Defendant

Defendant

Water for refining

Law Firm Kelel, Attorneys Ro-wing et al.

Suwon District Court Decision 2010Gohap14 Decided September 16, 2010

The judgment of the court below is reversed.

A person shall be punished by imprisonment with prison labor for a crime of Nos. 1 and 2 with prison labor for a crime of No. 3 in the holding of the defendant, and a fine of No. 20,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

The number of detention days before the judgment is rendered shall be included in the above imprisonment.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of grounds for appeal;

A. Error of mistake

1) It is true that the victims lent the money as stated in the facts charged, but the victims do not trust and lend the defendant's ability and intent to repay the money to the lender, with the defendant as the subject of the borrowing, but they trust and trust the non-indicted 2 as the subject of the borrowing, with the non-indicted 2's ability and intent to repay.

2) Nonindicted 2, as indicated in the facts charged voluntarily, borrowed money from the victims to provide them to Nonindicted Co. 1, or by deceiving the victims as if they were capable of performing their obligations by the Defendant’s instruction and did not borrow money from the victims.

3) Even if the Defendant borrowed money from the victims as stated in the facts charged, the Defendant did not borrow money from the victims without intent and ability to repay.

B. Unreasonable sentencing

The punishment (the first and second crimes in the original judgment: imprisonment with prison labor for 2 years, and the third crimes in the decision of the original judgment: imprisonment with prison labor for 10 months) declared by the court below is too unreasonable.

2. Ex officio determination

The grounds for appeal shall be examined ex officio prior to the judgment.

In the trial for the defendant, the prosecutor deleted "Article 30 of the Criminal Act" and "Article 39 of the Criminal Act" from among applicable provisions of law, and applied for the modification of a bill of indictment with the content of changing the facts charged from the facts charged prior to the modification to the facts charged as stated below, and the judgment of the court below cannot be maintained any more as it was changed by the permission of this court.

However, the defendant's assertion of misunderstanding of facts is still subject to the judgment of this court, so it will be examined to change the claim.

3. Judgment on the defendant's assertion

A. As to the lender

1) According to the evidence duly adopted and examined by the court below, ① was prepared with the purport that Nonindicted 2 borrowed a sum of KRW 600 million to Nonindicted 3 on February 9, 2009, ② the victim Nonindicted 3 brought a lawsuit against Nonindicted 2 by seeking payment of KRW 600 million as loans from the Suwon District Court 2009Gahap3992 on the basis of the above payment rejection statement, ③ Nonindicted 2 delivered the above victim’s loan certificate (2 right 12 pages of investigation record) under the name of the victim under the name of the victim’s loan amounting to KRW 300 million, ④ Nonindicted 4 deposited KRW 300 million in the account of the victim’s non-indicted 2 on June 11, 2007, and the victim’s non-indicted 3 also deposited the victim’s money in the account under the name of Nonindicted 24, 2007, ⑤ the victim’s direct statement to the investigation agency or the victim’s direct statement to the effect that it was not made.

2) However, the victim Nonindicted 3, 4, and 2 consistently borrowed KRW 900 million from the investigation stage to the court of the court below, as stated in the facts charged, on three occasions from the victims, as stated in the facts charged, and the victims borrowed money from the victims with the operating funds of Nonindicted Company 1, the chairman of which was the victim. Accordingly, the victims stated to the effect that they lent KRW 900 million in total to the defendant with the operating funds of the Defendant’s company.

B) Furthermore, according to the following circumstances acknowledged by the evidence duly adopted and investigated by the court below, ① the victim’s non-indicted 2 was deposited in the account in the name of the non-indicted 5 corporation in which the defendant actually operated around May 21, 2007, ② the victim’s non-indicted 3 received a loan certificate (the second page of investigation record) in the name of the non-indicted 1 corporation that the defendant actually operated from the non-indicted 2 after lending KRW 500 million, ③ the victim’s non-indicted 4 was also given a promissory note in the name of the non-indicted 1 corporation from the non-indicted 2 on June 11, 207, and ④ the defendant appears to have received a loan from the non-indicted 2 in the name of the non-indicted 3 corporation or the non-indicted 2 on the non-indicted 40 million won on the non-indicted 2’s own name, and the defendant was also in the name of the non-indicted 1 corporation and the non-indicted 3500 million won agreement.

3) According to the evidence duly adopted and examined by the court below, including the statements made by the victim non-indicted 3, 4 and non-indicted 2 as above, the defendant borrowed a total of KRW 900 million from the victims three times through non-indicted 2, and the victims believe the defendant's repayment ability and intent and sufficiently recognize the fact that the defendant lent a total of KRW 900 million as above. Thus, this part of the defendant's assertion cannot be accepted.

B. Whether the Defendant instructed Nonindicted 2 to borrow money from the victims

1) According to the Defendant’s instruction, Nonindicted 2 consistently from the investigation stage to the trial court at the trial, and stated that a sum of KRW 900 million was borrowed from the victims as operating funds of Nonindicted Co. 1, etc. three times as shown in the facts charged.

2) In addition, the following circumstances acknowledged by the evidence duly adopted and examined by the court below and the court below. ① the victim’s non-indicted 3 consistently from the investigation stage to the court below’s ruling, immediately before lending KRW 500 million to the non-indicted 2’s statement that the defendant gave an order to lend money by telephone around May 21, 207. ② If the defendant did not designate an account to deposit money, it appears that the victim's non-indicted 3 did not deposit 500 million won into the account of the non-indicted 5 corporation which the defendant actually operated, and ③ because the non-indicted 2 operated the non-indicted 1 corporation’s distribution of the products from the non-indicted 1 corporation and did not have a proper status to know the management status of the above company, it appears that the defendant's statement that he did not change the defendant’s financial demand from the non-indicted 2 corporation or the non-indicted 1 corporation to the non-indicted 8 corporation without the defendant’s instruction.

3) According to the evidence duly adopted and examined by the court below, including Nonindicted 2’s statement with credibility as above, the defendant’s instruction to Nonindicted 2 and let him borrow a total of KRW 900 million from the victims three times as stated in the facts charged, so the defendant’s assertion on this part cannot be accepted.

C. Whether the defendant had the criminal intent to obtain fraud or not

1) According to the evidence duly adopted and examined by the court below, the following facts are acknowledged: (i) the defendant delivered a bill through Nonindicted 2, and borrowed KRW 500 million from the victim Nonindicted 3 on March 12, 2007, and KRW 300 million on May 12, 2007, and borrowed KRW 1.8 billion on June 5, 2007 from Nonindicted 6; (ii) the total amount of the above loan was fully repaid; and (iii) the defendant offered approximately KRW 2.3 billion on the forest land in Gyeonggi-gun (hereinafter hereinafter 1 omitted); and (iv) the defendant offered approximately KRW 4.8 billion on April 207 to ○○○ Bank as security and used it as the funds of Nonindicted Company 1.

2) However, the following circumstances acknowledged by the evidence duly adopted and investigated by the court below, i.e., (i) Nonindicted Co. 1 corporation from around 2006 with the enemy management, and (ii) from around early 2007 with the discount of its father, and (iii) with respect to the shortage of funds, there was a financial crisis in around April 207. As seen in the above paragraph (1) above, 4.8 billion won was loaned from ○○ Bank and the above financial crisis was exceeded, (ii) around May 7, 2007, when the Defendant borrowed funds from the victims, the victims did not have the capacity to pay back the funds, and (iv) the Defendant did not have the obligation to pay the funds in excess of KRW 1.7 billion with 7 billion with 200 billion with 4 billion funds borrowed from the victims, as stated in the facts charged.

3) Accordingly, according to the evidence submitted by the prosecutor, at the time of borrowing money from the victims as stated in the facts charged, it can be recognized that the defendant had an intention to commit the crime of defraudation. Thus, this part of the defendant's assertion cannot be accepted.

4. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and it is again decided as follows after oral argument.

On July 6, 2007, the defendant was sentenced to the suspension of the execution of three years to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) in Seoul High Court, which became final and conclusive on July 14, 2007.

From around July 2, 2003 to July 2, 2008, the Defendant used the position of “chairperson”, and actually operated Nonindicted Co. 9, Nonindicted Co. 5, and Nonindicted Co. 10, which are supply and retail companies related to the above company, and Nonindicted Co. 2 operated Nonindicted Co. 11 and Nonindicted Co. 12, which transport the products of Nonindicted Co. 1 as the Defendant’s wife, as the Defendant’s wife, while operating Nonindicted Co. 11 and Nonindicted Co. 12, which transport the products of Nonindicted Co. 1 as the Defendant’s wife, according to the Defendant’s direction, the existing Nonindicted Co. 13 was replaced with Nonindicted Co.

The Defendant is a company re-established after the sale of the important place of business of Nonindicted Co. 14, which had been under legal management since IMF, and the management status has deteriorated due to the increase in the prices of steel raw materials from around 2006 and operated in an appropriate state. In the event that the said company has no method of preparing all the corporate operating funds due to loans, etc. from financial institutions, etc., and the company is at a discount of bills issued by the company under the name of the relevant company or is using bonds as collateral for the company, there was a situation in which it is impossible to make a normal settlement of bills issued by the company or pay the imported raw materials in a normal way during 2007. Thus, even if Nonindicted Co. 2 borrowed money from the family members of Nonindicted Co. 6, the mother mother, and used the money for the above company, there was no intention or ability to

Nevertheless, the Defendant instructed Nonindicted 2, who is his relative, Nonindicted 6 and his family members, to raise an urgent fund for the Company, and Nonindicted 2, upon the Defendant’s instruction, took place as if Nonindicted 6 and his family members run normally without any problem.

1. On May 21, 2007, the Defendant, at the victim Nonindicted 3’s house located in Osan-si (hereinafter referred to as “2 omitted), had Nonindicted 2 lend KRW 500 million to the above victim without a company bill because it was used and immediately repaid to the above victim, and received a remittance of KRW 500 million from the above victim’s reliance on the trust of the lending of KRW 500 million to the Magsung Bank account (Account No. 1 omitted) in the name of Nonindicted 5 Company designated by the Defendant around that time.

2. Around June 11, 2007, the Defendant: (a) caused Nonindicted 2 to Nonindicted 6, in the vicinity of Ansan-si, that “Around June 11, 2007, the Defendant borrowed the company operation fund to Nonindicted 6; (b) caused the Defendant to lend KRW 300 million to Nonindicted 6, one copy of the monthly interest paid; and (c) transferred this horse from Nonindicted 6 to the account of △△△ Bank in the name of Nonindicted 2 (Account No. 2 omitted) around that time.

3. Around July 24, 2007, the Defendant: (a) had Nonindicted 2 enter the port where the Defendant loaded the raw materials to the end, and (b) had the victim Nonindicted 3 pay the raw materials in cash; (c) had the victim Nonindicted 3 purchase the raw materials at the port where the Defendant loaded at the end; and (d) if the Defendant paid the raw materials value in cash. If the Defendant lent money in need of KRW 300 million to pay the raw materials, the Defendant would immediately repay the said money with the amount of KRW 50 million prior to the lending of the money. The Defendant would have the Defendant immediately repay the promise between relatives and relatives by marriage; and (d) received KRW 100 million from the victim who believed the promise at that time to the above △△△ bank account in the name of Nonindicted 2.

As a result, the Defendant had Nonindicted Party 2 deceptiond the victims as above, and had them receive a total of KRW 600 million from Nonindicted Party 3, and a total of KRW 300 million from the victim Nonindicted Party 4, respectively.

1. Each legal statement of the defendant in the original judgment and the trial court;

1. Legal statement of the witness Nonindicted 2 at the original trial and the party trial

1. Each of the original judgments made by the witness Nonindicted 3, 4, and 8

1. Each certificate of borrowing, certificate of remittance, statement of deposit, and written agreement;

1. Previous convictions in judgment: Criminal records and investigation reports (a report on confirmation of the same criminal records);

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 [the first fraud at the market: Provided, That the maximum of statutory punishment shall be 15 years of imprisonment prescribed by the main sentence of Article 42 of the former Criminal Act (wholly amended by Act No. 10259, Apr. 15, 2010) under Article 1 (1) of the Criminal Act]; Article 347 (1) of each Criminal Act (the second and third fraud at the market; the second fraud of the judgment; the imprisonment with prison labor for the second fraud of the judgment; and the third fraud of the judgment shall be elected respectively).

1. Handling concurrent crimes;

The latter part of Article 37 of the Criminal Act (the crimes of Articles 1 and 2 in the market and the crimes of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, which became final and conclusive on July 14,

The judgment was rendered on October 102, 200 and became final and conclusive on July 14, 2007. However, since the crime of fraud committed on June 9, 200 and occupational breach of trust committed on and from June 2, 200 to November 6, 200, the Seoul Central District Court sentenced three years of suspended execution to two years of imprisonment due to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) at the Seoul Central District Court, which became final and conclusive on October 10, 202. Furthermore, the defendant was sentenced to the same judgment as the first head of the crime of occupational breach of trust committed on and from June 9, 1998 to December 15, 201, and the judgment became final and conclusive on and after July 14, 2007, the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and the crime of violation committed on or before the final and conclusive judgment was not subject to Article 2817(20.1) of the Criminal Act.

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act [Aggravation of concurrent crimes with punishment prescribed in Article 1 of the Judgment with heavier punishment for crimes falling under Articles 1 and 2 of the Criminal Act];

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (with respect to crimes Nos. 1 and 2 as decided in consideration of the circumstances favorable to the defendant among the reasons for sentencing below)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Designation of persons subject to inclusion of days of pre-trial detention;

Article 57 of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The sum of damages incurred by the Defendant’s respective crimes of this case reaches KRW 900 million, the Defendant appears to have not been recovered most of the damages incurred by each of the crimes of this case, and the Defendant’s mistake is not deemed to be in violation of his/her own mistake, and there are circumstances unfavorable to the Defendant.

On the other hand, there are circumstances favorable to the defendant, such as the fact that the defendant seems not to have any final criminal intent to obtain fraud, the fact that the defendant has no criminal record exceeding a suspended sentence, the health of the defendant is not good, and the victim non-indicted 3 has received a favorable judgment by filing a civil lawsuit against the non-indicted 2 in relation to this case.

In addition to the above circumstances, there are previous criminal records, such as the defendant's age, character and conduct, family relationship, and the first head of the crime in which the defendant was sentenced to imprisonment with prison labor for the crime No. 3 as indicated in the judgment, the sentence like the order shall be sentenced to the defendant, taking into account all the sentencing conditions as shown in the argument of the case, including the invalidation of the suspended sentence

Judges Kim Sang-chul (Presiding Judge)