(영문) 서울중앙지방법원 2017.7.25. 선고 2017고합379 판결

On November 25, 2016, the Defendant was sentenced to five months of imprisonment with prison labor and one year of suspended execution for violating the Labor Standards Act at the District Court of the Republic of Korea on November 25, 2016, and the judgment was finalized on December 3, 2016

【Criminal Facts】

From July 2012, the Defendant, from around July 2012, entered with E and the actual manager of C (the representative D, hereinafter referred to as “C”) a Co., Ltd. (hereinafter referred to as “C”), for camping purposes, tried to bear the operating funds of C and participate in C’s management. However, the Defendant was unaware of money by deceiving the victim F of the victim who was aware of his reputation because it is difficult to secure funds.

1. The nominal fraud of an investment fund;

On October 16, 2012, the Defendant told the victim at the victim’s house located in Jongno-gu Seoul Metropolitan Government Jongno-gu to the effect that “C will pay the amount of KRW 100 million, which is KRW 20 million, and KRW 100 million, after four months from the time of investing in C.”

However, at that time, C was unable to pay the principal of KRW 100,000 and KRW 20,000,000 after 4 months, even if it was invested in KRW 100,000 by the victim due to its financial difficulties.

As above, the Defendant, by deceiving the victim as above, caused the victim to transfer KRW 100 million to the Agricultural Cooperative Account in the name of C under the name of the same day, and C received KRW 100 million.

2. Borrowing money;

On November 20, 2012, the Defendant stated to the effect that “If the son lends KRW 200 million to the son, 5% of the monthly interest shall be paid, and the principal shall be repaid four months after the borrowing date.”

However, in fact, the defendant was planned to use C's operating funds and personal purposes, which the defendant borrowed from the victim to pay the operating funds, and C was faced with financial difficulties and the defendant did not have any special property, so the defendant did not have any intent or ability to pay the principal and interest to the victim four months thereafter.

As above, the Defendant, by deceiving the victim and then deceiving the victim, received 200 million won from a new bank account under the name of the Defendant’s wife HI that was managed by the Defendant from the victim, and acquired it by deceiving the victim, as well as by deceiving the total amount of KRW 440 million up to July 1, 2013.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of witness F and E;

1. Statement by the prosecution concerning D;

1. The police statement concerning F;

1. Investigation reports (I Account Analysis), investigation reports (in relation to the details of the use of the accounts of the State), details of transactions, investigation reports (in relation to the submission of E data), investigation reports (in relation to the business plan of the JT), and investigation reports (in relation to the submission of documents related

1. A written confirmation of borrowing and a written repayment plan of debts;

1. Each Korean bank account, each data on details of transactions of the national bank account, and the I Account in the name of the complainant;

1. Each deposit slip (receipts without passbooks, transfers for other purposes, and issuance of checks);

1. Previous records of judgment: Criminal history records, etc. (A) and investigation reports (report accompanied by a copy of the judgment);

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 347(2) and (1) of the Criminal Act (the fraud by acquiring a third party’s property profit, the choice of imprisonment), Article 347(1) of the Criminal Act (Fraud, including fraud, the choice of imprisonment)

1. Handling concurrent crimes;

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

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (as stated in paragraph (2) with a heavier penalty), Article 38(1)2, and Article 50 of the Criminal Act

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

A. As to facts constituting a crime under paragraph (1) of this Article, the defendant is merely merely to introduce C to the victim the actual operator E, and the explanation of E is directly invested by the victim C, so there is no fact that the defendant deceivings the victim.

B. As to the amount stated in the table of crime Nos. 1 through 3 among the criminal facts of paragraph (2), the defendant explained about the place of investment to the victim and then invested with the consent of the victim, so there is no fact that the defendant deceivings the victim.

C. As to the money stated in No. 4 of the crime list in the crime No. 2, since the victim was aware of the defendant's explanation and knew of the financial situation of C, the victim did not deceiving the victim, and since the defendant attempted to repay the borrowed money in case of operating C and making profits, it is not the criminal intent to acquire it by fraud.

2. Determination

In full view of the following facts and circumstances acknowledged by the evidence duly adopted and investigated by this court, it is reasonable to view that at the time of receiving the remittance of investment funds or borrowed funds from the victim, the Defendant was sufficiently aware or predicted that the Defendant was unable to return the investment funds or borrowed funds to the victim with profits from the operation of C and other investment sources. As such, the fact of deceiving the victim with the intent to commit the crime of defraudation is sufficiently recognized. Accordingly, the prior Defendant and the defense counsel’s assertion is rejected on a different premise.

① As to the facts constituting a crime under paragraph (1), it is recognized that the victim has entered into an investment contract with the content of seeking explanation about C and investing KRW 100 million in C from E, which he/she had experienced on October 15, 2012. However, in light of the fact that the victim was aware of the Defendant around 2010, and received explanation from the Defendant about various investment sources, including C, and received repeated investment proposals from the Defendant. The victim did not have any investment experience such as the instant case. The victim entered into the said investment contract with C with the Defendant with the belief that the return of principal would be guaranteed four months after the Defendant’s trust without specific confirmation about the remaining investment sources, and the victim already participated in the operation of C at the time of entering into the said investment contract. According to the statement of E, it is reasonable to view that the said investment contract was concluded under the direction of the Defendant and the victim, as otherwise alleged by the Defendant, rather than merely introducing E to the victim.

② As to the money listed in the table of crime Nos. 1 through 3 in the criminal facts of paragraph (2), when the victim transfers each of the above money to the defendant, it is reasonable to view that the money listed in the table of crime Nos. 1 through 3 in the criminal facts of paragraph (2) has been remitted from the victim under the condition that the principal should be returned after four months; the victim transferred money to the defendant under the condition that the principal should be returned; the victim trusted the defendant without specifically confirming the investment vehicle; the victim thought that the most important thing in remitting the above money is not whether the defendant invests in any investment vehicle; it appears that the principal should be returned from the defendant for four months after the date of the transfer; and on September 8, 2015, the defendant prepared a written confirmation of borrowing from the victim. In full view of the above, it is reasonable to deem that the money listed in the table No. 1 through 3 in the criminal facts of the defendant transferred from the victim is the borrowed money.

③ The Defendant stated that he/she used KRW 340 million, out of KRW 540,000,000, which was remitted by the victim, as operational funds C.

Then, as to whether the Defendant was able to return the funds borrowed from C through the operation of C, the victim’s most of the funds. From around October 16, 2012, C’s bank account did not remain more than 4.3 billion won in balance with C’s bank account. Examining the account’s accounts after the victim’s and the third party’s funds were raised, it appears that the above funds were consumed as operating expenses and the new funds were repeated at the time of the Defendant’s failure to return the funds to the 3rd party for the purpose of using the funds. From 2012, October 16, 2013, the Defendant did not appear to have been able to have been able to have been able to return the funds borrowed from C, which were 20 billion won in advance, to the extent that it was difficult to expect the Defendant to return the funds borrowed from C’s funds to the 200 billion won funds borrowed from C. This was also difficult to expect the Defendant to return the funds borrowed from K’s funds to the 3rd account.

④ Around November 2012, the Defendant invested KRW 100 million in a three-year manufacturing company L, a stock company, and KRW 100 million in a single-end importing company, which was operated by J around January 2013 and around April 2013, the Defendant: (a) invested in each importing company; (b) was in a situation where the entire amount of investment was not refunded; (c) even based on the data submitted by the Defendant, it appears that the Defendant did not receive any benefits until June 2013; and (d) the Defendant did not take any legal measures to recover the amount of investment; and (d) the Defendant was unable to fully recover the amount of investment even if L was disposed of all machinery, etc. with property value due to the Defendant’s bankruptcy; and (e) the Defendant was merely a business progress at the time of investment; and (e) thereafter, the J, etc. did not visit the funds invested by the Defendant to the Philippines to make it possible to recover the amount of investment.

Reasons for sentencing

1. The scope of punishment by law: Imprisonment for not more than 15 years;

2. Non-application of the sentencing criteria: The sentencing criteria shall not apply inasmuch as the above crimes and the violation of the Labor Standards Act for which judgment becomes final and conclusive are concurrent crimes under the latter part of Article 37 of the Criminal

3. Determination of sentence: Imprisonment for 2 years; and

【Unfavorable Circumstances】

The crime of this case is very poor in light of the amount of damage and the method of defraudation, etc. by deceiving the victim as if the defendant would guarantee the return of certain profits and principal without notifying the victim of the fact that the financial foundation of C is very weak. Nevertheless, the defendant does not have an attitude to deny the crime and to repent his mistake, and is not fully compensate for the damage of the victim until four years have passed since the crime was committed.

【Free Circumstances】

However, the Defendant used the money acquired from the instant crime for C’s operating fund and investment in other investment sources, and does not seem to be personally useful. rather than the Defendant had an intent to use the investment funds or borrowed funds from the victim in a conclusive manner, the Defendant appears to have caused the instant crime by willful negligence with a vague expectation that the financial situation of C is breathy. The Defendant has no history of punishment for the same crime, and the equity should be taken into account in the case of the instant crime and the violation of the Labor Standards Act, etc. which became final and conclusive at the same time.

Considering the above circumstances, the defendant's age, character and conduct, environment, motive, means and consequence of the crime, the circumstances after the crime, and all of the sentencing factors indicated in the arguments and records of this case shall be determined as ordered.