Defendant

Defendant

Kim Dong-dong (prosecutions) and Kim Jae-Nam (Trial)

Attorney Lee Young-hoon

Daejeon District Court Decision 2015 High Court Decision 879, 1062 (Consolidated) Decided April 12, 2016

Of the lower judgment, the part of the case in the 2015 Highest879 shall be reversed.

In regard to the crime of the 2015 Highest 879 case, the defendant shall be innocent.

The remaining appeal by the defendant is dismissed.

The summary of the judgment on the acquittal shall be publicly announced.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misunderstanding of legal principles (2015 Highest 879 case)

At the time of requesting the establishment of the right to collateral security registration, the Defendant was cleared of the instant truck imported at the time of requesting the victim to establish the right to collateral security, and the Defendant merely delivered it to terminate the right to collateral security after delivery, and there was no fact that “the Defendant would terminate the right to collateral security by August 31, 2008 with refund of value-added tax and transport charges.”

B. Unreasonable sentencing

The sentence of the lower court (2015 Godan879: Imprisonment with prison labor for 2 years, 2015 Godandan1062: Imprisonment for 6 months and 2 years of suspended execution) is too unreasonable.

2. Judgment on the misunderstanding of facts and misapprehension of legal principles (the part of the case in question)

A. Summary of the facts charged

The Defendant is a person who engages in the business of leasing equipment in the trade name of Nonindicted Co. 1 in Yeongdeungpo-gu Seoul Metropolitan Government.

On June 1, 2008, the Defendant made a false statement to the victim non-indicted 2 at the office of the above non-indicted 1 corporation, stating, “It is necessary to offer security to conclude a lease contract with the non-indicted 3 corporation for the import of dump truck, and, upon establishing the right to collateral security to the victim's real estate, the non-indicted 3 corporation would terminate the right to collateral security upon receiving a refund of value-added tax and transport charges for dump truck after three months after the establishment of the right to collateral security.” However, the Defendant was liable to pay taxes of KRW 15,392,740 as at the time, and the Defendant was liable to pay taxes of KRW 20 million or more to the non-indicted 4, etc., and the amount of rent equivalent to KRW 40 million per month was paid to the dump truck in possession, and the value-added tax cannot be paid for the dump truck imported from the relationship without the construction site, and there was no intention to receive the above dum truck from the victim's.

On June 12, 2008, the Defendant deceptioned the victim as above, and caused the victim to set up the right to collateral security (hereinafter “instant right to collateral security”) of KRW 300 million with the maximum debt amount to the Seoul Gangnam-gu ( Address omitted) owned by the victim to Nonindicted Incorporated Company 3, thereby gaining pecuniary benefits equivalent to the said amount.

B. The judgment of the court below

The lower court, on the grounds stated in its reasoning, found the Defendant guilty of the instant facts charged by integrating the evidence as indicated in its reasoning.

C. Judgment of the court below

1) However, we cannot accept the judgment of the court below for the following reasons.

2) Review of the evidence and records duly adopted and examined by the lower court and the lower court, the following circumstances can be acknowledged.

① A letter of undertaking stating that “the Defendant will terminate the instant right to collateral within August 31, 2008 (the nine pages of the investigation record)” was written not on June 12, 2008, but on July thereafter (7, 2000). The victim stated that “the right to collateral security established on the job on which the letter of commitment was received was expressed by an investigative agency that he would be cancelled upon receiving transportation charges and additional taxes (as alleged by the Defendant, No. 240 of the investigation record),” and the content of the said letter of commitment was written as “the creation of collateral between Ein and Ein of the president of Defendant 1, Co., Ltd., Ltd., Ltd., and Nonindicted 2, etc., (hereinafter omitted).” In full view of the fact that the said letter of undertaking appears to have been written from the perspective of the victim, the possibility that the victim would not have been discussed during the process of establishing the mortgage registration at around June 1, 2008, etc.

② The allegation that the victim was an expert in the import of heavy equipment, and that such a victim offered real estate owned by himself/herself as security without confirming import conditions, etc., is difficult to obtain easily.

③ It is not clear how the Defendant paid a transport fee to the Defendant or not. It is also difficult to accept that the Defendant, who had much experience in importing heavy equipment, had a strong belief to do so.

④ Even if value-added tax was not preferentially refunded, it is difficult to exclude the possibility that the won display price of the instant truck, which was initially expected to rise due to the exchange rate due to the U.S. financial crisis at the time of importation, would have increased by approximately 1.5 times.

⑤ Although at the time of establishing the instant right to collateral security, the Defendant did not pay a certain amount of taxes and did not pay rent, the amount of arrears, etc. to the extent that Nonindicted Co. 3 did not determine the lease despite such delinquency cannot be deemed to be a large amount in light of the amount of the Defendant’s management of the company. The increase in the amount of arrears, etc. is the following after ○○ Construction, which was issued a promissory note to the Defendant on October 208, 2008.

6) In addition, the Defendant, after importing dump trucks, was in possession of Nonindicted Company 1’s existing key machine and was planned to raise funds by receiving advance payments at the construction site of Nonindicted Company 5, etc., and there was no proof that such Defendant’s change of circumstance, such as the occurrence of the U.S. financial crisis, may have been realized if there was no change in circumstances, such as the occurrence of the U.S. financial crisis.

7) According to the victim’s assertion, “the 100 million won mortgage was set up and the 300 million won mortgage was known, and was believed to have been guilty when it was established.” Since then, the Defendant had the Defendant registered his/her residence in the home owned by the victim, or had the Defendant import his/her engines, such as visible trucks, around March 24, 2010 and around May 16, 2013, which were difficult to regard as a victim of fraud, by allowing the Defendant to obtain resident registration in the home owned by the victim, or by allowing the Defendant to additionally import engines, such as visible trucks.

④ Although the Defendant is somewhat illegal means, the Defendant also assisted the victim to collect and collect the instant dump truck so that the victim would be injured, or the victim cooperates in the lawsuit claiming the cancellation of the right to collateral against Nonindicted Co. 3.

3) Comprehensively taking account of the aforementioned circumstances, it is difficult to believe that Nonindicted 2’s investigative agency and legal statement consistent with the facts charged in the instant fraud are reliable, and there is no other evidence to prove that the Defendant deceivings the victim without intent to repay or ability to repay, and there is no other evidence to prove that the Defendant acquired pecuniary profits. The Defendant’s assertion

3. Determination on the assertion of unfair sentencing (Article 2015 Highest 1062 of the case)

The court below determined a punishment by fully taking into account all the circumstances regarding the sentencing of the defendant, and it seems that it exists within a reasonable scope, and there are no circumstances to be newly considered in the trial. Therefore, it is not recognized that the sentence of the court below is too unreasonable because it is too unreasonable.

4. Conclusion

Of the lower judgment, the Defendant’s appeal on the ground of mistake of facts regarding the part on the 2015 Highest 879 case is with merit. Therefore, without examining the Defendant’s assertion of unfair sentencing, the part on the 2015 Highest 879 case among the lower judgment pursuant to Article 364(6) of the Criminal Procedure Act is reversed, and the pleading is followed, and the Defendant’s assertion of unfair sentencing regarding the 2015 Highest 1062 portion is dismissed

The summary of the facts charged against the defendant is as described in paragraph (2) of Article 2.

This constitutes a case where there is no proof of crime as seen in Article 2(c) of the Criminal Procedure Act. Therefore, it is so decided as per Disposition by the decision of the court that the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act and the summary of this part of the judgment pursuant to Article 58

Judges Lee Sung-sung (Presiding Judge)

Note 1) The victim initially believed that he would have set up a right to collateral security without any consideration that he would terminate the right to collateral security at 3 months only, and that he would not thereafter make a request. The defendant argued that he would give KRW 50 million in the course of drawing up a written promise to collateral security, and that the defendant was promised to give KRW 50 million in return for setting up the right to collateral security from the beginning.