2015 Highis230, 2015 Highis282 (Consolidation)

Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), Fraud

2015 first 1125 second 201

A person shall be appointed.

○○○, ○○ (Public Prosecution), ○○○ (Public Trial)

Law Firm B

Attorney in charge C, D

A person shall be appointed.

Attorney F, G.

February 17, 2016

A defendant shall be punished by imprisonment for not less than three years and six months.

The defendant pays 620,000,000 won to an applicant for compensation.

The above compensation order may be provisionally executed.

Facts of crime

The defendant is a professor in the Dong-gu Incheon Metropolitan City, and is a person who voluntarily retires on August 2014, and the victim E and the J are currently a person who was the defendant.

1. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) - "2015 Highest 230;

The defendant tried to become a university professor in the course of counseling the victim E, and he was aware of the victim's relationship with the L of K University and well-known the persons related to the M Foundation, thereby deceiving the victim as if he could appoint the professor of the above university, and receiving money from the victim for expenses, etc.

On February 2, 2001, the Defendant: “If the Defendant acquired a master’s degree by entering a graduate school at the above university, he would be appointed as a professor of the above school by taking hand to the persons related to the K University L and M Foundation, which would be in close friendly with the Defendant. In order for the K University to revitalize the art and the new establishment of the N., more than two to three years, and less than the time when the K.K. graduated from the course of study, the Defendant would transfer to the K University by requesting the persons related to L and the Foundation to transfer to the K University upon request of the L and the K.S. at the request of the p. S., the Defendant expressed that the amount of KRW 100 million should be employed as a professor.

However, the defendant did not have any ability or intent to appoint the victim as professor of K University because he did not have any relationship with the L and M and M and received money from the victim.

On February 21, 2001, the Defendant, by deceiving the victim as such, received KRW 50 million from the victim as personnel expenses on or around February 21, 2001, and obtained KRW 620 million in total on seven occasions from that time to July 30, 2008, such as the list of crimes in attached Form (1) from July 30, 208.

2. Fraud - 2015 Gohap282

(a) Matters concerning the appointment of professors of ten universities;

At around December 22, 2006, the Defendant, in the Dong-gu P and 312 Office of Incheon Dong-gu, Incheon around December 22, 2006, “I think I would be a professor” to the victim J. The four-year term is KRW 30 million, and the two-year term is KRW 150,000,000. It means that I would be a professor by way of donation of adequate money to the university foundation.

However, at the time, the defendant did not have any person who does not know to the Foundation of ten universities, and even if he did not receive the money from the victim, he could not donate the money to the Foundation, and since he did not meet the qualification requirements for appointment of professor because he did not have any intention or ability to appoint the victim as a professor to the University of0.

Nevertheless, the Defendant received KRW 150,000 from the Defendant’s national bank account ( Q) on the same day and received KRW 10,000 from the Defendant from the Defendant from the Defendant, from that time until May 29, 2009, the Defendant received KRW 150,010,000 in total on 11 occasions, such as the list of crimes (2) Nos. 1 through 10, and 12.

(b) Matters concerning the appointment of I professors;

The Defendant, at the same place as the above A on December 7, 2009, did not have an intention or ability to appoint the victim as an I professor, and the victim did not have an intention or ability to appoint the victim as the I professor, and the victim “I return to the her mother professor I, which would not be good for the teaching staff at the close place.

I would like to find out the job in the Republic of Korea. I would like to find out the job in the Republic of Korea. I would like to change the street funds to the employees, and make it false, and then I would like to receive 3 million won in the Defendant's national bank account ( Q Q) from the victim on December 7, 2009 and 5 million won in total from the Defendant's Nonghyup Bank account (R) on December 17, 2009, as shown in the List of Crimes (3).

C. Matters concerning appointment of professor of S University

On March 25, 2010, at the same place as the above A, the Defendant did not receive a request for recommendation of professor from the S University, and did not have the intention or ability to appoint the victim as professor from the S University, and at the same time, the Defendant came to know of S University at S University at that time. However, the Defendant received 4.5 million won in total from the victim by obtaining 4.5 million won from September 5, 2012 as indicated in the attached Table (4) Nos. 2 through 5 of the crime list from the victim, including the victim’s national bank account ( Q Q) on the same day.

D. Regarding admission to a doctoral degree course

On December 28, 2006, the Defendant, at the same place as the above paragraph (a) above, did not have the intent or ability to allow the victim to enter the graduate school of T University, and instead, did not have the victim to be appointed as professor once, the Defendant, “in order to be appointed as professor, he must secure research performance and lecture career, etc. so that the victim may enter the above graduate school, and thereby, undergo a doctor’s degree course of T University. The Defendant, upon requesting the principal, etc. to be allowed to enter the above graduate school, received KRW 50,000 as the Defendant’s national bank account ( Q Q) on the day, and received KRW 10,000,000 from that time, three times until January 10, 2008, by obtaining KRW 9,500,000,000 from the principal, as shown in the attached list of crimes (5).

Summary of Evidence

Omission

Application of Statutes

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

Article 3 (1) 2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 11304, Feb. 10, 2012); Article 347 (1) of the Criminal Act / [Article 42 of the former Criminal Act (Amended by Act No. 10259, Apr. 15, 2010; hereinafter the same shall apply]; Article 347 (1) of the Criminal Act (amended by Act No. 10259, Apr. 15, 201); Article 347 (1) of each Criminal Act (amended by Act No. 11304, Feb. 10, 201);

1. Aggravation for concurrent crimes;

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

1. Orders for compensation and sentence of provisional execution;

Articles 25(1), 31(1), and 31(3) of the Act on Special Cases concerning Expedition, etc. of Legal Proceedings

1. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against victims E;

A. Summary of the defendant's assertion

1) The Defendant merely received KRW 120 million from the cost of guiding the victim who wishes to be appointed as a professor (care costs) so that he/she can have a career-based career, and did not receive KRW 620 million from the cost of street funds for the appointment of professors.

2) Since each crime listed in the list of crimes (1) in the holding is in the relation of substantive concurrent crimes, the statute of limitations has expired for the crimes listed in the table Nos. 1 through 6 of the crime committed.

B. Determination

1) Whether the defendant received KRW 620,000,000 from funds to appoint professors is admissible as evidence of evidence of a recording record (Evidence Nos. 3 and 19) between the defendant and the victim (Evidence Nos. 3 and 19) (a) recording on conversations between the defendant and the other party, it is necessary to prove that the defendant's statement made by the other party's statement was recorded in a preparatory hearing or during public trial as stated by the defendant, and that the statement was made under particularly reliable circumstances. Furthermore, electronic media, such as a recording file, etc., which recorded the contents of conversation, are without the signature or seal of the author or the speaker's statement or the victim's intent or a specific technology, and it is reasonable to see that the defendant's statement made by the defendant and the other party's statement made by the recording is admissible as evidence without any artificial editing recording, in light of the aforementioned legal principles as seen above (see Supreme Court Decision 2016Da712164, Apr. 21, 2012).

B) The admissibility (1) of the evidence of the written confirmation (Evidence Nos. 5 and 6 of the evidence list) written by the defendant written voluntarily by the defendant (1) is deemed to have been duly formed since the person who prepared the document was a person who prepared it at the same time, and when the statement was made under particularly reliable circumstances in accordance with the proviso of Article 313 of the Criminal Procedure Act. Such peculiar circumstance constitutes the requirement of admissibility, and thus the prosecutor must specifically assert and prove the existence of the document. However, since it is related to the facts in the lawsuit, it is sufficient to prove without strict proof (see Supreme Court Decision 2000Do1743, Sept. 4, 2001).

(2) In light of such legal principles, the following facts and circumstances revealed in the health stand, records and pleadings, namely, ① the Defendant continued to return the line of line (620 million won) from January 2013 to the victim’s request that the Defendant return the line of line (620 million won) for the appointment of professors, and the amount of money to be paid to the Foundation, appears in the Defendant’s attitude of recognizing the fact that the Defendant received the said amount of money. ② The Defendant prepared a written confirmation on December 10, 2013 to the victim who demanded the preparation of the written confirmation on May 19, 2014, which was 60 billion won after the preparation of the written confirmation, and the Defendant prepared a written confirmation to the Defendant on May 19, 2014, which was 10 billion won for the first time after the date of the written confirmation, and thus, it is not admissible for the Defendant to have prepared a written confirmation to the effect that the Defendant would not have made a new written confirmation to the extent of 100 billion won.

C) Whether the Defendant received KRW 620,000,000 as a tuition fee for the appointment of professor or not, this Court may legally adopt and examine the following facts and circumstances, namely, ① the Defendant’s continuous request to return KRW 6220,000 paid to the Foundation in connection with the appointment of professor: “If you enter the Foundation.” If the internal circumstances of the Foundation, the Defendant is expected to reach the Foundation, and the Foundation is expected to reach the Foundation, it should reach the KRW 200,000,000,000,000,000,000,000,000,000,000,000,000 was paid to the Foundation; ② the Defendant did not receive the amount of KRW 100,000,000 from the victim’s account, and ② the Defendant did not receive the amount of KRW 200,000,000,000,000,000 from the Foundation.

"In full view of the fact that it is clean to obtain funds from other professors and return them to the victim", and that most of the sources of cash that the victim gave to the defendant, etc. are presented, the defendant can be sufficiently convicted of the fact that the defendant obtained 620 million won from the victim under the name of raising funds for teaching staff from the person related to the K University, and obtained the funds from the person related to the K University, and obtained the funds from the person related to the K University. 2) Each of the crimes listed in the list of crimes in (1) of the list of crimes in (2) of the list of crimes, shall be punished as a comprehensive crime in cases where the damage law benefits are the same for a certain period under the single and continuous criminal intent, and where the singleness and continuity of the crime are not recognized or the method of committing the crime is not identical, each of these acts constitutes a substantive concurrent crime (see, e.g., Supreme Court Decision 2012Do415, Mar. 15, 2012).

B) In light of such legal principles, as seen earlier, the Defendant requested K University L and Foundation-related persons to employ professors, and the victim received money from the victim under the name of the street funds more than seven times from the time when the victim entered a master plan course at a graduate school. Therefore, it is reasonable to view that the method and circumstances of the crime are identical, and that the criminal intent is uniform.

C) Therefore, each crime listed in the list of crimes (1) in the holding is in the relation of a single comprehensive crime, and the statute of limitations has run from July 30, 2008 when the last crime was committed. Therefore, the statute of limitations (10 years) of this part of the crime was not completed.

2. The point of each fraud against theJ of the victim;

A. Summary of the defendant's assertion

1) The Defendant received the cost (care cost) for guiding the Defendant to accumulate performance and career upon the request of the victim who was going to study in Japan so that he can be a professor from the victim who was going to study in Japan. 2) Since each crime listed in the list of crimes (2) through (5) of the list of crimes in the holding is in a substantive relationship, each crime listed in the list of crimes (2) 1 through 7 of the list of crimes in the holding and the list of crimes (5) 1 of the list of crimes in the holding has expired.

B. Determination

1) As to whether the Defendant received money in the name of expenses for the appointment of professors, etc., the following facts and circumstances may be acknowledged in full view of the evidence duly adopted and examined by this court.

(1) The victim provided money as stated in its reasoning in order to be a professional professor, 150 million won, and 300 million won for a four-year university professor to be appointed as a professor. The Defendant agreed to give money in advance to the school and to be appointed by holding a public notice of employment favorable to him through exhibitions, etc. The Defendant is clearly and clearly stating the details of the damage, such as being believed, and his father stated to the same purport. (2) From December 22, 2006 to January 31, 2007, the victim made it difficult for the Defendant to freely send money to the Defendant for a period of up to 140 million won for a period of up to 20 million won, and (3) from the victim’s personal expenses to be collected for a short period of time. (3) The Defendant was released from the victim’s personal expenses without permission to use the money.

In addition, the victim, while opposing the defendant's change, has spent necessary expenses for exhibitions, production on the homepage, Cambodia and Magdo as his money, and submitted related financial transaction data to the investigation agency.

B) If the facts are the same, it can be sufficiently found that the Defendant obtained the money as stated in its reasoning for the appointment of professors from the victim and obtained the money from the victim for the purpose of teaching, etc.

2) The following facts or circumstances are revealed in relation to each crime related to the appointment of a university, whether each crime listed in the list of crimes (2) and (5) is a person related to each crime committed on the list of crimes, or whether each crime is a person related to each crime committed on the list of crimes, or whether the following facts or circumstances are shown in the health room, records, and arguments. In other words, the defendant stated that the victim "the victim made the victim an advance payment to the Foundation and made it favorable to the recruitment notice if the result was accumulated, and that the defendant would be appointed as a professor"; ② therefore, it is closely related to the victim's employment; ③ the defendant's receipt of the cash for the staff who are in charge of the teaching staff (the so-called 0th officer) who is employed as the professor is related to the victim's employment; ③ the victim's payment of KRW 150 million to become a professional professor is understood to have been incurred to be a professor, not KRW 150 million,000,000.

Since a university receives money under the name of the street funds to be provided to the university in a series of processes to achieve a single goal, it is reasonable to view that the method and circumstances of the crime are identical and the criminal intent is uniform.

B) In the case of crimes related to the admission to a junior graduate school, in full view of the evidence duly adopted and examined by this court, the defendant can be recognized as having received money three times under the pretext that the defendant would make the victim obtain a doctor’s degree necessary to be appointed as a professor. Thus, the method and circumstances of the crime are the same, and the criminal intent is single.

C) Therefore, each crime listed in the list of crimes (2) and (5) in the holding is in the relation of a single comprehensive crime by each list of crimes, and the statute of limitations therefor is in the relation of a single comprehensive crime by each list of crimes.

10. Since from around 10.0, the statute of limitations (10 years) for this part of the crime was not completed.

Reasons for sentencing

1. Scope of recommendations according to the sentencing criteria;

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

【No Special Convicted Person】

[Scope of Recommendation] Three to Six years of imprisonment (the basic area)

2. The crime of this case where a decision to sentence sentence was rendered is that the defendant, who is a professor of a junior college, would be appointed as a professor to a able third party, and acquired money from the foundation, etc. in the name of a foundation, etc. for a long period of time, and the crime of this case continues to have been committed, and the amount of damage is reasonable, it is inevitable to deny the crime of this case, and to punish

However, the victims did not have any aspect of assistance in the process of stockpiling their careers to become professors, the fact that the victims are not good, such as undergoing emergency operations due to cardio-cerebrovascular diseases, and the fact that there is no previous convictions, etc. shall be considered in favorable circumstances, and the defendant's age, character and behavior and environment, relationship with victims, circumstances after the crime, etc. shall be considered, and the same type of punishment as the order shall be determined within the scope of recommended sentencing guidelines (the defendant's health status, etc. shall be considered, and the court detention shall not be made in order to grant an opportunity to compensate for damage).

The acquittal portion

1. On May 1, 2009, May 1, 2009, 7,300,000 won (attached Table 2 No. 11) relating to the appointment of professors at ten universities (hereinafter “A”), the summary of this part of the facts charged is as follows: (a) the Defendant deceivings the victim J as stated in the judgment of the court on May 1, 2009; and (b) obtained 7,300,000 won from the victim for expenses, such as faculty and staff for the appointment of professors at ten universities, and acquired it by fraud.

B. As to whether the above 7,300,000 won was given and received under the pretext of expenses for the interest of the faculty members, etc., the health team and this Court recognized the following circumstances, namely, the evidence duly adopted and investigated by this Court: ① the victim, upon submitting a written complaint, lent 7,30,00,000 won which he/she was sold with his/her photographic equipment to the defendant to help him/her, but did not repay it; ② the victim thereafter submitted a list of crimes containing this part of the facts charged to him/her to an investigative agency; ② the victim submitted the list of crimes containing this part of the facts charged, but the victim's related statement was omitted; ③ the victim stated to the effect that the victim was excluded from the complaint because there was no evidentiary material supporting the sale of his/her camera equipment in the court; ② the victim obtained all evidence from the prosecutor to obtain 7,300,000 won from the university professor's appointment funds, and obtained it as 30,000 won.

It is difficult to see that this is proven to the extent that there is no reasonable doubt.

C. Thus, since this part of the facts charged constitutes a case where there is no proof of a crime, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as it is found guilty of a crime of fraud (in relation to the appointment of professor at the University, a separate verdict of innocence is not rendered in the text.

2. On December 28, 2009, as to the appointment of the professor of S University, KRW 2,000,000 [Attachment Table 4] (Attachment Table 1]. The summary of this part of the facts charged is as follows: on December 28, 2009, on December 28, 2009, the Defendant by deceiving the victim J as stated in the Decision 2-C and by deceiving the victim J as stated in the Decision 2-C, and obtained 2,000,000 won from the victim for the purpose of appointing the professor of S University.

B. The above 2,00,000 won was given and received for the purpose of working as SP professor, the following circumstances are as follows: ① The victim first under the police investigation and stated that he made an investment of KRW 2,00,00,000 with the fact that he was made by the defendant while he was first under the police investigation; ② The list of crimes (Evidence 35 pages) submitted by the defendant at the time of the fact that he was written that he had made an investment of KRW 2,00,000,000, the details are stated as follows: although the above 2,00,000 won was stated as SV-related business project officials, it is difficult to view that there was no reasonable difference between the above 2,000,000 won and the fact that the victim did not directly obtain the above 00,000,000 won and the defendant did not directly obtain the above 0,000 won as evidence for the appointment of SP.

C. If so, this part of the facts charged constitutes a case where there is no proof of a crime, and thus, a not-guilty verdict should be rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as it is found guilty of a crime of fraud (in relation to the appointment of professor at S University, a separate verdict of innocence is not rendered.

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

Judges by the presiding judge;

Judges Dogman

Judges Song Jae-chul

A person shall be appointed.