2015Gohap594 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), fraud

A

In the case of Kim (prosecution) and the case of grandchildren (public trial)

Attorney B (Korean National Assembly)

June 17, 2016

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of the facts charged

The defendant is the representative director of the corporation D (hereinafter referred to as "D") located in Soyang-gu Seoul 2nd floor.

(a) Fraud against victims E;

1) On May 23, 2011, the Defendant made a false statement to the victim E in collusion with F, that “The 25% shares in the right to operate the cafeteria would be 25% if the Defendant invests 50 million won as additional funds have been completed at the 3rd G G construction site. Since the 500 people use 50 people, it would be able to gain a large amount of profits.”

However, at the time, the defendant and the F did not have the right to operate the brin restaurant at the construction site of the third G, so the defendant and the F did not have the right to operate the brin restaurant.

The Defendant and F, as described in the No. 1 through 2 of the List of Offenses in Attached Crimes, deceiving the victim as such, were transferred from the victim the sum of KRW 50 million to the new bank account in the name of the Defendant on May 23, 2011, and KRW 100 million to the same account on June 10, 201.

2) On September 201, the Defendant conspired with F, and made a false statement to the victim E that “it is difficult to operate the company because the building of the instant D office is delayed. There is a slaughterhouse called H located in the previous North Korea, and when accepting the slaughterhouse, pigs, etc., it would bring about a large amount of profit. The Defendant would make an investment that would bring about a large amount of profit if he/she slaughters the cattle, pigs, etc..., by changing the current rent of the previous Korean War into monthly income, and would return the deposit only for four months.”

However, at the time, the defendant and the F did not have any intention or ability to accept the H slaughterhouse or return the investment funds of the victim through its operation.

On October 4, 2011, the Defendant and F, as such, deceiving the victim, received KRW 25 million from the victim’s new bank account under the name of the Defendant, and subsequently, transferred the total amount of KRW 161 million by no later than September 28, 201, as indicated in the [Attachment] List Nos. 6 through 14, 201.

3) On December 19, 201, the Defendant conspired with F, and made a false statement to the effect that “If the Defendant lends money to the victim E with a high-class passenger vehicle offered as security, he/she may receive six interest after the second month. The Defendant made a false statement to the effect that KRW 150,000,000,000, which is able to secure 3 vehicles with a double 4-class interest.”

However, at the time, the defendant and F had no intention or ability to return the investment funds to the victim by operating the vehicle security credit business normally.

On December 20, 201, the Defendant and F, as such, had the victim induced, and had the victim transferred KRW 150 million to a new bank account in the name of the Defendant on December 20, 201, as set forth in the list of crimes Nos. 15.

4) On September 201, the Defendant made a false statement to the victim E at the above D office in collusion with F, stating that “The Defendant would immediately return 30,000,000 won as the funds necessary for the operation of the K K and L Corporation and L Corporation need to be urgently needed, in collusion with F, to the victim E at the above D office.”

However, at the time, the defendant and the F did not have the intention or ability to obtain the right to operate a boom restaurant and a lodging or to repay the borrowed money to the victim through its operation while the construction is not in progress.

The Defendant and F, as such, deceiving the victim as such, was remitted to the new bank account in the name of the Defendant as set forth in the No. 3 through 5 of the List of Offenses attached hereto from the victim to the new bank account in the name of the Defendant, including the sum of KRW 30 million on September 29, 201 and KRW 6 million on September 30, 201.

5) At the above D office around June 201, the Defendant conspired with F, “D is running a distribution center and coffee business at both high cities at present, and is expected to take over 40% of the MM 40% of the market price. And F is selling it in the future because it has a 100 tons of North Korean situation servers equivalent to 10 billion won at the market price. However, because there is no funds for the operation of the party headquarters, the Defendant would make an investment in money. On the other hand, the Defendant made a false statement that “D will return all investments and return all funds to the vice president of the company.”

However, the defendant and F did not have any sales or profit-making no business, and there was no intention or ability to pay the investment to the victim through the takeover or operation of the boom restaurant, MN Logistics Center at the construction site.

As such, the Defendant and F, as indicated in the [Attachment] List Nos. 17 through 29, 31 through 33, a sum of 68,945,00 won was transferred by 16 times until July 5, 2013, including by deceiving the victim and remitting the amount of KRW 4 million from the victim on August 23, 201.

As a result, the Defendant, in collusion with F, by deceiving victim E, received a total of KRW 559,945,00 from the victim in total over 31 times.

(b) Fraud against the victim N;

On July 31, 201, the Defendant conspiredd with F and made an investment to the victim N in the above D office "at the 0th of the first 201 construction site, it has secured the right to operate the restaurant. At the beginning of the construction from September, the Defendant would give 25% of the profits. The Defendant would pay the principal and the agreed interest until December 31, 201 if the operation of the restaurant is not properly performed."

However, at the time, the defendant and F did not have the intention or ability to secure the right to operate the restaurant at the 0th construction site or to return the investment to the victim through its operation.

The Defendant and F, as above, deceiving the victim and had the victim participate in the business of operating the above Hab restaurant during the same month, to convert the victim’s loans worth KRW 50 million into equity, and was transferred from the victim’s new bank account under the name of the Defendant to KRW 30,500,000 on the 18th day of the same month, KRW 50 million on the 26th day of the same month, KRW 30,000 on the 26th day of the same month, and KRW 305,000 on the 26th day of the same month.

Accordingly, the Defendant and F have obtained financial benefits equivalent to KRW 50 million of the amount of the loan granted by deceiving the victim and making a debt-equity swap as above, and acquired the amount of investment KRW 150 million.

2. Determination

(a) Relevant legal principles;

The intent of the crime of defraudation, which is a subjective constituent element of fraud, shall be determined by comprehensively taking into account the objective circumstances such as the financial history, environment, details and details of the crime before and after the crime, and the process of performing transactions, insofar as the defendant does not confession, etc. Meanwhile, the conviction should be based on evidence with probative value that leads to the conviction that the facts charged are true to the extent that there is no reasonable doubt. Therefore, if there is no such evidence, even if there is a doubt of guilt against the defendant, it is inevitable to determine it as the benefit of the defendant, and the same applies to the recognition of the criminal intent, which is a subjective element of the crime of fraud (see, e.g., Supreme Court Decision 2010Do6659, May 10,

In addition, the establishment of a co-principal shall be determined by examining the status and role of each person through the whole process of realizing the crime, the contents of solicitation for accomplices, etc., and the relationship of mutual use should be proved to the extent that there is no reasonable doubt, and if there is no such proof, even if there is suspicion of guilt against the defendant, the interest of the defendant shall be determined (see Supreme Court Decision 2002Do5112, Mar. 11, 2005).

B. In light of the following circumstances acknowledged by comprehensively taking account of the evidence presented by the Prosecutor, it may be deemed that the Defendant conspired with F to commit a crime of deceiving the victim E and N, by deceiving the victim.

1) The Defendant, along with F, established D with F, was in the position of its representative director. The Defendant had F use the Defendant’s personal passbook in relation to the business that F was seeking to promote. The Defendant was transferred most of the investment funds or loans received from the victim E and N to the Defendant’s personal passbook.

2) The Defendant solicited the victim E to make an investment in the tri-party restaurant, thereby the victim E made an investment in the Defendant and F.

3) The Defendant and F signed and sealed the cash custody certificate (2/62 pages of evidence records) sent by the victim E by the Defendant and F to the victim E as the guarantor of the cash custodian, as well as the Defendant, and the Defendant signed and sealed the cash custodian’s signature and sealed it as the guarantor of the cash custodian, and the Defendant signed and sealed the Defendant as the obligor even in the P Joint Operation Agreement (2/63 pages of evidence record stamp) stating that in a case where there is doubt about the profits of the brin restaurant, the amount of investment of the victim E would be paid by September 30,

4) The Defendant and F stated that the Defendant and F have acquired 80% H equity 80% price in the name of the Defendant and their birth (or omission) (Evidence Records 1:39 pages, Witness F’s statutory statement 6-7 pages).

5) The Defendant stated that the victim E can secure more than one billion won even if H was sold at auction (Evidence No. 1:39 pages) and that F has a situation mushroom equivalent to one billion won (Evidence No. 1: 207-208 pages).

C. Determination

However, in light of the following circumstances acknowledged by the record, it is difficult to view that the evidence submitted by the prosecutor alone is insufficient to prove that the Defendant conspired with the F to induce the victims, knowing that the progress of each business listed in the facts charged was uncertain, or that the Defendant did not have any actual intent to conduct the business, and thereby, the Defendant was aware that the Defendant did not have any intent or ability to repay money from the victim E and N, even if invested or borrowed

1) In light of the following circumstances, it cannot be readily concluded that the Defendant was aware of the circumstances, unlike the appearance of each business listed in the facts charged, that the process is uncertain or that the Defendant did not intend to conduct the business.

(1) A person who has negotiated and entered into a contract with a third-party restaurant, a Pcafeteria, and a M M accepted shall be F (Evidence Nos. 331, 331, 26, 33-1, 33-2, and there is no evidence to acknowledge that the Defendant was engaged in external business. Rather, the Defendant knew that the Defendant was aware of M’s transfer/acquisition of the right to supply goods between Q and R S (Evidence No. 1, 326, 331) or S’s name on June 10, 201 (Evidence No. 3331), the corporate seal impression (Evidence No. 1, 334, 1, 334, 1, 335, 1, 1, 336, 1, 336, and 1, 3366, and 31, 201, 331, 201, 201, 201, 33366, etc.).

② The Defendant actually deposited money with the H account in the name of the H as the acquisition price, and there is also a possibility that D’s employees believe that the said business would properly progress and yield profits since they intended to take over and take over the business at the workplace. F stated “I ambling out the fact H business” (Evidence No. 1, No. 267 pages), but there is no evidence to prove that the Defendant knew that there was no feasibility of the said H business.

There is no evidence to acknowledge that the Defendant was involved in the external progress of the project or that there was a possibility of the progress and detailed implementation of the project, and that the Defendant received documents related to the above K and L site accommodation contract from F, and F was only F, 292 pages, 297 pages, 303 to 325 pages, and 303 to 325 pages, and there is also a possibility that it was believed that the said project will progress clearly. Rather, there is a possibility that the Defendant believed that the said project will progress clearly (Evidence Record No. 1, 318 to 325 pages).

④ In the case of vehicle security credit business, F was to give money to X and to receive a vehicle and interest (Evidence No. 60 pages, No. 218 pages), and there is no evidence to prove that the Defendant participated in the course of the transaction or was aware of the specific details of the transaction.

2) From July 201, the victim E worked as the vice president and auditor of D. Since around September 201, the victim N was working as the director from around September 201, and the victim E was in charge of accounting and the victim N and the victim N and the victim N were working as the director in charge of accounting. Therefore, the victim E knew that D had no particular asset and profit-making after the victim had worked as the victim himself and the victim N and He had been aware that D had been working as the victim N and He had no profit-making. In addition, the victim E had known that the repayment would depend solely on the success of the business promoted by F. Therefore, in order to recognize that the Defendant participated in the public recruitment and fraud in the part below the No. 3 of the attached crime list, it should be presumed that the Defendant was aware that the business promoted by F was significantly uncertain or that F had no intent to proceed with the business, as seen above, it is difficult to recognize this as above.

3) The victim E and N thought that the Defendant was also the victim who was deceiving from F, and suggested that the Defendant filed a complaint with F along with the said victim (the victim’s statement 21 pages). The victims thereafter filed a complaint with the Defendant as an accomplice. It is not because the victims thought the Defendant as the same victim and argued that the Defendant was an accomplice, but it seems that the Defendant was aware of the fact of the Defendant’s conspiracy. It seems that the Defendant merely believed the Defendant as an accomplice until then and said that the Defendant was well aware of the Defendant’s business (22 pages of the witness E’s legal statement). Considering these circumstances, it is difficult to believe the victim E and N’s statement related to the Defendant’s participation in the solicitation as it is.

4) There is no evidence to acknowledge that part of the money the F acquired by the victim E or N was distributed or used individually by the Defendant.

5) The F made a statement to the effect that the Defendant continued to believe F’s words in this Court and that F was the victim E and N.

3. Conclusion

Thus, the facts charged in this case constitute a case where there is no proof of a crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment is publicly announced under Article 58(2)

presiding judge, judges, vibration

Judges Park Jong-soo

Judges Kim Jae-nam

1) 1. On-the-spot restaurant contract is the party D, but the representative appears to have been in fact F as it appears to have been written in F (Evidence Records Inspection 321 to 325 pages).

A person shall be appointed.

A person shall be appointed.