(영문) 서울중앙지방법원 2018.10.24. 선고 2018고합425 판결

The defendant is a person who actually operates Co., Ltd. (hereinafter referred to as "D") that operates the Art Research Institute in Gangnam-gu Seoul (hereinafter referred to as the "Defendant's educational institute").

On October 17, 2016, the Defendant entered into a sales contract (hereinafter referred to as the “instant sales contract”) on behalf of D with F and its wife to purchase real estate listed in the attached list (hereinafter referred to as “instant real estate”) for KRW 2.8 billion, including F and F, I, 1364, at the time of strike from D.

Under the instant sales contract, the Defendant paid the purchase price of F’s real estate as KRW 1.6 billion on the date of the contract, KRW 1120 million on November 4, 2016, the intermediate payment of KRW 1120 million on the date of the contract, and KRW 480 million on October 17, 2017, respectively. The Defendant paid KRW 1.2 billion on the date of the contract, the purchase price of H’s real estate as KRW 1.2 billion on the date of the contract, and the intermediate payment of KRW 840 million on November 4, 2016, and KRW 360 million on October 17, 2017.

The Defendant, upon entering into a sales contract as above, received the ownership of the instant real estate in D name, received a loan from a financial institution as collateral, repaid the outstanding loan amounting to KRW 1.48 billion, and paid the down payment and the intermediate payment with the remainder of the loan. In addition, as stated in the instant sales contract, the Defendant, instead of paying the remainder after one year from the date of the contract, provided F with the collateral for the remainder of the remainder, and subsequently obtained the permission of a boarding school later, created a collateral security right on the premises of the GHA, provided 100% of D shares, provided 10 billion won of D shares, transferred the claim that the Defendant agreed to receive an investment from Vietnam, and provided a joint and several surety for the remainder payment obligation.

However, at the time of entering into the instant sales contract, the Defendant was liable for the debt of financial institutions equivalent to KRW 770 million and KRW 1,000,000,000,000 to KRW 770,000,000, and the Defendant was in arrears with national tax and KRW 18,000,000,000 due to the lack of any special revenue, and thus, was accused of the violation of the Labor Standards Act even if the instant sales contract was concluded on the grounds that the instructors, etc. of the Art Institute operated at the time did not pay wages and retirement allowances, the economic situation aggravated to the extent that the down payment would not be paid from time to time. Furthermore, the Defendant was able to know that the loan secured by the instant real estate was not possible due to the national pension, etc., and that the loans of KRW 500,000,000 based on the letter of guarantee issued by the Korea Credit Guarantee Fund (hereinafter referred to as the “Korea Art Institute’s representative”).

Therefore, even if the instant real estate was purchased, the Defendant had no intent or ability to pay the purchase price. (3) Nevertheless, around November 24, 2016, the Defendant was given a preferential loan of KRW 1.5 billion from the financial institution and it is certain to obtain additional loans within several days. Moreover, since the agreement was made to invest KRW 1.5 billion in the Art Research Institute operated by the Republic of Korea in Vietnam, it is false to the effect that the instant real estate would be paid without putting the purchase price in advance if it was transferred the ownership of the instant real estate from the victim F and H on November 24, 2016, the Defendant received the ownership of the instant real estate on or around November 24, 2016, and paid the victims’ existing loans of KRW 1,486,657,712 (i.e., F’s loans of KRW 1,002,795,216 + KRW 483,86496,496).384,5384,2000,00 evidence.38

1. Partial statement of the defendant;

1. Each legal statement of witness0, P and L;

1. The defendant and each prosecutor's protocol of interrogation of the suspect about him/her (including the substitute part) which contains some statements;

1. Each prosecutor's statement of F, Q, R, and S;

1. Part of each written statement made by the prosecution against P and each prosecutor's office concerning P;

1. Each investigation report (to hear the statements of P, attach A-type complaint for the case of complaint, listen to L's statements related to the establishment of the right to collateral security of the real estate of this case, use of 1.7 billion won borrowed by a suspect A, and confirmation of the amount paid to him/her);

1. A copy of each real estate register, a copy of a notarial deed, a copy of a notarial deed, a joint and several notarial deed, a stock transfer contract, each list of shareholders, an agreement, standard balance sheet, real estate sales contract (Evidence Records 125, 127 pages), certificate of confirmation, copies of Telecommunication Account (F), additional written confirmation of non-prosecution (Evidence Records 168, 298 pages), written agreement (Evidence Records 289, 350 pages), statement of opinion, standard contractual statement, and new business agreement. 1. 2. 2. 7. 2. 7. 2. 7. 62. 62. 7 of each of the record of summary order, 1. 4. 2. 7 . 2. 7 . 3. 7 . 1. 7 . 360 . 360 . 1. 622. 7 . 1. 3. 12. 1. 1. 3

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

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (including each victim)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act concerning H with a heavier penalty, the penalty provided for in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

Grounds for conviction

1. Summary of the defendant's assertion

Although the Defendant received ownership transfer from F and H (hereinafter referred to as “F, etc.”) and did not pay KRW 1.3 billion out of the purchase price of KRW 2.8 billion, the Defendant considered that additional loans would be possible at the time and would be able to receive investments from Vietnam’s legal entity.

In the future, there was no intention to obtain fraud because there was an intention and ability to pay the balance due to the profits generated from the operation of a private teaching institute.

2. Relevant legal principles

Degination, which is a requirement for fraud, refers to all affirmative and passive acts that have to comply with each other in widely in property transaction. It does not necessarily require a false representation on the essential part of a juristic act. It is sufficient if it is a fact that is the basis of judgment for an actor to make a disposal of property that the actor wishes by omitting the other party in mistake (see, e.g., Supreme Court Decision 2003Do7828, Apr. 9, 2004). Dog7828, a subjective constituent element of fraud, should be determined by comprehensively taking into account objective circumstances such as the Defendant’s financial power before and after the crime, environment, details of the crime, process of transaction, relationship with the victim, etc., unless the Defendant is led to confession (see, e.g., Supreme Court Decision 95Do3034, Mar. 26, 1996).

3. Determination

A. Facts recognized

In full view of the various evidence duly adopted and examined by this court, the following facts and circumstances are revealed.

1) The process of concluding the instant sales contract

A) The instant real estate is 4 lots connected to the instant real estate and 4 buildings attached thereto; F, from the end of 2015, intended to lease each of the instant buildings through a loan brokerage business entity’s loan brokerage business entity from around the end of 2015, decided to sell the entire real estate as it was not good, and the Defendant was introduced from August 201 to September 9, 2016 to the Defendant. (B) The Defendant intended to newly build and operate a private teaching institute on the instant real estate to F. As stated in its reasoning, first, if the ownership of the real estate was transferred to D, the Defendant received a loan as collateral and made an intermediate payment, and the remainder would be paid as investments or proceeds from art research institutes after one year.

C) As the risk of the F’s prior transfer of ownership is anticipated, the Defendant and the F stated F that “the Bank and the instant real estate were already loaned KRW 22-2.4 billion as security, and the re-power in Vietnam would have been invested in KRW 1 billion. The Defendant’s art private teaching institutes operated by the Defendant would have not been aware of the personal teaching institutes with a card sales amounting to KRW 1.7 billion per annum (Evidence record 660 pages).”

D) Ultimately, as indicated in its reasoning on October 17, 2016, F believed the foregoing horses of 0 and Defendant, and concluded a sales contract containing a special agreement on the remainder security with H, as stated in its reasoning, and at the time, the Defendant immediately received bank loans and paid intermediate payments after the transfer of ownership, and the Defendant did not enter into any special security agreement with H.

2) The Defendant’s intermediate payments, etc.

A) On November 24, 2016, F completed the registration of ownership transfer on the instant real estate in D. On the same day, the Defendant created the first priority collective security right of KRW 2 billion with the maximum debt amount of KRW 2 billion with the instant real estate and borrowed KRW 1.7 billion from U.S. bank, and KRW 1.5 billion with the loan of KRW 1.5 billion with the F, etc. in the manner indicated in its reasoning, and used KRW 135,451,930 with the acquisition tax and registration tax, the remainder of KRW 63,645,720 with the fees and operating expenses for the said real estate.

나) 피고인과 이은 소유권이전등기 과정에서 F에게 우선 15억 원을 대출받았지만 곧 추가 대출을 받기로 했고 베트남 법인의 투자도 확실하기 떄문에 걱정할 필요가 없다고 하면서, 잔금 담보특약에 따라 이 사건 부동산에 2순위 근저당권을 설정하면 추가 대출에 문제가 생길 수 있으니 근저당권 설정을 연기해 달라고 부탁하였다(증거기록 666쪽). 이에 F은 같은 날 중도금 지급기일을 2016, 12, 20.로, 잔금 담보특약에 따른 근저당권 설정일을 2017. 3. 1.로 각 연기해 주었다.

C) However, the Defendant did not pay the intermediate payment even on January 5, 2017 and February 10, 2017, which was the date of the payment of the intermediate payment in question, as well as on December 20, 2016, which was the date of the payment of the intermediate payment in question, and on February 10, 2017. Furthermore, the Defendant did not notify F of the fact that the establishment of the collateral security under the F’s understanding and the agreement on the remainder payment was delayed after the additional loan, but did not notify F on January 3, 2017, the Defendant completed the registration of the establishment of the collateral security of the maximum debt amount of KRW 600 million in the name of the actual wife of P in fact.7)

(iii) Additional loans from financial institutions;

A) Around September 2016, the Defendant and 0 sought to purchase the instant real estate to the head of the Seocho-Namnam Financial Center site from U.S., and sought from R as a collateral how much loans could be available as a collateral. From October 2016, R, following internal review, was informed that the Defendant and this police officer could borrow KRW 1.7 billion as a collateral, and that the submission of the Credit Guarantee Fund guarantee certificate would be able to obtain additional loans of KRW 500 million out of the facility funds (Evidence No. 421,1581). However, at that time, the Defendant had been aware that it was impossible to issue the Credit Guarantee Fund guarantee certificate due to the payment of additional taxes and national pension arrears in D at that time.

B) Although the Defendant well-known that additional loans based on the Credit Guarantee Fund’s guarantee are impossible, the Defendant concluded the instant sales contract with F on January 10, 2016, stating that it had already agreed to obtain a loan of KRW 2.3 billion, including additional loans with the Bank.

C) On October 25, 2016, the Defendant applied for the issuance of a letter of guarantee for facility loans to the Korea Credit Guarantee Fund on the recommendation of R and 0, but was notified on November 2, 2016 that it is impossible to issue a letter of guarantee due to default, such as the National Pension, etc. (Evidence Records 1388, 1394). Nevertheless, the Defendant and the instant real estate acquired the ownership of the instant real estate, on the premise that it may obtain an additional loan due to an increase in assets, once the Defendant transferred the ownership of the instant real estate and received a loan from the U bank.

D) As above, it was unclear whether a loan based on the Credit Guarantee Fund’s guarantee agreement is unnecessary and whether an additional loan is made through another financial institution. However, the Defendant transferred the ownership of the instant real estate to F on November 24, 2016, making it false as it would be possible to promptly grant the additional loan (Evidence Record 1388, 1394 pages).

E) After that, the Defendant and 0 became aware of not only the first financing right such as W bank and X bank, but also whether it was possible to grant additional loans to the second financing right such as Savings Bank and Capital Capital company. Nevertheless, the Defendant did not actually receive the loan. Nevertheless, the Defendant made a false statement that it was possible to grant additional loans to F, and extended the date of the intermediate payment (Evidence 1629 pages 10).

(iv) investments made by Vietnamese legal entities;

A) In the course of dispute with L, the Defendant came to know of P, his own will, and around May 2016, upon the introduction of P, received a written investment intent from J, a Vietnam-based corporation, that the Defendant wants to invest in D’s private teaching institute business. Around July 2015, the Defendant visited Vietnam along with P and consulted on investment with K, a representative of the said Vietnam-based corporation, and entered into an additional agreement on September 25, 2015 regarding P and the method of securing the principal of the investment to be provided by the said Vietnam-based corporation.

B) In relation to the above investment, the Defendant and P decided to invest KRW 1 billion in the Defendant’s private teaching institute business on condition that the Defendant first takes over the building in Gangnam and set up a security interest. The Defendant did not lead to an actual investment in the Defendant’s private teaching institute business on the wind that the said building could not be taken over, and thereafter the discussion of investment was suspended (Evidence 1349 pages).

C) Nevertheless, in the process of the instant sales contract and the registration of ownership transfer, the Defendant agreed not only F but also F to receive an investment of KRW 1 billion from the said Vietnam corporation, and concluded that the said investment would only be received from Vietnam.

D) Around the end of 2016, the Defendant tried to attract investment in the instant real estate as collateral through P, but around March 2017, the investment consultation was suspended as the instant real estate could not be offered as collateral due to a provisional disposition prohibiting F from disposing of the instant real estate (the foregoing investment consultation was conducted only between the Defendant and P, and the Defendant did not confirm the intention of the representative K’s investment or the legitimate power of attorney of the Vietnam corporation).

5) Proceeds from D Art Research Institutes

A) The Institute of Art Research operated by D is a specialized driving school with a considerable number of American students in Seoul, and there are many different points between the head office and the head office of Gangnam-gu Seoul Metropolitan Government.

B) However, since around 2015, the foregoing Institute of Art was faced with difficulties due to the decline of students, and was delinquent in paying approximately KRW 18 million national pension at the time of the conclusion of the instant sales contract (Evidence No. 501 of the evidence record), and the Defendant did not have good financial status, such as criminal punishment, due to failure to pay wages and retirement allowances to instructors, etc.

C) Since D’s sales in 2015 amounted to KRW 1,308,709,623 amount for net income, KRW 64,405,360 for net income, KRW 1,210,729,123 for sales in 2016, KRW 51,286,793 for net income, and KRW 51,286,793 for net income, the Defendant was unable to pay the remaining sales amount for KRW 1,300,000 for a short period of time.

D) The Defendant asserted to the effect that the instant real estate was intended to pay the purchase price with the profits from newly constructing and operating a Finding Institute. However, at the time of the conclusion of the instant sales contract, there was no specific plan on the construction of a Finding Institute, and there was no specific plan on the financing of the instant real estate, since the construction of a Finding Institute was not conducted at the time of the conclusion of the instant sales contract.

6) Defendant’s property status

At the time of the conclusion of the instant sales contract, the Defendant was liable for the debt of financial institutions KRW 770 million and KRW 1 billion for private debt of KRW 1 billion (Evidence No. 1590) (Evidence Records No. 1590), National Pension KRW 10 million, and KRW 30 million national tax (Evidence No. 373 pages). Ultimately, around September 2017, the Defendant transferred the right of operation of the Do Art Institute of D Art Dok branch to the creditor S et al. (Evidence Records No. 1360 pages 15).

B. Specific determination

In full view of the above facts, the conclusion and implementation process of the instant sales contract, the progress of the financial institution’s additional loans, the progress of attracting investments in Vietnam corporation, the financial situation and the financial status of the Defendant’s Art Institute, etc., it can be sufficiently recognized that the Defendant made the instant sales contract with F, etc. by notifying F, of the fact that additional loans to F, investments in Vietnam corporation, and revenues of the said Institute of Art Institute, etc. were false or exaggerated.

1. Reasons for sentencing: Imprisonment with prison labor for a year and June to June 22;

2. Scope of recommendations according to the sentencing criteria;

[Determination of Punishment] General Fraud. Type 3 (at least 500 million won, less than 5 billion won)

[Special Doctrines] Reductions: Cases where a person commits a deceptive act with dolusent intent, or cases where the degree of the deceptive act is weak.

[Scope of Recommendation] Imprisonment of 1 year and 6 months to 4 years (Mitigation)

3. The crime of this case committed by the Defendant, who operates a private teaching institute, purchased the real estate owned by the victims for the purpose of the site of the private teaching institute, and if the real estate was acquired by transfer of the ownership of the real estate as collateral, the victims are deceiving the victims to transfer the ownership of the part of the intermediate payments and the balance, and are not paid an intermediate payment of KRW 1.3 billion. Since the auction procedure is in progress based on the right to collateral established after the Defendant completed the registration of ownership transfer, there is a possibility that the victims may ultimately lose the ownership of the real estate, and there is no agreement so that the victims want to be punished for the severe punishment of the Defendant due to the lack of such agreement, etc.

However, there are favorable circumstances, such as the following: (a) the Defendant thought that he may obtain additional loans according to the will of the lending brokerage business operator; and (b) the Defendant is trying to return the ownership of the instant real estate to the victims by filing a lawsuit seeking the cancellation of the said right to collateral security; and (c) there is no record of crime exceeding the fine.

In addition, considering the various circumstances shown in the records and pleadings, such as the age, character and conduct and environment of the accused, relationship to victims, motive and consequence of the crime, and circumstances after the crime, the same sentence as the order within the scope of recommended sentencing guidelines.

Judges

The presiding judge and judges;

Judges Kim Young-ho

Judgment of the Prosecutor

Note tin

1) Specific to the extent that the facts charged and basic facts are identical, and that there is no concern about substantial disadvantage in exercising the defendant’s right of defense

The facts are partially recognized differently from the facts charged.

2) The appraisal value of the instant real estate is KRW 2.30 million in total, and the internal regulations of financial institutions providing loans to 60-70% of the appraisal value.

The loanable amount is only 1.6 billion won.

3) In the indictment, the Defendant, at the time, caused a total of 1.6 billion won by borrowing money from L, which is the partner of the pertinent driving school, to incur damage to the Defendant.

L by taking over the ownership of the instant real estate in any way to avoid criminal punishment due to the situation in which a separate criminal investigation was being filed;

Defendant stated that “The intent to set up a right to collateral security and to revoke the complaint was to have been the intention to set up the right to collateral security,” but the panel of this case is as follows:

The right to collateral security, which was completed in the name of M in the movable property, is to secure the agreed amount with L, and furthermore, the defendant from the beginning

because there is a lack of data on the fact that the ownership of the instant real estate was transferred with the intention to set up and revoke the complaint, this part of the term

Sub-paragraph (1) recognizes the facts of crime by deletion.

4) The unpaid purchase price to F due to the repayment of the above loan remains KRW 597,204,784, and the unpaid purchase price to H remains KRW 716,137,504; and

The amount of money that the defendant additionally paid to 13,342,288 won shall be covered by F, the amount of money not paid to H, i.e., the amount of money acquired by deception shall exceed 500 million won;

(c)

5) D is a de facto one-person company that actually holds 100% shares in the name of the Defendant’s wife N.

6) Around 2016, December 12, 2012, the Defendant, even if in Korea, did not make a false statement as if he left Vietnam to receive investment money.

F The investigative agency stated that, at the time, the defendant would be able to solve all problems if he returns to Vietnam (Evidence Records).

667 pages);

7) On the premise that the foregoing right to collateral security was established to secure the amount of 500 million won agreed upon a dispute between the Defendant and L, the Prosecutor

The defendant organized the B/L, and the defendant established the B/L in advance to secure 500 million won of the investment of the corporation Vietnam.

The defendant, who was a previous partner, was investigated for a long time due to L's complaint, agreed by P's arbitration, and the investigative agency agreed with L's agreement.

In light of the fact that the above right to collateral security has been established in order to secure the money, the above right to collateral security has been established as a collateral for the amount agreed upon.

Although there is no possibility that the secured claim is likely to be made, on the other hand, the agreement does not mention the agreed amount and does not give rise to 'M' in the underlying document of the above right to collateral security.

in light of the fact that the agreement amount of provisional registration (as of January 2, 2017) is stated as KRW 600,000,000, and its content is unclear, the prosecutor submitted it to the prosecutor.

The agreement that the defendant created the right to collateral security in the name of M in order to secure the agreement with L alone.

It is difficult to view that there is no room for deliberation by the enemy.

8) If the Defendant consulted the Credit Guarantee Fund with respect to the issuance of a letter of guarantee on the basis of a zero introduction from the beginning of 2016 and has an interest in the payment of penalty, the issuance of a letter of guarantee

There is no request for issuance of a letter of guarantee after hearing the word that it is impossible (Evidence records 1582 pages).

9) On the other hand, the Defendant stated at an investigative agency that he would receive additional loans against the shortage of part payments at the time, while 0:

The defendant stated that he was aware of the additional loan to the defendant and that he was not willing to receive the loan (Evidence Records 1389, 1393).

10) If the Defendant reflects the increase in assets due to the acquisition of the instant real estate from 0, the Defendant is able to obtain a credit loan of KRW 200 million from X bank.

It seems that the payment of part payments was delayed until February 2017, which reflects the asset increase on the D's balance sheet.

11) P is unclear as to whether a P has actually been granted the power to represent an investment agreement with the said Vietnam corporation, and P is also subject to the above additional agreement.

documents evidencing the power of representation are not attached.

12) P shall, at an investigative agency, state that the Defendant has made a provisional registration of the instant real estate as security for investment funds and that the Defendant has made an investment in Vietnam on the face of the State.

I stated that he had been aware of it (Evidence No. 1404 pages).

13) AA bank and AB bank with a bank loan of KRW 290,000,000,000,000, under the name of the Defendant as security, and a Y apartment with the name of N as security.

The sum of the withdrawn KRW 30 million, AA Bank credit loans of KRW 180,000,000.

14) The joint and several liability amount of KRW 940 million for the debt of corporation D and the debt amount of KRW 940 million for P (at least 40 million, the amount of which is unclear)

aggregate.

15) At the investigative agency, S disposed of both the Defendant’s sales of the remainder of D Art Research Institutes or the Defendant’s sales of the right to operate a branch of D Art Research Institutes by payment in substitutes.

Then, the statement was made (Evidence Records 1188 pages)