Defendant

Defendant

Kim full-time (prosecutions) and stuffing (public trial)

Law Firm Sol Law Firm, Attorney Soh Hyeong-chul

Suwon District Court Decision 201 Gohap433 Decided August 24, 2012

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

1. Summary of grounds for appeal;

(a) misunderstanding of facts and legal scenarios;

The real estate stated in the facts charged in the instant case is not only a donation made by the Defendant from the victim but also a title trust, and there was no deception as to the victim as stated in the facts charged, and the judgment of the court below which found the Defendant guilty of the facts charged is erroneous in

B. Unreasonable sentencing

The sentence of the court below is too unreasonable.

2. Determination:

A. Ex officio determination

In the first instance of the trial, the prosecutor applied for the amendment of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) to change the facts charged as stated in the following facts, and this court permitted the amendment, and the judgment of the court below was modified. Since the above crimes and the remaining crimes are regarded as concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment of the court below cannot be reversed in its entirety.

However, even if there are such reasons for ex officio destruction, the defendant's assertion of misunderstanding of facts and misapprehension of legal principles is still subject to the judgment of this court.

B. Judgment on the assertion of mistake of Fact and law

According to the reasoning of the judgment below and the records, the defendant had been using the above real estate in the name of 00,000 won on June 1, 201, each of which was 00,000 won for 20,000 won for the defendant's use of the above real estate in the name of 0,000 won for 20,000 won for each of 0,000 won and 20,000 won for 20,000 won for 7,000,000 won for 20,000,000 won for 7,000,000 won for 20,000,000 won for 7,000,000 won for 7,000,000 won for 2,00,000 won for 2,00 won for 6,00,000 won for 2,000 won for each of the above land.

3. Conclusion

Therefore, the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, on the grounds of the above ex officio reversal, and it is again decided as follows.

The facts constituting the Defendant’s crime are as follows: “At the time the Defendant completed the registration of the establishment of a mortgage as above, KRW 189,238,00, and KRW 190,00, KRW 190, and KRW 190,00, KRW 208, KRW 200, KRW 36,918,00, and KRW 300, KRW 200, KRW 200, KRW 200, KRW 36,000, KRW 36,00, KRW 30, KRW 40, KRW 200, KRW 200, KRW 200, KRW 165, KRW 100, KRW 200, KRW 208, KRW 208, volume of the above land at the time of the establishment of a mortgage; and the Defendant had, at the same time, omitted the market value of the above piece of land at KRW 4,165,000, KRW 278,274,07.

1. The defendant's partial statement in court below

1. Each of the original judgments made by the witness, Nonindicted 5 and Nonindicted 1

1. Some of the statements made by the prosecution against the accused in the suspect examination protocol (including the part concerning the statement made by the defendant 5);

1. Each police statement made against Nonindicted 5 and Nonindicted 1

1. A certified copy of each register, an appraisal report, or a report on calculation of real estate prices at the time of establishment of mortgage;

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 355 (1) of the Criminal Act [The maximum of the limited imprisonment shall be governed by the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259 of Apr. 15, 2010), Article 355 (1) of the Criminal Act (amended by Act No. 10259 of Apr. 15, 201), Article 357 (1) of the Criminal Act (amended by Act No. 10259 of Apr. 15, 201)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes with punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) with the largest punishment]

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act

The scale of the embezzlement and fraud crime of this case and the profits of the defendant acquired, the motive and background of the crime of the defendant, the circumstances after the crime, and other conditions of sentencing as shown in the records and arguments, such as the age, character and conduct, environment, etc. of the defendant, shall be determined as shown in the disposition.

Judges Park Jong-young (Presiding Judge) Lee Jae-young

Note 1) The facts charged are indicated in KRW 82,170,000, but the recorded amount of KRW 51,810,000 is the officially announced value at the time of committing the crime of land in the above Doluri (number 2 omitted).