2012No4309 A. Violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission

(b) Fraud;

1.(a) A

2.(a) B

3.(a) L

4.(a) M

5.(a)0

Defendants and Prosecutor (Defendant A and B)

Periodical (prosecution, public trial)

Law Firm S (Defendant A and B)

Attorney T in charge

Attorney BE (for Defendant A)

Attorney BF (Korean Charter for Defendant L, M, orO)

Seoul Central District Court Decision 2012Da3462 Decided November 30, 2012

2012 early 2532, 2533, 2623, 2654, 2772, 273, 274, 2987, 2989

3635, 3723, 3724 Application for a remedy order

April 25, 2013

The part of the lower judgment against Defendant L, M, andO is reversed. Defendant L is punished by a fine of KRW 3,000,000, and Defendant M andO shall be punished by a fine of KRW 4,000,000. In the event that the Defendants fail to pay each of the above fines, the Defendants shall be confined in the workhouse for a period calculated by converting KRW 50,000 into one day.

Seized evidence No. 14 shall be forfeited from the defendant 0.

The above fines are ordered to be paid provisionally to the defendants. All appeals filed by the defendants A, B and the prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendants

The sentencing (the sentencing of the court below (the sentencing of the defendant A: 5 years of imprisonment; the imprisonment of the defendant B; 3 years of probation, the defendant L, M, andO: each fine of the 5,000,000 won) is too unreasonable.

B. The Prosecutor (Defendant A and B)

The sentencing of the court below is unfair because it is too unhued.

2. Determination on the grounds of appeal by Defendant A, B, and Prosecutor

A. We examine the assertion of Defendant A and the Prosecutor together.

In the case of the crime of this case, the amount of damage is about 592 victims, about 35.3 billion won, most of the profits earned by the defendant have not been recovered, most of the victims have not yet been agreed, and according to the sentencing guidelines, the lower limit of the sentencing range of recommendation is at least 5 years and 6 months, etc., which are disadvantageous to the defendant.

On the other hand, there are circumstances favorable to the defendant, such as the fact that the defendant recognized his mistake from the beginning of the investigation to reflect in depth, that the considerable amount of the damage was re-paid by the proceeds, and that the actual amount of damage would be less than the above amount, that 268 victims agreed with the victims (in the trial, 15 additional agreements with the victims), that some victims want the defendant's preference, and that the defendant has no criminal record of suspended execution.

In full view of the various circumstances, including the Defendant’s age, character and conduct, the background, motive, means, and consequence of the crime, and the circumstances after the crime, etc., the sentence imposed by the lower court is deemed appropriate, and it is not recognized that the sentence imposed by the Defendant is too heavy or unreasonable as it is too unreasonable to the extent that the lower judgment should be reversed.

Therefore, the defendant and prosecutor's argument are without merit.

B. We examine Defendant B and Prosecutor’s assertion.

It is highly harmful to the society in that the act of fund-raising without permission has a large number of victims in a short period of time for many unspecified people, and there are many victims suffering from the criminal act of the defendant, most of the victims have not been recovered, and there are still many victims who have not been agreed so far.

On the other hand, there are circumstances favorable to the Defendant, such as the fact that the Defendant committed the instant crime in accordance with the direction of the Defendant A, the Defendant committed the instant crime, and there is no substantial profit from the instant crime, and the first offender committed the instant crime, which is favorable to the Defendant, such as the following: (a) the Defendant committed the instant crime; (b) the Defendant did not have any substantial profit from the instant crime; and (c) the Defendant was the first offender.

In full view of the various circumstances, including the Defendant’s age, character and conduct, the background, motive, means, and consequence of the crime, and the circumstances after the crime, etc., the sentence imposed by the lower court is deemed appropriate, and it is not recognized that the sentence imposed by the Defendant is too heavy or unreasonable as it is too unreasonable to the extent that the lower judgment should be reversed.

Therefore, the defendant and prosecutor's argument are without merit.

3. Ex officio decision (as to the defendant L, M, and0)

Before the judgment on the grounds for appeal by the Defendants was made ex officio, the prosecutor applied for permission to amend the indictment with the content that the Defendants are changed as stated in the following facts constituting a crime. Since this court permitted this, the part against the Defendants in the judgment of the court below is no longer maintained in this respect.

4. Conclusion

Therefore, since the appeal by the defendant A, B and the prosecutor is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. Since the part of the judgment of the court below against the defendant L, M and0 is a ground for ex officio reversal as above, the part of the judgment of the court below against the above defendants among the judgment below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act without examining the grounds for appeal by the above defendants, and it is decided again

【Discretionary Judgment (Defendant L, M, andO)】 Summary of Criminal facts and Evidence

The summary of the facts constituting an offense and its evidence acknowledged by this court is to delete the "Defendant L," "Defendant M," and "DefendantO," respectively, and except for addition of the following in the last part of paragraph 1, it is to accept it as it is in accordance with Article 369 of the Criminal Procedure Act.

A. Defendant L

On April 14, 2009, the Defendant, in collusion with A and B, solicited BG to make an investment at the 8th floor and 11st floor office of the above AO building and received KRW 10 million from the above BG from May 5, 2012, and received KRW 865 million in total from multiple investors through the same method as shown in the crime list (5) in attached Form 48 times from May 5, 2012.

Accordingly, the Defendant conspiredd with A and B to receive the fund without delay.

B. Defendant M

On March 11, 2010, the Defendant, in collusion with A and B, solicited BH to make an investment at the 8th and 11st floor office of the above AO building, and received KRW 10 million from BH from around that time to May 12, 2012, and received a total of KRW 4.22,5 million from multiple investors by the same method as shown in the list of crimes in attached Form (6).

Accordingly, the defendant in collusion with A and B performed the act of receiving money without delay. The defendant is the defendant.

On January 5, 2011, the Defendant, in collusion with A and B, solicited BI to make an investment at the 8th floor and 11th floor office of the above AO building, and received funds of KRW 10 million from BI around that time, and received total of KRW 3 billion from multiple investors by the same method as shown in the crime list (7) in attached Form 151, from around that time to May 9, 201.

Accordingly, the Defendant conspiredd with A and B to receive the fund without delay.

Application of Statutes

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

Defendants: Articles 6(1) and 3 of the Act on the Regulation of Conducting Fund-Raising Business without Permission; Article 30 of the Criminal Act; Selection of fines

1. Detention in a workhouse;

Defendants: Articles 70 and 69(2) of the Criminal Act

1. Confiscation;

Defendant 0: Article 48(1)1 of the Criminal Act

1. Order of provisional payment;

The Defendants: (a) under Article 334(1) of the Criminal Procedure Act, the Defendants’ act of fund-raising without reason for sentencing is highly harmful to society in that they share a large number of unspecified persons in a short period of time; and (b) many victims are suffering from economic difficulties due to the Defendants’ criminal acts; (c) the Defendants are subject to strict punishment by taking into account the following circumstances: (a) the Defendants are in profoundly against each other; (d) the Defendants are also suffering from economic damage; (e) the Defendants are the primary offenders; (e) the amount received is relatively small compared to other office chiefs; and (e) in the case of Defendant L, the amount received is relatively small compared to the other office chiefs; and (e) the Defendants’ age, character and conduct, environment, motive and background of the crime, means and method of the crime and the circumstances after the crime, etc.

Summons of the presiding judge and judges;

Justices Cho Jong-chul

Judges Lee Jeong-hee