2013No887 Fraudulent

1. A;

2. B

Defendants and Prosecutor

Kim Yong-chul (prosecution), the highest rank (public trial)

Attorney O (KO for the defendant A)

Attorney D (for the defendant B)

Seoul Central District Court Decision 201Da7833 Decided February 13, 2013

July 19, 2013

All appeals by the Defendants and the Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant A

(1) misunderstanding of facts

The injured party promised to make an investment in the mutual aid business promoted by the E (hereinafter referred to as the “instant company”) to Defendant A, and the above accused agreed to lease office in KRW 100 million around February 4, 2010. The above accused was to receive KRW 90 million from the injured party, and the above accused was to receive KRW 90 million from the injured party, and the owner of the building requested KRW 50 million to pay monthly rent instead of lowering the security deposit, and entered into a lease contract with that content. Defendant A did not deceiving the injured party as stated in this part of the crime. Accordingly, there was no error of mistake of facts in the guilty part against Defendant A.

(2) Unreasonable sentencing

The punishment sentenced by the court below to Defendant A (ten months of imprisonment) is too unreasonable.

B. Defendant B (Definite) did not mean that Defendant B would bring the victim to the office, and that “the employees related to the union members related to the union members is expected to bring to the office, and the fund for operating the union members' office is required.” The remittance of KRW 50 million to Defendant B was made by the victim to the necessary expenses of the (i) E (hereinafter “instant company”) to proceed with the union members’ business, and not remitted by deceiving Defendant B at the above end. The judgment below convicting the Defendant B of this part of the facts charged, which affected the conclusion of the judgment, is erroneous.

(c) Prosecutors;

(1) In light of the fact that: (a) mistake of facts and misunderstanding of legal principles (as to the portion of innocence against the Defendant) are Defendant B; (b) Defendant A received a business plan for the mutual aid project from Defendant B and explained the mutual aid project to the victim; (c) there was no possibility to implement the mutual aid project; (d) the victim invested in the mutual aid project promoted by the Defendants; and (e) the money transferred by the victim was deposited into the M Welfare Foundation (hereinafter “instant Foundation”) or the instant company’s account; and (e) the Defendants could not be deemed to have received the said money individually; and (b) the Defendants could recognize the Defendants’ mutual aid relationship with the instant case. In addition, if the victim knew that the possibility of success of the mutual aid project in the instant case was not clear, the Defendants did not remit KRW 18 million around February 9, 2010; and therefore, (c) the Defendants’ deception is also recognized. Therefore, the lower court’s acquittal of facts and misapprehension of legal principles is also recognized.

(2) Unreasonable sentencing

Each sentence sentenced by the court below against the defendants (10 months of imprisonment, 6 months of imprisonment, 2 years of suspended execution) is too uneasy and unfair.

2. Determination

A. As to the prosecutor's assertion of mistake and misapprehension of legal principles

(1) First, we examine whether the Defendants can be recognized as a conspiracy. In light of the evidence duly examined and adopted by the lower court and the following circumstances acknowledged by the record, the evidence alone presented by the prosecutor is insufficient to recognize a conspiracy among the Defendants in the instant case, and there is no other evidence to acknowledge it.

① On January 15, 2010, Defendant A entered into an agreement on the business partnership with the instant company and promised to make an investment in the instant company. (ii) Defendant A recommended the victim to make an investment in the mutual aid business in order to raise the above investment funds. (iii) Defendant A’s recommendation, around February 10, 2010, the victim remitted the amount of KRW 10 million under the name of the development fund, and around February 17, 2010, KRW 8 million under the name of the fund (hereinafter “the above remittance amount”) to the victim’s own business at the request of Defendant B (hereinafter “instant KRW 18 million”), and the victim transferred the money under the name of the office deposit of Defendant B (hereinafter “Defendant B”) to the effect that it was difficult to view that the victim and the victim did not directly participate in the Defendant’s business at the time of the above request. (iii) Defendant B and the victim did not appear to have been aware of the fact that the victim was the actual victim.

(2) In addition, it is difficult to say that the part of the KRW 18 million in this case belongs to Defendant A in the original court, and it is difficult for the victim to say that the part of the KRW 18 million in the original court was included in Defendant A. Until that time, the investment contract, etc. was not prepared, but was predicted, and was executed first in terms of the development fund and the name of rice with the view to the situation where the result can be presented. It is difficult to conclude that the part of the KRW 18 million in this case was remitted by Defendant A’s deception. In other words, it is difficult to conclude that the said money was remitted by Defendant A’s deception. Considering these circumstances, the evidence submitted by the prosecutor alone is insufficient to find guilty of this part of the facts charged, and there is no other evidence to acknowledge this otherwise.

(3) Therefore, the judgment of the court below to the same purport is just and acceptable, and there is no error of misunderstanding of facts or misunderstanding of legal principles alleged by the prosecutor. The above part of the prosecutor's assertion is without merit

B. As to the defendants' assertion of mistake of facts

(1) In light of the following circumstances acknowledged by the evidence duly examined and adopted by the lower court and the lower court, each of the charges charged against the Defendants may be fully acknowledged, and the testimony of the witness P and Q does not interfere with the aforementioned recognition.

① The content of the Agreement on Business Cooperation between the instant foundation and the instant foundation (hereinafter referred to as the “Agreement on Business Partnership”) is that the instant company provides educational content to its members and their family members. ② However, the specific content is that the instant company may use the name of the “business agreement for the instant foundation” and that it is merely a sales business for education-related contents against the Korea Workers’ Union, etc. based on it. ③ Therefore, other than the aforementioned content, there is no provision of the list of union members and the benefits from the instant foundation or the Korea Workers’ Association (e.g., business activities using the Korean Workers’ Association homepage) to be provided (e., providing the victims with the list of its members). Moreover, the Defendants did not appear to have been able to have been able to know that it was impossible or difficult for the Defendants to use the instant list based on the list of its members, which was secured through education-related content, and it appears that the details of the instant agreement on business partnership and the details of the instant list were not possible.

(2) Therefore, this part of the judgment of the court below does not seem to have any error of misconception of facts. The defendants' assertion of mistake of facts is without merit.

C. In full view of all other circumstances, including the Defendants’ age, environment, character and conduct, background of the crime, and circumstances after the crime, etc., the lower court’s punishment is too heavy or unreasonable. The Defendant A and the Prosecutor’s assertion of unfair sentencing is not deemed unreasonable. The allegation of unfair sentencing is without merit. The Defendant A and the Prosecutor’s assertion of unfair sentencing is without merit.

3. Conclusion

Therefore, all appeals filed by the Defendants and the prosecutor are without merit, and they are dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

The assistant judge of the presiding judge;

Judges Kim Dong-dong

Judge Bargnmark