigation report (Binding of details of account transactions in the name of the complainant);

1. List of damage, details of bank and credit card transactions, loan certificates, notarial deeds, details of Nsecurities Account Transactions, and details of BB Securities Account;

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1. The defendant's legal statement (the third trial date);

1. An interrogation protocol of F by prosecution;

1. Each police statement made to WT, X, AF, AL, and AJ;

1. Each complaint filed by W, X, AF, AL, and AJ;

1. Investigation report (case of submission of reference materials by complainants), investigation report (Attachment to list of crimes);

1. A certificate of details by each receipt and member trading account;

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1. Court statement of the defendant (which is made on the fifth trial date);

1. The police statement of V, AS, and T;

1. A complaint filed against V, AS, and T;

1. Personal information related to V damage-related accounts, AS-related accounts, T-related accounts, monthly rent contracts of apartments, and BC;

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1. Partial statement of the defendant;

1. Each police statement made to AU, AW, AT, BD, BE, and AC;

1. WF, BG, BH, BI, AX, BJ,K, and BL

1. A detailed statement of account transactions and telephone number rates;

【Prior Records at the Time of Sales】

1. Court rulings of Seoul Northern District Court 2007Da3212 and Seoul Northern District Court 2007No1587, each of the following subparagraphs: Criminal history records, etc. (A), investigation reports (verification of repeated crimes); the personal accommodation status attached thereto; the Seoul Northern District Court 2007No1587;

Application of Statutes

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

Each fraud described in Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 11304, Feb. 10, 2012; hereinafter referred to as the "Act"), Article 347(1) of the Criminal Act (including the fraud of at least KRW 500 million as stated in paragraph (1) of the same Article); Article 347(1) of each Criminal Act (including the fraud of at least KRW 1-b, (c), (2) through (11) of the same Act; Article 1-2(b), (2-b, 4-B, (5) through (7), (9) through (11) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 11304, Jan. 6, 2016); Article 347(1) of the Criminal Act (amended by Act No. 13719, Feb. 10, 2016); Article 347(13) of the Criminal Act

1. Aggravation for repeated crimes;

Article 35 (Offense of Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) in Article 1 of the Criminal Code, 1-b, (c), (3), and (4) of the Judgment, and 35 of the Criminal Code: Provided, That with respect to the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) in Article 1 of the Judgment, it shall be limited in the proviso

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (limited to the proviso of Article 42 of the Criminal Act)

Judgment on the argument of the defendant and his/her defense counsel (the grounds for the crime)

As to each violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and fraud mentioned in paragraphs 11 through 13, the defendant asserts that the amount distributed to the victims should be deducted from the amount of profit.

On the other hand, if the defendant received the investment money from the victims without any intention or ability to pay the principal and profits properly, and received the investment money by fraud each time the investment money is received. Thus, if the defendant received the investment money continuously in the way of re-investment of the money after returning it to the victims, the total sum of the investment money received by each fraud is the amount of profit, and it is not necessary to calculate the amount of profit by deducting the returned principal and profits (see, e.g., Supreme Court Decision 2006Do1614, May 26, 2006).

As the defendant asserts, even if the defendant paid some of the money to the victims as dividends for investment, the victims re-investment the dividends received from the defendant again, and the criminal defendant's criminal law has been trusted by continuously paying dividends for small amount of investment to the victims, and continuously receiving a large amount of investment funds. It is merely a means to prevent fraud, and the defendant's continuous payment of dividends to the victims is nothing more than a means to prevent fraud. Thus, as alleged by the defendant, the amount under the pretext of dividends paid to the victims cannot be deducted from the amount of profit of the fraudulent crime.

Ultimately, this part of the argument by the defendant and his defense counsel cannot be accepted.

Reasons for sentencing

1. The scope of applicable sentences by law: Imprisonment for not less than three years nor more than 50 years; and

2. Application of the sentencing criteria;

[Determination of Punishment 1] General Fraud 4 types (at least 5 billion won, less than 30 billion won)

[Special Aggravation] Aggravations: Where a crime is committed for unspecified or large number of victims or repeatedly over a considerable period of time, causing serious damage to the victim, a repeated crime of the same kind;

[Scope of Recommendation] Special Aggravation, 4 years to 13 years [3 years to 6 years of imprisonment] 1/3 of the lowest limit of sentence (6 years of imprisonment) since it constitutes a case where the types of crimes are higher than the most serious single crime as a result of adding up concurrent crimes]

3. Determination of sentence: Ten years of imprisonment; and

【Unfavorable Circumstances】

The Defendant, using Japanese language, by deceiving the victims to receive money from them, or by deceiving them with borrowed money, credit card payments, attorney-at-law fees, and mixed-water expenses. The victims of each of the instant fraud crimes are 27 or more, and the amount of damage is a large amount of 6.7 billion won. At first, the Defendant received money from the victims under the pretext of investment, and received money from the victims or received money from the financial institutions. In addition, the Defendant used money for the same purpose as the victims’ money, excluding part of the amount of profit acquired from each of the instant crimes, and received money from the victims to receive money from the victims, and instead acquired money from the victims to the victims. In addition, the Defendant used money for the same purpose as the victims’ money to prevent the victims from receiving money, such as money borrowed from the victims or to receive money from the financial institutions, and the Defendant was not subject to a strong punishment for committing the crime of fraud, even if there was a lack of funds from the victims, and thus, was not subject to any other charges to escape.

【Free Circumstances】

However, the defendant recognizes most of the criminal facts and reflects his fault. Part of the amount of profit he acquired as each of the criminal facts in this case is re-investment of the dividend that he paid to the victims.

Considering the above circumstances, the defendant's age, character and conduct, environment, motive, means and consequence of the crime, the circumstances after the crime, and all of the sentencing factors indicated in the arguments and records of this case shall be determined as ordered.