2015No2390-1 A. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

(b) Violation of the Attorney-at-Law Act

2015 initially 441 Application for a compensation order

B

Defendant and Prosecutor

Kim Jong-tae (Court) (Court of First Instance), Kim Tae-tae (Court of Justice)

Attorney R, AS, AT

L

Seoul Central District Court Decision 2014Gohap273 Decided August 21, 2015

January 15, 2016

All appeals by the defendant and the prosecutor are dismissed.

An application for remedy by an applicant for remedy shall be dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

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

The Defendant notified the victim of harm and injury to L, and did not deceiving the victim, and considering the victim’s educational background, social experience, etc., it cannot be deemed that the victim was deceiving. The victim first asked the defendant to be able to accept the acceptance of the contract. As such, even if the Defendant deceptioned the victim, there is no causation between the act of deception and the act of disposal of the victim, and furthermore, there was no intention to commit the crime of deception by the Defendant. The lower court

2) Regarding violation of the Attorney-at-Law Act

The defendant knew that he introduced a lawyer to the victim through his own big land that he worked in the legal profession, and did not know the fact that he received money in return for solicitation and mediation, and did not conspired to commit the crime of this case with the defendant A. Nevertheless, the court below found the defendant guilty of this part of the facts charged only with the statement by the victim and his father Q, who did not have credibility. The court below erred in the misunderstanding of facts and misapprehension of legal principles.

B. Unreasonable sentencing (Defendant and Prosecutor)

With respect to each punishment (two years of imprisonment, additional collection of 65 million won) sentenced by the court below, the defendant is too unafford, and the prosecutor is too unafford and unfair.

2. Determination:

A. Judgment on the mistake of facts and misapprehension of legal principles by the defendant

1) Determination on the assertion of fraud part

A) Relevant legal principles

Generally, it cannot be said that fraud is established by doing a religious act, such as deception, and receiving reasonable remuneration. However, if a person received excessive property or pecuniary benefits in light of the other party’s property status while talks specifically as if the other party did not perform his/her duty of care without having fulfilled his/her duty of care, it can be deemed that he/she obtained money from the other party by pretending to engage in an indecent act beyond the permissible limit as an ordinary religious act (see, e.g., Supreme Court Decisions 2007Do10917, Feb. 14, 2008; 2001Do2587, Nov. 30, 2001);

B) the board;

In full view of the following facts recognized by the evidence duly adopted and investigated by the court below and the court below, the defendant, in collusion with A, refers to the fact that the defendant received the value of the large amount of money in collusion with the victim, and can be recognized that the defendant received the value of the money in good faith. The defendant can be recognized the fact that the money was stolen by deceiving the victim by deceiving the victim by abusing indecent acts beyond the permissible limit as a religious act and by abusing it. Therefore, the defendant's assertion is without merit.

(1) It does not seem that the victim had been interested in promoting the State, such as having the Defendant undergo the performance of the contract, or had been aware of it. As such, rather than having taken place several times according to his experience and intent, the victim, who was not able to live in the state of peace, had the victim undergo the performance of the contract by inducing the victim to return the victim or to attract the investor, rather than having led the victim to undergo the performance of the contract.

(2) Considering the fact that the victim is about his marriage issues and the possibility of success in the business to start a new one, the defendant and A became aware of them, and thereafter they became aware of them. However, the defendant and A made it difficult for the victim to marry unless the victim does an act without delay, and made it difficult for the victim or his family members to be married, and made it difficult for the victim or his family members to have the victim or their family members receive a complaint from the investors, by giving specific notice of harm that may harm the victim or his family members, or by inducing the victim to receive an investment of 4 billion won from Y, a customer of the victim, or by allowing the victim to receive an investment of 4 billion won from Y, a member of the National Assembly by resolving the criminal case of the victim, and by inducing the victim to act without delay.

(3) The victim consistently made a statement from the investigative agency to the court of the court below, and its contents are also specific. The defendant sent text messages to the victim's "LC soon," and the defendant also made a statement to the victim that "the victim has the right of public funds embezzlement or the right of public disposal to solve the problem of the victim's father's embezzlement at the investigative agency, and so the victim has the right of public disposal to the victim, so that the victim would be able to receive such right of public disposal. Even if the victim had such right of public disposal as a member of the National Assembly, there is little time to say that it would be good if the victim later." A also made a statement to the effect that "the victim was informed of this right of public disposal to the victim," and that "A also made a statement to the victim that it is difficult to introduce the defendant or the victim's trust to ask him/her about investment amounting to KRW 20-3 billion from the company's funds to the victim." The victim's statement to the victim's own will not be able to know its credibility.

(4) During the performance of the contract, the victim was not in a very good financial situation, such as returning the investment money to the beneficiary, and was also raising funds for the performance of the contract by abnormal means, such as by deceiving the investment money and paying the value of the right to the performance of the contract. Meanwhile, the Defendant was well aware that the victim is operating an investment advisory company, and the victim has a considerable debt and is not able to return it. In light of these circumstances, the Defendant actively led the scale and contents of the contract to the performance of the contract, and the victim appears to have been able to have harmed the right

(5) The Defendant and A received 29 times in Korea for about two years and five months, 11 times overseas, and 10 million won per exchange from the victim in return. The Defendant and A received 100 million won per exchange from the victim on July 28, 2009, and November 2, 2009, respectively. However, the payment of the 30 million won of the 300 million won of the 3000 won of the 300s of the 30s of the 30s of the 30s of the 30s of the 30s of the 30s of the 30s of the

(6) The Defendant asserts to the effect that the victim voluntarily requested an act without delay by stipulating the value, etc. of the contract.

However, according to the above financial situation of the victim, the price and frequency of the exercise of the contract, and the text message between the defendant and the victim, even if the victim acquired the investment money and paid it to the defendant, it is difficult to accept the defendant's argument that the victim requested the payment of the contract money, considering the following: (a) the defendant unilaterally set the contract price and demanded the expenses; and (b) the victim sent text messages to the effect that if it is impossible to pay all the money requested by the defendant, it is necessary to send the text message to the effect that the defendant’s unreasonable demand is sufficient.

(7) The victim is a person of high academic background, who is an assistant to a member of the National Assembly, or was in the operation of the investor’s literary intent. However, as seen earlier, the defendant actively induced the victim about the necessity or degree of indecent act by notifying the harm and injury, and the victim has believed it and has been in the exercise of the right of trust. Therefore, it is difficult to deem that there was no deceptive act or there was no causal relation on the part of the victim’s academic background, career, occupation

2) Judgment on the assertion of violation of the Attorney-at-Law Act

A) Facts of recognition

According to the records, the victim was arrested on May 5, 201, 27, and was arrested on the ground that he/she acquired investment funds, and was arrested in the detention room of the Yeongdeungpo-gu Police Station on May 28, 201, and executed on the following day after the issuance of a detention warrant on May 28, 201; Q and the defendant, the father of the victim, interviewed the victim who was detained in the maintenance room of the Yeongdeungpo-gu Police Station on May 28, 2011 and divided the talk after visiting the victim; W, who was the head of the AU office of the former police station at the time of the former police station to the large A, was paid KRW 10 million with the AU attorney-V of the law firm AU at the time of the former police station on March 5, 2011 and received KRW 30 million with the attorney fee for the criminal case of the victim or the victim; W was mainly serving in Incheon at the police station at the time of his/her retirement, and did not have been in the position at the Commissioner of the National Police Agency at the time.

B) the board;

In full view of the following circumstances acknowledged by the lower court and the evidence duly admitted and investigated by the lower court, including the testimony of Q of the party witness, the Defendant may recognize the fact that the Defendant received a total of KRW 121 million from the victim under the pretext of soliciting and arranging the criminal case of the victim by using the connection of WW, which is the largest A, in collusion with A.

(1) On March 201, 201, the victim filed a complaint from N Investors who had been operated by the investigation agency to the trial court, and received an investigation at the Yeongdeungpo Police Station at around that time, A changed the value of the right to receive the deposit of the case in return for his personal connection, which is his own great part of the police officer, and the Defendant also made a consistent and concrete statement to the effect that “A has been able to keep on force, and paid a total of KRW 120,000,000,000,000,000,000,000,000,000,000,000,000,000,000,

(2) In light of the fact that the victim, absolute trust and minor issues of the victim have been absolutely trusted, and that the victim was aware of the fact that the victim was accused of having received a complaint from investors, and that it appears that the victim made efforts to resolve the criminal case of the victim, and that the value of the right to demand redemption in this part was also remitted to the defendant's account, and that part of the money was remitted to the A account, the defendant was sufficiently aware of the fact that he received money from the victim under the pretext of resolving the victim's complaint case through the connection of the State where A is big.

(3) On May 28, 201, the father of the victim stated consistently to the effect that "the defendant met the victim from the investigative agency to the court of the trial on May 28, 201," and that "the defendant was suffering from the senior officer of the Hanam Provincial Police Agency where the great part of the excellent part of "A (A), which helps himself/herself, was a high-ranking position in the police agency, and that he/she helps the victim by mobilization of the person, such as the police or the chief judge, so far as he/she is not able to know too much."

On the other hand, the defendant met the defendant on May 201, 201 and met Q Q. However, the defendant asserts that the above remarks did not exist.

However, Q attached to Q, in its own pocket book on May 28, 201, a tag stating the contents of Q Q’s “sken”, Chungcheong police officers, coal, case processing costs, chief judge, large Arabic judges, and the National Assembly. Q used a book to be written each day in the book, and it is difficult to deem Q’s statement to be forged or forged. In light of the fact that Q’s statement also has credibility and it added the credibility of the victim’s statement.

B. Determination on the assertion of unreasonable sentencing by the defendant and prosecutor

The fact that the victim received KRW 100,000 from the defendant in the process of filing a complaint before and withdrawing the defendant shall be considered as favorable to the defendant.

However, there are circumstances unfavorable to the defendant, where the defendant conspireds with A to obtain large amounts of money from the victim who has great trust in the defendant, and in the process, directly contacted with the victim and played a leading role in the crime of the fraud of this case, and received money and valuables on the pretext of the solicitation of this case, and there are changes in circumstances to be considered in sentencing after

In addition, considering all the sentencing conditions as shown in the instant pleadings, such as the Defendant’s age, character and conduct, motive, background, means, and consequence of the crime, the circumstances after the crime, etc., it cannot be deemed unfair because the sentence imposed by the lower court is too heavy or uneasible.

Therefore, the defendant and the prosecutor's argument are without merit.

3. Conclusion

Therefore, since the appeal by the defendant and the prosecutor is without merit, it is dismissed pursuant to Article 364(4) of the Criminal Procedure Act, and since the application for compensation order by the applicant for compensation is not clear, the application for compensation order by the applicant for compensation falls under a case in which the existence or scope of the defendant's liability for compensation is unclear, it is so decided as per Disposition by the court below pursuant to Articles 25(3)3 and 32(1)3

The presiding judge and the lowest judge;

Judges fixed-term machines

Judges or Mine Bureau

1) The 'Satch values' should be included in the 'Satch values ( April 2, 2010), 'Satch values' ( April 23, 2010), 'Satch 2010, May 19, 2010), 'Satch values', 'Satch values (v. 2010, May 26, 2010), 'Satch values', 'Satch values (v. 24, 2010), 'Satch values', 'Satch values (v. 5, 2010, Oct. 5, 2010), 'Satch values', 'Satch values' (v. 11, 29, 29) 'Satch values', 'Satch values', 'Satch by 70 days (v. 29, 2010).

2) Neither 100 million won has been transmitted to a ship that he could do. However, we need to do his best on the ship that he could now do. We need to do Doming. Doming, ( May 18, 2010), 'Doming,' and 'Dominging circumstances, 'Dominging the ship', Doming Doming ( May 26, 2010).