2013Gohap117 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

A

Before trial, knife, and knife

Law Firm B, Attorneys C, D, and E

May 23, 2014

A defendant shall be punished by imprisonment for three years.

Criminal facts

Around March 2004, the Defendant: (a) as an equity right holder of the Victim Limited Liability Company F (F; hereinafter “F”) established under the Russian federal law, owned 14.86% of the share; (b) was in the F office located in the Sinscian Republic of Russcian on February 2006, the Defendant: (c) did not prepare and deliver to the Defendant a “written consent of “The Bank of Korea” stating that H.D. holding 9.34% of the F’s share; (d) held 7.94% of the F’s share in G; and (e) held 7.94% of the F’s share in H; and (e) did not have any intent or ability to purchase H’s share in G; (e) provided two copies of the consent of remittance to the effect that G and H would waive their share; (e) stated the funds in the name of KRW 250 in the name of G and HF and then transferred the shares in the name of KRW 2585, 2083.7.7.2.2.2.3.2.2.2.3.2.2.2.2.3.2.2.2.3.2.2.2.2.2.3.2.2.2.2.2.3.2.

Summary of Evidence

1. Partial statement of the defendant;

1. Legal statement of the witness N;

1. Statements made by witnesses G and H in the fifth trial records;

1. Statement made by a witness I in the sixth protocol of the trial;

1. Statement of witness 0 in the seventh trial records;

1. Investigative report (data deposited in the J account), relevant data (1°7 of investigation record), investigation report (1°797 of investigation record), transaction details of account (1°850 of investigation record), transaction statement by account (2°212 of investigation record), remittance receipt of sales proceeds of the victim's equity (2° 499 of investigation record), remittance certificate (180 of investigation record), full certificate of registered matters;

1. The original copy of the F General Meeting of Shareholders (No. 2: 486 of the Investigation Records), the minutes of the F General Meeting of Shareholders (No. 70 of the Evidence List), the minutes of the F General Meeting of Shareholders (No. 73 of the Evidence List), the minutes of the F General Meeting of Shareholders on February 20, 2006 (the original of the Evidence List No. 74 of the Evidence List), and the judgment of the competent arbitral tribunal (No. 74 of the Evidence List);

1. A's certificate (a certificate prepared by A that forged a document related to the withdrawal from a share ofG or H) (2: 414 pages of investigation records) and a written confirmation (2: 595 pages of investigation records);

1. A certificate of accreditation (a certificate, title 2, 575 pages);

Application of Statutes

1. Article applicable to criminal facts;

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347 (1) of the Criminal Act (However, the upper limit of the punishment shall be governed by the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259 of April 15, 2010)

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

In February 2, 2006, there is no fact that the defendant prepared a written consent to remittance under the name of G and H and submitted it to I, and the amount received from F is merely received as the price for goods, not the purchase price, and it does not receive the money by deceiving the victim. Even if it was received as the purchase price for domestic affairs, the defendant did not have the intention to acquire the money by deceiving the victim.

2. Determination,

A. The evidence duly examined by this court reveals that USD 532,139, which is the sales proceeds of GF, was forged in the H’s name that consented to the transfer of USD 532,139, which is the transfer proceeds of GF to the bank account of J (hereinafter “J”)’s bank account, and KRW 452,688, which is the transfer proceeds of H’s FF equity to L Co., Ltd. (hereinafter “L”)’s bank account, with the content that the consent to the transfer of USD 452,68, which is the transfer proceeds of H’s transfer as of January 23, 2006, and the fact that the certificate of the above remittance consent also was forged.

B. In full view of the following circumstances that can be recognized by the evidence duly examined by this court, the defendant presented a written consent of remittance in the name of G that was forged to the representative member of F and H on January 23, 2006, as stated in the criminal facts in the judgment of the court, and acquired the money by transfer from F to G and H, and the criminal intent of the defrauded can be sufficiently recognized.

Therefore, the defendant and his defense counsel cannot be accepted.

① On January 23, 2006, the Defendant was in a position to easily forge a written consent to remittance under the name of G and H.

G and H were to participate in F establishment and P hotel construction projects around October, 2003 through the Defendant known at around 2003 and around October, 2003. Investment in F establishment was also made to the Defendant. On the other hand, there was no direct contact with I from the F Office located in Russia to the date of F Office in April 2008. On the other hand, the Defendant dealt with the exercise of rights as capital and right holders for F establishment by the Korean representative.

On the other hand, I, who is a ship of Russian nationality, was not well aware of the Korean language, and because the defendant was in charge of G and H-related affairs, I did not know the contact point, address, etc. of G and H.

② The Defendant appears to have actively participated in a series of procedures and processes related to the change in equity interests among equity right holders who have participated in the establishment of the F.

With respect to the initial F establishment, I agreed to invest 50% in Korea, G, H, and Defendant 50% in total. However, the articles of incorporation state that I, G, H, and Defendant owned 25% each of the F shares. After that, the articles of incorporation state that the F shares were owned by each of the 167.86% of the F shares as of January 16, 2006 after settling accounts of the actual amount invested, etc.

After February 2006, the minutes of the general meeting of shareholders, which changed the defendant's share from February 20, 2006 to 32.14% on the premise of the defendant's statement of remittance from January 23, 2006, and the defendant's statement of purchase of shares held by G and H from February 20, 2006, were prepared on the premise of "application for purchase of shares from February 20, 2006". The above application for purchase of shares and minutes of the general meeting of shareholders are also the defendant's signature.

I, who was not specifically aware of the ratio of investment in the Republic of Korea, is difficult to change the ownership of G, H, and the defendant's ownership without the participation of the defendant.

3. The Defendant received a remittance of the share purchase price to the bank account of the company that he manages and used it as corporate operating expenses, etc.

both J and L are companies managed and operated by the Defendant (No. 2 of the Investigation Records No. 469). The location of the headquarters of the above two companies is the same, and the Defendant is the representative member of J (from December 14, 2005 to December 14, 2006, and from June 5, 2007 to June 14, 2007) and served as L’s auditor (from September 5, 2006 to December 14, 2006). The Defendant paid money to G in the name of J. L et al.

According to Articles 15.1 and 15.2 of the F’s articles of incorporation, a company participant may withdraw at will, in this case, from the date of submission of an application for withdrawal, the shares are transferred to the company from the date of the submission of the application for withdrawal, and the company shall pay the actual amount of the shares or the corresponding assets to the participant in the company as the equity payment. Upon the submission of the written consent of remittance dated January 23, 2006, I, the representative member of F, transferred USD 984,827, in total, to each account as stated in the above written consent of remittance on February 7, 2006, the sum of USD 984,827, as "Bak de posit, to the date of redemption of the legal equity deposit."

When the purchase price of equity was remitted to the company’s account, the Defendant used it as corporate operating expenses, etc. while F did not pay the purchase price of G and H’s equity. (If the remittance from February 7, 2006 was the name of the purchase price of the goods as the Defendant’s assertion, the name stated in the remittance certificate is irrelevant to I, and rather is more favorable to the Defendant, and there is no circumstance or reason to state it as such.)

④ On the other hand, the Defendant made efforts to purchase the F shares owned by G and H.

The Defendant is necessary to get loans on May 12, 2006, which was around the time of the completion of the P hotel. The Defendant tried to agree on the following: “Around September 30, 2006 between G and Q, the sum of KRW 4 billion invested amount of G and H by up to September 30, 2006, and repaid 50% of the principal of the investment in installments by the amount of compensation until September 30, 2006, and G and H shall give up the F shares, but shall become null and void at the time of non-performance (Article 237 of the Investigation Records).

From May 2006 to December 2, 2007, the Defendant remitted approximately KRW 2.6 billion in total to G under the name of J, L, R, etc., and also remitted to H the amount of capital exceeding KRW 1.2 billion in total (as the Defendant did not pay the money after December 2007, G and H sought the F Office in R around April 2008).

⑤ As G and H withdraw from the position of equity right holder through a series of changes in F shares, the Defendant appears to have been able to obtain a loan of KRW 40 billion from the National Bank of Korea, more easily than by providing F with a P hotel site and ground building on April 2007 as a joint guarantor for a new construction project of “T” promoted by himself/herself (SS) as a joint guarantor.

6. Meanwhile, the Defendant recognized that he/she has forged a written consent to the remittance from January 23, 2006.

G and H filed a complaint with the investigative agency on July 25, 2008 on the charge that the Defendant was guilty of forging private documents, etc., and the Defendant, at the Defendant’s order on November 25, 2008, prepared a written confirmation that “a document related to withdrawal from shares, such as a written consent for remittance from G and H, was forged” under the Defendant’s name on January 23, 2006 (the term “ February 13, 2005” stated in the written confirmation appears to be written in writing in light of the time when the written confirmation was prepared, the reasons why the written document was prepared, the content thereof, and the list of accompanying documents, etc.).

In addition, on November 21, 2008, the Defendant brought the case to the Dagin Arbitration Court on the date of January 21, 2006 (2) of the application form to be a company. G and H shareholders were aware that the application form was forged. G and H shareholders did not sign the said application form and did not have any idea to withdraw F. (F) Company illegally withdrawn from G and H, and (F) transferred money to B’s account. This is because this account number was followed. The application form was accompanied by this account number. “The remaining shares were owned by 7.94% and 9.34%, which were remaining after the withdrawal of shareholders, were owned by 7.94% and 9.34%,” and submitted a written confirmation with their signature (2 right 477 of the Investigation Records).

7) The fact that there was a multiple deal of goods between F and J and L is recognized. However, according to the F establishment agreement (3° 144 pages of investigation record), Defendant, G, and H agreed to provide capital as goods at the time of entering into a contract. It cannot be readily concluded that F still remains liable for payment of the goods provided by Defendant; L) Defendant did not submit direct data concerning remittance as of February 7, 2006, such as details of supply of goods, receipt of payments, etc. As such, it is difficult to understand that the company engaged in the supply of goods fails to submit the particulars of supply of goods, which can be called as business material, and its settlement details. (c) It is difficult to view that F transferred money to a bank account under the name of J/G on March 16, 2007 and March 21 of the same year, but it is difficult to view that the amount of money transferred to the Defendant under the name of K/G on the account of the remitter, which is clearly stated in the statement that the money was remitted to the Defendant.

Reasons for sentencing

1. The scope of applicable sentences: Imprisonment for not less than three years nor more than 15 years;

2. Application of the sentencing criteria;

[Extent of Recommendation] General Fraud: Type 3 (at least KRW 500 million, less than KRW 5 billion), Basic Area (at least 3 years to 6 years)

【Special Convicted Person】

3. Determination of sentence;

The defendant forged a written consent to remittance from the victim on January 23, 2006 and acquired money equivalent to approximately one billion won from the victim company by using it. The crime of this case is extremely poor in light of the method of crime, the amount of damage, etc., the defendant denies the crime from the investigative agency to this court to avoid liability and avoid liability, and did not recover damage to the victim at all, and I, the representative member of the victim company, etc. want to punish the defendant with severe punishment, it is inevitable to sentence sentence to the defendant.

However, the fact that the defendant has no record of being punished for the same crime, and the age, character and conduct, environment, means and result of the crime, the circumstances after the crime, etc. of the defendant, all kinds of sentencing shown in the arguments of this case, such as the crime, shall be determined as the order.

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

The presiding judge of the Supreme Court;

Judges Kim Gin-han

Judges in the order of precedence

1) On January 23, 2006, a statement of consent to the remittance (No. 875 and No. 876 of 2006) from January 23, 2006