2019 Highly 19 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), written apology

Forgery, Uttering of Reference Documents

A

Impeachment (prosecutions), and schoe (public trial)

Attorney Hah Dok-style (Korean Pharmacopoeia)

March 22, 2019

A defendant shall be punished by imprisonment for five years.

Criminal facts

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

The defendant is a person who serves as the representative director of corporation C in Gangnam-gu Seoul and the fifth floor.

The Defendant Company operating the Victim AE in Gangnam-gu Seoul AD Building on January 1, 2018.

At the AF Office, “C Co., Ltd is exclusively holding the publication copyright of AG C C, which is a business that manufactures and sells a Spanish Social Es. It is expected that the pre-sale promise of the AF Office is completed in Japan. It is expected that a large amount of earnings will be paid by adding a total of KRW 2.1 billion to a total of KRW 3 billion after three months from the date of investment in the CF Office.”

However, the Defendant had intended to use a considerable portion of the investment funds for other purposes, such as repayment of personal debts, not for the production cost of the report. At that time, the Defendant had no intention or ability to pay the investment principal and profits even if he received the investment funds from the victim due to the lack of the fact that the said house was pre-saleed in Japan.

Nevertheless, the Defendant, as above, by deceiving the victim, received KRW 1.5 billion in total from the victim, including KRW 30 million on January 9, 2018, KRW 1.0 billion on January 10, 2018, and KRW 1.5 billion on January 11, 2018, and KRW 200 million, into an account in the name of AH Co., Ltd.

Accordingly, the defendant deceivings the victim as above and acquired 1.5 billion won from the victim as investment money.

2. Forgery of private documents and the display of private documents;

A. As stated in Paragraph 1, the Defendant, by deceiving KRW 1.5 billion from AE and being urged to repay, entered AE into a false product supply contract with the intent to use AE to believe that 10,000,000 won was actually sold. On April 2, 2018, the Defendant: (a) drafted a false product supply contract with the intent to supply KRW 1,00,000,000 to AI Co., Ltd. in a manner that the Defendant revises the content of other product supply contract stored in Empt used by the Defendant in his usual place; (b) signed a false product supply contract with the intent to supply KRW 2.7 billion to the Defendant; and (c) affixed the Seoul Gangnam-gu AJ, Seoul, 4, and the representative director column to the name and address column; and (d) sealed the AI corporation, a corporation arbitrarily dedicated to AK’s name and sealed it.

Accordingly, for the purpose of exercising authority, the Defendant forged one copy of the goods supply contract, which is a private document on rights and obligations, under the AI name 1).

B. Around April 2, 2018, the Defendant issued a forged product supply contract to AL who is aware of the forgery to deliver it to AE at the office of AH in Gangnam-gu Seoul, Seoul, and the fourth level, and exercised it as if it was duly formed.

Summary of Evidence

1. The defendant's partial statement in the first protocol of trial;

1. Statement of each part of the prosecutor's office and police interrogation protocol of the defendant (including the part concerning the AE, AK, and AL statement);

1. Each police statement to AE and AK;

1. The notice of cancellation of the supply transaction contract (Evidence List No. 11), AG rental, which is an investment contract (Evidence List No. 19), each account transaction details (Evidence List No. 20,34), the sales (Evidence List No. 21), the sales (Evidence List No. 22), the product supply contract (Evidence List No. 30) and the content certification (Evidence List No. 30);

1. Each investigation report (No. 5, 12, and 14 No. 5 of the evidence list);

Application of Statutes

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

Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347(1) of the Criminal Act, Article 231 of the Criminal Act, Article 234 and Article 231 of the Criminal Act (the fact that the use of the falsified Document and the choice of imprisonment) (the use of the falsified Document and the choice of imprisonment)

1. Aggravation for concurrent crimes;

Article 37 of the Criminal Act, Article 38 (1) 2, and Article 50 of the same Act shall apply to concurrent crimes within the scope of the sum of the punishment prescribed by the Act on the Punishment, etc. of Specific Economic Crimes (Fraud) and the long-term punishment of each of the crimes above]

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion about the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

A. At the time of receiving an investment from the victim, the Defendant planned the above-mentioned sales business by entering into a supply contract with the AI Co., Ltd., but subsequently, the Defendant was unable to pay the balance to the AI Co., Ltd. due to other investment failure, etc., the Defendant failed to pay the investment amount and the agreed profit to the victim.

B. In light of these circumstances, the defendant knew the fact that the defendant intentionally caused the fraud of this case, not the intention of conclusive defraudation at the time, but the defendant intentionally caused the crime of fraud of this case. However, as the victim's assertion, the defendant deceivings the victim as if the defendant had the sales authority of ‘the victim ‘s ‘Iljin 4' in the process of being invested, even though he had the power to sell ‘the victim's ‘the right to sell â‘, â‘ by entering into a contract for supply of goods with AI, the defendant was granted only ‘the right to sell', but the defendant knews the defendant as the representative corporation â………………………â……, as he has copyright, as he has been in possession of the publication, that he made and sold â…………â……â……â…â……â…‘ in Japan, even though he had not completed the pre-sale promise for the pre-sale in Japan at the time. The fact that the pre-sale had not been deceivingd as if he had been included in the purchase cost of the goods.

2. Determination

A. As to the assertion that there is no deceptionation, ①, ②

However, this part of the charge of fraud is clear by the indictment itself, as it is stated in the indictment that the contents of deception are not included (in the investigation stage, ①, ② it appears that the investigation was conducted with respect to the contents of deception, but according to the indictment itself, the prosecutor, although he thought that the considerable part of the investment money was used for other purposes, such as repayment of personal debts, etc., deceivings the "use of the investment money" for the production of AG picture, deceivings the victim even though he did not complete the pre-sale reservation, and deceivings the victim even though he did not have any intention or ability to repay the investment principal and profits even if he was granted the investment money, it is evident that the defendant was not prosecuted.) The above argument by the defendant is not separately determined.

B. As to the allegation that the above 3-party deception did not exist

1) In light of the following circumstances acknowledged by the prosecutor’s evidence, i.e., (i) it was difficult to conclude that the Defendant had made a false statement to the effect that the Defendant had been aware of the fact that the Defendant had not been aware of the fact that the Defendant had been aware of the fact that the Defendant had not been aware of the fact at the time of investment, and that the Defendant had been aware of the fact that the Defendant had not been aware of the fact that the Defendant had been aware of the fact that the Defendant had not been aware of the fact that the Defendant had been aware of the fact at the time of investment, and that the Defendant had been aware of the fact that the Defendant had not been aware of the fact that the Defendant had been aware of the fact that the Defendant had been aware of the fact that the Defendant had not been aware of the fact that the Defendant had been aware of the fact that the Defendant had been aware of the fact that the Defendant had already been aware of the fact that the Defendant had been aware of the fact that the Defendant had not been aware of the fact that the Defendant had been aware of the fact that the Defendant had not been aware of the Defendant’s sales.

2) In addition, deception, which is a requirement for fraud, refers to all affirmative or passive acts that have the duty of good faith and sincerity that should be observed widely in property transaction. It is sufficient to say that it does not necessarily require false indication of important part of a juristic act, and that it constitutes the basis of judgment for an actor to make a disposition of property which the actor wishes by omitting the other party in mistake (see, e.g., Supreme Court Decision 2011Do11856, Jan. 16, 2014). In light of the amount of the investment in this case, the size of the investment in this case and circumstances leading to the investment of the victim, etc., the victim would have not completed a pre-sale promise with a company in Japan at the time, and if the victim knew that the possibility was very clear, it would have not paid a large amount of investment amount exceeding 1.5 billion won to the defendant. Thus, such deception also constitutes fraud against the victim.

3) Therefore, the above assertion by the defendant and his defense counsel is without merit.

C. As to the allegation that there was no deception

1) It is true that the statement between the defendant and the victim about whether the defendant limited the use of investment funds in the process of entering into an investment agreement with the defendant or the victim, or included the production of the Slishbook. However, as seen earlier, the prosecutor only included the portion used as a personal debt in the indictment for the purpose of deception as well as the portion used as a personal debt in relation to deception in the indictment. Since it is apparent that the portion used as a production cost was not included in the portion (in the investigation stage, the investigation was conducted about the above deception). Thus, it is not judged separately whether the above portion included the production cost in the use of the Slish Capital Investment Fund for the purpose of the investigation stage.

2) However, even if the Defendant’s assertion that the investment was included in the company’s gift, as in the Defendant’s assertion, it is acknowledged that the Defendant used a total of KRW 653 million in 1.5 billion in 1.5 billion in 1.5 billion in 1.5 billion in 1.5 billion in 1.5 billion in 1.5 billion in 1.5 billion in 2000 in 2000 in 2000 in 2000 in 2000 and 2000 in 2000 in 2000 in 2000 in 2000 in 20000 in 20000 in 20000 in 20000 in 20000 in 2000,0000 in 2000,0000 in 200,0000 in 200,0000 in 200,000).

Reasons for sentencing

1. The scope of punishment by law: Imprisonment with prison labor for three years - forty years;

2. Scope of recommended sentences according to the sentencing criteria;

(a) A violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud);

[Determination of Punishment] General Fraud type 3 (at least 500 million won, but less than 5 billion won)

[Special Aggravationd ] Aggravationd : Where serious damage has been caused to the victim;

[Scope of Recommendation] 4 years of imprisonment - 7 years (Aggravated Field)

(b) Crimes of forging private documents 9);

[Determination of Punishment] Forgery, Alteration, etc. of Private Document - Private Document -

[Scope of Recommendation] Imprisonment 6 months - Two years (Basic Area)

(c) Scope of recommendations according to standards for handling multiple crimes: Imprisonment with prison labor for 4 years - 8 years; and

3. Determination of sentence: Determination of sentence shall be made by taking into account the following five years of imprisonment, and taking into account various factors of sentencing as shown in the arguments in this case, including the age, character and conduct, the process of growth, the environment, the motive, means and consequence of the crime, and the circumstances after the crime, and the scope of recommended sentence under the sentencing criteria, as shown in the order

○ Unfavorable Conditions

The Defendant had committed a crime of forging a private document and uttering of a falsified document to conceal the crime by deceiving the victim and deceiving the victim, and also committed the crime in light of the content of such crime and the scale of damage. Nevertheless, the Defendant did not reach an agreement with the victim up to the present day, but did not recover most damage therefrom. In particular, the Defendant appears to have suffered significant economic damage to the victim, such as that the company operated by the victim due to the instant fraud was faced with the serious management crisis. In addition, the Defendant was sentenced to a fine for fraud around 2013.

○ favorable circumstances

Defendant generally acknowledges each of the crimes of this case and reflects on, and there is no history of punishment exceeding fines. Defendant used part of the investment funds for actual investment purposes. After the instant case, Defendant and defense counsel appears to have been partially recovered from the damage, such as the payment of KRW 70 million to the victim. (On the other hand, Defendant and defense counsel asserted that the fraud of this case is nothing more than the willful negligence. However, as seen earlier, Defendant and defense counsel actively induced Defendant on the completion of pre-sale reservation or the actual user of the investment funds, which are an important factor in investment decision at the time of investment decision, and introduced Defendant’s financial situation and performance to the victim at the time of investment. (11) In addition to the actual progress of the Defendant’s business as seen earlier, if considering these facts, it cannot be deemed that the overall act of deception of the Defendant in this case is weak or it is nothing more than do with intention, Defendant and defense counsel’s above assertion is rejected).

The presiding judge, judges and human rights

Judges Kim Gung-sung

Judges Kim Gon Line

1) Since the subject to which the intention or concept expressed in the document prepared in the manner of indicating the qualification of representative director of a corporation is not an individual representative director, the nominal owner of the document is a corporation (see, e.g., Supreme Court Decision 2006Do2016, Nov. 27, 2008). The written indictment states that the document in the name of "AI AK" was forged, but in light of the above legal principles, it is reasonable to deem that the document was forged in the name of "AI AK". In light of the above legal principles, it is reasonable to deem that the document in the name of the company was forged, and it does not practically infringe on the defendant's right to defense even if recognizing the

2) However, at the time, AI Co., Ltd., a magazine company, did not have been delegated by the company affiliated to AG with all of its powers in connection with the production of a news book.

3) Whether or not there was the intention of conclusive defraudation, or whether or not there was negligence, constitutes an element of sentencing, and thus, it is to be determined in the following sentencing grounds.

4) In the prosecution investigation, AK, a representative of the AI, stated that “IK,” as a photo taken by a professional photographic news, was a photophone made with the contents of the article by gathering an activity photograph taken at a usual meeting, such as an interview. The Defendant, who had been engaged in the broadcast content industry for a long time, did not know the difference.”

5) As examined below, the prosecutor indicted the Defendant without distinguishing the Victim’s statements from the Trhetort (i.e., the Defendant did not prosecute the above deception), and the Prosecutor does not distinguish the Trhetort from the Trhetort and the Trhetort in the following (i.e., the Defendant did not prosecute the above deception), and refers only to the AG photographer as the Trhetort in the instant case.

6) The Defendant and the defense counsel sent a copy of e-mail exchanged with AM as reference materials to this Court, but the content was merely discussed on other distribution methods after the instant investment, and there is no content related to the Japanese pre-sale reservation.

7) The Defendant and the victim first became aware through the instant investment.

8) The Defendant alleged that he paid KRW 243 million to India for the production cost. However, the goods directly received from the Defendant are only KRW 140 million for the production cost, and the remainder KRW 100 million was lent to the Defendant and delivered to the Defendant and stated that it is irrelevant to the amount invested. The Defendant and the defense counsel asserted that the Defendant and the defense counsel paid KRW 100,000 in addition to the amount of KRW 100,000 received from the AO in this Court, but no materials to acknowledge it were submitted, and there is no other circumstance to reject the credibility of the above AO’s statement.

9) In lieu of the crime of fraud, where the crime of aiding and abetting documents is accompanied by the crime of fraud, the crime concerning documents shall not be treated as a majority crime and shall be treated as a sentencing factor. However, the crime of forging and uttering of the private document of this case is not accompanied by the crime of fraud, since the crime of forging and uttering of the private document of this case is committed separately, it shall be treated as a majority crime and the recommended punishment shall be determined. Meanwhile, if a person who forged the private document of this case uses the forged document, it shall not be treated as a majority crime,

10) On May 2018, the victim stated that AL, who participated in the investment in the police investigation, paid a total of KRW 70 million, including KRW 10 million, in total, 50 million, and KRW 10 million to a police officer on two occasions.

11) At the time of investment explanation, the Defendant introduced C’s corporate value as KRW 1,07.4 billion to the victim, but C was not only for three consecutive years from 2013 to 2015, but also for three consecutive years from 2014.