A. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

(b) Fraud;

(c) Occupational embezzlement;

1.(a)(c) A;

2.2.B

In the case of the Hunting Do Governor (prosecution), the prescribed number of court trials

Attorney Park Jong-ho, and Ba-young (for the defendant A),

Attorney Kim Jong-seok (Defendant B)

May 25, 2018

Defendant A shall be punished by imprisonment with prison labor for four years and by imprisonment for three years.

Criminal facts

【Criminal Power】

1. Defendant A

On October 13, 2017, the defendant was sentenced to imprisonment with labor for a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) in the Seoul Central District Court on October 13, 2017, and the judgment became final and conclusive on March 6, 20

2. Defendant B

On September 21, 2011, the Defendant was sentenced to one year of imprisonment with prison labor at the Incheon District Court for fraud, etc., and completed the enforcement of the sentence on May 1, 2012. On February 16, 2017, the Defendant was sentenced to one year and six months of imprisonment with prison labor at the Incheon District Court for a violation of the Medical Service Act, etc., and the judgment became final and conclusive on July 18, 2017.

Criminal facts

1. The Defendants’ co-principal

Defendant A is the head of the secretariat of the Gu Association D(hereinafter referred to as the “instant Association”) located in Bupyeong-gu Incheon Metropolitan City, and the head of the secretariat of the 'F convalescent Hospital’ established by the said Association (hereinafter referred to as the “instant hospital”), and Defendant B is the representative director of the Association of this case, who operates the instant hospital.

Since the lack of operating funds of the instant hospital, the Defendants were able to borrow funds, and around March 17, 2015, at the I Office of the Seoul Jongno-gu Seoul Metropolitan Government Hah Operation Co., Ltd., Ltd., Ltd., the victim, “Around December 19, 2014, the instant Association acquired the instant hospital from the victim, and the hospital was well operated. The Defendant would pay 36% interest upon lending funds to the hospital. The Defendant made a false statement to the National Health Insurance Corporation that “I will be able to recover the insurance money due to the payment of insurance money.”

However, in fact, the Defendants already borrowed enormous funds from hospital operation funds, and have been liable for a total of KRW 2.8 billion to J et al., and due to the failure to repay this, K Co., Ltd.

On January 26, 2015, the medical expenses of the instant hospital were transferred to the National Health Insurance Corporation) and some of the medical expenses were paid from February 9, 2015 to the National Health Insurance Corporation.

Due to the above situation of hospital operation, the Defendants did not have any intent or ability to pay the interest promised even if they borrowed money from the victim, or to pay the principal.

As above, the Defendants conspired to induce the victim and then deceiving the victim from the victim: ① around March 17, 2015, KRW 150 million; ② by receiving KRW 200 million from the remittance of KRW 200 million around May 12, 2015; and ② by deceiving KRW 350 million in total.2)

2. The sole criminal conduct of Defendant A;

(a) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes;

Around May 15, 2015, the Defendant made a false statement to the victim’s 14th floor office in the management of the victim H H in Paragraph (1) that “A certified judicial scrivener who works for construction registration in his/her L/C office. If the Defendant borrowed money from the Defendant, he/she would temporarily deposit the capital increase of the construction company through the certified judicial scrivener and receive the interest calculated by adding 5-7% to 5% after one week to 20 days.”

However, a certified judicial scrivener who works in relation to the registration of construction has the intention to borrow money as above, and the defendant has the intention to lend money to B and others, not to increase the capital of a construction company.

As above, the Defendant, by deceiving the victim as above, obtained KRW 50 million from the victim around May 15, 2015, ② KRW 50 million around June 23 of the same year; ② KRW 150 million around June 25 of the same year; ④ KRW 60 million around June 30 of the same year; ⑤ KRW 15 million around July 15 of the same year; ⑤ KRW 45 million around July 15 of the same year; 7,7,000 around July 16 of the same year; and ② acquired KRW 150 million from the victim; ② KRW 50 million around August 27, 2015; ② KRW 50 million around April 5, 2007; ② KRW 300,000 around the same year; ② around the same year, around the same year, around 300,000; and ② KRW 500,000 around the same year.

(b) Occupational embezzlement;

From July 2015 to January 2016, the Defendant served as the head of the management support team at the victim I, the management support team, and was in charge of the fund management affairs.

The Defendant embezzled KRW 30,581,850,000,000 on September 16, 2015, and KRW 11,782,250 on July 10 of the same year, and KRW 8,79,60 on November 5 of the same year, arbitrarily remitted the amount of KRW 11,782,250 to the Defendant’s account, and used it for the purpose of repayment of personal debt, etc.

Summary of Evidence

[Article 1 of the Criminal Act at the Time of Sales]

1. Defendants’ partial statement

1. Legal statement of the witness H;

1. Some statements in the suspect examination protocol of the defendant A and B by the prosecution;

1. Partial statements in the police interrogation protocol of Defendant A and B (except for Defendant B’s statements against Defendant A)

1. Each transfer result inquiry (Evidence Nos. 3, 5, 21, and 23), each certificate, each transfer contract, each notice of assignment of claims, each notice of assignment of claims, each claim for payment of takeover claims, each monetary loan contract, each contract for lending money, the search of cases in B, and each public notice of reply;

【Criminal facts No. 2-A of the crime at the time of sale】

1. The defendant A's partial statement

1. Legal statement of the witness H;

1. Some statements made by the prosecution against Defendant A in the suspect examination protocol of each prosecution;

1. Some statements made by the police suspect suspect interrogation protocol against Defendant A;

1. N’s statement or entry in the investigation report (M telephone investigation)

1. Details of each specification of transactions, details of accounts, details of accounts (A Enterprise Banks), details of accounts (0 Enterprise Banks), details of accounts (AP Banks), details of accounts, and text messages;

[Article 2-2-2 of the Criminal Act at the time of sale]

1. Defendant A’s legal statement

1. Legal statement of the witness H;

1. Each transfer result (No. 16, 36 No. 16);

【Prior Records at the Time of Sales】

1. Each judgment, each copy of search and output of integrated cases, each confinement status, each reference to criminal records, and case summary information inquiry;

Application of Statutes

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

A. Defendant A: Articles 347(1) and 30(a) of the Criminal Act; Articles 347(1) and 30(a) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes; Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes; Article 347(1) of the Criminal Act (including the fact of single fraud); Articles 356 and 355(1) of each Criminal Act (the fact of occupational embezzlement and the

B. Defendant B: Articles 347(1) and 30 of the Criminal Act

1. Aggravation for repeated crimes;

Defendant B: Article 35 of the Criminal Act

1. Handling concurrent crimes;

Defendants: the latter part of Article 37 and Article 39(1) of the Criminal Act

1. Aggravation for concurrent crimes;

Defendant A: The punishment provided for in the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act is the most severe penalty provided for in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

Judgment on the Defendants and their defense counsel's arguments

1. The criminal facts of the judgment (the criminal defendant's joint fraud)

A. As to the defendant A and his defense counsel's assertion

1) Summary of the assertion

Defendant A merely introduced the victim to B upon the request of the person who is entitled to lend the operating funds of the hospital from B, and was unaware of the fact that it was difficult to operate the instant hospital because he did not participate in the instant association or the instant hospital management, and thus there was no intention to invite the Defendant B to commit the crime of fraud or to defraud the money from the victim.

2) Determination

In full view of the following circumstances recognized by the evidence duly adopted and investigated by this court, the above argument is not accepted since it can be sufficiently recognized that Defendant A conspired with Defendant B, thereby deceiving the victim, thereby taking the money stated in paragraph (1) of the crime committed by the victim.

① The victim stated in this court that “Defendant A, as the secretary general of the instant Association and the hospital, carried out accounting affairs, such as the authorized certificate of the instant hospital, the OTP, and the actual approval of funds.”

② Defendant A, while working at the accounting office upon Defendant B’s request, was assigned to the secretary general of the Association in charge of accounting affairs, and was appointed to the director on November 7, 2014. After that, on December 4, 2014, the Association of this case transferred the instant hospital to the Plaintiff, and there was the office of the Association in the same building as the instant hospital (Defendant B’s statement: 2: evidence record No. 197, Defendant A’s statement No. 280, evidence record No. 1: evidence record No. 2). In light of the fact that Defendant A paid interest on the borrowed amount of the instant hospital to the victim in the name of the Association, Defendant A appears to have been in the position of sufficiently aware of the financial situation of the instant hospital as its officers.

③ Defendant A asked Defendant A to introduce funds necessary for the instant hospital to the lender of the instant hospital. As can be seen, Defendant A was involved in the financial operation of the instant hospital as an executive officer of the instant association.

④ In the first investigation of the police, Defendant A presented the statement to the effect that “The claim amount is not entered by the Corporation, and Q enters the Corporation.” (Evidence No. 2: 186 pages) In the first investigation of the Prosecutor’s Office, Defendant A explained that the victim had profits from the hospital of this case by considering the current status of monthly insurance claims against the Health Insurance Corporation of the hospital of this case before the victim first borrowing money from the victim. (Evidence No. 1:284 pages) In the second investigation of the Prosecutor’s Office, Defendant A asked Defendant B to take over the hospital of this case, and asked the financial statements to the effect that “The Defendant B took over the hospital of this case.” (Evidence No. 1: 4. 479 pages of the evidence record), Defendant A stated that “The Plaintiff had no knowledge of the financial situation of the hospital of this case,” and Defendant A made no statement to the effect that “The Plaintiff had no knowledge of the fact that the instant claim was transferred to the victim.”

6) Defendant B stated in the first investigation of the prosecution that “Defendant A managed the corporate passbook of the instant hospital, carried out the tax ledger of the instant hospital, and was well aware of the details of the hospital’s obligations and the details of the assignment of claims” (Evidence No. 1, No. 434).

7) While Defendant A was not related to the borrowing of the operating funds of the instant hospital from the victim, Defendant A drafted a monetary loan agreement (Evidence 2:54 pages) with the debtor, stating that “The victim entered into a monetary loan agreement between the parties involved in the repayment of the borrowed loan of the instant hospital and the parties involved in the repayment of the borrowed loan of the instant hospital,” Defendant A:

B. As to Defendant B and his defense counsel’s assertion

1) Summary of the assertion

Defendant B introduced the victim through Defendant A, and borrowed the money listed in Paragraph (1) of the criminal facts stated in the judgment from the victim as the operating fund of the instant hospital. However, at the time of borrowing the money, Defendant B explained that the economic situation of the instant hospital is difficult and that there is a large number of debtors against the instant hospital. The victim was well aware of the financial situation of the instant hospital, such as finding and confirming the fact that the victim was well aware of the financial situation of the instant hospital, so there was no fact that Defendant B deceiving the victim.

2) Determination

In full view of the following circumstances recognized by the evidence duly adopted and investigated by the court, the above argument is rejected, since the defendants could fully recognize the fact that they acquired the money stated in paragraph (1) of the crime committed by the victim by deceiving the victim of the financial situation of the hospital of this case.

① In the first investigation of the police, Defendant B stated to the effect that “Is himself/herself acquired a convalescent hospital on December 19, 2014, and because Is himself/herself operated the hospital well, I would pay 36% interest when Is himself/herself lend money to the hospital. When Is himself/herself to the National Health Insurance Corporation, I borrowed money from the victim (Evidence 197) while Is himself/herself to the effect that “Is himself/herself, once Is himself/herself recovered insurance claims from the National Health Insurance Corporation, Is himself/herself, and Is himself/herself to the effect that Is himself/herself was unable to operate the hospital, excessive interest burden, and that Is many creditors were prior to the receipt of the hospital (Evidence 199).”

② The victim consistently stated in the investigative agency and this court that “the Defendant was not aware of the fact that the claim, such as medical care benefits, for the National Health Insurance Corporation, was transferred or seized to him/her, and that the Defendant was able to repay the borrowed amount due to the operation of the hospital.”

③ On the other hand, around March 17, 2015, the victim lent KRW 150 million to Defendant B, and around May 12, 2015, respectively. On the same day, the Defendants participated in the contract for a monetary loan of which the instant hospital is the debtor from the place where the Defendants were the debtor, and Article 4 of the contract was stated to the effect that “where principal is not repaid, the principal shall be recovered by provisionally seizing the claim for medical care benefits, etc. against the National Health Insurance Corporation of the instant hospital” (Evidence 2, 31, 38 pages of evidence record).

However, regarding the above medical care benefit claims, etc., the above claims were seized from K to the National Health Insurance Corporation on January 26, 2015, and were repaid from February 9 of the same year to the National Health Insurance Corporation from February 9 of the same year, and from April 2015, J received the seizure and collection order, so there was no ability to provide the above medical care benefit claims as security to the victim.

(4) If the victim knew that his claim to be offered as security has already been transferred or seized to another person, it would not be possible to lend a large amount of money exceeding KRW 350 million without any other collateral solely with the phrase such as Article 4 of the monetary loan contract and Article 4 above. Defendant B stated that, around March 17, 2015, the victim would have infringed on the right of management and would use the money for the purpose of full payment to the creditor who borrowed the money for the purpose of full payment to the creditor.” While recognizing that the amount was borrowed KRW 150 million from the victim, it was not used for the purpose of full payment to J, it was not used for the repayment of the money, but for the repayment of the debt, such as all kinds of loans and credit card payments, etc. of the hospital of this case, and there is no circumstance that the Defendants told the victim to actually use the money borrowed from the victim.

2. Article 2-1 (Separate Fraud of Defendant A) of the facts constituting the crime as indicated in the judgment;

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

1) Since Defendant A borrowed money from the victim and used it for the purpose of investment in the client after the victim stated that it was used for the capital increase of the construction company and for the purpose of investment in the client, Defendant A did not deceiving the victim.

2) Defendant A borrowed money from May 15, 2015 to July 16, 2015 (total amount of KRW 375 million) from the victim from around May 15, 2015 to around August 17, 2015, Defendant A agreed to settle the accounts with the victim that there is no debt relationship any longer with the victim after completing all repayment, and the amount borrowed from the victim from August 27, 2015 to October 7, 2016 (total amount of KRW 280 million) refers to the victim’s temporary lending of money necessary for the increase of capital, etc. of the construction company with the victim and paying the proceeds of 5 to 57%. Thus, the singleness and continuity of the crime committed during each period cannot be included.

B. Determination

1) In full view of the following circumstances acknowledged by the evidence duly adopted and investigated by this court as to whether Defendant A borrowed money to the victim for the purpose of investment in the customer in addition to the capital increase in the construction company, it is difficult to view that Defendant A made a statement that Defendant A would use the money for the purpose of investment in the customer to the victim, and it can be recognized that Defendant A used the money as the capital increase in the construction company and acquired the money from the victim. Accordingly, this part of the allegation

① The victim consistently stated from the investigative agency to this court that “it is not true that Defendant A borrowed the instant money as the price for the capital increase of a construction company and made an investment in the customer”.

② In the fourth investigation of the police, Defendant A made a statement to the effect that “the victim would have made a profit from using the capital increase of a construction company and making an investment in the customer,” and explained to the effect that “the details of the remittance from the victim to another person are the details of the payment of investment to the principal and interest from the customer, and the details of the remittance from the other person are the details of the payment of the principal and interest from the customer.” However, from among the people who alleged to be one of the “transactions in which the Defendant made an investment,” the fact that the remittance from the Defendant and the other party had been erroneous has become final and conclusive. Accordingly, the Defendant’s conviction was final and conclusive in relation to “A”, not to make an investment from the victim to the customer, but to pay interest or revenue from the same investor as T which he made an investment to the victim, it is difficult to say that the Defendant had received an investment from the victim for the purpose of return of the money from the Defendant.”

③ In the first investigation by the prosecution, Defendant A made a statement to the effect that “The victim borrowed money from the victim for the purpose of running the business of directly lending the capital for the establishment of a construction company with S of the Gimpo registry office, and the victim was unaware of such fact.” (Evidence No. 1, No. 288 pages).

(4) On the other hand, on May 7, 2015, Defendant A sent a text message to the victim, “The Fund is ordered to be corrected by the registry office of the court in order to make the correction. The Fund shall be arranged on the Tuesday, and the fee shall be collected in addition to one protocol.” On December 31, 2015, “Registry is waiting for registration at the present Kimpo. The registry office shall be waiting for registration at Kimpo. I will receive the passbook and seal.” (Evidence No. 116 of the Evidence No. 116). The Defendant sent a text message to the victim, “The Fund shall be paid to the victim before or after the loan,” and the conversation on the premise that it was used or used by the customer does not appear to be any circumstance.

2) Whether this part of the fraud crime is a blanket crime

A) Relevant legal principles

In the case of fraud, in which the money is acquired through deception several times against the same victim, if the criminal intent is single and the method of the crime is the same, only the comprehensive crime of fraud is established, and if the single and continuous nature of the crime is not recognized or the method of the crime is not the same, each crime constitutes a substantive concurrent crime (see, e.g., Supreme Court Decision 9Do4862, Feb. 11, 2000).

B) Specific determination

Examining the following circumstances acknowledged as the result of the examination of evidence by this court in light of the aforementioned legal principles, it is reasonable to view that Defendant A’s fraud crime from May 15, 2015 to July 16, 2015 and fraud crime from August 27, 2015 to October 7, 2016 constitute a single criminal intent, and that the method of crime is the same as a single one, and thus, it is not acceptable to accept this part of the assertion. ① The victim was not recovered from the investigative agency and this court from May 15, 2015 to July 16, 2015, and the victim made a statement to the effect that “The victim would directly proceed with the Defendant A, who is an employee of the registry office, except for the case where:

② From May 15, 2015 to July 16, 2015, Defendant A entered into an agreement on the settlement of the amount borrowed from the victim (total of KRW 375 million) upon completion of the repayment on August 17, 2015. However, Defendant A and his/her defense counsel did not present any materials to prove that there was such agreement. Meanwhile, Defendant A and his/her defense counsel did not agree on the settlement of the amount of the borrowed amount (from May 15, 2015 to July 16, 2015) by paying the amount of KRW 100 million to the victim on August 29, 2015. However, this part of the repayment does not coincide with that of Defendant A’s prior settlement of the borrowed amount after borrowing KRW 150 million from the victim on August 27, 2015.

(3) Defendant A borrowed all of the amounts stated in Section 2-A (A) of the criminal facts stated in the judgment by the victim under the same name as it is necessary to increase the capital of the construction company to pay to the registry, and in the process, it cannot be said that the method of crime is different solely on the basis that Defendant A was carrying out other figures such as 'certified judicial scrivener' and 'S'. Rather, the method of deception is the same in that both 'certified judicial scrivener' and 'S' are the figures (Evidence No. 489 pages of evidence record) of the capital.

(4) Ultimately, from August 27, 2015, Defendant A’s borrowing of money from the victim from around August 27, 2015 on the ground of the approval of “S” is reasonable to deem that there was a motive to maintain the state of deceiving the victim by avoiding the suspicion of the victim of the previous fraud of money against the victim.

Reasons for sentencing

1. Defendant A

(a) The scope of applicable sentences by law: Imprisonment for not less than three years nor more than 45 years; and

B. Non-application of the sentencing criteria: Inasmuch as there is a concurrent crime under the latter part of Article 37 of the Criminal Act, the sentencing criteria do not apply.

(c) Determination of sentence: Four years of imprisonment; and

○ Unfavorable Conditions

The defendant shall obtain by fraud the sum of more than one billion won from the victim over several times;

In managing the funds of the victim company, the nature of the crime is not good by embezzlement of more than KRW 30 million. The investigation agency made a false statement on the crime of fraud by citing false facts, and even in this court, it still does not seem to have an attitude to deny the crime and reflect it at all. In most cases, most of the principal was not repaid in the case of the joint fraud, and the single fraud is not entirely recovered, and the economic suffering of the victim is prolonged.

In the case of joint fraud in favorable circumstances, KRW 4,100 was repaid as interest, and in the case of a single fraud, KRW 56,000,000 was repaid as principal and interest. In the case of an embezzlement, the criminal defendant recognized his/her mistake, fully repaid the amount of damage, and the representative H of the victim company revoked the criminal complaint at the investigation stage. There was no record of punishment for the same kind of crime before the judgment became final and conclusive. The equity should be taken into account when judgment is to be rendered.

Considering the above circumstances and comprehensively taking into account the defendant's age, environment, character and conduct, family relation, motive and background of the crime, method and method of the crime, and circumstances after the crime were committed, the punishment shall be determined as ordered by the text.

2. Defendant B

(a) The scope of punishment by law: Imprisonment with prison labor for not more than 20 years;

(b) Non-application of the sentencing criteria: The sentencing criteria shall not apply as there is a concurrent offense relationship under the latter part of Article 37 of the Criminal Act.

(c) Determination of sentence: Imprisonment with prison labor for three years; and

○ Unfavorable Conditions

Although the Defendant did not have the attitude of denying and opposing the crime by deceiving the victim a sum of KRW 350 million from the victim, it does not seem that the Defendant committed the crime. After having been sentenced to one year of imprisonment due to the same crime of fraud, the Defendant committed the crime of this case again during the period of the repeated crime, and there is a number of punishment records. The principal is not repaid at all, and there still remains a lot of damage to the victim.

Of the normal wage in favor of ○○, KRW 4,100 has been repaid as interest. The equity should be taken into account with the case where the judgment has become final and conclusive together with the case where the judgment has become final and conclusive.

Considering the above circumstances and comprehensively taking into account the defendant's age, environment, character and conduct, family relation, motive and background of the crime, method and method of the crime, and circumstances after the crime were committed, the punishment shall be determined as ordered by the text.

The presiding judge; and

Awards and Decorations for Judges

Judges Lee Jong-deok

1) Although the facts charged are indicated as attaching claims on medical expenses, the reply of the National Health Insurance Corporation is examined.

National Health Insurance Corporation shall collect medical expenses to be paid to a third party without separating the transfer of claims, seizure and collection order, etc.

It appears that the rights can be expressed as ‘the cost of seizure and treatment', and in the repayment to K corporation, the cause of such repayment is the claim.

As "transfer" is expressed (as evidence Nos. 2, 253, 195) and therefore K acquires the above claim.

It is reasonable to view these facts charged as impeding the Defendants’ exercise of their right of defense. As such, a separate public order is not sufficient.

Without changing the complaint, this part of the facts charged is revised as above.

2) In a written application for changes in indictment filed on April 16, 2018, the prosecutor applied for changes in indictment filed on September 7, 2015, KRW 10 million around September 7, 2015, and September 11, 2015.

An application for changes to a bill of indictment was filed with respect to the exclusion of 20 million won by fraud, and this Court has not been prosecuted on the third trial date.

The revision was permitted.

3) In the application for changes in indictment filed by the prosecutor on April 16, 2018, the part concerning the defraudation of KRW 10 million from August 6, 2015 to the charges in this part of the indictment.

They applied for amendments to Bill of Indictment, and this court permitted amendments to Bill of Indictment on the third trial date.

4) Furthermore, according to the response to the commission of document forwarding to the branch office within the branch office of the Suwon District Prosecutors' Office of this Court, Defendant A is a witness investigation.

The Association of this case stated that it was involved in the process of acquiring the hospital of this case and the accounting management of the hospital of this case.

(f).

5) The amount repaid to K by the National Health Insurance Corporation until March 17, 2015, which was first borrowed from the victim, is about 40 million won.

Not less than KRW 13 million but the amount repaid by May 12, 2015 reaches approximately KRW 1.148 billion. Defendant B against this.

In the case of the instant hospital’s debt to K, a part of the claim actually transferred (500 million won in the investigative agency)

(C) It is excessive, and K has received medical care benefits, etc. from the National Health Insurance Corporation and appropriated part of its claims.

Although the remainder was paid to the instant hospital, it was very exceptional method of reimbursement, and it was proved that it was a method of proof.

The argument is doubtful because there is no evidence to provide it. In addition, in such a form, the hospital of this case is in K.

If the debt was repaid, the victim actually provided all of the medical care benefit claims to K as collateral.

It seems difficult to offer the above bonds as security to the public.

6) Reference to the judgment of 464 pages (Evidence Nos. 99) of evidence records, and Defendant A’s question of these contents

It did not explain as mentioned above (see the second prosecutor's interrogation protocol against the defendant A).

7) Defendant A’s counsel’s written opinion on March 15, 2018