2017No1841 Fraud (recognised fraud) and Violation of the Door-to-Door Sales, etc. Act

An application for a compensation order, such as 2017 early 1335

South 00

Prosecutor

The above 00 (Lawsuits) and Kim 00 (Trial)

Law Firm 00, Attorney Park 00

It is as shown in the list of applicants for compensation in attached Form.

Seoul Eastern District Court Decision 2016Da3177 decided November 20, 2017, 2016

early 1005, 1025, 1109, 112, 1157, 1216, 1219, 2017 early 13,60;

125 through 132, 135, 136, 149, 178, 199, 219, 222, 228, 245, 26

19,285, 301, 404, 405, 408, 409, 453, 461, 51, 967, 968, 976;

1015, 1023, 1024, 1025, 1026, 1034, 1036, 1048, 1064, 1071, 1071

079, 1080, 1093, 1094, 1095, 1102, 1103, 1140 through 1143, 115

8, 1159, 1173, 1174, 1179, 1180, 1184 through 1188, 1191, 1201;

1214, 1215, 1216, 1241, 1294, 1299

May 11, 2018

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for ten years.

Seized evidence 17 and 19 shall be confiscated.

All applications for compensation by applicants for compensation in the trial of the party shall be dismissed.

1. Summary of grounds for appeal;

A. Error of mistake

Although the Defendant, as the head of the branch office, recognized that the Kim 00 business was a law to prevent the return of the Kim 00 business through regular meetings between Kim 00 and the heads of the branch offices, it was recognized that the victims would make an investment to Kim 00, while recognizing that Kim 00's overseas business was raising a large amount of income, the lower court acquitted the victims of each fraud among the facts charged in the instant case, which erred by misapprehending

B. Legal principles

Although the Defendant was found to have committed prohibited acts under Article 24(1)1 of the Door-to-Door Sales Act (hereinafter “Door Sales Act”) by making monetary transactions without trading goods, using an organization composed of persons who are similar to multi-level marketing organizations by stages, the Defendant was not guilty of violating the Door-to-Door Sales Act among the facts charged in the instant case, the lower court erred by misapprehending the legal doctrine, which affected the conclusion of the judgment.

(c) Failure of hearing and violation of procedures;

The court below failed to make a decision on the resumption of hearing and ex officio examination of evidence by the prosecutor, and requested an opportunity to present opinions on the violation of the Door-to-Door Sales Act, but it did not accept it. The court below erred in the incomplete hearing and the progress of the procedure.

2. Ex officio determination

The grounds for appeal shall be examined ex officio prior to the judgment.

The prosecutor added a public contest relationship with Kim 00 and reduced the amount of fraud and the amount of transaction as stated in paragraphs (1) and (2) of the previous facts charged which the court below acquitted at the time of the trial at the trial at the trial at the court below, and applied for changes in indictment with the contents of Article 347 (1), Article 32, Article 37, and Article 38 of the Criminal Act, and Article 347 (1), Article 32, Article 37, and Article 38 of the Criminal Act, and Article 347 (1), Article 37 (1), Article 37, and Article 38 of the Criminal Act as stated in paragraph (1) of the same Article, and since this court was modified by permission, the judgment of the court below no longer maintained

The above indictment shall be examined in order to judge the main facts charged by the prosecutor, the reason for appeal against the violation of the Door-to-Door Sales Act, and the ancillary facts added by a party member according to the above indictment amendment.

3. Judgment on the prosecutor's misconception of facts and misapprehension of legal principles

A. Amended charges No. 1)

The defendant is the head of the " Future branch office of Adi Span Holdings Co., Ltd. (hereinafter referred to as the "Adi Span Holdings") established for the purpose of electronic commercial transactions, etc. in Seoul 000-Gu 0000 23 stories (00 dong, 000 dong, 000 buildings).

On August 22, 2013, the Defendant: (a) around August 2, 2013, at a branch office in the future, the “ future office of ADS Holdings’s headquarters office; (b) raising a large amount of overseas business, such as the FX M& brokerage business of AD Holdings, the representative of which is Kim00; (c) invested more than KRW 10 million in the business, the Defendant would make an investment in profit-making business, such as foreign exchange margin trading business; and (d) pay 2% of the monthly investment amount to the profits dividends therefrom.

However, in fact, Kim 00 did not have any assets or profit-making business to the victims, and there was no possibility of realizing considerable profits in a short period due to lack of success possibility. In addition, even if the Defendant did not receive funds from other investors in the way of return "the so-called "the return suspension period" after December 2, 2011, established a foreign corporation, established a foreign corporation from around September 201, and conducted an overseas business, such as the FX M&C brokerage, etc., and did not receive funds from the victims, and even if he did not receive funds from the victims, he did not receive funds from the victims for the actual purpose of the investment, he did not use funds from the funds from the domestic corporation from the overseas corporation, and even if he did not receive funds from the victims, he did not receive funds from the domestic corporation as the principal or profit-making business for the purpose of the investment, and even if he did not receive the funds from the victims, he did not use the funds from the overseas investment intermediary in return for the principal or profit-making business.

Nevertheless, the Defendant, as above, by deceiving the victim as the victim, had the victim pay KRW 10,00,000 in the Cit Bank account (110239272******) under the pretext of investment.

Accordingly, the Defendant, in collusion with Kim 00, received a total of KRW 135,724,480,000 from the victims for investment money, from around August 25, 2016, from that time to around August 25, 2016, a total of KRW 135,724,480,00 from the victims, such as the separate list of crimes. 2) The lower court’s judgment was rendered.

The lower court determined that this part of the facts charged constituted a case where there is no proof of a crime, on the grounds that it was insufficient to view that the Defendant conspired with Kim 00 or that the business of Kim 00 was the fraud.

3) Determination of the immediate deliberation

In order to constitute a joint principal offender under Article 30 of the Criminal Act, it is necessary to conduct a crime through a functional control based on the joint doctor. Here, the intention of joint process is insufficient to recognize another person's crime and to accept it without restraint. It should be one of the two with intent to commit a specific criminal act as a joint doctor (see Supreme Court Decision 2002Do7477 delivered on March 28, 2003, etc.). Considering the case back to this case and the above judgment of the court below compared with records, the evidence alone submitted by the court below is insufficient to deem that the defendant conspired with Kim 00 is insufficient. Since it is insufficient to reverse this only by the evidence submitted by the prosecutor in the trial, the prosecutor's additional opinion does not affect the conclusion of the judgment, and there is no error of law as to this part of the facts charged by the prosecutor, as it pointed out in the judgment of the court below.

(b) Changed charges of violation of the Door-to-Door Sales, etc. Act;

The defendant is a branch office of " Future" established for the purpose of electronic commercial transactions, etc. in Seoul 00-Gu 0000 23 stories (000 dong, 0000 buildings).

No person shall engage in any financial transaction without any transaction of goods, etc., or engage in any gold transaction only by pretending any transaction of goods, etc. using a multi-stage organization or any similar organization that is comprised of persons who have joined a multi-stage group.

Nevertheless, Kim00 provided, at the 83th floor of the Yeongdeungpo-gu Seoul Metropolitan City City, the office of A.S. S.S., the office of E.S. P. P., and 18 branch offices in Seoul, the branch office in accordance with the investment attraction performance for each branch office, the head of the branch office as the head of the headquarters, and the head of the headquarters as the head of the branch office, the head of this division, and the head of the team, with a multi-level business organization consisting of some of the persons he/she has retained as the team leader, and Kim0 paid 5% or 7% of the monthly investment attraction to each branch office, the head of the headquarters, the head of the team, and the head of the team, and the head of the group.

Accordingly, the Defendant, as the head of a branch of “ Future” branch, uses the aforementioned multi-level organization, raises a large amount of profit from overseas business operated by Kim00, such as FX M&C brokerage business. When investing in the business of Kim 00, the Defendant, as described in the preceding paragraph, guaranteed the profit-making dividend of 1-10% per month and returned the principal after one year, and when recruiting subordinate investors after making an investment, he/she is entitled to collect money for a short period of 12 months by dividing the amount of 3% of the invested principal by class, and then, he/she receives money for a short period from August 22, 2013 to August 25, 2016.

Accordingly, in collusion with Kim 00, the Defendant traded money without trading goods, etc. using a multi-level similar organization (no hindrance exists to the Defendant’s exercise of the right to defense, thereby revising part of the facts charged).

2) The judgment of the court below

The court below, based on its reasoning, on the ground that the act of receiving money from an organization, other than a sales organization composed of persons who are members of a multi-level marketing organization by stages similar to that of a multi-level marketing organization, does not constitute an act prohibited by Article 24(1)1 of the Door-to-Door Sales Act,

the court determined that the case constitutes friendly.

3) Acts and subordinate statutes applicable to the review determination

Door-to-Door Sales Act applicable to this case (wholly amended by Act No. 11324, Feb. 17, 2012) and amended by Act No. 11324, Feb. 201

8. Article 24(1) of the same Act (hereinafter the same shall apply) provides that no one shall commit any of the following acts by using a multi-level marketing organization or any similar organization that is comprised of persons who have joined a multi-level marketing organization or any similar phase-by-step.

Meanwhile, Article 2 subparag. 5 of the Door-to-Door Sales Act refers to selling goods, etc. through a sales organization (multi-level marketing organization) that meets all the following requirements. A. There is a recruitment method whereby a sales organization affiliated with a sales business entity solicits a specific person to join as a subordinate sales organization of the relevant sales organization; (b) a sales organization under item (a) is admitted into at least three stages (the first stage sales organization, in which a sales organization joined as a sales organization without being solicited by any other sales organization).

"A sales business entity shall pay bonuses that fall under subparagraph 9 (b) or (c) to a sales business entity." Article 2 subparagraph 9 of the same Act refers to economic benefits that a sales business entity pays to a sales business entity in relation to the following matters, irrespective of the names and forms of payment, such as sales allowances, brokerage fees, incentives, and support payments. (b) The details of other sales business entities' transactions of goods and services that affect the sales business entity's bonus, and (c) the results of other sales business entities' organizational management, education, and training that affect the sales business entity's bonus.

B) Determination

Comprehensively taking account of the language and text of the above applicable statutes and the evidence duly adopted and examined by the lower court, the Defendant’s act of performing only monetary transactions without any transaction of goods, etc. by using an organization similar to the multi-level marketing organization prohibited by the Door-to-Door Sales Act, in collusion with Kim0, and thereby, can be sufficiently recognized as violating Article 24(1)1 of the Door-to-Door Sales Act.

Therefore, the judgment of the court below which acquitted the Defendant of this part of the facts charged is erroneous in the misapprehension of legal principles, which affected the conclusion of the judgment, and thus, the prosecutor’s allegation of the misapprehension of legal principles is with merit. (1) Kim 00 established and operated A. S. A. S. A. on February 208, and operated its business.

19. From January 2, 2012 to August 27, 2014, the Hong Kong established KIS and started the FX MI business, and it is reasonable to view that Kim 00 began to solicit large-scale investment money on the basis of criminal facts (Seoul Central District Court Decision 2014Da11130, Seoul High Court Decision 2015No1850, Supreme Court Decision 2016Do2786).

( 2 ) 김00은 각 지점을 통하여 투자자들로부터 투자금을 모집하였는데, 각 지점은 지점장, 본부장, 팀장, 모집책 등의 단계적 구조를 가지고 있었고, 김00은 그룹장 ( 유00 ) 으로 하여금 지점들을 관리하도록 하였다. 김00은 투자자들로부터 모집한 투자금 중 일정한 비율 ( FX 마진거래 사업은 5 ~ 5. 2 %, 셰일가스 사업은 7 %, 오퍼튠 사업은 4 ~ 4. 2 % ) 을 매월 각 지점에 보내 투자자들에 대한 수익금과 지점장, 본부장, 팀장, 하위 모집책 등의 수수료 지급 등에 충당하도록 하였다. 김00은 투자자들에 대한 수익금과 투자를 직접 유치하였거나 투자유치조직을 관리하면서 투자유치활동을 하는 지점장 , 모집책 등에 대한 수수료의 지급을 체계적으로 관리할 수 있는 투자관리시스템을 직접 개발하였고, 각 지점에서 투자자들에게 지급할 수익금 비율, 해당 투자자를 모집한 모집책 등에게 돌아갈 수수료, 지점장이 가져갈 비율 등을 정해오면 이를 승인해 주었다 . ( 3 ) 김00이 개발한 투자관리시스템에 의하면 투자자에게 지급될 수익금 외에 각 투자자 별로 2 ~ 5명 정도의 ' 수혜자 ' 들이 기재되어 있고, 각 ' 수혜자 ' 들에게 돌아갈 수수료 비율도 기재되어 있는데, 위 ' 수혜자 ' 들은 각 투자자 별로 투자를 유치하였거나, 투자조직을 관리하고 있는 지점장, 팀장 등이다 . ( 4 ) 김00은 신규투자자를 유치하였는지 여부와 관계없이 매월 수수료를 각 지점에 지급하였는데, 김00이 지급하는 수수료에는 투자금을 모집한 팀장 또는 모집책 등에게 지급하는 투자유치에 대한 대가로서의 수수료와 팀장 또는 모집책 등을 관리하는 상위의 지점장 등에게 하위 팀장 또는 모집책들이 유치한 투자금의 일정 비율로 지급하는 수수료 등이 포함되어 있다 .

(5) Each branch office has been organized in such a phased manner as the Kim 00 appointed an investor as a specific branch office. The branch office head was appointed from among those who attract more than a certain size of investment from other investors. The Defendant also was appointed as a branch office through the above process, and the Defendant was also paid a certain percentage of the investment funds raised by the team leader, etc., in addition to the Defendant’s profits from the investment funds, as described in this part of the facts charged. The Defendant, as described in this part of the facts charged, was designated as the head of the headquarters, team leader, etc. Meanwhile, the Defendant, as a branch office head, designated a person who attracts more than a certain size of investment funds from other investors among the investors of the branch offices. (6) Kim 00 and the heads of the branch offices, including the Defendant, discussed how to attract investors and the management of investors through regular meetings.

(7) Although the structure of Kim 00 and the defendant's attracting investors does not meet all the requirements of multi-level marketing organization under the Door-to-Door Sales Act, Kim 00 and the defendant, using the investment solicitation structure of ADS Holdings, such as a branch office, main office, head of this division, team leader, and solicitation policy, ' Future' comprised of persons by stages, such as branch offices, etc., 'the future', 'the investment solicitation structure of ADS Holdings', 'for investors, the head of the team or recruitment policy, etc. who has engaged in the business of soliciting investors, are entitled to receive investment from investors in such a way as to pay for investment attraction money. Such a form of organization is substantially similar to the multi-level marketing organization as stipulated under the Door-to-Door Sales Act. (8) Kim 00, through each branch office, "the defendant, including the amount induced as described in this part of the facts charged," and each of its sub-branches through the door-to-Door Sales Act.

11. From around 21 to September 4, 2016, 35, 448 occasions, “In violation of the Door-to-Door Sales Act by attracting 1,098, 250, 544, 950 won in total,” the above judgment was finalized (Seoul Central District Court Decision 2016Da932, Seoul High Court Decision 2017No595, 2017Do1623). Meanwhile, considering the terms used in Article 24(1) of the Door-to-Door Sales Act, the ordinary meaning of the terms, and the mode of arrangement thereof, it is reasonable to interpret only 70 items of goods to constitute “an act of selling 97 items of goods” or “an act of selling 20 items of goods, such as money, which is the core requirement of a multi-level marketing organization,” and to interpret only 90 items of goods to constitute “an act of selling 9.7 items of goods, etc.”

4. Determination as to each of the ancillary charges, which constitutes fraud

A. Facts charged

The defendant is a branch office of " Future" established for the purpose of electronic commercial transactions, etc. in Seoul 00-Gu 0000 23 stories (000 dong, 0000 buildings).

On August 22, 2013, the Defendant: (a) around August 2, 2013, at a branch office in the future, the “ future office of ADS Holdings’s headquarters office; (b) raising a large amount of overseas business, such as the FX M& brokerage business of AD Holdings, the representative of which is Kim00; (c) invested more than KRW 10 million in the business, the Defendant would make an investment in profit-making business, such as foreign exchange margin trading business; and (d) pay 2% of the monthly amount of monthly investment as dividends.

However, in fact, Kim 00 has no assets or profit-making business to pay high-rate profits to the victims, and there was no possibility of realizing considerable profits within a short period of time due to lack of success possibility, and there was no possibility of realizing the principal and interest of other investors in the following methods: (a) repayment of the principal and interest of other investors; (b) repayment of the principal and interest of the investment funds; and (c) repayment of the loan funds from the victims, etc. after September 2, 2010 through the establishment of a foreign corporation from around September 2, 201 to the domestic account from around September 2, 2016 to the overseas corporation; and (c) repayment of the loan funds for the purpose of investment trading; and (d) there was no intention to use or receive the loan funds from many investors including the victims, etc. for the purpose of investment trading; and (e) there was no possibility of using or operating the loan funds for the purpose of investment trading in a short period of time.

As a branch of "AX M&S future" branch, the Defendant did not properly confirm whether Kim 00 properly invests investors' investment funds in FX M&S brokerage business, and how much proceeds from FX M&S brokerage business, etc. In fact, Kim 00 was in a position to know, or to know, that the Defendant used it for the purpose, or did not have any intent or ability to repay the principal and interest (proceeds) with business profits, even if it was paid money under the name of investment in overseas business, such as FX M&S brokerage business.

Nevertheless, the Defendant, as seen above, stated that if the Defendant invested in the opening business, etc. during the FX M&C run by Kim00, he paid the principal and dividends with the proceeds therefrom, and had the victim deposit KRW 10,00,000 in the C&C account (110239272******) in the name of investment in the same manner until August 25, 2016, and thereafter, until August 25, 2016, the Defendant deposited KRW 45,724,480,00 in the total of the investment proceeds into the account under the name of Kim Jong-il account by using the multi-level similar organization described in paragraph (1) of the same Article.

Accordingly, the defendant, by facilitating Kim 00's fraud crime, assisted it.

B. Issues

Kim 00, through the structure of solicitation of investment funds by branch offices and ADS Holdings, was found guilty of facts constituting a crime, and the above judgment became final and conclusive (Seoul Central District Court Decision 2017No595, Seoul High Court Decision 2017No595, Supreme Court Decision 2017Do1623) by deceiving investors as if they were 35,037 times from November 21, 201 to September 4, 2016 to receive a total of KRW 1,073,073, 856, 931, and 450 from November 21, 201 to September 4, 2016.

Therefore, the issues related to this part of the facts charged are whether the defendant, while recognizing the above fraud by Kim 00, was easy to commit the fraud by attracting investors through the investment solicitation structure of the " Future" and Addi Span Holdings, and it is examined as to the above issues.

C. Determination

Comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and examined at the lower court, the Defendant could be recognized as having easy to commit the fraud of Kim Mama Kim00 by attracting investors while recognizing the fraudulent conduct of Kim Mama Kim00. (1) In light of the following circumstances, the Defendant cannot be deemed as having the same victim’s position with ordinary investors who suffered damage due to Kim 00’s fraudulent conduct. Rather, it is reasonable to view that the Defendant was in the position where the Defendant was in charge of continuously checking the status of the operation of the overseas business from August 2013 to August 2016, 2016, and accurately communicating the fact that the Defendant had been responsible for continuously checking the status of the operation of Kim 00’s overseas business and delivering it to the investors. (2) As such, the Defendant talked with the investor’s overseas business of Kim 1,3570 billion won directly or through the aid staff of the branch from August 2013 to August 2016.

In addition, the defendant was appointed as a branch manager due to the contribution of attracting a large amount of investment, and the team leader, etc. who belongs to the branch office has also received a certain percentage of the investment funds collected from the branch office.

B) The fact that the Defendant invested in the projects of Kim00 is recognized. However, the amount that the Defendant invested in purely with his own funds is not only KRW 50 million, but also the enormous amount of investment claimed by the Defendant is created by re-investment of all the fees for the investment funds directly recruited by the Defendant, fees for the investment funds collected by the Defendant as the head of a branch office, and fees for a certain percentage of the investment funds collected by the researchers.

C) The Defendant’s fees, etc. paid from around August 2013 to August 2016 from around Kim0 amount to KRW 20 billion. Since the Defendant used the above fees, etc. as a branch operating expenses and re-investment in the business of Kim000, the Defendant claims that the profits actually acquired by the Defendant are smaller than the above amount. However, if a new investor is recruited by promoting the branch operation, the Defendant would be able to stably receive enormous fees and the profits from the invested funds if a new investor is recruited by continuously promoting the branch operation. Therefore, it is reasonable to view that the Defendant spent the branch operation expenses as above and re-invested in the business of Kim00 for the individual’s interest, which is the continuous increase in division. Therefore, the Defendant’s above assertion is not persuasive.

D) The Defendant, as a branch director, discussed the plan to attract investors and the management of investors through Kim 00 and regular meetings.

E) The investment funds confirmed by Kim00 to have been acquired through the above final judgment were collected through active publicity and inducement activities of the ADS branch including most of the branch offices operated by the Defendant.

2) In light of the following circumstances, the Defendant was sufficiently suspected of having been unable to generate a lot of profits to the extent that the investors who actually promised to engage in the overseas business of Kim 00 did not repay their principal and earnings. (2) Kim 00 guaranteed the investors’ earnings inside and outside of 2% per month, and guaranteed the solicitation of investments and fees to the head of the branch office and the head of the branch office. Ultimately, Kim 00 promised to pay 5% or more of the investments to the investors, in the form of monthly earnings and fees, and the rate of such earnings and fees is high that is difficult to be realized through the general business. Furthermore, Kim 00 promised not to pay one-time fees to the head of the branch office and the recruitment office, etc., but to pay a certain rate of the investments every month, and the structure of paying these fees is very exceptional compared to the general business.

B) The Defendant recruited investment money by suggesting that the investment money was invested in an overseas business, such as the FX M&D business of Kim 00, to investors. Kim 00 also stated that the investment money was invested in an overseas business.

C) However, in the process of 2013, Kim 00 was suspected to have obtained an investigation and criminal trial from an investigative agency on the charge that, even though it was not actually used in the FX M&C business, by remitting the borrowed money to a foreign country, it was not actually used in the FX M&C business, and recognized that the borrowed money was used for the payment of the interest and principal promised to use it as the FX M&C business fund.

D) In addition, the Defendant was aware that, through meetings with Kim 00, the Defendant did not use the funds raised by Kim 00 as the fund for the FX M&C business and used a considerable rate for redemption of principal and interest.

E) Meanwhile, according to the defendant's statement, Kim 00's overseas business structure used as a means of criminal investigation and criminal trial by Kim 00 and the defendant's overseas business structure mentioned above is the same as the above structure of the defendant's overseas business, and since around 2015, Kim 00 did not disclose it even though the defendant and the head of the branch office from around 2015 requested data related to the ocean business. However, there is no objective material to confirm whether the defendant's overseas business of Kim 00 during the period stated in this part of the facts charged, as alleged in Kim 100, generated a large amount of profit and made efforts to confirm it. The defendant alleged that he believed the progress of the overseas business from Kim 00 as it is, but it is not reasonable to accept the defendant's assertion that the defendant's domestic business was conducted through the defendant's educational background, career, and large amount of investment from many investors, and that there was a high amount of profit and fees, and that there was an investigation and criminal trial against the defendant's overseas investment from the defendant's office.

4) In a situation where the profitability of an overseas business is unclear, the Defendant did not have any interest in at all about how the investment funds recruited from investors are managed in Korea. However, as follows, Kim 00 arbitrarily used the collected investment funds without clear grounds, and the Defendant was sufficiently able to confirm such circumstances. (A) The investment funds collected by the Defendant et al. were deposited into the Cit Bank account in the name of Kim 00.

The above C&C account was managed in the computer room of A.S. Holdings, and the person in charge of the said computer room withdrawns the investment money deposited into the said C&C account in cash and delivered it to Kim 00, and Kim 00 received and kept it in the treasury. However, Kim 00 did not have clear grounds for the use of the cash kept as above.

B) The Defendant visited the said computer room frequently to deposit the collected investment money as a branch of the ' future’ branch office. However, the Defendant did not confirm at all the details of the use of the investment money to the said computer room.

C) On June 19, 2015, Kim 00 was convicted in the first instance trial of the criminal case for which the investigation was conducted (Seoul Central District Court 2014Da1130). From August 2015, 200, Kim 00 was aware that the investment money deposited in the said CF bank account was withdrawn in cash and used by Kim 00, without disclosing specific means, after the judgment of conviction was rendered.

D) However, according to the statement 00, even after a judgment of conviction was rendered, the Defendant did not completely verify the details of the entry and withdrawal of the investment money deposited into the said C&C account to 00.

5) Although the Defendant invested only a relatively small amount of KRW 50 million in investment, the Defendant was appointed from Kim00 to a branch office in return for raising a large amount of investment from a large number of investors, and received a payment of KRW 20 billion in a short period of time. In light of the above circumstances, it is reasonable to view that the Defendant, while recognizing the possibility of fraud by Kim 00, in order to gain a high amount of profit, he/she continuously recruited investors under the letter of Kim 000, rather than undermining the relationship with Kim 00. 6) In light of the above circumstances, it is reasonable to view that the Defendant was aware of the fraudulent conduct of Kim 00, or that he/she engaged in soliciting investments from investors in order to gain a high amount of profit.

7) On the other hand, Kim 00 and No. 00 appeared as a witness at the lower court on September 2016, the Defendant appeared as a witness and discussed countermeasures against an investigation along with other branches of ADS Holdings, and also consulted with the attorney-at-law in charge of legal advice to conduct an overseas business and to the recognition of the progress of the overseas business. However, in light of the following circumstances, the statement made by Doo0 cannot be deemed to have a high level of credibility. Even if credibility exists in the statement made by Doro, Kim 00 and No. No. 00, each of these statements does not interfere with the determination that the Defendant was aware of the Defendant’s commission of the fraud of Doma Kim Ma Kim00. (A) After detention, the Defendant did not appear at the investigative agency’s request for attendance and discussed countermeasures against an investigation. However, the attorney-at-law was also in charge of legal advice to respond to the Kim Doo S. Holdings business in the process of discussion as above.

B) It is true that No. 00 made a statement unfavorable to the Defendant during the instant investigation process, but no. 00 also recruited a large amount of investment funds from many investors as the head of a branch office of ADS Holdings. Therefore, the possibility that a statement was made differently from the fact regarding the role of the branch office and the recognition of the progress of overseas business in order to avoid liability as the head of a branch office cannot be ruled out.

8) In addition, the Defendant submitted a recording document using a file recording of an investment presentation meeting around April 2016 and a branch office funeral meeting around June 2016. However, considering the fact that the investigation of this case against A.S. Holdings was initiated at the time of the commencement of the investigation of this case, and the recording and the subject of the recording, etc., it cannot be said that the relationship and credibility with this part of the facts charged cannot be said to be high. Meanwhile, it is sufficient to view the recording document as one of the materials that the head of the branch office, including the Defendant, requests specific grounds for the business progress of Kim 00, or raises questions, etc.

D. Judgment on the assertion by the defendant and his defense counsel

The defendant and his defense counsel asserted that the investment funds should be excluded from the investment funds in the name of the defendant's relatives, and those extended without receiving the real money should be excluded from the investment funds. However, after the amendment of the bill of amendment, the prosecutor does not include the investment funds confirmed to be relatives of the defendant through the amendment of the bill of amendment or which are extended only without receiving the real money. After the amendment of the bill of amendment, the defendant and his defense counsel specified or did not point out specifically the investment funds whose maturity is extended only without giving or receiving the real money under the name of relatives, it cannot be concluded that the victims did not receive the real amount of the investment funds if they re-deposit and invest again after receiving the return of the investment funds, it cannot be concluded that there was no receipt of the real amount of the investment funds, and the investment management system of the AD SS Holdings has separately managed the investment funds whose maturity is extended. This part of the facts charged is based on the contents stated in the investment management system as above, and it is difficult to view that the investment funds should be excluded as alleged by the defendant and the defense counsel.

5. The prosecutor's incomplete hearing and the prosecutor's assertion of procedural violation

Article 279 of the Criminal Procedure Act provides that "the presiding judge shall issue the order of lawsuit at the trial date," and Article 318-4 (1) of the same Act provides that "the sentence shall be made on the date on which the pleadings are closed and closed." Since the prosecutor's right to apply for a continuous trial is not recognized under the Criminal Procedure Act, the court below's decision is just because the court below rendered a single decision without making a decision as to the prosecutor's request for a continuous trial and without accepting the above request, it cannot be said that there is an error of incomplete trial and violation of procedure, as pointed out by the prosecutor

Therefore, prosecutor's incomplete hearing and argument of procedural violation is without merit.

6. Conclusion

The judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and it is again decided as follows, since there is a ground for ex officio reversal and the prosecutor's appeal has some grounds.

[Grounds for another judgment]

Criminal facts

As described in paragraphs (a) and (b)(i) above, the same shall apply.

Summary of Evidence

1. Part of the defendant's original judgment and the oral statement in court;

1. Each legal statement of the original court rendered by the witness 00, 00, 00, 50, 50, 500, 80, 100

1. Each of the original judgments rendered by the witness Kim 00, Kim 00, No. 00, Kim 00, and Kim 00

1. Each prosecutor's protocol of examination of the accused;

1. The suspect interrogation protocol of some police officers against the defendant;

1. A copy of each protocol of examination of partial police officers concerning Kim 00, Kim 00, and Park 00;

1. Each police statement of 00 grandchildren, MaO, Ma00, Man00, and Man00;

1. A copy of each police statement made in relation to 00, between 00, 00, 00, 00, 50, 50, 100, 200, and 300; and

1. Copies of each part of the statement made by the police in relation to 00 and 00; and

1. A written statement of Park 00;

1. Each written petition of MaximumO, maximum00, and new00;

1. A copy of a record (at least 00 copies);

1. Records of seizure and the list of seizure;

1. Each internal investigation report (related to the analysis of e-mail data by informants, replys to the account in the name of IMOS Holdings representative Kim00), and each investigation report (related to the details of the entire amount of investment in the IDS, and each seized article analysis);

1. Copy of each certified transcript of a corporate register (ADS Holdings, ADS Academy), each personal investment agreement, each of the judgment, each group’s investment funds, the current status of deposits by passbook, each deposit certificate, each deposit certificate, each letter of intent to make an investment agreement, a copy of the passbook, a statement of repayment of principal, a statement of financial transaction, a statement of intention to make an investment, a copy of the judgment at an appellate trial, or a copy of the examination of witness

Application of Statutes

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

Articles 347(1) and 32(1) of the Criminal Act (a) of the Act on Door-to-Door Sales, etc., Article 58(1)4 and Article 24(1)1 of the Act on Door-to-Door Sales, etc., and Article 30 of the Criminal Act (a), inclusive, violation of the Act on Door-to-Door Sales, etc., and choice of imprisonment)

1. Statutory mitigation;

Articles 32(2) and 55(1)3 of the Criminal Act (as to the crime of aiding and abetting fraud and aiding and abetting fraud)

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Confiscation;

Article 48(1)1 of the Criminal Act

1. Dismissal of an application for compensation order;

Articles 32(2), 32(4), 32(1)1, 25(1)3, and 25(3)3 of the Act on Special Cases Concerning the Promotion, etc. of Lawsuits (the same applicant for compensation was filed in duplicate, and part of the application for compensation is illegal as being rejected after the application was filed in the first instance trial, and the entire application for compensation is inappropriate as the scope of the defendant's liability is unclear, and it is not reasonable to issue an order for compensation in criminal proceedings).

The reason for sentencing is that the defendant was seriously aware of the progress of the business subject to investment, and that the defendant was in the position of the head of the branch office responsible for accurately delivering the results to investors, but only concentrated only on soliciting investors for his own interest on the part of Kim 00. The defendant's crime of this case caused enormous damage to a large number of victims due to the defendant's crime of this case, the victims have not been completely recovered up to the trial, and the defendant has recruited investment money over a long period of time, and the collected investment amount exceeds KRW 1,35.7 billion. The defendant was disadvantageous to the defendant in the course of the fraudulent act of Kim 00.

In addition, considering various sentencing conditions indicated in the records of this case, the punishment as ordered shall be determined by taking into account the following: (a) there is no history that the defendant has been punished for the same crime; (b) some victims received high rates of profits for a considerable period of time; and (c) some of them received fees for collecting new investors; and (d) some victims who seem to have made an unreasonable investment in the thought that they would have made an unreasonable investment in the short term; and (e) some victims who are likely to have been responsible for the occurrence and expansion

The acquittal portion

This part of the facts charged is as stated in the above 3. A. 1. This constitutes a case where there is no evidence of crime as seen in the above 3. A. 3. 3.) and thus, a not-guilty verdict should be made pursuant to the latter part of Article 325 of the Criminal Procedure Act, but as long as a conviction of each crime of aiding and abetting fraud, which is the preliminary facts charged, is found guilty, a separate verdict of innocence

Justices Kim Jong-ok

Judges Choi Dok-ho

Judges Southern-Ann

A person shall be appointed.