Defendant 1 and one other

Defendants

Kim Jong-Un, Yang Jin-Jak, Sick-Jak, Sick-Jick (Court of Public Trial)

Law Firm Seosan, Attorney Yu Jin-hun

Daejeon District Court Decision 2012dan550, 2013 Godan961 (Consolidated) Decided June 13, 2014

All appeals by the Defendants are dismissed.

1. Summary of grounds for appeal;

(a) misunderstanding of facts (related to 2012 Highest 550);

1) With regard to the fraud of 2012 Go-Ma550, the Defendants: (a) had not induced Nonindicted 3, the seller, Nonindicted 1, and Nonindicted 2 (hereinafter “Nonindicted 1, etc.”) to create a first-class collateral security right for the remainder of KRW 831.6 million; (b) the Defendants were able to reduce acquisition tax, etc.; (c) without preparing a third-class contract in favor of them; and (d) Defendant 1 did not obtain all the amount loaned from the instant real estate, and did not obtain KRW 1.8 billion; and (d) Defendant 1 had the ability to pay the remainder of the loans under the name of the Defendants, such as the intermediate payment, the cost of the intermediate payment, the cost of the intermediate payment, and the intent to borrow the loans.

2) With respect to the forgery of private documents and the uttering of a falsified investigation document, the Defendants did not have prepared at will the instant business contract, which reads the sale price of the said real estate, and this was prepared with the permission of three persons, including Nonindicted 1, the seller, etc.

B. Unreasonable sentencing

Each sentence (Defendant 1: Imprisonment with prison labor for 3 years and 6 months, and Defendant 2: Imprisonment with prison labor for 3 years and 3 years) of the lower court against the Defendants is too unreasonable.

2. Determination

A. Ex officio determination

Before the determination of the defendants' arguments, it is a question whether the provisions of relative precedents in fraud are applicable to the clans of the same clans of the defendant 2 and the victims.

First, according to the records of this case, the facts between Defendant 2 and the victim non-indicted 1 are recognized as having been blood relatives in the eighth degree, and they constitute the scope of relatives under the Civil Act (Article 777 of the Civil Act).

1) However, since the instant real estate was registered as a co-ownership of the victim Nonindicted 3, Nonindicted 2, and Nonindicted 1, it is reasonable to view that it does not constitute a case where the damage of the victims caused by the fraudulent conduct as stated in the facts charged by the Defendants falls under a case where the victims are divided, and thus, it does not constitute a case where the provisions of the relative funeral

2) Even if Defendant 2’s provision on the crime of this case is applied to the case’s crime of this case’s family affairs, the part of fraud against Defendant 2’s victim Nonindicted 1 is effective only when Nonindicted 1’s lawful accusation is filed pursuant to Articles 328(2) and 354 of the Criminal Act. In this regard, Article 230(1) of the Criminal Procedure Act provides for the limitation of the period of accusation, stating that “No complaint shall be filed after six months have elapsed from the date on which he became aware of the offender in relation to a crime subject to victim’s complaint,” and in relation to “the date on which he becomes aware of the offender,” it means “the date on which he becomes aware of the offender in relation to the crime subject to victim’s complaint,” and

In this context, since property management, consumption, etc. among relatives often take place in a community, entrusting the disposal of property within relatives such as friendlys and fathers to respect family justice. It is unreasonable for the State to actively intervene as a punishment against the will of relatives, such as the purpose of legislation of the above provision, and the crime of adultery, which is likely to impair the honor of additional crime victims, or to directly affect public interests, such as the crime of insult, etc., if the legal interests of the victim are limited to the personal area and do not directly affect public interests, it is recognized that the prosecution and punishment, etc. of the crime should be entrusted to the intent of the crime subject to prosecution, the limitation of the period of accusation to prevent the exercise of criminal justice rights from being neglected for a long time by the will of the crime victims or other persons with right to file a complaint. In light of the above, “the date when the victim becomes aware of the identity of the victim” in this case is also known to the extent that the victim becomes aware of the relative relationship with the non-indicted 2, and then, the victim's relative relation with the victim in this case should not be known.

B. Judgment of mistake of mistake

1) Facts

The following facts are acknowledged according to the evidence duly adopted and examined by the court below and the court below.

A) Around October 26, 1965, the instant real estate was registered for transfer of the ownership on the ground of the sale of the instant real estate by 17 persons, including Nonindicted 4, Nonindicted 3, Nonindicted 1, and Nonindicted 2, who were members of ○○ Gimnam, and Nonindicted 3, who were members of the said joint owners, were to sell the instant real estate, and on November 25, 2009, the said joint ownership was newly changed in the name of Nonindicted 3, Nonindicted 1, and Nonindicted 23 (hereinafter “three persons, including Nonindicted 1, etc.”) who were the remaining survivors except the deceased among the said joint owners. Meanwhile, the said joint owners sold the instant real estate by approximately 73 successors of 17 joint owners and Nonindicted 1, who were the present victims, were to divide the profits therefrom.

B) Defendant 1, the representative director of Nonindicted Co. 5 (hereinafter “Nonindicted Co. 5”) was introduced the instant real estate from Defendant 2 (the appointment of Nonindicted Co. 5’s outside director around November 24, 2009), who is an infant of the said Nonindicted Co. 3, who is engaged in the construction business, and on December 1, 2009, purchased the instant real estate from Nonindicted Co. 3 and his wife, Nonindicted Co. 6, 1, and their wife, Nonindicted Co. 7, 2, and 8, one of the above co-inheritorss, and the deceased Non-Indicted 9’s heir, who is one of the above co-inheritorss, and Defendant 2, etc., purchased the instant real estate from Nonindicted Co. 5, 300,000,000 won for the purchase of the instant real estate from Nonindicted Co. 3, 500,700,000 won for each of the following reasons.

The payment of ○○’s price contained in the main text: The payment of down payment and intermediate payment (1,247,40,000,000 won, and 60% of the total purchase price) shall be made at the time of the contract, and the balance shall be paid within six months from the date of the payment of down payment and intermediate payment. ○○ Transfer of ownership: the seller transfers the ownership at the time of deposit of down payment and intermediate payment. At the same time, the seller sets up a collateral security (the balance of the purchase price shall be terminated at the same time when the balance of the purchase price is deposited) at the same time. ○○ Local Tax, etc.: Burden of the profits accrued on the said real estate shall be based on the date of delivery of the said real estate, but liability for payment of local taxes and liability

C) When concluding the instant sales contract as above, Defendant 1: (a) prepared and delivered the balance of the instant real estate within six months from the date of the contract to guarantee its payment; (b) Nonindicted 5’s promise to guarantee its payment; and (c) Nonindicted 1, etc.’s letter of performance of the real estate sale price; and (c) stated that he would promptly pay the balance until January 9, 2010 on the face of the State by the documents for the registration of ownership transfer under the said Ri 32; and (b) received the documents necessary for the registration of ownership transfer of the instant real estate and completed the registration of ownership transfer on the said real estate around December 9, 209, without paying the down payment and the intermediate payment to the third party, including Nonindicted 1, etc.

Meanwhile, there was a conclusion of the instant sales contract, and around the same day, the Defendants prepared the instant sales contract in Nonindicted 22’s office around the same day with the purchase price of KRW 2.97 million, and submitted it along with the documents related to the registration of ownership transfer of the instant real estate. Ultimately, each copy of the registry of the instant real estate was registered as “2,970,000,000.”

D) On December 9, 2009, Defendant 1 loaned approximately KRW 1.4 billion from the △△ Credit Cooperative as security, and extended a loan of KRW 1.4 billion to the debtor, Nonindicted 5, the maximum debt amount of KRW 1.82 billion, and completed the registration of establishment of a mortgage over the second priority, which is the debtor, Nonindicted 5, the maximum debt amount of KRW 510 million, and the registration of establishment of a mortgage over the second priority amount of KRW 5.4 billion. Defendant 1 paid KRW 1.24 billion as the down payment and the intermediate payment to the seller on the same day.

E) On December 19, 2009, Nonindicted 7 perused the copy of each register of the instant real estate and marked the purchase price at a higher level than the actual amount, and discovered that the registration of the establishment of the right to collateral security for the remainder was yet known, urged the Defendants to register the establishment of the right to collateral security for the remainder, and requested the three parties, including Nonindicted 1, etc. to register the establishment of the right to collateral security for the remainder on December 17, 2009. On December 19, 2009, Nonindicted 7 became a meeting, such as summons of Defendant 2, etc. at one’s home, based on the circumstances leading up to summons.

On December 29, 2009, Defendant 1 prepared a statement of performance that “The actual sale price of the instant real estate is KRW 700,000 per square year or KRW 1,000 per square year, and reported the sales price in the form of KRW 1,20,000 per square year,” and that “The actual sale price of the instant real estate is KRW 70,000 per square year, or KRW 1,200,000 per square year, shall be paid by filing a tax declaration” (hereinafter “instant performance statement”) under his name.

2) Determination on the assertion of fraud part

A) The following circumstances are acknowledged according to the aforementioned factual basis, the evidence duly adopted and examined by the lower court and the lower court.

(1) The Defendants asserted that Defendant 2 stated in an investigative agency that “Defendant 1 was to set up the first priority right to collateral security” refers to the establishment of the second priority right except for the first priority right to collateral security. However, in relation to this, Defendant 2 stated in the prosecutorial investigation with Nonindicted 7, and Defendant 1 that “at the time there was a promise to set the first priority right to collateral security from the Defendants” (in investigation record 323 pages), it appears that Defendant 2 stated that the first priority right was to set up the first priority right to collateral security (in the process of investigation record, it is difficult to view Defendant 1’s assertion that the first priority right to collateral security was not known to the effect that Defendant 2 was not known to the effect that, in light of the fact that, at the time, Defendant 2 made a statement that “the first priority right to collateral security was set up against the Defendants and the victims or that, at the time of the request for the second priority right to collateral security transfer registration, Defendant 1’s assertion that it was difficult to view that the second priority right to collateral security payment was made.”

(2) According to Defendant 1’s prosecutor’s statement, etc., the Defendants attempted to purchase the instant real estate worth approximately KRW 2 billion with the funds of approximately KRW 100 million owned by Defendant 1, and from the seller’s perspective, Defendant 1 was not subject to a large risk burden, and there is no reason to sell the instant real estate, as well as there is no reason to sell the instant real estate.

(3) The Defendants asserted to the effect that there was an agreement with the seller to pay the down payment and intermediate payment from the bank. However, in order to do so, it is the order that the buyer first delivered the documents necessary for the registration of ownership transfer prior to the payment of the down payment and intermediate payment to the buyer, and the buyer received the registration of ownership transfer, and then pays the down payment and intermediate payment to the seller as security. According to the sales contract of December 1, 2009 (hereinafter “the prime contract of this case”), the payment of the down payment and intermediate payment was made at the same time, and the documents necessary for the registration of ownership transfer are drawn up against the Defendants’ assertion (Nonindicted 7 was collected at the trial, and around December 1, 2009, at the time, at the time the registration was made to change the joint ownership registration of the instant real estate to three persons, and the Defendants would have to pay the down payment and intermediate payment to the buyer before the transfer of ownership transfer to the Defendant 2 before the transfer of ownership transfer.

(4) Defendant 1 asserted that at the time of purchase of the instant real estate, the designation of the development restriction zone was publicly announced at the time, and that the designation of the development restriction zone was cancelled within one year (Evidence No. 150 pages), and that the development act was prohibited by itself if the designation of the development restriction zone was designated, this is contrary to the assertion that Defendant 1 intended to sell the instant real estate before the development restriction zone and repay the remainder within six months (Evidence No. 113 pages, etc.). Defendant 1 asserted to the effect that, at the time of the police investigation, Defendant 1 did not pay the remainder within the development restriction zone as at the time of the first and second investigation (Evidence No. 113 pages, 117 pages, etc.), Defendant 1 did not consistently state that the instant real estate was designated as the development restriction zone prior to the conclusion of the instant contract, and that it did not pay the construction price under the name of 25th building construction plan under the name of 20th building construction restriction zone (Evidence No. 150, 328 pages, etc.).

(5) The Defendants asserted to the effect that, if Defendant 1 paid the down payment and the intermediate payment on the instant real estate with a self-payment of the deposit and the intermediate payment, and only the remainder was set at the time of establishing the first collateral security, the payment of the remainder would be possible, and that there is no reason to make the payment of the remainder after six months. However, if the buyer pays the remainder after six months of the payment of the remainder, it is more favorable for the contracting parties to save financial costs, such as interest, if the buyer pays the remainder after six months of the payment of the remainder than the payment of the secured loan, and thus, a contract can be concluded between the contracting parties to set the security right as a safety device for the payment of the remainder and defers the payment of the remainder. Accordingly, the Defendants’ above assertion is difficult to accept.

(6) On December 19, 2009, Non-Indicted 7 and Non-Indicted 10 consistently stated that, in conformity with the prosecutor’s investigation or the court of original trial, there was a promise from the Defendants to set up a first priority mortgage for the remainder at the time, and that, on the real estate issue of this case, when Non-Indicted 7 et al. and Defendant 2 were gathered at the seller’s home and Defendant 2, Defendant 2 was aware of the fact that the real estate issue of this case was related to the right to collateral security, and that he was aware of the fact that he was doing business with Defendant 1.

(7) According to the statement, etc. at the court below's decision of the court below, the defendant 2 stated that "this constitutes a practice of construction business to obtain more loans," and the defendant 2 also stated in the prosecutor's investigation that "the defendant 1 would be able to receive tax benefits from the sale of the real estate in this case at ordinary times" that "the defendant 1 made a business contract of this case at an amount of one million won higher than the sales price," the reason for preparing the business contract of this case is that the defendants would increase the value of the real estate in this case so that they can obtain more loans, and even if the real estate in this case is sold at high price in the future, the transfer margin can be reduced, and thus, the tax amount of capital gains tax, etc. is also reduced."

(8) Nonindicted 22’s written confirmation that “The contract deposit and intermediate payment are expected to be paid with bank loans, and there is a fact that Nonindicted 6 knew that it would create a right to collateral for the remainder other than the right to collateral security due to bank loans.” Nonindicted 22 stated in the written confirmation that “The content stated in the written confirmation of fact would have been asked to an employee, so it is well known that the employee would have prepared, and whether the contract deposit and intermediate payment would have been expected to receive a bank loan for the down payment and intermediate payment.” Defendant 1 stated that “Defendant 1 would receive a loan as collateral because the contract deposit and intermediate payment will be paid in cash,” and Nonindicted 6’s written statement to the effect that “It is difficult for Nonindicted 6 to believe that Nonindicted 6 would receive a loan from the bank due to lack of down payment and intermediate payment, etc., to accept a loan from a large number of buyers.”

B) In full view of the above circumstances and other circumstances properly stated in the court below, it is reasonable to view that the Defendants, even if they purchased the instant real estate, were to have committed as if Defendant 1 had considerable financial capabilities without intent or ability to pay the balance, and to guarantee the payment of the balance and to establish the first priority collective security right for the balance of the instant real estate, by deceiving the victims as if there was no problem in the payment of the balance to the victims, and then, they acquired the ownership of the instant real estate from the victims and acquired the pecuniary advantage equivalent to the balance.

Therefore, the defendants' assertion of misunderstanding of facts is without merit.

3) Determination as to the assertion on the forgery of private documents and the display of private documents

위와 같은 사실관계와 원심 및 당심에서 적법하게 채택하여 조사한 증거들에 의하여 인정되는 다음과 같은 사정들, 즉 ① 공소외 7 및 공소외 10, 공소외 8 등은 수사기관 또는 원심법정에서 일치하여, 당시 피고인들과 이 사건 부동산에 관한 업계약서를 작성하기로 약정한 사실이 전혀 없다고 일관되게 진술하는 점, ② 피고인들이 공소외 1 등 3인으로부터 미리 이 사건 업계약서에 대한 동의를 받았다면 이 사건 원계약서를 작성할 당시 업계약서에 대해서도 공소외 1 등 3인의 인장을 한꺼번에 날인 받아 작성하면 될 텐데 그러하지 아니하고 나중에 별도로 도장가게에서 공소외 1 등 3인의 도장을 만들어 이를 날인하여 작성한 점, ③ 위와 같은 경위에 대해 피고인 2는 경찰 조사에서 ‘오후쯤 등기신고를 한다고 하며 공소외 22 법무사 사무실에서 피고인 1과 업계약서를 썼던 것인데, 당시 법무사 직원이 없어서 내가 직접 그곳 컴퓨터를 이용해 금액을 29억 7,000만 원으로 하여 업계약서를 작성해 이를 피고인 1에게 지급하였고, 내가 피고인 1에게 “미리 도장을 찍어 달라고 하지 않았냐”라고 하니 피고인 1이 “깜박하였다”고 하면서 신고만 하는 것이고, 인감이 필요 없다 하며 도장을 파서 찍으면 된다고 하였다’라고 진술(증거기록 152쪽)한 반면, 피고인 1은 ‘내가 이 땅을 산다고 했을 때 업계약서를 해달라고 하니 피고인 2도 업계약서를 해준다고 하여 나는 당연히 동의를 받고 나에게 업계약서를 써준다는 것으로 알았고 종중원들로부터 동의를 받았는지 여부를 별도로 물어보지도 않았다’, ‘다른 종중원들과는 업계약서에 대해서 알릴 필요도 없었고, (동의를 받았는지 여부를) 알 필요도 없었다’라고 진술한 점(증거기록 249쪽, 341쪽 등), ④ 이 사건 원계약서의 내용과 다르게 이 사건 업계약서에 ‘계약금 및 잔금을 본 계약시 일시에 전액을 지불한다’로 되어 있는 부분에 대해서도, 피고인 1은 경찰 조사에서 ‘금액만 알고 있지, 피고인 2가 업계약서를 작성하였기 때문에 나는 잘 모르는 내용이다’라고 진술한 반면, 피고인 2는 ‘피고인 1이 써달라고 하여 써주었던 것으로 기억하고, 잔금을 모두 지불한 것으로 했던 내용이었다. 당시 피고인 1이 세금신고용으로 사용한다고 하여 별 생각 없이 써주었다’라고 진술한 점, ⑤ 2009. 12. 19.자 녹취록에 의하면, 공소외 7이 피고인 2에게 ‘그런 식으로 얘기하는 건 좀 어폐가 있는 거죠, 그럼 계약서, 그렇게 피고인 2이 조카가 그렇게 얘기하면 내가 어떻게 얘기할 수 있는지 알아요? 그렇게 얘기하면 왜 사전에 어떤 식으로 할지 일처리에 대해서 왜 공개를 안했어요?’라고 따져 묻고(증거기록 179쪽), 공소외 10도 피고인 2에게 ‘왜냐하면 이게 그래요, 그 사람들이 융자받기 위해서 그렇게 했다고 하지만 우리 형제들한테 내놓을 수 있는 건 계약서예요. 우리가 계약서, 이거, 그럼 차후에 사람들이, 내 얘기를 잠깐 들어봐. 차후에 사람들이 이걸(부동산 등기부등본 지칭) 떼고서 우리한테 의문을 가지고 물어봤을 때 우리가 그 사람들한테 의문을 제기했을 때 답변을 해주느냐...’(증거기록 181쪽), ‘우리는 지금에 대해서 등기부상에 20억만 찍혀있으면, 판 금액만 찍혀있으면 그럴 필요가 없어요. 그게 안찍혀 있기 때문에 그러는거야. 등기부상에...’(증거기록 190쪽)라고 말하는 등 공소외 7, 공소외 10, 공소외 2 등이 피고인 2에게 이 사건 부동산의 등기부등본상에 매매대금이 29억 7,000만 원으로 등재된 경위, 그에 대한 세금 문제 등에 대해 따져 묻는 장면이 녹취되어 있는 점(만약 이 사건 업계약서에 대한 사전 동의를 받았다면 위 사람들이 피고인 2에게 그와 같이 매매대금이 달리 등재된 등기부등본에 대해 항의하며 채근하는 일도 없었을 것으로 보인다) 및 그 밖에 원심에서 적절하게 설시한 사정을 모두 종합하여 볼 때, 피고인들은 공소외 1 등 3인으로부터 사전 동의를 받지 않고 이 사건 업계약서를 임의로 작성한 것으로 봄이 상당하다.

Therefore, there is no reason to believe that there is any mistake of facts by the Defendants.

C. Determination on the Defendants’ assertion of unfair sentencing

Defendant 1 recognized his mistake and reflects with respect to the instant case, and with respect to the instant case, the Defendants attempted to sell the instant real estate and pay the balance of the instant real estate with the benefit accrued therefrom. However, even though it appears that the re-sale of the instant real estate could not be achieved smoothly, it appears that the instant fraud amount amount to KRW 8,31,60,000 for the instant case at KRW 2012 Godan550, a large amount of money; the Defendants did not deny and reflect the facts charged in the instant case at [2012 Godan550]; there was no circumstance to deem that the victims were recovered from damage to the victims; there was no evidence to deem that the victims were punished for a suspended sentence against Defendant 1; Defendant 2 was punished for a crime of fraud; Defendant 2 was not subject to a suspended sentence; Defendant 2 was not subject to a suspended sentence due to a minor offense; Defendant 1’s motive and behavior at the age of the Defendants’ age before and after, and after, the Defendant 1 did not appear to have any adequate motive to commit the crime;

3. Conclusion

Therefore, the defendants' appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act since all of the appeals by the defendants are without merit. It is so decided as per Disposition.

Judges Jung-hee (Presiding Judge)

1) In the case of a relative complaint subject to victim's complaint, a complaint is valid even if the victim did not know that he/she was related to the victim and did not know that he/she was related to the victim.