2014Do15474 A. Fraud

B. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

B

Pacciny arsen

E. Law Firm

Attorney AB, F, AC, AD

Seoul Eastern District Court Decision 2014No1084 Decided October 24, 2014

July 9, 2015

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul Eastern District Court Panel Division.

Before determining the grounds of appeal, we examine it ex officio.

1. The criminal facts against the defendant found guilty by the court below are as follows.

"Co-defendant A and the defendant were employed in the court below's L Bank (hereinafter "L Bank") to use 200 million won for the business fund of the victim M by acquiring KRW 200 million from the victim M, and the facts are as follows: even if the victim M received KRW 200 million from the victim M, there is no intention or ability to obtain the loan of KRW 2.2 billion from L Bank M, but around February 4, 2009, A will purchase the land located in Chocheon-si and build a new building and sell the building. When paying KRW 200 million, the above purchase price is 2.2 billion from L Bank through the defendant, and the defendant would receive 2.2 billion from L Bank's financial institution's loan of KRW 220 million from L Bank's loan of KRW 200 million, and at the same time, the defendant could receive money and valuables from the above financial institution's loan of KRW 2200 million from the victim's loan of KRW 200 million."

However, the facts of the above facts of the crime alone are not enough to see as 200 million won. ① Whether the Defendant, who wants to borrow KRW 2.2 billion, acquired KRW 200 million under the name of the commission and received KRW 200 million with respect to loan mediation, ② If the Defendant borrowed KRW 200 million for Co-Defendant A’s business funds (land purchase funds in the city) and borrowed KRW 200 million under the name of the victim M and received KRW 200 million with respect to loan mediation at the same time, it is unclear whether the Defendant received KRW 200 million with respect to loan mediation. According to A’s statement in the contents of the facts of the facts of the crime, there is no room to regard as 2. However, according to the overall contents and purport of the facts of the charges, the Defendant and A would be able to obtain KRW 2.2 billion from the L Bank in spite of their intention or ability to receive KRW 2.2 billion loan from the victim, and at the same time, acquired KRW 2200 million in the name of the fee and received it.

2. The record reveals the following facts.

A. The Defendant worked in a bank from 1990 to 201, December 31, 200, and the Co-Defendant A came to know of the business in 2004 and became aware of the business.

B. When the Defendant and A conspired with the end of January 2009 that the business funds were insufficient to implement the new construction of a building at the Incheon City, the Defendant and A attempted to obtain a loan of KRW 2.2 billion through the Defendant on the ground that N would be able to obtain a loan of KRW 2.2 billion through the Defendant on the ground that N would have obtained a loan of KRW 2.2 billion. The Defendant and A promised to borrow a loan fee of KRW 200 million from N on February 4, 2009, but A did not receive a loan of KRW 2.2 billion from L bank to obtain a loan of KRW 2.2 billion from the Defendant and the Defendant did not receive a loan of KRW 2.2 billion from L bank on the ground that the Defendant had an ability to obtain a loan of KRW 2.2 billion from the Defendant and the Defendant did not receive a loan of KRW 2.2 billion from L bank on the ground of non-loan funds, etc. for the loan of business funds necessary for KIN’s new construction of a building.

E. Nevertheless, the Defendant belonged to N and M as above and received 200 million won cashier’s checks from M on February 6, 2009.

3. According to the above facts, the purchaser of the land located in the Incheon City R as stated in the facts charged of the instant case is N, and the N is proposing that the project funds should be received from the L Bank where the Defendant is holding office, and M requests M to lend KRW 200 million, and M pays KRW 220 million if the Defendant and A paid KRW 200,000 to the Defendant with the loan fees, it is confirmed that the L Bank would be able to borrow KRW 220,200,000,000 from the L Bank.

In light of the circumstances, a person who intends to obtain a loan of KRW 2.2 billion from a bank is N, and M as the victim’s victim’s written indictment merely contributed to N to 2.2 billion won as a means of loan of KRW 2.2 billion. However, even though the Defendant may not be deemed to have received KRW 2.2 billion from a bank under the name of a fee from N which requires a loan of KRW 2.2 billion and acquire it under the name of a loan brokerage, it cannot be deemed to have obtained it under the name of loan brokerage by deceiving M which the Defendant wants to obtain a loan of KRW 2.2 billion as recognized by the court below, and at the same time receiving it under the pretext of loan brokerage. In other words, the facts charged in this case are different from the facts recognized by evidence, and if the facts charged are based on such criminal facts, there

There is room for room.

Therefore, the court below should first clarify what the purpose of the facts charged in this case is, and then examine whether there are evidence corresponding to the facts charged, and then examine whether the crime of fraud and the crime of taking place is established. However, the court below acknowledged the facts charged that it is not recognized by evidence by stating that the victim of fraud or the client for arranging the loan is M not N, but M. In this case, the court below erred by misapprehending the legal principles on the "specificness of the victim and the client for the crime of fraud" and the "statement of the facts charged", thereby finding the victim and the client guilty of the contradictory facts.

4. Therefore, without examining the grounds of appeal, the part of the judgment below against the defendant is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young

Justices Park Young-young

Justices Kim In-bok, Counsel for defendant

Justices Kim Jong-il