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

(b) Violation of the Act on the Aggravated Punishment of Specific Economic Crimes;

1. A;

2. B

Maximum territorial jurisdiction (prosecutions), Gangwon-gu Office (Public trial)

Law Firm C (For Defendant A)

Attorney D

Law Firm E (Defendant B)

[Defendant-Appellee]

February 7, 2017

Defendant A shall be punished by imprisonment for two years, and imprisonment for one year and six months, respectively.

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

Criminal facts

【Criminal Power】

On November 15, 2012, Defendant A was sentenced to two years of imprisonment with prison labor for fraud, etc. at the Busan District Court on May 23, 2013, which became final and conclusive on May 23, 2013. On September 27, 2013, Defendant A was sentenced to two years of suspension of execution on September 5, 2013, which became final and conclusive on October 5, 2013.

【Criminal Facts】

Defendant A, while substantially operating the Victim G Co., Ltd. (hereinafter “victim”) from around 2008 to November 201, 201, is a person who has overall control over the management of property, finance, accounting, etc. as the representative director of the Victim Company from June 2009 to around November 201. Defendant B, as a creditor of Defendant A, was involved in the operation of the Victim Company, and was a manager of the Victim Company from March 2009 to November 201, and was in charge of assisting and managing the Victim Company.

Defendant A (hereinafter referred to as the “instant investment agreement”) was carried out from around 2003 to Ha, the business of opening a charnel house in the Gyeong-gun, Chungcheongnam-gun, Gyeong-gun, and the construction was suspended several times due to the shortage of funds, Defendant A (hereinafter referred to as the “J”) decided to complete the construction after receiving an investment from K by the representative director of the J Co., Ltd. (hereinafter referred to as the “J”) on June 16, 2008. Defendant A, on July 16, 2008, intended to establish a victim company for the purpose of building a charnel house and selling it in lots, and deliver 50% of the shares of the said company to K (hereinafter referred to as the “instant investment agreement”).

Accordingly, from July 16, 2008 to March 2009, the J paid approximately KRW 1.7 billion to the victim company. Defendant A completed the construction of the second floor cemetery-related building (hereinafter referred to as “the instant real estate”) located at H H in the above H on October 23, 2008, and completed registration of preservation of ownership under his own name after obtaining approval for use. The victim company, on October 24, 2008, re-loans the said money invested from J to Defendant A as collateral and completed the “provisional registration of ownership transfer claim based on a pre-sale agreement” (hereinafter referred to as the “provisional registration”). Accordingly, the Defendants, as the representative director and manager of the instant building, should faithfully manage and preserve the property of the victim company, such as the instant provisional registration.

Nevertheless, on August 28, 2012, the Defendants’ shareholder L, etc. who acquired shares from K, intended to dismiss them with the permission from the Seoul Central District Court to convene a temporary general meeting of shareholders of the victim company, and Defendant A violated the representative director’s duty, thereby cancelling the provisional registration of this case by the victim company established in the instant real estate as security of KRW 1.7 billion against the victim company’s obligation to the representative director, and Defendant B had the intent to secure the existing claim against Defendant A by violating the manager’s duty.

Accordingly, on September 5, 2012, Defendant B violated the above manager’s duties, and filed a lawsuit seeking cancellation of the provisional registration of this case (Seoul Central District Court 2012Gahap75579, hereinafter “the lawsuit of this case”) with the Seoul Central District Court on September 5, 2012, Defendant B submitted a complaint stating the false fact that “The provisional registration of this case is invalid as a provisional registration by means of false false conspiracy between the Defendant and A, even though the victim company knew that the provisional registration of this case was completed in order to lend and secure the money invested in J to Defendant A.

Accordingly, on December 28, 2012, the Defendants conspired to submit a complaint and a written answer stating false facts in violation of their duties to the said court, which ordered the said court to render a judgment against the victim company (hereinafter “the instant judgment”) on February 8, 2013, thereby having the Defendant A obtain pecuniary benefits equivalent to KRW 1.7 billion in provisional registration, by cancelling the provisional registration of the instant real estate on February 8, 2013, and thereby having the victim company suffered damages equivalent to the same amount.

Summary of Evidence

1. Defendants’ partial statement

1. Some statements made by the prosecutor's protocol of interrogation of the Defendants (including M substitute parts)

1. Some of the statements made by the police interrogation protocol (M replaced parts) against the Defendants

1. Copy of the protocol of suspect interrogation of Defendant A by the police;

1. Copy of the statement made by the police against the defendant A;

1. The police statement of M, N, orO;

1. Copies of the police statement concerning P;

1. A complaint prepared by G Co., Ltd. (only one No. 1, hereinafter referred to as "Evidence List");

1. A certificate prepared by Q and R (86,87);

1. A copy of the register (G, 2), copy of the register (G, 3), electronic litigation (building, 4), fact-finding certificate (6), short-term loan statement (7), advance payment statement (8), confirmation statement (0, 13), copy of civil litigation records (Seoul Central District Court Decision 2012Gahap7579, 20), copy of the document (21 through 29), court rulings (with regard to provisional registration), detailed statement of deposit transaction (G, 32), agreement (G, 43), 201, Busan District Court Decision 203G deposit (47), 2013, 2013Na1690, 2057, 209, 3297, 301, 297, 305, 297, 297, 301, 297, 297, 301, 507, 57, 507, 201, 194, 297, 2941, 197

1. Investigative reports (in the course of proceedings for cancellation of provisional registration, 39), investigation reports (in the course of proceedings for cancellation of provisional registration, 39), two copies filed by a suspect B, 90), and accompanying documents (91 through 95), investigation reports (in the course of proceedings filed by a complainant M on the side of the complainant), 111), and accompanying documents (in the course of proceedings for cancellation of provisional registration, 112, 113);

1. Before the judgment of Defendant A: A-related investigation report (Attachment of the judgment related to A, 40), judgment (limited to 6009, 20132321, 41, 2009, 2009, 20132321, 41), investigation report (report attached to the judgment), judgment (limited to 100, 200, 2010, 546, 2012283, 2012, 206, 101), criminal records (17), and criminal records;

Application of Statutes

1. Article applicable to criminal facts;

○ Defendants: Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 13719, Jan. 6, 2016); Articles 356, 355(2), and 30 of the Criminal Act

1. Handling concurrent crimes;

○ Defendant A: the latter part of Article 37 and Article 39(1) of the Criminal Act

1. Discretionary mitigation;

○ Defendants: Articles 53 and 55(1)3 of the Criminal Act (hereinafter referred to as “convenive circumstances”)

1. Suspension of execution;

○ Defendants: Article 62(1) of the Criminal Act (The following extenuating circumstances among the reasons for sentencing)

Judgment on the Defendants and their defense counsel's arguments

1. Summary of the assertion

A. Defendant A borrowed money from J, and the victim company does not borrow money invested from J again. Therefore, cancellation of the provisional registration of this case is merely a false payment, and it does not constitute an act of breach of trust against the victim company.

B. As Defendant B filed the instant lawsuit with the belief that the provisional registration of this case was completed falsely according to Defendant A’s horses, Defendant B did not have any intent to commit a crime of breach of trust, and the secured obligation of the provisional registration of this case is not KRW 1.7 billion.

2. Determination:

A. According to the following facts or circumstances, whether the provisional registration of this case was completed without any cause and the amount of the secured obligation is acknowledged by the evidence duly adopted and investigated by the court, the J agreed to invest the funds in the victim company and to lend the funds again to the defendant A, and accordingly, the provisional registration of this case was completed in order to secure the defendant A's obligation to pay a loan of KRW 1.7 billion to the victim company.

1) After entering into the instant investment agreement, J and Defendant A established an independent victim company due to Defendant A’s credit problems, etc., and invested in the victim company, and conducted the instant project in the name of the legal entity. However, the victim company’s shares were divided according to the ratio of shares in the instant investment agreement.

2) From July 16, 2008 to March 2009, J remitted part of the investment amount under the instant investment agreement to the account of the victim company. Defendant A received the said money from the victim company with the consent of the shareholders of the victim company, including K, and used it for the repayment of his/her debt. The provisional registration of this case was completed on October 24, 2008, where the said investment amount was transferred.

3) Telecommunications, a certified tax accountant of the J and the victim company, lent KRW 1.7 billion to the victim company.

The confirmation of facts was prepared and submitted by the J. The statement of short-term loans and the statement of advance payment of the victim company also stated that the J lent KRW 1.7 billion to the victim company and that the victim company paid KRW 1.3 billion to the defendant A.

4) During the course of the investigation of a case in which U acquired a loan of KRW 150 million by fraud, and the defendant A and K filed a criminal complaint in fraud, the defendant A stated that he borrowed KRW 1.5 billion from the victim company from July 16, 2008 to January 2009, the victim company established the provisional registration of this case in order to secure the above loan (Evidence No. 61-63 pages). P, who arranged the investment agreement of this case, stated that the investigative agency lent KRW 1.7 billion to the victim company (Evidence No. 77 pages).

5) Defendant B, a creditor of Defendant A, performed a lawsuit as a manager of the victim company in a lawsuit seeking revocation of fraudulent act against the victim company, etc. (Dasan District Court 2008Gahap23357). Defendant B appeared on the date of pleading of the said lawsuit and claimed that the victim company borrowed KRW 1.7 billion from J over 20 times from July 2008 to October 20, and lent it to Defendant A for business funds. Defendant B directly appointed an international law firm as the legal representative.

6) The victim company filed an appeal subsequent to the instant judgment on February 18, 2013.

The appellate court sentenced the dismissal of appeal on September 6, 2013 (Seoul High Court 2013Na16901).

However, on February 27, 2014, the Supreme Court reversed the judgment of the court below and remanded the case to Seoul High Court (Supreme Court Decision 2013Da79344) with the purport that it may be deemed that the money was lent to the victim company and that the money was lent to the defendant company (Supreme Court Decision 2013Da79344). On January 27, 2016, the Seoul High Court rendered a judgment against the plaintiff on the ground that the judgment of the court below was reversed and remanded to the Seoul High Court (Seoul High Court Decision 2014Na15639).

7) In the lawsuit claiming a loan amount of KRW 1.7 billion filed by the victim company against the defendant A at the Busan District Court, the above court rendered a judgment in favor of the plaintiff on August 11, 2016, recognizing the fact that the amount loaned by the victim company to the defendant A was 1.7 billion, which recognized the fact that the amount loaned by the victim company to the defendant A was 1.7 billion.

B. Whether there is a crime of breach of trust (Defendant B)

Defendant B lent KRW 500 million to Defendant A on October 18, 2004. However, in full view of the following facts or circumstances acknowledged by the evidence duly adopted and investigated by this court, Defendant B can be recognized as having filed the instant lawsuit in collusion with Defendant A in order to cancel the provisional registration of this case, such as the facts stated in the judgment, with knowledge of the existence of the secured obligation of the provisional registration of this case.

1) From around 2001, Defendant B began to invest in the instant business, and from around 2004, Defendant B was running the instant business entirely with Defendant A. Defendant B was registered as the manager of the victim company on March 6, 2009, and Defendant B was also registered as the auditor on July 29, 2009.

In addition, Defendant A repaid the secured obligation and provisional seizure obligation of the right to collateral security established on the site of the instant real estate with the money borrowed from the victim company, and participated in the procedure of cancelling the registration of collateral security and releasing the execution of provisional seizure (Evidence No. 70,71).

2) From around 2004, Defendant B had a claim against Defendant A, and was aware of the establishment of a provisional registration from around the time when the provisional registration of this case was completed in around 2008. However, Defendant B filed the instant lawsuit on August 28, 2012, where L who acquired the shares of the victim company from K, was subject to a decision to permit the convocation of a provisional general meeting of shareholders (Seoul Central District Court 201Fhap8) from August 28, 2012, which was the date immediately after September 5, 2012. L was appointed as L director at the temporary general meeting of shareholders on October 8, 2012, and Defendant B was dismissed from the manager (the representative director A was cancelled on June 30, 2012).

3) Defendant B submitted a written complaint by indicating the address of Defendant A, not the location of the principal office of the victim company, as the place of service. Defendant A served the said written complaint on September 14, 2012, and submitted a written answer on September 24, 2012, which was the subsequent draft of the Defendant B’s argument.

4) Prior to Defendant B’s filing of the instant lawsuit, the registration of provisional seizure, such as Q, X, and Y, was completed on the instant real estate. If Defendant B filed the instant lawsuit in order to secure his claim against Defendant A as a creditor against Defendant A, it seems that it would normally go through the process of obtaining enforcement title or provisional seizure against Defendant A prior to the cancellation of the instant provisional registration by filing the instant lawsuit. However, Defendant B filed an application for payment order with Defendant A on January 28, 2013, which was subsequent to the instant judgment, and completed the provisional seizure registration on the instant real estate on February 8, 2013.

5) As described in the above A. 5, Defendant B, as the manager of the victim company, was present at the date of pleading for the revocation of fraudulent act filed by V, and argued that the victim company borrowed KRW 1.7 billion from J and lent it to Defendant A for business funds, and submitted a written response to the same purport.

6) Defendant A also made a statement at an investigative agency to the effect that “The Defendant B had been working for a charnel house since 2001, as in the lower case, and had been registered as a manager, it is too well known that the Plaintiff borrowed money from the victim company.” (No. 61 of the evidence list, No. 733 of the evidence record).

Reasons for sentencing

1. Scope of applicable sentences under law: Imprisonment with prison labor for one year and six months to fifteen years;

2. Scope of recommendations according to the sentencing criteria;

In the case of Defendant A, since each crime of fraud for which judgment has become final and the crime of this case are concurrent crimes under the latter part of Article 37 of the Criminal Act, it is not subject to the sentencing guidelines, but the scope of recommended punishment according to the sentencing guidelines shall be examined to be considered as reference materials

[Determination of Punishment] Type 3 (not less than KRW 500 million but less than KRW 5 billion)

[Special Convicts] Reductions: Non-Punishments

[Recommendation and Scope of Recommendations] Reduction Area, Imprisonment from 1 year to 6 years

3. Determination of sentence: Two years of imprisonment with prison labor for defendants and three years of suspended execution.

Considering the following circumstances, Defendant B-one year and six months of imprisonment, and two years of suspended execution, the following circumstances shall be considered, and the extent of the Defendants’ participation in the commission of the crime, age, character and conduct, environment, motive and circumstance of the crime, means and consequence of the crime, circumstances after the crime, Defendant B’s health condition, etc., the punishment as set forth in the text shall be determined.

Defendant A has been punished two times due to suspended execution. Defendants conspired in violation of the duty to preserve the property of the victim company and cancelled the provisional registration of this case through the lawsuit of this case.

The favorable circumstances of ○○: Defendant A, at the same time as a judgment becomes final and conclusive, takes into account the equity in the case of a judgment. Defendant A is a primary offender. Defendant A has endeavored to ensure the success of the instant business, and appears to have used to repay debts, etc. arising in the course of implementing the instant business most of the funds borrowed from the victim company. Although the instant provisional registration was cancelled according to the instant judgment, the said judgment was reversed following subsequent appeal by the victim company, so the victim company is able to complete the recovery registration of the instant provisional registration. The victim company agreed with the victim company and the victim company does not want

The acquittal portion

1. Summary of the facts charged

Defendant A is a representative director of the victim company and Defendant B is a manager of the victim company, who takes charge of the same duties as the facts stated in the judgment.

On September 5, 2012, Defendant B filed the instant lawsuit with the Seoul Central District Court on September 5, 2012, as stated in the judgment, and submitted a written complaint stating that “The provisional registration of this case is invalid due to a false conspiracy between the Defendant and A, even though the victim company was aware that the funds borrowed from K were lent to Defendant A and the provisional registration of this case was completed, Defendant A, the representative director of the victim company, submitted a written statement stating that “The provisional registration of this case is invalid due to a false conspiracy between the Defendant and A.” on September 24, 2012.

As a result, the Defendants conspired to submit a complaint and a written answer stating false facts, and deceiving the above court, which, on December 28, 2012, ordered the above court to render a judgment against the victim company, on which February 8, 2013, the above court revoked the provisional registration of this case, thereby allowing the Defendant A to obtain pecuniary benefits equivalent to KRW 1.7 billion of the obligation to be subject to provisional registration, and suffered damages equivalent to the same amount in the victim company.

2. Determination

A. In a lawsuit fraud, the judgment of the court, which is the blind party, should have the content and effect in lieu of the victim's act of disposal. Thus, in a case where the defendant conspired with others and filed a lawsuit against the accused, or where the contents of the judgment that the accused made by deceiving the court are consistent with the intent of the other party to the lawsuit, the contents of the judgment are consistent with the intention of the other party to the lawsuit, and thus it cannot be deemed that there was an act of disposal by mistake as property (see, e.g., Supreme Court Decisions 96Do1265, Aug. 23, 196; 97Do2430, Dec. 23, 1997).

B. According to the evidence duly adopted and examined by this court, the court of this case rendered the judgment in favor of the plaintiff by submitting a written reply recognizing the allegation that the provisional registration of this case in this case is invalid by false representation as the representative director of the victim company in this case among the litigation of this case, and the court of this case rendered the judgment in favor of the plaintiff, considering that there is no dispute over the cause of the claim. The judgment of this case became final and conclusive by the appeal period (the fact that the changed representative director subsequently filed an appeal after subsequent completion of the judgment is the same as in the above). If the court of this case acknowledged the facts that the defendant A, who has the authority to conduct all judicial acts as the representative director of the victim company in this case, was the legitimate intent of the victim company. Accordingly, the judgment of this case is based on the agreement between the plaintiff Eul and the victim company, which is the plaintiff, and therefore, it is difficult to view that there is fraud of the lawsuit because the contents of the judgment that the defendants intended to mislead the court and obtained are consistent with the intention of the other party. Other evidence presented by the prosecutor alone is difficult to prove that there exists any act of disposal by mistake.

3. Conclusion

This part of the facts charged is a case without proof of a crime, so the innocence should be pronounced pursuant to Article 325 of the Criminal Procedure Act, but in so long as the defendant is found guilty of a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust).

The presiding judge, judge and male citizens;

Judges Yoon Young-young

Judges or Jae-young