Defendant

Defendant

Freeboard Kim

Attorney Noh Jeong-soo

Seoul Central District Court Decision 2007Ma7672 Decided August 29, 2008

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 7,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

(1) As to the fraud, the Defendant received money from the victim under the pretext of investment in the goods of the ○ Life Insurance Co., Ltd., as stated in the facts charged, instead of receiving money from the victim as the source of investment in Nonindicted 1’s business, and delivered it to Nonindicted 1 as the name of the beneficiary. The victim demanded an excessive amount of profit than the agreement and failed to pay it after three months of the agreed period, and even though the victim intended to use it for personal purposes as stated in the facts charged, it does not mean that the victim acquired money under the pretext of

(2) As to the violation of the Act on Promotion, etc. of Information and Communications Network Utilization and Information Protection, in light of the content of the instant text messages, the background of sending them, the relationship between the Defendant and the victim, etc., the illegality is excluded.

B. Unreasonable sentencing

Considering the circumstances of the case, the fact that there is a risk of actual employment in the event that the defendant is sentenced to a fine or heavier punishment, the sentence of the lower court (ten months of imprisonment and two years of suspended execution) is too unreasonable.

2. Determination

A. Judgment on the assertion of mistake of fact

(1) As to fraud

(A) In the instant fraud, despite the fact that the Defendant was willing to use it for its personal purpose, whether the victim received money under the pretext of its investment by stating that it would be invested in the goods of ○○ Life Insurance Co., Ltd. working for the victim.

(B) First of all, we examine the evidence of the police interrogation protocol against the defendant, which the court below cited as evidence of guilt, and the confirmation document of non-indicted 2.

1) Although the police investigation protocol against the defendant stated in this part of the facts charged to the purport that the defendant made a false statement as stated in this part of the facts charged, since the defendant denied the intention of the criminal defendant by deception that is not a false statement in the prosecution, the court below and the court of the trial consistently denied the same purport. As such, the defendant should not be viewed as recognizing the contents of the statement in the police investigation protocol containing the purpose of confession of this part of the facts charged. Thus, the court below's evidence list contains that the defendant recognized the contents of the police investigation protocol on the second day of the court below's trial, and it cannot be viewed as evidence for conviction (the court below's evidence list contains that the defendant recognized the contents of the police investigation protocol on the second day of the court below's trial, but it is not stated in the department (22 pages of the

2) Nonindicted 2’s confirmation statement of facts did not consent to the defendant as evidence, and Nonindicted 2’s authenticity was not acknowledged by Nonindicted 2’s preparatory hearing or the statement at the trial date, which is the original person making the original statement, and thus, it cannot be considered as evidence of guilt.

3) Nevertheless, the judgment of the court below which considered the above evidence as evidence of guilt has an error of law against the rules of evidence.

(C) However, according to the remaining evidence duly examined and adopted by the court below, in particular, the police officers of Nonindicted 3, the prosecutor's office, the defendant's prosecutor's office, the court below, and the court below's partial legal statements, the defendant, an insurance solicitor of ○○ Life Insurance Co., Ltd., was informed of the victim at a drinking house around September 2005, that he would raise the victim's profits for more than one billion won in a year. After that, the defendant sent text messages explaining the insurance products of the above company to the victim, and recommended the victim to make an investment in ○○ Life Insurance Co., Ltd. at the same time as written in the facts charged. The victim believed the reputation of the above company and the defendant's horses, caused the investment of this case, and did not listen to all the defendant's investment in the business of Nonindicted 1, the victim's money invested in the victim's business, unlike the victim's horses, and the victim did not have become aware of the fact that he made an investment in his life insurance company around February 2007.

(D) If the facts are the same as above, the defendant can be deemed to belong to the actual investment place and have acquired money from the victim, such as the original judgment, so the judgment of the court below shall not be reversed on the ground that the aforementioned violation of the rules of evidence does not affect the conclusion of the judgment, and therefore, the defendant's allegation of erroneous facts in this part is without merit.

(2) As to violation of Information and Communications Network Utilization Promotion Act

(A) Whether a certain act is justified as a legitimate act that does not contravene social norms, and the illegality is excluded should be determined on an individual basis, based on specific circumstances. To recognize such legitimate act, the following requirements should be met: (i) legitimacy of the motive or purpose of the act; (ii) reasonableness of the means or method of the act; (iii) balance between the protected interests and the infringed interests; (iv) urgency; and (v) supplementary nature that there is no other means or method other than the act (see Supreme Court Decision 2006Do1187, Jun. 27, 2006, etc.).

(B) According to the records of this case, it is recognized that there was a dispute between the defendant and the victim, such as the receipt of text messages that slander each other due to the return of the above investment amount by the victim, etc. However, in light of the content, etc. of the text messages of this case, the Defendant’s crime of this part cannot be deemed a justifiable act that does not violate the social rules of the above meaning.

B. Determination on the assertion of unfair sentencing

When considering the circumstances of the crime, such as the fact that the defendant deposited the principal of the damage amount at the court below and deposited the additional amount corresponding to the interest amount in the trial, the circumstances after the crime, the age, character and conduct of the defendant, occupation and family relation, etc., the punishment of the court below is somewhat unreasonable.

3. Conclusion

Therefore, the judgment of the court below is reversed and the defendant's appeal is delivered with the following judgment.

Since the corresponding column of the judgment below is the same as the corresponding column of the judgment below, it shall be quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Partial statement in the original judgment and the trial court of the defendant;

1. Nonindicted 3’s statement in the original trial

1. Part of the protocol on the examination of suspect against the defendant (including Nonindicted 3’s statement)

1. Statement on Nonindicted 3’s statement

1. Results of inquiry into ○○ life insurance company;

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

Article 347(1) of the Criminal Act, Articles 74(1)3, 44-7(1)3, and 44-7(1)3 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., and the selection of each fine (the above favorable

1. Aggravation for concurrent crimes;

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

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judges Hun-Ba (Presiding Judge)