The case holding that in case where the defendant ordered a new hotel construction project that requires enormous land purchase cost and construction work cost with only borrowed money from financial institutions or other persons with almost little equity capital and did not pay construction cost to the construction business operator, the criminal intent to acquire the construction cost is recognized.

In a case where the defendant ordered a new hotel construction project that requires enormous site purchase cost and construction cost on the sole basis of borrowed money from a financial institution or another person, etc. with almost little equity capital, and did not pay the construction cost to the construction business operator, the case holding that the defendant was sufficient to presume that the defendant had either a criminal intent to obtain the construction cost from the construction business operator at the time of the construction contract, or at least a negligent intention to obtain the construction cost, on the ground that the construction business operator had no intent or ability to pay the construction cost upon completion of the hotel construction project and did not pay the construction cost.

Article 347(1) of the Criminal Act

Supreme Court Decision 95Do424 delivered on April 25, 1995 (Gong1995Sang, 2014) Supreme Court Decision 97Do1876 delivered on September 26, 1997, Supreme Court Decision 99Do3479 delivered on November 12, 199, Supreme Court Decision 2000Do237 delivered on April 11, 200

Defendant

Kim Jong-sung

Attorney Early Ro-won

Whole Construction Co., Ltd.

The punishment of the accused shall be determined by two years of imprisonment.

The five days of detention before this judgment is sentenced shall be included in the above sentence.

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

The defendant is not guilty of fraud against the National Agricultural Cooperative Federation of Victims in the facts charged against the defendant.

An application filed by an applicant for compensation shall be dismissed.

Punishment of the crime

The defendant is a representative director of Nonindicted Co. 1 (former trade name: omitted, June 20, 2002).

The land located in Han-gu, Han-dong, Han-gu, Gwangju, purchased a site in Han-dong, and promoted a new plan to build a hotel of 6th floor above the ground surface (hereinafter referred to as "the hotel in this case"). The fact was that the apartment was already owned by Seo-gu, Seo-gu, Seo-gu, Gwangju, under the name of the wife Non-Indicted 2, but the apartment was already loaned 80 million won as security. The above apartment was short of funds to purchase the above site, and the defendant borrowed 150 million won from the non-indicted 3 corporation whose representative is the defendant at the time of the shortage of funds to purchase the above site, and paid the purchase price up to 60 million won. On the other hand, it was hard to prepare the necessary funds for new construction of the hotel in this case, and most of the remaining funds were borrowed from Ansan-si, etc., and the remaining funds were paid to another person after the completion of the loan in this case, despite the intention to newly construct the hotel in this case and the ability to pay the proceeds to the other person.

Around November 5, 201, at the office for the development of the industry of power generation of the victim's disease located in Gwangju Northern-dong 154-60, 154.60, "it is scheduled to construct the hotel of this case on the ground". The hotel of this case is newly constructed at 2,541,90,000 won (per 146,000,000 won for construction work around May 25, 2002) and 150,000 won for 70,000 won for the above 20,000,000 won for the above 70,000,000 won for the above 20,000 won for the first and the above 20,000,000 won for the above construction price for the above 20,000 won for the above 70,000,000 won for the above 20,000 won for the above construction price for the new 20,50,0050,000.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of a witness, a sick or wounded vessel, and a man;

1. Entry of each prosecutor's protocol of examination of the accused into each part of the protocol;

1. Entry of the prosecutor's statement of his/her home-based and his/her return to the prosecution;

1. Each statement written by the police on the distribution, Kim Il-il, Cho Jin-Jak, Kim Jin-Jak, and Park In-Jak;

1. Entry of each statement in the records of gambling, transfer-to-door, abnormal use, full-time, Han commercial road, Kim Jong-kak, Lee Jong-kak, Lee Jong-kak, Lee Jong-kak, Jeong Jong-kak, fixed deposit, set aside, players' clubs, Song-kak, Kim Jong-kak, Kim Jong-kak, Lee Sung-kak, Lee Sung-kak, Lee Sung-kak, Lee Sung-kak, Lee Jong-k,

1. Statement of the standard contract form, standard contract form, addition, and bill or note of issuance;

Judgment on the criminal intent of defraudation

As to the facts of the instant crime, the Defendant recognized that the Defendant did not pay promissory notes issued as a contract for the construction of the instant hotel to the comprehensive construction of electric power resource companies, in which the Defendant had been operating the instant hotel, and that the Defendant did not pay the amount of the construction cost. However, the Defendant stated that, in performing the construction of the instant hotel, a stuffed line did not pay the construction cost because of the occurrence of a defect of up to 1.3 billion won and the unconstruction part of the instant construction part, which was demanded reconstruction, but the stuffed line did not comply with this, and the Defendant did not pay the construction cost. Since the Defendant provided the instant hotel as security and still kept the part of the money borrowed from the National Agricultural Cooperative Federation for the payment of the construction cost

Therefore, it is difficult to determine the amount of money that the defendant had no capacity to pay for the above 0 billion won to the 3rd hotel hotel construction business operator for the purpose of acquiring the above 00 million won or the above 3rd hotel construction work with no capacity to pay the above 5 billion won or more for the purpose of acquiring the above 3rd hotel construction work. The defendant issued the 8th hotel construction work with no capacity to pay the above 5 billion won or more to the 3rd hotel construction work with no capacity to pay the above 8th hotel construction work cost, and the remaining 15 billion won to the 5th hotel construction work cost as well as the 5th hotel construction work cost, regardless of the fact that the 5th hotel construction work cost had been incurred by the 3rd hotel construction business operator with no capacity to pay the above 30 billion won or more for the new construction of the 3rd hotel construction work. This is also necessary to establish a new 500 million won or more for the remaining 3rd hotel construction work cost.

Application of Statutes

1. Article applicable to criminal facts;

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes and Article 347 (1) of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (see, e.g., Supreme Court Decisions 201Do1148, Apr. 2, 2011>

1. Calculation of days of detention;

Article 57 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (Concurrent Performance of Reasons for Discretionary Mitigation)

1. Application for compensation order;

Articles 32(1) and 25(3)3 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings

The acquittal portion

1. A summary of the facts charged regarding the fraud of the National Agricultural Cooperative Federation for Victims;

Around July 5, 2002, at the Dong-dong Branch of the Korean National Agricultural Cooperative Federation located in Gwangju-gu, Gwangju-dong, 58, the applicant for the loan of this case to Park Jong-woo, who is an employee of the said agricultural cooperative, as a security for the payment of the construction cost, is only granted 52 promissory notes as a security for the payment of the construction cost, and even if the construction cost has not been paid properly, it cannot be said that the loan will not be paid to the non-indicted 1 corporation, which is the debtor, unless the construction cost has been paid to the constructor or it is unclear whether the construction cost has been paid. If the construction cost has not been paid, the loan will be paid by 00 after confirming the payment of the construction cost unpaid to the constructor and obtaining confirmation that he will not exercise the right of retention from 00, 1000, 1000, 100,0000, 100,0000,000,000,000,000.

2. Determination:

At the same time, the Defendant provided the hotel of this case as collateral and borrowed 3 billion won at the Dong-dong Branch of the National Agricultural Cooperative Federation, the Defendant was aware of these circumstances by stating that part of the hotel work price was paid in cash, and that some of the hotel work price was paid in bills. Moreover, the Defendant requested a confirmation letter stating that he did not pay in cash the entire work price as above, and submitted it after receiving a written confirmation from the Park Byung-dong Line, and that the Defendant was not a loan of 3 billion won since the Defendant offered the above confirmation letter.

Therefore, evidence consistent with this part of the facts charged can be found as evidence. The police and the prosecutor's office Park Jong-dae stated that the National Agricultural Cooperative Federation must verify whether the defendant completed the construction cost in order to execute loans for new buildings such as the hotel of this case at the National Agricultural Cooperative Federation. Upon the defendant's notification of this fact and the defendant's request to complete the construction cost, the defendant paid the whole of the construction cost, and the defendant received a confirmation that the construction cost received from Park Byung-il was fully paid, and the loan was executed. On the other hand, in this court, it is difficult for the defendant to accurately memory as to whether the defendant paid the construction cost of the hotel of this case as part of the bill, and it is difficult for the National Agricultural Cooperative Federation to find that there was no other evidence to prove that the above loan was made only once in cash since the defendant was issued with the above confirmation letter of the construction cost, and it is difficult for the defendant to find that there was no other evidence to prove that the above loan was made by the National Agricultural Cooperative Federation of this case from the National Agricultural Cooperative Federation to the above 3000 billion won.

3. Conclusion

Thus, the facts charged on the fraud of the defendant's victim by the National Agricultural Cooperative Federation constitute a case where there is no proof of a crime and the defendant is acquitted under the latter part of Article 325

It is so decided as per Disposition for the reasons above. [Separate] The details of the subcontractor's damage are omitted.

Judges Lee Jae-chul et al. (Presiding Judge)