2013Gohap1073 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

A

Maintenance heat, duplicating, and duplicating trials

Law Firm B, Attorneys C, and D

February 11, 2014

The defendant shall be innocent.

1. Summary of the facts charged

On November 6, 2012, the Defendant made a false statement to the effect that, at the office of the F Co., Ltd. (hereinafter referred to as the “F Co., Ltd.”) located on the first floor of Jongno-gu Seoul E building, the Defendant supplied electric wires produced and sold by the G Co., Ltd. (hereinafter referred to as “G Co., Ltd.”) to the business directors of the victim G Co., Ltd. (hereinafter referred to as “G Co., Ltd.”) to “G Co., Ltd., the Defendant would deliver and sell them to Samsung affiliate companies at the site and pay the price on the 15th following the following month.” However, the Defendant did not have any specific plan to deliver electric wires supplied by the G Co., Ltd. to Samsung affiliate, and did not have any intent

On November 6, 2012, the Defendant: (a) informed the victim G company, and was supplied with clothes cut lines equivalent to KRW 106,368,350 from the I logistics warehouse at Chungcheongnam-gu, Chungcheongnam-do; and (b) from that point, the Defendant was supplied with clothing cut lines equivalent to KRW 685,804,695 in total eight times until December 20, 2012 (hereinafter “the instant electric wires”).

Accordingly, the defendant was given property by deceiving the victim.

2. Determination

1) Whether fraud is established through the defraudation of transaction goods shall be determined by whether there was an intentional intent to acquire goods from a victim by deceptive means as if the victim were to repay the price of goods, even though there was no intent or ability to do so at the time of transaction. Therefore, it cannot be deemed that the crime of fraud is not established on the ground that it was impossible to repay the price of goods in a lump sum after the delivery due to changes in economic conditions, etc. (see Supreme Court Decision 2002Do5265, Jan. 24, 2003).

2) In full view of the following circumstances recognized by the Defendant’s legal statement, J, H, and K’s legal statement, written statements, written estimates, written statements by each F Company’s passbook, and written statement by customer director, it is difficult to recognize that the Defendant acquired the instant electric wire by deceiving the Defendant by deceptioning that the Defendant would immediately pay the delivery price from the beginning without intention or ability to pay the delivery price.

① The FF company operated by the Defendant purchased electric wires at the FF company’s expense, and supplied them to the seller, and operated by means of paying the price for supply. Therefore, it is not necessarily required to receive electric wires in a state where the seller is clearly established, but it is not necessarily required to pay the price for the sale of electric wires to the supplier of the electric wires.

② On February 2012, L Co., Ltd. (hereinafter referred to as “L Co., Ltd.”) received electric wires equivalent to KRW 100-2 million from F Co., Ltd. (172 pages of investigation records) from L Co., Ltd. (hereinafter referred to as “L Co., Ltd.”) as electrical construction company, and from M Co., Ltd. (hereinafter referred to as “M”) around February 2012, L Co., Ltd. (hereinafter referred to as “M”) received the supply of electric wires at the construction site of STS semiconductors factories (172 pages of investigation records). L Co., Ltd requested F Co., Ltd. to estimate electric wires, etc. to be put into the said site on March 3, 2012 (68 pages of investigation records). K directors of L Co., Ltd stated to the effect that, on September 20, 2012, a large amount of electric wires would be necessary at the end of 2012.

Around October 2012, the Defendant requested the Hanmi Electric Cable Co., Ltd. and G Company to estimate some of the items included in the above estimate. Among them, the Defendant ordered electric wires to be supplied with the instant electric wires from November 2012.

On the other hand, L Company received from M on June 2012 and received electric wires from F Company from E.M. Around December 2012, M Company called F Company to recover electric wires from F Company upon the suspension of the construction due to M’s statutory management. At the time of M’s default on payment to K, the Defendant first respondeded that the semiconductor plant construction would become a semiconductor plant construction, and K had already failed to receive orders for September. In light of these circumstances, it is highly probable that the Defendant would have been able to supply to M’s semiconductor plant at least at least at the time of the delivery of the instant electric wires to the Defendant.

③ The Defendant had been operating the F Company since 2000. Since around September 2008, there were several trading companies with L Company and L Company from September 2009, and there were several other trading companies. Electric wire trading was made by means of credit transaction in the following month and following month after receiving ordinary goods. The F Company continued to receive the payment from other trading companies by not later than October 1, 2013. The electric wires amounting to KRW 4,992,00 in April 201, around July 201, around KRW 3,289,200 in July 200, around KRW 38,113,200 in supply from G Company and pay the payment by not later than December 20, and even until January 2013, the former continued to receive the payment from other trading companies.

④ The Defendant, who has operated a F Company for more than ten years, appears to have no interest in receiving a large amount of electric wires for the purpose of disposing of electric wires without permission and appropriating the price thereof, and the Defendant does not immediately dispose of the instant electric wire deliveryer.

In addition, even if the Defendant disposed of the instant electric wire supplied by the Defendant without returning it to G company, it is difficult to presume that the Defendant had the scope of deceit at the time of receiving the instant electric wire delivery (the contractual relationship between the Defendant and G company is not a consignment sale but a simple sale, so the Defendant’s disposal act is a disposal of the Defendant’s own goods under his responsibility, and is bound to be a civil liability).

3. Conclusion

Therefore, since all of the facts charged in this case constitute a case where there is no proof of crime, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

The presiding judge, the whole judge;

Judges Training Sub-Appellant

Judges Kim Gin-sus