2017Gohap649 A. Acquisition of counterfeit foreign currencies

(b) Counterfeit foreign currency events;

1.(a) A

2.(a) B

3.(a) C.

4.(a)D

5.(b) E.

Kim Jong-chul (prosecutions) and chip (public trial)

Attorney F (National Election for Defendant A)

Attorney G (the national election for the defendant B)

Attorney H (the national election for the defendant C)

Attorney I (National Assembly for Defendant D)

Law Firm J (Defendant E), Attorneys K

October 27, 2017

Defendant A’s imprisonment of one year and two months, Defendant B’s imprisonment of one year and four months, Defendant C’s imprisonment of ten months, Defendant D’s imprisonment of eight months, and Defendant E’s imprisonment of ten months.

However, with respect to Defendant D, the execution of the above sentence shall be suspended for two years from the date this judgment becomes final and conclusive.

Criminal facts

【Criminal Power】

On November 12, 2015, Defendant A was sentenced to ten months of imprisonment for fraud at the Seoul Eastern District Court on November 12, 2015 and completed the execution of the sentence on May 13, 2016.

【Criminal Facts】

1. Defendant E’s crime;

On December 22, 2016, the Defendant issued 100 US$ 1000 which was forged and returned by L to exchange it after receiving 2 joints of US$ 100 (presumed to US$ 18,00) (presumed to US$ 18,00), and around the end of December of the same year, the Defendant issued 20 US$ 100 to 100.

In this respect, the defendant delivered a forged U.S. dollars 100 duplicates to A and exercised them.

2. Defendant A’s crime;

On December 2, 2016, the Defendant received a request from E, which was known to the general public through the introduction of N at the 9th coffee shop of the above MM building, to the effect that it is possible to exchange the above 100 US$2, and around the 26th day of the same month, the Defendant issued the above 100 $2,00 to the effect that he was issued the above 100.

Accordingly, the defendant acquired 100 US dollars 2 composites for the purpose of exercising, and exercised the above 100 US$ 2 composites to B.

3. Defendant B’s crime

(a) Crimes committed on December 26, 2016;

On December 26, 2016, the Defendant issued the above 100 US dollars 2 combinations with the above 100 US dollars to the effect that the Defendant, at the above Pca shop around December 26, 2016, received 100 US$2. On the same day, around 16:20, the Defendant issued the above 10 US$ 2 combinations with the purport that the Defendant would pay Da 100 US dollars 10 upon the introduction of D, which was known in the middle floor of Qagu Seoul Metropolitan City.

(b) Crimes at the end of January 2017 through the end of February 2017;

Around 13:00 on January 21, 2017, the Defendant returned at the convenience store near Yongsan-gu Seoul, Yongsan-gu, Seoul to the extent that C is not able to use the above 100 US dollars 2. From the end of the same year on January of the same year, the Defendant issued 100 US dollars 1 combining 100 US dollars (presumed to USD 8,000) on the ground that there was no place to deal with forgerys to D from the Defendant’s house located in Yongsan-gu, Seoul around the end of the same year.

Accordingly, the defendant acquired 100 US dollars 2 composites for the purpose of exercising them, and exercised the above 100 US$ 2 composites to C and the above 100 US$ 100 bindings to D.

4. Defendant C’s crime

On December 26, 2016, at around 16:20, the Defendant received a proposal from D, which was known in the instant R 2nd coffee shop, to pay US dollars 100 S. dollars 2.0 S. S. dollars 100 S. dollars.

Accordingly, the defendant acquired 100 US dollars 2 composites for the purpose of exercising the right.

5. Defendant D’s crime

At the end of February of 2017, the Defendant heard the phrase " there is no place to deal with counterfeited USD B from the house of the above B to the beginning of February of the same year," and stated that "it is different from counterfeited USD B", and issued 100 U.S. dollars in the above case.

Accordingly, the defendant acquired 10 US dollars 100 which was forged for the purpose of exercising.

Summary of Evidence

[Judgment of the court below]

1. Defendant E’s partial legal statement

1. Each legal statement of witness B and V;

1. Text messages and Kakao messages;

1. A copy of the appraisal opinion (Case Number 2017-2736);

[Judgment of the court below]

1. The defendant A's partial statement

1. Each legal statement of witness B and E in part;

1. The second written statement made by the prosecution against the defendant A in part of the interrogation protocol of the prosecution (including the substitute part);

1. A copy of the appraisal opinion (Case Number 2017-2736);

【No. 3 Facts at the Time of Sale】

1. Defendant B’s legal statement

1. Witnesses D and E respective legal statements;

1. Kakao Stockholm messages (No. 13-1), text messages, and Kakao Stockholm messages (No. 14-1 times the same order);

1. A copy of the appraisal opinion (Case Number 2017-2736);

[No. 4]

1. Defendant C’s partial statement

1. Each legal statement of witness B and D;

1. Text messages and Kakakao messages (Evidence No. 14-1 No. 14-1);

1. A copy of the appraisal opinion (Case Number 2017-2736);

[No. 5]

1. Defendant D’s legal statement

1. Partial statement of the witness B;

1. A copy of the appraisal opinion (Case Number 2017-2736);

【Prior Records at the Time of Sales】

1. One copy of the investigation report (verification of Facts of repeated crime against A) and the summary agreement of the case (Seoul Eastern District Prosecutors' Office No. 2015 Form 31459), one copy of the personal confinement status (A), one copy of the Seoul East East District Prosecutors' Office (Seoul East District Prosecutors' Office No. 2015 Form 31459) and one copy of the judgment of the first or third instance court;

Application of Statutes

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

(a) Defendant A: Articles 208 and 207(2) of the Criminal Act (the acquisition of counterfeited foreign currency, the acquisition of imprisonment with prison labor) and Article 207(4) and (2) of the Criminal Act (the exercise of counterfeited foreign currency)

B. Defendant B: Articles 208 and 207(2) of the Criminal Act (the acquisition of counterfeited foreign currency, the acquisition of imprisonment) and Article 207(4) and (2) of the Criminal Act (the exercise of counterfeited foreign currency)

(c) Defendant C and D: Articles 208 and 207(2) of the Criminal Act

(d) Defendant E: Article 207(4) and (2) of the Criminal Act

1. Aggravation for repeated crimes;

Defendant A: Article 35 of the Criminal Act (Provided, That the proviso of Article 42 of the Criminal Act shall apply to the crime of forging foreign currency)

1. Aggravation for concurrent crimes;

(a) Defendant A: the former part of Article 37, Articles 38(1)2 and 50 of the Criminal Act (a)

(b) Defendant B: the former part of Article 37, Articles 38(1)2 and 50 of the Criminal Act (aggravating concurrent crimes with punishment prescribed in the crime of uttering of false foreign currency due to the act of delivery to C with the largest punishment)

1. Discretionary mitigation;

Defendant E: Articles 53 and 55(1)3 of the Criminal Act (hereinafter referred to as “contributable circumstances”)

1. Suspension of execution;

Defendant D: Article 62(1) of the Criminal Act (The following extenuating circumstances among the reasons for sentencing);

Grounds for conviction

1. Summary of the Defendants’ assertion

A. Defendant A

The Defendant received 100 US dollars from E around the end of December, 2016 (hereinafter “US”) but did not know that the instant US dollars was forged merely because E was '$ 100'.

B. Defendant C

Although the Defendant received USD B from B around December 26, 2016, the Defendant was not aware of the fact that it was the pneumoconiosis, and later, was returned to B after confirming the forgery. Therefore, there was no purpose to exercise the contract.

C. Defendant E

Although the Defendant delivered USD A around the end of December 2016, the Defendant is a fact that he had issued USD A, it cannot be deemed to have exercised forged currencies, since he/she is on the line with A to handle it to prevent circulation in the city with a burden of forgery.

2. Relevant legal principles

In the event that a counterfeited currency is delivered to a person who is aware of the fact that it is a forged currency and the delivery was made by the recipient with the expectation or awareness that it would be distributed, the act of delivery itself constitutes a crime of uttering a forged currency (see, e.g., Supreme Court Decision 2002Do3340, Jan. 10, 2003).

3. Determination,

A. Whether Defendant E used the instant USD (paragraph (1) at the time of sale)

1) In full view of the various evidence duly admitted and examined by this Court, the following facts and circumstances are revealed.

A) Although the Defendant had already failed to exchange USD A through private transshipment and W, the Defendant was aware that the instant USD was delivered to A, and that the instant USD was given to B as indicated in Section 2 of the Decision A.

B) The Defendant made a statement to the effect that he believed that he was a person with the authority to deal with the forged paper disposal. However, the reason is that the Defendant merely introduced himself as a person working for an institution where B cannot disclose his affiliation, and that the Defendant’s “B,” who sought USD 5 in China, was not an institution but was informed of it as “a person engaged in a specific business.” Therefore, considering the Defendant’s educational background, social status, etc., it is difficult to believe the above statement.

C) At this court, B testified to the effect that “the Defendant displayed a dynamic image that she was using a cell phone to the effect that she was able to go through the pulmonary screen (2 pages of the B examination record), and the Defendant arranged to go with V and B, and around January 2017, V sent a container photograph with USD B obtained.

2) In light of the above facts, since the defendant predicted or perceived that USD A was delivered in sequence to A and B and distributed to third parties, it can be sufficiently recognized that the defendant exercised USD A and B.

B. Whether Defendant A knew that USD A was forged (Article 2 of the market price)

1) In full view of the various evidence duly admitted and examined by this Court, the following facts and circumstances are revealed.

A) The Defendant, upon the introduction of N, received the horses that 'the instant USD 100 U.S. dollars 100 U.S. dollars 100 U.S. dollars 100 U.S. dollars 200 U.S. dollars 100 and 200 U.S. dollars 10.

B) On April 2016 to May 5, 2016, the Defendant stated to the prosecutor that “B would be aware of any person or method to exchange the instant US dollars by expanding the instant USD from multiple pages” (Evidence No. 693 pages).

C) In addition, the Defendant stated in the Prosecutor’s Office that there was no experience of refusing to exchange a long-term US dollars at a bank, and that it should not be said that it should not be exchanged in a bank or a money exchange (Evidence No. 691 pages). There is no circumstance in which it is difficult for the Defendant at the time to confirm the possibility of money exchange to a financial institution.

D) The Defendant stated that E, together with N, requested to lend business funds, and even according to this statement, it is somewhat difficult to understand that E, which was acquired at a place other than the issuing country of the currency, owns the U.S. currency of at least 20,000 U.S. dollars to borrow funds, and thus, it is difficult to somewhat understand that E, which was requested to exchange funds to the Defendant. There is no obvious reason to request the Defendant to exchange old US dollars which was inside the bank.

E) After receiving USD 1 from E, the Defendant sent it to B, and the Defendant offered to B, unlike B, that he would directly talk with the owner, thereby introducing E more than 3 to 4 days.

2) In light of the above facts, it is reasonable to view that the Defendant, at least, recognized and acquired the facts that the instant USD was forged.

C. Whether Defendant C was aware of the forgery of the instant USD, and whether there was the purpose of exercising it (Article 4 of the market price)

1) In full view of the various evidence duly admitted and examined by this Court, the following facts and circumstances are revealed.

A) B knew through D that the Defendant had been aware that he had a link with those who deal with B, USD 50,00, and 50,000,000,000,000 won, etc., and the Defendant was also aware that he was working in the same field as B.

B) At the time of receiving USD B from the Defendant, D expressed to the effect that the Defendant expressed that the Defendant would be 100 US dollars 1, while the Defendant’s pneumoconiosis would turn down to the hand floor, and that the Defendant would not know that the Defendant would not be pneumoconiosis (the steam record 729 pages).

C) Examining text messages sent and received by the Defendant and D from December 2, 2016 to January 2, 2017, the Defendant: (a) confirmed that the instant USD was forged on December 27, 2016; (b) demanded D to proceed with transactions, including a large number of US dollars stored in the Chinese container, as seen in B; (c) led B to the reduction of 20 US dollars received from E; and (d) attempted to pressure B and occupy the said 20 US dollars (Evidence No. 365-379 of the evidence record). D also made a statement at the prosecution; and (b) the Defendant, on December 26, 2016, made a statement to the effect that it could be treated by using the word “0 US dollars again” after 2-3 days to treat them (Evidence evidence).

D) The Defendant received USD B from B on December 26, 2016, and attempted to exchange through various channels, and returned it to B on January 21, 2017.

2) If the facts are the same, the Defendant had been aware of the forgery of USD 1,00, at least, but attempted to encash it without returning it to B or obtained more forged USD 1, it can be sufficiently recognized that the Defendant acquired USD 1 for the purpose of exercising the right.

Sentencing 1)

1. The scope of punishment by law;

(a) Defendant A: Imprisonment with prison labor for one year to 50 years;

B. Defendant B: Imprisonment with prison labor for one year to 45 years

(c) Defendant C and D: Imprisonment with prison labor for one month to five years;

(d) Defendant E: Imprisonment with prison labor of six months to fifteen years;

2. Determination of sentence;

The Defendant E, A, B, and C acquired USD 18,00 forged US dollars in sequential order, and among them, approximately KRW 8,000 US dollars in Defendant B, D’s event, and acquired it. This is a threat and risk to society by impairing the public trust in currency and transaction safety in the circulation of currency and disturbing the economic order.

Defendant A committed the instant crime during the period of repeated crime, and Defendant B was punished as a crime of forging private documents. Defendant C intended to acquire more forged USD, and Defendant E attempted to encash the instant USD even though it had failed to do so.

However, there is no evidence to deem that USD A was actually distributed in the time and the risk of circulation was realized, and there is no significant social and economic harm caused by the Defendants’ criminal act, and the Defendants seem to have not obtained special benefits from the criminal act. Defendant A, C did not have the same criminal record, and Defendant D and E did not have any criminal record.2) In addition to these various circumstances, the punishment is determined as ordered by taking into account the following circumstances, such as the Defendants’ age, character and conduct and environment, motive and consequence of the criminal act, circumstances after the criminal act, etc., and the execution of Defendant D is suspended.

The presiding judge and judges;

Judges Sung Jae-in

Judges' Index

1) No sentencing guidelines are set for each offense against the Defendants.

2) In the case of Defendant E, the fact that the relevant case (this Court 2017Gohap568) is sentenced together with the instant case is also considered in sentencing.