(영문) 서울중앙지방법원 2017.11.29. 선고 2017고합564 판결

Defendant A shall be punished by imprisonment with prison labor for a period of three years and six months, and imprisonment with prison labor for a period of three years.

Reasons

Criminal facts

【Criminal Power】

Defendant A was sentenced to ten months of imprisonment for fraud, etc. at the Seoul Central District Court on May 29, 2015, and the above judgment became final and conclusive on December 29, 2016. Defendant B was sentenced to one year of suspension of execution on December 14, 2013 for four months for embezzlement at the Seoul East East District Court. The above judgment became final and conclusive on January 1, 2014.

“2017Gohap564: Joint Offences by Defendant A and B

Defendant A, the representative director of F (hereinafter referred to as “F”) of F (hereinafter referred to as “F”) from F (F) F (hereinafter referred to as “F), was heard prior to the fact that the victim G (hereinafter referred to as “Defendant B”) was seeking to obtain a loan of F (F) stocks of the KOSDAQ-listed company owned by the victim as a collateral, and was accessed by Defendant B (hereinafter referred to as “Defendant B”) on the ground that it was the financial history of several hundred billion Won, and subsequently, the victim’s receipt of F (F) stocks as collateral, extended a loan of KRW 1 billion to the victim and normally stored F (F) stocks, which are the collateral security for the said amount, by the due date.

On March 18, 2013, the Defendants entered into a loan agreement with the victim at the F Office located in Gangnam-gu Seoul, Seoul on March 18, 2013 with 2% of monthly interest rate of 1 billion won and 3 months of the lending period, and Defendant B said, “The F shares offered as collateral shall be kept in real until the due date, and the stock price shall be less than 120% of the principal amount (120% of the principal amount) and shall be disposed of at will and appropriated for repayment of the shares.” Defendant A said, “B’s father and father shall be 0 billion won assets, and Party B shall be 4 billion won of the apartment project in the apartment site execution project in the apartment site, and even if shares are acquired as collateral, there is no absolute disposal or problem to the bond business operator.”

However, the Defendants: (a) received KRW 1 billion from a nominal bondholder H to borrow money from the victim; and (b) concluded a loan agreement with the content that the victim would immediately sell shares as collateral and repay the bonds by installments; and (c) the remaining amount of the bonds in repayment was planned to consume the bonds by dividing them into the usage of personal debt repayment, etc.; and (d) there was no intention or ability to keep the stocks delivered as collateral until the due date for payment.

The Defendants received 1 billion won loan from the victim on the same day and received 80,000 won shares of F in the amount equivalent to KRW 1.44 billion in the market price as collateral, as collateral, from around that time to June 17, 2013, the total market price of KRW 5.8886 billion in total, as shown in the list of crimes in attached Table 1, was issued by the Defendants.

As a result, the Defendants conspired to attract the victim to receive property.

“2017Gohap991: Defendant A

On August 5, 2016, Defendant A made a false statement to the effect that “If Defendant A lends 26 million won to the victim J of Gangwon-do funds necessary for the construction of contact, Defendant A would pay interest of KRW 4 million and principal until August 16, 2016.”

However, Defendant A did not have any specific property or income at the time, and the obligation of financial rights was equivalent to KRW 70,000,000,000, and since the Gangwon-do K Container Construction Corporation was suspended, Defendant A did not have any intent or ability to repay the money even if borrowed money from the victim, and was thought to be used for personal purposes, such as gambling funds.

Defendant A deceiving the victim as such and was transferred KRW 26 million to the Saemaul Cooperative account in the name of the Defendant for the purpose of borrowing money from the victim.

2017Gohap1098: Defendant AL

On November 7, 2016, Defendant A stated that “N in Gangnam-gu Seoul Metropolitan Government M will pay the alcohol value after one week on credit to the victim who worked there.”

However, in fact, Defendant A had no choice but to pay the credit amount with the operating profit of the P Co., Ltd. operated by the P Co., Ltd. with no particular property at the time. However, even if Defendant A had no fixed profit and had been carried out with the business so that he did not receive alcoholic beverages from the victim, he did not have any intent or ability to pay the credit amount within a week

Defendant A, as seen above, had been provided with liquor and service equivalent to the sum of KRW 3,370,000,000, such as the two-way disease, Japanese-state disease, and Domina service on November 7, 2016, as well as the amount of KRW 18,070,000 from November 24, 2016, by means of the above five times in total, as described in the list of crimes in attached Table 2, was provided by the victim.

Summary of Evidence

"2017, 564"

1. Defendants’ partial statement

1. Each legal statement of witness G, Q, H and R;

1. Each prosecutor's protocol of examination of Defendant A and B (including G substitute part)

1. Each prosecutor's statement concerning H and R;

1. Each police statement of S, H, T, or U;

1. A written agreement on stock security loan, content certification (case of stock recovery), current status of stocks offered as security and certificate of confirmation, current status of B stock security loan, details of stock price change, F settlement statement, list of shareholders, court rulings, certificates of stock holding issued on April 30, 2013, certificates of stock holding issued on April 30, 2013, F details of transactions, details of each stock account, B witness correspondence (2013Gohap1453), H witness examination statement (2013Gohap1453), Defendant examination statement (2013Gohap1453);

1. Each investigation report (to submit details of changes in the register of shareholders of the F major shareholder, U.S.);

"2017 Highly 991"

1. Defendant A’s legal statement

1. Each police statement made to J and V;

1. A complaint, a personal credit information inquiry, and a reply;

1. Investigation report (verification ofW relative telephones for Witnesses);

"2017 Gohap1098"

1. Defendant A’s legal statement

1. Statement made by the police about 0;

1. A written statement;

1. A previous criminal record, a statement of account, and a statement of character comparison;

1. Defendants’ respective legal statements

1. The results of each inquiry and the report of investigation (criminal records against suspects) (not less than 2017 high-priced 564 criminal records);

Application of Statutes

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

○ Defendant A: Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 347(1) and 30 of the Criminal Act (hereinafter “G fraud”), Article 347(1) of the Criminal Act, and Article 347(1) of each Criminal Act (as a whole, the commission of fraud to J,O, fraud to0, and fraud to0)

○ Defendant B: Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 347(1) and 30 of the Criminal Act (generally, choice of limited 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;

○ Defendant A: The first sentence of Article 37, Article 38(1)2, and Article 50 of the Criminal Act are the largest penalty provided for in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

1. Discretionary mitigation;

Defendants: Determination of the Defendants and their defense counsel on the Defendants’ assertion regarding Articles 53 and 55(1)3 of the Criminal Act (Article 55(1)3) of the Criminal Act

1. As to the defendant A's argument about the target and value of the fraud

A. Summary of the assertion

The intent of the Defendants was to acquire the difference between the money and the money acquired by selling the same money by lending the money to the Defendants, not to acquire the F share itself from the victim.

Therefore, the subject of the fraud of this case is not a share certificate itself, but a property profit from the disposal of stocks, and the property profit acquired by the defendants is not a property share price of 5.886 billion won, but rather a property share price of 4.02 billion won that the defendants loaned to the victim and the market price of 5.86 billion won, which is the difference of 5.86 billion won and the market price of the shares. Since the amount of profit does not exceed 5 billion won, Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes cannot be applied.

B. Determination

The crime of fraud, the content of which is the taking-off of property, is a violation of the victim's property by deception, and therefore, the crime of fraud is established. Even if considerable consideration has been paid or no damage has been inflicted on the victim's entire property, it does not affect the establishment of the crime of fraud. Therefore, even if the price for taking-off in part has been paid in a crime of fraud, the amount obtained by deception is not the difference between the value of the property given from the victim and the price deducted for taking-off (see, e.g., Supreme Court Decision 2006Do7470

In this case, even if the defendants acquired the share certificates as collateral for the loan and actually paid the loan to the victim, since the subject of deception is the share certificates themselves, it shall be deemed the amount equivalent to the market price, which is the value of the F share certificates, not the difference after deducting the above loan from the value of the share certificates issued through deception.

Defendant A and his defense counsel shall not be accepted.

2. As to the Defendant B’s assertion on the crime on March 8, 2013 (Attached 1 List Nos. 1)

A. Summary of the assertion

In relation to the first crime of fraud on March 18, 2013, Defendant B only lent an account necessary for a stock security loan to Defendant A, and at the time, Defendant A did not know that he/she intended to sell his/her shares through H immediately after he/she received shares from the victim as a security. Therefore, Defendant B does not bear the responsibility for the crime of fraud in relation to this part of fraud.

B. Determination

Comprehensively taking account of the following facts and circumstances revealed by the evidence duly adopted and investigated by this court, it can be recognized that Defendant B conspired with Defendant A in advance with regard to the fraud crime on March 18, 2013, or was engaged in the act of execution by combining at least Defendant A, in consecutive order, and implied intent, and was functionally shared by Defendant B and his defense counsel. This part of the assertion is rejected.

① Defendant A, an accomplice, has consistently made a statement from the investigative agency to the present court to the effect that “Defendant B was aware that he would immediately sell the F shares that he received from the victim from the beginning.”

② At the time of borrowing money from the Defendants, the victim stated to the effect that “If a bondholder borrows money from a bond company as collateral and receives shares, the bond company will sell shares and thus, the right of management would not be avoided from the bond company.” (In the case of the above investigation records, the legal statement of the witness G, three rights 586 pages of investigation records of the case 2017Da574 and hereinafter referred to as “in the case of the above investigation records, only several rights” are indicated).

Nevertheless, Defendant B, as her own history, lent the money of H to the victim by deceiving the victim, and all the information necessary for the sale of F shares, such as the passbook, seal, password, and authorized certificate, established for the purpose of suffering F shares as well as the F shares as well as the F shares secured by the victim, in the name of the branch of T, U, and other persons, including T, U, etc., in excess of H (Defendant B’s legal statement, 589 pages).

In this process, Defendant B could have sufficiently predicted that H will sell the F shares secured by the victim as soon as possible.

③ Defendant B made a statement to the effect that “I became aware of the fact that T having lent its stock transaction account was being sold at will from the one’s own stock account,” and that “I became aware of the fact that I would sell shares received as security by a nominal bondholder. However, upon being examined by a witness at an investigative agency, I did not at all make a statement to the effect that T was informed to Defendant B of the fact that shares were sold at the one’s own stock transaction account.”

④ Defendant B actively participated in taking F shares as a security for a loan by taking advantage of financial power, and there is no choice but to know the fact that the shares are sold. As such, Defendant B did not have any reason to conceal the fact that Defendant B would immediately sell the secured shares.

⑤ Defendant B received, on March 18, 2013, the price for the crime of fraud on his own, and received entertainment from the victim, and continued to participate in the crime of fraud thereafter.

6) The Defendants stated in this part of the loan 1 billion won to be 60 million won if they did not immediately sell the shares received as collateral (i.e., 2% per month for the lending period of 1 billion won). However, Defendant B stated in this court that “in the beginning of the opening of the opening of the opening of the opening of the opening of the opening of the opening of the opening, they would be paid KRW 15 million at the expense of lending the father’s deposit account.” The investigative agency stated that “The Defendants would be paid KRW 500-1,000 per account under the pretext of lending the securities transaction account of not only 500-1,000 won per account (T and U.)” (3°635 pages). Accordingly, considering that not only the amount that Defendant B received as collateral loan, but also the amount that Defendant B received as collateral loan of KRW 250-4,000,000 from KRW 150 to KRW 500,000,00 per account, as Defendant B’s deposit account.

3. As to the Defendants’ assertion on the crime on May 7, 2013 (attached Form 1 Crime List 5)

A. Summary of the assertion

In May 7, 2013, the Defendants received 70,000 shares from the victim, but the shares were received as a collateral for the purchase of a separate FF shares or as a revenue and expenditure, and the shares were not acquired by deception by deceiving the victim as stated in the facts constituting a crime.

B. Determination

According to the following facts and circumstances revealed through each legal statement of the witness G, Q and H, F transaction details, and each of the certified copies of each judgment, the Defendants may fully recognize the fact that the Defendants deceptioned the victim and obtained 70,000 shares as additional security title by deceiving the victim. The Defendants and their defense attorneys’ allegation in this part shall not be accepted.

When IF shares continuously drop, the victim proposed to purchase 50 million won or more of the shares offered as collateral and to pay 100 million won or more of the shares to the defendants for three months. On April 26, 2013, the period of 50 million or more shall be 3 months and 20 billion won of the purchase price shall be 60 million won or less, and 30 million won of the purchase price shall be agreed to purchase 50 million won or less as collateral and 40 million won of the total purchase price of the shares shall be 60 million won or less. The defendants agreed to purchase 60 million won or less of the shares in the above 80-60-60-10-60-60-60-60-60-60-60-60-60-60-80-60-60-60-60-60-60-60-60--70-60-70-70-70-70-70-

However, the above F details of transactions include the details of the transaction of stocks offered as collateral for the loans, which are the crime of fraud in this case, separately from the above "80,000 shares", which were offered as collateral for the loans from the Defendants on May 7, 2013 (However, unlike the Defendants received shares as collateral for the payment of loans from the victims, H appears to have received KRW 100,000,000 from the Defendants). In relation to such statements, H also stated to the effect that "the security for the loans made on the same day as on May 7, 2013 and the security for the separate purchase of stocks are separate."

② consistently stated from the investigative agency to this court that Q, a victim of G and G’s employee, “F shares issued to the Defendants on May 7, 2013 are delivered according to the Defendants’ request that the price of F shares should be lowered as stated in the facts constituting an offense and the additional security for the existing loan is needed, and it is not delivered as security based on the separate expectation of purchase of shares.”

③ On May 7, 2013, Q, an employee of the victim, stated that “additional Security” was paid on May 7, 2010 at the bottom of the site that printed out the list of the F shares in question, when issuing to the Defendants on May 7, 2013 (Article Q Q Q’s legal statement, 1st page 45). It means that “Additional Security” is paid as security not only as a security related to the separate stock purchase transaction provided by this 70,00, but also as a security for the previous loan’s stocks (Article 23(1) of the Act).

④ On the contrary, the Defendants did not clearly state whether they received the said 70,000 shares as a collateral for a separate stock purchase transaction, or not, as a means of a separate stock purchase transaction.

① In addition, Defendant B made a statement on May 7, 2013 on the shares received at an investigative agency as to the 70,000 shares, and did not receive the said shares under the pretext of securing or raising funds for the separate shares purchase transaction (3rd page), and Defendant A made a statement at an investigative agency only to the effect that “whether or not the said shares were received as a security loan” was not memory, and there was no statement related to the separate shares purchase transaction (3rd page 659,60), and all of the Defendants were to receive a separate share purchase transaction (3rd page 659,660) from the Seoul Central District Court Decision 2013No1453 on the ground that the said shares were market price manipulation through separate shares purchase transaction, and it was not clear whether the said shares were received from the victim on May 7, 2013 or the said shares were received from the investigative agency on behalf of the Defendants.

4. As to Defendant B’s assertion on May 30, 2013, June 17, 2013, and crimes (attached Table 1 Crime List 7, 8)

A. Summary of the assertion

Defendant B did not participate in the fraud crime on May 30, 2013 and June 17, 2013, and Defendant A received the victim of the mixed child.

B. Determination

According to the legal statement of Defendant A, the stock security loan agreement, the status of stocks offered as security, and the certificate of confirmation, the creditor column of the agreement on the security loan (1st page) of May 30, 2013 is public. The creditor column of the agreement on the security loan of stocks (1st page) of June 17, 2013 stated that Defendant A was “B” and “A” and signed in the creditor column of the agreement on the security loan of stocks (1st page) of June 17, 2013. ② The certificate of receipt of stocks (1st page 51) of May 30, 2013 stated that Defendant A received F 20,000 shares (1st page 51st page) and signed as “B” and “U”, and on June 17, 2013, it is recognized that Defendant A signed only “A”.

However, in full view of the following facts and circumstances revealed by the evidence duly adopted and investigated by this court, Defendant B may be acknowledged as a co-participation in collusion with Defendant A on May 30, 2013 and June 17, 2013. Defendant B and his defense counsel’s assertion on this part is without merit.

① Defendant A consistently stated at an investigative agency to the effect that “At the time, Defendant A visited the victim, such as Defendant B, but Defendant B was given money to the victim, and at the time when the stocks were put into the securities company due to the time when the stocks were put into the securities company due to the time when the stocks were put into the securities company (3:0%) after receiving F stocks as collateral, Defendant A entered into the securities company, and then the victim took the agreement on the security loan of stocks and the certificate of confirmation (the list of stock certificates offered) and signed on the grounds that he/she signed by him/her on May 30, 2013 and June 17, 2013 as the agent of the principal or the Defendant B’s agent.” (Defendant A’s legal statement, 3:60 pages).

In addition, as to the fraud committed before May 30, 2013, which acknowledged that Defendant B borrowed money directly with the victim and received the F stocks as collateral, there are cases where Defendant B’s name or signature is not entered in the share security loan agreement or there is no certificate of receipt of the shares (1:22 pages, 43-53 pages), even if Defendant B received the F stocks directly at the time of receipt, it appears that Defendant B did not have the name stated in the share security loan agreement or the certificate of receipt of the shares, and that Defendant B did not have the signature.

Therefore, Defendant B’s participation in the fraud crime cannot be immediately denied solely on the basis of the fact that Defendant A entered his/her name or name in the agreement on security loan of shares or the certificate on the receipt of shares on May 30, 2013 and June 17, 2013, as Defendant B’s agent qualification or the certificate on the receipt of shares.

② On May 30, 2013 and June 17, 2013, Defendant B denied the fact that the victim was delivered with the share certificates, but did not clearly deny whether the victim was involved in the act of other commission of the fraud, such as disposal of the share certificates, etc. In the investigation agency, Defendant B stated that “Although Defendant A was aware of the fact that the crime of fraud was committed on May 30, 2013 and June 17, 2013, he/she may have received the shares, the amount of the share certificates and the amount of the share certificates may have been distributed through himself/herself” (3°635 pages).

In light of the above statement and the fact that Defendant B entered the shares acquired by committing all frauds prior to May 30, 2013 into the stock transaction account of the branch and the sales proceeds after disposing of the shares, and delivered the shares to H, Defendant B was involved in the act of depositing at least the shares acquired by committing frauds on May 30, 2013 and June 17, 2013 into the stock transaction account or withdrawing the sales proceeds thereof.

③ Defendant B received approximately KRW 46 million from H on May 30, 2013 of the purchase price of shares offered as security on May 30, 2013 (Defendant B’s legal statement, KRW 106, 112, and 635), and the said money appears to have been paid in the account. Since Defendant B participated in the fraud on May 30, 2013, the said money appears to have been paid in compensation.

Meanwhile, Defendant B failed to receive settlement from H on June 17, 2013 regarding the proceeds from the sale of shares offered as security, but it appears that Defendant A, who had directly contacted with H in connection with the instant crime, was detained (Article 106, 112 of the Criminal Procedure Act; Articles 106, 112 of the Criminal Procedure Act, which was led to Defendant A’s arrest, did not receive the consideration for the crime of fraud in this part after Defendant A was arrested). Accordingly, it is difficult to deem that Defendant B did not take part in the criminal act of fraud on June 17, 2013 solely on the foregoing basis.

Reasons for sentencing

1. Reasons for sentencing common to the Defendants on the case 2017 Highly 564

The Defendants, with the knowledge of the fact that the victim would be able to obtain a loan from the Company Operation Fund by taking advantage of the victim’s stocks as collateral, acquired F shares from the victim. The market price of F shares acquired by the Defendants through the instant fraud is large of KRW 5.8 billion, and the actual damage suffered by the victim due to the instant fraud is not fully repaid until now, so it is inevitable to punish the Defendants with strict penalty corresponding to the criminal liability.

However, since the Defendants actually lent approximately KRW 4.1 billion to the victim, substantial economic damage caused by the sale of the F shares offered as security was about KRW 1.7 billion. Of them, the Defendants’ personal profit from the instant fraud crime is about KRW 800 million in total, and there are favorable circumstances for the Defendants.

[In relation to sentencing, the defendants asserted that E, as the principal offender of the instant fraudulent act, was the subject offender of the instant fraudulent act and that they had followed E’s instructions. However, there is no objective circumstance or material to deem E, who was not prosecuted due to the instant fraudulent act, in addition to the defendants’ statements, was involved in the instant fraudulent act. Even if E, as alleged by the defendants, without the Defendants’ actions, was unable to commit the instant fraudulent act, and ② in light of the fact that E, a corporate bond company, without the Defendants’ actions, was more likely to bring about money to the Defendants, it is difficult to view the Defendants as the mere mere participant in the instant fraudulent act according to the instructions of E.

2. Defendant A

(a) Scope of punishment by law: Imprisonment with prison labor for not less than two years and six months but not more than two years and six months and not more than 22 months;

B. Application of sentencing guidelines: Each of the instant offenses is in the relationship of fraud, etc. stated in the criminal records, and the latter concurrent crimes of Article 37 of the Criminal Act, and thus, the sentencing guidelines do not apply.

In addition, the Defendant first planned to commit the crime of fraud against the victim G, and introduced name bonds company H, etc. to Defendant B to raise the funds to be loaned to the victim, and raised Defendant B to commit the crime of fraud. In addition, the Defendant committed each separate fraud against the victim J andO.

However, excluding the criminal records recorded in the criminal records, there is no record of punishment as well as the punishment for the defendant; the defendant's personal profits from the criminal act against the victim G are less than the amount of fraud; the defendant's profits are less than 400 million won rather than the amount of fraud; the victim J. 0 paid a small amount of money, but the amount of fraud against the victim J. 0 is not much much than about 26 million won and about 18 million won. The fact that each of the criminal facts of this case against the victim J. 0 is favorable to the defendant. The equity should also be taken into account when the judgment is obtained along with the criminal facts in the concurrent relationship under the latter part of Article 37 of the Criminal Act.

The defendant shall be punished as ordered by taking into account all the sentencing conditions shown in the arguments of this case, such as the defendant's age, health, character and conduct, environment, family relationship, motive for committing the crime, and circumstances after committing the crime.

3. Defendant B

(a) Scope of punishment by law: Imprisonment with prison labor for not less than two years and six months but not more than two years and six months and not more than 22 months;

B. Application of the sentencing criteria: The instant crime is not subject to the sentencing criteria as it is in the relationship of embezzlement as stated in the criminal records and the latter concurrent crimes of Article 37 of the Criminal Act.

C. Determination of sentence: (a) In the course of making a loan to the victims of three years of imprisonment with prison labor and receiving the F stocks as collateral and selling them immediately, the Defendant served an essential role in the instant fraud crime, such as delivering loans and F stocks, while driving force.

However, if the criminal records recorded in the criminal records are excluded, there is no record of punishment in addition to fines for the defendant, and the fact that the defendant's personal profit from the crime of fraud of this case is less than 400 million won rather than the amount of fraud is favorable to the defendant. The equity between the criminal records of this case and the criminal records of the criminal records of the latter part of Article 37 of the Criminal Act should also be taken into consideration.