2017Gohap236 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

1. A;

2. B

The origin of a branch, public leather, two-way, Kim Jong-il (trial);

Law Firm Roon (for Defendant A)

Attorney Park Jong-soo, Counsel for the plaintiff-appellant

Law Firm mountainous district (for the defendant A)

Attorney Lee Gyeong-Gyeong, Counsel for the plaintiff-appellant

Law Firm Pacific (Defendant B)

[Defendant-Appellee] Plaintiff 1 and 5 others

July 6, 2018

Defendants shall be punished by imprisonment for one year and six months.

However, with respect to Defendant B, the execution of the above sentence shall be suspended for two years from the date this judgment became final and conclusive.

Criminal facts

On September 21, 2012, Defendant A was sentenced to five months of imprisonment for fraud aiding and abetting at the Seoul Central District Court on November 29, 2012, and the execution of the sentence was terminated on November 29, 2012. Defendant B was sentenced to two years of suspension of execution on June 3, 2017 by imprisonment with prison labor at the Seoul East East District Court on May 26, 2017 and became final and conclusive on June 3, 2017.

The Defendants, in collusion, did not have the intent or ability to pay the amount of money from the victim C even if they borrowed money from the victim C, and did not have the intent or ability to offer the shares of D (hereinafter referred to as D) as security,

1. From March 17, 2015, around 14:00, at the F judicial scrivener office located near the Seocho-gu Seoul East Station, the victim C would pay 100 million won interest per annum to the victim C within one month after paying 10% interest. The victim would offer as security the common share of D on March 18, 2015, giving the victim a maximum of 2 million common share of D, and the second priority mortgage of H, and the third priority mortgage of H, and three parcels as of March 17, 2015 in order to guarantee the performance thereof. On March 18, 2015, the victim would be aware that D's common share of KRW 200,000,000,000,000,000,000,000 won for each of the above real estate, by deceiving the victim C to the effect that the right to buy cashier's checks (one billion won to 150,000,000 won) is terminated.

2. At around 13:00 on March 18, 2015, in the French Seocho-gu Seoul Metropolitan Government (hereinafter referred to as Seocho-gu), N made the victim C, through N, to pay the interest of 10% per annum per week on the loan of additional KRW 400 million to the victim C after one month. On March 17, 2015, D would offer additional KRW 1.5 million per common share as security, along with D’s common share of KRW 2 million to be offered as security. As a security for performance, D would establish a pledge in the creditor’s name (hereinafter referred to as “0”) with regard to the exercise of the D’s common share of KRW 1.5 million, and then, by deceiving the victim C to transfer the amount of KRW 400 million to the P bank account in the name of KRW 17:22 of the same day.

As a result, the Defendants conspired to obtain a total of KRW 850 million from the victim C.

Summary of Evidence

1. Defendants’ respective legal statements

1. The statements of witnesses C and R in the first and third trial records;

1. Each prosecutor's protocol of interrogation of the Defendants (including the substitute part)

1. Statement of the N in the police station;

1. Investigation report (Submission of a detailed statement of deposit to the complainant), investigation report ( telephone conversations for reference);

1. A written confirmation or an agreement;

1. All certificates of each registration;

1. Previous records of judgment: Application of each inquiry report, investigation report (verification of a repeated offense), investigation report (verification of the date of confirmation of the judgment), Acts and subordinate statutes;

1. Article applicable to criminal facts;

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, and Articles 347 (1) and 30 (General Control) of the Criminal Act

1. Aggravation for repeated crimes;

Defendant A: the proviso to Article 35 and Article 42 of the Criminal Act

1. Handling concurrent crimes;

Defendant B: the latter part of Article 37 and Article 39(1) of the Criminal Act (Inter-Korean between the instant crime and the accusation for which judgment has become final and conclusive)

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Code (The following consideration shall be taken into account in favor of the reasons for sentencing)

1. Suspension of execution;

Defendant B: Article 62(1) of the Criminal Act (The following consideration is made for the reason of sentencing)

Judgment on the defendants' and defense counsel's arguments

1. Summary of the Defendants and their defense counsel's assertion

A. In the instant case, both R used the money borrowed from the victim as the acquisition fund of 0 and the victim was aware of this fact. Accordingly, the subject who borrowed money from the victim is R.

Defendants are merely mere mere brokerage of lending.

B. The Defendants believed that it is possible for the Defendants to offer D shares as a security because they had been able to assist them in acquiring 0 and planned to exchange 0 convertible bonds with D shares. Therefore, the Defendants’ deception or fraud cannot be recognized. The victims believe that R would offer d's collateral value, not D's shares, but D's shares, and lend money to the Defendants, i.e., the collateral value of G, 5 and H, and 3 parcels (hereinafter “each of the instant real property”). However, the causes for which the mortgage was not established on each of the instant real property are due to R's deception and irrelevant to the Defendants. Accordingly, there is no causation between the Defendants' deception and the lending of money.

D. Defendant B does not constitute a joint principal offender since he did not have conspired to acquire money from Defendant A and the victim.

2. Determination

A. According to the evidence adopted and examined by the court, the following facts can be acknowledged.

1) On March 17, 2015, the Defendants borrowed KRW 500 million from the victim (hereinafter “the instant primary loan”). As follows, the Defendants drafted a written confirmation in which the name of the creditor is the driver of the victim, and the debtor is Defendant B, and the joint guarantor is the U to deny R. On the same day. On the same day, the victim paid to the Defendants KRW 50 million after deducting KRW 50 million from the loan amounting to KRW 50 million.

TOS: The joint and several surety of BO: UOA means lending KRW 100 million to the joint and several suretys of BO and B, and offering the following security. The list of security ① the list of five parcels outside the G in Chungcheongnam-si, Chungcheongnam-si, Chungcheongnam-si, Chungcheongnam-si, Chungcheongnam-si, and the third parcels outside the H on March 17, 2015. ② The collateral security of D common shares outside the list of security (3) on March 18, 2015 if the collateral security ratio of D common shares is less than 150% if it is not offered.On the other hand, if paragraph (3) of the list of security is offered, the collateral security of paragraph (2) is terminated.

2) At the time of the first borrowing of the instant real estate, R’s registration document was prepared for the establishment of the right to collateral on each of the instant real estate in U as F judicial scrivener offices. However, after the victim returned to the F judicial scrivener office, V did not recover the registration document and the right to collateral security was not established.

3) On March 18, 2015, the Defendants: (a) additionally borrowed KRW 400 million from the victim (hereinafter referred to as “the second loan”); and (b) together with the first loan and the second loan, hereinafter referred to as “each of the instant loans”); and (c) written an agreement with the creditor as the driver of the victim under the name of the creditor as Defendant B (agent A) as follows. The victim transferred KRW 400 million from the same day to the account in the name of 0.

○ “갑”과 “을”은 2015년 3월 18일 아래 내용을 상호 합의하고 성실히 이행할 것을 약정하며, 이를 증명하기 위하여 계약서를 작성하고 각 1부씩 보관한다.- 아 래1. 대출금: 금 사억 원정 (₩400,000,000)2. 대출일: 2015년 3월 18일3. 만기일: 2015년 4월 17일4. 이자율: %5. 담보물:- 0 워런트 행사 채권자 명의로 납입하고 채권자 명의로 질권설정- D 보통주 1,500,000주 제공위의 두가지 사항 중 어느 한가지 사항이 미제공된 경우에는 기한의 이익 상실로 보고 채권자가 채권회수를 위하여 원금회수를 하기로 한다.6. 특약사항:“을”이 제공한 D의 담보물의 가치가 대출금의 150% 이하인 경우 “갑”은 단독으로매매를 실행한다.7. “갑”과 “을”은 본 약정내용을 제3자에게 공개하지 아니하기로 하고 신의성실의 원칙에입각하여 행동하고 상호 협력한다.채권자 ‘갑’T○ 채무자 ‘을’ B 代A

4) The Defendants did not provide the victim with a total of 3.5 million shares (hereinafter “instant shares”) agreed to provide security at the time of each of the instant loans as security.

B. Determination

1) The following circumstances revealed by the evidence adopted and investigated by the court. ① The victim introduced the Defendants with a consistent “N on March 17, 2015,” thereby allowing the Defendants to offer a loan to the Defendants as security, and the Defendants to pay interest of 10% per month.” The Defendants did not specifically mention the Defendants’ specific use of the money to the Defendants, and the victim stated that the Defendants did not receive money from the Defendant at the time of the loan request to the Defendant, and the victim did not receive money from the Defendant and the victim’s statement to the effect that “The victim did not receive money from the Defendant at the time of the loan request to the Defendant.” 1 ② The victim did not have any awareness of the fact that each of the Defendants and the victim did not receive money from the Defendant, and the victim did not receive money from the Defendant and the victim’s statement that the Defendants did not receive money from the Defendant and the victim’s statement that the Defendants did not receive money from the Defendant and the victim’s statement that the Defendants did not receive money from the Defendant and the victim’s statement that the Defendants did not receive or promised.

2) Comprehensively taking account of the following circumstances revealed by the evidence adopted and investigated by this court as to whether the Defendants were to have committed deception or fraud, the Defendants did not have the intent or ability to offer the instant shares to the victims as security and did not have the intent or ability to directly repay the borrowed money. Therefore, the Defendants’ intent to commit deception or fraud may be recognized.

① At the time of each of the instant loans, the Defendants did not actually hold the instant shares that were to be offered to the victim as security. The Defendants sought to exchange KRW 6 million with the said convertible bonds and D/D owned by W when they were issued convertible bonds after having subscribed 0. If the issuance of the instant convertible bonds was made public notice of the issuance of the instant convertible bonds, the Defendants asserted that the instant shares could be offered to the victim as security if the acceptance was made proper. However, according to the investigation report (Evidence 502 pages), S did not know that C/W’s subsequent representative had 6 million shares on February 3, 2016, but did not know that there was no agreement or agreement on the issuance of the instant convertible bonds, and that there was no specific statement or agreement on the acquisition of the instant shares at the time of the issuance of the instant convertible bonds. In light of the fact that Defendant B did not have been aware of the fact that there was no agreement or agreement on the issuance of the instant convertible bonds after the issuance of the instant shares.

In addition, it seems almost impossible for the Defendants to offer the instant shares as security to the victim within the agreed time limit.

② At the time of the first borrowing of the instant shares in this Act, the victim did not receive notice from the Defendants that “the instant shares may be acquired as loans by R 0 and then issued convertible bonds to be exchanged for D shares.” The Defendants stated that the Defendants would bring about D shares by March 18, 2015 (Evidence 3: 208 pages of the evidence record) and stated to the police that “The Defendants would pay the instant borrowed shares.” The N also stated to the same effect at the police (Evidence 208 pages of the evidence record) and the agreement prepared at the time of the first borrowing of the instant shares was specified as March 18, 2015. Therefore, it is difficult to view that the victim knew that the time of offering the security was impossible until that time, and without any meaning, specified the specific date of offering the security.

③ The Defendants also acknowledged the fact that they did not have the ability to repay at the time of each of the instant loans. In addition, the Defendants thought that R would have been able to repay each of the instant loans to the victims, and the Defendants did not have the intent to directly repay the funds to the victims.

3) In full view of the following circumstances revealed by the evidence adopted and examined by this court as to whether the causal relationship between a deception and a disposal act is recognized, it is reasonable to view that the victim believed the Defendants to offer the instant shares as collateral and decided to lend money to the Defendants. Therefore, the causal relationship between the deception on the intent or ability to offer the Defendants’ share security and the issuance of the victim’s money may be acknowledged. Accordingly, the Defendants’ assertion on this part is rejected.

① At the time of the first loan, the victim stated consistently to the purport that “At the time of the first loan, the Defendants lent money to believe that the shares of D are certain on the following day, and the establishment of the right to collateral security on real estate was temporarily obtained before securing the above shares on the following day, and that the value of the security on real estate was not sufficiently examined. In the absence of the provision of D shares as collateral, the victim did not lend money, and therefore, the contract first prepared is also stating the importance of the security on stocks.”

② According to the statement of the letter of confirmation prepared at the time of the first borrowing of the instant shares (3rd page of the evidence record), it is stated that the Defendants lose the benefit of time when the Defendants are unable to offer shares as security, and if shares are offered as security, the right to collateral security established in the name of the injured party is terminated. In addition, the letter of confirmation and the agreement prepared at the time of the second borrowing of the instant shares state that, under the premise that the Defendants offer shares as security at the same time, the Defendants would make sure that “where the value of D shares is less than 150% of the loans, the Defendants would offer shares as security” under the premise that they offer shares as security, the victim would act as a counter-party. Even according to such letter of confirmation and the text of the agreement itself, it is clear that the victim

③ At the time of each of the instant loans, the Defendants agreed to provide D shares that were not held by R, a consumer of the actual funds, as collateral, and specified Defendant B as the obligor for the implementation thereof. In particular, the Defendants agreed to provide D shares as collateral, like the first loan of this case, even at the time of the second loan of this case, which additionally borrowed KRW 400 million from the victim. In light of the foregoing, the Defendants were aware that not only the instant real estate but also the instant shares should be secured in order to borrow money from the victim at the time.

④ At Ndo, N also stated to the effect that the object of security was a stock. The real estate was offered as a temporary security and that if it was made a stock, it was ordered to terminate the collateral security of the real estate (Evidence No. 3rd 206 pages).

4) The following circumstances revealed by the evidence adopted and examined by this court as to whether Defendant B’s accomplice relation was recognized, ① at the police station talked with the Defendant on March 16, 2015, and the Defendants told that the Defendants will bring about the shares. Defendant B talked with Defendant A, and delivered Defendant A’s agreement to Defendant B (Evidence Nos. 3 and 63-64 pages). ② As seen above, the issue of D shares is a critical factor for determining the lending of each of the instant loans. The Defendants appears to have been to have been provided with the Defendant’s personal knowledge of the instant shares through S, ③ Defendant B was aware of the fact that it would have been offered with the Defendant as security on the date of borrowing the instant shares, and Defendant B was aware of the fact that it would have been offered with the Defendant’s consent to the Defendant’s acquisition and delivery of the agreement to the Defendant A and the Defendant’s acquisition and delivery of the agreement to the Defendant 400,000,000 won.

Reasons for sentencing

1. The scope of punishment by law;

(a) Defendant A: Imprisonment with prison labor for a year from six months to twenty-five years;

(b) Defendant B: Imprisonment with prison labor for one year and six months to fifteen years;

2. Scope of recommended sentences according to the sentencing criteria;

A. Defendant A

[Determination of Punishment] General Fraud. Type 3 (at least 500 million won, less than 5 billion won)

[Special Aggravation] Cumulative Cumulative Crime (Aggravated Elements)

[Recommendation and Scope of Recommendation] Aggravation, 4-7 years

B. Defendant B

Since the latter concurrent crimes of Article 37 of the Criminal Code are concurrent crimes, the sentencing criteria do not apply.

3. Determination of sentence;

In spite of the absence of the ability or intent to provide the victim with D stocks as security, the Defendants deceptioned the victim to provide the victim with the proceeds of loan, and acquired the amount of KRW 850 million under the name of the victim. In light of the method of the crime and the scale of the amount of damage, the nature of the crime is not good. In particular, even though the Defendant had the record of having already been punished for the same crime, the Defendant committed the crime of this case during the period of repeated crime, and it is inevitable to strictly punish the Defendants. Such circumstances are disadvantageous to the Defendants.

However, the victim appears to have lent a large amount of money without closely examining the collateral provided for the purpose of gaining high interest within the short period. Most of the loans of this case were used for the funds related to this acceptance and the profits the Defendants directly acquired from the instant case seems to have little or less. In addition, the victim was paid approximately KRW 100,000,000 from Defendant B, KRW 200,000,000 from R, KRW 300,000,000 from Defendant A, and KRW 70,000,000 from Defendant A by exercising the security right to the stocks, and both the Defendants did not want to be punished against the Defendants by mutual consent. This is a favorable circumstance to the Defendants.

In addition, comprehensively taking into account the Defendants’ age, character and conduct, family relations, living environment, motive, means and result of crime, various sentencing conditions in the trial process of this case, such as circumstances after the crime, etc., and Defendant B shall determine the sentence as ordered in consideration of equity with the case where the judgment is to be rendered concurrently with the crime which became final and conclusive.

The presiding judge and the deputy judge;

Regular Category of Judges

For judges the last place: