(영문) 서울중앙지방법원 2017.10.12. 선고 2017고합642 판결

On December 23, 2011, the Defendant: (a) at the coffee shop near the Hansung-dong, Yeongdeungpo-gu, Seoul, Yeongdeungpo-gu, 94-200, the Defendant: (b) obtained authorization and permission for a sand gathering business from the Gyeongsung-gun; and (c) obtained authorization and permission to the victim E; and (d) made investments in the business, the Defendant said that 20% per month of the amount invested will be considered as investment profits.

However, the defendant did not have the intention or ability to return the investment profits equivalent to 20% of the investment principal as agreed to the victim because he did not obtain the authorization or permission of the river sand gathering business or did not carry out the collecting business.

Nevertheless, the Defendant, as such, by deceiving the victim, received 30,000,000 won as investment money from the victim around January 5, 2012.

In addition, the Defendant received a total of KRW 618,00,000 from the victim at around March 29, 2012 by the following methods, as shown in the list of crimes in the attached Table, from around 11, 201.

"2017 Highly 680"

2. Fraud against victim F;

(a) Fraud of deposit on deposit basis;

Around August 2012, the Defendant made a false statement to the victim F that he would obtain a debt 70-80 foot 2 from the sexual source flurged apartment located in the Gangnam-gu Seoul Western-dong, Gangnam-gu.

However, the Defendant paid interest of KRW 7,80,000,000 to 7,220,000 under her husband G’s name, and the Defendant was unable to pay the profits promised to the investors in the company with which the Defendant was present. Therefore, even if the Defendant received money from the victim as a deposit for lease, it was merely intended to use the money for repayment of obligations and return of profits, and there was no intention or ability to have the victim conclude the lease contract.

Nevertheless, the Defendant was transferred from the victim to the bank account in the name of the Defendant as the deposit money for lease on August 29, 2012, and KRW 20 million as well as KRW 50 million on September 25, 2012.

Accordingly, the defendant was given a total of KRW 70 million by deceiving the victim.

(b) Borrowing;

On September 13, 2012, the Defendant called “H” to the victim at an unsound place in Seoul and made a false statement to the effect that if the Defendant borrowed KRW 35 million to the other company due to a contract with the other company, the Defendant would be able to take measures for preserving the claim, and that he would have repaid the debt to the first police officer until January 2013.

However, in fact, the Defendant paid the principal and interest of the obligation as stated in the above paragraph (a) and did not pay the proceeds from the investment, and thus, even if the Defendant borrowed money from the victim, it was intended to use it for the repayment of the obligation and the return of the proceeds, and did not lend the money to H.

Nevertheless, the Defendant received 35 million won from the victim to the bank account in the name of the Defendant on the same day as the borrowed money.

"2017 Highly 681"

3. Fraud against victim I;

Around July 4, 2011, the defendant has four items owned by an executor who is aware of the fact in the apartment in the Seocho-gu Seoul Seocho-gu Seoul Seocho-gu Madern, a Madern Madern's apartment in the Seocho-gu Seoul Seocho-gu Maddong. The extent of four persons can be refunded to KRW 25 million when the defendant lives in 25 million.

A false statement was made that the real estate contract will be prepared and moved into the Dong office, and that the office will be able to reside for up to three years.

However, in fact, even if the defendant received money from the victim as a deposit for a deposit for a deposit for a deposit, he did not have the intent or ability to have the victim conclude a deposit for a deposit for a deposit.

Nevertheless, the Defendant received from the victim a transfer of KRW 8.5 million on July 4, 201, KRW 3.5 million on July 29, 201, KRW 3.5 million on July 29, 201, and KRW 13 million on August 1, 201, to a bank account under the name of the Defendant.

Accordingly, the defendant was given a total of KRW 25 million by deceiving the victim.

"2017 Highly 682"

4. Fraud to the victim J;

On August 24, 2010, the Defendant knew that the victim J of the Seoul detention center, which was located in king-si, had been able to live in the unsold apartment unit at the expense. The Defendant stated that the Defendant would be able to live in the unsold apartment unit at its own expense. The Defendant stated that the Defendant would be able to collect the remainder of the cost and live in the unsold apartment by finding out the fact that it is difficult to carry out the circumstances, and that it would be able to live in the unsold apartment unit.

However, even if the defendant received the above money from the victim, he did not have the intention or ability to allow the victim to reside in the above apartment.

As above, the Defendant, by deceiving the victim, received a total of KRW 9 million from the victim around June 201.

5. Fraud to K of a victim;

On April 21, 2011, the Defendant made a false statement that the victim K was in possession of an executor who is known to the victim K in the main apartment complex in the Seocho-gu Seoul Seocho-gu, Seoul Metropolitan Government Sim-dong on a commercial paper with a 15 million won apartment.If the Defendant sent 15 million won as a down payment, the Defendant would be able to live in the above apartment as unsold in lots for a period of two years."

However, even if the defendant received the above money from the victim, he did not have the intention or ability to allow the victim to reside in the above apartment.

The Defendant, as above, by deceiving the victim, received KRW 15 million from the victim as a down payment around May 2, 201, as the down payment.

6. Fraud of the victim L;

On May 20, 201, the Defendant made a false statement to the effect that the Defendant owned by an executor who is aware of the fact in the main apartment complex in the Seocho-gu Seoul Seocho-gu Seoul Metropolitan Government, a 'Seongdong' at the mutual infinite coffee shop located in the first floor of the Dongdaemun-gu Seoul, Dongdaemun-gu, Seoul. The Defendant sent 15 million won as a down payment, the Defendant would be able to live in the above apartment in a unsold situation for a period of two years.

However, even if the defendant received the above money from the victim, he did not have the intention or ability to allow the victim to reside in the above apartment.

As above, the Defendant, by deceiving the victim as above, received KRW 5 million from the victim, as a down payment, and received KRW 15 million in total from June 17, 201, around June 27, 201, as down payment, from the victim.

"2017 Highly 733"

7. Fraud against the N of a victim;

At around 16:00 on May 20, 201, the Defendant, at a restaurant where the trade name in the Nam-gu Seoul Special Metropolitan City, is unknown, wanted to assist the members of the same church. The Defendant borrowed the same church from Seocho-gu Seoul Seocho-gu, Seoul, and made a false statement that the Defendant would arrange the occupancy until the end of December 201, 201.

However, in fact, the Defendant was not the owner of the above lending, and the Defendant received a business proposal from the person who was not the owner of the lending, but whose name was known and whose name could not be known, was the whole. Therefore, even if the Defendant received the deposit from the victim, he did not have the intent or ability to arrange the Defendant to move into the lending of the lending in the location of the lending on behalf of the victim.

Nevertheless, as above, the Defendant, by deceiving the victim, received KRW 7.5 million on May 25, 201 from the victim, and KRW 15.3 million on June 22, 201 from the victim, respectively, to the account in the name of the Defendant, and received KRW 1,5.3 million on three occasions, including receipt of KRW 30,6 million on November 30, 201 and receipt of KRW 15.3 million.

Summary of Evidence

"2017 Gohap642"

1. Partial statement of the defendant;

1. Statement of the police officer against E, and accusation;

1. Investigation report (verification of the approval or permission for gathering sand from the head of the team at the Ulsan-gun Headquarters);

1. A statement of trading, etc.;

1. Outline of the sand delivery project;

"2017 Highly 680"

1. Defendant's legal statement;

1. The police statement concerning F;

1. Investigation reports (to reply to the details of transactions);

1. Remittance details, bonds transfer/acquisition contract, notice of assignment of claims, written agreement, and specification of transactions;

"2017 Highly 681"

1. Defendant's legal statement;

1. Statement of the police officer to I;

1. Details of withdrawals from passbooks, cash storage certificates, and certificates of personal seal impression;

"2017 Highly 682"

1. Defendant's legal statement;

1. A protocol concerning the suspect examination of the accused;

1. Statement of the police made to K, L, and J and the details of each account transaction attached thereto;

"2017 Highly 733"

1. Defendant's legal statement;

1. Statement of the N in the police station;

1. Details of financial transactions and receipts;

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 13719, Jan. 6, 2016); Article 347(1) of the Criminal Act (including fraud of at least KRW 500 million); Article 347(1) of the Criminal Act [Article 347(1) of the Criminal Act [Article 347(1) of the same Act [Article 347(1) of the same Act shall be applicable to each victim; Article 347(2) of the same Act, including fraud; Article 347(2)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act shall be the severe penalty for concurrent crimes prescribed by the Act on the Punishment, etc. of Specific Economic Crimes (Fraud)

Judgment on the argument of the defendant and his/her defense counsel (the grounds for the crime)

1. The gist of the assertion (as to the case 2017Gohap642)

A. The Defendant merely stated that the Defendant would have invested in the victim before commencing the sand gathering business, did not mean that the Defendant had already been engaged in the business with the authorization or permission for the sand gathering business, and did not intend to pay the proceeds obtained from the sand gathering business to the victim, but the business has not been executed by the partners due to the failure to implement the business with the investment money, and there is no intention to acquire the Defendant.

B. Even if a crime of fraud is established against the Defendant, the sum of KRW 230,000,000 of the principal returned by the Defendant out of the total of KRW 618,000,000 as stated in the attached list of crimes, which was received from the victim, should be excluded from the amount of profit.

2. Determination

A. As to the establishment of fraud

Comprehensively taking account of the following facts and circumstances acknowledged by the evidence duly adopted and examined by this court, the defendant deceivings the victim as if he had already been engaged in sand gathering business with authorization or permission without obtaining authorization or permission for sand gathering business, and it is difficult to make profits from sand gathering business at the time when the investment funds of this case were received. Even if profits accrue, it is reasonable to view that the profits of this case alone are difficult to pay the investment funds of this case and the agreed profits. Thus, the fact that the defendant deceivings the victim with the intent to acquire by deception is sufficiently recognized.

① The victim stated at the investigative agency that he/she was running the business with the authorization and permission from the Defendant. The Defendant first received the investment from the Defendant on January 5, 2012, the Defendant returned the amount of the principal invested to the victim by adding up the proceeds to the amount of the principal invested around January 17, 2012, which was not yet passed after being paid the investment. However, if the investment was merely made in the process of preparing the project, it is difficult to understand that he/she returned the amount of the principal to the victim without any specific progress of the project. The victim’s statement that the Defendant was aware of the progress of the project is more reliable. Furthermore, the Defendant asserted in this court that he/she purchased sand one time before receiving the investment from the victim and purchased sand, and that there was a high probability that he/she was deceiving the victim about the degree of the implementation of the project and profitability of the project, and that he/she was given the right to receive sand from the Defendant-owned business entity to receive the investment in the region where the sand collection was made (the local development plan).

② The Defendant received an investment amount of at least KRW 600 million from the victim, but did not seem to have actively promoted sand gathering business from the Defendant’s assertion. Although the Defendant intended to establish R on December 28, 201, along with P and Q, etc., but, in addition to the deposited funds from the victim to P and Q, the Defendant was in practice left to P and Q as its partner. According to Article 22 of the Aggregate Extraction Act, in order to extract aggregate, the Defendant and P and Q did not obtain permission from the competent authorities regarding the sand gathering business, and there was no evidence to acknowledge that the Defendant purchased equipment, etc. for the sand gathering business. Although the Defendant first attempted to sell sand by collecting sand, it was difficult to deem that the Defendant intended to purchase such farmland and sold it to the Defendant and Q for the purpose of distributing it to P and Q. However, even if the Defendant did not actively endeavor to obtain the funds from the Defendant’s investment, it is difficult to deem that Q and Q were to have been granted a large amount of investment.

③ Although sand gathering business has not been properly promoted, the Defendant received KRW 600,000 from the victim 11 times for about two months, and continued to pay the victim money under the name of the proceeds from January 17, 2012 to October 11, 2012, and there is no fact that the Defendant notified the victim of the progress of the business during that period.

The Defendant paid the amount of profit acquired by the victims of other criminal facts to the victim as profits, as the sand gathering project is normally operated, in order to avoid additional investment from the victim or to avoid being held liable for investment from the victim.

B. As to the amount of profit

If the defendant received an investment money from the victims without the intent or ability to properly pay the principal and profit, and received it through deception, it is established a crime of fraud each time such investment money is delivered. If the defendant returned the investment money received to the victims and received the investment money continuously in the way of receiving the re-investment of the money again, the total amount of the investment money received through deception is the amount of profit, and the returned principal and profit should not be deducted, and the amount of profit should not be calculated (see, e.g., Supreme Court Decision 2006Do1614, May 26, 2006).

As alleged by the Defendant, even if the Defendant paid KRW 10,00,000 to the victim on or around January 17, 2012 as KRW 110,00,000 on or around March 22, 2012, and around March 26, 2012, the Defendant received re-investment from the victim on the date of return of each of the above amounts returned to the victim. As such, the Defendant cannot be deducted from the amount of profit of the fraudulent crime under paragraph (1) of the Defendant’s holding that the sum of the returned principal amounts is 230,00,000,000 on or around January 17, 2012.

Reasons for sentencing

1. The scope of applicable sentences by law: Imprisonment for not less than three years nor more than 45 years;

2. Application of the sentencing criteria;

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

【Special Convicted Person】

[Scope of Recommendation] Basic Field, 3 years to 6 years

3. Determination of sentence;

【Unfavorable Circumstances】

Each of the crimes of this case is a very bad crime in light of the method of the crime, the number of victims, and the amount of damage, etc., by deceiving seven victims who intend to receive a high rate of profit from the investment funds or want to receive a full amount of money, and then deceiving the victims to obtain a total of KRW 800 million. The Defendant used most of the amount of profit acquired from each of the crimes of this case to repay debts and to return the principal and the amount of the investment funds already received. Except for one victim, the victims have not been completely recovered from the victims, and the victims have been punished. The Defendant repeatedly committed each of the crimes of this case even though there was a history of punishment for suspension of execution due to the same crime in around 2010. Considering these circumstances, it is inevitable to punish the Defendant with severe punishment equivalent to the liability for the crime of this case.

【Free Circumstances】

However, most of the criminal facts are recognized and the criminal defendant reflects his/her wrongness. It is not wanting to punish the criminal defendant when an agreement is reached with the victim N. The victim E received approximately KRW 400,000 as the principal return and the return of profits, and other victims received some of the money from the defendant. It seems that the social ties relationship of the criminal defendant is not completely cut off.

Considering the above circumstances, the defendant's age, character and conduct, environment, motive, means and consequence of the crime, the circumstances after the crime, and all of the sentencing factors indicated in the arguments and records of this case shall be determined as ordered.

Judges

The presiding judge; and

Judges in the order of precedence

Judge Kang Dong-hun

Note tin

1) According to the records of this case, in particular the victim E’s statement, the time when the defendant made the same words as the statement in the judgment with the victim E is not the time of January 5, 2012 stated in the changed facts charged, but rather the time of December 23, 201. Thus, it shall be corrected.

2) According to the instant records, in particular, according to the account transaction details of the victim L, the time when the Defendant received five million won from the victim L appears to be not " June 1, 201, as stated in the indictment," but " June 17, 201." Thus, it shall be corrected.

3) The Defendant received money from the victim 11 times as stated in the judgment during about 2 months as investment funds in sand gathering business, and since the unity and continuity of the criminal intent in this part of the crime is recognized, it is reasonable to view it as an inclusive crime.

4) The term "aggregates" means rocks (limited to rocks for crushed stone, sand, or gravel) in the natural environment, such as rivers, forests, public waters, or on or under the ground, which are used as materials for concrete and asphalt concrete or as basic materials for other construction works;

(Article 2 (1) 1 of the Aggregate Extraction Act)

5) The sentencing criteria set a type of fraud crime on the basis of the sum of the amount of profit for the same concurrent offense.