(영문) 서울중앙지방법원 2018.12.21. 선고 2018고합489 판결

Defendant A shall be punished by imprisonment with prison labor for a year and six months, and Defendant B shall be punished by two years in the calendar.

However, with respect to Defendant A, the execution of the above punishment shall be suspended for three years from the date this judgment becomes final and conclusive.

Reasons

Criminal facts

Defendant B is an actual operator of the garment manufacturing and sales company D (hereinafter referred to as “D”) in Gwangjin-gu Seoul Special Metropolitan City, who has overall control over the business affairs of the company, such as business and the invitation of investment funds, and Defendant A is a business director and a manager of D, who is in charge of the business affairs of raising investment funds.

The Defendants, even if soliciting D’s investment money, did not have the ability to guarantee the agreed profits or principal to investors. However, Defendant A and other business directors of D conspired to attract investment money from many and unspecified persons on the condition that they receive KRW 7 million per month of the amount of 100 million of the investment money maintained by Defendant A and other business directors, and to prepare a loan certificate to the effect that Defendant B would guarantee investors the principal and the agreed profits in their name.

According to the above public offering, Defendant A made a false statement to the effect that, around March 25, 2016, “D will make the brand fashion in its own name after its establishment in 2007, and will be listed on KOSDAQ as well as online home shopping. Upon making an investment in D, Defendant A will pay interest of KRW 300,000 per month at KRW 10,000,000 per month. The principal would be the same after two months if necessary.”

However, in fact, the Defendants did not have any source of investment that could definitely pay the agreed profits under the above interest name even if they receive the investment funds from the victims. Of the investment funds, the amount invested in profit-making business was not more than the amount of the investment received. Moreover, there was no net profit from profit-making business, and the profits and dividends paid to the existing investors were made by so-called return method that the subordinated investment funds are paid to the investors prior to the investment, so there was no intent or ability to return the agreed profits and the principal to the victims.

The Defendants, by deceiving the victim as such, received KRW 190 million from the victim as investment money on March 28, 2016, from the victim, to the one bank account in the name of H, the husband of the Defendant A, as the husband of the Defendant A. In addition, the Defendants conspired from that time to August 22, 2016, and acquired the total amount of KRW 612 million from the victim as investment money, in collusion, from August 22, 2016.

Summary of Evidence

1. Defendants’ partial legal spirit

1. Each legal statement of witness G and J;

1. The police statement concerning G;

1. Application of Acts and subordinate statutes on the loan certificate, details of passbook transactions, and account transactions;

1. Relevant legal principles concerning facts constituting the crime;

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

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following circumstances considered in favor of the reasons for sentencing)

1. Suspension of execution (Defendant A);

Judgment on the assertion of the defendant and his defense counsel under Article 62(1) of the Criminal Act (hereinafter the grounds for sentencing)

1. Determination on Defendant A and his/her defense counsel’s assertion

A. Summary of the assertion

The defendant is expected to list D'D on the KOSDAQ, and it is very clear that D's home shopping business is expected to expand to China, etc. It is proposed that D's speech, such as D' B' and Executive Director J, make investment in D', and he also belongs to B and J, etc., so the defendant did not intend to acquire money by receiving it as investment money from victims.

(b) Relevant legal principles;

Fraud means any affirmative or passive act that induces another person and takes delivery of a product or acquires pecuniary benefits from the defective intent resulting from the deception, and deception as a requirement for fraud refers to any affirmative or passive act that has to observe each other in the transactional relationship with property (see, e.g., Supreme Court Decision 83Do1013, Jun. 28, 1983). In addition, unless the defendant does not confession, the subjective constituent elements of fraud include objective circumstances such as the criminal defendant’s financial power before and after the crime, environment, details of the crime, process of the transaction, relationship with the victim, etc. (see, e.g., Supreme Court Decision 2013Do1203, May 16, 2014).

1) D is a company with the purpose of clothing sale, etc., and B is the Chairperson of D and J is its Executive Director.

2) Around 2012, J received instructions from B to select employees to raise D funds, and entered the Defendant as an employee in charge of soliciting investment funds (such as a fund director or manager).

From around 2012, the Defendant served as a staff in charge of raising investment funds in D.1)

3) The employees in charge of soliciting D investments, including the Defendant, were unable to receive allowances for attracting investments and dividends to investors from around the second half of the 2013. Since the company’s circumstances, D was ordered from J to pay dividends to the investors. Accordingly, the Defendant paid dividends to senior investors with the investment funds offered from subordinated investors. Since June 2014, B paid interest and allowances to the employees in charge of collecting D investments. However, from June 2014 to September 2015, B paid the interest and allowances to each employee without paying the premium or allowances again, and then paid interest, etc. to each employee. Since that time, B, upon raising funds from the employees of the Defendant et al., provided that the employees of the Defendant et al. were given back to Defendant 2 through J et al. (see Investigation Record No. 218-2, 2015).

4) Around March 2016, the Defendant introduced the victim from F, via K, one of the D investors recruited by the Defendant, and D, after the establishment in 2007, would make the victim’s own brand fashion in online and home shopping, and will be listed on KOSDAQ in the future. The Defendant stated that KRW 3 million should be paid monthly interest at KRW 100,000,000 per month, and the principal would be paid if necessary. 3) On March 28, 2016, the victim would be paid KRW 500,000 per month when the L’s house in charge of raising D funds was added to the L’s house and invested more than KRW 500,000 per month. 4)

5) On March 28, 2016, from around August 22, 2016 to around August 22, 2016, the victim believed the horses of the Defendant transferred KRW 612 million to the account under the name of the Defendant or his husband H or the account under the name of the Defendant’s husband H (hereinafter “instant investment”). The Defendant did not transfer the instant investment money transferred under his/her name or H to the company account, etc., but used most of the instant money to pay dividends to other senior investors. 5)

D. Determination

Comprehensively taking account of the above facts and the following circumstances acknowledged by the evidence mentioned above, it is recognized that the Defendant acquired the investment money of this case from the victim even though it was possible to fully recognize that the interest and principal that the Defendant promised to pay to the victim is highly likely to be not paid.

1) When the Defendant received remittance of investment funds from D and remitted dividends therefrom, he used the Defendant’s personal account or personal account in the name of the Defendant, other than the D Company’s account, and this does not constitute a usual and normal way to invite investment funds to be used by the Company for its operation.

2) From September 2015, the Defendant was not paid an allowance for attracting investments. Moreover, even if D was unable to pay dividends, etc. to investors, it was a situation in which the Defendant paid dividends to senior investors with the investment deposits directly recruited by the subordinated investors, and the so-called return is made, the Defendant was remitted the instant investment funds without notifying the victims.

3) As such, a considerable portion of the instant investment amount is used for other purposes without actually investing in D. As seen above, if the victim knew that the victim was using the money paid to the Defendant for the interest payment purpose of senior investors, it would have not been deemed that the instant investment amount was not paid.

2. Determination as to Defendant B and his defense counsel’s assertion

A. Summary of the assertion

The public prosecution of this case against the defendant is instituted again in regard to the case in which the public prosecution of this case was already instituted, and even if the facts charged in relation to the victim was revoked in the preceding case (Seoul Central District Court 2017Dadan2882, Seoul Central District Court 2017Dadan2882, the defects of the double indictment cannot be seen as attributable to the defects of the double indictment. Accordingly, the public prosecution of this case should be dismissed in accordance with

(b) Fact of recognition;

The following facts are acknowledged, such as evidence and occasional reports (the continuous trial of B and the confirmation of the fact that some consultations have already been prosecuted).

1) A public prosecution was instituted against the defendant to the Seoul Central District Court to the effect that the defendant committed the crime of defraudation of investment funds under the pretext of inducing D's investment funds (Seoul Central District Court Decision 2017Kadan2882, hereinafter referred to as the "Prior Case").6)

2) No. 1,107 No. 1,107 of the list of crimes attached to the facts charged in the preceding case stated the victim's amount to "A" as "10 million won," and the victim's amount to "G" as "10 million won."

3) On May 14, 2018, the prosecutor filed the instant prosecution with the instant court. At the time of the instant indictment, the prosecutor confirmed that the amount corresponding to eight times per annum of the list of crimes in the instant indictment is the same as that of the attached list 1,191 among the facts charged in the prior prosecution, and confirmed that the amount corresponding to eight times per annum of the list of crimes in the instant indictment is the same as that of the attached list 1,191 among the facts charged in the prior prosecution, and entered “(However, the facts charged by Defendant B is the same as that indicated in subparagraphs 1 through 7 per annum of

4) On August 22, 2018, the Defendant’s defense counsel asserted that the crime of fraud is committed on the fourth trial date on August 22, 2018, under the premise that, in the event that the criminal intent is single and the method of crime is identical, the blanket crime is established for each victim. As long as the prosecution was already instituted against the Defendant in the preceding case with respect to the instant victim, the instant prosecution constitutes “when the prosecution was instituted again for the case in which the prosecution was instituted,” and thus, the judgment dismissing the prosecution should be sentenced

5) During the public trial of this case, the part Nos. 1,107 attached to the list of crimes committed prior to the instant case was stated as "A" when the victim remitted to the Defendant’s account at the request of the Defendant at the request of the Defendant, and the victim became specified in the prior case as "A" according to the description, and was stated as the same content as No. 5 per annum of the list of crimes destroyed in the instant facts charged. 9)

6) Around September 5, 2018, the prosecutor, at the Seoul Central District Court, deleted the contents overlapping with 5,8 parts of the list of offenses in the instant case, among the facts charged against the Defendant, and applied for the amendment of indictment to the effect that the victim G is excluded from the victim, and revoked the indictment by excluding the victim G), and the above court notified the Defendant of the decision to dismiss the prosecution against the victim G on September 6, 2018, and the above decision became final and conclusive around that time.

7) On November 2, 2018, the prosecutor filed an application for permission of changes in indictment with respect to the Defendant to delete the phrase “(Provided, That the facts charged by Defendant B are the same as indicated in No. 1-7 per annum of the crime sight table)” at the end of the instant facts charged, and this court permitted it.

1) Relevant legal principles

Even if there was an error of double prosecution at the time of prosecution, if the facts charged and the applicable provisions of law are legally changed and a new fact continues to exist, there is no illegality in double prosecution (see Supreme Court Decision 85Do1435, Feb. 14, 1989). Specific determination is not made.

In light of the above legal principles, it is reasonable to view that the case in the preceding case does not constitute "the case in which a new prosecution is instituted for the case in which the public prosecution was instituted", since the public prosecution against the victim in the preceding case is revoked and the decision of dismissal becomes final and conclusive. The grounds therefor are as follows.

A) The purport of Article 327 subparag. 3 of the Criminal Procedure Act, which provides for a judgment dismissing public prosecution in the case of double prosecution, is to ensure that the defendant does not suffer double danger on the same case and that the court does not render two substantive judgments on the same case (see, e.g., Supreme Court Decisions 96Do1698, Oct. 11, 196; 2004; 2004Do3331, Aug. 20, 2004).

B) The trial scope that affects the institution of public prosecution ought to be based on the time of adjudication, which is the final point at which the possibility of factual deliberation exists (see Supreme Court Decision 2004Do331, Aug. 20, 2004).

C) Examining the criteria for the pronouncement of the instant judgment, in the preceding case, the damage of the instant case

Since a public prosecution against a person has been dismissed and confirmed, the prosecution has no effect, and there has been no possibility of a judgment on the crime related to the victim in the preceding case, so the defendant would be subject to double punishment due to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against the victim G in this case.

1. The grounds for sentencing: Imprisonment with prison labor for not less than one year and not more than six months but not more than 15 years;

2. Scope of the recommended sentencing criteria; and

[Determination of Punishment] The amount of not less than 50 million won for general fraud, and less than 5 billion won for fraud (Type 3)

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

3. Determination of sentence;

(a) Defendant A: Imprisonment with prison labor for one year and six months, and three years of suspended execution;

(b) Defendant B: Two years of imprisonment;

Defendant B collected investment money in an abnormal manner and acquired money from the victim in the course of performing the business of soliciting investment money. Defendant B had a history of having been sentenced to two suspended execution on account of violating the Act on Regulation of Conducting Fund-Raising Business without Permission. Defendant A continued the instant crime using personal trust relationship formed between the victim and the victim, the damage suffered was not considerably recovered, and the damage seems to be difficult to completely recover in the future in light of the scale of the damage amount, the property status of the Defendants, and the progress of the relevant case, etc.

However, Defendant A, as an employee, participated in the instant case according to the company’s policy, has little profits acquired individually, has no civil liability, and the victim appears to have been paid a certain amount of dividends to the extent, etc., taking into account the favorable circumstances in favor of the Defendants, and taking into account various sentencing conditions in the instant case, including the Defendants’ age, character and conduct, environment, motive, means and method of the commission of the crime, and circumstances after the commission of the crime, etc., and determines the punishment as set forth in the text by deviating

Judges

The presiding judge, the Kim Jong-dong

Judge Political decoration

Note :

Note tin

1) The witness J-record No. 2, No. 171 of the investigation records

2) 5-9 pages of the J-record of the witness.

3) Defendant’s legal statement

(iv) 5,6 pages of the witness G-record.

5) Two pages 199-224 of investigation records

6) A right 233-282 of investigation records

7) 1° 255, 257 of investigation records

8) A right to investigation records see 231 pages

9) See notification of data on the financial transaction status of the IBK Bank received on January 10, 2018

10) See a copy of the application for changes in indictment attached to the submission of reference materials received on September 9, 2018

11) See a copy of the protocol attached to the submission of reference materials for receipt on December 18, 2018

12) It is reasonable to deem that there is no res judicata effect even in cases where a decision dismissing a public prosecution becomes final and conclusive (Supreme Court Decision 2010Do18090 Decided April 28, 201).

[Reference to Purport]