Defendant 1 and one other

Defendants and Prosecutor (Defendant 2)

Coinization

Law Firm Law Firm, Attorneys Yoon Jong-tae et al.

Suwon District Court Decision 2007Ma1866 Decided December 26, 2007

All appeals by the Defendants and the Prosecutor are dismissed.

As to Defendant 1 (Non-Indicted 1 of the Supreme Court Decision), 107 days of detention in the trial before the pronouncement of this judgment shall be included in the penalty of the original judgment.

1. Summary of grounds for appeal;

A. As to Defendant 2 (Defendant 2)

1) Meritorious legal principles

Defendant 2, while Defendant 1 and Defendant 1 conspired to commit the crime of fraud, filing a complaint as if Defendant 1 had committed the crime of fraud, can induce the investigation agency to take wrong dispositions, and may cause unfavorable circumstances to Defendant 2 in relation to the relationship with the victim or in sentencing. Thus, the lower court acquitted Defendant 2 of the charges of this case on May 24, 2006. In so doing, the lower court erred by misapprehending the legal doctrine.

2) Points of mistake of facts

In full view of the statement made by Defendant 2 on July 10, 2006 and the statement made by Defendant 2 on the record of statement made by the judicial police assistant, Defendant 2 filed a complaint with the purport that “Defendant 1 exercised the above investigation document to himself separately from the exercise of the above investigation document against Nonindicted 3,” and thus, Defendant 2 may be fully convicted of Defendant 2’s accusation on July 10, 2006 among the facts charged in the instant case, the lower court acquitted Defendant 2 of this part of the facts charged on the ground that it cannot be deemed that Defendant 2’s accusation was punished as the crime of uttering of the above investigation document against himself. In so doing, the lower court erred by misapprehending the facts.

3) The point of unfair sentencing

In light of the fact that the amount of fraud of this case reaches KRW 230 million and the damage recovery was not made at all, and that Defendant 2 transferred all the responsibility to Defendant 1 who is an accomplice, Defendant 2, the lower court’s punishment against Defendant 2 (one year of imprisonment) is too unreasonable.

B. Defendant 1

1) Points of mistake of facts

A) The fact of deceiving the victim Nonindicted 4 by fraud

Although the weight of the steel bars, which are the damaged goods, is 14 tons and the value is 2.8 million won and the freight charges of 600,000 won to be borne by the victim, Defendant 1 borne by Defendant 1 on behalf of the victim, and the victim repaid 2 million won to the victim, the total amount of 2.6 million won should be deducted from the damaged amount, the judgment of the court below convicting the victim Nonindicted 4 of the fraud among the facts charged in this case.

B) The point of obtaining fraud from the victim Nonindicted 3, 5, 6, 7, 8, and 9

Defendant 1, upon Defendant 2’s request, only forged and delivered a sales contract, etc. of the right to sell in lots, and in collusion with Defendant 2, Defendant 3, 5, 6, 7, 8, and 9 did not receive the purchase money from the victim Nonindicted 3, 5, 6, 7, 8, and 9, the lower court found Defendant 1 guilty of obtaining the purchase money from the

2) The point of unfair sentencing

Considering the fact that the error is against the wrong and the failure to recover the damage caused by the failure of the business, that the profit gained by the crime of this case is actually low, and that the damaged product of the embezzlement of this case was returned to the victim, the punishment of the court below (three years of imprisonment) is too unreasonable.

C. Defendant 2

Considering the fact that the court below's punishment (one year of imprisonment) is too unreasonable, taking into account the fact that it reflects the wrong and is going against a new life in the future.

2. Determination

(a) As to the prosecutor’s appeal (except for both forms of unfair punishment);

1) The point of no accusation on May 24, 2006

A) Summary of the facts charged

Defendant 2: (a) around May 24, 2006, at the public service center of the Pakistan Police Station located in Pakistan-si; (b) Defendant 1, in collusion with Defendant 1, 2006, takes place as if Defendant 1 had ownership of the two apartment complexes and two-friendly apartments located in Seodaemun-gu, Chungcheongnam-si; (c) used it to have another person purchase the above apartment and receive the down payment, etc. from them; (d) Defendant 1 was subject to criminal punishment for the purpose of having Defendant 1 purchase the above apartment; (e) Defendant 1 was not subject to criminal punishment for the aforementioned apartment and two-friendly apartment under the name of 30 billion won, including the fact that Defendant 1 received part of the above two apartment and two-friendly apartment under the name of 20 billion won, and (e) was subject to criminal punishment for 10 billion won, including the fact that Defendant 2 received the down payment under the name of 30 billion won, and (e) obtained it from the complainant 200,000 later.

B) The judgment of the court below

Examining whether Defendant 2’s accusation, separate from the contractor, received the down payment, etc. as the victim of fraud, the lower court found Defendant 2 not guilty of the facts charged on the ground that it cannot be deemed that the principal was the victim of fraud, and there is no other evidence to acknowledge it.

C) Determination of the immediate deliberation

Defendant 2: (a) Examining whether a false accusation as if he and Defendant 1 conspired to commit a crime of fraud, even though he committed the crime of fraud, can independently constitute an independent accusation; (b) the crime of false accusation is a crime that mainly protects the proper exercise of the State’s criminal justice or disciplinary rights and protects an individual’s interests that are not unfairly punished or disciplinary measures; (c) the criminal suspect has the right to refuse to make statements; and (d) he does not have the legal obligation to state truth; and (d) he has the tendency to transfer his responsibility to the other party due to the characteristics of the accomplice; and (e) even if the criminal defendant filed a false complaint against the other accomplice, even if he/she filed a false complaint against the other accomplice, the investigative agency has the right to collect evidence to discover truth, regardless of the existence of such complaint; and therefore, (e) it cannot be deemed that the accusation of the other accomplice, even one of his/her accomplices, has the purpose of hindering the State’s proper exercise of the criminal justice rights or unfairly punishing the other; and (e) the judgment not guilty of the facts charged is justifiable.

2) On July 10, 2006, the point of intention

A) Summary of the facts charged

Defendant 2 submitted a written complaint to the public service center of the Pakistan Police Station located in the Si of Pakistan on July 10, 2006 to the effect that Defendant 1 was aware of the forgery of the construction standard subcontract agreement, apartment sale contract, etc. which was forged in the name of Nonindicted 2 and 10, and that Defendant 2 would be subject to criminal punishment for Defendant 1 for the purpose of receiving criminal punishment for Defendant 1.

B) The judgment of the court below

Examining whether the contents of Defendant 2’s accusation against himself/herself, separately from the use of a falsified document against Nonindicted 3, the lower court found Defendant 2 not guilty of the facts charged on the ground that: (a) Defendant 2’s accusation does not clearly state his/her identity as the other party to the exercise of the falsified document on July 10, 2006; and (b) Defendant 1’s receipt of a falsified document does not constitute “a punishment for his/her identity as he/she exercised the falsified document”; and (c) even if based on the written statement on Defendant 2 of the assistant judicial police officer’s preparation, it merely states that “a person would have presented a falsified document and exercised it.” Thus, it cannot be deemed that the delivery of a falsified document to himself/herself is punished as a crime of uttering of the private document, and there is no other evidence to acknowledge it.

C) Determination of the immediate deliberation

In full view of the evidence duly adopted and examined by the court below, the court below was just to have rendered a not-guilty verdict on the above facts charged for the above reasons, and it is difficult to view that the prosecutor erred by mistake as alleged in the grounds for appeal.

B. As to Defendant 1’s appeal (excluding the point of a double-type unfair act)

1) The fact of deceiving the victim Nonindicted 4 by fraud

According to the statement of Nonindicted 4’s accusation that the lower court duly adopted and investigated, and the statement of Nonindicted 4’s statement made by the judicial police officer, the lower court acknowledged that Defendant 1 acquired the steel bars from Nonindicted 4 as stated in the criminal facts at the time of original judgment, and it does not seem to have any circumstance that the victim was liable to pay the steel bars or repaid the damaged amount ( even if part of the damaged amount was repaid, this is merely an event after the crime and does not interfere with the recognition of a crime), and it is difficult to view that the lower court erred by misapprehending the facts.

2) The fact of deceiving the victim Nonindicted 3, 5, 6, 7, 8, and 9

Examining whether Defendant 1 conspired with Defendant 2 to buy the purchase price from Nonindicted 3, 5, 6, 7, 8, and 9, the evidence duly adopted and examined in the lower court. In particular, the following circumstances are acknowledged: ① Defendant 1 forged a sales contract, construction work standard subcontract, right and obligation succession contract, confirmation agent, power of attorney, etc.; Defendant 2 knew that Defendant 2 had been aware of the fact that he had been aware of the fact that he had concluded an apartment contract with the above victims using the falsified document, ② Defendant 1 was aware of the fact that he had been notified by Defendant 2 to attend each time when concluding the sales contract; ④ Defendant 1 was aware of the fact that he had received money from the victims, and ④ Defendant 2 was aware of the fact that he had received money from the victims, and ⑤ Defendant 1 conspired to obtain money from Defendant 2, and Defendant 1 had not been aware of the fact that he had acquired money from the victims, ⑤ Defendant 2 conspired to the above fact that he conspired Defendant 1 with the prosecutor’s office that he conspireded Defendant 2 to the above facts.

C. On the issue of unfair sentencing

1) Defendant 1

In light of the following facts: (a) Defendant 1’s mistake is against the victim’s own will and the damaged goods of the embezzlement of this case were returned to the victim; (b) the victim did not recover from damage; (c) the damaged amount exceeded KRW 300 million; (d) Defendant 2 denied it despite the recognition of a public-private partnership with Defendant 2; and (e) in light of various sentencing conditions as indicated in the argument of this case, including Defendant’s age, character and conduct, and environment, it is difficult to deem that the sentence of the lower judgment is unreasonable.

2) Defendant 2

In light of the circumstances favorable to the Defendant, such as the Defendant’s age, character and conduct, and environment, the lower court’s judgment is unreasonable or unreasonable, in light of various sentencing conditions indicated in the instant pleadings, such as the following: (a) Defendant 2 led to the confession of all crimes in the trial; and (b) Defendant 2 did not have any previous record; and (c) the amount of damage in this case reaches KRW 2.3 million favorable to the Defendant; and (d) the amount of damage in this case did not completely recover from damage.

3. Conclusion

Therefore, since the appeal by the defendants and the prosecutor is without merit, all of them are dismissed under Article 364(4) of the Criminal Procedure Act, and as to the defendant 1, 107 days of confinement in the trial under Article 57 of the Criminal Act shall be included in the punishment of the original judgment, and it is so decided as per Disposition.

Judges Lee Jong-dae (Presiding Judge)