2016No2658 A. Fraud

(b) Violation of the Attorney-at-Law Act;

(c) Alteration of an official document;

(d) Exercising altered official documents;

1. A. (b) A;

Residence

Reference domicile

2. A. b. c. d. B

Residence

Reference domicile

Defendant A and Prosecutor

Documents and leather (prosecutions) and on the port of transfer (public trial)

Law Firm 00

Attorney Park Jong-soo, Counsel for the defendant-appellant 1

Article 000 (Attorney B for Defendant B)

Suwon District Court Decision 2016Ma747 decided September 21, 2016

November 29, 2016

The judgment of the court below is reversed.

Defendant A’s imprisonment with prison labor of one year and six months, with prison labor of one year and six months, and with respect to the first crime in the judgment of Defendant B, No. 2

Crimes shall be punished by imprisonment for not less than eight months.

40,000 won from Defendant A, and 80,000 won from Defendant B shall be collected respectively.

1. Summary of the grounds for appeal;

A. Defendant A (misunderstanding of facts)

The defendant introduced B to the victim and did not participate in the issue of permission for the establishment of a kindergarten. The fact that the defendant received KRW 48 million from the victim, but it was merely the victim's request to deliver the above money to B and comply with it.

B. Public prosecutor (an unreasonable sentencing decision)

The sentence of the court below (Defendant A: 3 years of probation, community service 120 hours, additional collection 4 and 8 million won, Defendant B: 1 year and June of imprisonment; 3 years of probation in the year and June; 3 years of probation in the year and June of imprisonment; 3 years of probation in the year and June; 3 years of probation in the year and June of imprisonment with prison labor for the crimes of Article 2 of the judgment; 3 years of probation, community service 120 hours; 80 million won in the amount to be collected) is too uneasable.

2. Determination:

A. Judgment on Defendant A’s assertion of mistake of facts

1) The following circumstances acknowledged by the evidence duly adopted and examined by the court below, i.e., the victim C, at the court of the court below, is well aware of the Defendant A’s “in the court of the court below,” and the victim C, at the same place as the area of the 00 district, has been able to obtain permission of a kindergarten on the land within the green belt. Since the victim said C, I would be able to obtain permission of a kindergarten on the land within the green belt, the amount of KRW 48,00,000 to Defendant A was paid in cash. As to the reasons that correspond to the money in cash, Defendant A has a different Gu affairs, and Defendant A has to issue the value

The statement was made as "(see, e.g., 107, 108 of the public trial record), (2) the court below's testimony that the victim would assist the defendant A because of the victim's wish to establish the kindergarten (see, e.g., 233 of the public trial record), (3) the witness E who applied for authorization of a kindergarten directly by the defendant A to know whether it is possible to grant authorization of a kindergarten or not, and (see, e.g., 206 of the public trial record), (4) the defendant argued that the victim did not pay part of the amount to be paid by the victim to the defendant, and delivered it to the defendant B, but the victim's statement that the victim could have received money from the defendant under the pretext of 80,000 won to the defendant, and that the victim could have received money from the victim and delivered it to the defendant under the pretext of 80,000 won to the defendant's statement that the victim could have received money from the defendant.

2) Therefore, Defendant A’s assertion of mistake of facts is without merit.

B. Judgment on the prosecutor's assertion of unreasonable sentencing

1) It is recognized that the Defendants returned the money received from the victim and agreed with the victim; Defendant A did not have the same criminal record; Defendant B led to a confession and reflects on the crime in the trial; Defendant B violated the Punishment of Violence, etc. Act (joint conflict) and Defendant B’s violation of the latter part of Article 37 of the Criminal Act and the first crime in the judgment of the court below are concurrent crimes.

2) However, in full view of the following circumstances: (a) the instant crime was committed in collusion with Defendant A, a current police officer, and Defendant B, a representative of a press organization, to receive an amount of KRW 1220 million up to eight million under the pretext of solicitation or good offices for public officials in charge; (b) the nature of the instant crime was extremely poor; (c) Defendant A does not deny and at all oppose the crime despite the fact that the crime was clearly revealed; (d) Defendant B committed a crime that alters the court’s judgment in order to avoid one’s mistake; (c) Defendant B committed a crime of joint conflict committed by Defendant B by abusing the status of operating a press organization; and (d) the crime of Defendant B committed by another person was committed by taking advantage of the status of operating a press organization; and (e) other various circumstances, such as the Defendants’ age and environment, and the circumstances after the crime, etc., which are the sentencing conditions set forth in this case’s argument, it is deemed that the lower court’s punishment is unfilledd.

3) Accordingly, the prosecutor’s allegation of unfair sentencing is with merit.

3. Conclusion

Therefore, the prosecutor's appeal is reasonable, and the decision of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows after the pleading (as long as the defendant A's appeal is without merit, but the decision of the court below is reversed by accepting the prosecutor's appeal, the defendant A's appeal shall not be dismissed in

Criminal facts and summary of evidence

The summary of the facts constituting an offense and evidence recognized by this court is the same as that of the judgment below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Relevant Articles of criminal facts;

(a) Defendant A: Articles 347(1) and 30(a) of the Criminal Act; Article 111(1) of the Attorney-at-Law Act; Article 30 of the Criminal Act (a)

(b) Defendant B: Articles 347(1) and 30 of the Criminal Act (the point of fraud), Article 111(1) of the Attorney-at-Law Act, Article 30 of the Criminal Act (the point of acceptance of money and valuables in the name of solicitation), Article 225 of the Criminal Act (the point of alteration of official document), Articles 229 and 225 of the Criminal Act (the point of uttering of altered official document)

1. Competition;

Defendants: Articles 40 and 50 of the Criminal Act (Punishments stipulated in frauds and the Violation of the Attorney-at-Law Act)

1. Selection of penalty;

Defendants: Selection of imprisonment with prison labor for fraud

1. Handling concurrent crimes;

Defendant B: the latter part of Article 37 and Article 39(1) of the Criminal Act (as to fraud, there is a previous record of the first head of the judgment)

1. Aggravation for concurrent crimes;

Defendant B: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Mutual Crimes of Alteration of and Accompanying in Official Documents)

1. Collection;

Defendants: Article 116 of the Attorney-at-Law Act

Reasons for sentencing

See Decision 2-b. Part 2

Judges Sung-ho et al.

Judges Kang Jong-chul

Judges Hak-chan