(영문) 서울중앙지방법원 2017.4.28. 선고 2016고합1346 판결

A person shall be punished by imprisonment with prison labor for not more than six months and for the remaining crimes in the judgment, for each of the following crimes.

Of the facts charged in the instant case, the summary of the judgment of innocence is publicly notified.

Reasons

Criminal facts

On February 18, 2008, the Defendant was sentenced to one year of imprisonment for the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes in the Daegu District Court Port Branch on November 13, 2008, and completed the execution of the sentence in the female prison on November 13, 2008, and on May 11, 2012, the Seoul Central District Court sentenced three years of suspended execution to two years and six months of imprisonment for fraud, and the said judgment became final and conclusive on May 19, 2012.

[2017Gohap53] - Fraud against victim E

On March 1, 2010, the Defendant made a proposal that the Defendant could reduce 15% of the shares of the incorporated company if the Defendant invested 5-600 million won to the victim in establishing the Drata in the coffee shop near the Gangnam-gu Seoul Cheonggu Seoul Cheongsagle.

On March 9, 2010, the defendant stated that if the victim mentioned the above investment proposal to the account in order to deposit the amount of KRW 80 million into the account, he would deliver it to the friendship who promotes the establishment of a drama producer.

However, even if the defendant received money from the victim, he did not have the intention or ability to use it for the expenses for the new apartment construction project that the defendant promoted, and to deliver it to the beneficiary as part of the investment funds for the establishment of the Dlama manufacturer.

As such, the Defendant, by deceiving the victim, received 80 million won from the victim to the foreign exchange bank account in the name of the Defendant, and acquired 150 million won through six times from that time until April 3, 2010, as shown in the attached crime list 1.

[2017 Height52] - Each fraud against victim F, G, and H

1. Fraud against victim F;

On November 21, 2013, in order for the Defendant to proceed with the apartment reconstruction business to the victim, the Defendant made a high restriction and made it necessary to operate the association. In short, if the Defendant borrowed 30 million won as necessary, he would complete payment within the two months.

However, the defendant, at the end of December 2012, lost the validity of the I apartment reconstruction association agreement that was agreed with J of the president of the apartment reconstruction association, and did not have any authority to the apartment reconstruction project, and even if he borrowed money from the victim, he did not have any intention or ability to repay it.

Accordingly, the Defendant, by deceiving the victim on November 21, 2013, transferred KRW 30 million to the National Bank Account (L) with the name of K on November 29, 2013, transferred KRW 15 million to the same account by the same method on November 29, 2013, and transferred KRW 5 million to the same account by the same method on January 10, 2014, and transferred KRW 6 million to the same account by the same method on February 7, 2014, and acquired KRW 59 million by the same method on February 25, 2014.

2. Each fraud against the victim G;

Around April 1, 2014, the Defendant, at the 'N' 1st floor of the Gangnam-gu Seoul MM building, controlled the management of the company as the former shareholder and the former shareholder of 0,000,000 won, and managed the assets of 2 billion won to the individual tax accountant P. In addition, since the domestic apartment construction is also conducted by proxy, the Changho Construction may be allowed to G. It is well-known and introduced himself. On April 8, 2015, the Defendant sent money to the victim to the bank account in the name of Q Q, as the operating expenses of the apartment reconstruction association are needed, and the Defendant received KRW 12,00,000 from the victim by sending money to the former bank account in the name of Q.

However, since January 2013, the Defendant did not have any authority related to the removal, advertisement, sale, etc. of Gwangju apartment, and did not have any authority over the management of personal assets of 2 billion won through a tax accountant. Moreover, even if the Defendant did not own a commercial building in the name of his/her wife in Japan and did not receive money from the victim, he/she did not have any intent or ability to make disbursements as the name of the Defendant, such as the operating expenses of the Housing Reconstruction Association.

As a result, the Defendant, by deceiving the victim on April 8, 2014, received and fraudulently acquired KRW 1,434,092,617 on a total of 89 occasions, as shown in the attached Table 2, including by deceiving the victim.

3. Fraud against victim H;

A. The case of employees by deceit;

On September 5, 2014, the Defendant: (a) around the Seo-gu, Seo-gu, Seo-gu, Seo-gu; (b) around the rest room in Seo-gu, Seo-gu; (c) around September 5, 2014, around the rest room, the Defendant was able to provide the victim H with a 'T at the 'T at the 'T at the rest of the rest;’ and (d) by the end of September 2014, the Defendant was able to provide the T at the rest of the rest room. The Defendant said that the Defendant would immediately transfer the 10,00

However, the Defendant did not have any intention or ability to sell the coffee specialty store operated by the victim at the rest area.

Accordingly, the Defendant, by deceiving the victim on September 6, 2014, acquired money of KRW 10 million from the victim to the national bank account (L) in the name of K from September 6, 2014.

(b) Fraud under the name of the complaint;

Around September 9, 2014, the Defendant introduced the head of T Stops to the victim before the rest area, and then introduced the head of T Stops to the victim, and then came to talk with the head of T Stops who left U, and the head of T Stops. Around September 9, 2014, the Defendant was given up KRW 10,000,000,000,000,000,000,0000,000,000,0000,000,000,000,000,000).

However, in fact, the Defendant had no intent or ability to sell a coffee specialty store operated by the victim to K, and the victim transferred 10 million won to K account in the name of K.

Accordingly, the Defendant, by deceiving the victim, received 7 million won from the victim to the national bank account in the above K name on the same day.

[2016Gohap1346] - Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

【Basic Facts】

In fact, the Defendant received money and valuables under various circumstances, such as the expenses of the reconstruction association operation, on the ground that he was able to carry out a large number of construction works, such as the reconstruction association operation, and he was able to do so to receive money and valuables from the representative director G of the company V and W Co., Ltd. (hereinafter referred to as "W"), which was known as a result of the introduction of the branch in April 2014, even though he did not have any power, and he was able to do so, and he was able to receive money and valuables under various circumstances, such as the reconstruction association operation expenses, and eventually sprinked for a large amount of gambling and gambling from X.

In July 2014, the Defendant was requested by the representative director Y (hereinafter referred to as "YY") to lend funds necessary to implement the Zekhym race track construction project from the Z of the representative director of the Y (hereinafter referred to as "Y"), and thus, the Defendant tried to liquidate his gambling and liquidate the fund for the YY project, and to have the right of interest, such as fees and shares, from the Z to help to raise the fund for the Y project.

In August 2014, the Defendant requested several times to the early police officer G to the effect that “Y, operated by the chairman of the Z, issued bills of exchange to the company operating the Z to operate the horse race track construction business in the Kazaktan to the effect that the operating expenses would be flick,” but G rejected it only due to the aggravated financial circumstances.

The defendant again issued one copy of an electronic bill containing "G on August 22, 2014," "A's serial number, the issuer's 'W representative director G', 'Y representative director G', 'Z', 'Y representative director G', 'Z', 'Y representative director Z' and 'Y' 11, 30, 30.30."

(See attached Form No. 1)

AB building 703, Seocho-gu Seoul, the Defendant issued an electronic bill with mind to use the electronic bill and divided the face value of KRW 200,000,000,000, and transferred it to X’s agent AC on August 28, 2014.

【Criminal Facts】

On August 26, 2014, the Defendant issued an electronic bill with a fee of KRW 300,000,000 for KRW 20,000,000 for the purpose of raising funds.

Therefore, it was false to the effect that the payment of the bill will be entirely responsible for the settlement of the bill as if the bill was made before the payment was made.

However, in fact, the defendant transferred the electronic bill to X's agent AC and did not have any intent or ability to pay the bill on the due date. However, the defendant did not have any intention or ability to pay the bill with the bill discount for Y.

Therefore, around August 29, 2014, the Defendant, by deceiving G as above, had it issue an electronic bill, which is "150 million won in the face value of the victim W," and "the maturity date of September 30, 2014," and caused Y to acquire pecuniary benefits equivalent to the same amount (see attached Form 2). On September 4, 2014, the Defendant continued to obtain pecuniary benefits from the issuance of an electronic bill, which is issued "G," which is "150 million won in the face value of the victim W," and "the due date." On September 30, 2014.

Therefore, it was said that the existing electronic bill will be returned immediately and the previous electronic bill will be given a discount to the newly issued electronic bill.

However, in fact, the Defendant transferred the electronic bill (attached Form 1, No. 2) to AC for the repayment of 350,000,000 won in total at face value already issued by the Defendant. As such, the Defendant’s words were false.

Therefore, the Defendant, by deceiving G as above, had Y issue four copies of an electronic bill with the sum of KRW 350,000,000,000 per share value in the name of the victim W on the same day, and due date on December 8, 2015 (see the details of issuance of an electronic bill in attached Form 3 through 6). As such, the Defendant, by deceiving G as above, had Y obtain pecuniary benefits equivalent to that of the amount of the electronic bill in total from the victim W by allowing Y to issue an electronic bill in total amount of KRW 50,00,000 from the victim W, thereby having Y obtain pecuniary benefits equivalent to that of the amount.

Summary of Evidence

[2017Gohap53]

1. Defendant's legal statement;

1. The prosecutor's interrogation protocol (including the whole part of E and AD) of the accused;

1. Written confirmation (No. 5, No. 5, No. 5, and No. 5), each detailed statement of transactions (No. 5, No. 8), and a statement of funds transfer (No. 9);

1. Previous convictions: Inquiry of criminal records and investigation records into criminal records, detailed inquiries into criminal records, court rulings and personal confinement status;

[2017Gohap52]

1. Defendant's legal statement;

1. Each prosecutor's statement concerning G and F;

1. The police statement of H;

1. A complaint and an additional complaint prepared by G;

1. A certificate prepared by U;

1. Investigative Report (AE-Related Press Data Attachment (No. 2), Investigation Report (No. 5,000,000 won transferred by the G to the accused on May 23, 2014) [No. 13], Investigation Report (Execution Results of Search and Inspection Warrants No. 25], Investigation Report (K Telephone Communications No. 26];

1. Recording book (No. 9), deposit statement (No. 20), apartment incidental business contract (No. 28) and remittance receipt (No. 31)

[2016Gohap1346]

1. Partial statement of the defendant;

1. Testimony of witness G;

1. Part of each prosecutor's protocol of examination of the accused;

1. The investigation report (the monetary report of the President of the Z of the Y company), investigation report (the submission ofG data and hearing of statements) (the order No. 5), investigation report (the order No. 8), and hearing of statements by the AF representative of the AF corporation (the order No. 8);

1. The photograph of text messages (No. 4), the screen (No. 6) of the issuance of electronic bills, the check of the details of the issuance of electronic bills, No. 7, the check of the details of endorsement, the check of the details of the issuance of bills, and the check of the details of endorsement, No. 18, the check of the details of the issuance of bills, the check of the details of the electronic bill for maturity

Application of Statutes

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

Article 347(1) of each Criminal Code (each of them shall be decided by imprisonment with prison labor, including each of them for each fraud, and the same deception against victims); Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 13719, Jan. 6, 2016); Article 347(2) and Article 347(1) of the Criminal Code (including fraud, including the point of fraud)

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act (Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes)

1. Handling concurrent crimes;

The latter part of Articles 37 and 39(1) of the Criminal Act (mutual frauds against victims E and frauds for which judgment has become final and conclusive)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Mutual Crimes except for the crime of fraud against Victims E, and the penalty provided for in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) with the largest punishment)

Judgment on the argument of the defendant and defense counsel (the grounds for the crime)

1. Summary of the assertion

In relation to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), the defendant introduced G to issue electronic bills in the name of the victim W in Y, but did not commit deception to G, and did not have any criminal intent to obtain deception.

2. Relevant legal principles

A. The deception, which is a requirement for fraud, refers to any affirmative or passive act that widely assumes the fiduciary duty and good faith to each other in property transaction, and it does not necessarily have to be an essential part of a juristic act, and is sufficient if it is based on the basic facts of a judgment to allow an actor to perform a disposal act that he/she wishes by omitting the other party in error (see, e.g., Supreme Court Decision 2009Do7459, Oct. 15, 2009).

B. In addition, insofar as the criminal intent of defraudation, which is a constituent element of fraud, is not the confession of the defendant, it shall be determined by comprehensively taking account of the objective circumstances such as the defendant's financial history, environment, details of the crime, and the process of performing the transaction before and after the crime (see, e.g., Supreme Court Decision 95Do424, Apr. 25,

3. Determination

The following circumstances are met: (a) if the Defendant did not have any capacity to pay the amount of KRW 150 million by means of electronic bills issued by G 1,000,000,000,000 won or more; (b) if the Defendant did not have any capacity to pay the amount of KRW 300,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,000,000,000,000,00,000,00,00,00,00,00,00.

Reasons for sentencing

1. The scope of punishment by law;

(a) Imprisonment with labor for not less than one month but not more than 20 years for fraud against victims E;

(b) Imprisonment with prison labor for not less than three years but not more than 45 years;

2. Application of the sentencing criteria;

(a) Fraud against victims E;

Since the latter part of Article 37 of the Criminal Code is concurrent crimes, the sentencing criteria are not applied.

(b) The remainder of each crime;

[Determination of Punishment] General Fraud 3 types (not less than 500 million won but less than 5 billion won)

[Special Aggravationd Persons] When committing a crime against many victims or repeatedly over a considerable period of time, the victim has caused serious damage.

[Scope of Recommendation] Imprisonment with prison labor of not less than four years but not more than ten years and six months (special aggravation area)

3. Determination of sentence;

(a) Crimes of fraud against victims E (six months of imprisonment);

The following circumstances shall be taken into account; the defendant's age, character and conduct, environment, motive and background of the crime, means and consequence of the crime, and the circumstances before and after the crime, etc. shall be determined as ordered by taking into account all the various factors of sentencing as shown in the arguments in this case.

The circumstances favorable to ○: The Defendant acknowledges all of the crimes. The equity should be taken into account in the case where the judgment in the concurrent relationship between the crime and the crime of fraud in the latter part of Article 37 of the Criminal Act could have been tried at the same time.

○ Unfavorable Circumstances: In light of the fact that the amount acquired by the Defendant from the victim is KRW 100 million, the quality of the crime is inferior. The amount of damage is not recovered to the victim, and the victim wants to punish the Defendant. Although the Defendant had been punished several times for the same crime, he again committed the instant crime. Therefore, the Defendant needs to be held liable corresponding to the liability for the crime.

(b) Imprisonment with prison labor for the remaining crimes (four years);

○ favorable circumstances: The defendant fully acknowledges the remaining crimes except for the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud). Among the crimes in this case, the financial benefits acquired by the defendant in relation to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) are deemed to have been reverted to Y, not the defendant, and the defendant used some electronic bills for personal purposes, but most of them seem to have been used

○ Unfavorable Circumstances: The Defendant repeatedly committed a crime against several victims for a considerable period of time for the purpose of using it for gambling or gambling, etc., and the amount of the defraudation is a large amount of KRW 2.6 billion. Furthermore, in light of the fact that the Defendant’s crime was partially caused by the Defendant’s crime and the W, etc. operated by the Victim G entered rehabilitation procedures, causing serious damage to the victim G, etc., the crime is not very good. The Defendant is unable to pay damages to the victims, and the victims want to be punished. Moreover, the Defendant again committed the instant crime even though he had a history of having been punished several times for the same crime.

Therefore, it is necessary to strictly bear the responsibility for the defendant to use his criminal liability.

The acquittal portion

1. Summary of the facts charged

around August 2014, the Defendant issued one copy of the electronic bill (attached Form No. 1) comprised of the issuer’s “W representative director G, face value “30 million won”, and the payee’s representative director’s “Z” (see attached Form No. 1) in order to enable G to perform the business of settling the electronic bill and collecting the bill, so that there is any money coming from the apartment construction site such as Gwangju and Jeju, which is responsible for the settlement of the internal bill and to recover the bill before the due date. In addition, the Defendant issued one copy of the electronic bill (see attached Form No. 1), which is called the issuer’s “W representative director G, face value “30 million won,” and the issuer’s “Y representative director”. As the Defendant was entrusted with the business of settling the electronic bill and collecting the bill, there was a duty under the contract or the good faith principle

Nevertheless, the Defendant violated his duties and received the foregoing electronic bill from the Z to use the above electronic bill for the purpose of the Defendant’s gambling payment, and issued the company’s 200,000,000,000 won bill in which the Defendant was in default and paid off the face value, and transferred it to X’s agent AC on August 28, 2014, thereby obtaining pecuniary benefits equivalent to the above amount, and causing financial damage to the victim W.

2. Relevant legal principles

Since the crime of breach of trust is established by a person who administers another's business in violation of one's duty to obtain pecuniary benefits and thereby causing damage to another person who is the principal agent of the business, the principal agent of the crime must be in the position of dealing with another's business.

In order to raise an appeal, the principal’s essential content should go beyond a simple relationship of claims and obligations and should protect or manage another’s property based on the trust relationship among the parties, and the act of breach of duty refers to any act of lowering trust relationship that the principal has entered into by failing to perform an act as a matter of course which is anticipated under the provisions of statutes, the content of the contract, or the principle of trust and good faith, or by performing an act which is anticipated not to perform as a matter of course, in light of the specific circumstances, such as the content and nature of the business to be handled (see, e.g., Supreme Court Decision 2016Do367

3. Determination

A. In light of the above evidence, G requested several times to the effect that “Y” operated by the Defendant to the Defendant on August 22, 2014 to issue a bill of exchange with a company run by the Defendant, so that operating expenses would be fluorite, but G refused to do so. The Defendant was responsible for paying the bill of exchange to G police officers in August 2014 and collected the bill before the expiration of the due date because there was any money from the apartment construction site, such as luminous and Jeju, to G police officers in the middle of August 2014. As such, G refers to the purport that “the issuance of an electronic bill is different”, and ③ G refers to the issuance of an electronic bill of exchange with the issuer’s “G representative director(s), 300 million won(s)”, and YY representative director’s issuance of an electronic bill of exchange.

B. According to the above facts, although the defendant stated that he would be responsible for the settlement of the bill to G and recover the bill before the maturity, it is insufficient to recognize that the defendant was in a fiduciary relationship in accordance with the statutes, contracts, or the principles of good faith, etc. that the defendant should not cause damage to the bill book, etc. for W, and there is no other evidence to acknowledge this otherwise.

4. Conclusion

Therefore, since the above facts charged constitute a case where there is no proof of facts constituting an offense, the court rendered a judgment of innocence pursuant to the latter part of Article 325 of the Criminal Procedure Act, and publicly announced the summary of the judgment of innocence pursuant to the main sentence of

Judges

The presiding judge, judge and presiding judge;

Judges Man-ho

Judges Han Han-chul

Note tin

1) Therefore, the Defendant immediately transferred the foregoing electronic bill to the company X’s agent AC due to the occurrence of gambling and damage.

2) Of four copies of the foregoing electronic bills issued by G in the name of W, the Defendant used the electronic bill No. 5 of the issuance details of the electronic bill No. 20 million won per face value, and the remainder of the electronic bill was used by Y.