Defendant

Both parties

[Attachment]

Attorney Seo Chang-il

Suwon District Court Decision 2009Da2130, 3183 (Joint), 2010 Godan1021 (Joint), 1497 (Joint) Decided April 27, 2011

Of the judgment of the court below, the guilty part against the defendant is reversed.

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

The prosecutor's appeal on the acquittal portion of the judgment below is dismissed.

1. Summary of grounds for appeal;

(a) Reasons for appeal by the defendant;

1) misunderstanding of facts or misapprehension of legal principles

A) Fraudulent part

The money as indicated in the facts charged in the instant case, which the Defendant received from Nonindicted 3, was included in the agreement on the gold 1 omitted (number 1 omitted) and (number 2 omitted) (hereinafter “instant land”) as well as the purchase price, etc. of other land at the time of Pakistan, and the Defendant had the intent and ability to change the land category with the consent of the commander of the jurisdictional unit in the consultation on operational nature of the protection zone of the military installations relating to the instant land, such as submitting an application for consultation on the operational nature of the protection zone of the military installations to the public, etc., and thus, the Defendant did not deceiving Nonindicted 3 at the time of the agreement on the instant land. Even if the Defendant neglected the instant land value, the Defendant ought to recognize the criminal intent by deception only to the extent exceeding the original land value

Nevertheless, the court below found guilty of the fraudulent part of the facts charged in this case, which erred in the misapprehension of legal principles or misconception of legal principles.

B) The part of violation of the National Security Act

In light of the Defendant’s past history, background leading up to visiting the GIC, etc., and progress of seeds and seedlings business, etc., it is difficult to readily conclude that the Defendant did not have an intent to praise North Korea, and that there was a risk of undermining the fundamental order of free democracy by the Defendant’s act stated in

Nevertheless, the court below convicted of the violation of the National Security Act among the facts charged in this case. The court below erred by misunderstanding of facts or misunderstanding of legal principles.

C) Violation of the Inter-Korean Exchange and Cooperation Act

It is true that at the time of the Defendant’s visit to the GIC, the Defendant and the accompanying person were not an employee of the GIC. However, in light of the fact that the GIC was unable to holiday as an individual qualification and the applicant for approval of the NIC could visit the GIC at the ○○○○ level as an employee of the GIC, such Defendant’s act cannot be readily concluded as a disguised act of disguisedizing the identity of the person who committed the act. Furthermore, the Defendant denied the release of the NIC to North Korea, there is no objective evidence to acknowledge it, and there is no credibility in Nonindicted 4’s statement on this point.

Nevertheless, the court below found guilty of this part of the facts charged, which erred by misunderstanding of facts or misunderstanding of legal principles.

2) The assertion of unreasonable sentencing

The punishment sentenced by the court below (two years of imprisonment) is too unreasonable.

(b) Grounds for appeal by prosecutors;

1) Grounds for misunderstanding of facts (not guilty in the original judgment)

In full view of the fact that Nonindicted 5 established the name of Nonindicted 2 by lending the name of Nonindicted 2, and that Nonindicted 2 consistently stated that he was able to receive monthly salary from the Defendant in return for lending the qualification as an industrial engineer for landscaping, the Defendant applied for compensation for the land and things on the ground related to the progress of ○○○○, and received compensation, and the Defendant appears to have lent his relative name in many parts of his business and used it. In full view of the fact that Nonindicted 5 appears to be the Defendant.

Nevertheless, the court below found the defendant not guilty as to this part of the facts charged, which erred in the misapprehension of facts.

2) The assertion of unreasonable sentencing

The above-mentioned sentence imposed by the court below on the defendant is too uneasible and unfair.

2. Judgment on the mistake of facts or misapprehension of legal principles by the defendant

A. Judgment as to the fraud part of the judgment below

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court below, it can be recognized that the purchase price of the instant land was KRW 347 million, but the purchase price of the instant land was KRW 434,100,000,000 to Nonindicted 3. The Defendant was not able to obtain the consent of the commander of the jurisdictional unit (hereinafter “military consent”) in consultation on the operational nature of the military facility protection zone of the instant land, even if the Defendant was unable to obtain the consent of the commander of the jurisdictional unit (hereinafter “military consent”) in consultation on the military facility protection zone of the instant land, and was granted KRW 431,00,000 from Nonindicted 3 by deceiving him.

1) Nonindicted 3 consistently stated in the investigative agency that “If the Defendant purchased the instant land from him/her, he/she shall change his/her land category with his/her military consent to make profits from more than twice within six months, and the Defendant shall transfer the purchase price of the instant land to the Defendant (300,000 won per square year)” and that Nonindicted 3 paid a total of KRW 432 million to the Defendant on several occasions (see, e.g., the trial record, face value 68 pages, and face value 36 pages, etc.).

2) While the Defendant received money over several occasions from Nonindicted 3 in the police investigation, the Defendant stated that the said money includes not only the instant land but also the money received under the name of the purchase price in the two land (see, e.g., 82 pages). In the prosecutor’s investigation, it is not consistent with the Defendant’s statement, such as stating that, at the time of the instant land, the ordinary price was 2.40,00 won, but the Defendant developed the instant land, and Nonindicted 3 was to bear the development cost of the instant land, and that, as Nonindicted 3 and Nonindicted 3 were to bear the development cost of the instant land, the development cost was calculated by adding up the development cost to KRW 34,10,00 won (see, e.g., Investigation Record 390-391 pages).

3) In addition, while Nonindicted 3 decided to purchase the instant land at the investigative agency, the Defendant asserted that Nonindicted 3 renounced the purchase of the instant land due to Nonindicted 3’s financial difficulties at the time of the payment of intermediate payments, and that Nonindicted 3 lent the remainder, etc. to the seller of the instant land (see, e.g., Investigation Record 383-384) from Nonindicted 3 as a loan, and thus, it is difficult to accept the Defendant’s assertion.

4) Since the Defendant was well aware of Nonindicted 3’s personnel in the military service unit, the Defendant was able to easily obtain military service consent on the instant land (see, e.g., page 83 of the trial record). However, in fact, the Defendant failed to obtain military service consent on the instant land (see, e.g., notification of the results of the review of the operational nature of military facility protection zones prepared at the time of the strike). Development activities on the instant land

5) On February 1, 2005, Nonindicted 3 stated that the Defendant paid KRW 10 million to the Defendant via Nonindicted 6 (see, e.g., Investigation Record 91 pages). Nonindicted 6 also stated that the investigative agency paid KRW 10 million to the Defendant with the purchase price for the instant land of Nonindicted 3 (see, e.g., Investigation Record 170 pages).

In addition, the crime of fraud, the property taking advantage of property, if there is a delivery of property by deception, thereby infringing the victim's property by itself, which constitutes fraud, and even if there was no considerable price or damage to the victim's entire property, it does not affect the establishment of fraud. Therefore, even in the case of fraud, even if the price has been partially paid, it shall be the whole property received, not the difference between the value of the property given from the victim and the price deducted from the price of the property (see Supreme Court Decision 82Do777, Jun. 22, 1982, etc.). Even if the case returned back to the case and the legitimate price of the land in this case is KRW 347,00,000,000 paid to the defendant, it is reasonable to view that the crime of fraud has been established as to the total amount of KRW 432,00,000 paid to the defendant, and since the ownership of the land in this case has not been transferred to the defendant, even if the defendant does not comply with the above legal principles.

Therefore, the judgment of the court below that found the defendant guilty on this part of the facts charged is just, and there is no error of misconception of facts or misunderstanding of legal principles as alleged by the defendant. This part of

B. Judgment on the violation of the National Security Act in the judgment below

The court below duly adopted and examined the following circumstances, i.e., the Defendant: (a) visited Non-Indicted 4, including Non-Indicted 6, to the above 4,00 personnel of the Republic of Korea; (b) he was aware that the Defendant would have come to know that he would have come to know that he would have come to know that he would have come to know that he would have come to know that he would have come to know 4,000,000 won, and that he would have come to know that he would have come to know that he would have come to know that he would have come to know that he would have come to know that he would have come to know 6,000 won, and that he would have come to know that he would have come to know that he would have come to know that he would have come to know 6,000 won, and that he would have come to know that he would have come to know that he would have come to know 9,000 won, and that he would have come to know 6,000 won.

Therefore, the judgment of the court below that found the defendant guilty on this part of the facts charged is just, and there is no error of misconception of facts or misunderstanding of legal principles as alleged by the defendant. This part of the defendant'

C. Judgment on the violation of the Inter-Korean Exchange and Cooperation Act in the judgment below

1) The acquisition of the approval of North Korea's status;

In full view of the evidence duly admitted and examined by the court below, in particular, the defendant's statements in the court of the court below, and each police interrogation protocol, etc. of the North Korean defectors together with the defendant, including the non-indicted 1 and the non-indicted 4, it can be sufficiently recognized that the defendant reported 59 persons, including the non-indicted 1, etc., as the staff of the ○○ police officer, and obtained approval from the Ministry of Unification for North Korea.

2) The point of bringing into the unapproved Nowon-do

In light of the contents of the judgment of the court of first instance and the evidence duly examined by the court of first instance in relation to the principle of court-oriented trials and the principle of direct examination, unless there exist special circumstances to deem that the judgment of the court of first instance was clearly erroneous, or in light of the contents of the judgment of the court of first instance and the evidence evidence duly examined by the court of first instance, the court of first instance should not arbitrarily reverse the judgment of the court of first instance on the ground that the judgment of the court of first instance on the credibility of the statement made by the witness of the court of first instance is different from the judgment of the court of first instance (see, e.g., Supreme Court Decision 2009Do14409, Feb. 25, 2010).

원심은 공소외 4 등에 대한 증인신문절차를 진행하는 등 직접 증거조사를 마친 다음 이 부분 공소사실에 대한 공소외 4 진술의 신빙성을 인정하였는바, 위와 같은 법리에 비추어 기록을 살펴보고 여기에다가 원심이 적법하게 채택하여 조사한 증거들에 의하여 인정되는 다음과 같은 사정, 즉 ① 피고인과 내연관계에 있었고 피고인과 함께 수차례 개성공단을 방문한 공소외 4는 원심법정에서 “네 번째로 개성을 방문한 2008. 10. 20.경 피고인이 한전창고로 들어가 농약 등을 내려놓고 까맣게 싼 물건도 그곳에 내려놓길래 증인이 피고인에게 ‘그것이 노트북이냐’라고 물어보니 피고인이 고개를 끄덕였다”고 진술한 점(공판기록 207면 참조), ② 그 외에도 피고인은 북한측에 쌀이나 생필품 등을 수시로 전달하여 온 것으로 보이는 점(공판기록 218면 등 참조), ③ 피고인이 남한에서 개성으로 갈 때 휴대하였다가 위 한전창고에 내려놓은 검은 용기로 싼 물건(노트북)을 개성에서 남한으로 돌아올 때는 휴대하지 않은 것으로 보이는 점 등을 종합해 볼 때, 피고인이 2008. 10. 20.경 북한측 관계자에게 노트북 PC 1대를 건네주었고 이로써 통일부 장관의 승인 없이 반출반입 승인대상 물품인 노트북 PC 1대를 반출하였다고 인정한 원심의 신빙성 판단이 명백히 잘못되었다고 볼 만한 특별한 사정이 있거나, 위 진술의 신빙성 유무에 대한 원심의 판단을 그대로 유지하는 것이 현저히 부당하다고 인정되는 예외적인 경우에 해당한다고 볼 만한 사정이 보이지 아니한다.

This part of the defendant's assertion is without merit.

3. Judgment on the prosecutor's assertion of mistake of facts

A. This part of the facts charged (related to the acquittal portion in the original judgment) and the judgment of the court below

1) This part of the facts charged

The Defendant, as an actual operator of ○○○ Gyeong-do, is the owner of 428 share of the iron ○○-do, in ○○-si, in which the number of 5-20 shares received in the amount of KRW 89,296,660, and the number of 1,334 shares received in the same amount of KRW 5-20, and the number of 15-20 shares received in the same amount of KRW 5-20.

On June 20, 2008, the Defendant sentenced Nonindicted 3, a creditor of the Defendant, to the effect that “the Defendant shall pay KRW 443 million to Nonindicted 3.” On June 20, 2008, the Defendant was subject to compulsory execution against the Defendant’s property from Nonindicted 3, such as the commencement of the compulsory execution procedure for corporeal movables on the Defendant’s property before and after the above sentence. On October 29, 2008, the Defendant was likely to be subject to compulsory execution against Nonindicted 3, such as the commencement of the compulsory execution procedure for corporeal movables on the Defendant’s property. For the purpose of evading the above compulsory execution, Nonindicted 3’s compensation consultation on the obstacles to the land scheduled to be incorporated in the Jeju District for the M&T, Seoul District Headquarters of the Korea Land and Housing Corporation, 1017 Supplementary Trust Compensation Project, Nonindicted 9, Nonindicted 29, 296-46, and 50-430-50-50-50-50-504.

2) The judgment of the court below

In light of the fact that the representative of the ○○ Police is the name of Nonindicted Party 2, and Nonindicted Party 10, 2, 11, 1, and 1 testified as Nonindicted Party 2’s operating enterprise, the lower court determined that it is difficult to readily conclude that the ○○ Police was the Defendant’s ownership only with the evidence submitted by the prosecution, and that there is no other evidence to acknowledge it, and acquitted this part of the facts charged pursuant to the latter part of Article 325 of the Criminal Act.

B. Judgment of the court below

The conviction in a criminal trial ought to be based on evidence with probative value, which leads a judge to have a conviction that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is doubt as to the defendant's guilt, it is inevitable to determine the defendant's interest (see Supreme Court Decision 2004Do74, May 14, 2004, etc.).

According to the evidence submitted by the prosecutor, it is acknowledged that Non-Indicted 5 and 4 stated in the court of the court below that "Non-Indicted 2 was operated by lending the name of Non-Indicted 2 with the defendant's industrial engineer qualification certificate and Non-Indicted 2 was paid monthly salary from the defendant." Non-Indicted 12 also stated that there was a purchase of 480 shares for the short-term 18 years which was received from the defendant, and that Non-Indicted 12 was registered as standing timber in the name of the defendant as to above ground trees (number 4 omitted), (number 5 omitted), (number 6 omitted), (number 7 omitted), and (number 7 omitted), as well as that the defendant received compensation for land and obstacles in the name of the defendant from the Ministry of National Defense at the time when the land was expropriated by the State.

그러나 한편, 원심 및 당심이 적법하게 채택하여 조사한 증거들에 의하여 인정되는 다음과 같은 사정, 즉 ① ○○조경은 2004. 3. 24.경 조경산업기사 자격증을 가진 공소외 2 명의로 사업자등록이 되었고 공소외 2가 파주시산림조합 및 한국화훼농업협동조합의 조합원으로 가입되어 있는 점(수사기록 805~811면 등 참조), ② 공소외 2는 원심법정에서 “증인은 조경을 전공하였기 때문에 조경사업을 할 목적으로 1990년대 중반부터 나무를 심기 시작하였고 2004년경 그 때까지 심었던 나무들이 성장하여 수익을 창출할 정도로 상품가치가 발생하여 사업자등록( ○○조경)을 하였다. ○○조경에서 증인은 지인들을 통하여 공사를 수주하고, 영업도 하고, 직접 도면을 그리고 현장을 지키는 등 사후관리까지 모든 일을 다 하였다”고 진술하고 있는 점(공판기록 440~443면 참조), ③ ○○조경에서 근무한 공소외 11은 공소외 2가 파주산림조합에서 묘목을 구입해 오고 증인 등에게 묘목을 심는 방법 등에 대하여 작업지시를 하면 그 지시에 따라 작업을 하였으며, 피고인은 ○○조경의 업무를 자주 도와주었고 피고인 소유의 나무도 ○○조경 내에 몇 군데 있었지만 공소외 2가 인부의 품삯을 지급하는 등 ○○조경의 실제 사주는 공소외 2라고 진술하고 있는 점(공판기록 464~467면 등 참조), ④ ○○조경의 농장부지 중 일부인 파주시 법원읍 오현리 산 (지번 4 생략) 임야는 피고인 소유이고, 오현리 (지번 3 생략)은 공소외 10 소유인데 공소외 2가 이들로부터 위 각 필지를 임차한 것으로 보이는 점(증 48, 49호, 각 가지번호 포함, 공소외 10은 원심법정에서 피고인이 ○○조경을 운영하는 공소외 2가 사용할 수 있도록 위 오현리 (지번 3 생략) 토지를 임차해 달라고 요청하여 위 토지를 임대해 주었다고 진술하였다, 공판기록 416~417면 참조), ⑤ 피고인이 당심에서 제출한 증거들에 의하면 공소외 2가 상당히 많은 고객들로부터 조경공사 등을 발주받고 ○○조경의 운영과 관련된 많은 업무들을 수행하여 온 것으로 보이는 점(한국화훼농협 경제사업부 차장으로 재직중인 공소외 13은 공소외 2가 한국화훼농협의 조합원일 뿐만 아니라 본인과 친분이 있었기 때문에 한국화훼농협의 사업과 관련된 수목식재공사 및 관리공사 등을 공소외 2가 운영하는 ○○조경에 10건 가량 발주하였다고 진술하고 있다), ⑥ ○○조경이 운영하는 농장 등에 설치된 팻말에는 피고인의 연락처가 아닌 공소외 2의 휴대폰 등 연락처( 전화번호 생략)가 기재되어 있는 점, ⑦ 피고인의 부탁으로 위 오현리 (지번 3 생략) 등을 관리하였다는 공소외 14는 당심법정에서 위 농장 등에 식재된 수목 등을 피고인이 항상 관리하였고 ○○조경이 피고인 소유인 것으로 알고 있다는 취지로 진술하였으나, 공소외 14는 재활용품 수집업자로서 피고인이 농장에서 나오는 고물을 일부 주는 대가로 피고인의 농장을 1주일에 한 번 정도 둘러보며 개밥을 주는 등의 일을 하였을 뿐이어서 피고인과 공소외 2 사이의 ○○조경에 대한 운영관계 내지 위 오현리 (지번 3 생략) 등에 식재된 수목의 소유관계 등에 관하여 그다지 잘 알 수 있는 위치에 있었다고 보이지 아니하고 실제로 피고인이 공소외 14에게 주기로 한 고물을 교부하지 아니하였으며 공소외 14가 파주시 교하읍 당하리에 있는 농장에 대한 압류집행시 공소외 3과 함께 그곳에 참석한 사정 등에 비추어 볼 때 그 진술을 선뜻 그대로 믿기 어려운 점, ⑧ 공소외 3이 오현리 산 (지번 4 생략), (지번 3 생략) 지상 수목 등에 대하여 압류집행을 하자 공소외 2가 위 수목 등이 본인 소유임을 주장하며 의정부지방법원 고양지원 2010가합8396호 로 제3자이의의 소를 제기하였는데, 위 법원은 위 수목 등의 소유자가 공소외 2라고 보아 공소외 2의 청구를 받아들여 공소외 3의 위 수목 등에 대한 강제집행을 불허한다는 내용의 판결을 선고한 점(항소심 계속 중임) 등을 고려해 보면, 검사가 제출한 증거들에 의해 인정되는 위와 같은 사정들만으로는 ○○조경의 운영자가 공소외 2가 아니라 피고인이라고 합리적 의심을 배제할 만큼 입증되었다고 단정하기에는 부족하고, 달리 이를 인정할 만한 증거가 없다.

Therefore, the court below's decision that there is no proof of crime as to this part of the facts charged and that the defendant acquitted is justified, and the judgment of the court below is not erroneous in the misconception of facts as alleged by the prosecutor. The prosecutor'

4. Determination on the assertion of unfair sentencing

We also examine each of the defendant and prosecutor's arguments on unreasonable sentencing.

The defendant acquired the amount of KRW 430 million by fraud and disguised 59 persons in total on several occasions, and obtained approval from the Ministry of Unification for North Korea on the Kim Jong-il, and there are poor circumstances in which the crime is committed.

However, through the compulsory execution against the Defendant’s property, the total amount of KRW 170 million was distributed to Nonindicted 3 and the partial recovery of Nonindicted 3’s damage was made; Nonindicted 3 appears to have a considerable responsibility for the occurrence of the crime or the expansion of damage to the victim beyond the Defendant’s deception due to the desire to obtain high profit in a short period; the main reason for the Defendant’s violation of the National Security Act is to be determined to have been for the purpose of acquiring the right to operate a nursery nursery in Gisung, rather than for the existence of a political purpose; the Defendant has no history of punishment for the same crime; the Defendant’s age, character, environment, family relationship, the motive and circumstance of the crime, the degree of damage caused by the crime, the circumstances after the crime, etc. is considered to be somewhat significant; and the sentencing of the Defendant is not unreasonable.

Therefore, the defendant's assertion of unreasonable sentencing is reasonable and the prosecutor's argument is without merit.

5. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed by Article 364 (4) of the Criminal Procedure Act. The defendant's appeal for mistake of facts or misapprehension of legal principles is without merit, but the appeal for unreasonable sentencing is with merit, so the judgment of the court below reversed the conviction part against the defendant under Article 364 (6) of the Criminal Procedure Act and ruled again

The criminal facts against the defendant recognized by this court and the summary of the evidence are the same as the corresponding columns of the judgment of the court below, and they are quoted in accordance with Article 369 of the Criminal Procedure Act.

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

Article 347(1) of the Criminal Act, Article 7(1)1, Article 3(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name (the fact of violating the Act on the Registration of Real Estate under Actual Titleholder’s Name), Article 27(1)2, Article 9(1) of the Inter-Korean Exchange and Cooperation Act, Article 30 of the Criminal Act (the fact of obtaining North Korea’s recognition of status, choice of imprisonment), Article 27(1)2, Article 13(1) of the former Inter-Korean Exchange and Cooperation Act (amended by Act No. 9357, Jan. 30, 2009); Article 7(1)2, Article 27(1)2, and Article 13(1) of the former Inter-Korean Exchange and Cooperation Act (the fact of taking out Nowon PC with approval, the decision of imprisonment), Article 7(1)2 of the National Security Act

2. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

It is so decided as per Disposition for the above reasons.

Judges Yoon Tae-sik (Presiding Judge) (Presiding Justice)