(영문) 서울중앙지방법원 2018.4.2. 선고 2017고합770 판결

Defendant A shall be punished by imprisonment with prison labor for three years, by a fine of three million won for the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), by imprisonment with prison labor for one year and six months, and by imprisonment with prison labor for Defendant B. If Defendant A fails to pay the above fine, the above Defendant shall be confined in a workhouse for the period calculated by converting KRW 100,000 into one day.

To order the defendant A to pay an amount equivalent to the above fine.

Reasons

(1) 【Criminal Power】

Defendant A was sentenced to a suspended sentence of two years for fraud, etc. at the Seoul Eastern District Court on March 30, 2009, and on May 13, 2010, the judgment became final and conclusive on May 24, 2016. On May 24, 2016, Defendant A was sentenced to a suspended sentence of three years for a two-year imprisonment at the Seoul Central District Court for fraud, and the judgment became final and conclusive on October 7, 2016.

Around March 2008, H Co., Ltd., Ltd., 2017 high-priced770, on the grounds of capital erosion, such as that foreign debt reaches approximately KRW 30.3 billion, and on March 4, 2008, the reason for the abolition of listing, respectively, was publicly announced by the KOSDAQ Registration Committee, as the reason for ‘proving of opinion based on the limit of audit scope by external auditors on financial statements for the latest business year on March 28, 2008.' In the end, the reason for the abolition of listing was delisting on April 12 of the same year.

A. Defendant A

On March 3, 2008, the Defendant entered into a contract with H, a representative director of H, acquiring the management right of H, B and the above company.

On March 2008, the Defendant entered into a contract with B and H to acquire management rights at KRW 1 billion and paid the down payment amount of KRW 200 million to the victim I at the beginning point of the Gangnam-gu Seoul Seo-dong, Seoul. On March 2008, the Defendant made a false statement to the victim I, stating, “The balance will be paid at the cost of the intermediate payment of KRW 200 million, and the management right will be paid immediately within two to three months, using the above company’s assets if transferred.”

However, at the time, the Defendant did not have any particular property or secured, and even if he borrowed KRW 200 million from the victim and paid it as part payment, the remaining KRW 600 million could not be provided. Therefore, the management right of H was not finally transferred. Since H was anticipated to delisting immediately due to the severe capital erosion, even if he borrowed KRW 200 million from the victim, he did not have the intent or ability to receive the management right of the said company and to repay the above borrowed money to the victim with the assets of the said company.

Nevertheless, on March 12, 2008, the Defendant received total of KRW 200,000 won per 1 copy, 30,000 won per cashier's checks issued by SC Japan bank in Gangnam-gu Seoul on March 12, 2008 from the victim. On March 12, 2008, the Defendant continued to receive KRW 120,000 won per 1,000 won per 30,000 won per 12 capital. On March 18, 2008, the Defendant extended the amount of H's acquisition of management rights to KRW 3 billion for the victim's principal and debt to KRW 1,000,000. If the Defendant borrowed KRW 60,000,000,000 to the victim's second part of part payment, it would not receive KRW 1,000,000,000,000,000,000 from H's assets as collateral and would not have been paid any balance.

However, the Defendant was unable to acquire management rights of H because it did not prepare a way to procure KRW 2 billion until the remaining payment date, and was anticipated to be delisting immediately since the conversion of investment, debt settlement, etc. with respect to H’s liabilities was not made conclusive. Therefore, even if borrowing KRW 600 million from the victim, the Defendant did not acquire management rights, thereby preventing delisting, and did not have the intent or ability to repay the victim’s borrowed money using H’s assets or to offer it as security to the victim.

Nevertheless, on March 21, 2008, the Defendant issued 100 million won's cashier's checks issued by Han Bank at the '0' office located in the New Apartment Distance in Seocho-gu Seoul, Seocho-gu, Seoul, and 100 million won's cashier's checks issued by Han Bank.

Accordingly, the defendant deceivings the victim and defrauds the total amount of KRW 800 million.

B. Defendant B

A around March 18, 2008, at the 'M' coffee shop located in Gangnam-gu Seoul Metropolitan City, the Defendant anticipated that A will immediately de-listing because it was not made conclusive in order to assist the Defendant in lending additional KRW 600 million from the victim, the conversion of investments and debt adjustment, etc. In order to the H debt company to assist the Defendant. Even if A acquires the management right finally, even if A acquires the management right, he knew that he did not have the intent or ability to repay to the victim with the H’s assets, even though he was aware that he did not have the intent or ability to repay to the victim, he would have to clear about KRW 10 billion in the assets, and thus, he would not be likely to be detached. H would not be subject to an absolute de-listing; H would not be subject to an absolute de-listing).

Defendant A, through Defendant A’s penal R R on August 2016, with Q to take over P, Co., Ltd., Ltd., Defendant A’s Madice Manufacturing Business, requested S to continuously purchase the shares until it reaches approximately KRW 10,000,00. On August 23, 2016, Defendant A issued KRW 80,000 as the price for the shares to the said S. However, unlike Defendant A and Q, as the price for the shares of the said S continued decline, Defendant A conspired with Q to file a false complaint against the said S in order to receive a refund of KRW 80,000 from the said S.

Accordingly, around September 7, 2016, Defendant A, along with Q, prepared a false statement of complaint with respect to the above S. The statement of complaint was that “A”, a defendant, made investments in shares to Q Q through the complainant, and obtained 80 million won from the complainant as if he would have made a false statement as to the principal and 50% profit, and thereby, he shall be punished for fraud. However, the above S received KRW 80 million from Defendant A and Q through R as a consideration for manipulation of market price, and did not have received KRW 80 million under the pretext of stock investment.

Nevertheless, around September 9, 2016, Defendant A submitted a written complaint to the Seoul Gangnam-gu Police Station located in Samsungdong, Gangnam-gu, Seoul.

Accordingly, Defendant A conspired with Q Q for the purpose of having S receive criminal punishment.

Summary of Evidence

1. Previous convictions in the judgment of Defendant A: A criminal investigation report (report on confirmation of criminal records of the same kind of suspect), investigation report (report on attached indictments in the case of a suspect A), resident, result of inquiry into criminal records and criminal investigation records, report on investigation (verification of suspect A and the period of suspended execution), copy of the judgment, and criminal records "A";

1. The Defendants’ partial statements in the fourth protocol of trial

1. The statements of the witness I and T in the third and sixth trial records;

1. Each prosecutor's interrogation protocol against the Defendants (including the first, second, third, fourth to 16, 46, 48, 49, 50, 52)

1. Each prosecutor's statement concerning I and T (No. 10, 11);

1. Each police interrogation protocol against the Defendants (including I, T, U Grand part) (including one (1), 2, 22, 23 (as to the Defendant B), 40 (as to the Defendant A), 42 (as to the Defendant B, the part concerning the Defendant A’s statement) and 44)

1. The police interrogation protocol (No. 43, No. 43, No. 39) of U, the police statement of I on the suspect, each agreement (No. 32, 33), the investigation report (No. 13), the investigation report (No. 20), the transcript of the corporate registry of H Co., Ltd. (No. 27), the investigation report (No. 21), the investigation report (a. 24), the investigation report (a. 30, Mar. 3, 2008), the copy of the management inspection report (a. 30, No. 200 million won), the suspect's self-written receipt (a. 31), each agreement (a. 32,33), the copy of promissory notes and the receipt of KRW 600,00,00,000, KRW 500,000,000).

1. Defendant A’s legal statement

1. Legal statement of witness S;

1. Each prosecutor's protocol of suspect examination of Q;

1. To enter in and present the written complaint;

Application of Acts and subordinate statutes 2017Gohap70

1. Article applicable to criminal facts;

A. Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 11304, Feb. 10, 2012; hereinafter the same) and Article 347(1) of the Criminal Act (including fraud, including fraud)

1. Statutory mitigation;

Defendant B: Articles 32(2) and 55(1)3 (b) of the Criminal Act

1. Handling concurrent crimes;

Defendant A: The latter part of Article 37 of the Criminal Act and Article 39(1) of the Criminal Act (mutual relationship with fraud for which judgment becomes final and conclusive on May 13, 2010)

2017201938,

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

Articles 156 and 30 (Selection of Fine) of the Criminal Act

1. Statutory mitigation;

Articles 157, 153, and 55(1)6 of the Criminal Act (i.e., confession)

1. Handling concurrent crimes;

The latter part of Article 37 and Article 39(1) of the Criminal Act (the crime of fraud, which became final and conclusive on October, 7, 2016)

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act provides grounds for judgment on conviction (2017 high-priced70)

1. Defendants and defense counsel’s assertion

A. Defendant A

The victim I merely invested KRW 800 million with the acquisition fund to jointly take over the management right of H Co., Ltd. (hereinafter referred to as “H”) and does not lend it to the defendant A. In the process of acquiring the management right of H, the defendant A did not deceiving the victim, and there is no fact that the victim acquired it by personal means using the investment fund paid by the victim.

B. Defendant B

Although there is a fact that Defendant B met the victim on March 18, 2008, there is no fact that Defendant B made a statement to the effect that the victim was stated in the facts charged.

2. Judgment on Defendant A

A. In full view of the following facts and circumstances acknowledged by the evidence duly admitted and investigated by this court, including the evidence presented prior to the legal nature of KRW 800 million (whether it is a loan or investment loan), it is deemed that the legal nature of KRW 800 million paid by the victim to the defendant A is a loan. The argument that the victim invested KRW 800 million in order to jointly acquire the management right of H is unacceptable.

① The victim and T consistently argued that Defendant A, who had consistently promoted the H management right from the investigative agency to this court, requested the victim to lend part of intermediate payments necessary for H acceptance to Defendant A. On the other hand, Defendant A asserted that the victim invested KRW 800 million for H joint acceptance, but the investigative agency first stated that the victim borrowed 800 million won from the victim for the purpose of H joint acceptance, and that the victim again reversed his/her statement (as for the statement to the purport of lending: evidence: the statement to the purport of lending: the police interrogation protocol of Defendant A of the 190, 191, No. 319, 334, 340 of the evidence records, the interrogation protocol of Defendant A of the prosecutor's office (the second interrogation protocol), the interrogation protocol of Defendant A of the suspect interrogation protocol of Defendant 360, 362, and 362 of the evidence records (the third party interrogation protocol), and the interrogation protocol of the suspect interrogation protocol of Defendant A of Defendant 439,439,539 (the evidence evidence of the victim).

② The victim did not have a loan agreement or a loan certificate stating the due date, interest, security, etc. at the time of paying KRW 200 million. Defendant A asserts that a loan cannot be deemed as a loan of KRW 800 million in light of the fact that the repayment period, interest, security, etc. was not specified in a large amount of loan. In this regard, the victim tried to prepare a loan certificate on March 20, 2008. The victim did not receive a loan certificate from the Defendant for a long time when he did not receive a loan, but did not receive a loan certificate from the Plaintiff. The victim did not know that he did not receive a loan certificate from the Plaintiff for a long time when he did not receive a loan. The victim did not know that he did not receive a loan certificate from the Defendant for the purpose that he did not receive a loan from the Plaintiff. The victim did not know that he did not receive a loan certificate from the Plaintiff for the purpose that he did not receive a loan from the Plaintiff.

③ On March 208, 2008, Defendant A and the victim drafted a monetary loan agreement for consumption (Evidence No. 350 million won) with respect to KRW 800 million retroactively to the date of H delisting. The main content of the above agreement is that Defendant A uses KRW 800 million loans as H acquisition cost, return the principal after one month from the time of the victim’s claim for repayment, and provide the victim with the major assets as security. If the victim jointly invested KRW 800 million in order to acquire the management right of H with the Defendant A, even if it was delisting, Defendant A, who is a joint investor, has no reason to retroactively prepare the said monetary loan agreement. Defendant A asserts that a monetary loan agreement was made and made without any choice through coercion by the victim, but it does not seem to have been made up against the intent of coercion by taking full account of all the materials presented in the argument in this case.

④ On the other hand, the victim signed the H management right acquisition agreement with the defendant A (the date of March 21, 2008) with the transfer price of KRW 3 billion. For this, the victim should prepare one of the three billion fake contract to show to the creditors in this court, "the price of KRW 3 billion", "the price of KRW 3 billion", and "the price of KRW 80 million was paid to the other law firms," and "the price of KRW 3 billion was 80 million was able to help the defendant to acquire the company well. The defendant's 3 billion amount was 1 billion. The defendant's 2 billion amount was 3 billion amount. The defendant's 2 billion amount was 3 billion amount to be paid for the balance of the acquisition price of KRW 2 billion. The defendant's 2 billion amount should have been paid for the acquisition price of KRW 3 billion. The defendant's 2 billion amount should have been paid for the acquisition price of KRW 3 billion. The defendant's 3 billion additional statement to the effect that the defendant's 2000 billion amount should be paid.

⑤ If the management acquisition agreement of March 21, 2008 is a true contract and the victim jointly agreed to acquire H, it is difficult to explain the reasons why the management acquisition agreement was not prepared when the payment of KRW 200 million was made on March 12, 2008 (the problem related to X prior to the occurrence of the problem).

In addition, there is no evidence to acknowledge that there has been such a discussion or agreement even though there is a general agreement on the share ratio after acquiring the right of management between the victim who is a joint underwriter and the defendant A, the share ratio after acquiring the right of management, the distribution of profits, the right to appoint directors, etc., and the defendant A has not argued about it.

B. Comprehensively taking account of the following facts and circumstances acknowledged by the evidence duly adopted and investigated by this court, including the evidence revealed prior to the deceiving of the victim, Defendant A did not have the ability to take over the management right of H. Even if he/she acquired the management right, Defendant A did not have the ability to repay the acquisition fund because he/she was anticipated to de-listing, and even if he/she could not provide the major assets of H as security, he/she could sufficiently be recognized that Defendant A received KRW 80 million as a loan for H acquisition by deceiving the victim.

1) Regarding H’s ability to acquire management rights

① According to the management right transfer agreement between the Defendants on March 3, 2008, when Defendant A intends to take over H’s management right, the first intermediate payment of KRW 200 million on the date of the contract, the second intermediate payment of KRW 200 million on March 12, 2008, and the second intermediate payment of KRW 200 million on March 21, 2008 shall be paid respectively, and the balance of KRW 400 million shall be paid by March 2008 before the regular payment is made. From the investigative agency to the beginning of this court, Defendant A concluded a contract to take over H’s management right of KRW 1 billion and paid KRW 200 million on March 3, 2008, Defendant A paid KRW 200 million to Defendant A’s intermediate payment of KRW 200 million. In light of the fact that Defendant A’s intermediate payment of KRW 200 million on the first hand, Defendant C’s statement to the effect that it did not have been made.

② Meanwhile, as seen earlier, according to the agreement on March 20, 208, Defendant A paid KRW 2 billion to X for the recovery of two promissory notes and shares issued by H from X, a creditor of H, and for X’s resignation, Defendant A demanded additional KRW 2 billion to acquire the management right. In this regard, the Defendants made a contract for acquisition of management rights on March 21, 2008, including the victim as a joint transferee, with a price of KRW 3 billion. The victim had consistently increased the management right acquisition amount of KRW 3 billion to KRW 3 billion, and the victim did not receive the remainder of KRW 2 billion if the victim did not receive the payment of KRW 600 million from the intermediate payment until March 21, 2008. In light of the above, the victim did not have the ability to receive the remainder of KRW 200 million from the date of acquisition of management rights until KRW 200 million.

③ The victim consistently stated that Defendant A consistently borrowed KRW 200,000,000 and provided that “I will immediately repay H assets within two to three months with the right to manage,” and that “I will accept the management right of KRW 600,000 and repay the principal with H’s assets without the framework of management right, including interest, and will offer H’s assets as security within one week.” The victim stated that Defendant A would have lent KRW 800,00 to Defendant A with the belief that I would repay the loan or offer the collateral for the loan by acquiring the management right of the H, or by selling the proceeds in the management right of the H, or by offering the collateral for the loan, after acquiring the management right of the H, and thus, Defendant A could be sufficiently recognized as deceiving the victim.

2) As to delisting of H and offer of assets as security

(A) Possibility of delisting;

① On March 4, 2008, H announced a change of 30% or more of the sales amount or profit and loss structure. According to the disclosure, H’s capital on the financial statements for the 29th period (as of December 31, 2007), the total amount of capital was 100% or more. H announced that the total amount of capital was 162,062,50 won, -4,683,582.176 won, and 1 billion won or less as of the date of the latest business year, H announced that the total amount of capital was 10% or more. The KOSDAQ’s headquarters published the list of total amount of capital as of the date of the latest business year, and the statutory deadline for submission of the business report (as of March 31, 2008). According to the list of 197 H’s net assets in order to prevent any change in the net assets that may fall under the provisions of Article 38 of the KOSDAQ-listed Regulations from 2017th day of 207.37.

On March 3, 2008, Defendant A, who entered into a contract for acquisition of H’s management right with Defendant B, appears to have confirmed that he had been in the state of capital erosion satisfying the requirements of H’s de-listing through the public disclosure made on March 4, 2008. Defendant A also stated that “I knew that the status of H’s financial position was not generally good and that it was capital erosion” at an investigative agency; “On March 3, 2008, at the time of entering into the contract, the general meeting of shareholders was postponed in order not to approve the refusal of H’s audit opinion in the form of capital erosion; and that I again proceeded with the audit audit after organizing the audit team.”

③ Defendant A believed that H was not delisting on the ground that he made efforts to prevent H from delisting through capital increase increase, equity swap, capital reduction, etc., and did not have any intention to deception. Defendant A, who promoted management rights of H, had endeavored to prevent H from delisting, as a matter of course, and did not have been aware that H would have been delisting. However, in the case of an ordinary person with a sound trade awareness, the company subject to acquisition was in the process of acquiring the listed company’s capital transfer and the company subject to acquisition was in the process of acquiring the listed company, and was aware that capital exceeding 4,683,582,176 won was additionally required to solve this problem, it is difficult to view that the company subject to acquisition was fully aware of the possibility of delisting the company subject to acquisition.

④ The victim consistently stated that Defendant A had consistently expressed that he did not de-listing at the time of borrowing intermediate payment KRW 200 million and the remainder KRW 600 million. Defendant A also had been subject to re-audit, but the de-audit was said to have not been de-listing. As seen earlier, Defendant A believed that Defendant A would either repay a loan after acquiring the management right of H or provide a security for a loan with H’s assets, and that Defendant A would have lent KRW 800 million to the acquisition fund. As such, Defendant A would have been aware that H would have been de-listing, the acquisition fund would not be loaned if Defendant A knew that H would have been de-listing. Accordingly, if Defendant A would have not de-listing by taking over the acquisition fund of H from the victim, Defendant A would have instigated the victim with the intention to de-listing at least a minimum.

B) Provision of collateral for H assets

① The victim consistently testified from the investigative agency to this court that Defendant A would offer as security the property of H at the time of borrowing intermediate payment of KRW 200 million and the remainder of KRW 600 million. As seen earlier, Defendant A’s agreement on gold-gu loan, which was drafted retrospectively after the date of delisting, also states that Defendant A would offer the principal property of H as security to the victim. Defendant A is obliged to repay a borrowed amount with the profits or H’s assets after acquiring the management right of H’s transfer. It can be sufficiently recognized that Defendant A promised to offer the property of H as security through the victim’s statement and the statement in the above agreement.

② As seen earlier, Defendant A did not have the ability to acquire the management right of H with the remainder of the acquisition fund at the time of borrowing KRW 200 million from the victim. Therefore, Defendant A had no capacity to acquire the management right of H and provide the major assets as security. Furthermore, according to the current status of H’s major assets (Evidence No. 37) as of December 31, 2007, the liabilities of H as of December 31, 2007 were KRW 20,600,000, the capital was KRW 25,500,000, the foreign liabilities were KRW 31,380,000,000, and the foreign assets were 31,380,000,000,000, which were recorded in H’s assets were set on senior collateral security, and there was no ability to obtain the management right or debt-equity swap as security. Furthermore, Defendant A did not seem to have sufficiently confirmed such circumstances.

③ Therefore, Defendant A’s promise to offer the victim’s major assets as security is also deceiving the victim, and Defendant A’s intention also can be sufficiently recognized.

3. Comprehensively taking account of the following facts and circumstances revealed by the evidence duly adopted and examined by this court against Defendant B, Defendant B recognized that the possibility of delisting at the time of borrowing KRW 600 million from the victim’s H acquisition fund and that it is impossible for Defendant B to provide a security with H’s assets, but it is sufficiently recognized that Defendant A assisted Defendant A’s fraud by stating that the victim as the representative director of H did not delisting the victim, and that the security was sufficient.

① Defendant B, along with Defendant A on March 18, 2008, also recognized the fact that he meted the victim at the “M” coffee shop located in Gangnam-gu Seoul Metropolitan City L. However, Defendant B asserted that Defendant B only confirmed the fact that the victim wanted to confirm whether the acquisition of management rights would proceed definitely or not, and that H’s transfer of management rights to Defendant A at KRW 1 billion.

② The victim consistently explained from the investigative agency to the court of this case that, prior to lending KRW 600 million to Defendant A, Defendant B explained about the current status of the assets of Defendant B, and that, if Defendant B arranged extra debt, the assets amount to KRW 10 billion. The loan of money to Defendant A is not likely to be detached. H referred to that it would not be subject to absolute delisting, and Defendant B did not trust Defendant A with 100% of 100%, and Defendant B also talked about the measures to prevent delisting or provide security. Defendant A also stated in the investigative agency that Defendant B would not be subject to delisting’s delisting. Defendant B also stated in the investigation agency that Defendant B was only Defendant B for confirmation of facts, and in this court, Defendant B explained that “the victim gave an answer to the financial status of H assets and liabilities,” Defendant B and the victim made a statement to the effect that “the victim led the victim and the victim gave an answer to his major asset and liabilities.”

The victim had already lent KRW 200 million to Defendant A on March 12, 2008, and the Defendant A demanded to lend KRW 600 million in addition to the initial story. As such, it is difficult to deem that the victim only confirmed whether the management right was transferred to Defendant B by new ones. Rather, as the victim had to lend KRW 200 million to Defendant B more than that more than that more than that more than that more than that more than that more than that more than that more than that was given public in the state of H’s capital erosion, etc., it is natural to view that the victim was only Defendant B in order to verify whether the possibility of delisting of H and the security value of the company’s assets (the current status of assets and liabilities and the possibility of adjusting debts, etc.) can be safely recovered.

④ The U.V., which had conducted the actual inspection while conducting the business restructuring of H, prepared a list of the results of the actual inspection at the request of Defendant B, which is necessary to inform the acquirer of the company situation in this court, and stated that the list meets the current status of H’s major assets and liabilities (No. 79 page of the Evidence No. 3). Defendant B also stated that the investigative agency held the current status of the above H’s major assets and liabilities at the time of selling the H to Defendant A. Defendant B was working as the representative director from March 6, 2007, while Defendant B was working as the representative director from March 3, 2008, Defendant A entered into the management right acquisition contract of H on March 3, 2008. In addition to the preparation of the current status of the above major assets and liabilities of H, the specific assets and liabilities of H are more easily known than Defendant A rather than Defendant A.

⑤ The above H’s major asset debt status submitted by the victim is written with the word “motion picture product,” “agreement,” and “7 billion won target.” On March 18, 2008, the victim stated that he/she was given an explanation from Defendant B and entered this part into his/her acceptance. Since the part written on the above hand was not an internal relationship with H but it is difficult to grasp, it does not seem to have been seen that Defendant A talked. Accordingly, the victim’s statement that Defendant B explained the current status of and the possibility of delisting the H’s assets is credibility.

⑥ The de-listing crisis of H was at the risk of capital erosion, etc., and the company waivered to take over H. The Defendant Company stated that Defendant B used the down payment and intermediate payment KRW 200 million in debt repayment, etc., Defendant B had sufficient motive for Defendant B to cooperate with the victim in borrowing KRW 600 million in order to receive the remaining amount of management transfer proceeds. Furthermore, in addition to the aforementioned circumstances as seen earlier, the process of preparing the current status of H’s major asset liability liability, and the fact that Defendant B was in office as the representative director from March 6, 2007, Defendant B was sufficiently aware that the possibility of de-listing and the assets of H were not able to provide a security for KRW 80 million in loans.

7) Ultimately, Defendant B, as the representative director of H, did not delisting the victim’s H, and, by speaking to the effect that there is sufficient collateral value, could facilitate Defendant A’s commission of crime and fraud, and recognize the criminal intent related thereto.

Reasons for sentencing

2017Gohap70

1. Defendant A

(a) Scope of applicable sentences under law: Three years to thirty years; or

B. Non-application of the sentencing guidelines: Sentencing is not applicable inasmuch as the crime of fraud for which judgment was rendered on May 13, 2010 and the crime of concurrent crimes under the latter part of Article 37 of the Criminal Act are concurrent crimes. The sentencing guidelines are not applicable. Although the crime of the instant case was committed with a severe awareness of H’s capital erosion and expected to be delisting as soon as possible, inducing victims by acquiring management rights of the said company and allowing them to repay the borrowed amount with the assets of the said company. In light of the Criminal Procedure Act, the crime is not good. Defendant A has three identical types of fraud criminal records. Defendant A presented the current status of H’s major assets, presented the victim’s major assets, presented a false explanation about H’s financial status through Defendant B, and tried to closely explain the means and methods of the crime. Defendant A had the victim bring about serious damage to the victim, and did not recover damage. Defendant A’s sentence against Defendant A is inevitable in the course of investigation.

However, it is deemed that all the victims paid KRW 80 million to Defendant B. On May 13, 2010, the equity should be considered in the case where a judgment was rendered simultaneously with a crime of fraud that became final and conclusive on May 13, 2010, and other various circumstances, including the Defendant’s age, character and conduct, environment, method and circumstances of crime, and circumstances after the crime, etc., the punishment as ordered shall be determined by comprehensively taking into account the various sentencing conditions

2. Defendant B

(a) Scope of applicable sentences under law: Imprisonment with prison labor for one year and six months to 15 years;

(b) Non-application of the sentencing criteria: An auxiliary offender, thus, does not apply to the sentencing criteria;

Defendant B aided and aided Defendant A to commit a crime by stating that the above company would not be delisting even when the capital erosion of H is expected to be delisting. Defendant B appears to have reached the commission of a crime with the intent to receive the transfer proceeds of management rights from Defendant A, and actually received and used the said money. This resulted in serious damage to the victim, and no recovery was made. Defendant B did not immediately and immediately attend the investigation agency, but did not seem to have been able to have been able to have been able to recover from the damage. However, Defendant B merely aided and aided the passive role in Defendant A’s crime.

The punishment as ordered shall be determined by comprehensively taking into account such various circumstances and the defendant's age, character and conduct, environment, method and background of crime, circumstances after crime, etc., and various sentencing conditions shown in the records and pleadings of this case.

2017Gohap938

(a) Scope of applicable sentences under law: Fines of 25,000 to 7,500,000;

B. Non-application of the sentencing criteria: The sentencing criteria is not applicable since the crime of fraud finalized on May 13, 2010 and the concurrent crimes under the latter part of Article 37 of the Criminal Act are concurrent crimes, and the sentencing criteria are chosen.

C. The crime without sentence is a crime that interferes with the appropriate exercise of the State’s right to criminal or disciplinary action, and is highly likely to be subject to criticism as well as a crime that causes a person under no punishment to be subject to unfair criminal punishment. As a result of the instant crime, S, who intends to be subject to criminal punishment, was summoned several times to an investigative agency and was subject to investigation.

However, the Defendant has no record of criminal punishment for the same crime. The Defendant recognized and is in profoundly against the Defendant’s fault with respect to the crime without any doubt, and even did not reach the actual punishment of S due to the instant crime. The Defendant was also the Defendant’s wife against the Defendant.

5.13. The equity between the judgment and the judgment shall be taken into account at the same time as the judgment was rendered.

The acquittal portion

1. Summary of the facts charged

Defendant B, at the beginning of March 2008, was the representative of H, who, in order to assist the victim in lending KRW 200 million from the victim as described in the facts constituting a crime in the judgment of the court below, was expected to have the balance of KRW 600 million, and that it would be de-listing immediately because there was little asset value due to the severe capital erosion of H, and even if he acquired the management right in a conclusive manner, he was to transfer the H management right to the victim with knowledge that he did not have the intent or ability to repay to the victim with the H’s assets. In view of H’s asset value, he would receive a higher amount of money, and would have been friendly by A to have the right in advance. Accordingly, he aided and abetted the morale of A by facilitating a crime, such as “the right to supply the money” referred to in the purport that he was a “the right to supply the money.”

2. The assertion and judgment

A. Defendant B asserts that around the beginning of March 2008, Defendant B did not have any fact about the victim at the main point of the trade name in Gangnam-gu Seoul, Gangnam-gu, Seoul, and that Defendant B did not make any statement to the purport stated in the facts charged.

B. In order to find guilty of this part of the facts charged, the victim must be found to have met the victim before paying KRW 200 million to the defendant. The victim made a statement in the victim's investigative agency as evidence. However, the victim made a statement to the effect that prior to the loan of KRW 800 million to this court, the victim's statement was that he met the defendant B once he met the defendant B, he does not accurately memory the defendant B before the loan of KRW 200 million, and that the victim's statement that he does not accurately memory the status of the H's assets before giving KRW 200 million to the defendant. The victim also made a statement to the investigative agency that the defendant B is memoryd as 1 before paying KRW 80 million to the defendant (Evidence No. 1364 of the evidence record). In this court, the victim's statement that it was difficult to prove that the victim was a victim at the same time as the defendant's own logic and that there was no reasonable doubt that the victim had made a statement to the defendant B prior to the loan of the defendant.

Conclusion

This part of the facts charged should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act because there is no proof of crime. However, as long as it is found guilty of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), the judgment of innocence shall not be

Judges

The presiding judge, judges, and the Yellow Constitution

Judges Kim Gin-soo

Judges Kim Gin-young

Note tin

1) Based on the facts found based on the evidence duly adopted and investigated by this court, the Defendants’ defense right is infringed.

The crime was appropriately revised to the extent that it does not harm the crime.

2) The evidence list is written as “construction material,” but appears to be written in writing. The same applies to the same.

3) [Capital - Equity capital] / Capital] 】 100%