2017Gohap813 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

A

Sheet, Kim Jong-malk (Public trial)

Law Firm (LLC) B

Attorney C, D

January 25, 2018

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of the facts charged

around 2009, the Defendant was a director of E Co., Ltd. (hereinafter referred to as “E”), a company dealing with golf club membership rights, and the present representative director is E.

The Defendant, under the pretext that H (hereinafter “H”) who owns and operates a G golf course in Gwangju City F (hereinafter “instant golf course”) receives fees for the sales agency of a hotel sold at the early 2007 Si in early 2007, the Defendant agreed with H, who purchased the instant golf course from a membership exchange and changed the hedge conditions of the instant golf course from H to the same level as the non-registered membership right, and then the Defendant would take an amount equivalent to the difference as if the Defendant was the non-registered member right at a high price as if he were the non-registered member right, as a sales agency fee.

On July 13, 2009, the Defendant purchased L’s membership rights (M; hereinafter “the instant membership rights”) from K to K in the name of KRW 233,00,000 under the name of E, and the said J around that time ordered the general affairs division of the instant club and employees to change the conditions, such as the sports qualification, etc. of the instant membership rights, to the same extent as the non-registered membership rights, and the Defendant requested the Plaintiff to sell the instant membership rights, the benefit condition of which was changed to the non-registered corporation membership rights, through the membership exchange.

However, in the case of golf membership with a deposit system, the membership fee that is guaranteed at the time of returning the membership differs from a significant amount in accordance with the benefits given, such as sports qualifications and right of reservation, and the membership fee of the instant membership, which is a registered corporate member, is merely KRW 100 million at that time, while the membership fee of the non-registered corporate member was KRW 500 million at that time, a person who intends to purchase a golf membership through the membership exchange, who knows that the above benefits such as the sports qualification of the non-registered corporate member right, etc., were changed later than the right of the non-registered corporate member, can expect that he/she will not purchase the golf membership or want to purchase the higher price. Furthermore, it cannot be anticipated entirely that the non-registered membership right can be changed as if the non-registered membership right is the non-registered corporate member's right, and thus, if the membership right is sold in the non-registered corporate member's membership right, he/she is obligated to notify the purchaser in advance of the fact that the membership fee is only KRW 100 million.

Nevertheless, on September 25, 2009, the Defendant concealed the above facts, and by deceiving the instant membership to the Victim Co., Ltd. (hereinafter referred to as “O”) through N (hereinafter referred to as “N”) as if it was an inorganic association’s original right, and sold the purchase price of KRW 750 million to the victim Co., Ltd. (hereinafter referred to as “O”), thereby acquiring the pecuniary profits equivalent to KRW 517 million in the difference of the purchase price.

2. Summary of the defendant's assertion

The N received an inquiry from N to determine whether it has a right to hold a G-registered membership, and after clearly explaining the fact that it is a membership of KRW 100 million with the benefit of a member with a right to use the right to use the right to use the right to use the right to use the right to use the right to use the right to use the right, the N

3. Determination

In the case of golf membership, such as the instant membership, a member has the right to preferentially use the golf course and the right to receive a refund of the membership fee paid at the time of the withdrawal. In relation to the above right to use the golf course, the right to use the golf course has the right to receive benefits from the regular member and the right to receive a benefit from the regular member without accompanying the regular member. Moreover, the right to use the golf course is much more than the right to use the non-permanent membership than the right to use the non-permanent membership. Meanwhile, the instant membership added the benefits of the right to use the non-permanent membership, while the right to use the non-permanent membership is granted in terms of the right to use the golf course (the victim also recognized the same benefits as the right to use the non-permanent membership) but the right to use the non-permanent membership (the instant membership is KRW 100 million) was claimed only in terms of the right to claim the return of the membership fee. Ultimately, the issue of the facts charged in the instant case is whether the Defendant notified the fact that the non-permanent membership fee is 100 million won.

However, in light of the following facts and circumstances acknowledged by the evidence duly adopted and examined by the court, the evidence submitted by the prosecutor alone is insufficient to deem that the facts charged in the instant case, which the Defendant concealed the fact that the membership fee was KRW 100 million and led the victim to sell the membership fee as if the membership fee were the same as the general membership fee, was proven to the extent that there is no reasonable doubt.

① The Defendant entrusted the sale of the instant membership to N, and the N entered into the instant membership agreement with the victim on behalf of the Plaintiff (each legal statement of the witness P and Q) (i.e., the Defendant did not enter into a contract by discussing the direct contractual terms with the victim, and both the Defendant and the Defendant were conducted through N.

② The Defendant consistently stated that the membership fee of the instant club is KRW 100 million, and consistently from the investigation agency to this court, the Defendant sought the statement from the Defendant that “the injured party has a membership right,” and asked the Defendant whether he/she has a membership right. The Defendant notified the victim of the fact that the membership fee of KRW 100 million is a KRW 100,000,000, and arranged the conclusion of the contract. It also confirmed that the Defendant issued the direction to the Plaintiff and delivered the order to the Plaintiff. The Defendant stated to the effect that “The membership fee is a KRW 100,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00,00,00,00.

③ In this Court, R, which had been in charge of the practice of the instant membership agreement as a N employee, testified that “The term “the instant membership gives the benefits of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member.”

④ A director of H’s operating the instant club stated in an investigative agency that “In the event of trading membership rights, the transferee generally confirms admission fees, benefits, etc. by communicating with the golf club, and if there is no contact, the transferee shall notify the transferee thereof by telephone from the golf club to the transferee. In the case of a legal entity, the transferee has to issue a written confirmation on admission fees and membership numbers (in the case of a legal entity, 241-242 pages).” The representative director of H also notified the Plaintiff of whether the membership fees are due to the notification at the membership exchange, and if the transferee was asked to the company of membership, the transferee would naturally speak the membership fees.” (No 174 pages of the investigation record). As such, under the circumstances in which the person seeking to purchase membership fees can be confirmed at any time, and the return of membership rights guarantee the right to claim the return of membership fees, and the amount can only be clarified, the exchange that trades for multiple customers is a member fee and the reason why the amount of membership fees should be traded.

⑤ U.S. in charge of the transfer and acquisition of membership rights in H did not have any time to ask for membership fees, benefits from members, etc. from among the transferee who purchased a member’s membership right. If the owner of a membership right is replaced, he/she also stated to the effect that “the certificate of membership shall also be issued if there is a request to notify the transferee of the membership fee, etc.”

④ The victim’s agent stated that “V, as a matter of course of entering into a contract, purchased the instant membership fee of KRW 500,000,000,000,000,000,000,000,000,000,000,000 won, including bearer benefits, may be sold to the investigation agency.” The victim’s agent stated that “The instant membership fee is KRW 50,000,00,000,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00,00.

7. Q in charge of trading of membership in the instant case as employees of the victim company

In light of the fact that “this case’s membership rights were changed to the non-member rights at the time of the purchase of the membership.” Although the membership fee was not confirmed and purchased as to 500 million won, there was no question because of the benefit of the non-member rights. It stated that the membership fee was KRW 500 million, and that the membership fee was KRW 500 million from the Exchange at the time of purchase.” (283-285 pages of the investigation record) and in this court, the phrase “N employee R and this case’s membership fee was 100 million” was not stated as KRW 50 million. After the conclusion of the contract, it was also difficult for the victim to have stated that it was 200 million in the agreement that the non-member rights were 50 million won or more, and that it was 100 million won or less in the process of signing the contract, it was also difficult for the victim to have stated that it was 100 million won or less in the 200 billion testimony.

③ In this court, Q stated, “If the membership of this case was acquired in consideration of the later investment effect, and Q would have acquired a higher membership fee of KRW 100 million, then Q would not purchase the 100 million foot with KRW 750,000 if it was known that the membership fee was KRW 100,000.”

However, it is difficult to believe the above part of Q stating "If the party who intends to purchase the membership fee knew of the circumstances that the membership fee is KRW 100,000,000,000 is KRW 7550,000,000,000, it provided information about the price of golf membership so that the company can make a decision, and the decision to acquire the membership fee of KRW 750,000,000 was made by W Affairs and X president." (The victim would have not acquired the membership fee of KRW 750,000,000,000, if he knew of the fact that the membership fee of this case was KRW 100,000,000,000,000 was formed at the price of the membership fee at the time of the transaction of this case, more interest was more than the amount of the membership fee. Since the party who wants to purchase the membership fee of this case had never been aware of the fact that the membership fee of this case was 100,00,000,00.

4. Conclusion

The facts charged in this case constitute a case where there is no proof of facts constituting the crime, and thus, is pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, and a summary of the judgment of the defendant is publicly announced pursuant to

The presiding judge, the highest judge;

Judges of the High Instance

Judges Kim Dong-dong