2019Gohap426 Fraud, Violence, Business Obstruction

2019 high-end medical treatment and custody

A

Macops (prosecutions), Macops (Medical Treatment and Custody Requests), Macops (Trial)

Attorney Choi Jin-jin (National Ship)

June 24, 2019:

A defendant shall be punished by imprisonment for one year.

A candidate for medical treatment and custody shall be punished by medical treatment and custody.

Criminal facts and facts constituting grounds for medical treatment and custody

【Criminal Power】

On August 31, 2018, the defendant and the candidate for medical treatment and custody (hereinafter referred to as the "defendant") were sentenced to four months of imprisonment with prison labor at the Seoul Central District Court for fraud, etc. and completed the execution of the above sentence on October 10, 2018 at the Seoul Detention Center.

【Criminal Facts】

The defendant committed the following crimes in a state that the defendant lacks the ability to discern things or make decisions due to the on-site illness:

1. Fraud;

On November 21, 2018, at around 23:25, the Defendant issued an order for alcohol, food, etc. to the victim while working in the “D” restaurant working for the victim C in Jongno-gu Seoul Metropolitan Government, as if he would pay the price.

However, as the defendant did not have cash, there was no intention or ability to pay the price even if he was provided with alcohol and food from the victim.

Nevertheless, the Defendant, by deceiving the victim as above, was provided with alcohol and food equivalent to KRW 12,00,000 as a total of 12,00,000, i.e., 4,000, market price of which was 4,000.

Accordingly, the defendant was given property by deceiving the victim.

2. Obstruction of business and violence;

At the time and place specified in the preceding paragraph, the Defendant requested the Defendant to pay alcohol and food values, and caused the Defendant to fall off the monitors of Pos (POS) terminal devices installed in the above restaurant operator by drinking, and caused the Defendant to fall under the bottom of the container operator by smuggling, and caused two parts of the victim’s face by drinking.

Accordingly, the Defendant assaulted the victim and interfered with the victim's restaurant business by force at the same time.

【Facts of Medical Treatment and Custody】

When the defendant lacks the ability to discern things or make decisions due to an on-site illness, he/she committed a crime corresponding to the above imprisonment without prison labor or heavier punishment, needs to receive medical treatment at a medical treatment and custody facility, and is also likely to repeat a crime.

Summary of Evidence

1. Statement made by C of a witness in the fourth trial record;

1. First prosecutor's protocol of examination of the accused;

1. Statement by the prosecution against C;

1. An invoice, a victim or on-site photograph, a business report certificate, or a CCTV-cape photograph;

1. Investigation reports (verification of the results of inquiry into credit information of a suspect) and accompanying documents;

1. Previous convictions: Inquiry reports, investigation reports (verification of suspect A repeated crime records), copies of the judgment attached thereto and current status of personal confinement;

1. The need for treatment as indicated in the judgment and the risk of recidivism: The following circumstances, namely, the police interrogation protocol of the accused against each of the above evidence, the mental emotions prepared by the director of the medical treatment and custody office, and the following circumstances, which can be seen by adding up the descriptions of the written mental appraisal prepared by the director of the medical treatment and custody office, the medical treatment and custody office, after diagnosing the accused as the early illness, presented its opinion that the accused is highly likely to repeat if the mental and medical treatment of the accused is not necessarily necessary and the treatment is not performed, and that the accused voluntarily stated that there is an enemy who has been given treatment by exchange at a mental hospital in the past (in the past, 38 pages of the investigation record), there are a large number of records of the accused, and in particular, the accused again committed each of the crimes in this case only once he was sentenced to a punishment for the same kind of crime and the execution of the sentence is recognized, taking into account the motive and background of the crime

Application of Statutes

1. Article applicable to criminal facts;

Article 347(1) of the Criminal Act (Fraud's point), Article 314(1) of the Criminal Act (the point of interference with business), Article 260(1) of the Criminal Act (the point of violence)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (Joint Crimes of Interference with Duties and Assaults, and Punishment provided for in more severe Crimes of Interference with Business)

1. Selection of punishment;

Each Imprisonment Selection

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act

1. Statutory mitigation;

Article 10(2) and (1) of the former Criminal Act (Amended by Act No. 15982, Dec. 18, 2018; hereinafter the same shall apply); Article 55(1)3 of the Criminal Act (person with mental disability)

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes with punishment prescribed in more severe fraud)

1. Medical treatment and custody;

Articles 12(1) and 2(1)1 of the Medical Treatment and Custody Act; Article 10(2) of the former Criminal Act

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

A. Although there was a fact that the Defendant received alcohol and food as stated in paragraph (1) of the judgment, the Defendant believed that he had the right to receive alcohol and food free of charge, and there was no intention to acquire the Defendant.

B. As stated in Paragraph 2 of the holding, the Defendant did not have any time when the monitor of the device was removed and the victim’s face was taken by hand. Moreover, since the victim took part in the restaurant business temporarily held on the day of the instant case, it does not constitute “business continuously engaged in social life” in the crime of interference with business.

2. Determination

A. According to the evidence mentioned above, it can be acknowledged that the defendant, even though he did not have any money or means of payment, he did not know about whether or not he paid money in the order of alcohol and food as indicated in the judgment of the victim (see, e.g., Act No. 144 of the Investigation Record), and the defendant did not pay the price even after he was provided with the above alcohol and food and received a request for payment from the victim, and he did not pay the price. In light of the above, it is reasonable to view that the defendant was provided with the above alcohol and food intentionally as above, even though he was aware that he did not have the right to receive alcohol and food free of charge.

B. Comprehensively taking account of the above evidence, the fact that the Defendant: (a) fell off the monitor of a device; and (b) was sufficiently recognized when the victim’s face was faced by hand. In particular, there are on-site CCTV data that taken the scene of the above crime; (c) there was no error or manipulation in the process of photographing the victim; and (d) according to the above evidence, the victim did not work as a restaurant employee on a daily basis; (b) even though the victim did not work as a restaurant employee on two or three occasions in one month, the above restaurant business was continuously made before the case; and (c) the above restaurant business itself continued to have been made. Therefore, it is reasonable to deem that the duties performed by the victim in relation to the business of the above restaurant constitute the duties as referred to in the crime of interference with business.

3. Conclusion

All the arguments of the defendant and his defense counsel mentioned above cannot be accepted.

Reasons for sentencing

1. The scope of applicable sentences under law: Imprisonment for one month to fifteen years; and

2. Scope of recommended sentences based on the sentencing guidelines: The sentencing guidelines shall not apply because some of the crimes correspond to the ordinary concurrent crimes: Provided, That the sentencing guidelines shall not apply when referring to the recommended sentences for fraud and crime of interference with business in order to determine the sentencing

(a) A primary crime;

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

【Special Convicted Persons】

- Mitigation elements: mentally ill-minded persons (no one shall be responsible);

- Aggravations: Cumulative Offense

[Recommendation and Scope of Recommendations] Basic Field, Imprisonment of 6 months to 1 year and 6 months;

(b) Second crime (Interference with business);

[Determination of Punishment] Obstruction of Business Affairs / Obstruction of Business Affairs / Obstruction of Business Affairs

【Special Convicted Persons】

Measures to be mitigated: Maternane (no one shall be responsible);

- Aggravations: Cumulative Offense

[Recommendation and Scope of Recommendations] Basic Field, Imprisonment of 6 months to 1 year and 6 months;

(c) Scope of recommendations according to the standards for handling multiple crimes: Imprisonment with prison labor for six months to two years (the upper limit of the first crime + the upper limit of the second crime);

3. Determination of sentence: Imprisonment with prison labor for one year and medical treatment and custody;

Although there are many records of punishment for the same kind of crime, the Defendant committed each of the crimes of this case which interfered with another person’s business by deceiving another person, assaulting another person, and obstructing another person’s business during the same repeated crime period. The Defendant, without any particular reason, did not take any measures to recover the damage without going against the victim, and the victim dumpeded the victim during the process of fasting the bump terminal.

○ favorable circumstances: The value of the alcoholic beverage and food acquired by the defendant is relatively small. The defendant has committed each of the crimes in this case in a state of mental disorder due to the influence of a man and physical illness, etc.

○ Other factors for sentencing specified in the pleadings of the instant case, such as the Defendant’s age, character and conduct, home environment, motive, means and method of committing the crime, and circumstances after committing the crime, shall be determined as ordered.

The presiding judge, the Full Judge Line

Judges Kim Gin-tae

Judges Bo Dong-dong