2014No1529 Fraudulent

1. A;

2. B

3. C.

Defendants

Ison and temperature (prosecutions) and Kim Man-Post (Trial)

Law Firm S (for Defendant A)

[Defendant-Appellant]

U.S. (Korean Civil Procedure Commission for Defendant B)

Law Firm V (for Defendant C)

[Defendant-Appellant]

Seoul Central District Court Decision 2013Da3644 Decided April 25, 2014

September 26, 2014

All appeals by the Defendants are dismissed.

1. Summary of the Defendants’ grounds for appeal

A. Defendant A

(1) misunderstanding of facts

The victims committed an error of arbitrarily removing the H burial whole without the consent of H’s actual business operator C and Defendant, and upon completion of the interior work, C paid the construction cost, and only the victims did not pay the construction cost due to the failure of the victims to complete the construction work. Therefore, the Defendant did not intend to commit fraud, and the Defendant did not intend to commit fraud.

2) Unreasonable sentencing

Considering the equity in sentencing with C, the actual business owner of H Burial, the lower court’s sentence (one year and six months of imprisonment) is too unreasonable.

B. Defendant B

(1) misunderstanding of facts

The defendant was merely an employee who has no right to decide on the business, and did not intend to commit a crime with A, C, and C, and it was known that C would pay the construction cost when the victims completed the construction work within the construction period. Therefore, it cannot be said that there was an intention of fraud.

2) Unreasonable sentencing

Considering the degree of participation of the defendant, the punishment of the court below (two years of probation in October, and one hundred and twenty hours of community service) is too heavy.

C. Defendant C.

1) misunderstanding of facts and misapprehension of legal principles

The Defendant, as the actual business operator of H, knew that the interior facility was concluded between A and the victims only after all the existing burial facility was removed without the consent of the Defendant. After that, the Defendant demanded the victims to restore to the original state, and was in good faith demanded the victims to pay the construction cost under the terms of construction completion until July 14, 201. The victims failed to complete the construction within the prescribed period and did not pay the construction cost. As such, the Defendant did not have the intent to commit fraud, and the Defendant did not attract the Defendant to commit fraud with A, B.

2) Unreasonable sentencing

Considering that the instant crime was led by A, and that the Defendant is in the state of 3rd degree of hearing impairment, the lower court’s imprisonment (one year of imprisonment) is too heavy.

2. Judgment on the defendants' assertion of mistake of facts

(a) Facts of recognition;

According to the records, the following facts can be recognized:

1) From around 2008, Defendant A continued to operate a Japanese traditional Dobbbbbing sales business from investors, including K and L without any particular capital, and entered into a license agreement for use of the name with the company located in Japan around that time, and registered its business in the name of her husband0 on September 10, 209. However, it was impossible for investors, K and L, etc. to take measures to collect investment deposits, such as provisional attachment of sales claims, and the store rent was not paid properly. Accordingly, the store lessor Co., Ltd. entered the Seoul Central District Court on November 20, 2010, and filed a suit against Defendant A around December 20, 2010 to suspend the sales of the above Dobbbing business, and Defendant B et al. tried to 2010 and carried out a domestic violence case, and Defendant A et al., the store and its domestic sales conflict.

2) In light of the foregoing circumstances, Defendant A changed the name of H’s business operator on January 10, 201 and Defendant C’s joint name, and continued to change the name under Defendant C’s sole name on April 25, 201.

3) Defendant A requested the victims to perform the interior decoration work, and Defendant A entered into a construction contract with Defendant A, the contractor I, and the construction period from June 10, 201 to July 30, 201 with respect to the interior work of H burial (hereinafter “instant construction work”). As of June 10, 201, the construction contract was drafted as of June 10, 201, with the construction cost of KRW 71 million (excluding value added tax).

4) The victims performed the instant construction until September 3, 201, including the removal of the existing facilities, etc. of H burial on June 11, 2011, and around that time, the Corporation was almost completed under the contract. 5) Defendant C filed a lawsuit claiming restoration of structures, including the restoration of structures, with the purport that the victims, Defendant A, and B conspired to seize the rights of H and destroy the place of business on September 6, 2011, the Seoul Central District Court 201Kahap92959, against the victims, Defendant C filed a lawsuit against the victims, Defendant A, and B seeking restoration of the existing facilities and payment of KRW 10 million per day until the completion of the restoration.

6) In the above civil procedure, Defendant A and B submitted a written reply and a written statement to the effect that Defendant C was the actual business operator of H in response to the request of Defendant C, and the victims voluntarily removed the existing test of the store (the above lawsuit was dismissed on September 7, 2012 on the grounds that the claim for the claim was unspecified).

7) Defendant B did not receive a copy of the complaint despite the occurrence of the above civil suit, and was served with the court documents on the victims who knew of the fact. Defendant B demanded the connection between the design work of the public corporation and the Internet.

8) Defendant B, upon Defendant C’s instruction, issued a public notice of employment of employees with the representative director of H as Defendant C from December 12, 201 to January 9, 2012.

9) On the other hand, Defendant C filed a lawsuit for restoration to the original state but replaced the entrance height at the site of the buried construction site, prevented the victims from entering the site of the construction site, and completed the remaining construction to another construction business operator.

B. Judgment on the defendants' assertion of mistake of facts

In full view of the following circumstances acknowledged by the evidence duly admitted and investigated by the lower court, the Defendants conspired to pay the construction cost, thereby allowing the victims to continue the instant construction work, and then obtaining profits equivalent to the construction cost.

1) Defendant A, even though he transferred the name of the business entity of H burial immediately before concluding the instant construction contract from her husbandO to her husband, had continued to work in the same place of business to Defendant B, who had continued to work in the same place of business, including the instant construction work. Defendant A, as the president of H, directly concluded the instant construction contract with the victims and carried out the construction work.

2) However, considering the facts found in paragraphs (1) and (2) above, Defendant A cannot be deemed as having the ability to pay the victims the amount equivalent to the agreed construction cost at the time of the instant construction contract.

3) In addition, Defendant A removed the entire store without permission beyond the agreed scope of construction that the victims limited to the main part of the store in the initial store, and only after Defendant C became aware of such fact, Defendant C prepared the instant construction contract as of June 10, 201 retroactively to the victims’ request. As such, Defendant A also asserted that the victims had the intent to pay the construction price at the time.

The victims consistently stated that the instant construction contract was concluded on June 10, 201 through several consultations regarding the instant construction project, and the existing facilities were removed on the following day from the date of submission of the written complaint to the trial. The actual Defendant A, together with the Defendant B, did not appear to have limited to the main part of the instant construction project in light of the fact that consultation on the contents and scope of the instant construction project several times with the victims before the instant construction contract and the amount of the construction contract exceeds KRW 70 million. Ro who had reported direct interviews around that time by the Defendant C’s investigative agency reported the removal site along with the Defendant on the date of removal on June 10, 201. The Defendant B stated that the victims did not raise any objection. In light of the fact that the victims’ written estimates, work logs, and project progress months were consistent with the victims’ statements, it is difficult to view that the instant construction contract was removed on the date of removal to the extent that the victims were removed on the date of removal on 10th day prior to that date.

On the other hand, Defendant A and B stated that the date of conclusion of the instant construction contract was June 10, 201 at the time of investigation by the prosecution, but reversed the statement that it was made retroactively after the removal as alleged by Defendant C in the court of original instance, which is inconsistent with the above facts. Furthermore, Defendant A stated that the construction contract was in the form of a contract for construction in the court of original instance and did not have any detailed contract clause and did not have any delivery. However, according to the original construction contract confirmed by the court of original instance, according to the original construction contract confirmed by the court of original instance, the contract for construction in this case was completely terminated to Defendant A’

Comprehensively taking account of these circumstances, the instant construction contract concerning the entire interior interior works was drafted on June 10, 201, and thereafter the instant construction project, including removal, was carried out in accordance with the terms and conditions of the contract. Accordingly, Defendant A’s aforementioned assertion is false.

4) Nevertheless, Defendant A, who was aware of the process before and after the conclusion of the instant construction contract, was serving as an employee while continuing to work in the field of H projects including the instant construction project under the direction of Defendant A, participated in consultation with and conclusion of the construction contract before and after the instant construction contract, and participated in the construction project, and did not take any measures to pay the construction cost to the victims, as seen earlier, in response to the allegations by Defendant C, as seen earlier, consistent with Defendant A. Accordingly, in light of the series of behavior of Defendant A before and after the instant construction contract, Defendant A did not have an intent to pay the construction cost from the beginning. In addition, Defendant A was well aware of the change of the name of the business operator and did not have an intention to pay the construction cost.

Therefore, Defendant B seems to have been well aware that the instant construction contract was drafted on June 10, 201, and that the instant construction project, including removal, was carried out in accordance with the construction contract.

Nevertheless, in a lawsuit claiming the restoration of the above structure, etc. filed by Defendant C, Defendant C presented the aforementioned written reply and a written statement to the effect that the assertion of Defendant C is identical to that of Defendant C, and by January 2012, Defendant C publicly announced the employment of H’s staff members for Defendant C, etc., and was completely consistent with Defendant C’s interests.

In full view of these circumstances, Defendant B and his employees ordered by Defendant A and C beyond the ordinary scope of duties, and caused the victims to believe that the construction cost would have been paid, and committed a functional control over the instant fraud crime by allowing the victims to continue the construction work.

6) Meanwhile, Defendant C, who was the actual business owner of the H Burial of this case, was aware of the fact that the victims had arbitrarily removed the store facilities without any reason, and the victims agreed to pay the construction cost upon completion of the construction work by July 14, 201, and thus, the victims did not pay the construction cost. As such, Defendant C took part in the dispute over property relations between Defendant A and Y between the husband at the time of the completion of the construction work by July 14, 201, and continued to cooperate with Defendant C in various crimes, including securities forgery and use, litigation fraud, and false accusation, with Defendant C’s criminal trial.

In addition, with respect to the change in the name of H business operator, the name was changed only in the name of the defendant C, and the defendant C did not succeed to the license agreement for use of the name for H business, and since the defendant C did not succeed to the lease agreement for the sale, the basic right for H business cannot be deemed to have been entirely transferred to the defendant C. In particular, since the lessor of the store filed a lawsuit seeking the name transfer around the change in the name of the business operator, it was not resolved. Nevertheless, the defendant C asserted that the business was normally transferred, but it is not persuasive in light of the aforementioned circumstances. However, the defendant C submitted a promissory note, etc., asserting that it was completely transferred the business of A as part of the repayment of its claim against the defendant A, and submitted the promissory note, etc., asserting that the transfer was made by the defendant A and C as part of the repayment of the claim against the defendant A, and that the promissory note was completely transferred by the defendant A and C in the process of the above property dispute between the defendant A andY, there is doubt as to the claim against the defendant C more than KRW 500 million.

The relationship between Defendant C and Defendant A and Defendant C, and the process of change in the name of the business entity of Defendant C came to know of the removal of store facilities without permission, and if Defendant C and the victims agreed to renew the construction period, they would have to prepare separate contracts and contracts, etc., which are different from the instant construction contract between Defendant C and the victims accordingly. However, Defendant A stated that Defendant C had talked with Defendant C before the instant construction contract was concluded by the police, and Defendant A stated in the court of the original judgment that Defendant C had obtained Defendant C and affixed a seal on the instant construction contract. Defendant C stated that Defendant C had expressed that the main visit was replaced only by the Defendant at the court of original judgment. In light of the above circumstances, it is difficult to believe that Defendant C had been aware of the process and contents of the instant construction contract from the time of conclusion of the contract with respect to the instant construction contract that Defendant A concluded. Even if Defendant C had been aware of the fact that the construction contract was concluded in advance as alleged by Defendant C, Defendant C would directly encourage the construction work, as long as the construction contract had already been approved by Defendant C.

7) Nevertheless, at the time of the completion of the instant construction work, Defendant C was not only the victims, but also Defendant A and B, who have the same interest as himself and cooperated with each other before and after the instant construction work, and furthermore, Defendant C informed Defendant B of the method of responding in the process of the lawsuit. Such litigation was conducted by preventing the victims from receiving the construction cost, and thereby, took property benefits that would result in the victims from evading their obligation to pay the construction cost. Even if the victims were to have exceeded the construction cost as alleged by Defendant C, such litigation cannot be evaluated to be justified in light of the fact that the victims did not fully pay the construction cost.

8) In addition, Defendant C asserted that the instant construction contract was forged, but as seen earlier, the instant construction contract was drafted in accordance with the initial agreement, and thus, the said assertion is rejected.

9) Comprehensively taking account of these facts, Defendant C conspired with Defendant A and B to commit the instant fraud by making the victims believe that the construction cost would have been paid, and continuing the construction work.

Therefore, the defendants' assertion of mistake or misunderstanding of legal principles is without merit.

3. Determination on the Defendants’ assertion of unfair sentencing

In full view of the following circumstances: (a) in light of the Defendants’ behavior by deceiving the victims of the benefits equivalent to the cost of construction by unaffording and preserving them; (b) the quality of the crime is not good; (c) the victims have not been recovered at all; (d) the Defendants have the same criminal records; (b) Defendant A committed the instant crime during the period of repeated crime; (c) Defendant B took part in the instant fraud as an employee of other Defendants; (d) Defendant C took part in the criminal act of this case; and (e) other various circumstances, which form the conditions of sentencing as shown in the records, including the Defendants’ age, character, character, environment, occupation, and family relationship, each sentence against the Defendants by the lower court is too unreasonable.

Therefore, the Defendants’ assertion of unfair sentencing is without merit.

4. Conclusion

Therefore, the defendants' appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, since all of the appeals by the defendants are without merit. It is so decided as per Disposition.

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