(영문) 서울중앙지방법원 2017.5.25. 선고 2016고합1169 판결

On August 2014, the Defendant: (a) lent money to E, etc. from 2013 on the grounds that the Defendant had no money owned by himself/herself, and (b) borrowed money to his/her family and branch members from 2013; (c) paid the money with a high interest rate; (d) the Defendant was unable to pay the principal including the profits because the principal has not been returned; (c) from July 2014, the Defendant intended to guarantee the beneficiary the higher interest rate; (d) borrowed money from around 2014 to use the money for the purpose of the repayment of the existing loan and interest.

1. Fraud against victim F;

On August 2014, the Defendant made a false statement that “The Defendant would pay to the Victim F the amount of interest to nine to nine to nine to nine to nine to a certain month when he/she lends money to the Fund.”

However, the Defendant did not have been working for the collection of claims, but did not intend to receive interest from a lender to a person who conducts bond business, etc., but did not have any property owned by him/her, and even if a lender of funds, it could not guarantee the interest or principal promised. Therefore, from July 2014, the Defendant received a new loan and received a new loan to appropriate it for the purpose of repayment for the existing loan, and thus, did not have any intent or ability to repay the loan even if he/she borrowed money from the victim.

Nevertheless, the Defendant, by deceiving the victim as above, received KRW 6,80,000 from the victim to the new bank account (G) in the name of the Defendant, and acquired KRW 458,550,000 from that time to January 29, 2016, as shown in the attached Table 1, by deceiving the victim, and by deceiving the victim.

2. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against victims H;

On October 28, 2014, the Defendant made a false statement to the victim H that “The Defendant is running a business of lending used cars together with the family-friendly Gu. When lending money, the Defendant purchased used cars, or borrowed money to the person who borrows money as collateral for used cars, and if he/she fails to repay the money, he/she would pay the interest on every 8-9 of the month if he/she lends money.”

However, in fact, the Defendant did not operate a business related to used cars, and attempted to receive interest from a lender for the related work. However, there was no property owned by the Defendant, and even if the lender was unable to guarantee the interest or principal that was promised, it was not possible to receive a new loan from July 2014 to use it for repayment of the existing loan, so even if he borrowed money from the victim, there was no intention or ability to repay it.

Nevertheless, as above, the Defendant, by deceiving the victim, received KRW 8,500,000 from the victim to the new bank account (G) in the name of the Defendant, and acquired KRW 53,390,000 in total 44 times from that time to January 20, 2016, as shown in the attached Table 2 of Crimes List 2.

Summary of Evidence

1. Entry of the defendant in part of the protocol of the first preparatory hearing;

1. The prosecutor's statement concerning the F;

1. Second time a protocol concerning the examination of suspect of the defendant (including the part concerning H replacement);

1. The police statement of H;

1. Investigation reports (report on confirmation of details of transactions) and investigation reports (report on the hearing of I statements);

1. A loan certificate, specification of transactions, inquiry into the results of transfer by the Korean bank, inquiry into the results of transaction, replys to the contents of Sns message, details of transaction, e-mail, and statement of deposits;

Application of Statutes

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

Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347(1) of the Criminal Act (including fraud against victim H), and Article 347(1) of the Criminal Act (the choice of imprisonment, including fraud against victim F),

1. Aggravation for concurrent crimes;

Article 37 (Aggravation of Concurrent Punishment of Specific Economic Crimes (Fraud) provided for in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), Article 38 (1) 2, and Article 50 of the Criminal Act)

1. Reduction of a small amount;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following grounds for sentencing has been repeatedly taken into consideration for favorable circumstances)

Judgment on the Defendant and defense counsel's argument

1. Summary of the assertion

Although the Defendant borrowed KRW 458,550,00 from the Victim F, and KRW 553,390,00 from the Victim H respectively, it was true that the Defendant borrowed KRW 553,390,00 from the Victim H, the Defendant did not specifically explain the source of the use of the funds at the time of each loan, and the victims knew of the fact that the Defendant would invest in the personal bonds, but the victims knew of the investment from the Defendant. Furthermore, the Defendant did not avoid returning until May 2, 2015 through June 6, 2015, and had the intent and ability to repay the money borrowed from the victims. Accordingly, with respect to the money borrowed before May 6, 2015, the victims did not deceiving the victims related to the source of the use of the funds and did not have the scope of defraudation. Furthermore, the victims should be excluded from the amount of the borrowed money that was not subject to the initial accusation by recognizing that the settlement of payment had been completed.

2. Determination

A. In a case where, in borrowing money from another person, the other party has failed to comply with the true notice about the purpose of the borrowed money or the method of raising funds to be repaid, and where money has been received by notifying the other party of the fact contrary to the truth as to such purpose or method of raising funds to be repaid, fraud is established (see, e.g., Supreme Court Decision 2003Do5382, Sept. 15, 2005).

B. The Defendant first asserted that the money borrowed from the victims was actually used for the same loan business for the purpose of the same loan business and later used for personal bonds. The victims borrowed money without a specific explanation from the Defendant regarding the place of using the funds and that the Defendant was aware of the circumstances in which the Defendant used the money for personal bonds. However, in light of the following circumstances, it is difficult to view that the Defendant used the money borrowed from the victims for the bond sale business or the debt collection business or the used vehicle sale and borrowing business, and it is difficult to view that the failed person was aware that the Defendant was operating the personal bonds business.

① The Defendant asserted that he first borrowed KRW 6.8 million from the Victim F for the purpose of purchasing a claim from J on August 16, 2014, but in fact, he lent it to the operator of the illegal gambling site he knows to J (Evidence No. 324 through 325). Moreover, the Defendant stated that he was prepared to engage in the debt collection business with J, but did not return the investment amount because he was not well prepared to do so. Therefore, the Defendant appears to have lent part of the amount borrowed from the Victim F to the person who became aware of it through J, and cannot be deemed to have used it for the debt collection business related to J.

② Examining the money borrowed from the victim H, it is found that the Defendant was aware of the fact that the Defendant lent money to and received interest from the Defendant, but did not engage in the automobile transaction-related lending business with I (see, e.g., investigation report to I, evidence page 361), and that the Defendant also stated that the Defendant was not able to engage in the automobile transaction-related lending business (see, e.g., Supreme Court Decision 117 pages) and that the Defendant was not able to pay one’s own profits because the loan itself was not significant (Evidence No. 117 pages), and that the Defendant’s bank transaction statement was only part of the money that the Defendant sent to I out from the victims.

The victims consistently stated that the Defendant loaned money to the Defendant for the purpose of lending funds to make an investment in the business of buying and selling bonds, collecting debts, and buying and lending used cars, and that the Defendant was aware of the fact that the Defendant did not operate such business and did not return the money (Evidence No. 26, 27, 115, 117). The Defendant stated that there was no doubt as to whether the Defendant used the borrowed money for personal bonds (Evidence No. 26, 27, 115, 117). In light of the fact that the victims excluded the amount of money settled at the time of the filing of the complaint from the amount of money settled and the Defendant mainly issues the Defendant’s return prohibition, it is difficult to deem that the victims made a false statement.

④ The victims borrowed money at a high interest rate, not in their own money, and lent money to the Defendant. It is difficult to view that the victims received a loan without a specific explanation as to the method of the victims to pay profits from their lending money, or the Defendant was aware that the Defendant merely engaged in an individual bond business, and that the Defendant was aware of the fact that the Defendant was operating an individual bond business in light of the ns dialogue between the victim H and the victim, but only the content of the above conversation is about the interest rate and the loan period.

D. Ultimately, it is recognized that the defendant made an investment in the bonds sale or collection business to the victims, or made a false statement as if he/she was to pay interest with the profits from used cars, thereby borrowing money from the victims as stated in the facts constituting a crime.

E. The Defendant asserts that there was no intention to acquire money from the victims because the money that he left to his own at the time was 160 million won or more. However, even if the Defendant borrowed money on the ground of the high interest rate and used it for the purpose of repaying the existing debt, which mainly was urgent, or the other party would have failed to comply with the true notice of the purpose of the loan or the method of raising the funds to be repaid, even if the money was received by notifying the fact contrary to the truth, the crime of fraud is established, and the conclusion is not different solely on the basis of the fact that the money was provided as security for the loan or the property that could be provided or secured (see, e.g., Supreme Court Decision 2003Do3686, Apr. 13, 2006).

F. As seen earlier, as long as the Defendant received money in the name of the borrowed money by deceiving the victims, the full amount of the borrowed money shall be deemed to be the fraud amount, and even if the Defendant subsequently repaid the principal and interest (a part of them is repaid by means of a so-called return prevention) and the settlement of accounts is completed, it shall not be deducted from the fraud amount.

Reasons for sentencing

1. Scope of applicable sentences under law: Imprisonment with prison labor for one year and six months to twenty years;

2. Application of the sentencing criteria;

(a) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes;

[Extent of Recommendation] General Frauds Type 3 (at least KRW 500,000, less than KRW 5000,000)

[Special Mitigation] Where considerable damage has been recovered;

B. Fraud

[Extent of Recommendation] Types 2 (at least KRW 100,000, less than KRW 500,000), General Fraud (at least KRW 10,000,000)

[Special Mitigation] Where considerable damage has been recovered;

(c) The scope of final sentence according to the standards for handling multiple crimes: One year and six months from June to five years;

3. Determination of sentence;

In light of the fact that the defendant deceivings the victims, thereby deceiving the victims of KRW 458,50,00 from the victim F, and KRW 553,390,00 from the victim H, and that the sum of the defraudation amount reaches approximately KRW 1 billion, the victims did not agree with the victims, but the victims did not have reached an agreement with the victims, which led to the defendant's heavy liability due to the crime of this case and the situation where the defendant applied for individual rehabilitation, which led to the occurrence of the defendant's severe punishment against the defendant, the criminal liability of the defendant is heavy.

However, the victims concluded a high rate agreement on interest rates exceeding the limit of the Interest Limitation Act and received actual interest. The victims' desire to get interest or profit from the above high rate has contributed to the occurrence of the instant case. The Defendant paid 498,910,000 won to the victim F with the principal and interest of each loan up to now, and 540,500,000 won to the victim H (in addition, the Defendant deposited 2,200,000 won) with the principal and interest of each loan, and the Defendant has no record of punishment heavier than the fine or the same criminal punishment. In addition, the Defendant’s age, character and behavior, motive for the crime, means and consequence of the crime, the circumstances after the crime, and the relationship between the victims and the victim, etc. shall be determined as per the order, taking into account all the kinds of punishment shown in the argument of the instant case.