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The judgment below
The guilty part shall be reversed.
In regard to the crimes of Article 1 of the judgment below, the defendant shall be punished by imprisonment for April and the judgment below.
Reasons
1. Summary of grounds for appeal;
A. The defendant (as to the part of the charge), (1) misunderstanding of facts (A) 2-A of the decision of the court below.
After the victim D and E remitted the amount of KRW 10 million to M on September 29, 2009, M supplied the said victims with scrap metal worth KRW 50 million. The Defendant did not acquire any pecuniary profit in the instant case. When accepting theO operated by the said victims, the Defendant took over all of the O’s claims and obligations, including claims against M, and M paid the said amount to the said victims, and thus, the crime of fraud is not established.
Nevertheless, the judgment of the court below which found the defendant guilty of this part of the facts charged is erroneous, which affected the conclusion of the judgment.
(B) Article 2-2 of the decision of the court below
Around November 2009, the Defendant and Q took over all the O’s businesses operated by the Defendant and Q from the Victim D and E, and repaid the O’s liabilities of KRW 140 million to the Defendant and Q. The Defendant and Q paid KRW 50 million to the said victims using O’s marinas, facilities, and fixtures, etc. However, the above KRW 50 million included the right to use marinas.
(2) Earth scrap metal in the O is sold after 8 months have elapsed since the defendant acquired theO, after collecting and selling earth that had been finished.
③ Also, Q Q, which operated with the Defendant and R, disposes of the said soil scrap metal to AG despite the opposition of the Defendant.
Nevertheless, the judgment of the court below which found the defendant guilty of this part of the facts charged on the premise that the defendant and Q have conspireded to dispose of the soil scrap metal kept by the above victims in custody in the defendant and Q, thereby affecting the conclusion of the judgment.
(C) Article 2-3 of the decision of the court below
In relation to the crime of fraud, the defendant paid 10 million won received from the victim D and E as advance payment to T, and is operated by the victims.