(영문) 울산지방법원 2020.5.8.선고 2019고합350 판결

Defendant B shall be punished by imprisonment for four years with prison labor for the case No. 2019, 350, 2020, 2026, with prison labor for the case No. 2020, 38, with prison labor for three months.

However, with respect to the case No. 2020 Gohap38, the execution of a sentence shall be suspended for one year from the date this judgment becomes final and conclusive.

83,550,000 won shall be additionally collected from the defendant.

To order the provisional payment of the amount equivalent to the above additional collection charge.

Reasons

Facts of crime

【Criminal Records】

On October 3, 2018, the Seoul District Court sentenced the defendant to two years of suspension of the execution of imprisonment for fraud, etc. at the Ulsan District Court on the 19th day of the same month. On November 18, 2016, the defendant was sentenced to one year and six months of imprisonment for fraud, etc. at the Busan District Court, and two years and two years of imprisonment, and the execution of the sentence was terminated at the Seoul Detention District Court on October 3, 2018.

【2019 Gohap 3501

【Criminal Facts】

around April 2018, Defendant 2 and Nonparty 2 became aware of the same accommodation room in the Busan House located in the Busan House. around that time, Defendant 2 was subject to a disposition that the injured party filed against Defendant 2, including Kim 00, was not suspected of having been sentenced to imprisonment for one year in the Busan District Court’s Dong Branch on March 21, 2018. Defendant 2 came to know of the fact that he was sentenced to imprisonment for a crime without prison labor in the Busan District Court’s Dong Branch on April 25, 2018. Defendant 2 came to know of the fact that Defendant 3 was sentenced to imprisonment for one year in the Busan District Court’s Dong Branch on April 25, 2018. Defendant 2018, who was acquitted and accused of the crime without prison labor, would also be able to undergo a re-investigation. As if there was a public objection against drug criminal who was arrested, Defendant 2 would be a big help in the case of the case where documents are being carried out.

However, even if the Defendant received money from the victim, the Defendant did not have any intention or ability to make the victim to make a solicitation for the case or to have a favorable judgment in favor of the victim by means of entering the victim’s official document, etc. In addition, the Defendant, by deceiving the victim as above, received KRW 2 million from the victim under the name of the Defendant for solicitation through the bank account in the name of the Defendant on the same day. From that time until January 28, 2019, the case was pending after being prosecuted and tried 33 times in total, as shown in the attached Table No. 1, until January 28, 2019, where the victim was subject to a disposition of suspicion by filing a complaint, and the victim did not have any intention or ability to resolve the claim for the return of unjust enrichment against Kim ○○○ by inducing the victim to make a resolution. However, the Defendant received a delivery of KRW 78,500,000 in total under the name of the victim.

As a result, Defendant received money and valuables under the pretext of solicitation on the case in which public officials handle at the same time by deceiving the victim. 12020 Gohap 26, 1. 1. 2. 3. 1. 1. 1. 1. 1. 1. 1. 1. 2020

around July 2018, Defendant 2 came to know of the victim’s ○○○ Housing that was detained in Seoul detention center through Kim Jong, a branch Kim ○, and the victim was sentenced to imprisonment with prison labor for the crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (fence) by the Supreme Court on October 25, 2018. Defendant 2, around October 25, 2018, was found to have dismissed this appeal. Defendant 31 was at the Myeon Association of Songpa-gu Seoul Dong-dong, Seoul, Dong-gu, Seoul, as it was located in 20-gil 31, as it was located in Songpa-gu. Defendant 2, while visiting the victim, was dismissed to the extent that “the victim was dismissed to the upper instance.” Defendant 2 should re-be tried to appoint a lawyer, and Defendant 200 out of 00,000,000,0000 won and 0,000 won and 0,000 won.

However, even if the Defendant received money from the victim, he had no capacity to appoint an attorney for the victim. The Defendant deceivings the victim as above and transferred KRW 1 million from the victim to the Agricultural Cooperative account in the name of the mother-child relationship of the Defendant used by the Defendant, on November 23, 2018. On November 24, 2018, the Defendant transferred KRW 1 million to the same account and received KRW 2 million in total from the Defendant to the same account around November 24, 2018.

around July 2018, Defendant became aware of Kim ○’s ○ who was confined in the same place as the Busan detention center, and Kim ○ was sentenced to a dismissal judgment on June 27, 2018 by the Busan High Court, which was sentenced to the above judgment on July 2, 2018, and became final and conclusive on July 2, 2018, and the remaining Kim ○○. Defendant was released from the Seoul detention center around October 3, 2018, and then became aware of the victim’s telephone number at the meeting of Kim ○’s Kim ○ was called the victim’s telephone number at around October 3, 2018, and contacted the victim on contact on November 5, 2018, and had the victim receive KRW 25 million from the victim, “A person who is entitled to receive KRW 25 million from the Seoul High Court on July 2, 2018.”

However, even if the defendant received money from the victim, he did not have the ability to get Kim ○ Family Release.

Defendant, as seen above, received KRW 5 million in cash from the victim and received KRW 5 million in cash from the victim on the same day, and around November 14, 2018, Defendant received KRW 25 million in total from the agricultural bank account in the name of Hanmo-do and received KRW 25 million in total.

3. The maximum number of victims ○ is a negative fraud.

Around December 14, 2018, Defendant became aware of the largest ○○, who was detained in Busan detention center through Defendant’s post-mar ○○, and the largest ○○, was sentenced to imprisonment for four years at the Busan District Court on October 19, 2018 and continued an appellate trial after having been tried for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, and the maximum ○○ was ○○. A victim was the highest ○○. Around December 14, 2018, Defendant got the victim to the Busan detention center located in Busan District Court in Busan District Court, Busan District Court, through the Defendant’s post-mar ○○. Around December 14, 2018, the Defendant returned the victim to the effect that he was sentenced to five (0) days after he was sentenced to five (0) days after he was sentenced to imprisonment.

However, even if the Defendant received money from the victim, the Defendant did not have any intent or ability to reduce the punishment for the instant case subject to the highest judgment. The Defendant deceptioned the victim as above and received KRW 5 million from the victim to the Agricultural Cooperative Account of Han-dong on the same day.

4. Around January 3, 2019, Defendant 2, who violated the Attorney-at-Law Act, made a false statement to the effect that “as if the victim made a solicitation on the case of the victim’s ○○○, who was the last ○○○, by calls to the victim at a place where the location is unknown, the victim’s largest ○○, and as if the victim made a solicitation on the case of the victim’s ○○○, he/she would have to do so on the side of the court, and at the same time, he/she would have to do so more than five million won.”

However, even if the Defendant received money from the victim, he did not have the ability to make a solicitation in connection with the most recent ○○ case. Defendant deceptioned the victim as above and transferred KRW 2 million from the victim to the Agricultural Cooperative Account in the name of her mother-friendly for the same day, and received KRW 3 million in total from the same account around January 7, 2019 and received KRW 5 million.

" 2020 Gohap 38

On April 10, 2013, the defendant's non-permanent office located in Ulsan-si, Ulsan-gu, Ulsan-si, which had been aware of a tourist bus driver as the tourist bus driver, stated that "5 million won is to be repaid in his own name, and it will be provided as security."

However, in fact, the Defendant was indicted for and tried to borrow money at the time of borrowing, and did not have any particular revenue and property, and the vehicle intended to be offered as security was not a vehicle under the name of the Defendant, and the victim was assigned to the vehicle, and the father of the old father after 2 to 3th day, and did not have any intention or ability to repay the vehicle even if he borrowed money from the victim. The Defendant had no intention or ability to borrow money from the victim. The Defendant, by deceiving the victim, received cash of KRW 1.5 million from the victim on the same day, and received KRW 3.5 million from around that day to May 15, 2013, and received KRW 75 million in total from the victim by deceiving the victim as shown in the annexed list of crimes (2) from around that day.

The summary of evidence (to be omitted)

Application of Acts and Subordinate Statutes

1. Relevant provisions concerning criminal facts;

Paragraph 1 of Article 347 of each Criminal Code (including fraud and each victim) and Paragraph 1 of Article 111 of each Attorney-at-Law Act (including each victim's receipt of money and valuables in the name of solicitation, and each victim)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (the maximum ○○ in paragraph (4) of the Criminal Act among the crimes in Article 40 and Article 50 of the Criminal Act (No. 2019Dahap350 at the time of sale, and No. 2020Dahap26, shall be punished in the form of a more severe fraud than each other, and each penalty provided for in the heavier fraud)

1. Selection of a punishment;

Each Imprisonment Selection

1. Aggravation of repeated crimes;

Article 35 of the Criminal Act (For each of the crimes of No. 2019, No. 350, No. 2020, No. 26)

1. Handling concurrent crimes;

The latter part of Article 37 and Article 39(1) of the Criminal Act (mutual between frauds as decided in 2020, 38 and frauds as decided in 2020, 19 October 19, 2013)

1. Aggravation of concurrent crimes;

Articles 37 (Aggravation of concurrent crimes in the punishment prescribed in the judgment of fraud No. 2019Dahap350), 38(1)2, and 50 (Aggravated Punishment for Concurrent Crimes) of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (with respect to the fraud crime of 2020 Gohap38, taking into account the favorable circumstances among the reasons for the following sentencing)

1. Additional collection:

Attorney 116 (Ex Post Facto)

[Based on the computation of a surcharge] 2019 Gohap350, 2020 Gohap26 83,550,000 on the aggregate amount of money and valuables received under the pretext of solicitation as indicated in the judgment of the court below

Judgment on the motion of the defendant and his defense counsel

1. Summary of the assertion

As to the crime of fraud 20 Gohap 38,00, the Defendant received KRW 500,000 from ○○do on April 10, 2013, and KRW 30,150,000 from ○do on April 30, 2013, but there was no intention to commit the crime of fraud, and there was no fact that he received KRW 1,00,000 on May 15, 2013.

2. Determination:

A. Relevant legal principles

The intent of the crime of defraudation, which is a subjective constituent element of fraud, shall be determined by comprehensively taking into account the objective circumstances, such as the defendant's financial history, environment, details of the crime, and the process of transaction before and after the crime, unless the defendant is led to this confession. The criminal intent is not a conclusive intention, but a willful intention is sufficient (see Supreme Court Decision 2007Do10416, Feb. 28, 2008, etc.).

B. Determination

In light of the above legal principles by comprehensively taking into account the following facts and circumstances known through each evidence duly adopted and investigated by this court, the defendant, even if he borrowed money from the victim, is recognized as the fact that the defendant defrauded the victim with each money of the judgment by deceiving the victim even though he did not have the intent or ability to repay it. Thus, the defendant's assertion is without merit.

① On April 10, 2013, Defendant 1 issued to the victim a letter of waiver of the vehicle stating “I, on April 10, 2013, I, on the part of the obligee’s credit, sign and seal I, who is the owner of the vehicle (O TG) as a collateral, in borrowing KRW 5,00,000 (5,000) from the obligee’s credit. If I, by April 25, 2013, I will not pay this by April 25, 2013.”

② 피해자 는 수사기관에서 이 법정에 이르기까지 피고인에게 2013.4. 10.경 150만 원 , 2013. 4. 11. 경 350 만 원, 2013.4.30.경 150만 원,2013.5.15.경 100만 원 총750 만 원 을 빌려 주었고, 피고인으로부터 변제받은 돈 이 없다고 일관되게 진술하고 있다. 이에 반해 피고인은 1회 경찰 조사 당시 피해자로부터 500만 원 을 빌리고 차량 을 담보 로 제공 한 사실에 대해부인하다가 2회 경찰 조사 시 경찰이 피고인이 피해자에게 교부 한 ' 차량 포기 각서'를 제시하고서야 비로소 이를 인정하였고, 2 회 경찰 조사 당시 피해자 가 권 ♧♧ 에게150 만 원 을 대위변제하게 하는 방법으로 150만 원 을 빌린 사실을 부인 하다가 , 3 회조사 시 경찰이 권♧♧ 명의 계좌의 입금내역 등 을 제시하자 이를 비로소 인정 하는 등 ,처음에는 대여 사실을 전면 부인하다가 관련 증거가 제시되면 그 제야 이를 인정 하는모습을 보이는 등, 피해자로부터 대출받은 액수 및 변제 액수 에 대해 일관된 진술 을하지 못하고 있다. 이러한 점 에 비추어 보면 피고인에게 총 750 만원 을 빌려주고 변제받은 것이 없다는 피해자의 진술이 피고인의 진술보다 더 믿을 만해 보인다.

③ At the time of the two-time police investigation, Defendant stated that he did not talk to the victim at the time of preparing a car abandonment letter even though he was the same as his own car, but did not make a statement on the ownership of the vehicle at the time of the investigation by the prosecution. However, at the time of the investigation by the prosecution, Defendant was unable to make consistent statements on the ownership of the vehicle. Moreover, the Defendant was in need of money due to a travel agent’s financial difficulties at the time of borrowing money from the victim, and used money for the refund of the customers related to the travel agent, or for the personal purpose, and even recognized that the Defendant did not have the ability to pay money to the victim because it was difficult at the time due to this time. In light of this, it can be recognized that the Defendant had the criminal intent to obtain money by deception.

1. Reasons for sentencing: the case No. 2019, No. 350, 2020, 26

(a) Scope of punishment imposed under the Act: One month to ten years;

B. Scope of recommended sentences based on sentencing standards

Since the latter concurrent crimes of Article 37 of the Criminal Code are concurrent crimes, the sentencing criteria shall not be applied.

case No. 2020 Gohap38

(a) Scope of punishment imposed under Acts: Imprisonment with prison labor for one month to 30 years;

B. Some frauds and the violation of the Attorney-at-Law Act are in a mutually competitive relationship, and the sentencing guidelines do not provide a separate method for dealing with the mutually competitive crimes, but are examined only with reference to the sentencing guidelines for each crime. 1) 1 crime (Violation of the Attorney-at-Law Act)

[Determination of Type] Violation of the Attorney-at-Law Act 02. Acceptance of money and valuables under the pretext of solicitation and intermediation [Type 3] 50 million won or more, and less than KRW 100 million

【Special Sentencing】

[Scope of Recommendation and Recommendation Form] Basic Field, Offenses 2 (Fraud) of Imprisonment with prison labor from one year to two years)

[Determination of Type] Fraudulent Crime : General Fraud / [Type 1] below 100 million won

【Special Sentencing】

[Scope of Recommendation and Recommendation Form] Basic Field; Imprisonment with prison labor for six months to one year; and recommended type in accordance with multiple criminal processing standards: Imprisonment for one year to three years (the first crime maximum + the second crime maximum 1/2);

3. The crime of this case is that the defendant received money under the pretext of solicitation by the public official in regard to the affairs to be handled by the public official, and acquired money by deceiving victims.

The number of victims of each of the crimes of this case reaches KRW 123 million, and the number of victims of each of the crimes of this case reaches KRW 123 million, and the number of times of the crimes is extremely high and long long, and in the case of fraud and the violation of the Attorney-at-Law Act, the criminal acts such as inducing the prosecution, the court, and the attorney-at-law to resolve the case at the request of the person who is under the criminal trial, or inducing the person who is under the criminal trial, to be given favorable judgment such as reduction of punishment, etc., are not good, and such crimes are not likely to significantly undermine the public confidence in the judicial institution. Nevertheless, there is no special effort to recover damage.

In full view of the above circumstances, the Defendant cannot be exempted from punishment corresponding thereto, including the past record of having been sentenced several times due to fraud, occupational embezzlement, violation of the Attorney-at-Law Act, and fabrication of private documents, and even 20 times before and after having been sentenced several times. In full view of the following circumstances: (a) the Defendant repeated the instant criminal act during the period of repeated crime immediately after having been released due to the same criminal record as indicated in the judgment; and (b) the Defendant

However, in addition to the crime of fraud against Defendant Lee Jae-do, it is necessary to recognize the crime, and the equity with Defendant New ○○ is to take into account when the judgment was rendered concurrently with the crime of fraud that became final and conclusive, and other various sentencing conditions specified in the records and arguments of this case, including the Defendant’s age, character and behavior, environment, motive, means and consequence of the crime, and subsequent circumstances after the crime, shall be determined by taking into account.