2017No4065 Fraudulent

1. A;

2. B

Defendant A and Prosecutor (Defendant B)

Adjudgment (prosecutions) and Lee Jong-ho (Trial)

Attorney C (for the defendant A)

Seoul Central District Court Decision 2015Da7687 Decided October 18, 2017

January 25, 2018

The appeal against the defendant A and the prosecutor B is dismissed, respectively.

1. Summary of grounds for appeal;

A. Defendant A

The judgment of the court below which convicted the defendant on the premise that the victim was damaged by the negligence on the part of the victim, such as hyke drive, and even though the defendant A intentionally damaged the hyke drive, the court below erred by misunderstanding the facts, which affected the conclusion of the judgment.

(b) Prosecutors;

In full view of various circumstances revealed by the evidence submitted, such as the size of the business entity operated by Defendant B, the excessive repair cost, the circumstances after the crime was committed, the reversion of criminal proceeds, and the relationship between the ownership of the criminal proceeds, etc., Defendant B could fully recognize the facts of his participation in the crime, but the judgment of the court below which acquitted Defendant B, is erroneous in the misapprehension of facts, which affected the conclusion of the judgment.

2. Determination

A. As to Defendant A’s assertion of mistake of fact

In full view of the following facts and circumstances admitted by the evidence duly admitted and examined by the court below, Defendant A, after easily restoring the data of the hard disc that the victim requested restoration and storing them separately, can be sufficiently recognized that the above Defendant caused damage to the hard disc so that other companies could not recover from the data, and only the said Defendant could have received high-amount repair costs by deceiving the victim as if he could have recovered from the data, and thus, the above Defendant’s assertion is not accepted.

1) Around July 15, 2014, the victim requested 'G’ where Defendant A works for the repair of the hard disc, and at the time, the above Defendant responded to 6.60,000 won to be able to repair the hard disc. The victim was returned the hard disc and requested her repair to another computer repair company through the employee. However, the data of the hard disc cannot be recognized as living in other companies, and the victim recommended her to receive data recovery from the specialized company. On July 22, 2014, the victim again requested 'G’ for data recovery.

2) However, around July 24, 2014, Defendant A began to demand repair expenses, unlike the first answer, that Defendant A be entrusted to the main company and be restored by opening the outer dyp and requiring the consent of the victim. On July 26, 2014, Defendant A began to demand repair expenses of an amount of money that is high, as the data research institute may recover from the dyp drive where the data are stored because it is damaged by the dyp disc inside the dyp disc, and there is no damage to the dyp from the dyp drive where the data are stored.

3) Around July 29, 2014, the victim: (a) sought the answer from Defendant A to the effect that it is impossible to recover from the information technology in the name of the data recovery company, which is a specialized company; (b) even though the data recovery company requested the recovery to the data recovery company; (c) on July 31, 2014, it would pay 22 million won as repair cost; and (d) requested the above Defendant to recover data; and (e) the said Defendant issued a new hact disc with which the hact was stored upon completion of recovery on August 6, 2014 to the victim.

4) The “one day or more” of the files and Pool stored in a new hard disc must be recorded between July 31, 2014 and August 6, 2014 when Defendant A performed restoration work. When the victim confirmed the new hard disc, the “one day or more” was recorded from July 25, 2014 to July 26, 2014, and the said Defendant kept the hard disc at around that time. Accordingly, the data of the new hard disc appears to have been stored by the said Defendant by restoring it from July 25, 2014 to July 26, 2014.

5) The data research institute that Defendant A requested data recovery was nonexistent, and there was no fact that the said Defendant requested data recovery to another company.

6) On July 29, 2014, L, which was requested by the victim to recover the hard disc data of this case, usually L, H, L, which ordinarily moved at a rapid speed of f, where data is stored, a collision with H, remains in its original form. The instant H, which stated that the inner f, damaged L, was not in full and complete form, and that the form was different from the general damage caused by the H, “H,” in that there was a f, which seems to have been a plout, in the middle of the damaged part.

7) In light of the fact that experts of other data recovery companies, such as L and K, usually stated in a single hard disc that the cost of data recovery is at least KRW 500,000 but not exceeding KRW 1,320,000,000 as the cost of data recovery is at least KRW 50,000,000 required by Defendant A.

8) While L and K had attempted to recover the instant hard disc, they could not perform restoration work due to damage to screen screen screen, in particular, L showed that there was no data (NUL), although considering the image of some data when it was possible to recognize the hard disc, compared with the above L and K, it is difficult to easily understand that Defendant A, who did not use any special equipment or technology, restored most of the data on the original hard disc.

B. Regarding the prosecutor's assertion of mistake

The evidence submitted by the prosecutor alone is insufficient to prove in advance that Defendant B conspired to commit the instant crime with Defendant A, and there is no other evidence, and the judgment of the court below which acquitted Defendant B is just, and there is no error of mistake of facts as alleged by the prosecutor. The prosecutor's assertion is without merit.

3. Conclusion

Since both appeals filed by Defendant A and those filed by the Prosecutor against Defendant B are without merit, they are all dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

The presiding judge shall be dedicated to judges.

Judges Cho Jong-chul

Judges Han-hane