Defendant 1 and one other

Kim Jae-woo (prosecution, public trial)

Jeju General Law Firm, Attorney Kim Young-ho

Defendant 1 shall be punished by imprisonment for one year and by imprisonment for six months, respectively.

However, the execution of the above punishment shall be suspended for two years for Defendant 1, and for one year for Defendant 2 from the date this judgment became final and conclusive.

1. Fraud to the Cheong-Gun Office for Victims;

The Defendants, upon purchasing the livestock disaster insurance for horses, knew the fact that the State subsidized 50% of the premium if the policyholder is a person registered with the horse producers' association, and tried to receive the premium from the State after purchasing the livestock disaster insurance as if the horses owned by Defendant 1 were owned by Defendant 2.

Defendant 1 purchased and owned the horses “○○○○○” at around June 2010. However, Defendant 2, along with Defendant 2, prepared a false sales contract as if Defendant 2 purchased the said horses, and Defendant 2, on September 1, 2010, prepared and submitted a false insurance subscription contract with Defendant 2 as if Defendant 2 was the owner of the said horses, and prepared and submitted relevant documents, such as a false insurance subscription contract, as in the case of Defendant 2’s purchase of the disaster insurance at the △ branch of Nonindicted Company 1 located in the △△ branch located in the Jeonbuk-gun, the said insurance company ordered the victim to notify the △△-gun Office of the fact of the said false insurance contract. On September 2010, the victim demanded the victim to pay KRW 2,348,00,500,000, total insurance premium for the said horses.

As a result, the Defendants conspired to induce the victim to pay the above insurance company premium of KRW 2,348,00 to the victim, thereby obtaining economic benefits equivalent to the above amount.

2. Fraud against the victim non-indicted 1

The Defendants, with the knowledge of the fact that the purchase price at the end is calculated as the insurable value at the time of purchasing the livestock disaster insurance for horses, did not call for an excessive claim for the insurance money by preparing and submitting a sales contract stating false statement of the purchase price for the horses “○○○”.

Although Defendant 1 purchased the said horses from Nonindicted 2 in an amount equivalent to KRW 12 million on June 2010, Defendant 1 drafted a sales contract stating that “ Nonindicted 2, May 10, 2010, sold the said horses to Defendant 1 in an amount of KRW 30 million,” and that “Defendant 1, June 1, 2010, sold the said horses to Nonindicted 3 in an amount of KRW 30 million,” respectively, and that “Nonindicted 3, August 12, 2010, sold the said horses to Defendant 2 in an amount of KRW 40 million.”

On September 1, 2010, Defendant 2 continued to purchase a disaster insurance contract for the said horses at △△ Branch of the Victim Non-Indicted Party 1, which was located in △△buk-gun, and submitted one copy of the Mail sales contract stating that Defendant 2 purchased the said horses from Non-Indicted 3 for KRW 40 million. Defendant 2 entered into an insurance contract with the said insurance company and the said horses as the subject-matter of the insurance and with the insurable value of KRW 40 million.

However, Defendant 2 did not purchase the above horses, and Defendant 1 only purchased the above horses at KRW 12 million and did not purchase them at KRW 40 million.

On October 4, 2010, the Defendants demanded the victim to pay the insurance money of KRW 40 million from the end of the above end on October 4, 2010, and the victim deposited KRW 32 million, excluding KRW 8 million from the insurable value of KRW 40 million, in the Agricultural Cooperative account (Account Number: 52108080634) with Defendant 2 around December 17, 2010.

As a result, the defendants conspired to acquire the property of the victim.

1. Defendants’ respective legal statements

1. The witness Nonindicted 4’s legal statement

1. Some statements made by the Defendants in the suspect interrogation protocol of each prosecutor about the Defendants

1. The prosecutor’s statement concerning Nonindicted 4

1. Each police protocol against Nonindicted 4, Nonindicted 2, and Defendants

1. A sales contract for each model;

1. An investigation report (to submit Nonindicted 4 documents);

1. Summary of the assertion

The Defendants’ entry of the purchase price of KRW 40 million in the instant sales contract is merely an intent to sell the horses to the marina owners at a higher price, not to receive insurance proceeds. According to the terms and conditions of the instant insurance contract, the insurable value is assessed by the insurance company, and the sales contract is merely a reference material.

Therefore, even if the defendants entered the purchase price under the sales contract at a higher level than the actual purchase price and submitted it to the insurance company, they cannot be deemed to have deceiving the insurance company. The defendants want to receive a higher price in the case of the future sale, and there was no think that the insurance money would be excessive, so there was no intention to commit fraud.

2. Determination

In the case of exercise of rights by means of deception, if the act belonging to the exercise of rights and the deception belonging to such means are comprehensively observed, and such deception cannot be acceptable as a means of exercise of rights under social norms, the act of exercise of rights constitutes fraud (see Supreme Court Decision 2002Do6410, Jun. 13, 2003, etc.).

In light of the following circumstances, the Defendants asserted that the sales price of the instant sales contract was entered at a higher price in the event that the Defendants sold the instant sales contract for the future. However, the Defendants’ preparation of the sales contract is due to the fact that insurance premiums and subsidies to enter into the insurance contract under the name of Defendant 2 were paid. Therefore, regardless of the instant insurance contract, the Defendants cannot be deemed to have prepared the instant sales contract for the purpose of selling the instant horse to Maju. ② The Defendants, in practice, knew that the insurable value was determined at the time of concluding the livestock disaster insurance contract for the horses without due diligence, submitted the sales price of the instant sales contract to the Korea Racing Association, stating that the Defendants would have been determined at the time of the conclusion of the insurance contract for the horses, with the knowledge that there was a false insurable value as at the time of the conclusion of the insurance contract for the horses, and (3) Defendant 1 would have purchased the instant sales contract at a lower price than at least KRW 70 million,000 from June 2, 2010.

Therefore, the above assertion by the Defendants and the defense counsel is rejected.

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

Defendants: Articles 347(1) and 30 of the Criminal Act; the choice of imprisonment

1. Aggravation for concurrent crimes;

Defendants: former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act

1. Suspension of execution;

Defendants: Article 62(1) of the Criminal Act

1. Scope of recommended sentences according to the sentencing criteria;

[Determination of Punishment] Fraudulent Crime, General Fraud, Type 1 (less than KRW 100 million)

【Special Convicted Person】

[Scope of Recommendation] Basic Area: Imprisonment for six months to one year;

2. Determination of sentence;

The crime of this case is a false sales contract in order for the defendants to receive subsidies by unlawful means, and as an insurance accident occurred after the conclusion of the insurance contract by deceiving the insurance company using the false sales contract, it is not good that the above sales contract was obtained by the insurance company believed to be genuine, and the damage is not recovered most. Therefore, the defendants should be punished strictly.

However, the defendants recognized the defendants' mistake about the fraudulent conduct against the Cheonggu-Gun Office, the defendants did not have any record of punishment for the same crime, and the defendant 2 did not have any record of punishment for the same crime. The defendant 2 does not have any profit from personal acquisition due to the crime in this case. The degree of participation is relatively minor, the defendants paid the insurance premium subsidy paid by the Cheonggu-Gun Office, the defendants paid the total amount of the insurance premium, and the insurance company, the victim of the crime in this case, should have determined the insurable value after consulting with the contractor in determining the insurable value. In practice, the insurance company should have determined the insurable value after assessing the insurable value based only on the sales contract in this case prepared by the defendants. Other factors such as the defendants' age, character and conduct, circumstances before and after the crime in this case, etc. are considered to have contributed significantly to the loss and expansion of the insurable value by calculating the insurable value.

Judges Kim Jin-man