2019Gohap180 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

(Recognized Crime: Fraud)

A

The current state of his/her hands, Kim Jong-Un (Trial)

Attorney Don-yang

June 28, 2019

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

Criminal facts

From Jun. 2, 2014 to Jun. 7, 2014, the Defendant entered into a contract with an overseas company in order to obtain the right to exclusively receive and operate the Asian tickets of the program (C) developed overseas from the victim B in Gangdong-gu Seoul.The down payment is already paid in the state of payment, the intermediate payment, and the server management expenses are insufficient. If the Defendant borrowed KRW 400 million, the Defendant would repay up to Oct. 2, 2014, and later, if the branch office is established, the Defendant would receive approximately KRW 2 billion deposit from the sales agency, and would lend KRW 1 billion out of them as business funds.

However, in fact, the Defendant did not enter into a contract for the above C Program monopoly sale, and did not have any specific property, so even if the Defendant borrowed money from the victim, it did not have the intent or ability to repay it within three months, and was thought to use it for personal living expenses or for other business funds unrelated to C.

Nevertheless, the Defendant, as above, by deceiving the victim and receiving KRW 50 million from the victim via D around July 12, 2014, received the remittance of KRW 50 million in total from July 12, 2014 to December 16, 2014, as indicated in the attached Table of Crimes, as well as from July 12, 2014.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of witness B, E, and D;

1. Written complaint, each notarial deed, decision on the collection of claims, details of the account in the name of the defendant, details of the SC Japan bank account in the name of the defendant, details of the account transactions in the name of the defendant (D bank);

1. Investigative report (Submission of details of passbook transactions, analysis of account flow, and extraction of evidence of fraud cases sentenced to conviction), and each investigative report or data attached thereto;

Application of Statutes

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

Article 347(1) of each Criminal Code (attached Form 1 to 5 frauds (generally spreads), and each frauds No. 6 to 10 of the same list of crimes) and choice of imprisonment with prison labor

1. Aggravation for concurrent crimes;

Articles 37(former part), 38(1)2, and 50 of the Criminal Act (Aggravation of concurrent crimes with the punishment prescribed in [Attachment Table Nos. 1 through 5] of the Criminal Code

Judgment on the argument of the defendant and defense counsel

Although the Defendant acknowledges that the money of the victim stated in the facts constituting the crime was finally paid to the Defendant, the Defendant asserts that the money received through D is only the money that the Defendant received as a partner from D in the same trade relationship, and there is no relationship between the Defendant and D with the victim, and that the money that the Defendant received from the victim was sufficiently able to repay at the time of borrowing the money, and that it does not mean that the defrauded acquired the money by deceiving the victim.

However, in light of the following circumstances, it can be sufficiently recognized that there was the fact of deceiving the victim as stated in the judgment of the defendant and the criminal intent of deceiving the victim in the process.

1) It is difficult to recognize the partnership relationship between the Defendant and D. First, there is no evidence to verify the substance of the partnership relationship, such as the type and scope of the business that the Defendant and D engaged in partnership, the size of investment funds, the ratio of the settlement of accounts, the content of the allocation of settlement funds, the agreement or documents on the distribution of settlement funds, and other fund execution details. In full view of the Defendant’s investigation agency and the legal statement, at the time when the Defendant asserted that the Defendant engaged in partnership with D, D was economically lacking enough to maintain his/her livelihood, and it was not a situation to conduct the business because it was suffering from depression, etc., and it was not known that the Defendant used the officetels prepared by the Defendant, and did not know the specific contents of the Defendant’s business, and that the Defendant paid the amount of KRW 400 to five million per month in the form of benefits.

2) The victim and D stated that all the amount of damage as stated in the ruling from the investigative agency to this court was leased to the victim. D separately stated that the victim borrowed money of KRW 40 million from the victim (it appears that the victim made a statement based on his/her own deposit account and made a mistake or statement according to the limit of memory, although the victim made a statement that part of the loan was different.). On January 16, 2015, the defendant prepared a certificate of borrowing KRW 540 million to the victim. On August 28 of the same year, the victim prepared a notarial deed with the certificate of personal seal impression offered by the defendant with the above loan and the certificate of personal seal impression affixed by the defendant, and the loan amount of KRW 540 million is almost close to the loan amount of KRW 550 million,000,000,000,0000,000,0000 paid to the victim as interest on KRW 40,000,000,000. D paid interest on the borrowed money to the victim.

3) In light of the following: (a) the victim and D have maintained a close-friendly relationship starting with an insurance company from around 2006 to maintain the relationship with D and the victim was trusted; (b) the victim was aware of the defendant through D around July 2014; (c) the defendant was unaware of the defendant before that time; (d) the defendant explained the victim's direct contact with the victim or his/her own C business, etc.; and (e) explained the circumstances requiring money and the repayment plan, etc.; and (e) the victim continuously remitted money for the defendant's business fund since he/she was wired money to the victim; and (d) there was no special reason to borrow money as stated in the judgment from the victim; (b) it is natural to view that the amount transferred eight times of money transferred to the defendant through D, out of the remittance amount of ten times as indicated in the judgment in the instant case, was also the amount loaned to the defendant by the victim during the period of transfer of ownership of the apartment house to the victim after the introduction of the ownership of the case to D.

4) The Defendant, as well as his own C Program, was promoting or investing in various businesses, including clothes, renewable energy, and distribution businesses, and the Defendant asserted that there was considerable financial resources to repay debts. However, there was no other material to recognize that the Defendant actually carried out the C Program, and there was no other material to identify that there was an entity of the business that could generate profits in any way in connection with the C Program (the Defendant was unable to answer to the basic questions, such as the trade name, location, etc. of the business parties regarding the clothing wholesale business, expressed as one’s occupation). The Defendant was in a state of absence of special income after he retired from his workplace on or around January 2, 2014, and there was no property under the name of the Defendant. According to the account transaction details of the Defendant at the time of the crime, most of the Defendant’s claims against the Defendant’s bank account were found to remain in excess of KRW 30,000,000. The victim’s money deposited into the Defendant’s account was paid out to the Defendant’s account, including KRW 3, G, I, and non-deposit money collected.

Reasons for sentencing

1. Scope of applicable sentences under law: Imprisonment with prison labor for one month to 15 years;

2. Scope of recommendations according to the sentencing criteria;

[Determination of Punishment] General Fraud type 3 (at least 500 million won, less than 5 billion won, and the same concurrent crimes, referring to the sum of amounts)

[Recommendation and Scope of Recommendation] Basic Area: Imprisonment with prison labor for a period of two years to six years

3. Determination of sentence: Imprisonment with prison labor for a period of two years and six months;

The sum of the money that the defendant acquired by deceit is 52 million won and has great damage. The victim's damage has not been recovered for a long time, and the victim is strongly punished.

Nevertheless, the Defendant, while denying his mistake, did not seem to seriously reflect D’s liability for the long time due to the creation of a high school. The Defendant also escaped for a period of one year and six months after the commencement of the investigation of the instant case and obstructed the progress of the investigation. However, even though the judgment was not finalized, the Defendant was sentenced on May 23, 2019 to the High Court 2018 High-Ma5758 case (the Defendant and the Prosecutor appealed, but the Defendant appealed, but the Prosecutor appealed, and the Defendant appealed to the Supreme Court 2019Do7325) at the same time with the present Supreme Court (the continuation of the instant case).

In addition to the above circumstances, the punishment shall be determined as ordered in consideration of the motive, means, and result of the instant crime, the circumstances after the crime, the defendant's age, character and conduct, environment, and family relationship, etc. as shown in the pleadings of the instant case.

Presiding Justice;

Judges Shin Dong-ju

It is impossible to affix a signature or seal to a judge or associate leave.

The presiding judge

1) The main text of the indictment amended by June 13, 2019 states that this part of the indictment is KRW 55,200,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00