Defendant 1 and one other

Defendants

The number of days (prosecution), the Constitution of the Republic of Korea (Trial)

Attorney Shin-soo et al.

Ulsan District Court Decision 2019Ma916 Decided August 20, 2019

All appeals by the Defendants are dismissed.

1. Summary of grounds for appeal;

A. Defendant 1

The punishment sentenced by the court below to Defendant 1 (limited to three years of imprisonment, confiscation, and collection) is too unreasonable.

B. Defendant 2 (Defendant of the Supreme Court Decision)

1) misunderstanding of facts and misapprehension of legal principles

In relation to the crime of . D. of the lower judgment, Defendant 2 did not know the existence of the illegal gambling site’s “○○○○,” and “△△△△△,” and did not have been involved in the operation of the above site, and even though there was no awareness of the fact that the above site was provided with a large passbook for the operation of the above site, the lower court erred by misapprehending the legal doctrine and misapprehending the legal doctrine.

Accordingly, the collection of 470,8930,000 won from Defendant 2 is also illegal and unjust.

2) Unreasonable sentencing

The punishment sentenced by the court below to Defendant 2 (one year of imprisonment, additional collection) is too unreasonable.

2. Judgment on Defendant 1’s assertion

Defendant 1’s confession of each of the crimes of this case and reflects his mistake, Defendant 1 is an initial offender who has no criminal power, Defendant 1 appears to be not good, and Defendant 1’s health status appears to be insufficient, and Defendant 1’s family members and branch members appeal against Defendant 1’s wife, etc. are favorable circumstances in favor of Defendant 1.

However, Defendant 1’s crime of this case was committed on a planned and organized basis with an office in Vietnam for a long time exceeding two years, and took part in the operation of an illegal gambling site by withdrawing and delivering proceeds from other illegal gambling sites and receiving fees therefor. In collusion with Nonindicted 1 and 2, Defendant 1 and Defendant 2 established a memorial corporation, and made a large passbook in the name of the above memorial corporation, and distributed it to Nonindicted 2 and 3, etc. who operated the illegal gambling site in China. It was very systematic, intelligence, and planned that the crime was committed, and thus, the nature of the crime was not very good. Defendant 1’s unlawful gambling site operated for a period exceeding 3.5 billion won at the time of the crime of this case, and Defendant 1’s attempt to commit the crime of this case’s crime of this case’s crime of this case’s imprisonment with prison labor at the early stage of 200 million won, but Defendant 1 and Defendant 1’s defense counsel argued that the aforementioned illegal gambling site’s imprisonment with prison labor at the time of this case’s imprisonment.

3. Judgment on Defendant 2’s assertion

A. Judgment on the misconception of facts and misapprehension of legal principles by Defendant 2

1) Summary of this part of the facts charged

No person, other than the Seoul Olympic Sports Promotion Foundation or an entrusted business entity, shall provide property or financial benefits to persons who issued sports betting tickets or similar things and predicted the result thereof.

The Defendants offered a large passbook, such as a bank account (Account No. 1 omitted) in the name of Nonindicted Co. 5, which will be used in the gambling site with Nonindicted Co. 1, 4, etc., and the Korean bank account (Account No. 2 omitted) in the name of Nonindicted Co. 6, and the Korean bank account (Account No. 2 omitted). Nonindicted Co. 2 and Nonindicted 3, etc. leased 15 apartment houses with the name of Chinese Cheongdo from June 2017 to May 2018, installed five computers and VPN equipment. After installing a single name “○○○○” and “△△△△△△”, the Defendants received money from the above website from the above website, and gave a considerable amount of money by predicting various domestic and foreign sports games, etc. to betting money in the name of its member, and, in the event that the said member’s operation was anticipated, given an additional amount of money equivalent to the remaining amount of money in the event of a fixed distribution rate, and then transferred the money in the currency.

Accordingly, even if the Defendants were not the Seoul Olympic Sports Promotion Foundation or the entrusted business entity, the Defendants issued sports betting tickets or similar things and opened a space for gambling for profit-making purposes in collusion with Nonindicted 1, 4, 2, and 3.

2) The judgment of the court below

The lower court recognized that Defendant 2 was involved in the joint principal offender in the operation of illegal gambling sites in consideration of the relationship between the supply, management, and the necessity for the operation of illegal gambling sites.

3) Determination of the immediate deliberation

A) Relevant legal principles

In relation to co-offenders who jointly process two or more offenses, the conspiracy does not require any legal punishment, but is only a combination of intent to jointly process and realize the offense. Although there was no process of the whole conspiracy, if there was a combination of intent to do so either successively or implicitly among several persons, the conspiracy relation is established if the combination of intent is achieved, and even those who did not directly participate in the act of the conspiracy are held liable for the other co-principal's act. In addition, the joint execution of the crime by the conspiracy is possible to cooperate with all accomplices to strengthen their decision-making without premised on the fulfillment of the elements of the crime by all accomplices. Whether it falls under the conspiracy should be determined by comprehensively taking into account the degree of understanding of the result of the act, the size of participation in the act, and the intent to control the crime (see Supreme Court Decisions 201Do15713, Feb. 9, 2012; 201Do1118, Apr. 18, 2012).

B) Determination

In full view of the following circumstances, it is reasonable to view that Defendant 2, along with Nonindicted 1, Defendant 1, etc., is liable for criminal liability as a co-principal in relation to the operation of the illegal gambling site “○○○” and “△△△△△△△△”. Thus, the lower court did not err by misapprehending the facts or by misapprehending the legal doctrine.

① Since the operation of an illegal gambling site in order to receive the betting money and remit the winning money is inevitable and inevitable, the operation of an illegal gambling site is an essential and large passbook to withdraw funds from the one and money laundering in another one, and thus, it constitutes an essential part of the establishment and operation of an illegal gambling site by opening an illegal gambling site in the name of the title holder who will create the one in question and receiving various documents necessary for the establishment of the one in question from the said title holder, and providing the one in question to the operator of the one in the name of the above old-age corporation.

② The crime of operating an illegal gambling site is completed in close connection with each other. As such, even if one of the co-offenders in charge of each of the above roles is unable to expect success in the crime, establishing a floating corporation by reding the nominal owner who created the passbook during the entire process of the crime, and then distributing the passbook in the name of the above floating corporation and receiving fees, even if he/she knowingly distributes it and receives fees therefor, he/she can be deemed to have contributed to the total crime of operating the illegal gambling site.

③ Nonindicted 2, who operated an illegal gambling site “○○○” and “△△△△△” using computers and VPN equipment, etc. in China’s Cheongdo stated that Nonindicted 2, who had been operating the illegal gambling site from the investigative agency to the court below, was paid KRW 1,50,000 per page of passbook (5 pages and 2.50 pages of the original trial record), and Nonindicted 4, 7, and 8, etc., who were in charge of the solicitation of the large passbook, together with Nonindicted 1 and Defendant 2, established a liable corporation and made a statement that the large passbook was distributed to the illegal gambling site business operator when opening the large passbook in the name of the said corporation. Defendant 2 also stated that Nonindicted 1 was aware of such facts at the prosecutor’s office, and thus, Defendant 1 was aware of the fact that the large passbook was distributed to the illegal gambling site business operator.

④ From around 2016, the Defendants planned to operate an illegal gambling site with Nonindicted Party 1. On or around December 2016, the Defendants attempted to borrow money from the illegal gambling site operator by reporting to financial institutions that suffered from fraud in the account operated at the illegal gambling site. At this time, Defendant 2, along with Nonindicted Party 10, was established by “Nonindicted Party 9” and Nonindicted Party 10; Defendant 1 was in charge of creating a large passbook in the name of a fake corporation established by Defendant 2; Defendant 1 and Nonindicted Party 10 were in charge of introducing an illegal gambling site; Defendant 1 and Nonindicted Party 10 were distributed profits therefrom after having been distributed from the operator of the illegal gambling site (the Defendant 4 and Nonindicted Party 2 were in charge of Nonindicted Party 5’s statement and distribution in the process of the unlawful gambling site’s operation).

⑤ Defendant 2 appears to have been involved in the creation and distribution of a large passbook, such as giving instructions on business to the employees employed in the office of Nonindicted Party 1, which is the total account book for the large passbook, or printing the account holder and the solicitation book, and having the employees keep the large passbook and the means of access thereto, etc. (Evidence No. 6,541 page). Furthermore, Defendant 2 was bound by Nonindicted Party 1, who is the co-offender, the total account book for the large passbook No. 11, and Nonindicted Party 7, who is the co-offender, received approximately KRW 40 million (Evidence No. 6,447, 638 of the evidence record). In addition, Defendant 2 played the role of keeping the proceeds by taking charge of the proceeds withdrawn by Nonindicted Party 1 and Nonindicted Party 1, who is the co-offender (Evidence No. 11 and Nonindicted Party 7, the total account No. 9 of the large passbook No. 10,647,685).

⑥ 공소외 2와 피고인들이 서로를 직접 알지는 못한다고 진술하고 있으나 대한민국의 공권력이 닿기 어려운 중국 등 외국에서 불법 도박 사이트를 운영하면서 ‘▽▽▽▽▽’, ‘◎◎◎◎◎’, ‘◁◁◁◁◁’ 등 가명으로 서로를 칭하여 본명을 숨기면서 수시로 전화번호가 변경되는 대포폰을 사용하고, 메시지 또한 수사기관의 추적을 피하기 위하여 위챗을 사용하며, 대포통장이나 대포통장 수익을 고속버스나 KTX 화물편으로 배송을 하는 방법으로 직접 대면하지 아니한 채 불법 도박 사이트의 운영에 필요한 역할을 분담하여 수행하는 이러한 불법 도박 사이트 운영 범행에서 피고인 2가 공소외 2를 알지 못한다는 것이 그리 어색한 것으로 보이지도 아니한다. 실제로 공소외 2는 안양 지역의 대포통장 공급 총책인 공소외 1마저도 ‘◁◁◁◁◁’으로만 알고 있을 뿐 실제로는 얼굴을 보거나 본명을 알지도 못하였다(원심에서의 공소외 2 진술녹취서 5쪽, 공판기록 250쪽).

7) Therefore, even if there was no mother’s intention on the direct operation of the illegal gambling site, it is reasonable to deem that there was a conspiracy between the Defendants and Nonindicted 2, etc., by going through the order or impliedly, and that the relationship of conspiracy was established. As long as such a conspiracy was made, it is reasonable to evaluate that Defendant 2, who did not directly participate in the direct operation of the illegal gambling site, is liable for criminal liability as a co-principal. As alleged by Defendant 2, the circumstances are merely the situation of inspection in light of the circumstances.

④ Nonindicted Party 1 stated that the profits from the use fees of the large passbook was divided into 60% by himself, and that the Defendants were divided into 20% by 10% by each ratio (Evidence No. 6,351). In a trial against Nonindicted Party 1, the amount of KRW 1.4368 million was specified as the profits. As seen earlier, as long as Defendant 2 is held liable for the operation of the illegal gambling site as joint principal offender, it did not err by misapprehending the legal principles on the portion where Nonindicted Party 1 was ordered to additionally collect the profits (i.e., KRW 1., KRW 47,8930,00,000 x KRW 1.4368 billion x KRW 1/3,000 x 1/300 x hereinafter referred to as “Ber”) of the profits he acquired by Nonindicted Party 1.

B. Determination on Defendant 2’s assertion of unreasonable sentencing

Defendant 2’s confessions of the remaining crimes except the crimes in Section 1(d) of the original judgment and reflects his mistake, and Defendant 2 did not have the same criminal records and did not have any criminal records exceeding the fine, etc. are favorable circumstances to Defendant 2.

However, Defendant 2’s crime of this case was established in collusion with Nonindicted 1 and Defendant 1, and distributed it to Nonindicted 2, Nonindicted 3, etc., who operated an illegal gambling site in China, by establishing a large passbook in the name of the above old-age corporation, and took part in the operation thereof. The crime of this case is very organized, intelligence, and planned, and the nature of the crime is not good. Defendant 2 and his defense counsel asserted that the degree of their participation is minor. However, in light of relevant evidence such as the statement of his accomplice, etc., it appears that Defendant 2 took part in the establishment and distribution of a large passbook, and that the profits acquired by Defendant 2 exceed KRW 470 million,00,000,000, and other circumstances such as Defendant 2’s age, character and behavior, environment, motive and circumstance leading to the crime of this case, the means and consequence of the crime of this case, etc., are considered to be unfair and the punishment of the court below is too inappropriate.

4. Conclusion

Therefore, the defendants' appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act as it is without merit. It is so decided as per Disposition.

Judges Kim Hyun-hwan (Presiding Judge)