Defendant 1 and five others

Egresponding

Law Firm Man-woo et al.

Defendant 1 shall be punished by imprisonment for three years, by imprisonment for three, four, and five years, by imprisonment for one year and six months, and by imprisonment for one year and six years.

However, for the defendant 3, 4, 5, and 6, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

20,000,000 won shall be additionally collected from Defendant 6.

Defendant 6 shall be ordered to pay the amount equivalent to the above additional collection charge.

Defendant 2 is not guilty.

Defendant 1 is the actual operator of Nonindicted Co. 2 (hereinafter “Nonindicted Co. 2”) and Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) and is a person who carries on private-public rental housing business; Defendant 3, 4, and 5 are employees of Nonindicted Co. 2 and Nonindicted Co. 1 (hereinafter “each of the instant companies”); Defendant 6 is the investigation and police officer of △△ Police Station.

[2010Gohap53]

1. Violation of the Act on the Aggravated Punishment of Specific Economic Crimes;

(Open도요)

According to the Rental Housing Act amended by Act No. 7598, Jul. 13, 2005, Defendant 1, 3, 4, and 5 knew that, if a rental business operator purchases a guarantee insurance for a victim's house guarantee company (hereinafter referred to as "Korean house guarantee"), the lessee has purchased a guarantee insurance for rental deposit for a lessee's house in return for the rental deposit even if the lessee fails to refund the rental deposit due to the default of the rental business operator, he was unable to pay the rental deposit to the lessee for the lease deposit. In the course of the operation of the apartment rental business for the apartment leased to the general public, he purchased the guarantee insurance for rental deposit for the house for the purpose of avoiding the liability for the repayment of the rental deposit to the lessee, he purchased the guarantee insurance for the rental deposit for the rental deposit for each of the instant companies.

Defendant 1, 3, 4, and 5 concluded a false lease contract which allows a false tenant to move into an unsold apartment unit, and purchased a guarantee insurance for the rental deposit for the housing of Korea, and deducted all of the companies established by Defendant 1, 3, 4, and 5 from all of the so-called floating companies established by Defendant 1, 3, 4, and 5, each of the companies in this case made the assets of the company in this case by making the company in this case a trust deposit was made in a manner that did not pay intentionally the bill presented for payment, thereby allowing the Korea Housing Guarantee to pay the security deposit on behalf of the company

[Sharing of Criminal Conduct]

In the above process, Defendant 1 was the actual operator of each of the instant companies, Defendant 3 decided to take charge of the following affairs: (a) concluding rental apartment lease agreements; (b) applying for guarantee insurance for rental deposit for rental housing; (c) managing purchase money for apartment management expenses; (d) managing company funds; and (e) applying for guarantee insurance for rental deposit for rental housing for employees of each of the instant companies; (c) managing purchase money for apartment management expenses; (d) managing purchase money for apartment management expenses; and (e) applying for registration of transfer of ownership related to property concealment; and (e) Defendant 5 was the employees of each of the instant companies; (e) concluding rental apartment lease agreements; (e) applying for guarantee insurance for rental deposit for rental deposit for rental housing; and (e) managing company funds.

(a) Joint-use (name of a building omitted) of Defendant 1 and 3 (the case of an apartment);

(Establishment of a floating company and concealment of the property of Nonindicted Company 1)

Defendant 1, one of the preparatory work for the “defluent default,” was to establish Nonindicted Co. 3 (hereinafter “Nonindicted Co. 3”) with Defendant 2 as the representative director around December 28, 2007 in order to deduct the property owned by Nonindicted Co. 1 from the property.

On February 26, 2008, Defendant 1: (a) owned by Nonindicted Co. 1 (name 1 omitted); (b) apartment (name 3 through 14 omitted); (c) commercial building 12; and (d) Cheongju-si (name 1 omitted); (c) falsely transferred land to Nonindicted Co. 3; and (d) concealed property.

[Conclusion of a false rental agreement for an undeveloped apartment]

Defendant 1: (a) was anticipated to incur a significant economic loss if the non-occupant apartment is sold at auction by way of the guarantee of the non-indicted 5’s house; (b) was subscribed to the Korea Housing Guarantee Insurance on the ground of false tenant; and (c) took part in the rental deposit received from the Korea Housing Guarantee; and (d) around January 208, upon request of the non-indicted 4 (name 1 omitted) to introduce the company that can rent for 90 households unsold in the apartment unit; (b) was introduced by the non-indicted 4 to the non-indicted 5 Co., Ltd. (hereinafter “non-indicted 5”) who is the representative director; (c) the non-indicted 4 registered the non-indicted 5 as the co-representative of the non-indicted 5’s company; and (d) the non-indicted 5’s non-indicted 4 entered into a lease contract with the non-indicted 5’s name (name 1 omitted); and (d) the non-indicted 2, the non-indicted 2, who actually paid the above apartment unit rent.

(Entry into Guarantee)

(1) Provisions of a guarantee agreement and guarantee agreement.

According to the provisions of Article 4 of the Korean Guarantee Clause, the Korean Housing Guarantee Clause does not perform the guaranteed obligation for obligations owed by the rental business operator to persons other than the normal contractor, such as the borrowed-name contractor, the nominal lessee who does not actually reside, etc. In addition, according to the Guarantee Agreement, if a cause exists to affect the Guarantee Agreement, the rental business operator is obligated to notify this fact to the rental business operator, and if the cause for prohibition occurs or the claim of the Korean Housing Guarantee is deemed to be likely to be infringed, the Korean Housing Guarantee may exercise

(2) Subscription to guarantee (name 1 omitted) apartment.

Defendant 1 and Defendant 3 subscribed to a guarantee insurance policy for rental deposit of KRW 1.462 billion for the housing units (name of the building 1 omitted) apartment 68 households, as shown in attached Form 1 at the Daejeon-gu Daejeon-gu Daejeon-dong's Daejeon-gu Daejeon-gu Daejeon-dong's Daejeon-dong on February 25, 2008.

(Non-Indicted 1 Company's intentional default)

Defendant 1 did not honor Nonindicted Company 1 on or around March 10, 2008, but Nonindicted 4 arbitrarily appropriated KRW 1.5 billion for the remainder of the rental deposit and failed to repay Nonindicted Company 1 due to the wind to begin an investigation.

- Doz.

As a result, Defendant 1 and Defendant 3 conspired with Nonindicted Company 1 by deceiving the staff in charge of the Korea Housing Guarantee's guarantee insurance for the Korea Housing by hiding the fact of preparation for the intention of Nonindicted Company 1 and by deceiving the staff in charge of the Korea Housing Guarantee's guarantee insurance for the rental deposit for the Korea Housing Guarantee (name 1 omitted) apartment 68 households, as shown in attached Form 1, acquired the guarantee interest of KRW 1.462 million from Korea Housing Guarantee.

(b) Joint-use (name of the building 2 omitted), apartment houses (name of the building 3 omitted), apartment houses (name of the building 3 omitted), and (name of the building 4 omitted) apartment houses;

(Recidion of Company Property)

(1) The establishment of a bereaved company and the false transfer of real estate owned by Nonindicted Company 2

Defendant 1 established Nonindicted Company 9 (hereinafter “Nonindicted Company 9”) in the name of Nonindicted Company 8 on February 28, 2008 in order to deduct the property owned by Nonindicted Company 2 from the ‘defluent bankruptcy’, and changed its trade name to Nonindicted Company 10 (hereinafter “Nonindicted Company 10”), and changed Defendant 1’s wife to the representative director on October 20 of the same year. Defendant 1, 3, 4, and 5 established Nonindicted Company 6 (hereinafter “Nonindicted Company 6”) on May 22, 2009 (name 2 omitted) on June 24, 2009; Defendant 1, 3, 4, and 5 transferred Nonindicted Company 6 (hereinafter “Nonindicted Company 6”). On June 24, 2009, Nonindicted Company 1 omitted, and Nonindicted Company 6, 209 (name 5 omitted); and (3) transferred a false apartment building (name 6, 209) on June 29, 2009.

On August 31, 2009, Defendant 1 transferred (name 3 omitted) land of Cheongju-si, the front apartment, to Nonindicted Co. 3 by falsity.

On September 14, 2009, Defendant 1 transferred the apartment commercial buildings (name 3 omitted), apartment commercial buildings (number 1, 2, 3 omitted) to Nonindicted Company 10 and concealed the property.

② Withdrawal of Nonindicted Company 2’s funds

From April 14, 2009 to September 25, 2009, Defendant 1, via Defendant 3 and 5, deposited KRW 47.7 billion in cash from the National Bank Account (Account Number 1, 2, and 3 omitted), Han Bank Account (Account Number 4 omitted), and from the New Bank Account (Account Number 5 omitted), and withdrawn KRW 4.7 billion in cash from January 14, 2009 to September 25, 2009, as shown in attached Table 1, Defendant 3, 5, and 4, and its family members, deposited KRW 1.746 billion in capital of Nonindicted Company 2, and withdrawn KRW 1.746 billion from January 24, 2009 to September 25, 2009.

[Conclusion of a false rental agreement for an undeveloped apartment]

From July 14, 2009 to September 9, 2009, Defendant 1, 3, 4, and 5 concluded a false rental agreement by pretending that (name 2 omitted), apartment (name 3 omitted), (name 3 omitted), apartment (name 4 omitted), as shown in attached Table 7, are leased to the Defendants’ relatives, relatives, etc., Non-Indicted 6, and Non-Indicted 12 Co., Ltd. (hereinafter “Non-Indicted 12”).

(Entry into Guarantee)

(1) Provisions of a guarantee agreement and guarantee agreement.

According to the provisions of Article 4 of the Korean Guarantee Clause, the Korean Housing Guarantee Clause does not perform the guaranteed obligation for obligations owed by the rental business operator to persons other than the normal contractor, such as the borrowed-name contractor, the nominal lessee who does not actually reside, etc. In addition, according to the Guarantee Agreement, if a cause exists to affect the Guarantee Agreement, the rental business operator is obligated to notify this fact to the rental business operator, and if the cause for prohibition occurs or the claim of the Korean Housing Guarantee is deemed to be likely to be infringed, the Korean Housing Guarantee may exercise

(2) Preparing and submitting false data on the actual corporate conditions for credit assessment.

Defendant 1 and 4 prepared a credit assessment statement on September 1, 2009, and submitted it to the Korea Housing Guarantee for the credit assessment of Nonindicted Company 2, and submitted it to the Korea Housing Guarantee. Defendant 1 and 4 prepared a credit assessment statement by concealing the fact that the debt amounting to KRW 1 billion is remaining due to the wind that Defendant 1 and Defendant 1 is due to the operation of Nonindicted Company 13 (hereinafter “Nonindicted Company 13”) and due to the default of payment, and submitted it to the Korea Housing Guarantee, and submitted it to obtain the CCC + rating credit assessment.

(Name 3 omitted) Subscription to an apartment guarantee.

Defendant 1, 3, 5, and 4 have concealed the fact of the preparation of the above prompt term “the intention” in the housing guarantee of the Korea Housing, and on September 9, 2009, purchased a security deposit insurance policy of the amount equivalent to KRW 543,200,00 for 25 households of (name 3 omitted of the building) apartment as shown in the attached Form (2) at the Daejeon District of the Housing Guarantee for the Location of the Jung-gu, Daejeon District.

(4) Subscription to (name 2 omitted) apartment guarantee.

Defendant 1, 3, 5, and 4 concealed the fact that they were prepared as above in the house guarantee for the above inner term, and purchased a guarantee insurance for each house guarantee deposit of KRW 99,990,000 for each of (name 2 omitted) apartment 99 households as shown in the attached Form (3) of the Daejeon Jung-gu Seoul Special Metropolitan City (name 2 omitted) as to the rental deposit of KRW 2.295,80,000,000 for each of (name 2 omitted) apartment 4 households as shown in the attached Form (4) of September 24, 2009.

(Name 4 omitted) Subscription to an apartment guarantee.

Defendant 1, 3, 4, and 5 have concealed the fact of the preparation of the above prompt term “the intention” in the house guarantee insurance, and have purchased a guarantee insurance policy of each house guarantee insurance for each of the two households (name 4 omitted), as shown in the attached Form (5) of September 9, 2009, with respect to (name 4.3 million won for the building title 4.3 billion won for the apartment 9 households, as shown in the attached Form (5) of the Jung-gu Daejeon (name 4 omitted), as to (name 4.5 million won for the building name 4 omitted) as to (name 4.5 million won for the building) apartment as shown in the attached Form (6) of September 25, 2009.

(Non-Indicted 2 Company's intentional default)

On October 15, 2009, Defendant 1 did not intentionally settle KRW 120 million of the promissory note issued by Nonindicted Co. 2, which was presented to Nonindicted Co. 3’s director for payment by Nonindicted Co. 14 at Lone Star branch of the Korean National Bank on October 15, 2009, resulting in Nonindicted Co. 2’s bankruptcy on October 19, 2009.

- Doz.

Accordingly, Defendant 1, 3, 4, and 5 conspiredd to prepare and submit data on the actual condition of the company for the credit assessment of Nonindicted Company 2, thereby hiding the fact that the person having the right to manage the company of Nonindicted Company 2 is Defendant 1, and deceiving the employees in charge of the Korea Housing Guarantee by deceiving the employees in charge of the Korea Housing Guarantee by hiding the fact of preparation for the intentional negligence against Nonindicted Company 2 by taking out the security deposit insurance for the rental deposit for the Korea Housing Guarantee (name 3 omitted) apartment as shown in attached Form 2, as shown in attached Form 3, the amount equivalent to KRW 543,200,000 for the rental deposit for the 25 households as to the (name 2 omitted), apartment 99 households as stated in attached Form 4, and the amount equivalent to KRW 99,990,00,000 for each of the (name 2 omitted) apartment 4 households, as stated in attached Form 4, and the total amount equivalent to KRW 96,400,000 won for each apartment household.

2. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes;

On July 17, 2009, Defendant 1, at the office of Nonindicted Company 2 located in Chungcheongnam-si ( Address 4 omitted), had Defendant 3 transfer KRW 9 million from the account in the name of Nonindicted Company 19 (Account No. 1 omitted) to the new bank account (Account No. 6 omitted) in the name of Defendant 3’s mother Nonindicted Company 20, and embezzled Defendant 3, an employee, from the following as shown in attached Table No. 1 of the List of Crimes: (a) had Defendant 3, 4, 5, and 21, and his family; and (b) had Defendant 3 withdraw and bring money out or exchange checks in cash; and (c) had Defendant 3 arbitrarily use the funds of KRW 1.746 million owned by Nonindicted Company 2 for personal use of the funds of KRW 1.6 million.

3. Violation of the Act on the Regulation and Punishment of Criminal Proceeds Concealment.

A. Defendant 1

Defendant 1 pretended to acquire criminal proceeds of KRW 1.746 billion from embezzlement at the same date, time, and at the same place as the above 2.2.

B. Defendant 3

Defendant 3, at the office of Nonindicted Co. 2 on March 10, 2009, remitted KRW 34 million from the account (Account No. 1 omitted) in the name of Nonindicted Co. 19 to the account (Account No. 7 omitted) of Defendant 3’s husband Nonindicted Co. 22, and withdrawn it and paid it to Defendant 1, as shown in the attached Table No. 2, as shown in the attached Table No. 2, Defendant 3, the mother and child Nonindicted Co. 20, the husband Nonindicted Co. 22, and the female Non-Indicted. 23 from March 10 to September 25, 2009, pretended the fact of acquiring criminal proceeds by Defendant 1’s embezzlement.

C. Defendant 4

Defendant 4, at the office of Nonindicted Company 2 on March 10, 2009, remitted KRW 33,00,000 from the account in the name of Nonindicted Party 19 (Account No. 1 omitted), to Defendant 4’s personal compromise account (Account No. 8 omitted), and withdrawn it and paid it to Defendant 1, as indicated in the attached Table 3, and as indicated in the attached Table 3, withdrawn KRW 178,00,000 deposited in the name of Defendant 4 and his wife from March 10, 2009 to September 11, 2009, to Defendant 1, and make cash exchange of KRW 20,000,000 for checks to Defendant 1, thereby pretending to acquire criminal proceeds arising from Defendant 1’s embezzlement.

D. Defendant 5

Defendant 5, at the office of Nonindicted Company 2 on January 14, 2009, exchanged the check amounting to KRW 20 million in cash, which was withdrawn from Nonindicted Company 19’s account (Account No. 1 omitted), and paid to Defendant 1 at the office of Nonindicted Company 2, Defendant 5, the husband Nonindicted Party 25, and Defendant 26 to September 24, 2009, as shown in attached Table 4, withdrawn KRW 513 billion from the account under the name of Defendant 5, the husband, and Nonindicted Party 26 to Defendant 1, and pretended to acquire KRW 64 million from the criminal proceeds arising from Defendant 1’s embezzlement, by exchanging the check with cash amounting to KRW 150 million.

[2010Gohap61]

4. Defendant 6

On March 4, 2008, Defendant 6 asked the police officer in charge of the case to promptly investigate the case as desired by the complainants, such as prohibition of departure and necessary measures in bank. Defendant 6 provided a copy of the written decision of prohibition of departure, police officer identification card, which is a material necessary for the suspension of payment of bank. Defendant 6 provided the defendant 1 with the written request to the police officer in charge of the case to the effect that Defendant 1 promptly recover damages from Defendant 1 who submitted the written complaint to the Seocho Police Station to the effect that the criminal investigation against Nonindicted 4 is well carried out. Defendant 6 provided the same as Defendant 1.

Accordingly, on March 6, 2008, Defendant 1 recovered KRW 1 billion out of KRW 1.5 billion out of the amount of damage 1.5 billion.

Defendant 6, around March 7, 2008, received a paper room of KRW 20 million in cash from Defendant 1 in return for the above act at the parking lot of Cheongju-si Office ( Address 6 omitted), and received KRW 5 million in bribe in relation to Defendant 6’s duties, and received KRW 15 million in the name of delivery to three police officers in charge of the instant case.

5. Defendant 1

Around March 7, 2008, Defendant 1 offered KRW 5 million to Defendant 6 for the same reasons as the above-mentioned paragraph 4 at the parking lot of the Gu Office, and delivered KRW 15 million to Defendant 6 for the purpose of giving a bribe to three police officers in charge of the instant case.

[2010Gohap53]

1. Each legal statement of the defendant 1, 3, 4, and 5 in part;

1. The statement of the witness Nonindicted 15

1. Each prosecutor’s statement on Nonindicted 4, 15, and 27

1. Nonindicted 28’s e-mail statement and Nonindicted 21’s e-mail statement

1. Report on attachment (e-mail) as a result of execution of a warrant of search and seizure, report on the result of execution of search and seizure, and report on the result of execution of search and seizure;

1. Each fact-finding inquiry report (Korean house guarantee, Cheongju-si);

1. Court rulings;

1. (Name 2 omitted of Building, Name 2 omitted), apartment, (Name 3 omitted of Building), apartment house, (Name 4 omitted of Building), report on the current status of employees of Nonindicted Company 2 and Nonindicted Company 1, report on the condition of Nonindicted Company 2's business place, report on attachment of guarantee deposit, application for deposit deposit, attached report on attachment of guarantee certificate, attached report on the attached list of non-Indicted Company 9 (No. 10), attached report on the copy of register of the company register of the non-Indicted Company 9 (No. 10 omitted), attached report on the current status of the accident of guarantee for loan of the non-Indicted Company 13 (Name 1 omitted), attached report on personal entry status, (Name 3 omitted), front lot number verification of the non-Indicted Company 1, the current status of issuance of guarantee for deposit deposit of the non-Indicted Party 2, attached data related to credit assessment, (name 2 omitted), report on the change of ownership of the non-indicted Company 6's executives, attached report on the name of the non-indicted Building 1, attached statement 27 name omitted.

[2010Gohap61]

1. Each legal statement of the defendant 1 and 6;

1. Each prosecutor's protocol of statement by the defendant 3 and 4;

1. Each investigation report (the Government of the place of inspection and arrest of the Seocho Police Station and the details of transactions of Nonindicted Company 2’s account attached);

1. Article applicable to criminal facts;

A. Defendant 1

(1) Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347(1), and Article 30 of the Criminal Act

Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 347(1) and 30(generality) of the Criminal Act

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 356 and Article 355 (1) of the Criminal Act (General Provisions)

Applicant 3-A : Article 3(1)1 of the Act on Regulation and Punishment of Criminal Proceeds Concealment, Article 30 of the Criminal Code

(v) Paragraph 5 of Article 13: Articles 133(1), 129(1) (the offering of a bribe) of the Criminal Act; Articles 133(2) and (1), and 129(1) (the delivery of a third party acceptance) of the Criminal Act;

B. Defendant 3

(1) Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347(1), and Article 30 of the Criminal Act

Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 347(1) and 30(generality) of the Criminal Act

Article 3(1)1 of the Act on Regulation and Punishment of Criminal Proceeds Concealment, Article 30 of the Criminal Code

C. Defendant 4

(1) Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347(1) and Article 30(1) of the Criminal Act (General Provisions)

(c) Article 3-3(c) of the Sheet Judgment: Article 3(1)1 of the Act on Regulation and Punishment of Criminal Proceeds Concealment, Article 30 of the Criminal Act

D. Defendant 5

(1) Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347(1) and Article 30(1) of the Criminal Act (General Provisions)

(d) Paragraph (d) of Article 3 of the Act on Regulation and Punishment of Criminal Proceeds Concealment, Article 3(1)1 of the Criminal Code, Article 30 of the Criminal Code

E. Defendant 6

Article 129(1) of the Criminal Act, Article 133(2) and (1) of the Criminal Act, and Article 129(1) (a) of the Criminal Act (a point of acquisition of third-party brain)

1. Commercial competition;

(a) Defendant 1: Articles 40 and 50 of the Criminal Act (the crime of offering of a bribe under paragraph (5) at the time of sale and the crime of giving a bribe between the crime of offering a bribe and a third party, and the punishment imposed on the crime of offering a bribe heavier than the crime

B. Defendant 6: Articles 40 and 50 of the Criminal Act (the crimes of acceptance of bribe under paragraph (4) at the time of sale and the crimes of third-party acceptance of bribe, and the punishment provided for in the provisions of heavier punishment for the crimes of acceptance of bribe

1. Selection of punishment;

A. Defendant 1: Determination of imprisonment for the crime of violation of the Act on the Regulation and Punishment of Criminal Proceeds Concealment and the crime of offering of bribe

B. Defendant 3, 4, and 5: Determination of imprisonment for a violation of the Act on the Regulation and Punishment of Criminal Proceeds Concealment

C. Defendant 6: Selection of imprisonment for the crime of acceptance of bribe

1. Aggravation of concurrent crimes;

(a) Defendant 1: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act [the punishment, the nature of the crime, and Article 1-B of the Decision with the largest punishment]

(b) Defendant 3: the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [the aggravated punishment of concurrent crimes provided for in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)]

(c) Defendant 4 and 5: the former part of Article 37, Article 38(1)2, and Article 50 of each Criminal Code (the aggravated punishment of concurrent crimes with the punishment provided for in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) as stated in paragraph (1)

1. Discretionary mitigation;

Defendant 3, 4, and 5: Each of the Articles 53 and 55(1)3 of the Criminal Code (the following circumstances are considered in favor of the above Defendants)

1. Suspension of execution;

Defendant 3, 4, 5, and 6: Article 62(1) of the Criminal Act

1. Additional collection:

Defendant 6: The latter part of Article 134 of the Criminal Act

1. Order of provisional payment;

Defendant 6: Article 334(1) of the Criminal Procedure Act

1. Summary of the assertion

A. Defendant 1 did not subscribe to the security deposit insurance for rental housing for the first time, but did not subscribe to the security deposit for rental housing for rental housing for rental housing for rental housing for rental housing for rental housing for rental housing, and the environment of the rental business for rental housing for rental is difficult and the profitability has deteriorated, so there was no criminal intent for Defendant 1, 3, 4, and 5 to acquire the security deposit interest at the time of purchase of each of the security deposit insurance for rental housing for rental housing for rental housing for rental housing for rental housing for rental housing for rental housing for rental housing for rental housing for rental housing in this case. Defendant 1, 3, 4, and 5 was obligated to subscribe to each of the security deposit insurance for rental housing for rental housing for rental housing for rental housing for rental housing for rental housing for rental housing for rental housing

B. Even if there were criminal intent and deception as stated in the facts of the crime in the judgment of the defendant 1, 3, 4, and 5, the whole guarantee amount guaranteed by the Korea Housing Guarantee cannot be deemed as the amount of profit as referred to in Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes. Since the guarantee period has expired without being settled, the defendant 1, 3, 4, and 5 did not gain any property profit due to the purchase of the guarantee insurance for the rental deposit of this case against the non-indicted 1, and even though the non-indicted 2 was in default, the non-indicted 2 shall calculate the amount of profit based on the amount of loss actually occurred as a result of the purchase of the guarantee insurance for the rental deposit of this case against the non-indicted 1, 3, 4, and 5, which was operated in the name of the non-indicted 2 (the name of the building), (the name of the building is omitted), (the name of the building is omitted).

2. Facts of recognition;

According to each evidence of the judgment, the following facts can be acknowledged.

A. As to Nonindicted Co. 1

(1) On September 20, 199, Defendant 1 established a non-indicted 1 company under the name of the non-indicted 29 and actually operated it, and after the registration of the rental business operator with respect to the above company on April 1, 2006, Defendant 1 operated the rental business for the (name 1 omitted of the building) apartment located in Chungcheong (name 3 omitted) owned by the non-indicted 1 company.

On October 9, 2007, the Rental Housing Act revised that the rental business operator of the constructed rental house should purchase a guarantee insurance for rental deposit, and Defendant 1 purchased an insurance policy that guarantees the rental deposit obligation to be returned to the lessee of the apartment (name 1 omitted of the building) under the same Act, and accordingly, paid the guarantee insurance fee every year to the rental house guarantee.

Article 12(1) of the Civil Act provides that “When the profitability of the leasing business has deteriorated due to the additional expenditure of the guarantee insurance premium as seen above, Defendant 1 introduced the company that could rent more than 90 households of (name 1 omitted) apartment units (name 1 omitted), which was not leased to Nonindicted 4, who was in a close friendly relationship on February 2008, and Nonindicted 4 provided that Defendant 1 introduced Nonindicted 7 to Nonindicted 5 Company, whose representative director is the representative director.

In February 208, Nonindicted 4 registered as a joint representative director of Nonindicted Company 5 at the request of Defendant 1, and Defendant 1 prepared a lease agreement between Nonindicted 4 and Nonindicted 4 on February 20, 2008, stating that “(name 1 omitted) apartment 90 households owned by Nonindicted Company 1 in the name of Nonindicted Company 5 are leased for two years from February 20, 2008 to February 20, 2010.”

(v) on February 20, 2008, Defendant 1 paid to Nonindicted 4 a 1.3 million won check, and Nonindicted 4 received it and paid it as the down payment for the lease contract indicated in the above paragraph to Nonindicted Company 1. After that, Defendant 1 paid a 4.8 million won check to Nonindicted 4 on February 28, 2008, and Nonindicted 4 paid it as the intermediate payment for the above lease contract to Nonindicted Company 1.

⑹ 피고인 1은 2008. 3. 4. 청주시 (주소 4 생략) 소재 (건물명 2 생략)아파트 15층에 있는 자신의 사무실에서 공소외 4에게 위 ⑷항 기재 임대차계약의 잔금 명목으로 15억 원 상당의 수표 등을 지급하였는데, 공소외 4는 이를 지급받은 뒤 자금세탁을 하여 다시 공소외 1 회사에 지급하지 아니한 채 임의로 위 금원 중 9억 원은 공소외 31에게 투자하고, 5억 원은 공소외 32에게 빌려주었다.

⑺ 피고인 1은 위 ⑹항과 같이 공소외 4에게 15억 원 상당의 수표를 지급하였음에도 공소외 4가 이를 다시 공소외 1 회사에 임대보증금 잔금 명목으로 지급하지 아니한 채 연락이 두절되자, 2008. 3. 4. 공소외 4를 횡령죄로 고소하였고, 공소외 4는 2009. 8. 13. 특정경제범죄가중처벌등에관한법률위반(사기)죄 등으로 징역 2년을 선고 받았다.

⑻ 한편, 피고인 1은 2008. 1. 14.경 대한주택보증과의 사이에 (건물명 1 생략)아파트 213세대에 관하여 보증기간을 2008. 1. 14.부터 2009. 1. 13.까지, 보증금액을 4,593,000,000원으로 정하여 임대보증금 보증보험에 가입하였고, 2008. 2. 25. 또다시 위 아파트 158세대에 관하여 보증기간을 2008. 2. 25.부터 2009. 1. 13.까지, 보증금액을 4,072,000,000원으로 정하여 임대보증금 보증보험에 가입하였다.

⑼ 그 후 공소외 1 회사는 대한주택보증과의 사이에 (건물명 1 생략)아파트에 관하여, 2008. 8. 19.경 202세대에 관하여 보증금액 4,218,000,000원, 보증기간 2008. 8. 19.부터 2009. 8. 18.까지로 정하여 임대보증금 보증보험에 가입하였고, 2009. 4. 28.경 위 아파트 2세대에 관하여 보증금액 49,000,000원, 보증기간 2009. 4. 28.부터 2009. 8. 18.까지로 정하여 임대보증금 보증보험에 가입하였으나 그 후 보증기간이 만료되어 보증계약이 해지된 이후 현재는 임대보증금 보증보험에 가입하지 않은 채 임대사업을 운영하여 오고 있다.

B. As to Nonindicted Co. 2

(1) On July 10, 1997, Defendant 1 established Non-Indicted 2 under the name of Non-Indicted 33, and changed the representative director to Non-Indicted 19 on November 29, 2001 while actually operating the company. On December 2, 2005, Defendant 1 leased the above company to Non-Indicted 2 (name 4 omitted), Non-Indicted 2, Non-Indicted 2, located (name 499 households), located (name 4 omitted), located (name 49 households), located (name 4 omitted), located in the same building (name 49 households), located in the Cheongju-si (name 5 omitted), and (name 3 omitted), located in the Cheongju-si (name 5 omitted) apartment (total number 198 households) located.

on October 9, 2007, the Rental Housing Act amended that the rental business operator of the constructed rental house shall purchase a guarantee insurance for rental deposit, and Defendant 1 purchased an insurance to guarantee the rental deposit obligation in order to secure the rental deposit to be returned to the lessee of the rental apartment as stated in the above (i) under the same Act, and accordingly, he paid the guarantee insurance fee to the Korean Housing Guarantee every year.

Secondly, in the situation where the profitability of the leasing business has deteriorated due to the additional expenditure of the guarantee insurance premium, such as the foregoing Section 2, Defendant 1 established the so-called so-called related company by Nonindicted Company 9, Nonindicted Company 6, and Nonindicted Company 3, as indicated in the facts constituting the crime, and transferred the property of the commercial buildings and land owned by Nonindicted Company 2 to the above old companies by falsity

Applicant 1 entered into a false lease contract with 34 households, as shown in attached Form 7, from July 14, 2009 to September 9, 2009.

(v) On the other hand, between September 25, 200 and the Korea Housing Guarantee Service on September 9, 2009, Defendant 1 purchased a guarantee insurance for rental deposit with the guarantee period of 32 households from September 9, 2009 to October 26, 2009; Defendant 1 purchased a guarantee insurance for rental deposit with the guarantee period of 712,200,000; on September 25, 2009, from September 25, 2009 to October 26, 2009 to 209; and on the guarantee period of 200,000,000 won from September 26, 200 to 209; and on the guarantee period of 20,000,000 won from September 9, 200 to 209; and on the guarantee period of 209,000 won from September 29, 209 to 209; and

⑹ 그 후 판시 범죄사실 기재와 같이 피고인 1이 운영하는 공소외 2 회사가 2009. 10. 19. 부도처리 되는 바람에 대한주택보증은 위 ⑸항과 같이 임대보증금 보증보험에 가입한 세대 중 임대보증금 환급청구를 한 세대에 대하여 보증금 상당액을 대위변제하여 주고 있는바, 대한주택보증이 대위변제한 보증금의 액수는 2010. 7. 23. 현재 총 5,264,731,897원(238세대)에 이른다.

(c) A security deposit system under the Rental Housing Act;

(1) The term "rental deposit guarantee system" is a system to protect a lessee of privately constructed public rental housing, where a rental business operator is unable to refund a rental deposit to a lessee due to default, etc., the term "rental deposit system" means a guarantee insurance system under which a rental business operator returns a rental deposit to a lessee on behalf of a rental business operator on July 13, 2005, as amended by Act No. 7598 on July 14, 2005 (the enforcement date), and requires a rental business operator to purchase a guarantee insurance for rental deposit. Accordingly, the Minister of Land, Transport and Maritime Affairs may impose additional interest on a rental business operator who violates the obligation to purchase a guarantee insurance for rental deposit within the limit of 1% per annum on a loan from the National Housing Fund under Article 60 of the Housing Act (Article 39 of the Rental Housing Act); ② The head of a Si/Gun/Gu may impose a penalty surcharge of up to 50 million won on a rental business operator who has violated the obligation to purchase a guarantee insurance for rental deposit (Article 400 million).

Doshe purchased a security deposit for rental deposit: ① When the lease contract is terminated or terminated within the guarantee period and the lease contract is terminated or terminated within two months after the termination or termination date of the lease contract without any justifiable reason, ② when the guarantee company recognizes that the rental business operator is unable to fulfill the obligation to refund the rental deposit due to bankruptcy, bankruptcy, default, etc. and notifies the lessee thereof within the guarantee period, the guarantee of rental deposit is liable to the lessee for the refund of the rental deposit within the limit of the guarantee

Article 22(1) of the Civil Act provides that if the guarantee obligation is fulfilled, the lessee shall be entitled to indemnity against the rental business operator and the lessee shall exercise the right of subrogation against the rental business operator.

3. Determination

A. Whether Defendant 1, 3, 4, and 5 can be recognized as committing a crime and committing a deceitful act at the time of purchasing each of the instant security deposit and guarantee insurance

(i) Determination as to whether there is an expectation of default on payment

On the other hand, the prosecutor's this part of the prosecution was brought to the purport that the defendant 1, 3, 4, and 5 planned or prepared intentional negligence for each of the of the of the of the of the of the of the of the of the of the of the of the of the of this case and obtained pecuniary benefits equivalent to the guaranteed interests by taking out the security deposit insurance for the Korea Housing Guarantee, and the defendant 1, 3, 4, and 5 asserted that the defendant 1, 3, 4, and 5 intentionally did not intend to honor the of the of the of this case at the time of the purchase of each of the security deposit for each of the of the of the of the of the of the of the of the of the of the of the of this case. Thus, the issue of this part is whether the defendant 1, 3, 4, and 5 had the intention to honor or at least that it will lead to the default

On the other hand, insofar as the criminal intent of fraud, which is a subjective constituent element of the crime, is not a confession of the defendant, it shall be determined by taking into account the objective circumstances such as the defendant's financial power, environment, details of the crime, and the process of transaction before and after the crime. The criminal intent of the crime is not definite intention but dolusive intention (see, e.g., Supreme Court Decision 2007Do8726, Aug. 21, 2008). In this case, in order for the defendants 1, 3, 4, and 5 to be aware that the act of purchasing the guarantee insurance as mentioned in the above case constitutes fraud, the objective circumstances at the time of the purchase of each of the security deposit insurance for each of the above cases are clearly distinguishable from the normal operation behavior of the defendant 1, 3, 4, and 5, and thus, it should be acknowledged that there was a specific circumstance that each of the above companies will be in the future or that it should be acknowledged at least in advance.

위와 같은 법리를 토대로 이 사건 각 임대보증금 보증보험 가입 당시에 피고인 1, 3, 4, 5가 이 사건 각 회사들을 부도낼 의사를 가지고 있었다거나 적어도 부도처리 될 것을 미리 예견하고 있었는지 여부에 관하여 보건대, 판시 각 증거에 의하여 인정되는 아래 ㈎, ㈏항 기재 사정들을 종합하여 보면, 피고인 1, 3, 4, 5에게는 적어도 판시 범죄사실 기재 각 임대보증금 보증보험 가입 당시에는 이 사건 각 회사들을 부도낼 의사를 가지고 있었다거나 적어도 부도처리 될 것을 미리 예견하였다고 봄이 상당하다.

㈎ 공소외 1 회사에 관하여

① When the rental business environment of (name 1 omitted) apartment houses has deteriorated due to (name 1 omitted) apartment houses, such as (name 1 omitted of building) apartment houses reduced demand for university students to build dormitories at ○ University △△ Campus around apartment houses, (name 1 omitted of building), reduction of rental deposit, and a large number of households moving into apartment by annual rent, etc., Defendant 1 attempted to sell (name 1 omitted of building) apartment houses from around 2005, but it appears that Defendant 1 continued to engage in rental business without disposing of (name 1 omitted of building) apartment houses because of the lack of appropriate buyer, and the profitability is not good. Where a rental business operator continues to engage in rental business for (name 1 omitted of building) apartment houses due to a large amount of insurance premiums to be paid more than the profit accrued from rental business each year, it appears that Defendant 1 would have disposed of or retired from the apartment building (name 1 omitted of building) from the standpoint of Defendant 1.

② Under the above circumstances, Nonindicted Co. 1 purchased a guarantee insurance policy for the guarantee period of (name 1 omitted), from January 14, 2008 to January 13, 2009, with the guarantee period of 4,593,00,000 won for the units of (name 1 omitted), from January 14, 2008 to February 25, 2008. In addition, on February 25, 2008, with the guarantee period of 158 units of the above apartment, the guarantee period of 4,072,00,000 won for the units of rental deposit was determined as 4,00,000 won for the units of non-indicted Co. 1 purchased the guarantee insurance for the units of rental deposit from February 25, 2008 to January 13, 209; in light of the fact that each of the units of non-indicted Co. 1 purchased the guarantee insurance for some of the units of rental deposit in the name of 208.

③ As seen in the above facts, Defendant 1 entered into a false rental agreement with Nonindicted Co. 4 on February 20, 2008 with the effect that “the (name of the building 1 omitted) apartment 90 households owned by Nonindicted Co. 1 in the name of Nonindicted Co. 5 are leased for two years from February 20, 2008 to February 20, 2010,” and entered into a false appearance, such as payment of the down payment, intermediate payment, etc., by Nonindicted Co. 5, and purchased a guarantee insurance policy for the house rental deposit for the false lessee. Defendant 1 entered into a lease agreement with Nonindicted Co. 4 in an abnormal manner as above, and purchased the guarantee insurance for the house rental deposit with the payment of certain amount of guarantee insurance for the false household after paying the guarantee insurance for the house rental deposit for each household which entered into a false rental agreement with Nonindicted Co. 1 after the dishonor.

④ On February 208, 2008, Non-Indicted 4 stated that “Defendant 1, among the crimes of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, etc. (Fraud), was tried by Defendant 1 to pay the intention rather than providing a guarantee insurance fee and providing a leasing service to the principal. Non-Indicted 4 requested to identify the company having a dormitory that is able to use the lessee’s status as the lessee by stating that “I will pay it intentionally rather than providing a guarantee insurance fee to the principal. There is only

⑤ Defendant 1 was present as a witness in the first instance trial of the criminal case against Nonindicted 4 (Cheongju District Court 2008Dahap321) and stated that “The Rental Housing Act changed in 2007 and aggravated the business environment of the rental business operators. Therefore, the case held that Defendant 1 was aware of the intention to conclude a rental agreement as explained to Nonindicted 34, and that Defendant 1 was paid the following questions: “The case was that Defendant 1 would have been paid a deposit amount equivalent to the rental deposit after the date of the insolvency if he made a false lease agreement to some households, and later, he would have purchased a security deposit for the rental deposit for the rental deposit for the rental deposit for the rental deposit for the rental deposit for the rental deposit for some households.”

④ At the time Nonindicted 4 was investigated as a witness at the prosecution as a suspect, Nonindicted 32 rejected Nonindicted 4’s request for money laundering by using the check of KRW 1 billion, KRW 1.5 billion, KRW 1.3 billion, in cash, from February 2008 to Haman, and Nonindicted 4’s request for money laundering. In return, Nonindicted 32 rejected Nonindicted 4’s request for money laundering. After that request, Defendant 1 made a single request for “the creation of one passbook, even if the passbook is available,” and stated to the effect that “The opening of a new account at the offline of the new bank on March 3, 2008.”

④ At the time Nonindicted 4 was investigated as a witness at the prosecution as a suspect, Nonindicted 8 stated that “Around January 2, 2008, Defendant 1 and Nonindicted 4 were investigated as a witness status, and only three to four times from Defendant 1’s office located on (title 2 omitted) apartment 15, Defendant 1 and Nonindicted 4 told Defendant 1 and Nonindicted 4 to intentionally default on the payment of the deposit insurance system under the Rental Housing Act. At that time, Defendant 1 and Nonindicted 4 told Nonindicted 1 to speak about the deposit insurance system under the Rental Housing Act. At the same time, Defendant 1 prepared a false lease contract with the fact that it was erroneous, and then received money from the house guarantee for the payment of the deposit.”

④ Defendant 3 stated that “Defendant 1 would not pay the rental deposit to the occupants whose contract period expires until March 15, 2008, and Defendant 4 was in the first effort of March 2008, which he and Defendant 4 demanded the return of the deposit.” At that time, Defendant 1 planned the intentional negligence of Nonindicted Company 1.”

㈏ 공소외 2 회사에 관하여

① Defendant 1, 3, 4, and 5 purchased a guarantee insurance for rental deposit for (name 3 omitted), (name 2 omitted of the building), and (name 4 omitted of the building), under the circumstances where the guarantee period remains, Defendant 1, 3, 4, and 5 purchased a guarantee insurance for rental deposit for some households of the above apartment units on six occasions from September 9, 2009 to September 25, 2009. In light of the fact that the households already subscribed to the guarantee insurance over a short period are concurrently subscribed to the guarantee insurance, and that the guarantee period for the newly subscribed households is set at a very short period until October. 9, 2009, the guarantee insurance for rental deposit that was bought from September 9, 209 constitutes an act of purchasing a guarantee insurance in very exceptional form.

② As above, in light of the fact that a considerable number of households that purchased the Korea Housing Guarantee Insurance after September 9, 2009, a lease contract was concluded in the names of Nonindicted Company 12 and Nonindicted Company 6, etc., and (name 2 omitted) some of the apartment units (name 2 omitted) paid management expenses in lump sum for some 26 households, Defendant 1, 3, 4, and 5 appears to include a false lease contract with respect to each apartment unit operated by Nonindicted Company 2. However, Defendant 1 stated that the lease contract was concluded with respect to 34 households as shown in the attached Form (7) at the time of this court (the defendant 1 stated that the defendant 1 was 37 households, but the three households among them are not included in each guarantee insurance contract of this case).

③ 피고인 1은 2008. 7. 6.경 수사기관에서 전자금융거래법위반으로 조사받은 바 있고, 위 제2의 가. ⑺항 기재와 같이 공소외 4의 특정경제범죄가중처벌등에관한법률위반(사기)죄에 대한 고소인 자격으로 수회에 걸쳐 수사기관에서 조사를 받은 바 있으므로, 피고인 1은 고의부도를 예정하고 대한주택보증의 임대보증금 보증보험에 가입하는 행위의 위법성을 충분히 인식하고 있었을 것으로 보인다.

④ Although Defendant 1 collected management expenses from the occupants of each apartment unit managed by Nonindicted Company 2, the automatic transfer of part of the settlement account was terminated, Defendant 1 re-employed Nonindicted Company 1 on September 17, 2010, by means of less the balance of the management expenses paid in a separate passbook and less the balance of the settlement account, and making electricity in arrears, etc. (title 3 omitted) apartments from August 2009, (title 4 omitted), and (title 2 omitted from September 2009, respectively, did not pay electricity charges to the Korea Electric Power Corporation. From that time, Defendant 1 did not pay the principal and agreement of loans to Nonindicted Company 2 to the Korea Electric Power Corporation. Defendant 3, an employee of Nonindicted Company 2, who was an employee of Nonindicted Company 2, retired on September 17, 2010, was scheduled to be re-employed in the process of the bankruptcy of Nonindicted Company 1, 34, and 25 in advance.

⑤ Defendant 3 stated in the investigative agency that “Defendant 1 was aware of the fact that he would not pay all apartment management expenses that he would have from the end of September 2009, and he was aware of the fact that Nonindicted Company 2 would be the date of the bankruptcy,” around August 2009.

6) Defendant 4 stated in an investigative agency that “The books and documents, etc. previously used were destroyed by Defendant 1’s instructions immediately before or after the default.”

④ From January 14, 2009 to September 21, 2009, the funds of Nonindicted Company 2 were withdrawn through the Nonindicted Company 2’s account and the account in the name of Nonindicted Company 19. Of these, the remaining KRW 3.7 million excluding KRW 20,000,000 which was withdrawn in cash was presented at the branch office of the Bank in Korea on October 8, 2009, and was deposited in Korea’s account in the name of Nonindicted Company 28 (Account Number 9 omitted) which was used by Defendant 1. At the time of the bankruptcy of Nonindicted Company 2, the balance of each account in the name of Nonindicted Company 6 and Nonindicted Company 11, which was the name of Defendant 1, at the time of the bankruptcy of Nonindicted Company 2, reached KRW 240,000,000,000,000. Thus, at the time of the bankruptcy of Nonindicted Company 2, Defendant 1 appears to have been sufficiently capable of preventing the bankruptcy of Nonindicted Company 2.

④ In light of the fact that: (a) Nonindicted Company 2 was unable to settle a promissory note (bill number omitted) with face value of KRW 1.20,000 won on October 19, 2009; (b) the payer for the payment of the said promissory note was registered as a director of Nonindicted Company 3, which was established by Defendant 1 for the purpose of concealing the assets of Nonindicted Company 1 or Nonindicted Company 2; and (c) the issue date of the said promissory note is as of October 15, 2006, prior to October 31, 2007, which is the date of delivery of the actual promissory note; and (d) Defendant 1 intentionally caused Nonindicted Company 2 to make a payment by issuing a promissory note without any cause, for the purpose of default on payment.

㈐ 그렇다면, ① 공소외 1 회사에 대하여는 적어도 공소외 4와의 허위임대차계약을 체결한 2008. 2. 20.경부터, ② 공소외 2 회사에 대하여는 적어도 유령회사들을 설립하여 유령회사들에 공소외 2 회사 소유의 재산을 허위로 양도하기 시작한 2009. 7. 9.경부터는 피고인 1이 향후에 이 사건 각 회사들을 부도낼 의사를 가지고 있었다거나 적어도 이 사건 각 회사들이 부도처리 될 것을 미리 예견하고 있었다는 점과 피고인 3, 4, 5도 이와 같은 사정을 알면서도 대한주택보증에게는 이와 같은 사정을 묵비한 채 임대보증금 보증보험에 가입한 사실을 인정할 수 있고, 위 각 일자 이후에 가입한 판시 범죄사실 기재 각 임대보증금 보증보험 가입행위에 대하여는 피고인 1, 3, 4, 5의 범의를 충분히 인정할 수 있으므로 피고인 1, 3, 4, 5 및 그 변호인들의 이 부분 주장은 이유 없다.

㈑ 한편 검사는, ① 공소외 1 회사와 관련하여, 피고인 1이 이 사건 각 회사들의 재산을 은닉할 목적으로 2007. 12. 28. 피고인 2와 공소외 3 회사를 설립한 점에 비추어 이때부터는 피고인 1, 3, 4, 5가 이 사건 각 회사들을 부도낼 의사를 가지고 있었다는 전제하에 2007. 12. 28. 이후 가입한 각 임대보증금 보증보험에 대하여 사기죄가 성립한다는 취지에서 이 부분 공소를 제기하였고, ② 공소외 2 회사와 관련해서는 위 ①항과 동일한 이유로 2008. 2. 28. 공소외 9 회사를 설립한 이후 가입한 각 임대보증금 보증보험에 대하여 사기죄가 성립한다는 취지에서 이 부분 공소를 제기하였으나, 검사가 주장하는 바와 같이 피고인 1이 이 사건 각 회사들의 재산을 은닉할 목적으로 공소외 3 회사 및 공소외 9 회사 등의 유령회사를 설립하였다고 하더라도, 그와 같은 유령회사의 설립 자체만으로는 피고인 1이 이 사건 각 회사들에 대한 고의부도를 예정하였다고 단정할 수 없고, 여기서 더 나아가 이 사건 각 회사들의 자산을 공소외 3 회사 및 공소외 9 회사에 이전함으로써 의도적으로 이 사건 각 회사들을 형해화하는 정도에까지 이르러야 비로소 사기죄의 성립여부가 문제된다고 할 것이므로, 위와 같은 공소외 3 회사, 공소외 9 회사라는 유령회사를 설립한 사정만 있고 적극적으로 이 사건 각 회사들 소유의 재산을 위 유령회사들에 이전하는 등의 추가적인 사정이 발견되지 않는 상태에서는 대한주택보증과 체결된 각 보증보험계약에 대하여 피고인 1, 3, 4, 5의 범의를 인정하기 어렵고 달리 이를 인정할 증거가 없다.

b) Determination as to whether to recognize the deception

The deception as a requirement for fraud refers to all affirmative and passive acts that have to observe each other in the wide sense of property transaction, and among them, deception by passive acts refers to a person subject to the duty of disclosure who is aware that there is an error in a certain fact by the other party, and if it is evident that the other party would not have been aware of such fact in light of the empirical rule of general transactions, it shall be legally obligated to notify that fact in light of the good faith principle (see Supreme Court Decision 2005Do8645, Feb. 23, 2006, etc.).

In the instant case, the health care unit, Defendant 1, 3, 4, and 5, who planned intentional negligence, concealed the assets of each company in the instant case, and prepared a false lease agreement with respect to some of the non-occupant households of each apartment that are managed by each company in the instant case, and purchased a security deposit insurance policy for the Korea Housing as described in paragraph (1) of the criminal facts in the instant case, without taking into account the circumstances as to the house guarantee. In full view of the following circumstances acknowledged by each evidence of the judgment, the fact that the Korea Housing Guarantee was planned to give intent to the non-indicted 1 and the non-indicted 2 at the time of entering into each of the instant security deposit insurance contract, or that the non-indicted 1, 3, 4, and 5 did not inform each of the above circumstances to the non-indicted 1 and the non-indicted 2 that the management office of each of the instant company would not enter into each of the instant security deposit insurance contract, and thus, it could be inferred that the non-indicted 1, 3, 4, and 5 were liable to inform each of the above circumstances.

㈎ 피고인 1은 1991. 3. 22.경부터 청주시 (주소 7 생략)에서 주택건설업체인 공소외 13 회사의 대표이사로서 위 회사를 경영하여 오던 중, 1997. 12. 10. 주택건설사업기금을 대출받더라도 이를 건설자금으로 사용할 의사가 없었음에도 불구하고 주택건설촉진법에 의한 건설자금 선급금 명목으로 국민주택기금을 대출받아 이를 편취하였다는 범죄사실로 2002. 1. 22. 청주지방법원에서 징역 1년 6월에 집행유예 2년을 선고받은 전력이 있다.

㈏ 대한주택보증은 1995. 10.경 청주시 (주소 8 생략) 소재 (건물명 5 생략)아파트 신축공사에 따른 공소외 13 회사의 사업자금 대출과 관련하여 공소외 13 회사와 사이에 지급보증계약을 체결하였고, 공소외 13 회사는 대한주택보증이 발급하여 준 지급보증서를 이용하여 1995. 10. 17.경부터 1999. 4. 27.경까지 사이에 5회에 걸쳐 한국주택은행 서청주지점으로부터 818,000,000원을 대출받았는데, 이후 공소외 13 회사가 위 대출금 중 일부를 변제하지 못한 채 부도처리 되는 바람에 대한주택보증이 2000. 7. 28. 및 2000. 9. 30. 한국주택은행에 640,502,392원을 대위변제하여 대한주택보증은 현재까지 공소외 13 회사에 대해 구상금채권을 가지고 있다.

㈐ 한편, 대한주택보증의 보증규정 제8조 제1항 제8목에 의하면, ‘회사가 보증채무를 이행함으로써 발생한 주채무 또는 연대보증채무를 완제하지 아니한 고객의 대표자, 경영실권자 또는 최다주식보유자가 새로운 고객의 대표자, 경영실권자 또는 주주로 있는 경우’에는 보증을 금지하고 있으며, 보증규정 시행세칙 제6조 제2항에 의하면, ‘위조 또는 변조된 서류를 제출하는 등 속임수에 의하여 보증을 받고자 하는 경우’에도 보증을 금지하고 있다.

㈑ 대한주택보증은, 2009년부터는 보증신청회사에 대한 신용평가자료를 의무적으로 제출하도록 하여 이를 보증보험료 산정의 기초자료로 삼고 있는데, 피고인 4는 2009. 9. 1. 공소외 2 회사의 기업실태표를 작성하여 대한주택보증에 제출하면서 대표자란에 공소외 19라고만 기재하고, 경영실권자 인적사항란에는 피고인 1의 인적사항을 기재하지 않은 채 공란으로 비워두었다. 대한주택보증은 이러한 실태자료를 기초로 하여 공소외 2 회사의 신용평가등급을 CCC+로 평가하여 그에 따라 보증보험료를 산정하고 공소외 2 회사와 판시 범죄사실 제1의 나.항 기재와 같이 임대보증금 보증보험계약을 체결하였다.

㈒ 위 제3의 가. ⑴항에서 본 바와 같이 공소외 1 회사에 대하여는 적어도 공소외 4와의 허위임대차계약을 체결한 2008. 2. 20.경부터, 공소외 2 회사에 대하여는 적어도 유령회사들을 설립하여 유령회사들에 공소외 2 회사 소유의 재산을 허위로 양도하기 시작한 2009. 7. 9.경부터는 피고인 1이 향후에 이 사건 각 회사들을 부도낼 의사를 가지고 있었다거나 적어도 이 사건 각 회사들이 부도로 이어지게 될 것을 미리 예견하고 있었던 것으로 인정된다.

㈓ 대한주택보증 중부관리센터 보증이행팀 팀장 공소외 15는 이 법원에서 “임대사업자가 부도를 내려고 이미 결정한 상태에서 임대보증금 보증보험에 가입신청을 한 것이라면 대한주택보증에 상당한 손해가 발생할 수 있는 것이어서 절대로 보증서 발급을 해 주지 않았을 것이다”라고 진술하였다.

㈔ 피고인 1, 3, 4, 5 및 위 피고인들에 대한 변호인들은 ‘설사 피고인 1이 고의로 부도를 내었다고 하더라도 대한주택보증으로서는 임대아파트를 담보로 할 수 있으므로 손해가 없다’는 취지의 주장을 하나, 피고인 1이 이 사건 각 임대보증금 보증보험계약 체결 당시 대한주택보증에 임대아파트에 대한 제한물권 등을 설정하여 준 바 없고, 이 사건 각 임대아파트에는 국민주택기금이 선순위 채권자로 설정되어 있는 점 등에 비추어 대한주택보증이 이 사건 각 임대아파트에 대하여 경매신청을 하더라도 피고인 1에 대한 이 사건 각 임대보증금 보증보험계약에 따른 구상금채권을 전부 회수할 수는 없다고 보이므로, 결국 피고인 1의 고의부도로 인하여 대한주택보증에 상당 부분 손해가 발생할 것으로 예상된다(실제 공소외 2 회사의 부도로 인하여 2010. 7. 23. 현재 대한주택보증이 238세대의 임차인들에게 5,264,731,897원 상당의 임대보증금을 대위변제한 상태에 있다).

Therefore, the defendant 1, 3, 4, 5 and his defense counsel's assertion on this part is without merit.

(b) Calculation of the amount of profit;

(1) The amount of profit under Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes refers to the value of the property or profit from property which is the object of illegal acquisition which has been acquired or has been acquired by a third party due to the criminal act enumerated above, and ultimately, it does not affect whether such profit has been realized (see Supreme Court Decision 2006Do1614, May 26, 2006, etc.). If the rental business operator has purchased a guarantee insurance policy by deceiving the rental deposit without notifying the house of his intention while he planned to do so, the profit acquired by the rental business operator is the profit that can be used for his own business by deceiving the guarantee of the rental deposit to the lessee of the household who purchased the guarantee insurance of the rental deposit, and as a matter of principle, the amount is equivalent to the guarantee limit of the guarantee insurance of the rental deposit (see Supreme Court Decision 2005Do5567, Nov. 24, 2006).

D. Sheet, however, regarding the part of each of the security deposits of this case against each of the households based on the false lease contracts of this case, the property benefits acquired by Defendant 1, 3, 4, and 5 through purchase of each of the security deposits of this case through purchase of security deposits of each of the security deposits of this case can be used for its own business as seen in the above (i). ① The security insurance contract such as the security deposit of this case is formally an insurance contract which covers the debtor's non-performance of obligation, but its purpose is the same as the security contract with the nature of the guarantee. Thus, the security insurance contract of this case is formally an insurance contract which covers the debtor's default of obligation, but its purpose is the same as the guarantee contract. Thus, unless it is contrary to its nature, the provisions of the Civil Act concerning the guarantee contract of this case concerning the guarantee deposit of this case concerning the owner of the house of this case concerning the owner of the house of this case concerning the guarantee contract of this case concerning the guarantee insurance contract of this case concerning the owner of the house of this case cannot be seen as the guarantee insurance contract of this case.

On the attached interest, Defendant 1, 3, 4, and 5 concluded a false lease agreement with the non-occupant household and purchased a guarantee insurance for rental deposit between the Korea Housing Guarantee Service and the Korea Housing Guarantee Service based on it appears to be aimed at receiving insurance money equivalent to the security deposit under the false lease contract after the bankruptcy of each company of this case. In regard to the confirmation of the purport of the public prosecution by the party member, the prosecutor raised the purport that “the public prosecution against the crime of this case is instituted by Defendant 1, 3, 4, and 5 to the effect that Defendant 1, 4, and 5 intentionally planned the intention and acquired the security interest by taking out the guarantee insurance for the security deposit for the Korea Housing Guarantee, after purchasing the security deposit insurance for rental deposit, and then claiming the amount of the security deposit in the name of the lessee of the household concluding the false lease contract after taking out the security deposit insurance contract, and even if this part is deemed as the fraud of insurance money, there is no evidence to acknowledge that the commencement of the execution in acquiring the insurance money is the time when the insurance company claims are claimed (see this part).

1. Defendant 1

Defendant 1: (a) decided that each of the instant companies it actually operated; (b) established a floating company to preserve its own property even if each of the instant companies was in default; (c) concealed property; (d) concluded a false lease agreement with respect to unregistered rental apartments; and (e) formed the appearance as being paid the rental deposit; and (e) obtained the guarantee interest by having the Korea Housing Guarantee Co., Ltd bear the guaranteed liability amounting to KRW 4.8 billion with an intentional negligence; and (e) embezzled the amount of KRW 1.7 billion with the funds owned by Nonindicted Co. 2 in the process of taking out the guaranteed liability amounting to KRW 1.7 billion with an intention to compensate the police officer in charge of the instant complaint case. In addition, Defendant 1 offered the bribe amounting to KRW 5 million to Defendant 6, who is a police officer, and provided the Defendant 6 with KRW 15 million with the intent to give a bribe to the police officer in charge of the instant complaint case.

Defendant 1’s instant fraud committed an act of fraud with intent to honor the company from the beginning, and organized division of crime with his employees as well as his employees. The nature and circumstances of the crime are very good. The Housing Guarantee, the victim of the instant fraud, was made up of 49% of the government’s contributions, 51% of the financial institution contributions, and ultimately, the damage that occurred due to the instant fraud, is extensive in that it should be borne by the State and the people.

Although there are a lot of concerns as to the scale of damage caused by the instant fraud and the social strike, Defendant 1 repeats statements to the effect that there is no actual victim up to this court, and does not actively endeavor to recover from damage. As such, there is a strong doubt as to whether Defendant 1 is seriously against his mistake.

In addition, Defendant 1 already committed each of the crimes in this case, even though he had been sentenced to a two-year suspended sentence in one year of imprisonment due to a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) at the party members on January 22, 2002, and again committed each of the crimes in this case.

Even if the most severe criminal committed the crime of this case, the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) stated in the judgment of the court below falls under the basic area of Type 3 (50 million won to less than five billion won) among the embezzlement and breach of trust in accordance with the sentencing guidelines, and the scope of the sentence of the recommendation is between two and five years, and the crime of offering of bribe and delivery to a third party constitutes the aggravated area of Type 1 (30 million won) of the offering of bribe among the bribe crime group in the judgment of the court below (affirmative), and the scope of the sentence of the recommendation is between six and one year and six months, and the scope of the sentence of the recommendation is not less than one year and six months, considering only the crimes to which the sentencing guidelines applies, if the recommendation is calculated according to the guidelines for the processing of multiple crimes, the scope of the recommendation is between two and five years.

However, in light of the circumstances favorable to the defendant, Nonindicted Co. 1's sentence is to be imposed in the same manner as the order, considering the fact that there is no real damage to this part after the lapse of the warranty period without the default of the default on payment, and that there is no penalty imposed on Defendant 1.

2. Defendant 3, 4, and 5

The above Defendants, as employees of Defendant 1’s company, participated in the instant crime according to Defendant 1’s instruction, and there are circumstances to take into account some of the circumstances. The above Defendants did not gain profit from the instant crime, and the above Defendants did not have any particular criminal record up to now, and the above Defendants were led to the confession of all the instant crimes, and are against themselves, sentence is imposed as ordered in light of all the circumstances.

3. Defendant 6

[Scope of the punishment by law] Imprisonment of not less than one month but not more than five years;

[Determination of Punishment] Type 2 of Acceptance of Bribery (not less than 10 million won but less than 30 million won) among bribe crime groups

[Scope of Recommendation] Imprisonment of not less than one year but less than three years (Basic Area)

【General Convicts】

○ A person who is in general: in a case where the work relevance is high.

○ General mitigated: Serious reflector, no power of criminal punishment;

【Suspension of Execution】

○ The main reasons for the affirmative participation: a significant change;

○ positive reasons for general participation: Faithful service or criminal punishment for a long time;

【Determination of Sentence】

Defendant 6 received a bribe of KRW 5 million from Defendant 1 to Defendant 1 in relation to his duties, and received KRW 15 million from Defendant 6 to Defendant 1 in relation to his duties. Defendant 6’s crime of this case was significantly damaged the general public’s confidence in the integrity and fairness of police officer’s performance of duties.

However, in light of all the circumstances, Defendant 6 did not actively demand a bribe to Defendant 1, Defendant 6 did not have any previous conviction until now, Defendant 6 confessions all the instant crimes, and appears to repent of his mistake, and Defendant 6 appears to have served as a police official for about 34 years, and appears to have served relatively in good faith, etc., the sentence shall be imposed as ordered in light of the overall circumstances.

1. Partial frauds by Defendant 1, 3, 4, and 5

A. Summary of the facts charged

(1) Co-defendant 1 and 3 (name of building 1 omitted)

㈎ 2008. 1. 14. 임대보증금 보증보험 가입행위

On January 14, 2008, the defendant 1 and 3, as stated in the judgment of the court below, conspired to have the Korea Housing Guarantee pay the rental deposit by subrogation and to acquire the pecuniary profits equivalent to the guaranteed profit. On January 14, 2008, the defendant 1 and 3 acquired the guarantee profit equivalent to the amount of KRW 4.59 billion from the Korea Housing Guarantee by deceiving the staff in charge of the Korea Housing Guarantee by purchasing the guarantee insurance for the rental deposit for the house equivalent to KRW 4.59 billion in the amount of KRW 4.3 billion in the amount of KRW 4.59 billion in the amount of KRW 4.3 million in the Daejeon-gu Housing Guarantee at the Daejeon-gu Daejeon District Office.

㈏ 2008. 2. 25. 임대보증금 보증보험 가입행위

Defendant 1 and 3, as stated in the judgment of the court below, conspired to have the K-A-A-A-A-A-A-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-D-B-B-D-B-B-D-

Belgium Co-defendants 1, 3, 4, and 5 (name 2 omitted), apartment (name 3 omitted), apartment, (name 4 omitted), and (name 4 omitted) apartment)

㈎ (건물명 3 생략)아파트 보증가입

(1) Purchasing a guarantee insurance for rental deposit on October 27, 2008.

Defendant 1, 3, 4, and 5, as stated in Paragraph 1-B(b) of the judgment, conspired to allow the Korea Housing Guarantee to pay the rental deposit by subrogation and to acquire the pecuniary profit equivalent to the guaranteed profit. On October 27, 2008, Defendant 1, 3, 4, and 5, by deceiving the employees in charge of the Korea Housing Guarantee from the Korea Housing Guarantee by subscribing to the guarantee insurance for the rental deposit for the rental deposit for the houses of (name 3 omitted), apartment rental money of KRW 3,776,500,00,000,000 from the Daejeon Housing Guarantee at the Daejeon-gu Daejeon District, Jung-gu Daejeon District on October 27, 2008.

(2) Purchasing a guarantee insurance for rental deposit on September 9, 2009 and September 25, 2009

On September 9, 2009 and September 25, 2009, the defendant 1, 3, 4, and 5, as stated in the facts of the crime No. 1-B. 1-B as stated in the judgment, conspired to have the Korea Housing Guarantee pay the rental deposit on behalf of the employee in charge of the Korea Housing Guarantee and to acquire the pecuniary profit equivalent to the guaranteed profit. On September 9, 2009 and September 25, 2009, by deceiving the employee in charge of the Korea Housing Guarantee and acquiring the guarantee profit equivalent to KRW 250 million from the Korea Housing Guarantee by purchasing the house rental deposit in the amount of KRW 10,000,000 by purchasing the house rental deposit in the amount of KRW 250,000 from the Korea Housing Guarantee.

㈏ (건물명 2 생략)아파트 보증가입

(1) Purchasing a guarantee insurance for rental deposit on October 23, 2008

Defendant 1, 3, 4, and 5, as stated in the facts of crime No. 1-B. 1-2, as stated in the judgment of the court below, conspired to have the Korea Housing Guarantee pay the rental deposit by subrogation, to acquire the pecuniary profit equivalent to the guaranteed profit. On October 23, 2008, Defendant 1, 3, 4, and 5, by deceiving the employees in charge of the Korea Housing Guarantee by purchasing the guarantee insurance for the rental deposit for the rental deposit for the house (name 2 omitted), and by deceiving the employees in charge of the housing in the amount of KRW 9.62 billion from the Korea Housing Guarantee by purchasing the guarantee insurance for the rental deposit for the house located in the Jung-gu, Daejeon District.

(2) Purchasing a guarantee insurance for rental deposit on September 9, 2009 and September 24, 2009;

On September 9, 2009 and September 24, 2009, the defendant 1, 3, 4, and 5, as stated in the facts of the crime No. 1-B. 1-B as stated in the judgment of the court below, by deceiving the staff in charge of the Korea Housing Guarantee, and by deceiving the staff in charge of the Korea Housing Guarantee of KRW 648 million from the Korea Housing Guarantee of KRW 68 million from the Korea Housing Guarantee of KRW 24 million from the Korea Housing Guarantee of KRW 648 million from the Korea Housing Guarantee of KRW 24 million from the Daejeon Housing Guarantee of the Daejeon Housing Guarantee of KRW 24 households, as shown in the attached Table No. 1-B. 1-B.

㈐ (건물명 4 생략)아파트 보증가입

Defendant 1, 3, 4, and 5, as stated in Paragraph 1-B(b) of the judgment, conspired to allow the Korea Housing Guarantee to pay the rental deposit by subrogation and to acquire the pecuniary profit equivalent to the guaranteed profit. On October 27, 2008, Defendant 1, 3, 4, and 5, by deceiving the employees in charge of the Korea Housing Guarantee by purchasing the guarantee insurance for the rental deposit for the house of the amount equivalent to KRW 1,89,000,00,000,000 from the Korea Housing Guarantee by purchasing the guarantee insurance for the rental deposit for the house of the amount of KRW 1,89,000,00 from the Daejeon Housing Guarantee.

B. Determination

Article 3-1(a) and 3-2(b) of the "Judgment on the argument of the defendant 1, 3, 4, and 5 and his defense counsel" as stated in the judgment of the court below, there is no evidence to acknowledge this part of the facts charged.

2. Defendant 2

A. Summary of the facts charged

The summary of this part of the facts charged is that Defendant 2 is the representative director of Nonindicted Company 12 and Nonindicted Company 3, and Defendant 1, 3, 4, and 5 conspired with Defendant 1, 3, 4, and 5, and acquired the benefit of guarantee by deceiving the Korea Housing Guarantee as stated in paragraph (1) of the crime and paragraph (1) of the above part of the acquittal.

B. Summary of the defense counsel's assertion

Defendant 2’s own name constituted Nonindicted Co. 3 on December 28, 2007; and on July 14, 2009, Defendant 2 concluded a lease agreement with Nonindicted Co. 12 under the name of Nonindicted Co. 12, which Defendant 2 operated on July 14, 2009 (name 2 omitted); however, this is merely a wind that Defendant 1, who had maintained a long-standing relationship, requested Defendant 2 to do so; Defendant 2 did not participate in the guarantee insurance contract for a lease deposit concluded between Defendant 1 and the Housing Guarantee; nor was Defendant 1 and this part of the fraud.

C. Determination

(1) In the case of co-principals who jointly process two or more persons and commit a crime, the conspiracy or conspiracy does not necessarily need to be made explicitly, explicitly and explicitly, and in any case, it may be made objectively and explicitly, but in any case, there is a combination of intent to jointly process a crime and realize it jointly. In a case where the defendant denies the criminal intent together with the conspiracy, the facts constituting such subjective element must be proved by the method of proving the indirect or circumstantial facts that have considerable relation to the criminal intent in light of the nature of the object, and what constitutes an indirect fact should be determined by the method of reasonably determining the link of facts by using the close observation or analysis power based on normal empirical rule (see Supreme Court Decision 2008Do6551, Feb. 12, 2009).

Based on the foregoing legal doctrine, Defendant 1 and Nonindicted 4’s statements and evidence Nos. 5 through 7 are admissible as evidence that conforms to the facts charged by Defendant 1 and Defendant 2 conspired to commit each of the instant frauds with Defendant 1 and Defendant 4.

Defendant 1 stated in the investigation agency that “Defendant 2 established Nonindicted Company 3 around December 2007, and he transferred the ownership of 12 commercial buildings in the name of Nonindicted Company 3 on February 26, 2008 (name 1 omitted), and that Defendant 2 entered into a false rental agreement in the name of Nonindicted Company 12 operated by Defendant 2 on July 14, 2009 (name 2 omitted) against Defendant 2’s five apartment houses. As such, in the process of establishing Nonindicted Company 3 and transferring the name to the commercial building, Defendant 1 established Nonindicted Company 3 in the investigative agency and provided that “The name of the principal was leased to him in the name of the Defendant 2 in collusion with the Defendant 2, who did not know that it was necessary for the Defendant 2 to transfer the ownership of 12 commercial buildings in the name of the Defendant 2 to the effect that he did not know that it was in the name of the Defendant 1’s own house or the construction cost to secure it.”

Recognizing the statement made by Nonindicted 4 to Nonindicted 4’s investigative agency, Nonindicted 4 made a statement at the investigative agency to the effect that “Nonindicted 3 Company is established in the course of preparing for the dishonor of Nonindicted Company 1 and its representative is Defendant 2, so it is not reasonable for Defendant 2 to take part in the intentional negligence.” However, this was based on Nonindicted 4’s own judgment on the overall circumstances, and it is difficult to readily conclude that Defendant 2 took part in the instant fraud in collusion with Defendant 1.

In addition, on or after February 25, 2008, Nonindicted 4 stated at the investigative agency that “(name 1 omitted) apartments have purchased a guarantee insurance for the deposit insurance for the second time for the second time, and Defendant 1 attempted to subscribe again to the guarantee by increasing the deposit amount from KRW 29 million to KRW 45 million for the households concluding the false lease contract in the name of Nonindicted Company 5. At the time, Defendant 1 entered into an agreement with Defendant 2 on the issue of increasing the deposit amount, and Defendant 2 only tried to increase the deposit amount for the false lease household by Defendant 1 on the wind at the end of Defendant 1, while Defendant 2 called “excess payment.” However, even if Defendant 4 followed Nonindicted 4’s statement, Defendant 1 and Defendant 2 attempted to have made telephone conversations with the above contents, the mere fact that Defendant 1 and Defendant 2 concluded the guarantee insurance contract on the same date is insufficient to recognize that Defendant 1’s aforementioned fraud had been made after the date of signing the contract.

(v) Nos. 5 through 7 of the certificate of candidateship is merely a brief summary of the days or days on which Defendant 1 had committed by day, and no content of each of the subscriptions of security deposit insurance, which can be said to be the constituent acts of the instant fraud, is written.

⑹ 오히려 판시 증거들에 의하여 인정되는 다음의 사정들에 의하면, 피고인 1과 이 사건 사기범행을 공모한 바 없다는 취지의 피고인 2의 변소에 수긍이 간다.

㈎ 피고인 1이 공소외 3 회사 설립자금을 전부 부담한 점, 피고인 3은 “공소외 3 회사는 피고인 1이 실질적으로 관리하는 회사이다. 피고인 2와 피고인 1이 어떤 협의를 하여 공소외 3 회사를 설립한 것인지는 모르겠으나 공소외 3 회사가 설립된 후 피고인 1이 공소외 3 회사 통장을 사무실로 가지고 왔고 위 통장을 본인이 관리하였다. 공소외 3 회사의 법인세도 피고인 1의 지시에 따라 본인이 납부하였다.”고 진술한 점, 피고인 4는 “2008. 2. 26. (건물명 1 생략)아파트 (층호수 3 내지 14 생략) 상가 12개에 대하여 공소외 1 회사에서 공소외 3 회사 앞으로 소유권이전등기를 경료하였는데, 피고인 1이 본인에게 매매계약서를 작성하여 주었고, 본인이 법무사에 의뢰하여 소유권이전등기를 한 것이다. 사실상 공소외 3 회사로 소유권이 넘어가기 전이나 후나 변화 없이 본인과 피고인 3이 상가를 계속하여 관리하였다.”라고 진술한 점 등에 비추어 보면, 피고인 1이 공소외 3 회사를 실질적으로 관리하였고, 피고인 2는 공소외 3 회사를 설립한 후 위 회사 인감, 통장 및 관련서류를 피고인 1에게 교부한 이후로는 공소외 3 회사의 운영이나 관리에 대하여 아무런 관여를 하지 않은 것으로 보인다.

㈏ 피고인 2는 피고인 1의 사기범행을 통해 아무런 이득을 취한 바 없고, 현재 피고인 2가 운영하고 있는 공소외 12 회사의 규모, 매출액 및 피고인 2의 재산상태 등에 비추어 보더라도 피고인 2에게는 피고인 1의 사기범행에 가담할 만한 동기를 찾아볼 수 없다.

㈐ 이 사건 사기범행의 구성요건적 행위라고 할 수 있는 각 임대보증금 보증보험계약은 피고인 1, 3, 4, 5가 판시 범죄사실 기재와 같이 서로 행위를 분담하여 대한주택보증과 사이에 체결한 것인데, 이에 대하여 피고인 2가 관여한 사정을 발견할 수 없다.

⑺ 다른 측면에서 보더라도, 가사 피고인 2가 피고인 1의 고의부도 사정을 알면서도 피고인 1의 재산을 보전하여 주기 위하여 자신이 운영하는 공소외 12 회사 명의로 허위의 임대차계약을 체결한 사실이 인정된다고 하더라도 이 사건 공소는 대한주택보증으로부터 보증이익을 취득한 것이라는 취지에서 제기되었음은 위 ‘피고인 1, 3, 4, 5 및 그 변호인들의 주장에 대한 판단’ 부분 제3의 나. ⑵항에서 본 바와 같은바, 그렇다면 피고인 2의 위 행위는 단지 피고인 1의 허위임대차계약을 통한 허위임대보증금 상당의 보험금에 대한 사기범행(이 사건 범죄사실과 같은 보증이익 취득이 아닌)에 대한 예비행위를 방조하는 데 불과한 것으로서, 종범의 처벌은 정범의 실행의 착수가 있는 경우에만 가능하고 정범이 실행의 착수에 이르지 아니한 예비의 단계에 그친 경우에는 이에 가공한 행위를 방조범으로 처벌할 수 없으므로( 대법원 1976. 5. 25. 선고 75도1549 판결 등 참조), 피고인 2에 대한 이 사건 공소사실은 죄가 되지 아니한다.

⑻ 형사소송에서는 범죄사실이 있다는 증거는 검사가 제시하여야 하고, 피고인의 변소가 불합리하여 거짓말 같다고 하여도 그것 때문에 피고인을 불리하게 할 수는 없으며, 범죄사실의 증명은 법관으로 하여금 합리적인 의심의 여지가 없을 정도로 고도의 개연성을 인정할 수 있는 심증을 갖게 하여야 하는 것이고, 이러한 정도의 심증을 형성하는 증거가 없다면 설령 피고인에게 유죄의 의심이 간다 하더라도 피고인의 이익으로 판단할 수밖에 없는 것인바( 대법원 2007. 11. 30. 선고 2007도163 판결 참조), 결국 이 부분 공소사실과 관련하여 검사가 제출한 증거들만으로는 법관으로 하여금 합리적인 의심을 배제할 정도로 공소사실이 진실하다는 입증이 이루어졌다고 보기는 어렵다.

3. Conclusion

Thus, since the facts charged against Defendant 2 constitute a case where there is no proof of a crime, it shall be sentenced to innocence with Defendant 2 pursuant to the latter part of Article 325 of the Criminal Procedure Act, and since part of the fraud of Defendant 1, 3, 4, and 5 as stated in Article 1-A of the above part of the facts charged in this case constitutes a case where there is no proof of a crime, it shall be sentenced to innocence pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as it is found guilty of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (

[Attachment]

Judges Kim Jin-jin (Presiding Judge)