Defendant

Clerks (prosecutions) and Kim Sang-hoon (prosecutions, public trials)

Attorney Han-chul et al.

A defendant shall be punished by imprisonment for four years.

" 2016 Highly 7"

The Defendant knew on May 2012 that Nonindicted Co. 1 owns a building (hereinafter referred to as “○○○○○○○○○○ building”) located in the Gansi-si District through Nonindicted Co. 2 (hereinafter referred to as “Nonindicted Co. 2”) that Nonindicted Co. 1’s own operation, the Defendant: (a) known that Nonindicted Co. 1 owns the building (hereinafter referred to as “○○○○○○○○○ building”) located in the Gansi-si-si District ( Address 1 omitted); and (b) told the victim that “it is difficult to sell the house for the purpose of receiving taxes; (c)” from the victim, he would sell the house at a low price; and (d) tried the victim to proceed with his business using the victim’s building.

around August 22, 2012, the Defendant: (a) at the office of Nonindicted Co. 3 (hereinafter “Nonindicted Co. 3”) operated by the victim (hereinafter “Nonindicted Co. 3”), Nonindicted Co. 3, Ltd. (hereinafter “Nonindicted Co. 3”), Nonindicted Co. 3, 201, 939,295 won (Nonindicted Co. 3:65,350, 470 won, Nonindicted Co. 1:2,293, 293, 200 won, Nonindicted Co. 3, 293, 200, 300 won, Nonindicted Co. 3, 293, 293, 277, 828 won, Nonindicted Co. 35, 300, 200, 205, 2005, 207, 2000 won, and 300,000 won, 205.

However, the Defendant had no intention or ability to deliver the amount of KRW 3,486,939,295 (hereinafter “agreement”) to the victim by December 31, 2012, on the grounds that the Defendant, even after receiving the ○○○ building from the victim, was thought to use the building as collateral, and that the amount of taxes in arrears is equivalent to KRW 41.7 million.

Nevertheless, the Defendant, by deceiving the victim, paid KRW 10 million from the victim the same day, and received 100,000 shares of Nonindicted Company 2 from both Nonindicted Company 2 and acquired ○○○○○○○ building equivalent to KRW 3,486,939,295, which was owned by Nonindicted Company 2.

" 2016, 11"

around March 2014, the Defendant listened to the statement that the funds need to be needed for the promotion of the Incheon Filidong Urban Development Project from the victim Nonindicted Party 1 in the vicinity of the Dogdong 1st floor coffee in Seongdong-gu, Seoul ( Address 4 omitted), and the victim falsely speaks that “B shall enter into a business agreement with the said company so that it may make an investment in non-performing loans, and shall make it possible to make a loan to the said company.” On April 2014, the Defendant continued to obtain approval for the establishment of the business agreement from the Defendant on the part of the police officer of the Hong Kong branch in the middle of the April 2014. The approval was given to the Hong Kong headquarters. The approval was given to the Hong Kong headquarters. The Defendant would have borrowed the above business agreement to the victim in front of the fact that the conclusion of the business agreement was imminent, and thus, it would not be possible to lend the funds to the victim under the name of the party to use the funds rapidly.”

However, in fact, even if the defendant borrowed money from the victim for the purpose of the asset management company's acquisition fund, the defendant was planned to pay the debt, and even if requested to return it, he did not have the intent or ability to pay it immediately, and there was no intention or ability to enter into the business agreement with the victim and the executive capital.

As above, the Defendant, by deceiving the victim as above, received KRW 50 million from the victim as the borrowed money on April 30, 2014, and KRW 10 million as the expenses necessary for obtaining approval of the business agreement on June 9, 2014, from the national bank account under the name of the Defendant.

" 2016 Highly 7"

1. Partial statement of the defendant;

1. Each legal statement of the witness, Nonindicted 1 and Nonindicted 4

1. A written contract for acceptance of stocks, and a full certificate of registered matters (○○○);

1. Investigation report (the investigation of the purchaser of the real estate), investigation report (the investigation report ○○○○○○ 101, Nonindicted 21), and investigation report (the credit information of the suspect);

" 2016, 11"

1. Defendant's legal statement;

1. The prosecutor’s statement concerning Nonindicted 1

1. A note, a business plan, details of remittance, and certificate of account transfer;

1. 증거자료제출서류 및 첨부 각 녹취서와 명함사본(피고인), 수사보고(고소인 ♤♤♤♤♤ 공소외 22 녹취록 제출) 및 첨부 녹취록, 각 계좌거래내역

1. Article applicable to criminal facts;

Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 13719, Jan. 6, 2016); Article 347(1)2 of the Criminal Act (Fraud)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (Aggravation of Concurrent Crimes in Punishment of Fraud against Non-Indicted 1 Victims with More serious Crimes)

1. Scope of applicable sentences under law: Three years to forty-five years of imprisonment;

2. Application of the sentencing criteria;

○ Fraud against Nonindicted 1 of the victim

【Scope of Recommendation】

General Fraud> Type 3 (at least 500 million won, less than 5 billion won), the basic area (at least 3 years to 6 years)

○ Fraud against Nonindicted 1 of the victim

【Scope of Recommendation】

General Fraud> Type 3 (at least 500 million won, less than 5 billion won), the mitigation area (at least 6 months to 4 years).

[Special Mitigation]

Where punishment is not imposed or damage is recovered from a considerable part;

* The scope of final sentence due to the aggravation of multiple offenses: 3 years to 8 years

3. Determination of sentence;

The fact that the Defendant recognized the crime of fraud against the victim Nonindicted 1, that the Defendant agreed with the victim Nonindicted 1, that the Defendant did not have any previous charge or sentence, is favorable to the Defendant. On the other hand, the fact that the defrauded of the crime of fraud against the victim Nonindicted 1 is a large amount of money, and that the damage to the victim Nonindicted 1 was not recovered is an unfavorable condition to the Defendant.

In full view of such circumstances and other circumstances as the defendant's age, character and conduct, environment, motive, means and consequence of the crime, and circumstances after the crime, the punishment as ordered shall be determined in the same manner as the sentencing conditions specified in the instant case.

1. As to the argument that the defendant did not have any criminal intent by deception

A. Summary of the assertion

Although the Defendant was unable to perform the obligation to pay the agreed amount pursuant to the share acquisition contract (hereinafter “instant contract”) on August 22, 2012 with the victim Nonindicted Co. 1, the Defendant did not conclude the instant contract with the intention of deceiving ○○○○ building (hereinafter “Nonindicted Co. 2”) without intent to perform the obligation to pay the agreed amount pursuant to the instant contract from the beginning. However, the Defendant did not conclude the instant contract with the intention to acquire ○○○○ building (hereinafter “the first and second floors owned by Nonindicted Co. 2”) by investment in kind at the time of capital increase issued by Nonindicted Co. 6 Co. 6 (hereinafter “Nonindicted Co. 6”), and explained to the victim Nonindicted Co. 1 that he would pay the agreed amount to the victim Nonindicted Co. 1, etc. in cash either disposed of or provided as security. However, the Defendant failed to perform the obligation to pay the agreed amount with respect to the victim Nonindicted Co. 1, etc. as such participation

B. Determination

Comprehensively taking account of the following circumstances acknowledged by the evidence as seen earlier, it is sufficiently recognized that the Defendant had intention to acquire ○○○ building by deception. Accordingly, the above assertion by the Defendant and the defense counsel is not acceptable.

1) From October to December 2014, the Defendant sold the first floor and nine units of the second floor of the ○○○○ building owned by Nonindicted Co. 2, which was acquired from the victim Nonindicted Co. 1, etc. (No. 101 to 107, and No. 201 to 202 of the second floor) to seven units of the ○○○○○○ building owned by the victim Nonindicted Co. 1, etc. to the total number of seven units of the ○○○○○○○○○ building. The Defendant, as well as the extended payment date, on December 31, 2012, which was the date of payment under the instant contract, was the extended payment date, even on June 30, 2014, disposed of the building to Nonindicted Co. 1 and Nonindicted 4 without any prior or subsequent contact with the third party.

2) 부동산등기부등본에 의하면, 피고인은 위와 같이 7명에게 ○○○○ 건물의 1층과 2층을 호실별로 나누어 매도함으로써 그 매매대금으로 40억 원 이상을 취득한 것으로 보인다(피고인은 부동산등기부등본상 기재된 거래가액은 실제 거래가액보다 부풀려진 액수라고 주장하나, 101호의 매수인 공소외 12, 105호와 106호의 매수인 공소외 19의 각 진술 등에 비추어 보면, 등기부상 거래가액은 실제 거래가액을 그대로 반영한 것으로 보인다). 위 매매대금에서 ① 피고인이 인수한 공소외 5 은행 대출채무를 대환하면서 발생한 공소외 9 저축은행에 대한 대출원리금 14억 원 상당, ② 임대차보증금 반환채무 2억 7천만 원 상당, ③ 피고인 주장에 따르면 공소외 6 회사의 자회사인 ◁◁◁◁◁◁(DUANI)를 인수하기 위하여 발생하였다는 근저당권부 채무 3억 원 상당 등을 제외하더라도, 피고인은 적어도 20억 원 이상을 이 사건 계약과는 아무런 관련이 없는 개인적인 채무 변제, 체납세금 납부 등 개인적인 목적으로 사용하였다. 더욱이 이 사건 계약에 따르면 위 공소외 9 저축은행에 대한 대출원리금은 원래부터 피고인이 부담하여야 할 부분으로서 이를 변제한 것은 실질적으로 피고인의 개인 채무를 변제한 것이나 다름없으므로, 이러한 점까지 고려하면 피고인이 이 사건 계약의 이행을 위해서가 아니라 개인적인 목적으로 사용한 액수는 더욱 커진다. 피고인은 이처럼 ○○○○ 건물을 처분함으로써 위와 같은 거액을 받았음에도 피해자 공소외 1 등에게는 약정금의 일부조차 지급하지 않았다.

3) As the Defendant continued not to perform the obligation to pay the agreed amount, the victim Nonindicted 1 made several statements to the effect that if the payment of the agreed amount is difficult, the Defendant would return the ○○○ building to the Defendant. The Defendant asserted that even though having requested appraisal of the market price of the ○○○ building, it was lower than what he anticipated, and the relationship with the △△○○ building was also based on the relationship with the △△○○○ building, which was difficult to make a contribution in kind to Nonindicted Company 6. However, if it was difficult for the Defendant to ○○○ building on the grounds as alleged by the Defendant, as the Defendant alleged by Nonindicted 1, the Defendant could have been exempted from the responsibility for the nonperformance of the instant contract by giving the ○○○ building to the victim Nonindicted 1, etc., for long time, as the Defendant continued to maintain the right to dispose of the ○○○ building, as seen earlier, the Defendant continued to dispose of the ○○ building first after the victim and used it for personal purposes.

4) The contract of this case is prepared on the part of the defendant, and Article 3 (1) of the contract provides that "if the acquisition of shares takes effect, each party shall not rescind this contract." In other words, apart from the cancellation on the ground of deception or mistake, the defendant, once he takes over the shares of the non-indicted 2, even if he does not perform his obligation to pay the agreed amount in return, he cannot exercise the right of rescission on the ground of non-performance of obligation. Furthermore, if he directly disposes of the ○○ building to a third party or directly disposes of the ○○ building to the non-indicted 6 company, as argued by the defendant, he does not need to have the right of disposal on the ○○○ building (the shareholder of the non-indicted 2 company cannot be seen as an obstacle to the investment in kind of the non-indicted 1 on the ground that the victim is the non-indicted 1, etc.) so that the defendant had the right to dispose of the building from the beginning to the non-indicted 1, thereby securing the right to dispose of it.

5) According to the consistent statement made by the victim non-indicted 1 and the statement made by the non-indicted 4 in this court, it appears that the defendant explained the victim non-indicted 1 about the method of cashing the ○○○○ building with capital increase by issuing new shares of the non-indicted 6 was not at the time of the conclusion of the instant contract, but at the beginning of 2013. Even if the defendant mentioned the victim non-indicted 1 about the method of cashing through the non-indicted 6 at the time of the conclusion of the instant contract, the instant contract does not mention any mentioning that the defendant would dispose of the ○○○○ building through the real estate sale team held by the victim non-indicted 1, and that the defendant would sell the ○○○ building through the real estate sale team held by the victim non-indicted 1, and that the defendant held the 80 foot apartment building near Seoul Forest and paid the agreed amount without the formation of the agreement by disposing of the ○○ building with the victim or the defendant's trust in the process.

6) The Defendant asserts that, around August 2012, 2012, at the time of the instant contract, around the market price of 3.9 billion won under the name of Non-Indicted 15 of his wife, the Defendant had the ability to repay the said apartment. However, according to the copy of the instant apartment register, Non-Indicted 15 was the date of receipt of the registration of ownership transfer regarding the said apartment on January 2, 2013, which was several months after the date of receipt of the instant contract, as well as on January 2, 2013, the date of receipt of the registration of ownership transfer, which was the time after the date of receipt of the said registration, and the registration was completed after the receipt of the registration of establishment of new bank of the right to collateral security, Non-Indicted 25, 24,000 won (the maximum debt amount) and the maximum debt amount of the mortgage amount of KRW 1.47,000,000,000,000,000.

2. As to the assertion regarding the amount of fraud

A. Summary of the assertion

Even if the defendant is guilty, there is no objective market price data at the time of the contract of this case concerning the value of ○○○○ building, which serves as the basis for the amount of fraud of this case. Thus, the contract amount of this case shall not be deemed to be the amount obtained through deception, but shall be determined based on the value of ○○○○ building based on the tax calculation data (Evidence 4) based on the publicly assessed individual land price. The market price based on the above tax calculation data is KRW 1.567 million, and in this context, the amount obtained through deception of this case is below KRW 50,00,00,000,000, and if Nonindicted 5 bank loans and the obligation to return lease deposit are deducted, the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Article 37

B. Determination

In full view of the following circumstances acknowledged by the evidence as seen earlier, namely, ① the victim Nonindicted 1 stated that the amount of KRW 4 billion was added to the new construction of the entire ○○○ building; ② as seen earlier, the Defendant sold the ○○○○ building with a total of at least KRW 4 billion from October to December 12, 2014; ③ the amount that the Defendant provided by the purchaser of each ○○○ building to a financial institution as security to the financial institution is corresponding to the above transaction price; ④ the officially assessed individual land price is difficult to deem that the amount agreed upon under a contract with the victim Nonindicted 1, etc. is well reflected in the actual value of the ○○○○ building except for the amount secured by Nonindicted 5’s secured debt and the lease deposit. Accordingly, the Defendant’s assertion is rejected.

Judges Lee Chang-he et al. (Presiding Judge)

주1) 공소사실에는 ‘○☆○○’로 기재되어 있으나, 부동산등기부등본상 기재대로 ‘○○○○’로 한다.

(2) The facts charged are as follows: “The amount of taxes in arrears is equivalent to KRW 100 million, and the amount of personal debts is equivalent to KRW 500 million,” but only the portion acknowledged by evidence is recorded in the facts charged.