2015Do3271 Fraudulent

A

Defendant

Law Firm (LLC) B

Attorney C, W, X, D, Y, E, Z

Busan District Court Decision 2014No1775 Decided February 5, 2015

July 9, 2015

The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

1. In a case where the victim’s disposal of property or the Defendant’s act inducing such disposal of property was conducted under close relation with the failure or performance of any business conducted by the Defendant, the existence of deception or causal relationship cannot be determined simply on the basis of the victim’s financial power or credit status, etc. The relationship between the Defendant and the victim, the victim’s awareness and involvement in the pertinent business, the victim’s specific developments leading up to the disposal of property in relation to the pertinent business, the possibility of success of the pertinent business, and the victim’s experience and occupation, etc. In addition, the conviction should be determined generally and objectively by taking into account all the circumstances such as the victim’s disposal of property in relation to the pertinent business (see, e.g., Supreme Court Decision 2011Do8829, Oct. 13, 2011). As such, the conviction ought to be based on evidence with probative value sufficient to have a reasonable doubt that the facts charged are true, even if there is no such evidence, it should be determined as the Defendant’s interest even if there is doubt against the Defendant.

2. In light of the statement of the loan certificate, etc., the court below maintained the judgment of the court of first instance that found the Defendant guilty of the facts charged of fraud, on the ground that it is clear that the Defendant was aware that the Defendant would obtain financial loans as security after the completion of the building of the GGA and would repay the instant loans

3. However, the lower court’s determination is difficult to accept.

(1) The record reveals the following facts.

① The victims had been responsible for the representative director of the J Co., Ltd. (hereinafter referred to as the "J") as those who have worked in the construction industry for not less than 20 years.

② On December 3, 2007, J Co., Ltd. entered into a contract with the Defendant for the new construction of the 'I Announcement Institute' (hereinafter referred to as the 'I Announcement Institute' on October 16, 2007) on the site of Busan J, the 5.1 billion won of the purchase fund of the above site and the 4.7 billion won of the construction fund of the 5.1 billion won of the purchase fund of the above site and the 4.7 billion won of the construction fund of J, as the 'PF' method, from the 'I Announcement Institute' (hereinafter referred to as the 'I Announcement Institute' on October 16, 2007).

③ Accordingly, on December 20, 2007, the KJ granted a loan of 5.1 billion won from the National Bank of Korea (hereinafter “National Bank”) under the guarantee of payment by the KJ on December 20, 2007 under the condition that it shall be repaid in installments for 10 years with a two-year grace period, and purchased the said site and the maximum debt amount shall be KRW 12.74 billion on the said site.

The right to collateral security was established in name.

④ Meanwhile, on the other hand, the third parcel, such as the site F in Busan-gu, Busan-gu, where the Defendant was constructing a building of "GH" in the name of "GGH" (hereinafter referred to as "building of a private teaching institute") under the name of Dongin-gu and the representative of the GH (hereinafter referred to as "non-NS case").

In addition, on December 24, 2007, 2007, the establishment of a mortgage was established in the name of a national bank with the maximum debt amount of KRW 12.74 billion, as well as the joint collateral for the above PF loans, even on the three parcels, the mortgage was established in the name of the national bank with the maximum debt amount of KRW 12.74 billion.

⑤ On January 28, 2008, the Institute of Public Notice entered into a design service contract with M on January 28, 2008, and obtained a building permit on March 31, 2008, and filed a transfer lawsuit against the lessee of the building above the site. On April 7, 2008, the contract for the construction work was re-established with J. The scheduled date for the commencement of the public notice source building under the above contract for the construction work was April 21, 2008, and according to the “the method of raising contracting construction costs” agreed between the Institute of Public Notice and J. According to the “the method of raising construction costs,” the remainder, excluding the amount of KRW 4.7 billion for the PF loans (at least KRW 1.1 billion) and the total purchase price of the first to third floor of the public notice source building (at least KRW 11.78 billion).

(6) On April 10, 2008, the victim remitted the sum of KRW 150 million to the Defendant’s account, KRW 100 million around April 11, 2008, KRW 100 million around April 23, 2008, KRW 50 million around May 20, 2008, and KRW 400 million around May 20, 2008 (hereinafter “the loan of this case”). Of these, around April 10, 2008, KRW 150 million around April 10, 200.

The Fund in the name is loaned as collateral to each of the Defendant by borrowing KRW 100 million from April 11, 2008 and KRW 100 million from April 23, 2008.

7) After the above transfers, M prepares a letter of loan with L as a borrower, and then delivers it to the victim with the name of the representative director of the I Announcement Institute and the seal affixed thereon. Each letter of loan includes the purport that the Defendant received the instant loan from J along with the fact that he/she received it from the J, and that the date of repayment is the date of repayment is the first repayment of the loan with the financial loan after the completion of the Private Teaching Institute.

(8) On May 16, 2008, a private teaching institute building was approved for use, and on June 20, 2008, a site ownership registration was made with L’s registration of preservation of ownership, and on June 20, 208, a non-NE case was provisionally seized as KRW 6.312 billion with the claim amount of KRW 208, 60, 30.

9) On January 4, 2013, the victim filed a lawsuit against IPublic Notice Board and L for the payment of KRW 400 million and delay damages of the instant loan, and on January 21, 2013, the Defendant filed a fraudulent complaint against the Defendant. (2) Examining the foregoing facts in accordance with the legal principles as seen earlier, it cannot be deemed that the Defendant, as stated in the facts charged, notified the victim that “the victim would obtain financial loans from the private teaching institute building as collateral after the completion of the building,” thereby deceiving the victim, or that the victim would have obtained financial loans as collateral, or that there was proof to the extent that there was no reasonable doubt as to the fact that the victim would have made the instant loan by deceiving the victim.

① As the representative of J at the time, the victim was involved in the contract for new construction of the publicly announced source building, which includes the content that J would guarantee the payment of the PF loan amounting to KRW 9.8 billion. In light of the fact that, for securing the above PF loan, the right to collateral security was established as to the site of the private teaching institute building with a maximum debt amounting to KRW 12.74 billion for additional security immediately after the establishment of the right to collateral, the victim had a right to collateral security as to the site of the private teaching institute building with a maximum debt amounting to KRW 12.74 billion. In light of the fact that the victim was aware of the legal relationship of the private teaching institute building and its site after directly investigating or reporting the results of the investigation, it is highly probable that the victim had already been aware that the provisional registration and the maximum debt amount of the private teaching institute building were 4.7 billion won in total under the name of the non Es. E. According to the facts charged in this case, each of the above debts could not be repaid as a collateral due to the representative director of the construction company.

② The Defendant alleged to the effect that the Defendant would be able to repay the instant loan in return for the purchase price of the building in lots after the commencement of the new construction of the public announcement source building. The Defendant stated that the Defendant would have known that the Defendant would have been able to repay the instant loan with the purchase price of the building in lots. On April 11, 2008, the first instance court attended the Defendant as a witness, and prepared a loan of KRW 100 million from S to the Defendant on the scheduled date of commencement of construction and the method of raising construction cost, the victim lent the loan of KRW 350 million out of the loan 40 million to the Defendant without collateral, and filed a lawsuit against the public announcement source and L for more than four years and filed a complaint against the Defendant. In addition, the Defendant stated that the Defendant would have been able to repay the instant loan with the purchase price of the building in lots at the public announcement source. In addition, the Defendant’s assertion that the loan of KRW 350 million to S would have been returned to the Defendant’s construction completion of the loan.

③ On the other hand, it is difficult to readily conclude that the phrase of the loan certificate, which was based on conviction, was written by M, not directly by the Defendant, but only after each remittance, and even by the victim’s assertion, was made. As such, it is difficult to conclude that the content of the agreement between the parties to the loan in this case or the Defendant faithfully reflects the victim’s maturity or repayment method. Moreover, considering that the building is the representative of the G Research Institute, L, a private teaching institute building, a public announcement institute building, a private teaching institute’s name, a private teaching institute’s representative L, a private teaching institute’s representative L, a public announcement institute’s trade name, and M, a change in the name of the public announcement institute, and the phrase of the above loan certificate was written by M, not the Defendant, it is difficult to readily conclude that the purport of the aforementioned loan certificate’s “I promise to preferentially repay to the financial institution investments after the completion of the G Research Institute’s completion of the loan certificate as a preferential repayment for the secured loan to the private teaching institute.”

Even if it is acknowledged that the Defendant stated in the facts charged that he would repay the instant loan to the victim as collateral loans of the private teaching institute building, if the construction of the publicly announced institute started as scheduled according to the said construction contract and the sale of the publicly announced institute building was conducted as scheduled, it cannot be concluded that it is impossible to repay the instant loan with the loan by obtaining the loan as security by paying the construction cost of the private teaching institute building or the loan, etc. to raise funds for the purchase of the relevant site with the sale price. According to the agreement between the date of commencement of the construction of the publicly announced institute and the method of financing the construction cost, at least the victim believed that the said loan can be repaid by the said method.

(3) Nevertheless, the court below affirmed the judgment of the court of first instance that found the defendant guilty of fraud without examining and determining the possibility of success in the sale of a newly built building of the Gowon Building and the degree of victim's awareness and involvement therein, and affirmed the judgment of the court below as it is, where property disposal was conducted in close relation to the failure or performance of the project promoted by the defendant

The court below erred by misapprehending the legal principles on the method of determining causation or the degree of proof required in a criminal judgment, and by failing to exhaust all necessary deliberations, exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, which affected the conclusion of judgment.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court 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 Park Sang-hoon

Justices Kim Jae-tae

Chief Justice Cho Jae-hee

Justices Park Sang-ok