2013No1911(Separation)

(b) Fraud;

2013 initially 2662 Application for a compensation order

1. A.

2.2.B

3.2.C

4. (b) D.

5.2.2. E

6.(b), F

7.b. G.

8.b. H

9.2.1

10. b.K

11.b. M

12.N

13.2.2

Defendant A, M and Prosecutor

Isle (prosecution) and Yellow-line (Public trial)

Law Firm P, Attorney Lee Dong-soo

Hyundai Marine Fire Insurance Corporation

Incheon District Court Decision 2012Gohap366 Decided June 14, 2013

February 7, 2014

Of the judgment of the court below, the part of the guilty portion against Defendant A and the part as to Defendant N with respect to each of the fraudulent aiding and abetting of Defendant N and the part as to Defendant N, respectively. Defendant A shall be punished by a fine of KRW 4,00,000, and a fine of KRW 500,000,000, respectively. If the above Defendants did not pay the above fine, the above Defendants shall be confined in the workhouse for the period calculated by converting KRW 50,000 by one day.

The above Defendants shall be ordered to pay the amount equivalent to the above fines. The Defendant M’s appeal and the Prosecutor’s Defendant B, C, D. E, F, G, H, I, K, M,00 and the Defendant B, D, E, G, H, I, H, K, H, K, M,O and R, S, T, and U are dismissed, respectively.

An application for compensation by an applicant for compensation shall be dismissed.

1. Summary of grounds for appeal;

1. Defendant A and M

A. Defendant A’s assertion of mistake of facts

Defendant A had no intention to assist Defendant M in committing fraud. Nevertheless, the lower court erred by misapprehending the fact that the lower court found Defendant M guilty of aiding and abetting the fraud of Defendant M on April 22, 2010 among the facts charged against Defendant A, thereby adversely affecting the conclusion of the judgment.

B. The above defendants' assertion of unfair sentencing

In light of the various sentencing conditions of this case, the sentence of the court below against the above Defendants (the fine of KRW 2 million, Defendant M: the fine of KRW 700,000) is too unreasonable.

2. A prosecutor;

Defendant B, C, D, E, F, G, H, J, K, L, M (the operation related to the operation on March 19, 2010), 0 and R, S, T, U (hereinafter “Defendant B, etc.”) and Defendant N claimed insurance money by deceiving the victim insurance company as if they were hospitalized for 2 days in one night, even though they actually received pain treatment. Accordingly, Defendant A got through deception of property such as additional payment of KRW 1 to 50,00 won per day of hospitalization, and aided and abetted the above fraud. Nevertheless, the lower court erred by misapprehending the fact that the lower court acquitted the Defendant of each of the charges, or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

I. Judgment Ⅱ.

1. Judgment on Defendant A’s assertion of mistake of facts

A. The judgment of the court below

In light of the following circumstances, which can be duly admitted and investigated evidence, i.e., (i) the need for hospitalization after an operation of the domination; (ii) the Defendant M only when the given Defendant was staying in the hospital to undergo an operation of the domination surgery and its recovery, but does not exceed 2 hours, and does not fall within 6 hours (the requirement of the so-called 's low-time ward'). After an operation, the Defendant was at the hospital to escape or rest in anesthesia in the recovery room and did not appear to have been given special treatment or observation by medical staff. However, even if the hospitalization does not necessarily require that the patient stay in the hospital for a certain period of time, it is difficult to view that the above Defendant’s sojourn in the hospital is difficult to be considered as “hospitalize” in the case of hospitalization, and (iii) the Defendant was in charge of insurance affairs, and the Defendant had been performing the same operation even before the operation.

In light of the fact that there was a timely receipt of insurance money, the above Defendant appears to have been aware that the certificate of hospitalization, which was entered as being hospitalized for two days, was false even if he was not hospitalized for two days after the operation of imperculecing, was discharged at approximately two hours after the operation of impulecing. Nevertheless, in light of the fact that the above Defendant received insurance money upon receipt of the certificate of hospitalization, it was recognized that the above Defendant

Furthermore, the court below found Defendant A guilty on the ground that: (a) the following circumstances acknowledged by each of the above evidence, namely, ① the surgery cost of which is one million won or more to three million won; (b) if the above Defendant did not issue a written confirmation of hospitalization, it appears that the patient could not have been able to decide whether to conduct the surgery; and (c) the above Defendant’s captain could have been able to consult with the purport that the nurse of the above Defendant’s hospital would have been able to receive the insurance money on the day when he purchased an indemnity insurance policy with respect to the surgery; (d) without a false written confirmation of hospitalization issued by the above Defendant, it appears that the above Defendant was aware that the Defendant M did not claim insurance money on the day; and (e) the above Defendant’s medical doctor would have been aware that there was an important fact that the time of applying the insurance policy was an important fact in terms of the application of the hospitalization insurance; and (e) the Defendant’s written confirmation that Defendant M& et al. was aware of his intent to assist the patients, including the Defendant M& et al.

B. Judgment of the court below

In addition to the above circumstances, in light of the following circumstances, which can be recognized by each of the above evidence, i.e., ① the defendant A also stated by the investigative agency that the reason for the patient's request for a written confirmation of hospitalization was to refer to the actual medical expenses insurance (Evidence No. 1052 pages), ② the above defendant stated that he made efforts to meet the standard six hours of hospitalization on the day (Evidence No. 1048 pages), the above defendant was well aware that at least six hours had been able to issue a written confirmation of hospitalization by meeting the hospitalization requirements to stay in the hospital, ③ As seen earlier, in the case of the defendant M which is only two hours of stay in the hospital, the defendant A knew that the time of stay in the hospital was less than two hours and issued a written confirmation of hospitalization for one-day one-day period to the defendant M, and that the defendant A issued a written confirmation of hospitalization for two days to the defendant M., we affirm the judgment of the court below that there was no erroneous determination of facts as to aiding and abetting the defendant M.

2. Judgment on the prosecutor's assertion of mistake or misapprehension of legal principle

A. Summary of this part of the facts charged

(1) On June 24, 2009, Defendant A’s fraud aiding and abetting the Defendant B by preparing a false certificate of hospitalization to the effect that Defendant B, who requested the issuance of a written hospitalization to claim for insurance money even when he/she returned to the said hospital without hospitalized treatment on the date of the surgery with the Defendant B, who was found to be a patient at the said hospital. Around June 24, 2009, he/she aided and abetting the Defendant B to obtain KRW 2,798,500 from Hyundai Marine Insurance Co., Ltd. by providing a false certificate of hospitalization to the effect that he/she was receiving one-time hospitalization treatment from June 24, 2009 to June 25, 2009, and by providing the Defendant B with a false certificate of hospitalization to the effect that he/she was receiving 2,798,500 won from Hyundai Marine Insurance Co., Ltd.’s Hyundai Insurance Co., Ltd. from June 24, 2009 to March 29, 2010>

(2) Around June 24, 2009, Defendant B returned home without hospital treatment after receiving an operation of an unclaimed beer from the above Council member, and obtained a false certificate of hospitalization stating that the Defendant was hospitalized for two days, and received KRW 2,798,500 from the insurance company around July 8, 2009, by deceiving the insurance company, by claiming insurance money to the Hyundai Marine Fire Insurance Company around July 7, 2009.

(3) On July 17, 2009, Defendant C returned to Korea without hospitalized treatment after receiving an operation of an unclaimed beer from the above member of the Council, and obtained a false certificate of hospitalization stating the fact that he was hospitalized for two days, and received the insurance company’s delivery of KRW 2,345,820 from the insurance company around July 23, 2009, by claiming insurance money to the interesting fire insurance company around July 23, 2009.

(4) On July 28, 2009, Defendant D returned to Korea without hospitalized treatment after receiving an operation of an unclaimed beer from the above member of the Council, and obtained a false confirmation of hospitalization stating the fact that he was hospitalized for two days, and received the insurance company’s delivery of KRW 2,755,820 from the insurance company around August 10, 209, by claiming insurance money to the interesting fire insurance company around August 7, 2009.

(5) On July 31, 2009, R returned to Korea without hospitalized treatment after receiving an operation of an unclaimed beer from the above member of R, upon obtaining a false certificate of hospitalization stating the fact that R was hospitalized for two days, on August 13, 2009, and received KRW 1,810,820 from the insurance company by deceiving the insurance company on August 14, 2009.

(6) On August 12, 2009, Defendant E, even though the above Defendant returned to home without hospitalized treatment after receiving an operation of domination from the above Council member, he received a false hospitalization certificate stating the fact that he was hospitalized for two days, and received the insurance company’s delivery of KRW 2,806,640 from the insurance company around October 26, 2009, by claiming insurance money to Samsung Fire Insurance Company around October 23, 2009.

(7) Although Defendant F, around October 16, 2009, 8, and 14, returned to the Republic of Korea without hospitalized treatment after receiving an operation of an unclaimed beer from the above member of the Council, Defendant F, upon obtaining a false confirmation of hospitalization with the content of being hospitalized for two days, he/she received a false confirmation of hospitalization from the insurance company around October 16, 2009, claiming insurance proceeds to the Korea Commercial Damage Insurers and received KRW 2,268,000 from the insurance company on October 16 of the same year.

(8) On August 31, 2009, Defendant G, even though he returned to the Republic of Korea without hospitalized treatment after receiving an operation of an unclaimed beer from the above member of the Council, Defendant G, upon obtaining a false certificate of hospitalization stating the fact that he was hospitalized for two days, issued KRW 1,593,520 from the insurance company around September 8, 2009, by claiming insurance money to Samsung Fire Insurance Co., Ltd. on or around September 4, 2009, and receiving KRW 1,593,520 from the insurance company.

(9) On September 1, 2009, S.S returned to Korea without hospitalized treatment after receiving an operation of an unclaimed beer from the above member of the Council. However, on September 11, 2009, S.S issued a false certificate of hospitalization with the content of being hospitalized for two days, and received KRW 1,345,640 from the insurance company by deceiving the insurance company on September 17, 2009.

(10) Around February 5, 2010, Defendant H returned to the Republic of Korea without hospitalized treatment after receiving an operation of an unclaimed beer from the above member of the Council, Defendant H, upon obtaining a false confirmation of hospitalization, stating the fact that he was hospitalized for two days, and received a delivery from the insurance company of KRW 985,792, around February 18, 2010, by claiming insurance money to Samsung Fire Insurance Co., Ltd. on or around February 17, 2010.

(11) On February 13, 2010, TT returned to Korea without hospitalized treatment after receiving an operation of an unclaimed beer from the above Council member, upon obtaining a false certificate of hospitalization stating the fact that the treatment was received for two days, and received KRW 2,120,000 from the insurance company by deceiving the insurance company on February 19, 201, by claiming insurance money to the Samsung Fire Insurance Company around February 17, 2010.

(12) Around February 17, 2010, Defendant I returned to the Republic of Korea without hospitalized treatment after receiving an operation of an unclaimed beer from the above member, Defendant I received a false certificate of hospitalization stating the fact that he was hospitalized for two days. On March 13, 2010, Defendant I received KRW 1,445,840 from the insurance company around March 16, 201, by claiming insurance money to the interesting country fire insurance company, and by deceiving the insurance company.

(13) The Defendant J, around February 19, 2010, returned to home without hospitalized treatment after receiving an operation of an unclaimed beer from the above member of the Council, issued a false confirmation of hospitalization with the content of being hospitalized for two days, and received KRW 2,557,520 from the insurance company around February 22, 2010, by claiming insurance money to the Samsung Fire Insurance Co., Ltd., and receiving KRW 2,557,520 from the insurance company around February 25, 201.

(14) Around February 23, 2010, Defendant K returned to home without hospitalized treatment, Defendant K received a false written confirmation of hospitalization stating the fact that he was hospitalized for two days, despite having returned to home without hospitalized treatment, and around February 26, 2010, Defendant K received KRW 2,426,120 from the insurance company on March 2, 201 of the same year by claiming insurance money to the Dong fire insurance company, and by deceiving the insurance company.

(15) On February 24, 2010, the Defendant LA returned to Korea without hospitalized treatment after receiving an operation of an unclaimed beer from the above member of the Council, but was issued with a false certificate of hospitalization stating the fact that the Defendant was hospitalized for two days, and received KRW 2,376,120 from the insurance company around March 2, 2010, by claiming insurance money to the interesting fire insurance company around March 2, 2010.

(16) On March 5, 2010, UU returned to the Republic of Korea without hospitalized treatment after receiving an operation of an unclaimed beer from the above member of the U.U.D., upon obtaining a false certificate of hospitalization with the content of being hospitalized for two days, the U.U.D. received KRW 1,575,840 from the insurance company by deceiving the insurance company on March 11, 201, by claiming insurance money to the interesting fire insurance company around March 10, 2010.

(17) Around March 19, 2010, the Defendant returned to the Republic of Korea without hospitalized treatment after receiving an operation of an unclaimed beer from the above member of the Council, the Defendant received a false confirmation of hospitalization with the content of being hospitalized for two days on March 29, 2010, and received KRW 1,053,620 from the insurance company of Hyundai Marine Insurance and received KRW 2,422,222,20 from Hyundai Marine Insurance and received the insurance company’s KRW 1,053,620, and KRW 1,368,60 from Hyundai Marine Insurance and KRW 2,422,220 from Hyundai Marine Insurance.

(18) Around March 24, 2010, Defendant NB returned to Korea without hospitalized treatment, Defendant NB, who received a false confirmation of hospitalization with the content of being hospitalized for two days. Around April 2, 2010, Defendant: (a) claimed insurance money to Hyundai Marine Insurance Company; (b) received KRW 1,312,100 from the insurance company on April 15, 201; and (c) received KRW 1,312,100 from the insurance company by deceiving the insurance company.

(19) On March 29, 2010, Defendant 0: (a) returned home without hospitalized treatment after undergoing a surgery of livering at the above Council member; (b) obtained a false certificate of hospitalization stating the content of being hospitalized for two days; and (c) received KRW 2,740,000 from the insurance company by deceiving the insurance company on April 2, 2010, by claiming insurance money to Samsung Fire Insurance Co., Ltd.; and (d) received from the insurance company.

B. The judgment of the court below

In light of the following circumstances, the lower court determined that: (a) whether hospitalization is necessary due to the patient’s specific circumstance; (b) the patient’s treatment method can vary for each patient after the surgery; and (c) it cannot be readily concluded that there is no need to be hospitalized after the surgery; (d) the patient’s treatment procedure cannot be readily concluded after the surgery (the patient being performed with extreme pain, seems to have been hospitalized by many patients), and (e) the patient’s general method of application and method of hospitalization refers to the patient’s treatment under the observation and management of medical professionals when the patient stays in the hospital for more than 6 hours; (e) the patient’s treatment time is unknown; and (e) the patient’s treatment record was not submitted (the patient’s most were staying in the investigative agency for more than 6 hours); and (e) the patient’s treatment time cannot be readily determined that there was no sufficient difference between the patient’s treatment time and the patient’s remaining part of the charge that the prosecutor submitted to the hospital, including the aforementioned medical care procedure and the medical records, etc.

C. Judgment of the court below

(1) Determination of the part on the remaining Defendants except Defendant N and each fraud of the remaining Defendants except Defendant N, etc.

In light of the following circumstances, in addition to the above circumstances as stated by the court below, the court below found that this part of the facts charged was not guilty.

This is justified and acceptable.

(2) Even if Defendant A submitted the medical record at the trial court, there is no indication of the time of his stay in Defendant B, etc., and thus, it cannot be readily concluded that Defendant B, etc. was less than six hours of his stay in the hospital.

However, in the case of Defendant 0, the fact that the above Defendant was discharged from a hospital on March 29, 2010 on the same day at around 17:30 on the same day after undergoing an operation at around 14:00 (Evidence records 993, 1006). However, the above Defendant stated that the investigative agency had attempted to undergo an operation at around 11:0, but had received an operation at around 14:0 (Evidence records 106, 1007) while undergoing an operation at around 14:0 (Evidence records 106, 1007), and there is no evidence to conclude that the above statement was false and conclusive. Accordingly, the possibility that the above Defendant was staying in the hospital from around 11:0 to 17:30 on the same day cannot be excluded from the possibility that he/she could have received hospitalization at least by the Ministry of Health and Welfare based on the premise that he/she could not be seen as having been admitted as having been admitted as “the victim’s life and condition of hospitalization.”

C. However, even though Defendant B et al. was actually hospitalized for two days, the fact that Defendant A received a written confirmation of hospitalization for one-day hospitalization for two days by Defendant A, based on which Defendant K,Y, E, G, H, H, J, 0, and I received an additional payment for KRW 1 to 50,000 per admission.

However, it is difficult to readily conclude that Defendant B, etc. received medical expenses, such as surgery expenses, etc., from among those that Defendant B, etc., and the daily amount of hospitalization is only KRW 1 to 50,000 (shortly, according to the inquiry of the fact-finding council of the Korea Fire & Marine Fire Insurance Co., Ltd., Defendant C, D, and L, there is no entry of the daily amount of hospitalization in the case of Defendant C, D, and L, and it is difficult to conclude that Defendant C, C, D, and L were additionally paid the daily amount of hospitalization on the basis of the written confirmation of hospitalization of 1 to 20 days of hospitalization. ② In the case of the real-time care cost insurance, the amount of insurance money such as surgery expenses that can be reduced without hospitalization, and that there is no difference in the amount of insurance money such as 1 to 2 days of hospitalization even if 1 to 2 days of hospitalization, and that there is no possibility that Defendant B, etc. could actually receive medical expenses for hospitalization, etc., by being divided into “the daily amount of hospitalization.”

(2) Determination as to Defendant N and Defendant A’s fraud aiding and abetting Defendant N

However, the lower court found the Defendant not guilty of the part of the facts charged in this case regarding Defendant N and N-related frauds. It is not acceptable in light of the following historical points that can be recognized by each of the above evidence. The Defendant N was in operation at around March 24, 2010 to 16:00 (Evidence No. 1034 pages), and the Defendant had already been in his residence at around 19:43 of the same day (Evidence No. 990 pages), so it seems that the above Defendant was only four hours of his stay in the hospital. In addition, it appears that the lower court’s determination that the above Defendant did not know that the nurse of the Defendant A was hospitalized at the investigative agency, and that the Defendant did not obtain a written confirmation of hospitalization on the date of his arrival, and that the Defendant was unable to obtain a written confirmation of hospitalization from the Ministry of Health and Welfare, and that the Defendant did not have to obtain a written confirmation of hospitalization at least 10 hours after his arrival on the following day, and that the Defendant was issued a written confirmation of hospitalization.

C. Furthermore, even though Defendant N was well aware that Defendant N did not meet the one-day hospitalization requirement, in full view of the fact that Defendant N issued a certificate of one-day hospitalization to Defendant N, and the aforementioned two.1, it is reasonable to deem that Defendant N had the intent to assist and abetting Defendant N’s fraud.

(3) Sub-decisions

Therefore, the judgment of the court below that each of the facts charged in this case constituted a case where there is no proof of a crime against Defendant N and Defendant A’s fraudulent aiding and abetting Defendant A’s N, which affected the conclusion of the judgment by misunderstanding of the facts, and the prosecutor’s assertion of mistake of facts or misapprehension of the legal principles is with merit only

3. Determination on Defendant M’s assertion of unreasonable sentencing

The fact that the above defendant recognized the crime of this case and reflecteds his mistake, and that he was the first offender is favorable to the above defendant.

However, in light of the following: (a) the crime of this case is committed in such a manner that the finance of the insurance company becomes worse and ultimately becomes worse and the insurance premium increases, and thus, it is unnecessary to strictly cope with it; (b) the above defendant was unable to agree with the insurance company up to the trial; (c) the defendant did not take any particular measures to recover damage; and (d) other various sentencing conditions in the records and arguments, such as the age, character and conduct, home environment of the above defendant; and (e) the circumstances before and after the crime, etc., the sentence of the court below against the above defendant is too unreasonable.

4. Determination on applications for compensation order

Article 25(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings provides that an order for compensation pursuant to Article 25(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings shall specify the amount of direct property damage suffered by a victim of a criminal act, and that an order for compensation is issued only when the scope of liability of a defendant is clear, thereby promoting the recovery of damage suffered by a victim simply and promptly. Under Article 25(3)3 of the Act on Special Cases Concerning Special Cases Concerning the Settlement of Legal Proceedings, if the existence or scope of liability of a defendant is unclear, an order for compensation shall not be issued, and in such a case, an application for compensation shall be dismissed pursuant to Article 32(1) of the Act on Special Cases

In light of the above legal principles, the amount of property damage of the applicant for compensation in the records of this case and the scope of the scope of the liability for damage of the defendant B, M, and N is not clear, so it is not reasonable to issue a compensation order in this case.

III. Conclusion

Therefore, the appeal by Defendant M and prosecutor, except for the part related to Defendant N among the appeal by Defendant M and prosecutor, and the appeal by Defendant A as to fraudulent aiding and abetting the rest of Defendant A, are without merit. Thus, each of them is dismissed pursuant to Article 364(4) of the Criminal Procedure Act. The application by the applicant for compensation order is dismissed pursuant to Articles 32(1)3 and 32(2) and 25(3)3 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, and the appeal by the prosecutor against the fraudulent aiding and abetting Defendant N with respect to Defendant N is with merit. Accordingly, without examining the judgment on the allegation of unfair sentencing by Defendant A, the judgment of the court below pursuant to Article 364(6) of the Criminal Procedure Act is reversed and it is again decided as follows.

Criminal facts and summary of evidence

The summary of the facts charged and evidence against Defendant A and N, which the court acknowledged, are as follows, with the exception of adding 1. 'A' to the summary of the evidence, the police interrogation protocol and the police statement statement of Defendant N, and 1. 'A request for provision of data on confirmation of correspondence history' as stated in each corresponding column of the judgment below, and thus, they are cited as it is in accordance with Article 369 of the Criminal Procedure Act.

[:]

3. Around March 24, 2010, Defendant A’s fraud aiding and abetting Defendant N to easily obtain KRW 1,312,100 from Hyundai Marine Fire Insurance Co., Ltd., by preparing a false written confirmation of hospitalization that he/she received one-day hospitalization from March 24, 2010 to March 25, 2010 in order to claim insurance money even when he/she went home without hospitalized treatment on the day of the surgery with Defendant N, who was found to be a patient at the above WW Council.

4. Defendant N’s fraud

Around March 24, 2010, the above Defendant returned to home without hospitalized treatment after receiving an operation of a beer surgery from the above member of the Council, but obtained a false hospitalization certificate stating the fact that he/she was hospitalized for two days, and filed a claim for insurance money with the Hyundai Marine Fire Insurance Co., Ltd. around April 2, 2010, and received KRW 1,312,100 from the above insurance company and acquired it by deceiving the above insurance company.

Application of Statutes

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

0 Defendant A: Articles 347(1) and 32(1) of the Criminal Act; selection of fines for negligence

0 Defendant N: Article 347(1) of the Criminal Act; Selection of fines

1. Defendant A who is subject to statutory mitigation: Articles 32 (2) and 55 (1) 6 of the Criminal Act;

1. Aggravation for concurrent crimes;

0. Defendant A: the former part of Article 37, Articles 38(1)2 and 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

The reason for sentencing of Article 334(1) of the Criminal Procedure Act is that the above defendants are the primary offenders, etc. are favorable conditions to the above defendants.

On the other hand, as seen earlier, ① the crime of this case is not good and there is a need to strictly cope with the crime. ② the above Defendants failed to agree with the victim insurance company up to the trial, ② are not taking any measures to recover damage, ③ their errors, such as denying the crime of this case, etc. are difficult to see that they are divided into a false complaint. ① Although they are aiding and abetting A and did not directly acquire insurance money, the above Defendant’s proposal seems to have taken a large amount of operating income through the crime of this case, and eventually, if the above Defendant did not issue a false time of hospitalization, it seems that the above Defendant A would not have reached each fraud of Defendant M and N, and even if it appears that the above Defendant A did not issue a false time of hospitalization, taking into account the following circumstances, such as equity in sentencing with similar cases, Defendant A and N’s age and family circumstances before and after the crime.

The assistant judge of the presiding judge;

Judges Senior Superintendent General;

Judge Han-dong