Defendant

Defendant

Clerks (prosecutions) and one branch court (public trial)

Attorney Kim Jong-soo (Korean National Assembly Line)

Chuncheon District Court Decision 2016Gohap7, 11 (merged) Decided June 23, 2016

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

However, the execution of the above punishment shall be suspended for three years from the date this judgment became final and conclusive.

Of the facts charged in this case, the charge of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) is acquitted.

1. Summary of grounds for appeal;

A. Fact-finding and misunderstanding of legal principles (the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against Nonparty 1)

1) Although the Defendant did not pay the agreed amount pursuant to the share acquisition agreement (hereinafter “instant share acquisition agreement”) on August 22, 2012 to the victim Nonindicted 1, the Defendant did not pay the agreed amount pursuant to the share acquisition agreement (hereinafter “instant share acquisition agreement”), the Defendant did not have any intent to pay the agreed amount pursuant to the criminal facts stated in the lower judgment. Moreover, the Defendant was unable to implement the plan to participate in the capital increase for new shares issued by Nonindicted 6 Co., Ltd. (hereinafter “Nonindicted 6 Co., Ltd.”) that explained to the victim, not from the beginning, due to the ex post facto circumstances where the plan to participate in the capital increase for new shares issued by Nonindicted 6 Co., Ltd. (hereinafter “Nonindicted 6 Co., Ltd.”) was nonexistent, which was the spouse at the time of the instant share acquisition agreement, under the name of Nonindicted 15, a spouse of the Defendant, and Nonindicted 16 Co., Ltd. (hereinafter “Nonindicted 16”) with the ability of the Defendant to pay the agreed amount under the share acquisition agreement.

2) Even if the Defendant was guilty, the subject matter of the disposal act, which is recognized as a causal relationship with the Defendant’s deception, shall be Nonindicted Co. 2 (hereinafter “Nonindicted Co. 2”), rather than the amount obtained by defraudation of the contract amount under the instant contract. Therefore, the amount obtained by deception shall be determined based on the value of 10,000 shares of the said Nonindicted Co. 2.

B. Unreasonable sentencing

The punishment sentenced by the court below (four years of imprisonment) is too unreasonable.

2. Judgment on misconception of facts and misapprehension of legal principles

A. Summary of this part of the facts charged (the part of the case 2016Gohap7)

Around May 2012, the Defendant knew that the victim Nonindicted Party 1 (hereinafter referred to as “victim” in this paragraph) owns a building (hereinafter referred to as “○○○○○○○○○○○○ building”) located in the Yongsan-si District through Nonindicted Company 2 (hereinafter referred to as “Nonindicted Company 2”) that he/she operates, and knew that he/she owns the building (hereinafter referred to as “○○○○○○ building”) in the Yongsan-si area ( Address 1 omitted), the Defendant: (a) stated that the Defendant would sell the house to the victim; and (b) stated that “it is difficult to sell the house to receive the house; (c) it is difficult for the victim to sell it” from the victim; (d) however, the Defendant was aware that he/she would sell the house at a low price to the victim; and (d) decided to proceed with his/her business using the building owned by the victim.

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”); (b) the Defendant: (c) sold Nonindicted Co. 3’s 16 to the victim; (d) the Plaintiff’s ○○○○ building was the owner of the ○○○○ building; and (e) until December 31, 2012, Nonindicted Co. 2’s 3,101,939,295 won (Nonindicted Co. 3: 65,350,00 won; (d) Nonindicted Co. 3: 153,31,470 won; (e) Nonindicted Co. 1:2,293,277,828 won; and (e) sold Nonindicted Co. 3’s 305,000 won; and (e) purchased shares in the name of Nonindicted Co. 1’s 200,000.

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.

B. Relevant facts

According to the evidence duly adopted and examined by the court below and the trial court, the following facts are recognized:

1) The victim was aware of the fact that the Defendant, one of his high-friendly job offering Nonindicted 18, who was his children, sold the benz car as a daily gift, and was only aware of the fact that “Seoul is well doing business in Seoul.” However, around March 201, the Defendant’s discovery and delivery began several times, and was solicited to make an investment from the Defendant.

2) Upon receiving a recommendation from the Defendant to make an investment, the victim rejected the Defendant’s “not having any money, leaving a commercial building, it is difficult for the Defendant to have no money sold, making an investment in the commercial building, and making an investment in the commercial building without any money,” and on the ground that the Defendant would be able to sell the ○○○ building without any rent at the time of the defect that the Defendant would sell the ○○○ building without any good selling it, and the Defendant would be able to sell the ○○○ building (the amount under the instant contract) and concluded the share acquisition contract with the Defendant (the purport that the above money would result in the Defendant).

3) As stipulated in the instant share acquisition agreement, the Defendant failed to dispose of ○○○ building by December 31, 2012, and did not pay the agreed provisional receipts, etc. to the victim.

4) As the victim urged, the Defendant plans to jointly acquire △△ and Nonindicted Company 6, and the ○○○○ building was invested in kind in order to receive the funds agreed upon by Nonindicted Company 6. In fact, the Defendant did not jointly acquire Nonindicted Company 6 or make a contribution in kind.

5) Meanwhile, on May 21, 2013, the Defendant completed the registration of the establishment of a mortgage over the KRW 300 million to Nonindicted Company 2, the mortgagee, Nonindicted 10, and the maximum debt amount of KRW 300 million on the ○○○ building. On June 12, 2014, the Defendant completed the registration of the establishment of a mortgage over KRW 337,653,350 on the debtor, Nonindicted 11, the mortgagee, the Seoul Special Metropolitan City, the maximum debt amount, and the maximum debt amount of KRW 337,653, and 350 on the ○○ building. On October 21, 2014, the Defendant requested the planning real estate to sell the ○○○○ building

C. Relevant legal principles

The crime of fraud is established by deceiving another person to omit a mistake, inducing a dispositive act, thereby obtaining property or pecuniary gain. The causal relationship between deception, mistake, and property disposal act is required. On the other hand, whether certain acts constitute deception that causes others to be omitted in mistake, and the causal relationship between such deception and property disposal act should be determined generally and objectively in consideration of the specific circumstances as at the time of the act, including transactional situation. Therefore, in a case where the act of the victim or the defendant causing such property disposal is conducted under close relation with the failure or performance of any business that the defendant plans to promote, the existence of deception or causal relationship cannot be determined solely on the basis of the defendant’s financial power or credit status. The relationship between the victim and the defendant, the victim’s awareness and degree of involvement in the relevant business, the victim’s specific circumstances in which the victim took property disposal in relation to the relevant business, the possibility of success of the relevant business, and the victim’s experience and occupation, etc. should be determined generally and objectively (see Supreme Court Decision 2011Do829, Oct. 13, 201).

Meanwhile, insofar as the criminal intent of defraudation, which is a constituent element of fraud, is not the confession of the defendant, it shall be determined by comprehensively taking into account the objective circumstances such as the defendant's financial power before and after the crime, environment, details of the crime, and the process of performing the transaction (see Supreme Court Decision 2004Do3515, Dec. 10, 2004). Whether the crime of fraud is established shall be determined at the time of the act, and it shall not be punished as a crime of fraud on the ground that the defendant's default status arises due to changes in economic conditions after the act (see Supreme Court Decision 2008Do5618, Sept. 25, 2008, etc.).

D. Determination

In light of the fact that the premise of the agreement between the defendant and the victim stated consistently to the effect that the proceeds from the sale of the ○○○ building will be paid as a provisional payment, and the victim and the non-indicted 4 entrusted by the defendant with the complaint of this case, "the defendant did not have the intention or ability to sell the ○○ building and acquired the shares of the non-indicted 2, a company owning the building by deceiving the victim" since the beginning of the case, the victim seems to have been aware of the success possibility of the business to dispose of the ○○○ building rather than the defendant's ability to repay the debt and exceeded the above building. Thus, the issue is whether the defendant, at the time of the acquisition of the above shares, deceiving the defendant about the fact that it would have a significant impact on the decision-making of the victim in relation to the authenticity of the business, progress, or repayment method, and thereby, whether the acquisition of shares by mistake can be deemed to have

In light of the above-mentioned facts, the above-mentioned facts, the relationship between the defendant and the victim, the specific developments and progress of the acceptance of shares, etc., which are acknowledged by the evidence duly adopted and examined at the court below and the court below, the defendant cannot be deemed to have proven without any reasonable doubt that the defendant deceivings the victim as to the authenticity or prospects of the above business, or that the victim transferred shares due to mistake thereof, and the evidence submitted by the prosecutor alone is insufficient to recognize this.

① In light of the content of Nonindicted 4’s statement on the grounds for concluding a contract on the acquisition of shares by the victim, the victim’s purpose is to recover the amount invested in the ○○○○ building through the instant share acquisition agreement, which stated that “The Defendant intended to sell the ○○ building at the beginning of the beginning, but did not meet the amount, and thus, became difficult to operate the building as the real estate price has lowered in 2012.”

② On the other hand, the Defendant did not specifically explain the details of the project, such as the method of disposal, etc., to the victim until before Nonindicted Company 6’s participation in the capital increase with new stocks issued by Nonindicted Company 6 in early 2013, and the victim may not demand any confirmation or explanation.

③ The victim stated in the investigative agency that “the defendant owned several thousand square meters apartment buildings in Seoul Forest area, and the son was aware of the son and transferred the son as a matter of course” (the prosecutor’s statement) and in the court of original instance, “the defendant’s father knew that son was neighboring and well aware of her business or gave a contract to believe that she would do so,” and in light of the contents of the instant agreement that the defendant and her relationship between the defendant and her or her her friendly relationship with her own economic ability and disposal possibility, the victim made a decision to transfer shares based on reliance on the victim’s evaluation of the economic ability and disposal possibility of the defendant, and the personal friendly relationship with her or her her son, even though the 4 was aware of the above share transfer, it is difficult to see that the victim made a decision to acquire shares from the defendant company to the extent that it had an influence on the conclusion of the share transfer contract in light of the fact that the son, at the time of the above transfer of shares, was made by the victim.

④ Nonindicted 8, the representative director of △△ company, started the business of acquiring the Defendant and Nonindicted Company 6 in spring around 2012 in the lower court’s court, and the problem occurred during the process of acquiring the said business, and eventually, △△△ was acquired by Nonindicted Company 6 around March 2013. After the above acquisition, the Defendant testified that he was unable to make a contribution in kind because he did not have any higher value of the said building than that of the said building, but did not make a contribution in kind. Nonindicted 20, who made a loan brokerage, requested a deposit appraisal of the ○○○○ building on September 2012 and the result was excessive to 1.7 billion or 2.10 billion won (Evidence submitted by the Defendant), and it is difficult to view that the Defendant, although having promoted the business of disposing the ○○○ building, he did not expect the business for disposing the ○○○ building, but did not have any other external and after the result of appraisal and assessment, and it did not appear that he did not know that he did not have any specific means of investment in advance.

⑤ On May 2, 2013, when nine months have elapsed since the share acquisition contract of this case, the Defendant created a collateral security right of KRW 300 million, which is very small amount compared to the total value of the ○○○○ building, and if the original Defendant intended to acquire the building, it appears that there exists no reason to possess the building until two years have passed since the payment of management expenses, etc., and the Defendant stated that the business run by Nonindicted Company 6, etc. from the end of 2013 was not well-grounded, and that economic difficulties have occurred or it was difficult to carry out other business. In light of the above, it is difficult to conclude that the Defendant had the criminal intent to acquire the building at the time of the share acquisition contract was a criminal intent.

(6) A victim (age omitted) was 50 times old at the time of birth, and has been operating a construction company, ready-mixed, and asphalt at a three-dimensional scale.

E. Sub-committee

Therefore, this part of the facts charged shall be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, since there is no proof of crime, and the judgment of the court below is erroneous in the misapprehension of facts and affecting the conclusion of the judgment. Therefore, this part of the defendant's appeal

3. Conclusion

Therefore, there is a reasonable ground for misconception of facts about the defendant's violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against the non-indicted 1, and since the court below regarded this part and the remaining criminal facts as concurrent crimes under the former part of Article 37 of the Criminal Act and sentenced to a single punishment, the judgment of the court below is reversed without

The gist of the facts constituting an offense and evidence recognized by this court is as stated in each corresponding column of the judgment of the court below, except for deletion of the phrase “ [2016Gohap7] portion of the corresponding part of the reasoning of the judgment of the court below.” Thus, it is cited in accordance with Article 369 of the Criminal Procedure Act

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) of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following circumstances considered in favor of the reasons for sentencing)

1. Suspension of execution;

Article 62(1) of the Criminal Act (Concurrent Considerations for Sentencing as follows)

1. Scope of applicable sentences under law: Imprisonment with prison labor for one year and six months to 15 years;

2. Scope of recommendations according to the sentencing criteria;

[Determination of Punishment] Fraudulent Crime, General Fraud, Type 3 (at least 500 million won, but less than 5 billion won)

[Special Sentencings] Reductions: Non-Punishments

[Determination of the recommended territory, Scope of Recommendation] Reduction Area, Imprisonment of one year and six months to four years

3. Determination of sentence: Imprisonment with prison labor for one year and six months, and three years of suspension of execution;

The punishment as ordered shall be determined by taking into account the various circumstances, such as the fact that the defendant is not good in terms of fraud, the fact that the defendant recognizes the crime of fraud, the fact that the defendant has agreed with the victim non-indicted 1, the fact that the defendant does not have any previous punishment or any previous punishment, and the age, character, character, environment, circumstances, circumstances before and after the crime, etc. of the defendant, which are the conditions for sentencing

The summary of this part of the facts charged and the determination thereof are as stated in paragraph (2) above. Therefore, since this part of the facts charged constitute a case where there is no proof of a crime, the acquittal is pronounced pursuant to the latter part of Article 32

Judges Kim Jae-ho (Presiding Judge)

주1) 원심 판결 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.

3) After that, although the prosecutorial investigation made a statement to the effect that the Defendant believed the Defendant’s ability to repay, it appears that the credibility of the first statement is higher. Even if the victim believed the Defendant’s personal ability to repay, as if the victim talked with the victim, the Defendant actually possessed the △△ apartment complex located in Seongdong-gu Seoul Metropolitan Government ( Address 3 omitted) (the registration of ownership transfer is completed in the name of the Defendant’s wife on January 2, 2013 after concluding a contract for the transfer of the stock acquisition contract) and operated the external car, and the Defendant held 6% of the shares of Nonindicted Company 16, which was operated as the representative director, and there is no evidence to deem that there was any deception by the Defendant.