2017Gohap1294 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

A

The exchange of materials (prosecutions) and Kim Young-Nam (Trial)

Attorney Lee Han-ho (Korean Civil Code)

June 8, 2018

A defendant shall be punished by imprisonment for not less than one year and six months.

Criminal facts

On April 16, 2015, the Defendant stated that “A victim D shall have eight trillion won not registered with the Bank of Korea in a warehouse managed by the Government. A cash of KRW 500 million may be provided and registered with the unregistered cash and used. If the Defendant borrowed KRW 500 million, he/she shall be repaid within one week, and at the last time, he/she shall be provided with KRW 30 billion of business funds.”

However, on April 18, 2014, the Defendant was well aware of the fact that there was a problem in E business, such as stating that “A” is a problem in E business, by making a false statement to the FO that “A” person who is “E has been in custody in the net warehouse, but who is required to transfer it to Seoul, would be able to pay money if it is required to handle it, and would also receive business funds.” The Defendant was also aware that there was a problem in E business by making a false statement to the effect that E is “A”.

Furthermore, while borrowing and delivering KRW 00 million from many persons at the time of borrowing, there is no possibility of being recovered as a project impossible, and there was no intention or ability to repay the money even if the money was borrowed from the victim.

Ultimately, the Defendant, as such, by deceiving the victim, received KRW 450 million from the victim on April 16, 2015, and received KRW 450 million from the check, and received KRW 50 million from the account under the name of the Defendant on April 17, 2015 (in the indictment, it is apparent that it is a clerical error) to May 8, 2015, such as receiving KRW 90 million from April 17, 2015 to receiving the remittance of KRW 90 million from May 8, 2015.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of witness D and E;

1. A copy of each protocol of suspect examination (including part of each statement ofG and H) of each prosecutor's office against the defendant and a copy of the judgment or passbook attached thereto;

1. Part of the defendant's statement in the copy of each protocol of examination of partially the prosecution about E;

1. Each of the statements made by the defendant in the police interrogation protocol against the defendant D, G, H (part), and E (part)

1. Part of the protocol of interrogation of the police officer with respect to H and some statements attached thereto;

1. Each police statement made to I and D;

1. A copy of the protocol of statement by the police against the defendant (Articles 102 through 110 of the evidence record);

1. Copy of the complaint filed by the defendant;

1. Written complaint filed by D, and copies of the photograph, loan certificate, certificate of personal seal impression, promissory note, and defendant's written confirmation attached thereto;

1. Investigation report (the non-prosecution decision of the suspect A and the protocol of suspect interrogation, E statement of statement, etc.) and each attached document; copy of the non-prosecution decision of the prosecutor's office; copy of each police interrogation protocol of the accused; copy of each police officer's interrogation protocol of the accused (including the F's statement); statement of deposit transaction (including the submission of materials of the complainant); statement of investigation report (the submission of documents of the results of electronic financial transfer); confirmation of deposit transaction results attached thereto; and details of deposit withdrawal;

Judgment on the Defendant and defense counsel's argument

1. Summary of the assertion

Although the defendant borrowed 540 million won (hereinafter referred to as "the money of this case") under the name of the victim in connection with the old sphere monetary business (hereinafter referred to as "the business of this case"), the defendant merely borrowed the above money from the victim E with the belief that there is a real existence of the business of this case and there is no problem in the business of this case, and thus, it cannot be deemed that the defendant deceivings the victim or was the criminal intent of deceiving the defendant.

2. Determination

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 Defendant’s financial history, environment, details of the crime, and the process of performing transactions before and after the crime, insofar as the Defendant does not make a confession, and the criminal intent is not a conclusive intention, but a dolusent intent is sufficient (see Supreme Court Decision 2007Do10416, Feb. 28, 2008). In full view of the following circumstances acknowledged by the evidence of the prosecutor’s submission duly adopted and investigated by the court, the Defendant can be sufficiently recognized the fact of deceiving the victim with the intention of defraudation, and thus, this part of the assertion by the Defendant and the defense counsel is not acceptable.

① According to the Defendant’s statement, if the content of the instant business out of the total amount of KRW 8,00,000,000, which is kept in the original managed by the Government of the Republic of Korea, “E” purchased and registered with the Bank of Korea in the amount of KRW 320,000,000, which is the seat of J, the amount of KRW 8,000,000, and the Defendant received KRW 30 billion from J. In light of the ordinary people’s rule of experience, it seems that it is difficult to easily believe the above content of the business, and is very low in feasibility.

② The Defendant paid funds of at least 400 million won to E from August 23, 2013 to October 7, 2014, prior to borrowing the instant money from the victim, as the expense for the instant project. However, the Defendant did not know about the long-term payment of money, but did not know about the circumstances leading up to holding the unregistered currency, and did not have any effort to verify whether the instant entity exists or not, such as directly viewing the warehouse manager having contact with E, etc. (Evidence No. 387 of the evidence record, No. 2 of the witness’s examination record), and (iii) if the Defendant did not know that the Defendant had paid the money to E at an investigative agency, the Defendant did not have any further demand to pay the money of KRW 1350 million and KRW 400 million after 100,000,000,000,000 to 380,000,000 won, and did not appear to have been 50,000,000 won.

④ Even before the instant case, the Defendant filed a criminal complaint with the effect that “the Defendant acquired 36 million won or more as a security guard for the instant business” with F around September 2013. However, as alleged in the instant case, the Defendant received an investigation from an investigative agency, and, as the Defendant claimed in the instant case, provided that “K (E) has kept the right to make funds in the net warehouse and would have borrowed money from F along with the money if it is lent the transportation cost,” and that “I would pay the money borrowed from F along with the money” (Evidence No. 540), “I would like to file a complaint” in the second police investigation (Evidence No. 53 of the evidence record), “I would like to receive money if I would not receive money from the Defendant (Evidence No. 510 of July 10, 2014), and the third police investigation (Evidence No. 553 of the evidence record), and I would like to accept the Defendant’s statement to the effect that “I would not receive any money from the Defendant’s criminal case (Evidence No. 154515 of the evidence).515 of the record.

⑤ As seen earlier, the Defendant was aware of the fact that the instant project did not properly proceed, even though he/she invested considerable funds to E for a more than one year. However, even though he/she was in a situation where a criminal complaint was filed from a third party due to the instant project due to the reason related to the instant project, on April 16, 2015, the Defendant promised to repay the principal to the victim who was first in late late April 20, 2015 and to lend an additional amount of KRW 30 billion to the Defendant, and then borrowed the instant money. If the Defendant did not express his/her intent to repay all principal in the short period, the victim would have borrowed the instant money from another person and would not have given the Defendant a loan to the Defendant until the date of the instant money.

④ At the time of borrowing the instant money from the victim, the Defendant had already been liable for the amount exceeding KRW 400 million, and thus, the Defendant did not have economic ability to repay the amount of KRW 540 million to the victim, in addition to the proceeds from the instant project (Evidence No. 494 of the Evidence Record).

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) of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (the commission of the instant crime intentionally with negligence, etc.)

1. Reasons for sentencing: Imprisonment with prison labor for a year and six months to fifteen years;

2. Scope of recommendations according to the sentencing criteria;

[Determination of Punishment] General Fraud. Type 3 (at least 500 million won, less than 5 billion won)

[Special Mitigation] In the case of an intentional act of deception, the victim is also liable for the occurrence of the crime or the expansion of damage.

[Recommendation and Scope of Recommendations] Special Mitigation Area, 9 months to 4 years of imprisonment

[Scope of the revised sentencing] One year and six months from six months to four years (the lowest limit of the sentencing range recommended by the sentencing guidelines is lower than the minimum limit of the applicable sentencing range in law, and thus, according to the statutory minimum limit of the applicable sentencing range).

3. Determination of sentence: Imprisonment with prison labor for one and half years; and

It is difficult to view that the Defendant committed the instant crime with the intention of actively deceiving the victim beyond dolusence and deceiving the money, and most of the funds borrowed from the victim to E are paid as they are, and the criminal proceeds actually consumed or held by the Defendant are not larger than the amount of fraud, and even for the victim who knowingly used the funds as illegal name, there is no extenuating circumstance to consider the Defendant, such as the expectation of profits from the crime and the victim who borrowed the money, even though he was in a considerable responsibility for the occurrence or expansion of the instant crime. However, on April 2, 2014, the Defendant committed the instant crime even if he was sentenced to a suspended sentence of 1 year for a period of imprisonment with prison labor for 4 months at the Daejeon District Court, which was sentenced to a suspended sentence of 1 year for the crime of this case, even though he had consulted about the damage caused by the instant crime, and the Defendant was arrested without attendance at the investigative agency despite being aware of the fact that it was difficult to view that considerable efforts were made to recover the damage even after the victim’s death.

The judge of the presiding judge shall be net;

Judges Choi Dong-hwan

Judges Kim Gin-han