(영문) 서울중앙지방법원 2017.5.18. 선고 2016고합1310 판결

On May 2016, the Defendant came to know of the victim C(the 20th, the 20th, the 20th, the 20th, the 20th, the 20th, the E(the 20th, the 20th, the 20th, the 20th, the 2

around May 2016, the defendant introduced the defendant's office 10th floor of the F building in Ansan-si as the vice president of the construction company that he operates by his father at the office of the defendant's 10th floor of the F building in Ansan-si and said victim's access to the above victim's "if the amount of KRW 10 million is invested in the shares, it can make profits to the amount of KRW 4 million at the end of that month."

However, the Defendant, even if receiving money from the said victim, was thought to be appropriated for paying his/her personal debt, did not intend to make any profit by investing the said victim’s money in shares, and the amount at the time was paid KRW 90,000 per month for KRW 140,000 and KRW 90,000 per month. Therefore, even if receiving the said money from the said victim, there was no intention or ability to pay the said money, or to pay the profit.

Nevertheless, on May 24, 2016, the Defendant: (a) by deceiving the above victim; (b) received KRW 4.722,00 from the said victim’s new financial investment account with the Defendant’s name; (c) and (d) received transfer of KRW 4.72,00 from the said victim to October 6, 2016; and (d) received or remitted KRW 31,980,521, total sum from three victims of the said victim C, etc. over 16 times from around that time, to October 6, 2016, as indicated in attached Table (1).

2. Suppression;

On October 7, 2016, the Defendant, at the office of the Defendant of the 10th floor of the 10th floor of the Mayang-gu, Ansan-si, called, “The 100,000 won was incurred on the wind that the said victims would have been investigated into the company’s money.” The father bears 40,000 won as he/she became a member of the 40,000 won. If his/her father would transfer it to his/her organized violence, or sell it to his/her house or island.” Unless it is said, the Defendant, at around October 7, 2016, transferred KRW 1 million from the said victim’s new financial investment MA account (Account Number) with the Defendant’s name of the Defendant to November 9, 2016, and received KRW 201,000 from the said victim’s total amount of KRW 301,000,000 from the said victim’s account during the period from that time to November 24, 2016.

3. Rape;

가. 피고인은 2016. 11. 8. 21:00경 서울 동작구 H에 있는 I 호텔 1503호로 위 피해자 D을 "돈 애기를 좀 해야 하니 함께 술을 한 잔 더 하자. 내가 너 대신 돈을 구해 놨다"라고 말하여 데리고 간 다음, 위 피해자에게 "너 오늘 무조건 나랑 해야 한다, 너 나랑 안 하면 깡패한테 넘겨버릴 거다. 섬에 팔려가든, 술집에 팔려가는 너네가 알아서 해"라고 협박하여 이에 겁을 먹은 위 피해자로 하여금 반항하지 못하게 하고, 위 피해자를 침대로 데려가 위 피해자의 두 손을 피고인의 손으로 붙잡아 움직이지 못하게 한 뒤 위 피해자의 옷을 벗기고 피해자의 음부에 성기를 삽입하여 1회 강간하였다.

B. At around 23:00 on November 10, 2016, the Defendant stated that the said victim C would not lend money to the said hotel, and subsequently, the Defendant: (a) threatened the said victim with “I would not sell it to the island without a vagach”; (b) threatened the said victim with “I would throw away it to the island”; and (c) prevented the said victim from resisting against it; and (d) inserted the sexual organ into the negative part of the said victim, thereby committing rape once.

"2017 Highly 108"

4. Fraud;

On September 2015, the Defendant made a false statement to the effect that the Defendant would guarantee 100% of the investment principal and pay additional dividends and interest to the victim L because he/she has successfully made an investment in shares in the restaurant near K Park in the Yan-gu, Ansan-gu, Ansan-si.

However, in fact, the Defendant was liable for the personal debt of 70 million won or more at the time. Since most of the investment funds were scheduled to be used for the purpose of paying the Defendant’s living expenses and the above debt, there was no intention or ability to return the investment principal or the profit by investing in the shares even if the funds were paid by the victim.

The Defendant, on September 24, 2015, received KRW 1,700,000 from the victim as a new financial investment account (G) in the name of the Defendant, from the time to December 12, 2015, a total of KRW 56,720,00,00, as shown in attached Table 25 times, from the time to December 12, 2015, under the name of investment and loan funds.

Accordingly, the defendant was given property by deceiving the victim.

"2017 Gohap289"

5. Fraud;

On March 2016, the Defendant made a false statement to the effect that the Defendant would make and make a music record of KRW 12 million with a contract deposit to the victim from the “N” page located in Sanyang-gu M in Sanyang-gu, Sanyang-si, Sanyang-si, and make a contribution to the cable broadcast.

However, the Defendant, at the time, was expected to use the down payment for the purpose of paying the said obligation to others, and the Defendant did not establish or operate an entertainment company. Therefore, even if receiving money from the victim, the Defendant did not have any intent or ability to produce sound records or make contributions to broadcasting.

The Defendant received KRW 9,00,000,000 from the victim as the down payment on April 18, 2016, and KRW 2,930,000 on April 23, 2016, and KRW 2,930,00 on April 25, 2016, by account transfer from the victim’s new financial investment passbook under the name of the Defendant, and received KRW 12,00,000 in total.

Summary of Evidence

On July 11131021, 2016, the statement of the accused in the first trial records

1. Each police statement on C, D, E, and P;

1. Details of each financial transaction, the details of the new financial investment reply, and the response details of the new bank;

1. Compilation of hotel CCTV images, details of each RDR, each recording;

"2017 Highly 108"

1. Statement by the defendant at the court (the second trial date);

1. Statement of the police concerning L;

1. A complaint, a loan certificate, and a statement of liquidity transactions;

"2017 Gohap289"

1. Oral statement of the defendant (as of the fourth trial date);

1. Statement made by the police about 0;

1. A complaint;

Application of Statutes

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

Article 347(1) of the Criminal Code (Fraud, inclusive of each victim), Article 350(1) of the Criminal Code (a) of the Criminal Code, Article 347(1) of the Criminal Code, Article 350(1) of the Criminal Code (a) of the Criminal Code, Article 297 of the Criminal Code (a crime of rape)

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (an aggravated punishment for concurrent crimes prescribed in the crime of rape against victim D with the most serious penalty)

1. Order to complete programs;

The main sentence of Article 16 (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. In light of all the circumstances, such as the fact that there is no record of punishment against a sexual crime, the personal information of the defendant, and the completion of sexual assault treatment programs against the defendant can have the effect of preventing recidivism even if the defendant did, and the defendant's age, family environment, etc., the disclosure and notification order can be achieved relatively less than the disadvantages and anticipated side effects that the defendant will suffer due to the disclosure and notification order, and there is a special circumstance that the disclosure of personal information of the defendant should not be announced because the prevention effect of a sexual crime, etc. can be achieved relatively less than the disadvantages and expected side effects that the defendant will suffer, etc. due to the disclosure and notification order;

Registration of Personal Information

Where a judgment of conviction becomes final and conclusive for the crime of rape, the defendant is a person subject to registration of personal information pursuant to Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes.

Reasons for sentencing

1. The range of applicable sentences under law: Imprisonment for not less than three years nor more than forty-five years; and

2. Application of the sentencing criteria;

(a) Each rape;

General Criteria for Sex Offenses Act, the basic sphere of rapes (general rapes) No. 1 (subject to the age of 13 or older), 2 years and 6 months to 5 years

(b) Each fraud;

Type 1 (less than KRW 100,00) Special Benefit Area (in the case of a crime committed for or repeatedly over an unspecified or large number of victims, the case of causing serious damage to the victim), from 1 year to 3 months from September.

Type 1 (less than KRW 30 million) and Special Diplomatic Zone (in the event that the commission or direction of the commission of the crime was led or led, where the commission of the crime was conducted for unspecified or multiple victims or repeatedly committed for a considerable period of time, where the commission of the crime is very poor, where the victim caused serious damage), 10 months to September 3.

(d) Scope of recommendations according to the standards for handling multiple crimes;

From 3 years to 8 years of imprisonment (in addition to 1/2 of the upper limit of the range of sentence among other crimes, the upper limit of the range of sentence among other crimes, and 1/3 of the upper limit of the range of sentence, the upper limit of the range of sentence among other crimes, however, the lower limit of the recommended sentence is lower than the lower limit of the statutory applicable sentence, and therefore, the lower limit of the applicable sentence shall be set by law).

3. Determination of sentence: Six years of imprisonment; and

The crime of this case is not highly likely to be committed by deceiving the victim C, D, and E to obtain a loan under the name of stock investment, by means of intimidation to sell money in the island, and by threatening the victim C, D, and D to sell money in the event that the above loan interest was not fully paid, and rape was made in the course of threatening to sell money to the island. In addition, the victims suffered a severe economic damage, and the victims C, and D suffered a big mental suffering due to the crime of this case. It is inevitable to pronounce a severe sentence on the defendant.

However, the fact that the defendant has divided and reflected the crime, and that the defendant has no criminal record exceeding the fine, etc. are favorable to the defendant. The punishment shall be determined as ordered by the order, comprehensively taking into account all the factors of sentencing as shown in the records and arguments of this case, including the defendant's age, environment, character and conduct, motive and means of the crime, and circumstances after the crime.