A. Violation of the Act on the Aggravated Punishment of Specific Economic Crimes (Fraud)

(b) Fraud;

C. Breach of trust

1.(a)(c) A;

2.(a) B

Defendants

Kim Jong-Un (Court) (Court of Justice) (Court of Justice) (Court of Justice)

Criminal AdministrationC (in accordance with Defendant A)

Attorney CA, CB

Attorney D, DA (for Defendant B)

Chuncheon District Court Decision 2012Gohap13,14 (Consolidated), 93 (Consolidated) Decided January 15, 2013

Decision and 2012 Seocho80 Compensation Order

September 11, 2013

The part of the defendant's case among the judgment of the court below shall be reversed.

Defendant A shall be punished by imprisonment with prison labor for a period of two and a half years, and by imprisonment for a period of two years.

However, with respect to Defendant B, the execution of the above punishment shall be suspended for three years from the date this judgment becomes final and conclusive.

1. Summary of grounds for appeal;

A. Defendant A

(1) misunderstanding of facts

(1) The part concerning fraud against victim E and F

In light of the fact that the above victims were well aware of their use of the money and that the above F was involved in the use of the said money, the court below determined this part of the facts charged as a crime by mistake of fact, despite the fact that the above defendants could not be deemed to have taken money by deceiving the victims.

(2) Fraudulent part against victim G

Since the above defendant invested in accordance with the investment agreement with the above victim but was unable to return the investment money due to other unavoidable circumstances, the court below found the defendant guilty of this part of the indictment by misunderstanding the facts, notwithstanding the fact that the above defendant cannot be said to have acquired the money from the above victim.

③ The part of fraud against the victim H

Despite the fact that the above defendant had not taken money by deceiving the above victim, the court found the defendant guilty of this part of the charges by misunderstanding the fact.

④ Breach of trust

Since the above defendant purchased real estate owned by the victim from the victim company and actually paid down payment, as long as he was appointed as the representative director of the victim company, the above defendant cannot be deemed to have committed a breach of trust against the victim company even though he did not pay the down payment and provided the above real estate as security, the court below convicted the victim company of this part of the facts charged.

2) Unreasonable sentencing

The punishment of the court below (five years and six months of imprisonment) is too unreasonable.

B. Defendant B

1) misunderstanding of facts and misapprehension of legal principles

Although the above Defendant did not have conspiredd Defendant A to commit the crime of fraud with the victim H, the lower court erred by misapprehending the legal doctrine or thereby convicted the Defendant of the facts charged.

2) Unreasonable sentencing

The punishment of the court below (three years of imprisonment) is too unreasonable.

2. Determination

A. Determination on Defendant A’s grounds for appeal

1) Judgment on the assertion of mistake of facts

A) The part of fraud against the victim E and F

The above defendant denied the crime against the above victims. The court below found the following circumstances acknowledged by the evidence duly adopted and investigated by the court below. ① After the above defendant graduated from an elementary school, the above defendant merely conducted public records related to auction, and did not have any certificate of qualification related to real estate-related education. The above defendant was offered to the court alone from 2006 to 2008, but there was no real estate where profit was realized. ② The above defendant did not pay the profit or return the principal of the investment in addition to the investment profit 6.3 million won prescribed to be paid every month. ③ The above defendant borrowed the above defendant's real estate at the request of the victim E, including the fact that the above defendant was located in a remote place, and the right to acquire the real estate at any time is so low in economic value and it is very difficult to do so. ④ Even if the defendant's investment in the above defendant's credit card was returned to the victim's bank, the above defendant's investment in the above amount was returned to 300 million won or more.

Examining the above judgment of the court below in light of the evidence duly adopted and examined, the judgment of the court below is sufficiently acceptable, and the above defendant asserted that 300 million won out of the investment funds received from the victim E was lent to the court. However, prior to August 19, 2009, prior to the time when the above defendant started to lend to the court, the above defendant already used the victim E's investment funds, and the above defendant paid 6.3 million won each month to the victim E as investment earnings, not from the investment profits, but from the investment funds received from the victim. In addition, this part of the facts charged can be sufficiently convicted. Accordingly, since the above defendant's judgment of the court below cannot be deemed to have erred by mistake of facts as alleged by the above defendant, the above defendant's allegation in this part of the facts is without merit.

B) The part concerning the fraud against the victim G

The above defendant denied the above crime against the above victim. The court below found the defendant guilty of this part of the charges by taking into account the following circumstances acknowledged by the evidence duly adopted and investigated: ① the above defendant paid 61,064,000 won out of 200 million won investment money received from the above victim as an auction deposit, which was not related to the real estate that was to acquire the whole of the above investment money; ② the above defendant received 53,00,000 won from the above victim before purchasing the real estate in the auction procedure; ③ the above defendant received 53,00 won as the registration expenses to the above victim before purchasing the real estate at the auction procedure; and ③ the above victim failed to recover the investment money at all.

Examining the above judgment of the court below in light of the evidence duly adopted and investigated, the judgment of the court below is sufficiently acceptable, and this part of the facts charged is sufficiently convicted, in addition to the following circumstances that are acknowledged by the above evidence, that the above defendant purchased dongsan, which was to be acquired as investment funds by the above victim, at the auction procedure, but did not return investment funds to the above victim due to actual operation and provisional seizure, so the above defendant did not have a criminal intent to commit fraud. However, as seen above, the above defendant used the above defendant to acquire investment funds from the above victim for a purpose unrelated to the movable property, and purchased the above real property due to the money borrowed from others. Accordingly, this part of the facts charged cannot be deemed to have been erroneous as alleged by the above defendant. Thus, this part of the judgment of the court below is without merit.

C) The part on fraud against the victim H

The above defendant denied the above crime against the above victim. The court below found the defendant guilty of this part of the charges by taking account of the following circumstances acknowledged by the evidence duly adopted and investigated: ① lending 34.3 million won to K with respect to the above victim's apartment house, and the above victim's right to collateral security was established with respect to the apartment owned by K, without notifying the above victim upon repayment of the above loan; ② the above defendant purchased the above victim's land and the five-story building, which was 50 million won paid by the above victim, and purchased the above victim's land and the five-story building at the auction procedure and did not register the ownership transfer to the victim's name; ③ the above defendant did not pay the above victim's loan with the above victim's deposit amount of KRW 460 million,000,000,000,000,000 won, and paid debt to N out of the above loan amount.

Examining the above judgment of the court below in light of the evidence duly adopted and examined, the judgment of the court below is sufficiently acceptable, and the above defendant bears a large number of obligations at the time when the above defendant borrowed money from the above victim or received a payment of investment money, that is, the above defendant's property value of the above real estate was below because it is difficult for the above defendant's real estate to be commercialized because the right to collateral security was established or shares were only owned, and the above defendant's real estate acquired at the auction procedure was not good enough to the extent that the real estate in the above defendant's name was seized. In addition, this part of the facts charged can be sufficiently convicted. Accordingly, the court below's judgment did not err in the misapprehension of facts as alleged by the above defendant, and there is no reason to reverse this part of the defendant's assertion.

D) Part on breach of trust

The above Defendant denied the crime of breach of trust even in the lower court. The lower court found the Defendant guilty of this part of the charges by comprehensively taking account of the following circumstances acknowledged based on the evidence duly admitted and investigated: ① the Defendant: (a) purchased eight parcels of land, such as Macheon-si P, and above-ground bathing building, in the purchase price of KRW 2,850,000,000, and paid the down payment of KRW 250,000,000,000 to be remodeled within the above building; (b) the Defendant was appointed as the representative director before paying the remainder; and (c) the Defendant failed to pay KRW 170,000,000,000 which was borrowed to purchase the above real estate; and (c) completed the registration of the right to request the transfer of ownership of the above real estate to the creditor; and (c) pursuant to Article 9(4) of the sales contract, the said Defendant did not provide the above real estate as security after this contract.

Examining the above judgment of the court below in light of the evidence duly adopted and examined, the judgment of the court below is sufficiently acceptable, and the remaining 2.5 billion won out of the purchase price of the above real estate is to be paid in lieu of succeeding to the above Defendant’s loan obligation. The above Defendant did not succeed to the above loan obligation, and the above Defendant did not pay interest on the above loan from November 1, 2010, but did not pay the above interest, and the above Defendant made a registration of the right to request the transfer of ownership as above without paying the above interest, this part of the facts charged can be fully convicted. Accordingly, the court below’s judgment cannot be deemed to have erred in the misapprehension of facts as alleged by the above Defendant. Thus, this part of the judgment of the court below is without merit.

2) Determination on the assertion of unreasonable sentencing

The crime of this case committed by the above defendant by deceiving a large number of victims, thereby causing damage to KRW 170 million by committing a breach of trust. Considering that the crime of this case was committed in light of the following: (a) the nature of the crime is not good; and (b) the extent of damage to victims is very serious; and (c) the extent of damage to the victims is very serious.

However, in full view of the fact that the above defendant had no history of criminal punishment exceeding the fine prior to the instant case, victim E and F were recovered from partial damage, and the victim E was deemed to have recovered from additional damage in the auction procedure conducted on the real estate owned by the above defendant. The victim G and H wanted the defendant's wife at the time of the trial, the above defendant's depth divided into depth, and the above defendant reflects the defendant's wrongness, and all of the sentencing conditions shown in the instant argument, such as the above defendant's age, character, character, environment, motive, means and consequence of the criminal conduct, etc., the sentence imposed by the court below is too unreasonable.

B. Determination on Defendant B’s grounds of appeal

1) Judgment on misconception of facts and misapprehension of legal principles

Defendant B asserted that he did not conspired with Defendant A even in the lower court. The lower court found Defendant B guilty of the charges against Defendant B by taking full account of the following circumstances acknowledged by the evidence duly adopted and investigated: (i) Defendant B was employed in Q Q operated by the said A to sell real estate at auction; (ii) Defendant B introduced a large number of real estate assets, including land and buildings, to Defendant B; (iii) Defendant B explained the victim H about the place of use of KRW 35 million; and (iv) Defendant B carried out duties by going through Q Q’s passbook or the passbook’s passbook; and (v) Defendant B periodically transferred certain funds from the passbook under the name of Defendant B to the passbook under the name of Defendant B.

In light of the evidence duly adopted and examined by the lower court, the lower court’s determination is sufficiently acceptable. In addition to the following circumstances that are acknowledged by the evidence, namely, the victim H was directly requested by the Defendant B at the time of lending money to the Defendants or paying investment money, the Defendant B also recognized that the Defendant gave guidance to the person making an inquiry in Q Q operated by the Defendant A, and that Defendant B was in office as the auditor of the R operated by the Defendant A, the lower court’s prosecution room against the Defendant B is sufficiently convicted. Accordingly, the lower court’s judgment cannot be deemed to have erred by misapprehending the legal doctrine as alleged by Defendant B, and thus, Defendant B’s assertion of mistake and legal reasoning is without merit.

2) Determination on the assertion of unreasonable sentencing

Considering the fact that Defendant B conspired with Defendant A and obtained approximately KRW 780 million from Victim H, and that there is a big scale of damage, Defendant B should be punished strictly.

However, Defendant B did not have any history of criminal punishment prior to the instant case, and the degree of participation in the instant crime or of enjoying the benefit of the instant crime is relatively little, and the said victim wants the Defendant’s wife by mutual consent with the said victim at the time of the trial, and taking full account of the above Defendant’s age, character and conduct, environment, motive, means and consequence of the crime, and all of the sentencing conditions specified in the instant pleadings, such as the circumstances after the crime, it is unfair that the lower court’s sentence imposed on the said Defendant is too unreasonable.

3. Conclusion

Therefore, since the court below's lawsuit on the defendants' assertion of unfair sentencing regarding the part of the defendant's case is well-grounded, under Article 364 (6) of the Criminal Procedure Act, the part of the defendant's case among the judgment below is reversed and it is decided again

Criminal facts and summary of evidence

The summary of the facts constituting an offense and evidence recognized by this Court is identical to the entries in each corresponding column of the judgment below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

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

A. Defendant A

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347 (1) of the Criminal Act

[No. 1-A. Fraud.... However, the upper limit of imprisonment is the former Criminal Code (Law No. 15, Apr. 15, 2010).

Imprisonment with prison labor for a period of 15 years pursuant to the main sentence of Article 42 (amended by Act No. 10259; hereinafter the same shall apply)

C. Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347 of the Criminal Act

Articles 1 and 30 [Article 2-2, 2-2, 30, 200, 300, 3000,000,000

Article 42 (15 years of Imprisonment with prison labor pursuant to the main sentence of Article 42) and Article 347 (1) of each Criminal Act.

B. Each fraud in subsection b, imprisonment choice), Articles 347(1) and 30 of the Criminal Code (Article 2-A of the Decision).

The fraud, the choice of imprisonment, and Article 355(2) and (1) of the Criminal Act (the occupation of breach of trust and the choice of imprisonment)

B. Defendant B

Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347(1) of the Criminal Act

Article 30 [Article 2-B of the Decision 2-B. The point of fraud, inclusive, the upper limit of imprisonment shall be

Article 42 (15 years of Imprisonment pursuant to the main sentence of Article 42), Articles 347 (1) and 30 (Decision 2) of the Criminal Act

(a) The point of fraud, and the choice of imprisonment

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Discretionary mitigation;

Defendants: Articles 53 and 55(1)3 of the Criminal Act (the favorable reference to the grounds for the above reversal)

C)

1. Suspension of execution;

Defendant B: Article 62(1) of the Criminal Act ( considered as being favorable to the above reasons for reversal)

Second Chief Judge Ock-be

Kim Jong-tae

Long-term salary