2013Gohap1294-1 (Separation) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

A

Park use (prosecution), Kim Jong-han (Trial)

Law Firm Domen

[Defendant-Appellant]

February 20, 2019

A defendant shall be punished by imprisonment for two years.

Criminal facts

Upon the direction of B, the Defendant is a person who served as a 'pre-title' and actually acted with C such as selling shares, C is a person who served as a pre-owner, B is a person who served as a designated beneficiary and has given various instructions to the Defendant, etc. while residing in the Philippines as of the designated beneficiary date, and D is a bond business operator who has leased money by receiving stocks from the Defendant, etc. as security.

Defendant and C conspired with the victims to borrow money by receiving stocks as collateral from the victims, and then without keeping the stock certificates as collateral, and immediately dispose of them in the stock market and acquire profits corresponding to the difference between the principal and interest of the loan. The 2012, 7, and Haman decided to engage in a bond business operator called "on the basis of a deposit of money as collateral" with the name of "E", and the Defendant made C enter into a contract with C and victims or D by receiving various instructions from B while serving as an employee of C under the name of "E", and the Defendant and C shall give instructions to C and pay the consideration for such instructions.

1. On July 13, 2012, fraud against the victim F-owned G stocks of KRW 150,000 against the victim F-owned G stocks: (a) at the coffee shop where the trade name on the first floor adjacent to the building J branch of the company located in Gangnam-gu Seoul Metropolitan Government H is unknown, C entered into an agreement with D on a stock security loan agreement with a content that provides D with a share security agreement with a content that is 50,000,000 won at the market price (i.e., KRW 590,000 per share price) 1.5,000 shares of G Co., Ltd. (hereinafter referred to as “G”); and (b) D provides C with a loan of KRW 55,000,000 per share as security, with a content that can be sold and disposed of by selling it immediately after

After the conclusion of the aforementioned share loan agreement, C will take place at the J branch office of the company located on the 6th floor of the above building on the same day as bonds company C will take place, and the defendant will take 'E' as employees, and C will take 2% of the monthly interest rate of 50 million won to the victim F, and the contract period of 1 month to lend 'E'. The above victim shall provide C with the share certificates of 150,000 tons of G shares as security, but C shall keep the share certificates as real assets and not enter into the account. However, if the total market price of the above 150,000 weeks is less than 110% (4,03 won per share price) of the above loan, the victim will provide the additional security to C and if the victim fails to provide the additional security, the victim may dispose of C's share certificates at will.

However, even though the Defendant and C entered into an agreement on stock security to sell and dispose of the stocks as above with D, after having entered into such agreement, immediately after having entered into the agreement with the victim, without notifying the victim at all. On July 16, 2012, according to the share security agreement entered into between C and C with the victim at KRW 5,600 per share price, C could not demand additional security or sell the share certificates received as security. The Defendant and C had no capacity to use the share certificates as security in accordance with the monetary loan agreement with the victim even if they were to receive the said share certificates from the victim.

Nevertheless, the Defendant and C concealed the fact that they entered into an agreement with D as above, and immediately after receiving 150,000 share certificates from the victim, sent D share certificates to D and caused D to enter them into the securities account in the name of K and L, and sold all of them from July 16, 2012 to July 17, 2012, and made D repay the loan amounting to KRW 550,000 won. The remaining share certificates of KRW 50,000 were returned from the above D to be sold on the day after having got D enter into the N account in the name of M around July 18, 2012, and sold all of them on the same day.

Accordingly, in collusion with B, the defendant and C acquired the share certificates of 150,000 won of G shares owned by the victim with the market price of 838,500,000 won.

2. Fraud of 1300,000 shares of PP owned by the victim.

around July 17, 2012, the Defendant: (a) “Around July 17, 2012, the Defendant opened a loan interest rate at the pressure suspension point of the Q Bank; (b) “A will only have R met with R as it is possible to do so; and (c) C, from the Gangnam-gu Seoul Metropolitan S Building Office to a bond company, had a loan of KRW 2.8% for the monthly loan to the victim corporation (hereinafter “A”), and around July 18, 2012, at around 2012, C had a loan from the Seoul Gangnam-gu S Building Office as a bond company; and (d) agreed period to lend KRW 3.776 million for three months with the market price (hereinafter “P”) (hereinafter “the market price of KRW 2905 x 1.3 million for each share); and (c) at the same time, C had a loan interest rate of KRW 1300,000 per share (hereinafter “P”) to provide the above additional loan interest rate of KRW 3.501 million for the loan market price.

C concluded a stock security agreement with the victim as above, and around July 18, 2012 on the same day, at the V hotel coffee shop located near the U bank pressure zone located in Gangnam-gu Seoul, Gangnam-gu, Seoul, offered D the stock certificates of 1.3 million (1.3 billion (2.6 billion won) of the PP stocks received from D as security, and D entered into an agreement with D on stock security with the purport that if the total market price of the stock certificates offered as security falls below 150% (3,000 won per stock price) due to the decline in the stock certificates offered as security by lending 2.6 billion won to C, and upon request of the debtor C, the stock certificates offered as security can be sold and disposed of immediately.

However, Defendant and C entered into the said monetary loan agreement with the victim with concealing the fact that they would enter into the said stock loan agreement as above. On July 18, 2012, the market price of P shares was KRW 2,905 per share based on the closing price, and thus, the said agreement had already been disposed of immediately as it is lower than KRW 3,00 per share price than KRW 150 per share price, and thus, the said agreement was intended to sell the stock certificates directly by offering them as security to D even if the said share certificates were received from the victim, and there was no intention or ability to use the share certificates as security under the monetary loan agreement with the victim.

Nevertheless, the Defendant and C conspired with the victim to receive 1.3 million share certificates of 1.3 million shares from the victim without hiding the fact that they would enter into an agreement with D, and immediately thereafter made D enter 1.2 million share certificates of 1.2 million shares from the above 1.3 million share certificates, and made D enter c into the securities account in the name of c, and then disposed of the money borrowed from D with the proceeds of sale by means of selling orders, etc. from July 25, 2012 to July 30, 2012, the Defendant and B disposed of the above 1.2 million share certificates of 1.2 million share certificates of 100,000 shares not entered into the account, and disposed of all of them by entering into the securities account in the name of W around July 30, 2012.

As a result, in collusion with B and one person R, Defendant and C acquired 1.3 million P shares of 3.777 billion won at the market price owned by the above victim.

Summary of Evidence

1. Defendant's legal statement;

1. C’s legal statement;

1. Entry of C in part of the interrogation protocol of each prosecutor's office concerning C;

1. Each prosecutor's statement of F, X, Y, M, Z, W, and K (in the case of F, and Y, each substitute part shall be included);

1. Each investigation report (Attachment to the current status of share price, submission of suspect C data, future investigation plans, confirmation of details of entry into and departure from the shares of G.P, attachment of B.A. investigation and entry into and departure from Korea, filing of details of account transactions in C, and verification of the record of orders for selling P shares);

1. Responses to requests for financial transaction information, copies of each cashier's checks, certificates of personal seal impression, copies of G share certificates, reports on stock transaction, the current status of P share owners, certificates of stock security and loan agreement, copies of P share certificates, copies of cashier's checks, and written confirmations;

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) and Article 30 of the Criminal Act

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [of the concurrent crimes with punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against a victim corporation with heavier penalty]

1. Discretionary mitigation;

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

Reasons for sentencing

1. The scope of punishment by law: Imprisonment with prison labor for one year and six months - June 22 months;

2. Scope of recommended sentences according to the sentencing criteria;

[Determination of Punishment] The systematic fraud of frauds is not less than five hundred million won, and less than five billion won (Type 3) 1

[Special Escopics] Reduction element: If the risk of damage is not substantially realized, 2) Punishment Costs are not imposed.

○ Aggravations: None 3)

[Scope of Recommendation] Imprisonment of 1 year and June 4) - 5 years (Special Mitigation Area)

3. Determination of sentence: A sentence of imprisonment for a period of two years disadvantageous to the defendant: The defendant involved in a systematic fraud crime, such as B (the defendant, the real name of B, was claimed to be "A"), and loaned money by being provided as collateral from the victims, and then acquired the share certificates of 4.6 billion won in total from the victims by immediately disposing of them without keeping the share certificates as collateral, unlike the loan agreement. In light of the loan, even if the amount of damage is considered, the crime of 1.465 billion won and the circumstances are serious. The defendant is more serious than the defendant's accomplice, such as ordering the accomplice to commit the crime, or ordering the sale of the shares received as collateral, and it is necessary to consider the balance with C in which imprisonment for a period of two years has become final and conclusive. The defendant escaped from the Republic of Korea during the investigation.

The circumstances favorable to ○○: The Defendant acknowledges and reflects all of his mistake. The risk of damages is determined as a practical damage only below 1/3 of the amount of damages, and the risk of damages has not been realized. The victims do not want to be punished by the Defendant under the agreement with the victims. They do not intend to plan or implement each of the crimes of this case, but only shared the act of implementation according to B’s instructions. There is no history of punishment or punishment exceeding the fine.

○ Other punishment shall be determined in consideration of all the sentencing factors specified in the pleadings of the instant case, such as the age, character and conduct, home environment, motive, means and method of the instant crime, and circumstances after the crime.

The presiding judge, the Full Judge Line

Judges Kang Jin-han

Judges Do Residents-ho

(i)the type shall be determined on the basis of the sum of the amount of profit, because it is a single and concurrent offence between organized fraud crimes;

2) Exclusion from loans received by the victims, the actual amount of damages is approximately KRW 1.466 billion and the total amount of damages is not more than KRW 4.615 billion, and thus, the amount of damages is not more than KRW 1.3 billion.

3) On September 2012, which was about two months of the instant occurrence, the Victim Co., Ltd. (hereinafter the victim Co., Ltd.) defaulted around September 2012. However, at the prosecutorial office, the victim Co., Ltd. (hereinafter the victim Co., Ltd.) stated to the effect that the situation of the victim Co., Ltd. at the time of the instant case was not so good, and thus, the failure and the instant case were almost relevant (5 pages of investigation records), and there is no other circumstance to acknowledge the causal relationship between the instant case and the victim Co., Ltd. (hereinafter the victim Co., Ltd.). Therefore, it

4) Since there exist two special mitigations, the lower limit of the range of sentence recommended in the sentencing guidelines (two years) shall be mitigated to 1/2; however, the lower limit of the applicable sentencing range under the law is higher than that of the applicable sentencing range, and thus, this is accordingly determined.