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

(b) Violation of the Act on the Aggravated Punishment of Specific Economic Crimes;

1. A;

2. B

Han Han-il (Court of Prosecution), Gangwon-gu (Court of Public Trial)

Attorney C (Korean National Assembly for Defendant A)

Law Firm D, Attorneys E and F (Defendant B)

March 22, 2018

Defendant A shall be punished by imprisonment for six years, and imprisonment for two years and six months, respectively.

However, with respect to Defendant B, the execution of the above sentence shall be suspended for four years from the date this judgment became final and conclusive.

Criminal facts

1. The 11th e-commerce business structure of the e-commerce 11st Ga, G, and KGGGGGGB L L, Inc., is an Internet shopping site operated by the KSP, and the 111th 11th Ga, if a seller registered on the website (hereinafter “business operator accelerator”) sells a product to consumers through the 11th Ga, it is an open market company, which makes an open market company settle the remainder after deducting a certain amount of the sales proceeds from the consumer after deducting a certain amount of the sales proceeds.

G Co., Ltd. (hereinafter referred to as "G") orders the goods of "G" through No. 11 KG 1, and the goods of "G" are the resale specialized company that purchases the goods of the same price as the goods sold by "G 11 ID individual employees" and delivers them to consumers and distributes the difference as profits from the sales of "G 11". The sales of the goods of "G 11" to "G 11 individual employees of the above "G 11" and the sales of the goods of "G 15 days after 45 days after the purchase of the goods of "G 11" to "G 200," the sales of the goods of "G 15 days after the purchase of the goods of the goods of "G 10," and the sales of the goods of "G 15 days after the purchase of the goods of "G 10," including the sales of the goods of "G 10,000 employees of "G 20,000.

On the other hand, while Defendant A takes overall charge of BO C affairs of “G” as the team leader of the online business division as above, he/she has operated a business to receive a large amount of card sales from the card company and receive a refund of 1.8% of the card sales from the card company to the card user by taking advantage of the fact that the card company has a service to refund 1.8% of the card sales to the card user, and to register each 11 as the site operator's accelerator and then make a transaction between the above Facecomer, and then to receive a large amount of card sales from the card company and take profits therefrom.

Defendant A, while carrying out the above business, failed to provide funds for the business necessary for the payment of investment funds to investors, the expenses for the maintenance of Pucom, and the transaction fees necessary for self-transaction, etc., Defendant A requested that “G pay in accordance with the actual customer’s order so that “G” under the duty of due care of a good manager can be repaid at the maturity date. Although there was an occupational duty to comply with the ordinary online sales agency procedures such as collecting and repaying funds through open market, Defendant A pretended that “G” in violation of its duty was ordered by consumers, and then used the pre-payment funds of each Pucomer operated by the Defendant to use them as Defendant’s personal business funds by acquiring the pre-payment funds.

On February 28, 2014, Defendant A received an order from “G” to “A, without having received an order from “G” to “A”, and ordered Defendant B to purchase the same product from “Irrrrrrrrrrrrrrr's prior payment. In accordance with the above order, Defendant B ordered Defendant B to purchase the same product sold by “L” to “Irrrrrrrm,” “F1352 NZ in the name of the product,” “1 (1)(1)(1)(1(11(1)(Grrm, and submitted a false order to “Krrrrrrm's purchase price to “Grrrm's purchase price.”

However, L did not order LG laves laves to "G" as a person who violated the duty of the Defendants, and (State) made by the Defendant, and the prior payment deposited into the (State) account through 11 A was thought to be personal use by the Defendant, so even if LG laves purchase price was made in advance by the victim, there was no intention or ability to settle the prior payment to the victim later.

Nevertheless, the Defendants conspired to induce the victim to make a prior payment of KRW 615,120 of the purchase price of "G" in the 11-A, and then received approximately KRW 615,120 from the account in the name of the seller (state) through No. 11a, and received approximately KRW 615,120 from the above date and time to July 9, 2015, the victim's "KGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGG loan's total amount of KRW 35,428,164,277, as above, KRW 11-A, and KRW 35,428,164,277, and KRW 967GGGGGGGGGG's money to be paid at will.

Summary of Evidence

1. Defendant B’s partial statement

1. Statement made by the defendant A in the second preparatory hearing record;

1. Each statement of the witness M in the first trial records A and the third trial records (with respect to each defendant B);

1. Each prosecutor's protocol of statement about N,O, P, Q, R, S, T, U, and V;

1. A commodity supply contract (including a renewed portion on December 4, 2013), a full certificate of each registered matter (including a dispute resolution, the LAB, X, K), G organization, documents on the settlement of accounts of G and parent loan loan, documents on the settlement details of accounts of purchase cards of each bank (account), details of expenditure, application documents for membership registration, etc., analysis report (Ncas settlement service contract), Mcas settlement service contract, list of accounts of parent loan loan loan electronic equipment settlement agency and accumulated amount;

1. Each investigation report (the normal trade and review of processing trade, analysis of NET O message);

1. Application of the CD-related Acts and subordinate statutes (the details of settlement of the business purchase card and the purchase list storage);

1. Article applicable to criminal facts;

Article 3(1)1 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 13719, Jan. 6, 2016; hereinafter the same), Articles 347(1) and 30 of the Criminal Act ( comprehensively including fraud, choice of limited imprisonment), Articles 3(1)1 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356, 355(2), and 30 of the Criminal Act

1. Commercial competition;

Articles 40 and 50 of each Criminal Code . [Punishments prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) with a heavier offense]

1. Discretionary mitigation;

Defendant B: Articles 53 and 55(1)3 of the Criminal Act (Consideration of favorable circumstances among the reasons for sentencing below)

1. Suspension of execution;

Defendant B: Determination as to Defendant B and defense counsel’s assertion of favorable circumstances among the grounds for sentencing under Article 62(1) of the Criminal Act

1. Fraudulent part

A. Summary of the assertion

Defendant B did not know the existence of Puercom or the structure and content of the instant fraud crime, and did not follow the instructions of Defendant A. Defendant B, without awareness of the victim’s damage incurred, did not prepare a false order with the knowledge that it is necessary for G sales and management and that it was a normal business, and did not attract or take part in the commission of fraud.

B. Determination

1) Relevant legal principles

In relation to accomplices who are co-processed with two or more persons in a crime, the conspiracy does not require any legal penalty, but is a combination of two or more persons to jointly process the crime and realize the crime. Even if the co-principal of the fraud knew in detail the method of deception, the conspiracys cannot be denied (see, e.g., Supreme Court Decision 2013Do5080, Aug. 23, 2013).

2) In the instant case, comprehensively taking account of the following facts and circumstances acknowledged by the evidence adopted and examined by the court, even if Defendant B was unable to specifically know whether the J and I et al. do so, and whether the settlement amount due to false orders would go through any transfer process, it is sufficiently recognized that Defendant A, in collusion with Defendant A as stated in the facts constituting the crime, acquired money by deceiving the victim KGB loan advice in collusion with Defendant A.

① Although Defendant B does not have the order from a customer, it was clearly aware that Defendant B prepared a false order as if it was ordered by using the existing customer information and made it possible for the victim KGI loan to make a prior settlement. In other words, Defendant B was aware that the victim was dispositive act due to his own deception.

② Defendant B had been engaged in a false sale due to a shortage of sales from Defendant A, and the Republic of Korea was ordered to make it up only after the order was finally arranged. Defendant B did not know how G could recover the prepaid amount, whether it could be recovered clearly, and the explanation was not given.

Therefore, Defendant B seems to have been fully aware of the possibility that advance payment could not be repaid.

③ Defendant A notified only the total amount of false orders every day, and Defendant B prepared a false order by arbitrarily designating and indicating the name, order number, contact number, delivery site address, and product name of the orderer. In the process, Defendant B entered and processed the same order number in the so-called “re-sale program” of G by means of the settlement of the same order number, thereby resulting in an error. In order to prevent such error, Defendant B’s act constitutes a significant role in the entire process of the instant crime, and is merely a mechanical act in accordance with Defendant A’s instruction.

④ Defendant A instructed Defendant B to notify the other employees or customers of the circumstances causing false sales. In particular, Defendant A took care of the fact of preparing false documents at the time of entering the 11-A and the place of meal with the staff in charge of KGGGG loan. Moreover, in the structure of settlement flow, the settlement flow does not seem to have been concerned with the possibility that the advance payment would not have been paid as it is for the size of sales or the profit from the commission. Therefore, even if Defendant A made a statement that Defendant B would require false orders, it is difficult to see that Defendant B believed that it was difficult [the Defendant (i.e., “A was known by this court that he was aware of the fact of false orders,” but, in the course of investigation, Defendant B stated that “KG loan loan was a normal order (170, 173, 273).”

Therefore, the defendant B and the defense counsel's above assertion is not accepted.

2. Part on occupational breach of trust

A. Summary of the assertion

Defendant B prepared a false order with the knowledge of the business necessary for the management of G and the normal business, without recognizing whether Defendant A used the payment in advance without repaying it to KGGle Loan, and that the victim G would incur damage. Defendant B did not attract or take part in the crime of occupational breach of trust.

B. Determination

1) Relevant legal principles

In order to establish the crime of occupational breach of trust, the perception and consequence of the occupational breach of trust is a subjective element, and therefore there is an intention in breach of trust to acquire the benefit of himself/herself or a third party and inflict damage on him/her. This perception is sufficient with dolusent perception. In cases where the defendant denies the criminal intent of the crime of occupational breach of trust, the facts constituting a subjective element of the crime of occupational breach of trust due to the nature of the object have to be proved by the method of proving indirect facts that have considerable relevance with the intention. In this case, what constitutes indirect facts having considerable relevance should be reasonably determined based on normal empirical rule (see, e.g., Supreme Court Decision 2009Do2086, May 28, 2009).

2) In the instant case, comprehensively taking account of the following facts and circumstances acknowledged by the evidence adopted and investigated by the court, it is reasonable to view that Defendant B conspired with Defendant A to have committed an act of breach of trust by impliedly collusion, with the intent to allow the Defendant A to take advantage of the benefit of Defendant A and the risk of damage to the victim G due to the false orders (or with the view to having been finally and conclusively recognized from March 2015).

① From November 25, 2013, Defendant B began to work in G. On or around February 28, 2014, Defendant B had been well aware of the business structure and settlement flow of G (around February 28, 2014, Defendant A also stated that “Defendant B was well aware of the normal sales progress). Therefore, Defendant B was well aware of the fact that false orders are different from that of G’s original duties and are contrary to the duties of G employee.

② As seen earlier, G is also aware that the customer who ordered the goods knew of the possibility that the pre-payment of the KGU loan loan from the false order would not be recovered to G. As such, the victim G was aware of the possibility that the pre-payment of the KGU loan loan from the false order would not be recovered to G. Thus, the victim G was able to incur losses due to the failure to settle the pre-payment to the KGU loan loan loan loan service.

③ Defendant A notified Defendant B of the fact that he caused false sales to another employee or customer, i.e., “the fact that he caused false sales to the other employee or customer,” and, at the same time, the officer asked the customer to confirm and make a statement, and instructed the other officers and employees of G to h to h to h to h to h to h to h to h. As such, even if Defendant A was in need of false orders to increase the sales of G, Defendant A’s belief that h to h to h to h to h to h to h to h to h to h to h to h to h to h to h to h to h to h to h to h to h to h to h to h to h to e to h to h to h to h to h to h to h to h to h to h to h to h to h to h to h to h to h to h to h to h to h to h to h to h to h to h to know.

(6) In particular, Defendant B knew from March 2015 that some of the advance payment payments have not been recovered due to a non-replacement, and instructed Defendant A to the effect that Defendant A’s representative director, etc. was not able to resolve if the purchase decision is delayed or the cancellation of the customer was not resolved. The latter increase in the number of false orders more than the transfer, and Defendant B was well aware of the fact that Defendant B, at the time, was in a situation where the advance payment due to false orders was not repaid.

Therefore, we cannot accept the above argument of the defendant B and the defense counsel.

Reasons for sentencing

1. The scope of punishment;

(a) Defendant A: Imprisonment with prison labor for up to 5 years from 30 years;

(b) Defendant B: Imprisonment with prison labor of two years and six months to fifteen years;

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

A. Defendant A

[Determination of Punishment] General Fraud 5 types (not less than 30 billion won)

[Special Emotionals] Mitigations: Where the risk of occurrence of damage is not substantially realized, the factors of aggravation: Where the method of occurrence of crime is extremely poor or the court commits fraud by deceiving the court in the trial proceedings, the teacher of the person under command;

[Recommendation and Scope of Recommendation] Aggravation, 8 years to 13 years of imprisonment

B. Defendant B

[Determination of Punishment] Types 5 (At least 30 billion won) (Special Sentencing) for fraud: In the event that the risk of occurrence of damage is not substantially realized, passive participation in the crime due to pressure, etc.

Aggravationd elements: The case of committing a fraudulent crime by deceiving the court in a trial proceeding is extremely poor or by deceiving the court.

[Recommendation and Scope of Recommendations] Reduction Area, 5 years to 9 years of imprisonment

3. Determination of sentence;

A. Defendant A

Defendant A planned a new type of law using the structure of approval agency in advance, and obtained the amount exceeding 35.4 billion won from the victim KGMono loan loan, and made G assume a large amount of repayment obligations, and the nature of the crime is not very good. In addition, on October 17, 2014, the Seoul Western District Court was sentenced to a suspended sentence of 2 years for a year of imprisonment with prison labor from the Seoul Western District Court for fraud, but did not stop the instant crime, rather did not stop, and rather did so. Defendant A attempted to escape to clarify the instant crime.

Therefore, it is inevitable to strictly punish the defendant.

However, the fact that all facts charged are recognized, and the mistake is divided in depth, and that it is difficult to regard the total amount of the above fraud as the actual damage of the victim's KGMono Loan.

In addition, in consideration of the age, family relation, environment, character and conduct, motive, means and result of the crime of Defendant A, all sentencing factors as shown in the pleadings of this case, such as the circumstances after the crime, etc., the punishment as ordered shall be determined.

B. Defendant B

Since Defendant B was aware of Defendant A’s fraud and breach of trust, he participated in the crime and caused a large amount of damage, it is necessary to punish the corresponding liability.

However, Defendant B did not have any history of criminal punishment, and only received 1.68 million won benefits, but did not possess and consume criminal proceeds, Defendant A’s participation in the crime according to the direction of the society as a senior citizen, and other factors of sentencing specified in the records and arguments of this case, including the Defendant’s age, character and conduct, motive and means of the crime, circumstances after the crime, etc., shall be comprehensively considered, and the punishment shall be determined as ordered by the order, beyond the lower limit of the recommended sentence according to the sentencing guidelines.

The presiding judge, judges, and the Yellow Constitution

Judges Kim Gin-soo

Judges Kim Gin-young