Defendant

Defendant and Prosecutor

Shohoho Lake

Attorney Lee Ji-hoon

Applicant 1 et al.

1. Seoul Central District Court Decision 2009Da4227, 5400, 5502, 7195, 8549, 2010 Godan598, 1249, 3846 (Joint), 4614, 2010 Godan402, 1405 (Application for Compensation) decided February 18, 201 (Joint Party Members 201No969) / Seoul Central District Court Decision 201No958 decided April 22, 2011 (Joint Party Members 201No1449)

1. The part of the judgment of the court of first instance excluding compensation order and the judgment of the court of second instance shall be reversed.

A defendant shall be punished by imprisonment for not less than five years and six months.

2. Of the facts charged in the instant case, the fraud of the victim Nonindicted Party 1’s certificate of personal seal impression (the part 2010 order 1249) is acquitted.

1. Summary of grounds for appeal;

A. Defendant

The punishment of the lower court (the first instance judgment: 5 years of imprisonment, and 10 months of imprisonment) is too unreasonable.

(b) Prosecutors;

Each sentence of the court below is unfair because it is too unfortunate.

2. Ex officio determination

A. Ex officio, the first and second court sentenced the defendant to five years of imprisonment and ten months of imprisonment, and the defendant and the prosecutor filed an appeal against each of the above rulings, and the court of the first instance decided to jointly examine the above two appeals. The court of the first instance decided to jointly examine the above two appeals.

Each of the crimes of the court below against the defendant in the first and second concurrent crimes under the former part of Article 37 of the Criminal Act shall be sentenced to a single sentence within the scope of the term of punishment aggravated for concurrent crimes in accordance with Article 38(1) of the Criminal Act. In this regard, the court below's judgment against the defendant cannot avoid the reversal of all the judgment below.

B. In addition, at the trial of the trial of the court of first instance, the prosecutor changed Article 1 (1) of the facts charged as “1. Forgery of private documents, alteration of private documents, and modification of private documents” from “1. Forgery of private documents,” and Article 2 (2) of the facts charged as “2. 2. events of private documents and uttering of private documents” from “2. 3. 1. 2-B. of the facts charged,” and “the defendant forged one copy of the real estate sales contract in the name of Non-Indicted 2, a private document concerning rights and duties, for the purpose of exercising them as above,” and “the defendant prepared real estate sales contract in the name of Non-Indicted 2, a private document with the qualification of agent of the above Non-Indicted 2 for the purpose of exercising them, which is a private document with respect to rights and duties, and thus, the above Non-Indicted 2’s application for change or alteration of the status of the above non-Indicted 2 as seen in paragraph (2) and the above application for permission by the court to change or alteration.”

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act without examining the grounds for appeal by the defendant and the prosecutor on the ground of the above ex officio reversal (excluding the part of the compensation order), and it is again decided as follows.

The summary of the facts constituting the crime and evidence acknowledged by the court of first instance is as follows. Paragraph (1) from among the facts constituting the crime in the case of "209Da7195" of the court below's judgment "1. Forgery of private documents, alteration of private documents and alteration of private documents" to "1. Forgery of private documents, alteration of private documents and preparation of private documents," and Paragraph (2) from "2. uttering of private documents and alteration of private documents" to "2. 2. events of private documents, alteration of private documents and uttering of private documents," respectively, and Paragraph 1-B of the above facts constituting the crime of this case "the defendant forged one copy of the real estate sales contract in the name of non-indicted 2, a private document concerning rights and duties for the purpose of exercising them as above, in addition to "the defendant prepared the real estate sales contract in the name of the above non-indicted 2, which is a private document with the qualification of agent of the above non-indicted 2 for the purpose of exercising them," the first part of the judgment's "20 9. 201" to delete and 201" as it.

1. Article applicable to criminal facts;

Articles 347 (1) (a) (a point of fraud), 231 (a point of forgery and Alteration of Private Document), 234, 231 (a point of uttering of Forgery and Alteration of Private Document), 232 (a point of uttering of Forgery), 234, 232 (a point of uttering of Private Document Preparation of Qualification), 228 (1) (a point of uttering of Private Document Preparation of Qualification), 229, and 228 (1) (a point of uttering of False Document) of each Criminal Act

1. Commercial competition;

Articles 40 and 50 of the Criminal Act

1. Selection of punishment;

Each Imprisonment Selection

1. Handling concurrent crimes;

The latter part of Article 37 and Article 39(1) of the Criminal Act

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Defendant’s assertion (the part on fraud against Nonindicted 3)

The Defendant asserts that, while having accepted only unfair sentencing grounds, he received only KRW 95 million out of the purchase price from Nonindicted 3, the victim himself, and the remaining KRW 40 million from Nonindicted 4, the victim was returned from Nonindicted 4, and thus, the Defendant is not liable for that part.

2. Determination

According to the evidence duly adopted and examined by the court below, the victim non-indicted 3 remitted the amount of KRW 10 million to the deposit account in the name of Non-indicted 5, a real estate agent office in Songpa-gu Seoul Metropolitan Government (hereinafter omitted) on June 12, 2007 at the "○○ Real Estate Agent Office" located in Songpa-gu Seoul Metropolitan Government (hereinafter referred to as "O○○ Real Estate Agent Office" (hereinafter referred to as 1 omitted) to purchase the apartment to be removed under the urban planning if the defendant purchased the above goods from the defendant. If the above goods are not removed to the Haman on June 2008, the victim's assertion that the above goods will be returned to the return of the purchase price in full. The defendant's assertion that the above goods will not be removed from the victim's 35 million Won-dong on the same day, but the defendant's assertion that the above goods were not removed from the above 40 million real estate agent's account on June 22, 2007 is without merit.

1. Summary of the charge of this case concerning the fraud against the victim non-indicted 1

On February 8, 2003, the Defendant purchased the redevelopment apartment unit sale right from Nonindicted 1, who resided in the Dongdaemun-gu Seoul Metropolitan Government (hereinafter 3 omitted) 8, the redevelopment area, and sold it to Nonindicted 6 in KRW 78 million. In this case, when the redevelopment apartment is allocated in the name of Nonindicted 1, the Defendant, without any separate help from Nonindicted 1, obtained the “understanding document” from Nonindicted 1, the certificate of personal seal impression in the name of Nonindicted 1, the letter of sale of the apartment with the seal affixed by Nonindicted 1, and the pre-sale contract, and sent it to Nonindicted 6. Accordingly, if the apartment unit was allocated in the name of Nonindicted 1, Nonindicted 6 could have completed the ownership transfer registration under his own name using the above documents.

Although the Defendant already sold Nonindicted 6’s apartment sales right to Nonindicted 1’s apartment sales right to Nonindicted 1, the Defendant had been minded to sell the right to sell the apartment again, but in order to sell the apartment in double, Nonindicted 1 had to receive “understanding document” from Nonindicted 1, but Nonindicted 1 had already sold his right to sell the apartment, so there was no reason to deliver the document again.

Accordingly, from the second half of 205 to Nonindicted 7, the Defendant made a phone call to Nonindicted 8, who is his father, Nonindicted 1’s wife, through Nonindicted 7, and led the above Nonindicted 8 to mistake the Defendant and Nonindicted 7, as a person who purchased Nonindicted 1’s right to move in, cooperates in supplementing documents when he moves in after being allocated an apartment as he purchased his right to move in, and calls from time to time.

On May 22, 2006, the Defendant had Nonindicted 7 at the Gangnam-gu Seoul Eastdong Office, Seoul, Nonindicted 8, his father, Nonindicted 8, and Nonindicted 9, the husband of Nonindicted 8, issued a certificate of the personal seal impression in the name of Nonindicted 1, because it is necessary to draw the same type of apartment, etc.). The Defendant, at the same time, got Nonindicted 8 and Nonindicted 8, the husband of Nonindicted 8, to the effect that “The Defendant obtained the certificate of the personal seal impression in the name of Nonindicted 8 and Nonindicted 9, who had the right to move into a legitimate possession, and fraudulently acquired the certificate of the personal seal impression in the form of the apartment from Nonindicted 8 and 9, leading Nonindicted

2. Determination

A. In order to establish a crime of fraud, it shall cause property damage to another person by deceiving another person by deceiving property or pecuniary gain, and the person himself/herself shall obtain pecuniary gain. The certificate of personal seal impression is merely a document that officially proves the seal impression currently used by an individual, and does not contain any matters concerning the disposal of any property or property, and legal interests that are likely to be infringed by unlawful acquisition of the certificate of personal seal impression are not the document itself, but the contents that can be proved in writing, so the certificate of personal seal impression itself cannot be the object of the crime of fraud.

B. Examining the facts charged in the instant case in light of the aforementioned legal doctrine, even if the Defendant received three copies of the victim Nonindicted 1’s certificate of personal seal impression from the victim Nonindicted 8 and the husband of Nonindicted 8 by making a false statement to the victim Nonindicted 1’s husband, the crime of fraud is not established on the ground that it cannot be deemed that the victim suffered property damage or that the Defendant obtained property benefits.

3. Conclusion

Therefore, since this part of the facts charged is not a crime, it is judged not guilty in accordance with the former part of Article 325 of the Criminal Procedure Act.

1. From 2002 to 2009, the Defendant, without the intent or ability to allow the victims to have a special sale right, etc., said that “the Defendant would have a special sale right of apartment buildings and a commercial building right to be removed from the Seoul Urban Development Corporation to the owner of the building to be removed,” deceiving victims by double selling a special sale right, etc., and by deceiving them with a total of KRW 1.238 million with real estate sale price, etc., and exercised the documents such as a sales contract, etc. on several occasions during that process, by forging and altering the documents such as a sales contract, etc. or gathering the qualification as an agent. In light of the fact that the Defendant’s crime continues to exist for a long period of time, the damage therefrom, and most damage have not been recovered, it is inevitable for the Defendant to punish

2. In addition, the decision of the court below shall be made in the same way as the decision of the court below, taking into consideration all the circumstances surrounding the records of this case, including equity in the case of fraud for which the judgment of the court below becomes final and conclusive at the same time, the defendant's previous case (two times a fine), relationship with the previous case (3 times a fine), the age and career of the defendant

Judges Kim Sung-ho (Presiding Judge) (Presiding Judge)