(영문) 대구지방법원 2021.5.18. 선고 2020고단4091 판결

On February 12, 2015, the Defendant was sentenced to six months of imprisonment for fraud, etc. at the Daegu District Court, and completed the execution of the sentence on March 29, 2017.

On January 17, 2019, the Defendant stated to the effect that, in a cafeteria near the Daegu-gu Office of the Daegu-gu Branch, “Ack-Tree”, the Defendant would make an investment of KRW 33,00,000 won in virtual currency t-Tree, the principal will be guaranteed, and that, as long as the Company is not expected, the Defendant will make an investment of KRW 33,00,000 per day thereafter.”

However, even if the defendant has invested money from the victim, he did not have the intention or ability to pay to the victim every day.

Nevertheless, the Defendant made a false statement as above, and caused the victim to pay KRW 13 million in total with the credit card in the name of the victim and the national bank in the above office on the same day, and received KRW 20 million from the agricultural bank account in the name of C on the 18th day of the same month.

Accordingly, the defendant acquired a total of 3 million won from the victim.

[200 Highest 6181]

On February 12, 2015, the Defendant was sentenced to six months of imprisonment for fraud, etc. at the Daegu District Court, and completed the execution of the sentence on March 29, 2017.

1. Fraud related to the Alleyco;

From February 2, 2019 to March 2019, the Defendant made a false statement to the victim D, victim E, and victim F, “If he/she purchases feld coin, he/she may obtain profits equivalent to the principal within one month, and then receive profits equivalent thereto.”

However, even if the defendant received the money from the victims, he/she was planning to prevent the so-called return, such as paying the proceeds to the victims, and there was no intention or ability to guarantee the principal or the high profit within one month.

Nevertheless, the Defendant: (a) induced victims; (b) received KRW 5 million from the victim D and the victim F each under the pretext of investment money, which is an Alley Mod Mod Mad Macco on March 11, 2019; (c) received KRW 5 million from the victims E under the same name as the victim E during March 2019; and (d) acquired KRW 15 million in total from the victims.

2. Fraud related to Trin crums;

(a) Fraud against victims E;

From March 2019 to April 2019, the Defendant made a false statement to the victim’s residence, etc. of the Daegu Dong-gu Office, the victim located in Ulsan District, the victim’s residence, etc., “if the victim made an investment in Triurico, it may bring about an amount equivalent to KRW 18 million, excluding the principal, at around the time of B.”

However, even if the defendant received money from the victim, he was only a plan to prevent so-called return, such as paying profits to the investors such as the victim, and there was no intention or ability to pay the victim the profits equivalent to 18 million won following the month.

Nevertheless, the defendant deceivings the victim as such, and he obtained 110 million won as the Trithic investment fund from the victim on April 11, 2019, from the victim, and acquired it as the Daegu Bank account in the G name.

(b) Fraud against victim F;

From March 2019 to April 2019, the Defendant made a false statement to the victim, “If an investment is made in Titri Monthly Coin, Ltd., the Defendant may obtain conditions without regard to high income equivalent to or more than the principal if the said investment is made in Titri Monthly Coin., Ltd.”

Nevertheless, the defendant deceivings the victim as such, and he received 5 million won from the victim as the Trithic investment fund from the Trithic on April 20, 2019, and acquired 5 million won as the G Daegu bank account.

C. Fraud against victim H

From March 2019 to April 2019, the Defendant made a false statement stating that “If the Defendant invests KRW 3,300,000 in Triurico, 3,000,000 per day from March 3, 2019 to Triurico’s office located in Daegu Dong-gu, and the victim’s residence located in Ulsan, the Defendant will send the victim profits every 2,000,000 won.”

However, even if the defendant received money from the victim, he did not have any intention or ability to pay 20,000 won to the victim every day from the third day after the third day.

Nevertheless, the defendant deceivings the victim as such, and he received 3.3 million won from the victim in the name of Tridco investment, from the victim on April 29, 2019, and acquired 3.3 million won in the name of G Daegu bank account.

Summary of Evidence

[200 Highest 4091]

1. Partial statement of the defendant;

1. A witness B and I's respective legal statements;

1. The suspect interrogation protocol of some police officers against the defendant;

1. Each police statement made to B and I;

1. A complaint;

1. Investigation reports (Attachment, such as the details of remittance of the amount of damage);

1. Previous records of judgment: Criminal records, correspondence records, personal confinement status, investigation reports (Attachment to judgment);

[200 Highest 6181]

1. Partial statement of the defendant;

1. Each legal statement of witness D, E, F, and H;

1. A protocol of partial police interrogation of the accused;

1. Each police statement made to D, H and J;

1. A complaint, each content certification, each copy of each passbook, each certificate of deposit transaction (G, March 1, 199-4, April 30, 199), and the list of investors;

1. Investigation report (G telephone conversations), investigation report (verification of accounts in the G name used by a suspect);

1. Previous records of judgment: Criminal records, results of inquiry into criminal records, current status of acceptance by individual, investigation reports (verification of repeated crimes, etc.);

Application of Statutes

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

Article 347(1) of the Criminal Act (Appointment of Imprisonment)

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act

1. Aggravation for concurrent crimes;

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

Judgment on the argument of the defendant and defense counsel

1. As to fraud No. 2020 highest 4091

A. Summary of the assertion

The defendant said that he would give the victim B a million won per day, and there is no fact of deceiving the above victim, and the criminal defendant did not have the intention of deceiving the victim.

B. Determination

Comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and examined by the court, the defendant's assertion by the defendant and the defense counsel is not accepted, since the defendant guaranteed the principal of the victim B even though he did not have the intent or ability to pay one million won a day to the victim B, and as if he could guarantee the victim B's profits equivalent to one million won a day, he could be found to have received the amount of KRW 33 million under the pretext of investment.

1) The victim B made a statement in the investigative agency and this court to the effect that “When the defendant makes an investment in virtual currency, he/she shall guarantee the principal and make an investment in KRW 33 million per day to the defendant.” The victim B’s statement is sufficiently reliable in light of consistency in the statement, consistency in body and attitude of the statement in this court, etc., and the above victim’s statement does not appear to have any other circumstance to make a false statement.

2) In an investigative agency and this court stated that “I also recommended the victim B to make an investment in the virtual currency business of which the Defendant is the victim B, the Defendant sent the horses to the victim B as they are, and the Defendant paid KRW 1 million each day to the effect that the principal of the victim B can be recovered within one month.”

3) At the time of the investment, the Defendant also held that the victim B was able to pay twice the investment amount if it was six months after the investment, and that the Defendant would be responsible for the damage if it was incurred.

4) In the process of examining the suspect of the police, the Defendant responded to the question of “ how it is true how the police would be double times after six months?” which read, “it was written on the Trith website, and it was judged by taking advantage of the materials from the people who first worked in Seoul.” Even according to the Defendant’s statement, the Defendant was only aware of the contents or description of another person on the virtual currency website and did not know of the value or profitability of the virtual currency, and the principal was guaranteed, and there was no specific plan to pay the victim B the amount of the investment principal or profits if it did not actually generate profits from the virtual currency investment.

2. As to fraud No. 2020 highest 6181

A. Summary of the assertion

The defendant did not deceiving the victims by making a statement of the same contents as the facts charged, and the defendant did not have the intention of deceiving the victims.

B. Determination

Comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and investigated by the court, the defendant's assertion that the defendant was paid money from the victims as investment funds, even if the defendant did not have the intent or ability to pay the victims a considerable amount of investment funds or more, as if he would guarantee the victims a considerable amount of profits exceeding the principal amount.

1) The victim D stated in the investigative agency and this court that "if the defendant makes an investment of KRW 5 million in the Alleycoin, the principal may be recovered in one month or the name of one month, and then a reasonable profit may be earned, and the victim D paid KRW 5 million to the defendant."

2) The victim E, in this court, sent KRW 5 million to E, on the ground that the Defendant was aware of the Defendant through the victim D, and the Defendant was able to receive a large amount of money when investing in the Ed chainco, with the investment amount of KRW 11 million. Since then, the Defendant stated to the effect that if he invested in Edridco, the amount of KRW 11 million may bring about KRW 18 million, excluding the principal, at the time of Edridco, the Defendant paid KRW 11 million with the Edridco’s investment amount.

3) In this Court, the victim F stated in this Court that “When the Defendant purchased the Gad Coin, the Defendant would obtain profits equivalent to the principal within one month or one week, and thereafter, would have received considerable profits, and the Defendant would have paid KRW 5 million to the Defendant with the Gad Coin’s investment deposit. At the time, the Defendant would have made the said remarks together with the victim D and E. After that, the Defendant would be able to obtain without any conditions when investing in the Gad Coin, the Defendant would be able to obtain high profits above the principal amount, and would have paid KRW 5 million with the Eteth Coin’s investment deposit.”

4) The victim H stated in the investigative agency and this court that "if the defendant invests 3.3 million won in Triurico, he believed to pay 200,000 won per day after the third day after the third day, and paid 3.3 million won to the defendant."

5) As above, the victims stated that the defendant, as the victim stated, that he/she can earn a considerable amount of profit if he/she invests in virtual currency, and that he/she provided investment money to the defendant. Such victims' statements are sufficiently reliable in light of consistency in their statements, consistency in body and attitude of the statements in this court, and there is no other circumstance for the victims to make a false statement.

6) The J also stated in the investigative agency that “When the Defendant makes an investment in the Gadco, the principal may be recovered from one month after the date of investment, and thereafter, the victim D was introduced to the Defendant by making it an introduction to the surrounding areas.” The Defendant stated to the effect that “When the principal is not recovered if the principal is not recovered, the Defendant would pay money in trust and make an investment to the Defendant.”

7) In the process of interrogation of the suspect, the Defendant also talked that the victims would have a nose for a period of two times or more if the victims had a nose during the period of one year. The Defendant stated that the victims would have guaranteed the principal even if they suffered damage.

E. T. T. T. H. T. T. T. H. T. T. T. T. T. T. H. T. T. T. T. T. T. T. T. T. T. H. will not increase more than six months, and it is recognized that the principal would be guaranteed and that it would be able to gain a reasonable profit if it is invested in

8) In the process of the examination of the suspect of the police, the Defendant stated to the effect that “K, the owner of the university, was aware of the price of the Gad chainco and the Gadrco by stating that the Gadrco’s Gadrco and the Gadrco’s head office had been found several times, and it was thought that the Kadroid continued to engage in a transaction, and that all principal could be recovered by taking advantage of the increase in co-delivery.” Even according to the Defendant’s statement, the Defendant was unable to know the actual value or profitability of the virtual currency, and the Defendant was merely aware of the value or profitability of the virtual currency, and was paid investments from the victims, stating that the principal would be guaranteed and that there was no specific plan to pay the principal or profits to the victims if the actual virtual currency was not made.”

9) The Defendant did not receive actual profits from the investment of virtual currency, and it appears that he paid some of the money to the victims as profits from the funds received from other persons, including the victims, as a title of investment of virtual currency.

Reasons for sentencing

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

[Determination of Punishment] Fraudulent Crime: General Fraud [Type 1] below 100 million won

[Special Convicts] Reductions: Non-Punishments

Aggravations: Cumulative Offense

[Recommendation and Scope of Recommendations] Reduction Area, Imprisonment from one month to one year

2. Determination of sentence;

The following circumstances and the defendant's age, occupation, character and conduct, environment, motive and means of crime, results, etc., records of circumstances after crime, and various conditions of sentencing as ordered shall be determined by considering the following circumstances and conditions of sentencing.

○ Unfavorable Circumstances: The instant crime is a case in which the Defendant deceivings victims and defrauds them total of KRW 67,30,000,000, and is not good in light of the method of crime and the amount of damage, etc. In addition, the Defendant committed the instant crime while committing a repeated crime in the same kind of crime. The Defendant did not properly reflect his mistake while denying the instant crime.

○ favorable circumstances: The defendant does not want to punish the defendant by mutual consent of all victims.

Judges

Judges Lee Sung-sung

Note tin

1) Although the indictment is stated as "19.m.," according to the records of this case, it is recognized that the victim B remitted the amount of KRW 20 million to C’s account around January 18, 2019, and even if the date of remittance is corrected, the date of remittance ex officio is corrected as above, since it does not substantially disadvantage the defendant’s exercise of his/her right to defense.

참조조문

유사 판례

-광주지방법원 2019.03.08 2018고단4444

-서울중앙지방법원 2019.10.29 2019고단3347

-부산지방법원 2019.05.13 2018고단5641

-부산지방법원 2019.12.16 2018고단5641 (1)