(영문) 서울중앙지방법원 2007.4.20.선고 2006고합1469 판결

The 115-day detention days prior to the pronouncement of this judgment shall be included in the above sentence. The charge of attempted fraud among the facts charged in this case shall be acquitted.

Reasons

Criminal facts

The defendant is an attorney-at-law, who does not hold the old currency (referring to the currency created by non-funds at the time of 00) and did not know who holds the old currency, thereby exchanging the old currency at a price lower than its par value (referring to the currency distributed as early February 2002). Even if he received the old currency under the pretext of exchanging it with the old currency with the old currency (referring to the currency distributed as early as early February 2002), he would receive the old currency in the name of 63 buildings located in Yeongdeungpo-gu Seoul High School on February 1, 200 to receive the money under the name of 3 billion won in the name of the defendant's new currency from 200 million won in the name of 5 billion won in the old currency, and he received the old currency from 200 million won in the name of 3 billion won in the old currency, such as 200 million won in the name of 3 billion won in the old currency, and he will exchange the old currency with 3 billion won in the name of 2 billion won in the new currency.

Summary of Evidence

1. Partial statement of the defendant;

1. Legal statement of the witness Kim 00;

1. The chief of the accusation (e.g., the letter of May 1, 2003, the letter of May 20, 2004, the letter of May 25, 2004, the letter of May 25, 2004, the letter of September 23, 2004, the letter of February 5, 2005, the letter of February 19, 2005, and the letter of June 9, 2005, the letter of June 9, 2005, which are attached specially thereto)

Application of Statutes

1. Article applicable to criminal facts;

In general, Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes and Article 347 (11) of the Criminal Act

Article 57 of the Criminal Act

Judgment on the argument of the defendant and defense counsel

1. Summary of the defendant and his defense counsel's assertion

가. 피고인은 2000. 3. 24. 경 엄某의 소개로 피해자와 처음 알게 되었는데, 피해자는 평소 피고인을 존경해 왔다고 하면서 아무런 대가 없이 정치자금을 지원하겠다고 약속한 다음 피고인이 입후보한 제16대 국회의원 총선거 직전에 피고인에게 정치자금 명목으로 별지 범죄일람표 제1, 2항 기재와 같이 합계 10억 원을 교부하였고, 피고인이 국회의원에 당선되자 다시 같은 명목으로 별지 범죄일람표 제3항 기재와 같이 10억 원을 교부하였다 .

나. 그 후 피고인은 2000. 6. 경 엄某로부터 " 피해자가 피고인에게 위 정치자금을 지급한 이유는 피고인이 노00, 박00 등 구 정치권 인물과 친분이 두터우므로 피해자의 구권화폐 교환사업을 도와 줄 수 있을 것이라는 기대 때문이었다 " 라는 말을 듣고 깜짝 놀라게 되었고, 피해자로부터 정치자금을 받은 것이 후일에 문제가 될 수 있다고 판단하여 이를 모두 돌려주려고 생각하였으나, 당시 그 중 일부는 선거자금으로 이미 써 버린 이후였다 .

다. 피고인이 써 준 위 서신들에 기재된 특수자금은 피고인이 피해자로부터 받은 정치자금을 의미하고 그 정치자금을 반환하겠다는 의미에서 써준 것도 아니며, 위 서신들은 엄某 또는 피해자의 개인적 편의를 봐 주기 위한 수단으로 작성된 것이다. 다시 부연설명을 해보자면 엄某는 2003. 5. 경부터 2005. 6. 경까지 사이에 수차례에 걸쳐 피해자에게 피치 못할 개인적 사정이 있다면서 형식적으로라도 " 피해자로부터 이미 지급받은 돈이 ' 특수목적자금 ' 이라는 사실을 인정하고 이를 모두 반환하겠다 " 라는 내용의 편지들을 작성해 줄 것을 부탁하였고, 이에 피고인은 그때마다 엄某에게 위 고소장 첨부 서신들을 작성하여 주었다. 피고인이 위와 같은 서신을 엄에게 써 준 것은 피해자로부터 받은 거액의 위 정치자금은 정치자금법 또는 선거법 위반에 해당할 뿐만 아니라 피고인이 이러한 부탁을 들어주지 않을 경우 엄某 또는 피해자가 정치자금 제공 사실을 외부에 공표함으로써 자신에게 정치적으로 큰 타격이 될 것을 두려워했기 때문이다 .

D. Therefore, the above money that the defendant received from the victim was only political funds, and the defendant did not have obtained money from the victim while referring to the exchange of old money.

2. Determination:

The following circumstances recognized by the evidence duly examined and adopted as follows:

① The Defendant and the victim first known about February 200 or around March. 1, 200, and the victim delivered a large amount of KRW 2 billion on three occasions within a short period of 200,000,000 to the Defendant. ② The Defendant first released to the National Assembly members at the time that he did not have long political experience, and the region where the Defendant released was the victim's right to know of the fact that the Defendant would not have any specific benefit to the Defendant who was elected as a member of the National Assembly. The Defendant sent 20 billion won to the 5th anniversary of the fact that the Defendant would not have been able to receive political funds for 20,000,000,000,000 won for 20,0000,000 won for 4,000,000 won for 20,000,000 won for 20,000,000 won for 20,000 won.

Reasons for sentencing

1. Preferential conditions;

The Defendant had never committed a crime before, and the victim had access to the Defendant that he would benefit from an illegal exchange of old cash, and provided the Defendant with the loan of the Criminal Code of this case.

2. Unfavorable circumstances;

The Defendant committed the instant crime by abusing the fact that it was close to the real situation of the past regime, and the part of the instant crime was committed at the time of acquiring the status of a member of the National Assembly. In addition, the money that the Defendant received from the victim corresponds to a very large amount of KRW 2 billion in total, and the Defendant did not endeavor to repay the said money, and the Defendant did not have to do so by avoiding the responsibility of the victim while denying the crime of scambling.

The acquittal portion

1. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) regarding KRW 1.2 billion on March 16, 2002

A. Facts charged

In fact, even though the defendant was unable to know who is not holding the old face value but holding the old face value, and was delivered money under the pretext of exchanging the old face value with the new face value lower than that of the original face value, notwithstanding the fact that he did not have an intention or ability to deliver the old face value, he had the old face value currency in order to acquire the old face value by scaming the old face value by scaming the old face value, and the victim has the old face value in scam (referring to the former president) and there is approximately KRW 30 billion among them. The present process of exchanging it with the new face value of 60% of the old face value of the old face value is to exchange it if he had the new face value of 60% of the new face value of the new face value of the old face value. On March 16, 202, the defendant acquired the old face value of 639,1200,000 won from the victim and acquired it by 12,12,000 won.

B. Determination

The evidence that seems to correspond to this part of the facts charged is the witness Kim 00, the investigation agency of Kim Young-ri, and this court, and the admissibility or credibility of these evidence.

The defendant, the victim Kim 00, the defendant, from the time of the prosecutor's investigation to the time of this court, shall be March 2002.

16. Around 16. Around 16. Around 100, 00, 120 million won in Shee and 3. There was an agreement between the Defendant and 1.2 billion won that “If the Defendant requested 1.2 billion won and trusted it and delivered 1.2 billion won to the Defendant, the Defendant again returned 10 out of 10,000,000 won as it seems that the Defendant would have been immediately informed of the measure at Shee, and that she would continue to engage in a trade of 1.0 billion won, and two copies are stated that he was returned by returning 1.0 billion won. However, according to each statement and written complaint in the investigation agency of the Defendant and the victim, according to this court, the victim’s statement and written complaint, the method of submitting a written request for remittance to the Defendant is that “where the victim remitted or delivers money for the above recognition to the Defendant” (the method of preparing evidence attached to the Defendant’s complaint).

3. On the other hand, at the time of issuance of 12 copies of the above 100 million won cashier's checks, the defendant prepared a "certificate of borrowing" and around March 16, 2002, the defendant was issued 10 million won cashier's checks from the victim and delivered about 15 days after receipt of 12 copies of the above cashier's checks from the victim, and the defendant appears to have consistently received 12 copies of the above cashier's checks from the investigative agency to this court and consistently stated 12 copies of the above cashier's checks from the defendant to the above court, it is difficult for the defendant to believe that the above self-check's checks were exchanged with old cashier's checks, but the defendant did not return 200 million won after receipt of the above 15 days cashier's checks from the victim's 200 billion won and 25 billion won.

김☆☆은 수사기관 및 이 법정에서 피해자가 피고인에게 위 1억 원권 자기앞수표 12장을 포함한 32억 원을 구권화폐 교환자금 명목으로 교부하였다는 말을 엄某로부터 들었다고 진술하고 있고, 또한 2001. 8. 하순경 또는 9. 초순경과 2003. 가을경에 피고인으로부터 " 수고들 한다. 금방 끝난다. 이 일만 끝나면 모두 잘 살 수 있다. " 라는 말을 들었는데 이는 피고인의 구권교환 작업이 금방 이루어져 모두 잘 살게 될 것이라는 취지로 이해했다고 진술하고 있으나, 김☆☆의 위 진술은 피고인 또는 제3자의 진술을 내용으로 하는 전문진술이고 신빙성이 없으므로 증거능력이 없을 뿐만 아니라 후자 부분은 추측에 불과하며 앞서 인정한 범죄사실 부분에 대한 이야기를 피고인이나 엄某로부터 들은 것이 아닌가 판단되므로 위 부분 공소사실에 대한 증거로서의 가치가 없다 .

In addition, there is no other evidence to prove that the defendant committed the deception of the above method to the victim at the same time and place as above.

2. Part concerning attempted fraud

A. Facts charged

On May 20, 2004, the Defendant demanded the victim Kim 00 to “three persons who are in charge of transporting the right of subscription” KRW 10 billion, and the Defendant’s attempt to remove them for the purpose of confidentiality is changed to KRW 1 billion. The Defendant received KRW 1 billion from the victim for the expenses related to the exchange of the right of subscription and attempted to acquire it by fraud. However, the Defendant did not comply with the request and attempted to acquire it by fraud. The Defendant did not comply with the request and failed to achieve its purpose.

B. Determination

The defendant consistently denies this part of the facts charged from the investigative agency to the court of law, and there are statements in the investigative agency of the witness Kim 00 and the investigative agency of the Kim Do-won and this court that seem to correspond to the above facts charged, and the credibility of the statements is examined.

On May 20, 200, in the prosecutor's office and the court of law, three persons from among those who manage the right of rescue from Noh 00, 00, 00, and Roh 00, from May 20, 2004, demanded the removal of such persons. They have already entered the United States via Japan. They change the cost of removal of those persons. The Kim 00 et al. stated that the Defendant refused this act because he could not participate in such criminal act. However, as seen earlier, as seen in the statement of the Kim Gyeong-dong Special Self-Governing Province, it appears that the Defendant had been an attorney-at-law from August 20 to September 20, 200, and that there was an attorney-at-law's qualification and the Defendant's personal status and career in light of the social status and career of the Defendant who was employed by the National Assembly members and the members of the sports division of the Republic of Korea. Therefore, it is difficult to agree with the above 00-day statement.

김☆☆은 수사기관 및 이 법정에서 2001. 8. 하순경 내지 9. 초순경 " 피고인이 구권을 보관하는 창고비, 운반비 등 비용이 많이 들고 있고 또 그 물건을 보관하고 있는 사람들을 돈을 주어 외국으로 보내야만 소문을 막을 수 있다고 하면서 그 비용으로 5천만 원을 꾸어달라고 한다. " 는 말을 엄某로부터 전해 들었다고 진술하고 있으나, 김☆ ☆의 위 진술은 제3자의 진술을 내용으로 하는 전문진술이고 신빙성이 없으므로 증거능력이 없을 뿐만 아니라 위 부분 공소사실 기재 범행일자인 2004. 5. 20. 보다 근 3년 이전의 시기에 위와 같은 내용의 진술을 들었다는 것이므로 이 부분 공소사실에 대한 증거가 될 수도 없다 .

In addition, there is no other evidence to prove that the defendant committed the deception of the above method to the victim at the same time and place as above.

3. Sub-resolution:

Therefore, some of the facts charged in this case constitutes a case where there is no proof of crime. However, as seen above, inasmuch as the court found the defendant guilty of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), which is related to this comprehensive crime, the court did not render a separate verdict of innocence in the text, and it constitutes a case where there is no proof of crime, thereby not guilty under the latter part of Article 325 of the Criminal Procedure Act

It is so decided as per Disposition for the above reasons.