2019 Highest371 Occupational Embezzlement

2019 Highest 1929 (Consolidation) Fraudulent, thief (a recognized criminal embezzlement in the course of business)

2019 Highest 2280 (Consolidation) Fraudulent, thief (a recognized criminal embezzlement in the course of business)

2019 Highest 2796 (Consolidation) Fraud

A South 89. Symar

Freeboard of relocation, demotion, the number of days of discharge, Kim Min-hee (prosecutions), Kim Tae-tae (Public Trial)

Attorney* (Korean National Assembly)

October 23, 2019

A defendant shall be punished by imprisonment for one year.

Facts of crime

【Criminal Power】

On July 17, 2014, the Defendant was sentenced to a suspended sentence of two years for fraud at the Ulsan District Court for eight months. On May 11, 2016, the suspended sentence was revoked, and on August 14, 2017, the Defendant was released from Ulsan Detention House on September 30, 2017.

【2019 Highest371】

On December 15, 2018, the Defendant reported from Ulsan-gu** 00 to 00 to seek an employee from the victim B at the convenience point of ○○ operated by the victim B, and made an interview to the victim who would work as an employee, and then immediately work there.

On December 16, 2018: around 00: (a) the Defendant returned home at the above ○○ convenience store and caused the victim to serve mixedly, the Defendant, upon delegation from the victim, put one set of a flag card equivalent to 500,000 won owned by the victim and kept in his/her custody, and embezzled KRW 1,095,90 in cash in his/her safe bank, and embezzled them in a color plastic bag.

【2019 Highest 1929】

1. Fraud;

On October 31, 2018, the Defendant posted a letter to the effect that “cultural products are sold on the Internet website.” On October 31, 2018, the Defendant reported that the Defendant would deposit KRW 240,000 with the victim C who visited the Defendant, thereby sending the goods.

However, there was no intention or ability to send cultural products to the victims even if the defendants received money from the victims because they do not have cultural products rights.

Accordingly, the Defendant, by deceiving the victim, received KRW 50,00 from the victim to the account of community credit cooperatives in the name of the Defendant on the same day, and received KRW 50,00 from that time, from that time, a total of KRW 365,00,00 from January 10, 2019, as shown in attached Table 1, was remitted to the account of community credit cooperatives in the name of the Defendant.

2. Occupational embezzlement;

On February 21, 2019, the Defendant has been engaged in convenience store work from around 00 to around 00, Ulsan-gu* △△△△△△△△ operated by the victim D in the victim D in the victim 1 to 00.

On February 22, 2019: the Defendant worked as an employee at the above convenience store on February 17, 2019: around KRW 300,000,000, in total, and the market value of approximately KRW 990,000,00 in cash owned by the victimized person; the Defendant left with the mind of being kept in custody for the victim on duty.

Accordingly, the defendant embezzled the victim's property.

[2019 Highest 2280]

1. Fraud;

On February 7, 2019, the Defendant made a false statement that “the Defendant would send cultural products rights to the victim E, who reported the sales of cultural products tickets posted by the Defendant on the Internet Nuriber Kaf page, to the victim E, who called the phone.” However, the Defendant did not have cultural products rights and received money from the victim, thereby having no intention or ability to send cultural products rights to the victim.

The Defendant, as such, by deceiving the victim and receiving KRW 87,00 from the victim for the same day as the price for cultural products of the same day, and from around that time to May 30, 2019, transferred KRW 627,00,000, in total, six times from around that time, as shown in attached Table 2, from around that time to around May 30, 201.

2. Occupational embezzlement;

On May 9, 2019, the Defendant has been engaged in convenience store duties while working as an employee in the sense that the Victim F, located in Ulsan-gu* 00, Ulsan-gu, * the Do governor of the Do in Seoul-dong operated by the Victim F, located in 00.

On May 10, 2019, the Defendant worked as an employee at the above convenience store at around 45: (a) around 675,00 won in cash owned by the perpetrator and 7,50,000 won in total in the market value; (b) had been in mind in the custody of the victim for his work.

Accordingly, the defendant embezzled the victim's property.

[2019 Highest 2796]

On June 9, 2019, the Defendant puts a letter on the Internet Internet NVber's O 'O' bulletin board that 100,000 won of cultural products are sold for KRW 90,00,00, and made a false statement that the Defendant would give money to the victims who contacted with the Defendant first.

However, the defendant did not have the right to sell cultural products to the victims, and even if he received money from the victims, there was no intention or ability to send cultural products.

As above, the Defendant made a false statement to the victim, and acquired 90,000 won from the victim to the national bank account in the name of the Defendant on the same day.

Summary of Evidence

Omission

Application of Statutes

1. Relevant Articles of criminal facts;

Articles 356 and 355(1) of the Criminal Act (the point of occupational embezzlement) and Article 347(1) of the Criminal Act (the point of fraud) 1. Selection of punishment

Each Imprisonment Selection

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

Reasons for sentencing

1. The scope of applicable sentences under law: Imprisonment for one month to thirty years; and

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

(a) A primary crime (Fraud);

[Determination of Type] Fraudulent Crime 01. General Fraud / [Type 1] below 100 million won

[Special Aggravations] Aggravated Punishment: A repeated crime committed against unspecified or large number of victims or repeatedly committed during a considerable period of time;

[Recommendation and Scope of Recommendations] Special Priority, Imprisonment with labor for one year to three years;

(b) Second crime (Occupational embezzlement).

[Determination of Type] Embezzlement/Misappropriation 01. Embezzlement/Misappropriation / [Type 1] below KRW 100 million

【No Special Convicted Person】

[The scope of recommendations and recommendations] Basic Area, Imprisonment of 4 months to 1 year and 4 months;

(c) Scope of recommendations according to the standards for handling multiple crimes: One year to four years. (The first crime maximum + the second crime maximum 1/2)

3. Determination of sentence;

Considering the fact that the defendant led to the crime of this case and was divided, that the purpose of the crime of this case was to raise living expenses, or that the defendant committed the crime of this case without being aware of the circumstances favorable to the defendant, or that the defendant committed the crime of this case without being aware of the fact that he committed the crime of fraud, the crime of this case was poor, that the defendant did not make any effort to recover damage, such as an agreement with the victims until now, and that there is no doubt that the defendant committed the crime of this case or committed another crime while being investigated or tried for the crime of this case, it is inevitable to make a strict sentence of punishment against the defendant. In addition, taking into account all the circumstances revealed in the records, such as the defendant's age, character and conduct, environment, motive, means and result of the crime, and circumstances after the crime, etc., the punishment of punishment as ordered in accordance with the sentencing guidelines shall be determined within the scope of the sentencing guidelines.

Judgment on the Defense Counsel's argument

1. The assertion;

The defense counsel asserts that since the defendant was employed at the convenience store for the purpose of theft and stolen property, theft, not occupational embezzlement, should be recognized.

2. Determination

Even if an assistant in possession under the Civil Act exercises de facto control over the article, it can be seen as the subject of custody under the Criminal Act (see Supreme Court Decisions 68Do1222, Oct. 29, 1968; 70Do649, May 12, 1970; 81Do3396, Mar. 9, 1982, etc.).

According to the evidence duly adopted and examined by this court, the victims returned to the defendant with convenience store and goods at the new wall time, and the defendant alone has convenience store. If the facts are found, the defendant is only an employee who assists in the possession of the victims who are convenience store owners, but at the time of the crime, he can be deemed to have kept under the actual control of the above victims' safe or goods at the convenience store. The above crimes committed by the defendant constitute the crime of occupational embezzlement by acquiring another person's property under his custody.

Ultimately, defense counsel's assertion is not accepted.

Judges’ or higher leaves

List of Offenses1

A person shall be appointed.

List 2

A person shall be appointed.