Defendant 1 and 21 others

Defendant 1, Defendant 2, Defendant 3, Defendant 4, Defendant 9, Defendant 11, Defendant 22, and the public prosecutor (with respect to all of the defendants)

Preliminaryity, white background, Kim Woo (public prosecution), and Kim Min-young (public trial)

Law Firm Stabilization et al.

1. Incheon District Court Decision 2018Da4303, 2018 Godan7941 (Consolidated) decided December 10, 2018, Supreme Court Decision 2018 Godan4303, 2018 Godan7941 (Consolidated) / 2. Incheon District Court Decision 2018 Godan1401 Decided December 13, 2018

[Defendant 1, Defendant 2, Defendant 3, Defendant 4, Defendant 9, and Defendant 11]

All appeals by the Defendants and the Prosecutor are dismissed.

[Defendants 5, 6, 7, 8, 10, 12, 13, 15, 16, 17, 18, 19, 20, and 21]

All of the appeals by prosecutors are dismissed.

[Defendant 14]

The part of the first judgment on the defendant shall be reversed.

A defendant shall be punished by imprisonment for four months.

However, the execution of the above punishment shall be suspended for two years from the date this judgment became final and conclusive.

The defendant shall be ordered to provide community service for 80 hours.

[Defendant 2]

Of the original judgment of December 5, 2016, the remaining parts, excluding the part concerning aiding and abetting the victim Nonindicted Party 1, and the second original judgment shall be reversed, respectively.

A defendant shall be punished by imprisonment for a term of one year and two months.

Of the judgment of the first instance, the appeal filed by the Defendant and the prosecutor on the part concerning aiding and abetting the victim non-indicted 1 on December 5, 2016 are all dismissed.

1. Summary of grounds for appeal;

A. Defendant 1, Defendant 2, Defendant 3, Defendant 4, Defendant 9, and Defendant 11

The following sentence sentenced by the court below to the defendants is too unreasonable:

○ Defendant 1: Imprisonment for a year and four months;

○ Defendant 2: Imprisonment for one year.

○ Defendant 3: Imprisonment with prison labor for ten months, two years of probation, and 120 hours of community service;

○ Defendant 4: Imprisonment for 10 months

○ Defendant 9: Imprisonment with prison labor for 2 years of probation, community service hours for 80 hours;

○ Defendant 11: Imprisonment with prison labor for six months, two years of probation, and 80 hours of community service;

B. Defendant 22

(i)misunderstanding of facts or misunderstanding of legal principles

㈎ 제1원심판결(판시 각 사기방조죄)

피고인은 공동피고인들(각 사기죄의 정범들)과 수익을 분배하는 관계에 있지 않았고 오직 할부중개 건수에만 이해관계가 있을 뿐이어서, 정범들이 허위매물 등 기망적 수단(‘뜯플’ 또는 ‘쌩플’)을 통해 불법적으로 시세차익을 얻는 것을 용인할 이유가 없었다. 또한, 피고인이 정범들의 ‘뜯플’ 또는 ‘쌩플’ 수법을 알고 있었을 것이라는 취지의 공소외 2 진술 등은 신빙성을 인정하기 어렵다. 따라서, 피고인은 정범들이 단순한 자동차관리법위반에서 더 나아가 새로운 범행수법으로 사기행위를 한다는 점은 알지 못하였는바, 피고인에게는 정범의 사기범행을 용이하게 한다는 인식 즉, 정범의 고의가 없었다.

On the other hand, in the instant case, the act classified as the aiding and abetting the Defendant’s act, namely, providing an external office to Defendant 1, etc. while operating a brokerage office, mediating a loan, providing a sales contract form, and allowing a notice to the “△△△△△△ Auction Site” to display a false article advertisement on the “△△△△△△△△△△” website, is an act of assisting and aiding the fraud, and thus, it cannot be deemed as an act of aiding and abetting the fraud.

Nevertheless, the court below found Defendant 1 as guilty on this part of the facts charged on the ground that Defendant 1 was a person who is the actual representative of a used vehicle dealer operated by Defendant 1 (hereinafter “the external office of this case”) and the principal offender was aware of or predicted to sell a heavy vehicle from the beginning by using fraudulent methods. The court below erred by misapprehending the facts or by misapprehending the legal principles, thereby adversely affecting the conclusion of the judgment.

㈏ 제2원심판결(판시 위증죄)

In around 2013, the Defendant testified against his memory on the ground that Nonindicted 3 was aware that Nonindicted 3 was a member of the ○○○○○○m in the Incheon Detention House on the ground that Nonindicted 3 was engaged in personnel affairs as Nonindicted 4 while Nonindicted 4 was in the course of Nonindicted 4, and around that time, the Defendant did not testify. The Defendant did not have any intention to perjury.

Nevertheless, the court below found the defendant guilty of this part of the facts charged by deeming that the defendant testified against his memory. The court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment.

Doz. Judgment of the lower court on unreasonable sentencing

Each punishment sentenced by the first and second original judgment (the first judgment: imprisonment with prison labor for 8 months and December 5, 2016; exemption from punishment for aiding and abetting the victim non-indicted 1; imprisonment with prison labor for 6 months) is too unreasonable.

(c) Prosecutors;

(1) misunderstanding of facts or misunderstanding of legal principles (the part of the first judgment which acquitted the remaining Defendants of the reasons for the criminal organization, joining the criminal organization, and activities of the criminal organization except Defendant 22)

Article 114 of the Criminal Act provides that “an organization aimed at committing a crime” and “crime crime group” as provided by Article 4 of the Punishment of Violences, etc. Act shall be jointly carried out in that “organization has a minimum command system that leads or maintains internal order.” However, in the case of an organization organized for the purpose of pursuing economic benefits by committing a crime of fraud, it shall be deemed that there exists a difference from the organization of violent crime in terms of “the relationship between its members, the contents and degree of internal order, the details of the crime committed, the role of each member, etc.”

또한 이 사건의 경우 팀장이 대표에게 지급하는 광고비, 상사입금비가 일종의 ‘상납금’과 같은 성격을 갖고 있는 점, 이 사건 외부사무실의 인적 구성, 구성원들의 역할 등이 정상적인 중고차매매상사와 차이가 있는 점, 피고인들은 이 사건 외부사무실은 허위만 취급하는 사무실이므로, 정상적인 판매내역은 없고 전부 허위 또는 미끼 매물로 손님을 유인하여 ‘뜯플’ 또는 ‘쌩플’ 수법으로 중고차를 판매하였다고 진술하였는데, 피고인들의 영업방식이 이와 같다면 피고인들은 스스로 자신의 행위가 상대방을 속이는 기망행위라는 점을 인식하였다고 봄이 상당한 점, 범행에 필요한 설비를 갖추고 상당 기간 범행을 지속하였다는 점, 이 사건 외부사무실이 사무실의 형태를 취하면서 출퇴근을 관리하고 일정한 보고체계를 갖추고 있었던 점 등을 종합하여 보면, 이 사건 외부사무실은 사기 범죄를 목적으로 하는 계속적인 결합체로서 최소한의 통솔체계를 갖춘 범죄단체라고 봄이 상당하다.

Nevertheless, the court below found the defendant not guilty of this part of the facts charged. The court below erred by misunderstanding facts or misunderstanding legal principles.

Dob. As to all of the defendantss on unreasonable sentencing

The punishment sentenced by the first instance court to the defendants and the second instance to the defendants 22 (the punishment against the remaining defendants except the above punishment against the defendants 1, 2, 3, 4, 9, 11, and 22 in the foregoing order is unfair as it is so unreasonable that the punishment against the other defendants except the above punishment against the defendants 1, 2, 3, 4, 9, 11, and 22 is too uneased.

○ Defendant 5: Imprisonment with prison labor for 10 months, 2 years of probation, and 160 hours of community service;

○ Defendant 6: Imprisonment with prison labor for 10 months, 2 years of probation, and 160 hours of community service;

○ Defendant 7: Imprisonment with prison labor for 10 months, 2 years of probation, and 160 hours of community service;

○ Defendant 8: Imprisonment with prison labor for 2 years of probation and community service for 120 hours;

○ Defendant 10: Fines of 3 million won

○ Defendant 12: Imprisonment with prison labor for four months, two years of probation, and 80 hours of community service;

○ Defendant 13: Imprisonment with prison labor for four months, two years of probation, and 80 hours of community service;

○ Defendant 14: Imprisonment with prison labor for four months, two years of probation, and 80 hours of community service;

○ Defendant 15: Imprisonment with prison labor for four months, two years of probation, and 80 hours of community service;

○ Defendant 16: Imprisonment with prison labor for six months, two years of probation, and 80 hours of community service;

○ Defendant 17: Imprisonment with prison labor for six months, two years of probation, and 80 hours of community service;

○ Defendant 18: Imprisonment with prison labor for six months, two years of probation, and 80 hours of community service;

○ Defendant 19: Imprisonment with prison labor for four months, two years of probation, and 80 hours of community service;

○ Defendant 20: Imprisonment with prison labor for four months, two years of probation, and 80 hours of community service;

○ Defendant 21: Imprisonment with prison labor for four months, two years of probation, and 80 hours of community service;

2. Determination

A. Ex officio determination

(1) Defendant 14

Before the prosecutor's judgment on the grounds for appeal, the health unit, and the record reveals that the defendant was sentenced ex officio on September 19, 2019 to a suspended sentence of two years, community service80 hours, etc. on August 19, 201, and the judgment became final and conclusive on September 27, 2019. The crime of the judgment of the first instance court and the above crime of fraud, etc. against the defendant, for which the judgment of the first instance court became final and conclusive, are concurrent crimes under the latter part of Article 37 (1) of the Criminal Act, and shall be sentenced to punishment for the crime of the first instance court in consideration of equity in the case where the judgment is to be rendered simultaneously in accordance with the former part of Article 39 (1) of the Criminal Act. Therefore, the part against Defendant 14 of the first instance judgment

Shed Defendant 22

Before the judgment on the grounds for appeal by the defendant and the prosecutor, the first and second first and the second judgments were sentenced to each of the above judgment, and the defendant and the prosecutor filed an appeal against each of the above judgment of the court below, and this court decided to concurrently examine the above two appeals cases. Of the first judgment on the defendant, the remainder of the judgment except the crime of aiding and abetting the victim non-indicted 1 on December 5, 2016 and the crime of the second judgment on the judgment of the court below are concurrent crimes under the former part of Article 37 of the Criminal Act and shall be sentenced to one punishment pursuant to Article 38(1) of the Criminal Act. Thus, the remaining parts of the first judgment except the crime of aiding and abetting the victim non-indicted 1 on December 5, 2016 and the second judgment cannot be maintained (the crime of aiding and abetting the victim non-indicted 1 on December 5, 2016 constitutes concurrent crimes with the crime of Article 37 of the Criminal Act in which judgment of the court below became final and conclusive on June 28, 2018, 2018).

However, even if there are such reasons for ex officio destruction, the defendant's assertion of misunderstanding of facts or misapprehension of legal principles is still subject to the judgment of this court.

B. Judgment of the court of first instance as to Defendant 22's assertion of mistake or misapprehension of legal principle as to each crime of aiding and abetting fraud

(i) Whether the principal was intentional or not

㈎ 관련 법리

Inasmuch as an act of aiding and abetting under the Criminal Act refers to a direct and indirect act that facilitates the principal offender’s act while being aware of the fact that the principal offender committed the crime, the principal offender’s act of aiding and abetting the principal offender’s act and the principal offender’s act constitutes an act that constitutes an element of a crime must be determined by the principal offender’s intent. However, inasmuch as such intent is in depth, if the principal offender denies it, it is bound to prove indirect facts that have considerable relevance to the principal offender’s intent due to the nature of the object. In this context, what constitutes an indirect fact that has considerable relevance is determined based on normal empirical rule, there is no other way to reasonably determine the connection of the fact by using the detailed observation or analysis power. In addition, the principal offender’s intent is not required to be aware of the details of the crime realized by the principal offender, and it is sufficient to have doluence or predictability (see, e.g., Supreme Court Decision 2018Do75848, May 4, 2018; 2018Do36205.).

㈏ 판단

In full view of the following facts and circumstances acknowledged by the evidence duly adopted and examined by the court below and the court below, it can be sufficiently recognized that the defendant had dolusence or predictability of the essential elements of the crime realized by the principal offender. Thus, this part of the defendant and his defense counsel’s assertion is not acceptable.

① 피고인이 운영하는 ‘△△△△△경매장’ 사이트(사이트 주소 생략)에 게시된 광고차량 중 상당한 비율은 그 가액에 판매할 수 없는 허위매물이었고(증거기록 1741쪽 이하), 피고인은 검찰 조사 당시 위 사이트에 올라오는 차량을 개별적으로 확인하고 곧바로 ‘미끼용’ 허위매물인지 여부에 대하여 확인하고 답변할 수 있을 정도로 중고자동차의 시세 및 허위미끼매물 광고 실태에 대해 잘 알고 있었다(증거기록 5962쪽 이하). '▶▶엔카‘ 등 다른 중고자동차 판매용 인터넷 사이트에 비하여 피고인이 운영한 위 사이트는 계정 1개당 광고할 수 있는 차량수가 현저히 많았다는 것이 정범들의 공통된 진술인데[증거기록 2114쪽 이하(피고인 6에 대한 제2회 검찰 피의자신문조서), 2246쪽 이하(피고인 7에 대한 검찰 피의자신문조서) 등], 이 점은 위 사이트가 미끼매물 또는 허위매물을 다량으로 올리기에 용이하도록 구성되었음을 짐작케 하는 요소이다. 피고인 역시 딜러들이 허위미끼매물광고로 고객을 유인하는 사례가 많다는 사실을 알고 있었다고 인정하는바, 피고인은 피고인 1을 비롯한 정범들이 고객을 유인하는데 자신의 ‘△△△△△경매장’ 사이트를 이용한다는 점을 알고 있었다고 보아야 한다(피고인은 공소외 5가 보고하지 않아 위 사이트에 허위매물이 올라온다는 점을 몰랐다고 진술하기도 하였으나, 이는 위와 같은 위 사이트의 판매구조와 허위매물 비율 등에 비추어 납득하기 어렵다). 즉, 피고인은 정범들의 중고차판매에 모종의 기망행위가 개입된다는 사정을 익히 알고 있었다고 봄이 타당하다.

(2) However, considering the common part of the principal offender's criminal law, it is impossible to cancel the contract if the customer wants to cancel the contract (the third party act) with the intention that there is a serious defect in the relevant vehicle or additional charges, such as taxes, etc., by making the advertisement as if it was actually done by using false straws and inducing the customer (the first party act) and issuing a sales contract or a certificate of acceptance to the induced customer (the second party act). This series of deceptions can be evaluated as one act closely connected to the principal offender's fraud, and in this respect, even if there is no aforementioned deception, it does not interfere with the formation of fraud (the second party act of deception). Furthermore, even if there is no possibility that there is no additional act of deception, it can be said that there is no causal relationship between the act of deception and the act of deception by the defense counsel.

③ 피고인의 변소내용 중 핵심은 딜러들이 고객을 유인하기 위하여 허위미끼매물로 광고를 한다는 점은 알고 있었지만, 계약금을 받은 후 강압적인 수단을 통하여 돌려주지 않는 방식(‘뜯플’)이나, 계약이 체결된 것처럼 기망한 후 취소가 불가능하다며 다른 차량을 구매하도록 유도하는 ‘쌩플’ 방식을 사용한다는 점은 알지 못하였다는 것이다. 즉, 고객들의 최종적 처분행위와 상당인과관계에 있는 중간 단계 기망행위(제2 내지 4기망행위)에 대해서는 인식하거나 예견하지 못하였다는 것이다. 그런데, 피고인의 주장은 다음과 같은 사정들을 고려할 때 이를 그대로 믿기 어렵다.

Defendant 11, Defendant 17, and Defendant 2, etc. stated that “The outside office of this case was located in the second floor of △△△△△△ operated by the Defendant (Evidence No. 4317, etc.). When preparing a certificate of contact or acceptance with the customer, Defendant 11, Defendant 17, and Defendant 2 sold a vehicle to the customer while using the Defendant’s △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△………………………………………§).).).

㉯ 피고인 1은 검찰 조사 당시 “피고인은 ‘뜯플’로 중고차를 파는 것은 몰라도 ‘쌩플’로 중고차를 판매하는 것은 알고 있을 것입니다. 저희 딜러들이 허위 매물을 취급해서 중고차를 판매하고, 손님들이 돈이 부족하면 피고인이 운영하는 할부사에서 할부진행을 하며, 피고인이 운영하는 △△△△△경매장 사이트도 허위 매물을 광고하기 때문에 피고인은 중고차 딜러들이 적어도 쌩플 수법으로 중고차를 손님들에게 판매한다는 사실을 알 것입니다. 당연히 피고인이 중고차 딜러들을 많이 알고 지내고, 친한 동생인 공소외 8, 공소외 9 이름으로 매매상사를 만들어주고, 저에게 계약서(자동차양도증명서) 및 외부사무실까지 구해주었는데 모를 수가 없습니다.”라고 진술하였고(증거기록 6038쪽 이하), 원심에서 ”피고인은 고객들이 계약취소를 요구하면 이미 차량이전이 되었다고 말하며 요구를 들어주지 않는 수법을 사용한다는 점을 알고 있었을 것이다.“라는 취지로도 진술하였다(피고인 1에 대한 원심 증인신문 녹취록 44, 45쪽).

㉰ 다른 외부사무실 대표 공소외 2는 피고인이 2016. 12.경 ☆☆공업사 사무실에 찾아와 “니네 애들 뜯플, 쌩플 할 줄 아냐”라고 물어보아 자신이 “모두 경력자들이 왔기 때문에 할 줄 안다”고 이야기하였다고 진술하였다. 공소외 2는 이후 수차례 진술을 번복하고 “피고인의 말이 ‘뜯플’을 하라는 취지는 아니었다”, 또는 “피고인이 ‘뜯플’은 하지 말라고 하였다”고 말하였으나, 위와 같은 대화가 있었다는 사실에 대하여는 종국적으로 진술을 그대로 유지하였고(원심 2016. 11. 26.자 증인신문 녹취록 11쪽), 위 진술은 일관성과 구체성이 있어 그 신빙성을 부정할 수 없다. 따라서 피고인은 이 점에 있어서도 자신이 마련해 준 외부사무실에서 적어도 ‘쌩플’ 형태의 불법적 중고차 판매가 이루어질 수 있다는 점을 충분히 예견할 수 있었다고 할 것이다.

㉱ 피고인이 ‘쌩플’ 중에서도 이 사건 공소사실과 같은 유형의 이른바 ‘신종 쌩플’을 전혀 알지 못하였다고 보기는 어렵다. 우선 피고인 1의 진술 등에 의하더라도 ‘쌩플’은 계약금을 먼저 수령하지 않는 형태의 불법적 중고차 판매를 통칭하였던 것으로 볼 여지가 있을 뿐만 아니라(피고인 1에 대한 원심 증인신문 녹취록 55쪽. 당심 증인신문 녹취록 5쪽 이하에 의하더라도 피고인 1은 딜러들이 그때마다 사용하는 수법 중 계약금을 지급받지 않은 것은 모두 구별하지 않고 ‘쌩플’로 표현하고 있다), 앞서 본 바와 같이 제1기망행위부터 제4기망행위까지는 종국적 처분행위에 이르기 위해 유기적으로 연결된 기망행위로 보아야 하기 때문이다.

㉲ 게다가 인천지역 사단법인 ▽▽▽▽▽▽▽조합의 조합장인 당심 증인 공소외 10은 허위매물을 이용한 다양한 불법적 판매수단이 인천 중고자동차 업계에서 관행적으로 행해졌고, 이러한 관행은 업계의 딜러들에게 일반적으로 알려져 있었다고 진술하였다(공소외 10의 진술이 다소 분명치 않은 면은 있으나, 검사의 “옛날에도 말로만 계약서를 일단 작성했으니 더 이상 취소를 못한다. 그러니 다른 차를 사라는 식으로 범행을 하는 경우가 있지 않았습니까”라는 질문에 대하여 재차 “그러한 경우가 있었다”고 답변하였다). 다년간의 경험을 바탕으로 한 공소외 10의 위와 같은 진술도 이 사건 공소사실과 같은 유형의 ‘신종 쌩플’이 완전히 낯선 것이었고 자신은 이를 인식 또는 예견할 수 없었다는 피고인의 주장과 부합하지 않는다.

㉳ 피고인은 딜러들에게 ‘뜯플’은 하지 마라고 하거나 “뜯플을 하지 않았는데 무엇이 문제인가”라는 취지의 말을 하기도 한 것으로 보인다(증거기록 5958쪽 등). 이는 과거 인천지역에서 허위매물을 이용한 중고차 판매행위에 대하여 자동차관리법을 적용하였던 사정과 관련이 있는 것으로 보이며, 피고인은 불법적 판매행위이더라도 ‘뜯플’에 해당하여 폭력행위등처벌에관한법률위반(공동강요)죄로 처벌받지 않는 이상 자동차관리법위반죄로 비교적 경미하게 처벌받는다고 인식한 것일 수 있다. 그러나 이는 피고인의 주관적인 법률적 평가에 불과하다고 할 것이다. 범죄의 성립에 있어서 위법의 인식은 그 범죄사실이 사회정의와 조리에 어긋난다는 것을 인식하는 것으로 족하고 구체적인 해당 법조문까지 인식할 것을 요하는 것은 아닌바( 대법원 1987. 3. 24. 선고 86도2573 판결 등), 당해 행위가 불법적이라는 점을 알았던 이상 위법성의 인식이 없었다거나, 그 행위가 죄가 되지 아니하는 것으로 오인한 데 정당한 이유가 있다고 할 수도 없다.

④ 피고인은 판매자의 부당행위로 대출이 취소되면 할부중개업자인 피고인이 할부금 등을 반환하여야 하므로 정범들의 사기를 방조할 동기가 없었다고 주장하나, 할부중개업자의 수익은 차량 판매량의 증가에 비례하는 것이 명백하고 정범들은 “차를 많이 팔기 위해 쌩플 등을 하였다”는 취지로 진술하고 있는바, 피고인에게 정범들의 범행을 방조할 동기가 없었다고 볼 수 없다. 오히려, 피고인은 피해자들이 적극적으로 민·형사상 조치를 취하여 할부금 반환으로 나아가게 될 가능성 및 그로 인하여 발생할 수 있는 손해와 불법적 차량판매로 인하여 발생하는 수익을 형량한 끝에 자신의 대처방식을 정하였다고 보는 것이 더 합당한 설명이라고 보인다.

Doh Whether aiding and abetting is applicable

㈎ 관련 법리

The act of aiding and abetting under the Criminal Act refers to all direct and indirect acts that facilitate the commission of a principal offender while knowing the fact that the principal offender is committing a crime. It also constitutes an intangible or mental aiding and abetting act, such as aiding and abetting and aiding and abetting the principal offender to strengthen the resolution of the crime as well as tangible and material aiding and abetting and abetting and aiding and abetting the principal offender in the course of committing the crime (Supreme Court Decision 2018Do7658 Decided September 13, 2018). It is established not only where aiding and abetting and abetting the principal offender in the course of committing the crime but also where aiding and abetting and abetting in the future prior to the commencement of the crime (Supreme Court Decision 2018Do7658 Decided September 13, 2018). In such case, it is not necessary to determine who is the principal offender in the course of committing the crime (Supreme Court Decision 76Do4133 Decided September 28, 197).

㈏ 이 법원의 판단

Comprehensively taking account of the evidence duly adopted and examined by the court below and the court below, ① the defendant provided an external office to the principal offender; ② provided the "△△△△△△△ Auction Site" which is a medium-sized advertising site that the defendant operated in order to post a false product advertisement; ③ issued a certificate of automobile transfer affixed with the name of the second-class trading company, such as the " △△△△" which is operated by the defendant; ④ operated the brokerage company for the principal offender to allow customers who purchased the second-class vehicle due to the principal offender's fraud to receive installment payments. As long as the principal offender's intent can be recognized, all of the above acts can be sufficiently assessed as an act that directly or indirectly facilitates the principal offender's practice; and such act cannot be deemed as an act of a neutral aiding and abetting that is ex post facto or is not punishable after the completion of the crime.

Therefore, we cannot accept this part of the defendant and his defense counsel's assertion.

C. Determination as to Defendant 22’s assertion of misunderstanding of facts or misapprehension of legal principles as to perjury in the judgment of the second instance

(1) The judgment of the court below

피고인 및 원심 변호인은 원심에서도 이 부분 항소이유와 같은 취지의 주장을 하였고, 원심은 ① 공소외 4는 공소외 3을 ‘막둥이’라고 부르면서 피고인을 비롯한 자신이 알고 지내던 수용자들에게 ‘공소외 3이 똘망똘망한 아이다, 잘 챙겨주라’는 취지의 말을 한 사실은 있으나, 이를 넘어 당시 공소외 3에게 ○○○○파에 가입할 것을 직접 권유한 사실은 없다고 진술한 점, ② 공소외 4의 재판진행 당시 및 출소 이후 그가 보인 행적을 보더라도 수감되어 있을 당시 더 이상 조직생활을 하지 않기로 마음먹었다는 진술의 신빙성을 탓할 특별한 사정이 보이지 않으며 공소외 11의 진술 등으로 그 신빙성이 탄핵되었다고 보기에 부족한 점, ③ 피고인은 2014년경까지 ◁◁◁파로 소속을 유지하고 있었던 것으로 보이는데 그러한 사정을 고려하면 공소외 4가 굳이 피고인에게 공소외 3을 자신이 ○○○○파로 생활시켰다고 말하였다는 것은 납득하기 어려운 점 등의 사정을 들어 위 주장을 배척하고, 이 부분 공소사실을 유죄로 인정하였다.

She The Judgment of the Court

In light of the following circumstances, we can sufficiently recognize that the defendant made a false statement contrary to his memory, and the defendant's assertion that there was an error of misunderstanding of facts or misunderstanding of legal principles in the judgment of the court below is without merit, in light of the circumstances as set forth in the judgment of the court below, which are acknowledged by the evidence duly adopted and examined by the court below.

① During the investigation process of the case at the Incheon District Court 2016Kahap760-1 (Separation), Nonindicted 3 stated that “after having been released from office on March 16, 2015, Nonindicted 3 joined the ○○○○○○○○m on May 2015. At the time of the investigation, Nonindicted 3 stated that “I would like to live with ○○○○○○○○m” to mean that “I would like to live with her her her her her her her her her her her son and her her her son, with her her her son,” and that “I would have subscribed to the ○○○○mmm in a way of initial personnel management with Defendant, Nonindicted 12, and Nonindicted 13, etc.” on May 2015. However, Nonindicted 3 did not state that I subscribed to Nonindicted 4 (Evidence 167 pages) as the introduction of Nonindicted 4.

② At the time of the foregoing investigation, Nonindicted 3 stated that “The Defendant was transferred from the Dog Dog Dog Dogm Dogm Dogm 2014 to ○○○○○○○○○.” Nonindicted 3’s above statement on the time of joining the Defendant is consistent with the criminal facts acknowledged by the Incheon District Court Decision 2016Gag 774 (Separation) Decided October 19, 2017 (specific as of September 22, 2014).

③ Examining the context of the Defendant’s statement in the process of examining the witness in Seoul High Court 2017No1680, the Defendant appears to have clearly known the intent of questioning Nonindicted 3’s accession time and stated to the effect that “the Defendant was living together with Nonindicted 4 in prison and joined the organization by Nonindicted 4” in order to grant credibility to Nonindicted 3’s testimony that was 2013. However, Nonindicted 4 was in a position to exercise substantial influence over ○○○○mm in the process of 2013 when he was in hand at the time of 2013, and it is difficult to deem that Nonindicted 3 was in a position of exercising substantial influence over ○○○m in the process of ○○○○, and that Nonindicted 4 was in a position to join a new organization. In such circumstances, it is difficult to view that Nonindicted 3 believed that Nonindicted 3 was in a state of ○○○○.”

④ Rather, Nonindicted 4 appears to have made the aforementioned remarks in order to compensate for Nonindicted 3’s dissipating or having had his humlet work on his behalf, rather than as an assistant, and there is room to view that the Defendant used Nonindicted 4’s above statements in order to grant credibility to his false testimony with the full knowledge of such circumstances.

D. Judgment on the Prosecutor’s misunderstanding of facts or misapprehension of the legal principles (the part concerning acquittal of the reasons in the first instance judgment against the remaining Defendants except Defendant 14 and Defendant 22)

(i) Summary of the facts charged

It is as shown in the attached facts charged.

Dob. Alteration of Bill of Indictment (Addition of Preliminary Facts)

Before the judgment of the prosecutor on the prosecutor's assertion, the prosecutor had the above facts charged as the primary facts charged, and applied for the amendment of the indictment to add the following contents as the ancillary facts charged (Article 114 of the Criminal Act, which is the applicable law, and the names of the crimes were maintained). The subject of the judgment was changed by this court's permission.

본문내 포함된 표 [예비적 공소사실] 제1원심 중 2018고단4303 사건의 공소사실을 유지하되, [범죄단체조직 경위] 부분 중 「3. ‘중고차 불법판매 범죄단체’ 조직 계획 수립 피고인 1은 인천 지역에서 중고차 관련 일을 하던 자로, 외부사무실을 설립하여 직원들을 모집한 후 ‘뜯플’, ‘쌩플’ 수법으로 중고차량을 불법적으로 판매하고, 이를 통하여 수익을 올리는 방식의 사기 범행을 계획하고, 위 범죄를 목적으로 하는 단체를 조직하기로 마음먹었다.」 부분을 「3. ‘중고차 불법판매 범죄집단’ 조직 계획 수립 피고인 1은 인천 지역에서 중고차 관련 일을 하던 자로, 외부사무실을 설립하여 직원들을 모집한 후 ‘뜯플’, ‘쌩플’ 수법으로 중고차량을 불법적으로 판매하고, 이를 통하여 수익을 올리는 방식의 사기 범행을 계획하고, 위 범죄를 목적으로 하는 집단을 조직하기로 마음먹었다.」로(주1), [범죄사실] 1. 범죄단체조직(피고인 1) 부분 중 「범죄단체」를 「범죄조직」으로, 2. 범죄단체가입 부분 중 「각각 위 외부사무실이 범죄단체라는 사실을 알면서 가입하였다」를 「각각 위 외부사무실이 범죄집단이라는 사실을 알면서 가입하였다」로, 3. 범죄단체활동 및 시기 부분 중 각 71개항의 「범죄단체 구성원으로 활동하였다」를 각 「범죄집단 구성원으로 활동하였다」로 변경함.

Note 1) Monopoly Fre.

Nevertheless, the prosecutor's argument of mistake of facts and misapprehension of legal principles on the primary facts is still subject to the judgment of this court, so it is judged in turn about the preliminary facts added in the trial.

【Judgment on the Main Facts

(4) The lower court determined that it is difficult to view that the Defendants were not aware of the fact that the Defendants were not guilty of the facts charged, based on the following facts: (a) the head of the external office of this case was not aware of the facts charged; (b) the head of the external office of this case and the head of the external office of this case were not aware of the facts charged; (c) the head of the external office of this case and the head of the external office of this case were not aware of the facts charged; (d) the head of the external office of this case and the head of the external office of this case were not aware of the facts charged; and (d) the head of the external office of this case were not aware of the facts charged, and (d) the head of the external office of this case and the head of the external office of this case were not aware of the facts charged, and (d) the head of the external office of this case were not aware of the facts charged, and (d) the head of the external office of this case and the head of the external office of this case were not aware of the facts charged.

In light of the records of this case, the judgment of the court below is just and acceptable, and the prosecutor's assertion that there was an error of misunderstanding of facts or misunderstanding of legal principles in the judgment of the court below is not acceptable.

· Judgment on the ancillary charges

㈎ 형법 제114조 ‘범죄집단’의 의미

1) Details and legislative history of Article 114 of the Criminal Act

Article 114 of the Criminal Act provides that “A person who forms an organization or group with the intent to commit a crime corresponding to death, imprisonment for life or for a maximum of four years or more, or who joins such organization or group or acts as a member thereof shall be subject to punishment prescribed for the intended crime.” The Criminal Act was amended on April 5, 2013 by partially amending the United Nations Convention on the Prevention of Crimes, which is signed by the Republic of Korea on December 13, 200, provides that “a group with the intent to commit a crime” shall be punished for the purpose of: (a) an organization or group with the intent to commit a crime; (b) an organization or group with the intent to commit a crime is subject to punishment; (c) an organization or group with the intent to commit a crime with the intent to commit a crime without limitation of statutory penalty; and (d) an organization or group with the intent to commit a crime with the intent to commit a crime beyond four years’ maximum statutory penalty; and (d) an organization or group with the intent to commit a crime with the intent to commit a crime more than four years’s term of punishment.”

2) Applicable legal principles

An organization aimed at a crime under Article 114(1) of the Criminal Act means a continuous combination with the common purpose of which many and specified persons conduct a certain crime and has a minimum command system leading the organization (Supreme Court Decision 85Do1515 delivered on October 8, 1985). Article 4 of the Punishment of Violences, etc. Act refers to a group of natural persons with a common purpose of committing a crime, such as violence, as provided in the above Act. Thus, it is sufficient that it is not necessary to continuously change with an organization as provided in the above Act, and that there is a combination with the number of executives who are gathered at the same place, and the form of the organization is sufficient to distinguish the number of executives who are provided in the above Act (Supreme Court Decision 76Do3267 delivered on December 14, 1976).

In addition to the contents and legislative history of the above precedents as to “a group” under the Punishment of Violences, etc. Act, and the literal meaning of “organization” or “group” under the text and purport of the above precedents as to “a group” under the Criminal Act, it is reasonable to interpret that the “criminal group” under Article 114 of the Criminal Act is equipped with a specific system or structure that forms an organization to the extent that it can distinguish between the joint principal and joint principal offender, even if it does not necessarily require continuous combination of several persons, and it is sufficient to interpret that the organization should have a specific structure or structure that forms an organization to the extent that it is possible to distinguish between the joint principal offender and joint principal offender.

㈏ 이 법원의 판단

In light of the above concept of “crime group”, in light of the following facts and circumstances, which can be seen by the evidence duly adopted and investigated by the court below and the court below, the evidence submitted by the prosecutor alone is not sufficient to recognize that the Defendants, mainly engaged in external office of this case, constituted “a group for crime purposes” as provided in Article 114 of the Criminal Act, and there is no other evidence to prove otherwise.

① As properly explained by the lower court, the external office of this case was similar to the organization of the company, and the position and role of the representative, team leader, team leader (e.g., team leader and telephone counselor) was shared. However, the members appear to have formed an individual team based on mutual friendly relations (Evidence Records 430 pages) and the movement by team was relatively flexible, and there was no systematic organization or structure centered on the representative. On the first instance, Nonindicted 14, etc., who served as Defendant 11 or telemast (TM), started an interview with Defendant 7 or Defendant 4 (Evidence Record 3567, 4086 pages) and did not appear to have been conducted without going through any particular procedure, such as delegation or ex post approval by Defendant 1 (Evidence Record 43030 pages).

② According to the files made up of the U.S.B. confiscated by Dogggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggg

③ Even if the Defendants’ act centered on the external office of this case was performed by the Defendants, it appears that the Defendants’ participation as a single organic unification body was not a prerequisite for the success of crime, and that the proceeds of the crime was not distributed to all persons who contributed to the commission of the crime (it is not a structure that can lead to the success of the crime closely and systematically even if it is constituted as the organization like the Bophishing organization). According to the Defendants’ statement by the assent, the profits basically depend on the individual performance of each team, and the acquisition and distribution of each team was made by each team.

④ In light of the fact that Defendant 1 received commercial expenses from each team, but did not receive from the team to work without attending the outside office, and Defendant 1 paid the outside office, it seems that it was difficult for Defendant 1 to maintain and manage the office. Likewise, the advertising expenses that Defendant 1 received were considered to have the nature of actual expenses (Evidence Records 4333 pages, etc.). In other words, it is difficult to view that Defendant 1 had the character of “amount paid” that can be seen as a criminal organization.

⑤ Defendant 1 does not seem to have had a overall system or a compulsory means of management of commuting to and from work, in addition to the chilling expenses managed by each type of death, even though he/she paid a bounty based on the performance, and implemented a return to and from work or a ceremony.

6. In addition, even if based on the statement of the Defendants, there is no specific organic relationship with each team beyond sharing the same external office with Defendant 1, who served as the representative of each team.

E. Determination on the assertion of unfair sentencing against the above Defendants 1, 2, 3, 4, 9, and 11 by the public prosecutor and the prosecutor

If there is no change in the conditions of sentencing compared to the first instance court, and the sentencing of the first instance court does not deviate from the reasonable scope of discretion, it is reasonable to respect this (see Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015).

In light of the records and arguments of this case, the circumstances alleged by the Defendants and the Prosecutor as the grounds for appeal appear to be reflected in the sentencing judgment of the lower court, and there is no change in the conditions of sentencing.

However, it cannot be deemed that there was an additional change in circumstances in the party trial, and Defendant 1 agreed with the victim Nonindicted 15 and Nonindicted 16 in the trial. However, in light of the following: (a) the number of crimes committed by the above Defendant was 71 times; (b) the role and profits acquired in the entire criminal act as the representative of the external office, and the degree of damage recovery compared to the total amount of damage (if combined with the 35 victims agreed in the original trial, the agreement was reached with the 37 victims out of 71).

Ultimately, the Defendants and the prosecutor’s argument of unreasonable sentencing is without merit.

F. The Prosecutor’s assertion of unfair sentencing against the Defendant 5, 6, 7, 8, 10, 12, 13, 15, 16, 17, 18, 19, 20, and 21

Considering the circumstances asserted by the prosecutor as the grounds of appeal, each sentence imposed on the Defendants cannot be deemed unfair, even if the prosecutor’s assertion as the grounds of appeal is considered.

Therefore, the prosecutor's argument of unfair sentencing is without merit.

G. Determination on the assertion of unfair sentencing against Defendant 22 and the above Defendant by the prosecutor (the part concerning the crime of aiding and abetting fraud on December 5, 2016 against Defendant 1)

Considering the circumstances asserted by the Defendant and the Prosecutor as the grounds for appeal, the lower court’s punishment is too heavy or too uncomfortable, even if the circumstances alleged by the Defendant and the Prosecutor are considered as the grounds for appeal.

Therefore, the defendant and prosecutor's argument of unfair sentencing is without merit.

3. Conclusion

Therefore, the prosecutor's appeal against the above defendants 1, 2, 3, 4, 9, and 11 and the prosecutor's appeal against the above defendants 1, and the prosecutor's appeal against the victim non-indicted 1 on December 5, 2016 among the judgment of the court of first instance against the above defendants 5, 6, 7, 8, 10, 12, 13, 15, 16, 17, 18, 19, 20, and 21 are all dismissed pursuant to Article 364 (4) of the Criminal Procedure Act on the ground that "the prosecutor's appeal against the above defendants 1, 2, 4, 9, and 111 are without proof of criminal facts, and the prosecutor's appeal against the above defendants 2 and the prosecutor's appeal against the above defendants 1, 200 and the prosecutor's appeal against the above defendants 2, 325,000,000

The summary of the facts constituting an offense and evidence acknowledged by the court of first instance [criminal records] of the judgment of the court of first instance is as follows: “Defendant 14 was sentenced to the suspension of the execution of two years on September 19, 2019, to community service 80 hours on September 27, 2019, and the above judgment became final and conclusive on September 27, 2019,” and the summary of evidence [10/16/100 on October 16, 2019] were added to the column of the first judgment [24/8], and the part of “△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△” and “Ssi” from around 124/8 of the first judgment as “the head of △△△△△△△△△△△△△△△△△△△△△△△△△”, and the part of the judgment concerning the crime of fraud falls under the scope of the victim 121515/61 of the judgment.

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

Defendant 14: Articles 347(1) and 30 of the Criminal Act; the choice of imprisonment

Defendant 22: Articles 347(1), 32(1) (a) of the Criminal Act, Article 152(1) (a) of the Criminal Act, Article 152(1) (a) of the Criminal Act, the choice of imprisonment

1. Handling concurrent crimes;

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

1. Aggravation for concurrent crimes;

Defendants: former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act

1. Suspension of execution;

Defendant 14: Article 62(1) of the Criminal Act

1. Social service order;

Defendant 14: Article 62-2 of the Criminal Act

1. Defendant 14

A punishment as ordered shall be determined by comprehensively taking into account the following factors: (a) the Defendant recognized the instant crime; (b) the number of crimes is four times; (c) the criminal proceeds are relatively large; (d) the victim has agreed with some of the victims; (d) the equity between the cases where the judgment is rendered simultaneously with the crime for which the judgment has become final and conclusive; and (d) other various sentencing conditions specified in the arguments in the instant case, including the Defendant’s age, character

2. Defendant 22

In light of the circumstances that are favorable to the defendant, such as the fact that damage has been recovered to co-defendants who are the principal offender, the fact that the defendant is to be mitigated as he falls under aiding and abetting crimes, and the fact that equity is to be taken into account with the case of concurrent crimes in the judgment of the court below which became final and conclusive because he falls under concurrent crimes in the latter part of Article 37 of the Criminal Act, but the number of fraudulent offenses committed by the defendant is more than 70 times, and the amount of damage has not been reduced, and the defendant has played a key role in providing external office, sales contract form, etc. indispensable for the principal offender to commit the crime, and the fact that the crime of false testimony is not good for the purpose of preventing the application of repeated crimes with Nonindicted 3 as to perjury.

The punishment as ordered shall be determined by comprehensively taking into account the above favorable circumstances and unfavorable conditions, and other various sentencing conditions specified in the pleadings of this case, such as the defendant's age, character and conduct, environment, and circumstances after the crime.

The summary of this part of the facts charged is the same as the part on each defendant among the above 2-D. (main facts charged) and 2-D. (Preliminary facts charged) of the above 2-D. This part of the facts charged is the same as the part on each defendant, which is referred to in 2-D. (iv) and (iv) because there is no proof of a crime as seen in 2-D. and (iv) so, it is necessary to determine innocence pursuant to the latter part of Article 325 of the Criminal Procedure Act, or

[Attachment]

Judges Lee Chang-dong (Presiding Judge)

1) Although the prosecutor’s written application for Amendments to Bill of Indictment is written as “Defendant 104, Defendant 105, and Defendant 106”, it is obvious that it is a clerical error in the “Defendant 1”.