A violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Separation)

(Recognized Crime Name Fraud), Fraud

A

Oral documents (prosecutions) and tents (public trial)

Law Firm B, Attorney C, D

November 27, 2018

A defendant shall be punished by imprisonment for two years.

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

Criminal 1)

Criminal Records

On November 11, 2016, the Defendant was sentenced to a suspended sentence of three years on April 15, 2017 at the Seoul Central District Court for criminal fraud, etc.

Criminal facts

1. Fraud related to underwriting funds of a stock company;

Around February 2, 2009, the Defendant, F, and G accepted E (hereinafter referred to as “E”) from the victim H's representative at the coffee shop located in Gangnam-gu Seoul Samsungdong, the Defendant and F, and G, false statement that the Defendant and F would issue bills in the name of the company if they receive a loan for money as security for the clan real estate and make a notarized payment, and that the borrowed money would also be repaid after listing E, and that the family funeral creation fund will also be provided without compensation.”

However, the defendant and F and G did not think that they will use the money borrowed from the defendant as E acceptance fund, and there was no fact that they agreed to issue bills from the J of E representative director, and even if they borrowed money from the victim, they did not have the intent or ability to repay it.

Defendant, F, and G were delivered from the victim on March 11, 2009, KRW 150 million on loan, and KRW 150 million on March 12, 2009, in the name of one bank account in the name of F (K).2.

Around March 23, 2009, the Defendant, F, and G stated that “E would pay back the borrowed money immediately if the Defendant, F, and G borrowed money from another company because it is difficult for the said company to take over L (hereinafter referred to as “L”) at the instant coffee shop in Gangnam-gu Seoul Samsungdong.”

However, even if the defendant and F, and G have borrowed money from the victim, they did not have the intent or ability to repay the money borrowed from the victim after accepting L.

On March 23, 2009, the defendant, F, and G received from the victim the delivery of KRW 478 million in the name of one bank account in F.3) The summary of the evidence

1. Part of the defendant's oral statement in the fourth preparatory hearing record;

1. Witnesses I and F's respective legal statements in the third protocol of the trial;

1. Witness G and 0 each legal statement in the fourth trial record;

1. Each prosecutor's protocol of examination of the accused;

1. Responses to financial transaction requests, statements of account transactions by account, material facts reports, written agreements, copies of each real estate register, promissory notes, contract certificates concerning the creation and implementation of real estate collateral, public disclosure of occurrence of charges of embezzlement, full certificate of the registered matters, certified copy of the register, and details of transactions;

1. Previous convictions in the judgment: Inquiry report (A), investigation report (verification of criminal records of suspects), statement of assistance to the agreement of the case (related to defendants A), Seoul Central District Court Decision 2016No4763 (related to defendants A);

Application of Statutes

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

Articles 347(1) and 30 of the Criminal Code

1. Handling concurrent crimes;

The latter part of Article 37 and Article 39(1) of the Criminal Act

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (aggravating concurrent crimes in a crime of fraud referred to in paragraph (2) with a heavier judgment)

1. Suspension of execution;

Article 62(1) of the Criminal Act

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

The defendant does not participate in or have conspired to borrow money from the victim's clan from the victim's clan for E and L acquisition.

2. Determination

A. Comprehensively taking account of the evidence adopted and examined by this Court, the following facts and circumstances can be acknowledged.

① 1 consistently participating in the acquisition of E by F, the representative of the victim of the clan, who is the victim of the clan, has consistently lent money for the trust and acquisition fund by lending the acquisition fund for the clan real estate as collateral, he/she can be registered as an executive and received monthly pay, and also for the clan's family funeral business. He/she thereafter has lent money for the purpose of acquiring funds for another company, and thereafter has lent money for the acquisition of another company. In the process, he/she stated that only the defendant and G et al. have passed.

② While promoting the acquisition of E, F prepared and delivered promissory notes in the name of E as stated in the above facts constituting a crime at the time of borrowing KRW 300 million from the victim’s clan, which was in accordance with the Defendant, F, and G’s repeated request. In addition, the agreement on the creation and performance of I and I real estate collateral (Evidence 69,70 pages) was prepared in the hotel guest room located in G on the same day. The content is that E was provided as collateral for real estate from the victim’s clan, and E was issued with bills of KRW 50 million and delivered to I, and provided financial support for the change of the clan to the victim’s clan, and the responsibility of E is that it is the responsibility of E.

③ After F borrowed KRW 478 million from the victim’s clan, the Defendant and F. G. around March 25, 2009 entered into an agreement on the establishment and implementation of real estate security (the 91 pages of evidence) with I. L was provided as collateral from the victim’s clan, and L was issued with notes of KRW 900 million and delivered to I (However, since L was accepted as special terms, it was decided to substitute for bills of exchange for the remaining KRW 3.9 billion). L was liable for the Defendant and F. G. 200 million. On the other hand, the Defendant and F. G. 200 million won for the loan of KRW 30 billion and KRW 200 million for the loan of KRW 90 million and KRW 300 million for the loan of KRW 300,000,000 to the victim’s clans. On the other hand, the Defendant received KRW 2700,000,000 from G. 14,209.

B. In full view of the above facts and circumstances, although the Defendant, F, and G did not have plans to use them as the acquisition fund, the Defendant, F, and G have borrowed money directly to I for the acquisition fund of the company, or have requested I to prepare promissory notes and contracts related thereto issued by E in order to appear as if they were used for the acquisition fund, and the Defendant, F, and G have prepared a contract under which they are related to the acquisition of the L, and have issued a promissory note to I directly, and have used some of the borrowed money in installments. In light of this, it can be sufficiently recognized that the Defendant, F, and G have acquired money by deceiving I as the acquisition fund.

1. The grounds for sentencing: Imprisonment with prison labor for one month to 15 years;

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

Since the latter concurrent crimes of Article 37 of the Criminal Code are concurrent crimes, the sentencing criteria are not applied.

3. Determination of sentence;

The Defendant, along with F and G, defrauded the victim of the clan in a total of KRW 778 million. The amount of defraudation is large and the nature of the crime is not good in light of the details and methods of the crime. The Defendant escaped to delay the trial procedure.

However, considering the favorable circumstances, such as the fact that the defendant is only a part of the actual use of the above fraud amount, the second fraud amount of KRW 478 million in front of the second fraud amount of KRW 300 million cannot be seen as damage to the victim's clan. In the case of the defendant, the fact that the defendant must take into account the equity in the case of the judgment at the same time with the previous conviction in the case of the judgment, etc., the above defendant's age, character and behavior, environment, motive and circumstance of the crime, means and consequence of the crime, the circumstances after the crime, etc. shall be determined by taking into account the various factors indicated in the trial and records of this case, such as the above defendant's age, character

Parts of innocence

1. Summary of the facts charged

The defendant, F, and G have received 50 million won from the victim by deceiving the representative I of the victim H type in the manner described in paragraph 2 of the judgment at the location described in paragraph 2 of the judgment, and received 50 million won from the victim to the F bank account.

2. Determination

According to the evidence duly adopted by this court, although the victim's clan borrowed the principal from N as collateral for the real estate owned by the victim's clan is KRW 50 million, the victim's clan obtained a total of KRW 4778 million after deducting the interest of his line from N and paid it as a loan to F. Therefore, it is reasonable to view the amount acquired by cash from the victim's clan jointly with the defendant, F, and G as the above KRW 478 million, and even if the victim bears the obligation against N, it cannot be deemed that the defendant, F, and G obtained it from the victim's clan.

Therefore, under the premise that the money obtained by the defendant is a total of KRW 50 million from the victim, this part of the facts charged constitutes a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) on the premise that this money constitutes a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) shall be sentenced to not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act because it is a case without proof of criminal facts. However,

The presiding judge, judges, and the Yellow Constitution

Judges Kim Gin-soo

Judges Kim Gin-young

1) Part of the facts constituting an offense in the indictment was revised to the extent that it does not harm the defendant’s right of defense and the identity of the facts charged.

2) On March 11, 2009, the injured clan borrowed KRW 300 million from the bondholder M as collateral and lent the real estate owned by the injured clan to F, etc.

M directly remitted the said money to F’s account.

3) On March 23, 2009, the injured clans decided to borrow 550 million won from N as collateral the real estate owned by them from the bond company N and the interest, etc.

The deducted cash amounting to KRW 4778 million is received and lent to F, etc.