2020No1435 Violation of the Special Act on Insurance Fraud Prevention, Fraud, Special Violence, Damage to Special Goods, Interference with Business, and Special Act on Insurance Fraud Prevention.

A

Both parties

Park Jong-il (prosecution), South Korean defectors (public trial)

Law Firm L&S Partners, Attorneys Lee Jae-in, and Domins

Seoul Eastern District Court Decision 2020Ma2612 Decided October 21, 2020

March 12, 2021

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for a term of one year and ten months.

1. Summary of grounds for appeal;

(a) A prosecutor;

The punishment sentenced by the court below (two years of imprisonment) is too unhued and unfair.

B. Defendant

The punishment sentenced by the court below is too unreasonable.

2. Determination

The defendant's crime of this case is about 5 years by intentionally causing an accident or over 1,50,00 won from the insurance company or the other driver by infusing the damage through the method of intentionally causing an accident or overcoming the damage, and caused an accident that intentionally receives an ambulances to change the course of his own taxi through two times, and in light of the period of the crime and the method of the crime, the crime of June 8, 2020 is not poor. In particular, the crime of June 8, 2020 when the defendant knew that the patient was aboard the damaged first-aid vehicle after the accident caused intentionally, even though the patient was informed of the accident after the accident occurred, it prevents the patient transfer service for more than 10 minutes until the accident site, and considering the urgency of his duties and the risk that it might be caused by the obstruction of the defendant's business, it is very likely to be criticized, and the family members of the patient's family subject to the patient transfer service want to be punished by the defendant, which is disadvantageous to the defendant.

However, in full view of the following circumstances: (a) the Defendant’s mistake was recognized in the first instance trial; (b) the Defendant agreed with the victims up to the trial; and (c) the Defendant’s age, character and conduct, environment, occupation, details and contents leading to the instant crime; and (d) other circumstances that form the sentencing conditions on the records, such as the circumstances after the commission of the crime, etc., the sentence of the lower court is too unreasonable. Therefore, the prosecutor’s above assertion is without merit, and the Defendant

3. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is judged as follows

Criminal facts and summary of evidence

The summary of the facts constituting the crime recognized by this court and the summary of the evidence is the same as that of the judgment of the court below, except for adding the "court statement of the defendant in the summary of the evidence" to the statement in each corresponding column of the court below. Thus, it is cited as it is in accordance with Article 3

Application of Statutes

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

Article 347(1) of the Criminal Act (Fraud's point of fraud), Article 8 of the Special Act on Insurance Fraud Prevention, Articles 261 and 260(1) of the Criminal Act, Articles 352 and 350(1) of the Criminal Act, Articles 10 and 8 of the Special Act on Insurance Fraud Prevention, Article 34(1) of the Criminal Act, Articles 369(1) and 366 of the Criminal Act, Article 314(1) of the Criminal Act, Article 8 of the Special Act on Insurance Fraud Prevention, Article 34(1) of the Criminal Act, Article 350(1) of the Criminal Act, Article 352 and Article 350(1) of the Criminal Act, Article 369(1) of the Criminal Act, Article 366 of the Criminal Act, Article 314(1) of the Criminal Act, Article 8 of the Special Act on Insurance Fraud Prevention, Article

1. Aggravation for concurrent crimes;

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

Reasons for sentencing

1. Scope of applicable sentences under law: Imprisonment with prison labor for one month to 15 years;

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

(a) First offense (Interference with business);

[Determination of Punishment] Obstruction of Business Affairs / Obstruction of Business Affairs / Obstruction of Business Affairs

[Special Sentencings] Reductions: Reductions (including serious efforts for recovery of damage)

Aggravations: Where the degree of interference with business is serious where the method of crime is extremely poor;

[Recommendation and Scope of Recommendation] Aggravation, Imprisonment from one year to three years and six months;

(b) Second crimes;

[Determination of Punishment] Violence 03. Assaults / [Type 6] Repeated / Special Violence

[Special Sentencings] Reductions: In a case where punishment is not imposed (including serious efforts for recovery of damage) or substantial damage has been recovered.

[Recommendation and Scope of Recommendations] Reduction Area, Imprisonment of two months to one year and two months;

(c) Third offense (Fraud);

[Determination of Punishment] Fraudulent Crime: General Fraud [Type 1] below 100 million won

[Special Sentencings] Reductions: If punishment is not granted or a significant damage is recovered;

[Recommendation and Scope of Recommendations] Reduction Area, Imprisonment from one month to one year

(d) Scope of recommending punishment according to the standards for handling multiple crimes: Imprisonment with prison labor for not less than one year (a concurrent crime with an offense for which no sentencing guidelines are set);

(e) Scope of recommended sentences modified by applicable sentences: One year to 15 years (where the upper limit of the range of sentences recommended by the sentencing guidelines is inconsistent with the statutory upper limit of applicable sentences, it shall be in accordance with the statutory upper limit of applicable sentences);

3. Determination of sentence;

In the above reasons for reversal, the sentence shall be determined as per the Disposition after considering the factors of the sentencing.

Justices Kim Jong-ho

Judges General of the Republic of Korea

Judges Shin Sung-sung