(영문) 서울중앙지방법원 2018.1.19. 선고 2017고합788 판결

The Defendant is a person who treated as the president of the Hsung division located in Gangnam-gu Seoul Metropolitan Government from around August 2014 to August 2016 and actually operated the hospital.

On November 2015, the Defendant: (a) was a company selling cosmetics located in Gangnam-gu Seoul Special Metropolitan City (the representative J; hereinafter referred to as “victim”)’s director and substantial shareholder; (b) consulted on the issue of joint investment in the sex and operation of the Republic of Korea with the Chairperson of K, J, etc., China, which is a Chinese company that manufactures cosmetics in China; and (c) agreed on the issue of joint investment in the sex and operation of the Republic of Korea; (d) “it has 25 domestic chain stores operated by the Republic of Korea and 7 hospitals; (e) the net profit for one year of Hsung branch (the Gangnam branch) is KRW 1 billion; and (e) the Defendant confirmed that four stories among the eight-story buildings located in Gangnam-gu Seoul Special Metropolitan City L from Gangnam-gu, were actually operating, and (e) negotiated with the Chairperson of K, K et al., and investment from around that time.

On December 31, 2015, the Defendant entered into a business partnership agreement with the victimized company (hereinafter referred to as the “instant business partnership agreement”) at the K Chairman’s office located in the Geung-si in China. The main contents are as follows: “In order for the victimized company to use it in the management and development of Hsung and Gangnam Points” (Article 6 subparag. 6 of the contract) to the Defendant in installments within six months as security for the right to operate the Hsung and Gangnam Points and the right to use the facilities and the right to use the facilities, etc., the Defendant shall lend KRW 1.8 billion to the Defendant in installments, and shall pay 50% of the profits of Hsung and Gangnam points as interest every year (the annual interest of two years in 2016, 2017 shall be the higher amount between 50% of the above profits and three million won among the People’s Union), Hsung and Gangnam points, and within 1.2.58 billion won of the investment shares of the Defendant, the Defendant shall have an investment share of KRW 1.588 billion.5 billion.

However, the Defendant: (a) was operating a hospital as the president of H-type and Gangnam Branch; (b) however, the hospital’s business registration was N from May 21, 2015, but around January 2016, the Defendant concealed the fact by sending the Defendant’s business registration certificate on January 28, 2014, which was registered in the name of the Defendant to the victimized Company; and (c) was merely KRW 17,469,383, the net income of H-type and Gangnam Point’s 2015, which was merely KRW 17,469,383, and was merely KRW 50% of the earnings of H-type and Gangnam Point’s 300,000 People’s abolition ( approximately KRW 540,000).

There was no intention or ability to pay the principal to the 1.8 billion won annual interest, or to repay the principal.

③ The Plaintiff did not have any intent or ability to invest KRW 612 million in the KIC within 2 months. Ultimately, the Plaintiff was planned to cover both the opening and operating funds of Hsung and the KIC and the KIC, which are newly opened and opened with the KIC, with the loan or investment funds from the victimized company, and thus, the Plaintiff did not have any intention or ability to operate the KIC and the KIC, with the KIC and the KIC, even if it was invested by the victimized company, M was established, and M was not an investment of KRW 588 million from the victimized company.

The Defendant, by deceiving the damaged company as above, paid 300,000 won or more interest on loans of 1.8 billion won or more per annum with the profits of Hsung and Gangnam Points. In addition, if the damaged company makes an investment of 588 million won or more from the damaged company, the Defendant established M and established 3 hospitals, including the existing HH-type and Gangnam Points, and received 300,000 won as loans from the victimized company on January 27, 2016 from the damaged company that it believed that the Defendant would have been able to earn investment profits by opening and operating 3 hospitals, including the existing H-type and Gangnam Points, and acquired 40,000,000 won or more under the name of the Defendant’s loan from 1.6 billion won or more as loans from July 27, 2016, and acquired 1.78,000,000 won or more under the name of the Seoul High Court Decision 178,800,000 won or more under the name of P-type 16.

2. Determination

A. In light of the timing and circumstances when the name of the business owner of Hsung and Gangnam Points was changed from the Defendant to N, and the status of the operation of Hsung and Gangnam Points, etc., it is difficult to view that the Defendant’s name holder in charge of the business registration to conceal loans and investment funds from the victimized company is hiding. In determining the investment in Hsung, it is difficult to view that the damaged company’s name holder in charge of the business registration in Gangnam Point was the Defendant as an important factor to determine whether to be the Defendant in deciding whether to be the Defendant.

① A business registration of Hsung and Gangnam Points was made under the name of the Defendant around October 28, 2014, and was changed under the name of the Defendant and N on April 6, 2015, and again changed under the name of N on May 21, 2015. However, the actual Hsung and Gangnam were continuously operated by the Defendant for the said period, and N was merely an intention to receive benefits from the Defendant. The Defendant asserted that a business registration was made under the name of N, a medical specialist, without registering his/her business under the name of a medical specialist, and thus, there was an issue at the sexual scientific conference, etc. regarding the use of the name of a sex surgery. This is sufficiently acceptable.

② Prior to the conclusion of the instant business partnership agreement, the victimized company appears not to have demanded a separate verification of the name of the business registration of Hsung and Gangnam Points before entering into the instant business partnership agreement, and only a copy of the Defendant’s certificate of intention and passport are attached to the business partnership agreement. The victimized company continued to pay loans under the instant business partnership agreement without any particular issue even after it becomes aware that the name of the business registration of Hsung and Gangnam Points is N, not the Defendant, at around March 2016.

③ K and J made a statement to the effect that the Defendant would not enter into the instant business partnership agreement if he would have known the fact that the business registration of Gangnam Points would not have been registered in the name of N, rather than a sex foreign medical specialist. However, in light of the above circumstances and the fact that the Defendant had been promoting the network hospital business using H’s brand since before entering into the instant business partnership agreement, and that the Defendant would have been operating the network hospital business using H’s brand in substance prior to the conclusion of the instant business partnership agreement, there is no evidence to deem that the instant business partnership agreement is premised on the Defendant’s qualification as a sex foreign medical specialist, and that the victimized company would have been trying to make an investment in the sex foreign hospital business by using the “H’s brand, such as the Gangnam point, voltage point, and Jeju point, it is difficult to accept the above statements made by K and J as it is.

(b) Whether the victimized company is deceiving with respect to the intent and ability to pay annual income and interest from Hsung and Gangnam Points;

① K and J stated that the Defendant believed that the annual net income of Gangnam points is KRW 1 billion and concluded the instant business partnership agreement. However, K and J merely believed the Defendant’s horse, and did not disclose at all as to whether the Defendant received and examined the data, etc. to verify the management status and net income of Gangnam points, etc., from the Defendant. In particular, in the course of consultation prior to the conclusion of the instant business partnership agreement, the provisional agreement (Evidence 3-1, 2) prepared by the Defendant and the victim company (Evidence 3-1, 2), which was assessed through the accounting office, provides that the final market price of Gangnam points shall be the strong point. If such objective evaluation was conducted, it is difficult to readily understand that the Defendant deceivingd the Defendant regarding the net income of Gangnam points which can sufficiently be verified, and that it concluded the instant business partnership agreement under the premise that the Defendant and the victim company should pay 100,000,000 won interest to the Defendant for the first two years under the instant business partnership agreement, on the premise that the amount of KRW 1,500,00,00,0,000,00.5 billion.

② Although the amount of net profit of Gangnam-gu in 2015 was limited to KRW 17,469,383, as stated in the facts charged, the sales amount of Gangnam-gu points was not smaller than KRW 3.777,831 million in 2014, KRW 3.71,2377 million in 2015, and KRW 2.54,4370,000 in 2016. Meanwhile, the amount was increased by the Defendant’s sales amount of KRW 3.1 billion in 2017 operated in Gangnam-gu, Seoul. The instant business partnership agreement concluded with the Plaintiff to enter into a management consulting agreement with the Plaintiff, which was almost 10,000,000 won in terms of loans to be paid according to the management consulting agreement with the Plaintiff, KRW 10,000,000 in 20,000 in 10,0000 in 20,000,000.

In full view of these circumstances, it is difficult to readily conclude that the Defendant did not have the intent and ability to pay the interest accrued during the two years in 2016 and 2017.

③ Around August 16, 2016, the Defendant closed down his business of Hsung and Gangnam, and operated the loan granted from the victimized company for any purpose other than the hospital business (it cannot be deemed that the Defendant used the loan only for the operation of the existing Gangnam Point, as seen below) or deducted the loan from the victimized company for any purpose other than the hospital business (it cannot be deemed that the Defendant used the loan only for the operation of the existing Gangnam Point), and there is no evidence to acknowledge the Defendant’s deception. The Defendant and S stated that it was difficult to maintain the existing Gangnam point any longer, including the fact that the Defendant and S obtained a large amount of business loan from N who is the nominal owner of the Gangnam Point, and seized the account of Gangnam Point because it was difficult to maintain the existing Gangnam point, such as the fact that the Defendant was expected to attract the patient of China on a large scale as seen earlier, and that it would be difficult to recognize the Defendant’s profits aggravated due to the closure of the business of the existing Gangnam Point from around 16, 2016.

(c) Whether the defendant deceivings the damaged company about the defendant's investment in the MU and H-type capital, the Gangnam point, the pressure-sustaining point, and the ability to open and operate the main office;

① The instant business partnership agreement provides that “If the specific content of the expenses incurred by the president of the Jeju Branch (rental deposit of KRW 50 million and KRW 50 million and expenses for facilities, equipment, etc.) is confirmed, the amount shall be recognized as M’s investment (Article 10(1)).” Moreover, it is confirmed that the Defendant disbursed the amount of KRW 543,679,695 in relation to the interior of the Jeju Branch, etc. (Article 10(1). As such, even if the Defendant is deemed to have paid the amount of KRW 543,679,695 in relation to the interior of the Jeju Branch, etc. (Article 185 pages, 511 pages, etc.). Therefore, even if the amount is separate from whether the Defendant’

It can not be seen as being the case.

② Articles 5 and 6 of the Agreement on Business Partnership of this case stipulate that the injured company lends KRW 1.8 billion to the defendant for use in the management and development of Hsung and Gangnam Points.

However, it is doubtful whether there was a need for further input of the large amount of KRW 1.8 billion to increase sales and revenues since the Defendant had already installed and operated facilities, etc. for a considerable period of time, and whether K andJ stated that it will be used for any specific purpose. The business partnership agreement of this case stipulates that if a third party, not a Korean legal doctor, is permitted to invest in a hospital, a loan shall be converted to an investment in the Hsung and Gangnam Points (50%) of the victimized company, and S may request the J to pay the divided loan to use the funds to use it as operating expenses of the KJ or to use it for the pressure point or to use it for operating expenses of the KJ. In full view of the circumstances such as the fact that the victimized company would have received a loan without any objection, it is difficult to view that the Defendant would have received a loan from the KJ to use it as an investment pressure of KRW 1.8 billion for the existing development of the KJ-U and the K-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U.

3. Conclusion

Ultimately, the evidence submitted by the prosecutor alone is insufficient to view that the facts charged by the Defendant by deceiving the victimized company with a total amount of KRW 2.188 million under the pretext of loans and investment funds have been proven without any reasonable doubt, and there is no other evidence to acknowledge this otherwise. Since the facts charged in this case is the time when there is no proof of facts constituting a crime, the facts charged in this case shall be pronounced not guilty in accordance with the latter part of Article 325 of the Criminal Procedure Act, and the summary of this judgment shall be published in accordance with Article 58(2) of the Criminal Procedure Act, and the application for compensation by the applicant for compensation shall be dismissed in accordance with Article 32(1)2 of the

Judges

The presiding judge, judges, and the Yellow Constitution

Judges Jong-jin

Judges Kim Jae-han

Attached Form

A person shall be appointed.

참조조문

-소송촉진 등에 관한 특례법 제32조 제1항 제2호

-특정경제범죄 가중처벌 등에 관한 법률

-형법 제58조 제2항

-형사소송법 제325조

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