(영문) 울산지방법원 2014. 8. 8. 선고 2013고합275,2014고합71(병합),2014고합83(병합) 판결

Defendant 1 shall be punished by imprisonment for three years and six months, by a fine of 80,00,000 won, and by imprisonment for two years and six months, and by imprisonment for three years and six months, and by imprisonment for three years and six months, respectively.

When Defendant 1 fails to pay the above fine, the above Defendant shall be confined in a workhouse for the period calculated by converting KRW 100,000 into one day.

80,000,000 won from Defendant 1, and 150,000 won from Defendant 2 (Nonindicted Party 2) shall be collected respectively.

Defendant 1 shall be ordered to pay the amount equivalent to the above fine and the surcharge, and the amount equivalent to the above additional surcharge to Defendant 2 (U.S. Nonindicted 2).

Of the facts charged in the instant case, Defendant 1 is acquitted of violating the Community Credit Cooperatives Act.

Criminal facts

【Criminal Power】

Defendant 3 was sentenced to eight months of imprisonment for fraud at the Ulsan District Court on February 10, 201, and completed the execution of the sentence on May 3, 2011.

[2013Gohap275 and 2014Gohap71]

Defendant 1 was a person working as a director in charge of loans from June 2003 to Jun. 6, 2003 at the new community credit cooperative located in Ulsan-dong, Ulsan-dong, 665-8, and Defendant 3 is a person who operates the construction of the construction business company in Do governor, and Defendant 2 (large Non-Indicted 2) is a person who arranges loans between the above new community credit cooperative and Defendant 3 while working as an employee of the business office of △△△

1. Crimes related to loans of KRW 750 million around March 15, 2012;

Defendant 3, around February 2012, when the construction funds of the studio building, which was being constructed in Ulsan-gu, Ulsan-do ( Address 1 omitted), had been insufficient, Defendant 2 (No. 2,000,000 won) who had previously been performing loan procedures using the above land as collateral, purchased the land and buildings ( Address 2 omitted) around the construction site at the level of KRW 560,000,000,000,000 to Defendant 2 (No. 2,000,000,000,000,000,000,000,000 won to the largest director of the Korea Saemaul Bank (Defendant 1) (hereinafter “Defendant 2,000,000,000 won) who had been granted a loan to Defendant 1,000,000 won to the maximum extent possible, and Defendant 2,50,0000,000 won and the appraisal institution had to obtain a loan to Defendant 165,00,00.

After that, Defendant 3 and Defendant 2 (Counter-party 2) made a false appraisal report on the real estate No. 1 of this case, which added the appraisal amount to at least one billion won, and conspired to obtain a loan after submitting it to Defendant 1.

A. Forgery of private documents by Defendant 3 and Defendant 2 (U.S. Non-Indicted 2) and uttering of falsified investigative documents

Defendant 2 (In the early March 2012, 2012, Defendant 2) filed an application for a loan to provide the instant first real estate with the said new community credit cooperative as collateral, and received the appraisal report by stating that Defendant 1 “I am able to see if the appraisal report arrives in the community credit cooperative, I am able to see.” Defendant 1’s contact that Defendant 1 arrived at the community credit cooperative, and then, Defendant 1 was sent the appraisal report to Defendant 1.

around that time, Defendant 2 (Large-board Co. 2) brought the appraisal report on the first real estate of this case prepared by Nonindicted Co. 6 (hereinafter “Nonindicted Co. 6”) to the office of the office of the office of △△△△△△, a vehicle in Nam-gu, Nam-gu, Ulsan-gu, Seoul-do, and newly create an appraisal report. The appraisal part of the appraisal report of this case is as follows: “The appraisal and assessment value of only KRW 751,602,169-169-) of KRW 790,000 (Won 1,349,922,160-).” The appraisal and assessment part of the land price of this case is 1,510,000, “65,490,000,” “1254,810,000,000 to the office of the office of the office of △△△△△△△, and the appraisal and assessment report of this case was 160,29616,700.

As a result, Defendant 3 and Defendant 2 (Counter-board Nonindicted 2) forged the appraisal report in the name of Nonindicted Co. 6, Nonindicted 7, and Nonindicted 8 on the instant real estate 1, which is a private document for the fact-finding without authority, for the purpose of uttering in collusion, and exercised the appraisal report in the name of Nonindicted Co. 7 and Nonindicted 8 respectively.

B. Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Aggravated Punishment, etc. of Specific Economic Crimes) (Aggravated Punishment, etc. of Specific Economic Crimes) (Aggravated Punishment, etc. of Specific Economic Crimes), Defendant 3, and Defendant 2 (Aggravated Punishment, etc. of Specific Economic Crimes in Large

Defendant 3, around March 15, 2012, borrowed KRW 750 million from the above new Saemaul Savings Depository through the above method, and withdrawn KRW 30 million as agreed in advance on the job, and delivered it to Defendant 2 (U.S. Non-Indicted 2). Defendant 2 (U.S. Non-Indicted 2), around March 22, 2012, was parked on the road near the pen apartment located in Ulsan-gun, Ulsan Metropolitan City ( Address 3 omitted), which was located around the pen apartment, under the name of Defendant 1’s (vehicle number omitted) loan recompense for KRW 10 million from the above KRW 30 million to Defendant 1.

As a result, Defendant 3 and Defendant 2 (Nonindicted 2) conspired to provide 10 million won to the officers and employees of financial companies, etc. with respect to their duties, and Defendant 2 (Nonindicted 2) received KRW 20 million with respect to the arrangement of matters belonging to the duties of officers and employees of financial companies, etc., and Defendant 1 received KRW 10 million from the officers and employees of financial companies, etc. in relation to their duties.

2. Crimes related to loans of KRW 4 billion around June 14, 2012;

Defendant 3 obtained a separate loan from around March 2012 to Ulsan-gun, Seoyang-gun ( Address 2 omitted), and obtained a loan from Defendant 2 (Non-Party 2) around April 2012 to cover the above construction fund, and conducted a commercial building on three lots (hereinafter “the instant 2 real estate”). The case holding that Defendant 2 (Defendant 1) should be given a maximum amount of KRW 4 billion to Defendant 1’s loan to Defendant 3 billion in installments, and Defendant 3 should be given a separate loan to Defendant 1, the appraisal and assessment amount of KRW 4 billion in the name of Defendant 2’s loan to Defendant 3.4 billion in installments. The case is that Defendant 2 (B) should be given the maximum amount of loan to Defendant 1, the appraisal and assessment amount of KRW 4 billion in the name of Defendant 3 billion in installments.

A. The Defendants’ co-principal

(i) the fabrication of private documents and the display of private documents;

Defendant 2 (In the meantime, Defendant 2) requested the above new community credit cooperative to lend the instant real estate No. 2 to the said new community credit cooperative, followed by Defendant 1’s request for a loan to secure the instant real estate No. 23, and followed by Defendant 1’s communication that three copies of the appraisal report prepared by Nonindicted Co. 6 on the instant real estate No. 23 to arrive at the new community credit cooperative. Defendant 1 received three copies of the appraisal report from Defendant 1, and submitted three copies of the appraisal report to Defendant 1 in the office of the △△△△△ Motor and △△△△ in accordance with the above No. 1-A in the manner described in the above paragraph 1-A, as follows: “The details of forgery of the appraisal report on the instant 2 real estate No. 3 real estate,” each of the remaining parts of the appraisal report shall be consistent with the above contents, and each of the appraisal report shall be signed and sealed by Nonindicted Co. 9 and 10, respectively, and Defendant 1 again transferred the appraisal report to Defendant 1, etc.

As a result, the Defendants, in collusion, forged three copies of the appraisal report in the name of Nonindicted Co. 6, Nonindicted 9, and Nonindicted 10 on the instant 2 real estate, which is a private document for the purpose of exercising a certificate of fact without authority, and exercised them to Nonindicted Co. 11, etc.

In the appraisal statement (number omitted of the appraisal statement) of the total amount of the appraisal value of the land contained in the main sentence of this paragraph, 'Y 882,00,000,000 -' 'Y 882,000,000 -' 'Y 3,000,800,000' from '882,00,000' to 'Y 882,00,000' from 'Y 'Y 882,00,000 ' ' ' ' '82,00,000,000 ' ' ' '3,00,000,000 ' ' ' ' '3,000,80,800,000 - ' '4,0005,000 ' ' ' '66,000,005,000 ' ' ' '4,7,000063,0000

2) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

Although there was a business duty to accurately assess the collateral value in accordance with the internal loan business regulations and lend the collateral value within the scope of the possible amount of the loan amount pursuant to the collateral value, Defendant 1 violated his duties, and thus, Defendant 1 submitted the loan amount of KRW 2,038,680,000 (=82,000,000 + 563,040,000 + 593,640,000 + 593,640,000) as the loan amount of KRW 1,23,208,000 (=529,200,000,000 + 337,824,000 +356,184,000 + 00,000 won under the name of the above 200,000,000 won with knowledge that the loan was made under the name of the above 204,000,0000 won.

Accordingly, the Defendants jointly loaned the amount exceeding the amount of KRW 1,961,320,00 (=4,000,000,000-2,038,680,000) compared to the appraised value of the instant second real estate, thereby making it difficult to recover it difficult for the Defendants to obtain pecuniary benefits equivalent to the above excessive amount of the loan, and thereby causing property damage equivalent to the above excessive amount of the loan to the Defendant 3.

Defendant 3, around June 14, 2012, received a loan of KRW 4 billion from the above new Saemaul Savings Depository through the above method, and withdrawn KRW 200 million in advance as agreed in that place, and Defendant 2 (Nonindicted 2, 2000,000,000 won out of the above KRW 20 million out of the above KRW 200,000,000 among the above KRW 20,000,000 among the above KRW 20,000,000 in his (vehicle number 2 omitted), which was parked on the road near the above Subdivision apartment around June 20, 2012, Defendant 2 (Nonindicted 2,000,000,000 won out of the above KRW 30,000 among the above KRW 20,00 in the above BM vehicle parked in the same place around 20:0 on July 20, 2012.

As a result, Defendant 3 and Defendant 2 (Nonindicted 2) conspired with each other to provide KRW 70 million in connection with their duties to the officers and employees of financial companies, etc., and Defendant 2 (Nonindicted 2) received KRW 130 million in relation to the arrangement of matters belonging to the duties of officers and employees of financial companies, etc., and Defendant 1 received KRW 70 million in relation to their duties by the executives and employees of financial companies, etc.

[2014Gohap83]

Defendant 3 requested Nonindicted 12 to color a person who will invest an amount equivalent to KRW 200 million in the loan work, as the actual operator of the construction company at the Dogdong-gu, Ulsan-gun, Ulsan-do, Seoul-do, for the completion of the construction work on the Dogdong-gu, Seoul-do ( Address 2 omitted) was insufficient.

위 공소외 12는 피고인의 요청에 따라, 2012. 11. 20.경 울산 울주군 (주소 3 생략)에 있는 ‘◁◁공인중개사’ 사무소에서, 피해자 공소외 13(41세)에게 "□□에서 ‘복돼지 빌’ 빌라를 2012. 12. 하순경 준공예정으로 공사하고 있는데, 공사대금을 투자하면 2달 후인 2013. 1. 하순경까지 반드시 3억 원을 갚아 주겠다“는 취지로 피고인의 말을 전달하였다.

However, at the time, the Defendant had a debt amounting to KRW 150 million with bad credit, and around March 2012, the Defendant made a false appraisal report, such as withdrawing the appraisal amount from the land borrowed from the New Saemaul Bank of Korea and the commercial site constructed in Ulsan-gun ( Address 5 omitted), etc., and made a false appraisal report, and made it a false amount exceeding KRW 2.7 billion with a real security value, such as illegally borrowing KRW 4.5 billion with a debt amounting to KRW 5 billion with a total of KRW 5.5 billion, and the said subcontractor was also liable for a debt amounting to KRW 5.5 billion with a total of KRW 5 billion with a real security value. Moreover, even if having received money from the victim, even if having received money from the victim, the Defendant was unable to fully pay the construction price, and even if having failed to have the intent or ability to complete payment of KRW 300 million with the said money, the Defendant had the said victim make a false statement to the victim.

Ultimately, the Defendant, as seen above, by deceiving the victim through Nonindicted 12, obtained from the victim the total sum of KRW 230 million, including KRW 180 million in cash through Nonindicted 14, which was the 30 million head of the Tong in the name of Nonindicted 3, on November 28, 2012, the Defendant acquired from the victim, and acquired from the victim the victim the total sum of KRW 230 million, including KRW 30 million in cash through Nonindicted 14, which was the said regular manager, on November 30, 2012.

Summary of Evidence

[2013Gohap275 and 2014Gohap71]

1. Defendant 2 (Non-Indicted 2)’s legal statement

1. Each legal statement of the defendant 1 and 3

1. As to Defendant 1’s examination record of the suspect (as to Defendant 1 and Defendant 2 (Counter-board Nonindicted 2)

1. The prosecutor’s statement concerning Nonindicted 15

1. Each police statement on Nonindicted 3, Nonindicted 4, and Nonindicted 1

1. Report on the receipt of criminal intelligences (large-amount loan case pocket book for employees of financial institutions), and each investigation report;

1. A copy of a loan-related document, such as an appraisal report, a copy of an appraisal report, a business registration certificate, a statement of account transactions, a copy of each previous sheet, a statement of self-store checks, a resolution on loan deliberation, etc

[2014Gohap83]

1. Defendant 3’s legal statement

1. Each police statement made against Nonindicted 13

1. A copy of passbook, an authentic copy of notarial deed, and a criminal report (Submission of contact information of a contractor);

[Prior Crimes] Criminal Records (Defendant 3), Investigation Report (Confirmation of Cumulative Offense by Defendant 3, and Attachment of Judgment) (Attachment of Judgment) and Copy of Judgment

Application of Statutes

1. Article applicable to criminal facts;

A. Defendant 1: Article 5(1) and (5) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter “Aggravated Punishment, etc.”) (hereinafter “Aggravated Punishment, etc.”) (hereinafter “Aggravated Punishment, etc.”) (hereinafter “Aggravated Punishment, etc.”) and Articles 231, 30 (hereinafter “Aggravated Punishment, etc.”) of the Criminal Act; Articles 234, 231, and 30 (a) of the Criminal Act; Articles 234, 231, and 30 (a) of the Aggravated Punishment, etc. of Specific Economic Crimes Act; Articles 5(4)2, 5(1), and (5) of the Aggravated Punishment, etc. of Specific Economic Crimes Act (hereinafter “Aggravated Punishment, etc.”) (hereinafter “Aggravated Punishment, etc. of Specific Economic Crimes Act”); Article 3(1)2 of the Aggravated Punishment, etc. of Specific Economic Crimes Act; Article 3(2) of the Aggravated Punishment, etc.; Article 356, Article 35(2) of the Criminal Act

B. Defendant 2 (Non-Indicted 2): Each Criminal Act; Articles 231, 30 (the use of the private document under consideration); Articles 234, 231, and 30 (the use of the private document); Articles 6(1) and 5 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes; Article 30 of the Criminal Act [including the use of evidence; the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes related to loans of KRW 4 billion around June 14, 2012]; Article 7 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the use of evidence as good offices); Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes; Articles 356 and 355(2) of the Criminal Act; Article 30 (Misappropriation of Trust) of the Criminal Act

C. Defendant 3: Each of the Criminal Code Articles 231, 30 (the Article 30 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes), Articles 234, 231, and 30 (the use of a private document), Articles 6(1) and 5 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, and Article 30 of the Criminal Code / [the use of evidence, and the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, concerning loans of KRW 4 billion around June 14, 2012] of the Criminal Code; Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356, and 35(2) of the Criminal Code; Article 30 (Misappropriation of Trust) of the Criminal Code; Article 347(1)(Fraud of the Criminal Code

1. Formal concurrence (defendants);

Articles 40 and 50 (For Defendant 1, around June 14, 2012, between the crimes of forging private documents on loan of KRW 4 billion; the punishment prescribed for the crimes of forging private documents on the list of non-indicted 10, with a heavier amount of crime; the punishment on each of the crimes of uttering of private documents on loan of KRW 4 billion around June 14, 2012; the punishment prescribed for the crimes of uttering of private documents on the list of non-indicted 6, an appraisal report (number of appraisal report) in the name of the non-indicted 6, with the largest amount of crime; the punishment imposed on Defendant 2 (name non-indicted 2); the punishment imposed on Defendant 3; the punishment imposed on each of the above crimes of forging private documents on KRW 750,000,00,000,000; the punishment imposed on each of the above crimes of uttering of private documents on KRW 160,000,000; the punishment imposed on each of the crimes of uttering of private documents on the name of non-indicted 8;

1. Selection of a sentence;

A. Defendant 1: From June 14, 2012 to June 14, 2012, the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (water, etc.) and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) are

B. Defendant 2 (Non-Indicted 2) and Defendant 3: Selection of imprisonment with prison labor for each crime other than the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

1. Aggravation of repeated crimes (Defendant 3);

Article 35 of the Criminal Act

1. Aggravation of concurrent crimes (defendants);

(a) Defendant 1: the penalty prescribed in the former part of Article 37, Articles 38(1)2 and 50 of the Criminal Act (in the case of imprisonment, referring to concurrent crimes to the extent that the total amount of each violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Water, etc.) related to the Aggravated Punishment, etc. of Specific Economic Crimes (Aggravated Punishment, etc. of Specific Economic Crimes (Aggravated Punishment, etc.) related to the loan of KRW 4 billion, around June 14, 2012 with the largest punishment, is added to the penalty, and the penalty is added to the penalty prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Aggravated Punishment, etc. of Specific Economic Crimes

B. Defendant 2 (Non-Indicted 2): the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (limited to concurrent crimes with punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, which is the largest punishment)

(c) Defendant 3: the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (limited to concurrent crimes with the punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, which is the largest penalty);

1. Discretionary mitigation (Defendant 1, Defendant 2 (Cross-Indicted 2)

Articles 53, 55(1)3, and 6 of each Criminal Code (The following favorable circumstances):

1. Detention in a workhouse (Defendant 1);

Articles 70 and 69(2) of the Criminal Act

1. Collection (Defendant 1, Defendant 2 (Nonindicted 2)

Article 10 (2) and (3) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

1. Order of provisional payment (Defendant 1, Defendant 2 (Counter-Defendant 2)

Article 334(1) of the Criminal Procedure Act

Defendant 1, Defendant 3, and defense counsel's assertion and judgment thereon

1. Summary of the assertion

A. Defendant 1 [Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)]

Although the Defendant delivered the appraisal report on the instant 2 real estate to Defendant 2 (Non-Indicted 2), Defendant 2 (Non-Indicted 2) was not expected to arbitrarily forge the appraisal report, there was no prior conspiracy with Defendant 2 (Non-Indicted 2) and Defendant 3. Therefore, the Defendant was unaware of the fact that the appraisal value is much much more than the actual value of the real estate in question and the amount exceeding the actual value of the real estate in question is a loan exceeding the real value of the secured real estate.

B. Defendant 3 [Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)]

The forgery of each of the appraisal reports of this case was made by Defendant 2 (Nonindicted 2) alone, and the Defendant did not have conspired with Defendant 2 (Nonindicted 2) to forge.

2. Determination

A. Defendant 1

At least two co-offenders who are jointly engaged in a crime do not legally require a certain type of punishment, but only if two or more persons agree to jointly process a crime and realize the crime. Even if there was no process of the whole conspiracy, if a combination of intentions is made in order or impliedly through several persons, the conspiracy relationship is established, and if there was no direct involvement in the conduct, even if there was no direct evidence, the conspiracy is criminal liability as a co-principal for the other co-principal's act. The above conspiracy can be acknowledged in accordance with the circumstantial facts and empirical rules, even if there was no direct evidence.

According to the evidence adopted and examined by the court, ① Defendant was given an appraisal report on the instant 2 real estate by Nonindicted Co. 6 and informed Defendant 2 (Nonindicted Co. 2) of such appraisal report to Defendant 2 (Nonindicted Co. 2) by Nonindicted Co. 1’s visit the new Saemaul Savings Depository to the Defendant, and there is a difference between the appraisal report and the appraisal report that he would have received from Nonindicted Co. 6, and the Defendant would have received the appraisal report [Article 2013 Gohap275 and 2014 Gohap71] as stated in the judgment [Article 201]; ② The appraisal report of the instant 2 real estate was merely KRW 2 billion and the appraisal report of this case was written by Nonindicted Co. 2, which was written by Nonindicted Co. 3 at the time of the above investigation and assessment; ② the appraisal report of the instant case was written by Nonindicted Co. 2, who was not aware of the fact that the appraisal report was forged or falsified by Nonindicted Co. 2, the Defendant would not have any problem with Defendant Co. 2’s appraisal report. 2 (3).

B. Defendant 3

In light of the following circumstances acknowledged by the court’s adoption and investigation, ① Defendant 2 (U.S. 2) rejected Nonindicted Party 2’s loan from the investigative agency to Nonindicted Party 3, and asked Defendant 1 to obtain a loan from Nonindicted Party 2 (U.S. 2). In order for Defendant 2 to use Nonindicted Party 2’s financial statements, Nonindicted Party 2 (“U.S. 2”) to know that it would be difficult to obtain a loan from Nonindicted Party 2, the appraisal and assessment was forged, and the appraisal and assessment would have to be forged or falsified, and the appraisal and assessment would have to be forged or falsified to the effect that Defendant 2 would have no person to know of the loan from Nonindicted Party 2 (U.S. 2). However, it would have to be difficult for Defendant 2 to use Nonindicted Party 4’s financial statements to raise the amount of appraisal and assessment for the following reasons: (i) Defendant 2 and Nonindicted Party 2’s financial statements to the extent that it would have been forged or falsified; (ii) Defendant 2 would have to be forged or falsified.

Reasons for sentencing

1. Defendant 1

(a) Imprisonment with prison labor of up to June of 3 years to June of 22 years, fines of up to 80,000,000 won to 200,000 won;

(b) Application of the sentencing criteria;

1. Class 1 crime: Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes; and

[Determination of Punishment] Financial Crimes, Acceptance of Officers and Employees of Financial Institutions, Types 4

【Special Convicted Persons】

- Reduction Elements: Self-denunciation

[Scope of Recommendation] Imprisonment of 3 years and 6 months to 6 years (Mitigation)

【General Convicts】

- Mitigation elements: Serious reflect

2. Second crime: Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation).

[Determination of Punishment] Embezzlement and Breach of Trust, Type 3 (at least KRW 500 million but less than KRW 5 billion)

【Special Convicted Persons】

- Reduction Elements: Self-denunciation

[Scope of Recommendation] Imprisonment of 1 year and 6 months to 3 years (Mitigation)

【General Convicts】

- Mitigation elements: Serious reflect

3. Third offense: Crimes of forging private documents or uttering of private documents;

[Determination of Punishment] Crimes of Private Document, Counterfeiting, Alteration, etc. of Private Document

【Special Convicted Persons】

- Reduction Elements: Self-denunciation

[Scope of Recommendation] One year (Mitigation of Imprisonment)

【General Convicts】

-Aggravationd elements: In the case of using the equipment, such as the dispositive documents and evidence submission, on the basis of the forgery or alteration of important documents with a great social credibility, or on the basis of the specialized or altered equipment, etc.

4) 3 years and 6 months to 7 years (in accordance with the guidelines for processing multiple crimes, 1/2 of the upper limit of the sentence range of the Class 1 and 1/3 of the upper limit of the sentence range of the Class 2 and 3 shall be added respectively to the upper limit of the sentence range of the Class 1 according to the guidelines for processing multiple crimes).

Although the Defendant was in a position to maintain the integrity and morality of the duties of financial institutions as executive officers and employees, in relation to loans, he received money and valuables from Defendant 2 (B) and Defendant 3, and furthermore, in violation of the occupational duty to make loans within the scope of the loanable amount according to the collateral value by accurately assessing the collateral value, and thus making it difficult to recover the amount by lending money to Defendant 2 (B) and Defendant 3. As such, through the series of crimes mentioned above, not only significantly damaging the social trust in relation to the uncertainty of the duties of financial institutions, but also causing significant damage to the community credit cooperatives through occupational breach of trust for personal interest, it is very heavy in that the total amount of money and valuables received is at least KRW 80,000,00,000.

On the other hand, the sentencing conditions such as the defendant's age, character and behavior, health, home environment, motive and circumstance of the crime and circumstances before and after the crime are determined in consideration of the fact that the defendant does not seem to have actively demanded money and valuables to the defendant 2 (non-indicted 2) and the defendant 3, the defendant voluntarily surrenders himself, and favorable circumstances such as the fact that the defendant has no specific criminal punishment power other than the fine due to the crime of violation of the Road Traffic Act

2. Defendant 2 (Non-Indicted 2)

(a) The scope of applicable sentences: one year and six months from June to 22 months;

(b) Application of the sentencing criteria;

1. First crime: Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation); and

[Determination of Punishment] Embezzlement and Breach of Trust, Type 3 (at least KRW 500 million but less than KRW 5 billion)

[Scope of Recommendation] Two to Five years of imprisonment (Basic Area)

【General Convicts】

- Mitigation elements: Serious reflect

2. Second crime: Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes; and

[Determination of Punishment] Financial Crimes, Mediation and Acceptance for the Duties of Officers and Employees of Financial Institutions, Types 4

[Scope of Recommendation] Imprisonment of 2 years and 6 months to 3 years and 6 months (Basic Area)

【General Convicts】

- Aggravations: in case of good offices

- Mitigation elements: Serious reflect

3. Third offense: the offense of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes; and

[Determination of Punishment] Financial Crimes, Evidence of Officers and Employees of Financial Institutions, Type 3

[Scope of Recommendation] Imprisonment of 1 year and 6 months to 2 years and 6 months (Basic Area)

【General Convicts】

- Aggravations: in a case where business relations are high.

- Mitigation elements: Serious reflect

4. Class 4 crime: The crime of forging private documents or uttering of private documents;

[Determination of Punishment] Crimes of Private Document, Forgery, Alteration, etc. of Private Document

[Scope of Recommendation] Six months to two years (Basic Area)

【General Convicts】

-Aggravations: Where a person who has made a forgery or alteration uses the relevant forged or altered document, such as a disposal document and evidence submission document, and where the forgery or alteration of important documents with a high social credibility is made, or where the specialized and altered equipment (such as a photofr, scanner, etc.) is used;

- Mitigation elements: Serious reflect

5) Two years and six months to seven years (in accordance with the processing guidelines for multiple crimes, the upper limit of the sentencing range of crimes No. 1/2, and the upper limit of the sentencing range of crimes No. 3 shall be added to the upper limit of the sentencing range of crimes No. 1 in accordance with the processing guidelines).

The amount of mediation acceptance of this case reaches KRW 150 million, and the amount of evidence of this case reaches KRW 80 million, and the defendant mediates the defendant 3, who is an executive officer or employee of financial institution, and the defendant acts as an executive officer or employee of the financial institution, and acts as an executive officer or employee of the financial institution, the defendant does not have any specific criminal punishment power other than a fine due to a violation of the Road Traffic Act, and the defendant reflects his/her mistake through confinement life, and other favorable circumstances, such as the defendant's age, character and behavior, health, home environment, motive and circumstance of the crime, and circumstances before and after the crime, etc., shall be determined by the same sentence as the order.

3. Defendant 3

(a) Scope of punishment: Three to forty-five years;

(b) Application of the sentencing criteria;

1) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

[Determination of Punishment] Embezzlement and Breach of Trust, Type 3 (at least KRW 500 million but less than KRW 5 billion)

[Scope of Recommendation] Two to Five years of imprisonment (Basic Area)

2) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Additional Economic Crimes)

[Determination of Punishment] Financial Crimes, Evidence of Officers and Employees of Financial Institutions, Type 3

[Scope of Recommendation] Imprisonment of 1 year and 6 months to 2 years and 6 months (Basic Area)

【General Convicts】

- Aggravations: in a case where business relations are high.

3) 3th crime fraud

[Determination of Punishment] General Fraud, Type 2 (at least KRW 100 million, less than KRW 500 million)

【Special Convicted Persons】

- Reduction Elements: Non-Mitigation of Punishment

- Aggravations: Cumulative Offense

[Scope of Recommendation] Imprisonment of 10 months to 2 years (Discretionary)

4) Forgery of private documents and uttering of private documents for the fourth crime

[Determination of Punishment] Crimes of Private Document, Counterfeiting, Alteration, etc. of Private Document

[Scope of Recommendation] Six months to two years (Basic Area)

【General Convicts】

- Mitigation elements: Serious reflect

5) Two to seven years of imprisonment with prison labor for the modified recommended range (in accordance with the guidelines for handling multiple crimes, 1/2 to the upper limit of the sentencing range of the Class 1 and 1/3 to the upper limit of the sentencing range of the Class 2).

The amount of the evidence of this case exceeds KRW 80 million, the defendant offered the consideration for arranging and proposing to forge the appraisal report to Defendant 2 (Nonindicted 2). Although the defendant had led each of the crimes of this case, such as giving evidence to Defendant 1, the appraisal report, which is the core matter of the crime of this case, denies the above Article, the defendant had been punished for 20 times due to fraud, etc., and the defendant had been sentenced for 8 months on February 10, 201, again committed each of the crimes of this case during the repeated crime period after the completion of the execution of the punishment, and again committed each of the crimes of this case again during the repeated crime period after the execution of the punishment was sentenced for 8 months on February 10, 201, and the defendant did not violate his own mistake, and the sentence like the order of sentencing shall be determined in consideration of all the circumstances such as the defendant's age, character and behavior, health, home environment, motive and circumstance of the crime, and the circumstances before and after the crime.

Parts of innocence

1. Summary of the facts charged (Defendant 1’s violation of the Community Credit Cooperatives Act);

No executive, employee, etc. of community credit cooperatives shall refuse, interfere with, or evade an inspection by a supervisory agency, or make a false statement in the question of the inspector.

Although Defendant 3 received KRW 10 million from Defendant 2 (U.S. Non-Indicted 2) around March 22, 2012, KRW 40 million around June 20, and KRW 30 million from July 2012 from Defendant 2 (U.S. Non-Indicted 2) on the pretext of the case cost for giving a total of KRW 4.75 million as stated in the above paragraph (a), the Defendant made a statement to Defendant 3 as follows: (a) around August 20, 2013, at the president of the New Saemaul Depository’s office, the inspector of the Korea Community Credit Cooperative Federation, who belongs to the Chief Director of the Korea Community Depository, received money from Defendant 2 (U.S. 2), Defendant 3, Non-Indicted 3, Non-Indicted 4, and Non-Indicted 5 (U.S. 2) as a false case.

2. Determination

A. The case holding that Article 85 (2) 9 of the Community Credit Cooperatives Act provides that "where an executive officer, employee, or liquidator of the Fund or the Federation refuses, interferes with, or evades an inspection by a supervisory agency, or makes a false statement to a question by the inspector, he/she shall be punished by imprisonment with labor for not more than three years or by a fine not exceeding five million won, and according to the evidence duly adopted and examined by this court, the defendant can be acknowledged as having received a loan of a total of KRW 4,750,00 won, as stated in Article 85 (2) 9 of the Community Credit Cooperatives Act (hereinafter referred to as "non-indicted 2, 200,000 won," Non-indicted 3, 200,000 won around March 22, 2012, around June 20, 2012, from Non-indicted 3, 200,000 won among non-indicted 3, 200,000 won from the public prosecutor's team."

B. However, in full view of the following circumstances, Article 85(2)9 of the Community Credit Cooperatives Act should be interpreted as not applying to cases where the statement “in a false statement to an inspector’s question” is a statement about criminal liability.

1) Article 12(2) of the Constitution provides that “All citizens shall not be advisered and shall not be forced to make a statement unfavorable to themselves in criminal cases,” thereby guaranteeing the fundamental rights of the people that they shall not be forced to make a statement regarding criminal liability. In addition, the right to refuse to make a statement is not guaranteed only in criminal proceedings, but also guaranteed as the fundamental rights of the people who shall not be forced to make a statement in any case where the statement is disadvantageous to themselves, such as administrative procedures or questions at the National Assembly. In addition, the right to refuse to make a statement is not guaranteed, and is currently guaranteed as the fundamental rights of the people who shall not be forced to make a statement in any case where the statement is disadvantageous to themselves, such as inquiries at the National Assembly. Therefore, if the contents of the statement are related to the criminal liability of the criminal suspect or the defendant, as well as the suspect or the person who is likely to be the future criminal suspect or the defendant, the right to refuse to make a statement is guaranteed without being forced to make a statement. In addition, the right to refuse to make a statement refers to force an adviser or other acts as an act (see Constitutional Court Decision 8.

2) If the defendant asked questions of the inspector Non-Indicted 1 to the effect that "the defendant was given a monetary reward from Defendant 2 (non-indicted 2) in connection with the loan, etc., it would in itself be deemed that the person is a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes. Article 12 (2) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes provides that "When an executive or employee of a financial company, etc., executive or employee engaged in the duties of an auditor or prosecutor, or a supervisory agency, who is in charge of the supervisory duties of a financial company, etc., becomes aware of a crime prescribed by this Act in connection with his/her duties, he/she shall, without delay, inform the investigative agency of the fact that the executive or employee of the financial company, etc. committed the crime prescribed by this Act." Thus, the defendant's statement, etc. acquired by the inspector shall be used as materials for the prosecution of criminal liability. Accordingly, if the defendant is subject to criminal punishment if the defendant makes a false statement about the question as stated in the

C. Therefore, even if the defendant did not respond to the question of the inspector, such as the facts charged, it does not constitute a violation of the Community Credit Cooperatives Act.

3. Conclusion

Thus, the above facts charged constitute a case that does not constitute a crime, and thus, the defendant is acquitted pursuant to the former part of Article 325 of the Criminal Procedure Act.

Justices Kim Head (Presiding Justice) (Presiding Justice)

심급 사건

울산지방법원 2014.8.8.선고 2013고합275,2014고합71(병합),2014고합83(병합)

-부산고등법원 2015.2.5.선고 2014노582

-대법원 2015.5.28.선고 2015도3136

본문참조판례

-2013고합275

-2014고합71

-2014고합83

-대전지방법원 홍성지원 2015. 1. 8. 선고 2014고합71 판결

-울산지방법원 2014. 8. 8. 선고 2013고합275,2014고합71(병합),2014고합83(병합) 판결

-헌법재판소 1990. 8. 27. 선고 89헌가118