2017Gohap436 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud),

Forgery of Documents, Exercise of Reference Document

A

He/she has received decorations (prosecutions) and gamblings (public trial)

Attorney B

July 20, 2017

A defendant shall be punished by imprisonment for four years.

Criminal facts

On June 2016, the Defendant, under the name of C and D Co., Ltd. (hereinafter referred to as "D"), proposed investment funds to be raised by pretending to promote the F Apartment Construction Project Act in four parcels outside the Chungcheongnam-gun budget-gun, and first, entered into a fund management contract with G Co., Ltd. (hereinafter referred to as "G") on June 22, 2016, and colors investors on the pretext of fund management.

Therefore, although the defendant and C decided to attract funds from the victim H, the victim demanded the investment of funds only when G's obligation to manage funds was required, G refused the request on the ground that it is a problem that G should be responsible for the implementation company.

Accordingly, the Defendant and C: (a) around June 2016, when the victim is apprehended to withdraw the investment promise, the Defendant and C forged the investment contract and delivered it to G as if the victim invested KRW 3.5 billion in the said new construction project; (b) on the other hand, G provided a forged fund management agreement as if G paid interest on the investment deposit as requested by the victim and delivered it to the victim as if it is responsible for the management of the fund.

1. Forgery of private documents and the display of private documents;

A. On July 2, 2016, the Defendant, along with C, invested KRW 3.5 billion by using a computer located in his/her office located in Mapo-gu Seoul Metropolitan Government as the purpose of exercising his/her right at his/her J office, and sent the e-mail to G by entering into an investment contract for the new business of F apartment and paying KRW 40 percent of the proceeds of the business to H as dividends after the business settlement, after entering into an investment contract for the new business of F apartment and paying 40 percent of the proceeds of the business to H: (a) the e-mail: (b) the e-mail was written by stating that the e-mail was 208-dong 402 L apartment and name: H; (c) the e-mail was written by signing the H seal created by his/her name in advance; and (d) on the same day C had the Defendant use the computer located in his/her J office and sent the e-mail to G employee as if he/she duly formed the e-mail fund investment contract.

Accordingly, the defendant, in collusion with C, forged a 'F apartment construction fund investment contract' in the name of H, which is a private document on rights and obligations, and exercised it.

B. On July 4, 2016, if the Defendant continued to commit a crime related to the contract for safekeeping and proxy management, using a computer located at the J Office, Co., Ltd., Ltd., as described in the foregoing paragraph (a), deposited the amount of KRW 3.5 billion with 4 months, the Defendant paid interest at the rate of 2% per month, and thereafter cannot withdraw the amount of custody and deposit without the consent of the depositee. The Defendant prepared a letter of contract for safekeeping and proxy management with the content that he/she cannot pay interest at the rate of 2% per month, and then entered the address in the trustee column: N, 10, and trade name in Gangnam-gu Seoul Metropolitan Government, stating that he/she is the representative director of G Co., Ltd., Ltd., and printed it out to C

C around July 5, 2016, around July 5, 2016, at the G conference room located in Gangnam-gu Seoul N, the G conference room used the H’s agent P and affixed the seal impression of G corporation, which was possessed by the Defendant, on the name of 0 representative director of G, and then issued one of them to the above P who is aware of the forgery.

Accordingly, the defendant, in collusion with C, forged three copies of the "Contract for the Management of Storage Money" in the name of the representative director of G, a private document concerning rights and obligations, and exercised one of them.

2. Violation of the Act on the Aggravated Punishment of Specific Economic Crimes;

Around July 5, 2016, the Defendant and C presented to P the victim’s agent a forged agency agreement as described in paragraph 1(b) at the G conference room as described in paragraph 1(b), stating, “The Defendant and C shall deposit for four months in the G account (KB National Bank Enterprise Account Number Q) and return it, and shall not withdraw it without the depositor’s consent.” The Defendant and C had P affix his seal on the Fund Notes (hereinafter referred to as “B”) and received KRW 3.5 billion from the victim who believed that the contract was concluded.

However, in fact, the above ‘the above ‘the proxy contract for custody management' was forged with the defendant C, and when the victim deposits KRW 3.5 billion, he/she was thought to immediately withdraw it under the pretext of fund execution through G through G and to be used for the repayment of personal debt to the defendant and C, and even if he/she received KRW 3.5 billion from the victim, he/she did not have the intention or ability to deposit it for 4 months and pay fees for KRW

As a result, the Defendant conspired with C to deceiving the victim and received 3.5 billion won from the victim.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of the witness H, C and R;

1. Recording recording (interconnection between the defendant and R);

1. Investigation report (Attachment to the judgment of the first instance court, etc. sentenced to four and a half years by imprisonment with prison labor in the Seoul Central District Court Act on January 1, 2017) - A copy of the judgment attached thereto and investigation report (Attachment to the C Fund Use Details List);

1. Each description of the contract for the affairs of safekeeping and management as agent, and the fund investment contract for the construction of a F apartment, and its existence;

1. Terms and conditions of G passbook copy, transfer statement, C name tag, certificate of personal seal impression (G), proxy fund management affairs (ESCRW), e-mail output as of July 2, 2016, e-mail output as of July 6, 2016, written request for execution of each fund, written contract for advertisement of the F sale business in the Chungcheong Budget-gun, C, AKakakao Stockholm dialogue, and details of G account transactions;

Application of Statutes

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

Articles 231 and 30 of the Criminal Act (the use of a private document, the choice of imprisonment), Articles 234, 231, and 30 of the Criminal Act (the use of a private document, the choice of imprisonment), Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the use of a private document), Articles 347(1), and 30 of the Criminal Act (the use of fraud)

1. Aggravation for concurrent crimes;

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

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

A. The Defendant, in collusion with C, has not forged a “F apartment construction fund investment contract in the H name (hereinafter “instant investment contract”).”

B. The Defendant, according to C’s instructions, prepared and revised the draft of the “Stop Management Agency Contract” (hereinafter “Stop Management Agency Contract”), but did not know that C misrepresented G employees and forged the instant agency contract.

C. The Defendant does not have conspired with C to obtain money from the victim by using a forged agency contract of this case.

2. Determination

In full view of the following facts and circumstances acknowledged by the evidence duly adopted and investigated by the court, the Defendant is recognized as having participated in the forgery and use of the instant investment contract and the instant agency contract, etc., with the awareness that C received KRW 3.5 billion from the victim by forging the instant agency contract, etc., and immediately withdrawn it. Thus, the Defendant and the defense counsel’s assertion is not acceptable.

① From the end of 2015, the Defendant used the same office as C, and agreed to vicariously perform advertising-related affairs necessary for C to implement the real estate implementation project and divide profits therefrom. After that, the Defendant promoted several recommended real estate implementation projects along with C, and prepared a view to view, speculation, business plan, various contracts, etc. according to C’s instructions.

② On July 4, 2016, the Defendant revised the form of the instant agency contract, which was received from G, and drafted the draft on July 4, 2016, and agreed to pay the principal amount of KRW 3.5 billion to the victim in any case as stipulated in the special agreement, and added the details that the deposited custody money cannot be used without the consent of the victim. However, on June 22, 2016, the Defendant was aware of the fact that C entered into a screen contract with D and G acquired to promote real estate implementation projects, and that if D’s request for withdrawal of funds from the said fund Ecro contract, G directly paid funds to the payer. Accordingly, the Defendant sufficiently recognized the conflict between the special agreement on the instant agency contract prepared on July 4, 2016 and the provision on the withdrawal of funds from the said fund Ecro contract.

③ On July 5, 2016, the Defendant is waiting at a coffee shop in the G office’s neighborhood at the time when he prepared the instant agency contract.

A. According to C’s instructions, the part of the instant agency contract was modified, outputed, and printed out to C. The instant agency contract was concluded between D, victim, and G3, and if it was a normal contract, C participated in the conclusion of the said contract as D and the person in charge of participating in the conclusion of the said contract was the party who participated in G. As such, it is sufficient that it is unnecessary to request the Defendant to correct the instant agency contract and request the Defendant to do so.

Ultimately, it is reasonable to view that the Defendant was aware of the fact that the title of G was forged in the instant agency contract. Furthermore, the Defendant was well aware of the fact that C was accompanying the general meeting of G and was working together with C for several months during which C had engaged in the duties of employees. This is also deemed to have been well aware.

④ Furthermore, on July 6, 2016, the day following the date on which the instant agency contract was prepared and KRW 3.5 billion was deposited from the victim, the Defendant directly sent a written request for payment of funds to G M on July 5, 2016. The Defendant, who directly revised the instant agency contract and its special agreement, was well aware of the fact that the delivery of the said written request for payment of funds was in violation of the instant agency contract. According to the Defendant’s dispatch of the written request for payment of funds, KRW 1.8 billion was paid from G to the subcontractor, such as S, and KRW 25 million, which was part of which was issued by the Defendant.

⑤ On June 2016, 6, and 21, the Defendant entered into an advertising business agency contract amounting to approximately KRW 1.2 billion with D in relation to the Defendant’s F apartment construction business. From KRW 3.5 billion deposited in G to KRW 3.5 billion, the Defendant sought about KRW 70 billion out of the above contract amount, but was not required to suspend the withdrawal by the victim.

6) On December 2015, at the end of Jeju-do, the Defendant participated in the sale of T apartment located in Jeju-do, and C entered into a contract with G to sell the above apartment, and entered into a sale contract by forging a document without the right to sell the apartment, and sent a written request for funding execution for the sale price deposited by the buyers in G to the Defendant and used it in the name of the Defendant. The Defendant received approximately KRW 1.1 billion from his account in relation to the case of the fraud of Jeju-do, and transferred most of the amount of KRW 140 million to C, and transferred it to the Defendant for personal use.

7) As the Defendant did not know the victim’s personal information on July 2, 2016, the Defendant asserts that he was not involved in the instant investment contract at all. However, C states that the instant investment contract was prepared by amending the existing investment contract form, and the Defendant also sent the instant investment contract to M on July 2, 2016. Furthermore, examining the content of the Kakakao Stockholm message between the Defendant and C, the Defendant sent the victim’s name “H” message around 12:49 on July 2, 2016, and then received the victim’s name at around 13:35.30, and the Defendant sent the victim’s seal impression at will on July 2, 2016. Accordingly, it is reasonable to view that the Defendant sent the Defendant a seal imprint to M&A without making a statement about the victim’s personal information on July 2, 2016.

8 C did not mention at all the part of the Defendant’s participation in the instant crime in his criminal case, and the Defendant was well aware of the appearance of the instant crime and the fact that all of the instant investment contract and the instant agency contract were prepared by the Defendant. It is difficult for C to find out an obvious motive for the Defendant to make a statement by falsely tending the fact that his criminal act was committed, and various of the circumstances mentioned above are supported by C’s statement on the fact that the Defendant committed the instant crime.

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. Type 3 (at least 500 million won, less than 5 billion won)

[Special Aggravation] Aggravations: Where the method of forging documents is very poor (where a person commits a crime by actively using the method of forging documents); 1)

[Scope of Recommendation] Aggravated Punishment, 4 years to 7 years

3. Determination of sentence: Four years of imprisonment; and

【Unfavorable Circumstances】

The crime of this case was committed by deceiving 3.5 billion won from a victim by forging or using a document in collusion with C by means of forging or exercising the document, and the method of the crime is very poor, and the amount of damage is a large amount. The defendant committed the crime of this case even though he was sentenced to punishment for fraud.

Nevertheless, the Defendant did not appear to deny the crime and reflect his mistake, and did not make a serious effort to recover from damage. Comprehensively taking account of these circumstances, it is inevitable to punish the Defendant with strict penalty corresponding to the liability for the crime.

【Free Circumstances】

However, if the victim received as the prior interest or excluded the amount returned, the actual amount of damage is about KRW 1.5 billion. The leading of the crime of this case seems to be C, and the profits earned by the defendant is not significant compared to the amount of fraud.

Considering the above circumstances, the defendant's age, character and conduct, environment, motive, means and consequence of the crime, circumstances after the crime, equity with the sentence sentenced by C, an accomplice, and all the sentencing factors indicated in the arguments and records of this case shall be determined as ordered by the court.

The presiding judge; and

Judges in the order of precedence

Judge Kang Dong-hun

1) In the event that a document is accompanied by the forgery of a document while committing a fraud crime, the crime concerning the document shall not be treated as a multiple crime, and shall be treated as sentencing factors only.