(영문) 서울중앙지방법원 2018.3.28. 선고 2017고합959 판결

The defendant, as the head of marketing headquarters of Jongno-gu Seoul Metropolitan Government Co., Ltd. (hereinafter referred to as the "C"), was in charge of attracting investment and external business affairs, D was in charge of the management of investment funds as the representative director of C, and E was in charge of the management of investment funds, and E was in charge of the management of investment funds and other affairs as the general director of C.

A. On August 2009, when electronic commerce was conducted on an online market, sales proceeds after deducting service fees are paid to the seller, and when payment is made from the purchaser to the open market, the credit service provider established and operated the F Co., Ltd. F (hereinafter “F”) in order to run a credit business that takes profit equivalent to the service fees by receiving sales proceeds from the open market; however, the credit service provider provided excessive custody fees to the employee responsible for attracting investment and distributes the high-rate investment profits to some investors, and the actual operation proceeds are almost rare, so that the investment proceeds are distributed to the existing investors, and there was a loss equivalent to approximately KRW 700,000,000.

Accordingly, D and E established C to conduct an open market selection service by establishing a system to link new investors with online market and electronic data as of May 17, 2010, because it is difficult for them to recruit new investors, and they exercise overall control over the management of investment funds, etc., and the above E is responsible for the management of investment funds and the management of offices, and the defendant is recruited to attract investors to receive 10% of investment funds as dividends.

Accordingly, on June 15, 2010, the Defendant: (a) at the victim H’s house located in Young-gu, Young-gu, Gyeonggi-gu, Seoul; and (b) at the victim H, the Defendant “C is a company providing the service of selecting sellers for the sales proceeds in the Internet Open Market. C is a service of paying the sales proceeds in advance to the open market sellers and settling accounts after receiving the sales proceeds from the open market company on behalf of the sellers.

C In order to make an investment in money, it made a false statement that 24% of the annual revenue would be paid to the Open Market Selection Service Fund, and the investment principal would be paid when it wants to be repaid.

However, in fact, C also operated in the same way as the existing F and did not have profit itself, and there was no intention or ability to pay return on investment or to repay the principal, even if it received investment money from the victim, because C also did not have an intention or ability to create profit on investment or pay the principal.

Ultimately, the Defendant conspired with D and E, by deceiving the victim H as above, and received KRW 10,00,000 from D’s bank account (J) on June 15, 2010 as investment money, and as shown in the attached Table of Crimes List (1), from around that time to November 10, 2015, the Defendant received KRW 11,736,150,000 in total from 179 to 479 times from 179.

In collusion with D and E, the Defendant, even if investing in C, paid investment profits, and did not have any intent or ability to redeem principal, on February 21, 201, the Defendant conspiredd KRW 100,000 from 30,000 to 10,000,000 from 30,60,000 from 20,60,000 to 30,616,00,000 from 20,65,00 from 20,60,000 to 30,60,000 from 11,06,00,000 from 20,60,000 to 54,00 from 20,60,000 from 30,60,00 from 20,000,00 from 20,000 to 54,00,00 from 36,205,015.

2. Determination

A. Relevant legal principles

1) In order to constitute a joint principal offender under Article 30 of the Criminal Act, two or more persons must jointly commit a crime. It is necessary to establish a crime through the functional control of another person’s functional act, which is a subjective element, with the intent of joint processing and objective requirements. The intent of joint processing is insufficient to recognize the crime of another person and to accept it without preventing it. The purport of joint processing is to shift one another’s intent to the execution of one’s own act by using another person’s act as a joint principal offender. In addition, in order to erase the criminal liability as a joint principal offender, it should not be deemed that there is a functional control through an essential contribution to the crime, rather than a mere conspiracy (see, e.g., Supreme Court Decisions 2011Do7229, Nov. 28, 2013; 2012Do626, Nov. 27, 2012).

2) Meanwhile, in a case where the conspiracy constitutes “the fact that the conspiracy constitutes a crime in co-principal,” there was a combination of intent to realize the crime by co-processing the crime. As such, it should be specified and proved to the extent that a person who did not directly participate in the conduct of the crime is able to be held accountable as a co-principal for the act of another co-principal. Therefore, it cannot be readily recognized solely with the statement of position, etc. that is likely to be deemed as having contributed to the principal offender’s act of committing the crime without specific specification and certification (see, e.g., Supreme Court Decision 2016Do2696, Apr. 2, 201

3) In a criminal trial, the recognition of criminal facts ought to be based on strict evidence with probative value that leads a judge to have a reasonable doubt, and in a case where the prosecutor’s proof does not reach the extent that such conviction would lead to such conviction, the determination ought to be made in the interests of the defendant even if there was suspicion of guilt, such as contradictory or uncomfortable dismissal in the Defendant’s assertion or defense (see, e.g., Supreme Court Decision 2015Do119, May 14, 2015).

(b) Fact of recognition;

According to the evidence duly adopted and examined by this court, the following facts are recognized.

① Around July 2009, D shall make a business registration under the name of R as its wife, and when a buyer purchases goods, etc. in an electronic commerce transaction along with E, while the sales proceeds are not paid to a seller in order to confirm buyer’s receipt of goods and intention to make a final purchase, etc., D shall first pay the sales proceeds after deducting a fee from the sales operator (hereinafter referred to as “prior settlement service”), and when a buyer pays the sales proceeds to an open market, the Open Market established an “F” for the purpose of business of an entrepreneur by paying the sales proceeds to the seller, thereby taking profits equivalent to the fees, and began the above business after registering the credit business.

② The Defendant, one’s pro-friendly E, knew of the fact that he/she carries on the above business, invested D in Ma or F, and had the investors attract the investment funds.

③ D and E suffered approximately KRW 700,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000

④ The Defendant continued to attract investment in C, while taking charge of the so-called position of the head of marketing headquarters, was in charge of attracting investment as well as C’s business investment and promotional activities, etc. In attracting investment, the Defendant displayed C’s promotional measures for investors, and explained C’s business performance and profitability, and expressed C’s intent to pay 2% monthly investment amount (24% per annum) as profits. The most investors deposited investment amount into D’s personal account, rather than C’s corporate account, according to the Defendant’s guidance.

6) From the beginning of the C establishment, D did not include the investment funds received from investors directly or through the Defendant, etc. in C’s selection service business, and used them for other investors’ profit payments, company’s ordinary expenses, and their personal purposes. Since it is difficult to pay investors profits thereafter, from January 2014, D reduced the Defendant’s investment attraction fees from 10% to 8%, and from 2% per month (24%) to 1.5% per annum per annum (18%) to 2% per annum per annum.

① The Defendant continuously sent to investors attracting by himself/herself, through text messages, materials, such as C’s business agreements with open markets, S or T-related institutions’ investment awareness, publicity articles, etc.

8) Until July 2015, the payment of profits to investors and the Defendant’s investment attraction fees was made at the end of each month, but there was an occurrence of the payment after prompt payment from August 2015 to August 2015. Accordingly, the Defendant sent a text message to the effect that “The payment of profits is delayed in the process of exchanging investment funds between S and T which was an investor of C, and is an investor of new institution,” and that “the payment of profits is delayed due to a holiday.” The Defendant sought understanding from investors by sending it.

9) On November 11, 2015, D, around November 2015, immediately after informing the Defendant of the fact that the Defendant is unable to pay the profits and principal because the funds for C remain rarely. Accordingly, the Defendant, via himself, notified the investors who invested in C of the same fact, and opened an online meeting of the affected investors seeking the measures.

① On November 18, 2015, D revealed the form of “D” in which the victimized investors gather and use the investment money in return for other investors’ profit, etc., and confirmed the fact that there is no balance in their own account. Accordingly, investors filed a complaint against D, E, V, and Defendant, etc. under the charge of fraud, occupational embezzlement, occupational breach of trust, etc. The investors were indicted as charges of committing a crime of fraud related to the designated mountain service in collusion with KIND, but the first instance court sentenced D only guilty, and sentenced E not guilty on the ground that it was not sufficiently proven that there was a criminal intent to acquire money by deception (Seoul Central District Court Decision 2016Da1212, May 11, 2017), and that D and prosecutor were not guilty on the grounds that they were not guilty (Seoul District Court Decision 2010Da161710, May 11, 2017). However, the judgment of the court and prosecutor became final and conclusive on the grounds that they were dismissed.

In light of the following circumstances acknowledged by the evidence duly adopted and examined by the court, namely, F and C’s Open Market Selection Project by the Defendant: (a) investment for more than six years to attract investors; (b) Defendant-friendly E was in the general director position to approve and report to D the execution of the funds; (c) the Defendant-friendly E was deposited into D’s personal account, rather than C’s corporate account; (d) the Defendant received a high rate of investment commission from D; and (e) the Defendant received a high rate of investment commission from D and the total amount of KRW 1.7 billion, there is room to suspect that the Defendant participated in the instant C-related investment fraud crime.

However, in light of the above legal principles by comprehensively taking account of the following circumstances revealed by the above evidence, it is insufficient to view that the evidence submitted by the prosecutor alone, as shown in the facts charged in the instant case, was proven to the extent that it is beyond reasonable doubt that the Defendant conspired with D and E to commit the instant investment fraud crime related to C, and there is no other evidence to acknowledge it.

① The Defendant consistently stated, from the investigative agency to this court, that “A person was aware of the fact that D had actively engaged in attracting investment by reliance on D’s explanation that there was a promising business and profitability in connection with C’s selective services, and that D would have paid profits to investors through the return of investment deposit, or that D’s finances have deteriorated to the extent that it is difficult to operate the company.”

② At the investigative agency, D had different knowledge about the circumstances that “the Defendant paid the proceeds to investors in the way of returning them.” (No evidence No. 2, No. 1397, No. 3913) or “the Defendant has known whether the investment funds were invested in C’s designated fund.” (No. 3 right 1731 of the record) and stated to the same effect in this court. On the other hand, D appears as witness on the second trial date in consultation with the Defendant, and stated to the effect that “the Defendant was able to have known the financial status of C, or to have known the fact of preventing the return of its investment funds and making it worse in light of the circumstances that the Defendant’s pro rata was the general director of C, etc.” Furthermore, it is questionable whether the Defendant again appeared as witness on the date of the prosecution investigation and the third trial after the testimony, and on the basis of the changes in the timing and method of making the investment funds available to himself/herself or not.”

③ In relation to the relationship with the Defendant, D stated in the investigative agency that “the relationship between the Defendant and the Defendant is exempted from attracting investment only as agreed, and only the fee is paid to him/her, and the relationship between the Defendant and the Defendant is not the one to report to him/her to use the money if attracting investment.” In addition, in the investigative agency and this court, “personal accounts that received investment money are managed only by himself/herself, and cannot be known how employees or the Defendant use the investment money, and both the commission for attracting investment and the payment of profits to the Defendant were remitted directly to himself/herself, and the payment of profits to the Defendant was ordered to directly transfer the money to C’s corporate account in the event of need for expenses such as selective service funds or personnel expenses of C employee.” This fact is confirmed by W’s investigative agency in charge of settlement affairs and in this court, the Defendant did not appear to have been in his/her position to have been in his/her position in the investigative agency or in his/her general director E (Evidence No. 45 of the evidence record), and the Defendant did not appear to have been in his/her position in his/her official position.

④ Although D, in consultation with the Defendant, reduced the Defendant’s investment attraction fee rate for the Defendant and the payment rate for investors, such circumstance alone alone does not readily conclude that the Defendant paid the Defendant’s profits to investors in a way that would prevent investors from returning them to other investors’ investments, and that C’s financial situation has significantly deteriorated. Rather, it is insufficient to deem that even until November 2015, prior to D’s locking, it appears that the Defendant was fully paid the profits to investors and the Defendant’s investment attraction fee for the Defendant. In the event that investors request the collection of principal, it appears that the Defendant was informed D of the fact that D would have been able to repay to investors, and that there was a financial problem of Nagoya around 2015 and around 10, 2015,” as seen above, in view of W’s legal statement, etc., it is difficult to deem that the circumstances at which the rate of investment attraction fee for the Defendant and the rate of the payment of profits to investors was reduced as the grounds for recognizing the Defendant’s participation in the crime of deception.

⑤ After considering the fact that the Defendant paid profits and investment repayment from D to investors by means of return and the fact that C’s financial failure has occurred, the Defendant informed investors of such fact, and actively established online meetings to prepare countermeasures, and provided information on the situation and countermeasures. Also, there is also a situation in which the Defendant cooperates with investors, such as providing the details of the account to investors, and allowing investors to directly explain the details of the account by obtaining D.

6) The name of the Defendant’s family member until August 2015, the event of non-payment of the profit occurred.

Among them, the amount invested in the name of the defendant's attached Z seems to have not yet been recovered.

7) The revenue model of C’s selective services did not have business feasibility or profitability in itself. In other words, the Defendant’s explanation that AA, who acquired the human resources and physical assets, was aware of the fact that AA used the above selective services revenue model, was also a competitor who used the same business model at the time of operation C, C was also a competitor who entered into a business partnership with the open market, such as AB, an online online shopping mall around 201, and a research institute’s certification around April 2012, 201, a research institute’s certification, a technology venture business certification, etc. on the online sales proceeds selection system and control method, and the Defendant’s continuous publicity of this fact to investors that it was attracting, cannot be justified by the Defendant’s explanation that C’s business and profitability were attracting investment.

8 As seen earlier, the judgment of innocence was rendered and finalized on the grounds that there is insufficient reason to view that there was a criminal intent to acquire by fraud in the criminal case against E with respect to the instant fraud crime, or that there was a conspiracy to commit D and fraud. Even upon examining the records of this case, there was no obvious circumstance to view the same differently from the above criminal judgment against E.

9) Meanwhile, it is difficult to view that D also committed the instant fraud with a conclusive perception and intent on fraud. In full view of these circumstances, the circumstance that the Defendant received a high rate of attracting investment commission from D while attracting investment for a considerable period of time, and the Defendant-friendly E, a general director of C, while attracting investment cannot be deemed to have been aware that the Defendant committed the instant fraud while attracting investment.

4. Conclusion

Thus, since the facts charged in this case constitute a case where there is no proof of facts constituting the crime, it is so decided as per Disposition with the decision of not guilty under the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment of not guilty under the proviso of Article 58 (2

Judges

The presiding judge; and

Awards and Decorations for Judges

Judges Lee Jong-deok

Note tin

1) On October 31, 2017, the prosecutor filed an application for permission to change the indictment with the content of the indictment as stated in Paragraph 2 of the indictment as above, and filed by the prosecutor.

This Court was permitted on the date of the first trial.

2) D) While stated in this Court as above, D shall not later than informing the Defendant of the same fact as the return of the investment money.

Although the defendant thought that he was unaware of such fact, he was investigated in this case, so he was aware at any time of the defendant.

I think it may be possible to make an ambiguous statement, such as "the defendant could be known if the defendant is known."

The question is whether the defendant has been aware of the financial status of C and the return of the investment amount.

In addition, D was in the currency with Q, the complainant, and "the defendant was unaware of the fact that he was unable to return the investment amount," and the middle of November 2015.

There was a fact that he had known that he had to speak (No. 4 of evidence records No. 515 pages).

3) According to X’s statement, X demanded reimbursement of the principal amount of KRW 15 million in 2013 A and recovered (Evidence records)

1349 . Y. 2015, 6,24. 4 months prior to the occurrence of an event of default, Y. 20 million principal invested by himself/herself.

The Court also recovered the source (No. 2, No. 1351 of the evidence record).

4) In particular, in light of the evidence Nos. 5 and 6-1 through 6 submitted by the defendant, 1 in the name of the defendant 2 on May 19, 2014

Investment in D on the same day with a loan of KRW 100,000, or after entering into a lease agreement on August 17, 2015;

The circumstances in which an investment is made by remitting part of the deposit received from a revenue shall peep.

Attached Form

A person shall be appointed.

참조조문

-특정경제범죄 가중처벌 등에 관한 법률

-형법 제30조

-형법 제58조 제2항

-형사소송법 제325조

참조판례

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-대법원 2016. 4. 29. 선고 2016도2696 판결

-서울중앙지방법원 2017.5.11. 선고 2016고합1212 판결

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