Defendant

Defendant

Park Sang-hee

Attorney Yoon Jong-hee

Busan District Court Decision 201Da3065 Decided August 23, 2011

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

① In light of the legal history, purport, language, etc. of the Financial Investment Services and Capital Markets Act, the act of issuing a bill by an individual or a company other than a financial institution as the Defendant is not subject to regulation under Article 360(1) of the said Act, and (2) even if not, since each of the instant promissory notes was delivered without stating the amount of the bill, issue date, and place of issuance, it does not constitute a “bill” under the said Act because it does not meet the requirements for establishing a promissory note. (3) In addition, each of the instant promissory notes was traded in KRW 200 to three million, regardless of its face value, and thus, it cannot be deemed as a “issuance” of the said Act.

B. Unreasonable sentencing

The punishment sentenced by the court below to the defendant (three years of imprisonment) is too unreasonable.

2. Determination

A. Fact-finding or misapprehension of legal principles

However, according to the evidence duly adopted and examined by the court below, it can be sufficiently recognized that the defendant issued each promissory note in collusion with the bearers under the name of the defendant, stating the amount of face value, issue date, and issue date. The above promissory note was issued in blank without the above entry, and it cannot be deemed that the issuance of the promissory note is not an issue of the promissory note. Meanwhile, Article 360 (1) of the Financial Investment Services and Capital Markets Act requires the person who intends to engage in the short-term financing business to obtain authorization from the Financial Services Commission, and the requirement for such authorization requires the person who is authorized to be a financial institution, and it cannot be deemed that the person who is not a financial institution is excluded from the regulation subject to the issuance of the promissory note without the authorization. Thus, the above assertion by the defendant is without merit.

B. The point of unfair sentencing

Although the Defendant’s crime of this case causes damage to the fairness and reliability of the capital market, the total face value of the bill issued and distributed exceeds 26.2 billion won, and the damage therefrom seems not to be small, the Defendant reflects the fact that there is no record of punishment other than the punishment sentenced once more than 12 years, and actively participated in the securing of the bill site, but the Defendant did not lead the issuance and sale of the bill, and other circumstances that are conditions of sentencing indicated in the records, such as the character, conduct, family relation, economic condition, motive and background of the crime, means and consequence of the crime, etc., the sentence imposed by the lower court is too unreasonable, taking account of the following circumstances.

3. Conclusion

Therefore, the judgment of the court below is reversed, and it is again decided as follows.

The summary of the facts constituting an offense and the evidence recognized by this Court is identical to the entries in each corresponding column of the judgment of the court below, thereby citing them as it is.

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

Article 44 subparag. 22, Article 360(1), and Article 30 of the Criminal Act (Generality, Selection of Imprisonment)

Judges Lee Jong-il (Presiding Judge)