2010No1558 Fraud, Violation of the Attorney-at-Law Act

prescribedA (59 years old, South)

Defendant and Prosecutor

For gambry

Law Firm Busan, Attorney Jeong Jae-sung

Busan District Court Decision 2009Da4011, 2010 Godan555 decided May 4, 2010

Judgment

October 8, 2010

The part of the crime No. 1 of the judgment of the court below against the defendant shall be reversed.

A person shall be punished by imprisonment with prison labor for not less than ten months for a crime set forth in the judgment of the defendant.

50 million won shall be additionally collected from the defendant.

The appeal by the defendant and the prosecutor against the crime No. 1-b, C, and D shall be dismissed, respectively.

1. Summary of grounds for appeal;

A. Defendant's assertion of mistake of facts

The defendant's defense counsel asserts that the court below erred by misunderstanding facts and affecting the conclusion of the judgment.

(1) 1-A of the facts constituting the crime in the judgment of the court below

The defendant merely borrowed KRW 50 million from the victimHaC, and did not receive it under the pretext of deceiving the victim as stated in the judgment of the court below to make a solicitation to the internal organ (the internal organ at the time of the crime of this case). Since the defendant had the intent and ability to repay the money borrowed from the victim, there is no intention to acquire it by deceit.

(2) Paragraph (1)-B of the crime of the lower judgment

The Defendant merely received KRW 18 million from thisC2 as investment money, but did not know that the amount was equivalent to the amount under thisC2 under the pretext that this C3 made a solicitation to the Defendant.

(3) Paragraph (1)-C of the facts constituting the crime in the judgment below

The defendant merely received KRW 4 million from the victim C2 on the pretext of money, but did not receive it under the pretext of deceiving the victim as stated in the decision of the court below to make a solicitation to the prosecutor of the prosecutor's office.

(4) Article 1-4 (D) of the facts constituting the crime in the judgment below

The defendant received KRW 3 million from thisC2 on the pretext of money, and there is no fact that he received it under the pretext of soliciting a police officer of the Geum-gu Police Station by deceiving the victim KimC4 as stated in the judgment of the court below.

B. The defendant and prosecutor's assertion of unreasonable sentencing

The defendant asserts that the sentence of the court below (the first sentence: imprisonment of 1 year and 4 months, the sentence of 1-b, c, and 8 months) is too unreasonable, and the prosecutor asserts that the sentence of the court below is too uneasible and unfair.

2. Determination

A. The defendant's assertion of mistake of facts

Comprehensively taking account of the evidence duly adopted and examined by the court below and the statements of EC3 and EC5 of witnesses of EC5, the defendant can fully recognize the fact that he received KRW 50 million from EC3, KRW 4 million from EC2, and KRW 3 million from EC4 from EC4 on the pretext of deceiving the victims as stated in the judgment of the court below, and making a solicitation to the police officers, etc. by deceiving the victims as stated in the judgment of the court below. Thus, the defendant's assertion of mistake of facts is without merit.

B. The defendant and prosecutor's assertion of unreasonable sentencing

(1) As to the assertion of unfair sentencing by the Defendant and the prosecutor of the crime No. 1 of the judgment of the court below, in light of the following: (a) the Defendant denied this part of the facts charged and without good faith; (b) the Defendant violated the Attorney-at-Law Act on August 2005; and (c) the Defendant again committed the instant fraud and Attorney-at-law violation despite the record of being sentenced to a fine of KRW 5 million in violation of the Attorney-at-Law Act on March 2003; and (d) the Defendant, even though he did not have the intent or ability to make solicitation to the visitors of Chapter 1 of the judgment of the court below; and (c) the Defendant, by deceiving the Defendant that “I would help the Defendant make solicitation to the visitors of Chapter 1 and promote it to the general public in light of the contents of solicitation, deception, or acceptance of the facts charged; (d) the Defendant should be punished on the right side of the crime; or (e) the Defendant’s allegation that there was no reason to recognize the Defendant’s age of punishment and the latter part of the Defendant’s character and conduct.

(2) 원심 판시 범죄사실 제1의 나, 다. 라항 피고인 및 검사의 양형부당 주장에 관하여 함께 살피건대, 피고인이 이 부분 각 공소사실을 부인하여 개전의 정이 없는 점, 피고인이 사기죄로 인한 집행유예기간 중에 이 사건 각 사기 · 변호사법 위반 범행을 저지른 점(현재 집행유예기간은 경과), 그 외에도 피고인에게는 2005년 8월경 변호사법위반으로 징역 10월 집행유예 2년을, 2003년 3월경 변호사법위반으로 벌금 500만 원을 각 선고받은 전력이 있는 점, 이 사건은 피고인이 검사나 경찰관에게 청탁하여 사건을 무마해줄 의사나 능력이 없었음에도 수사대상자였던 피해자 이C3을 기망하여 청탁을 한다는 명목으로 2,000만 원을 교부받고, 검찰청 ◆검사에게 청탁하여 압수당한 오락기와 현금을 돌려받도록 해 줄 의사나 능력이 없었음에도 수사대상자였던 피해자 이C2를 기망하여 청탁을 한다는 명목으로 400만 원을 교부받고, 금정경찰서 경찰관에게 청탁하여 게임장 환전상 단속을 유예시켜 줄 의사나 능력이 없었음에도 피해자 김C4를 기망하여 청탁을 한다는 명목으로 이C2를 통해 300만 원을 교부받은 것으로 청탁내용 · 편취 또는 수수한 금액·범행횟수 등에 비추어 사안이 무겁고 죄질이 불량한 점 등 불리한 정상과, 피고인이 피해자 김C4에게 300만 원을 변제한 점, 피고인이 앞서 본 바와 같이 수술을 받았고, 현재까지도 건강이 좋지 않은 점 등 유리한 정상들에다가, 이 사건 범행의 경위와 내용, 범행 후의 정황, 피고인의 나이, 성행, 가족관계, 환경, 직업, 범죄전력 등 기록에 나타난 양형의 조건이 되는 제반 사정을 종합하여 보면, 원심의 형량은 적절하다고 판단되고, 너무 무겁거나 또는 너무 가벼워서 부당하다고 보여지지 아니하므로, 이 부분에 대한 피고인및 검사의 각 양형부당 주장은 모두 이유 없다.

3. Conclusion

Therefore, since the defendant's appeal against the crime No. 1-A of the decision of the court below is well-grounded, the part concerning the crime No. 1-A of the judgment of the court below as to the defendant is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and the defendant's appeal against the crime No. 1-B, c, and d in the judgment of the court below and the prosecutor's appeal against the crime is without merit, it shall be dismissed

Criminal facts and summary of evidence

The summary of the facts constituting the crime recognized by this court and the evidence thereof are the same as the corresponding column of Article 369 of the Criminal Procedure Act, since all the judgment of the court below on the defendant is the same as the corresponding column of Article 1 of the judgment of the court below.

Application of Statutes

1. Article applicable to criminal facts;

Article 347(1) of the Criminal Act (Fraud) and Article 111(1) of the Attorney-at-Law Act (the point of receiving money and valuables under the pretext of trust)

Articles 40 and 50 of the Criminal Act

1. Selection of punishment;

Imprisonment Selection

1. Handling concurrent crimes;

The latter part of Article 37 and the first sentence of Article 39 (1) of the Criminal Act

1. Additional collection:

It is so decided as per Disposition on the grounds that Article 116 of the Attorney-at-Law Act (the portion of the crime No. 1 in the judgment of the court below out of 74 million won is reversed only for 50 million won and the additional collection is to be sentenced again) is higher than the additional collection charge.

The presiding judge, judge and senior judge;

Judge Lee Dong-dong

Judges Shin Jae-won