Defendant 1 and 27 others

Ethiopis

Law Firm Barun, Attorneys Kim Jae-ho et al.

1. Defendant 1 is punished by imprisonment for 10 years; imprisonment for 5 years; imprisonment for 4 years; imprisonment for 5 years; and imprisonment for 3 years; imprisonment for 4, 14, 16, and 20; and imprisonment for 5 years for 3 years; imprisonment for 1 years and 11, 15, 17, 18, 21, 22, 25, and 26; imprisonment for 1 year and 8 years; and imprisonment for 3 years; and imprisonment for 4, 14, 23, and 27 each; and

2. The number of days under detention prior to the pronouncement of this judgment shall be 179 days in the above sentence against Defendant 1, the 172 days in the above sentence against Defendant 2, and the one day in the above sentence against Defendant 4 shall be included.

3. However, with respect to the defendant 4, 14, 16, and 20 for four years from the date this judgment became final and conclusive, the execution of each of the above punishment shall be suspended for three years, and with respect to the defendant 7, 10, 12, 24, and 28 for three years, and with respect to the defendant 8, 9, 11, 13, 15, 17, 18, 19, 21, 22, 23, 25, 26, and 27 for two years.

4. With respect to the defendant 4, 14, 16, 20 hours, 40 hours each, 7, 10, 12, 24, 28, 320 hours each, 11, 15, 17, 18, 21, 22, 25, and 26, 200 hours each, 8, 9, 13, 19, 23, and 27, each of them shall be ordered to provide community service for 120 hours each.

5. Three copies of the computer seized shall be confiscated from Defendant 5, and three copies of the computer (No. 15 above No. 15) from Defendant 1, respectively, shall be confiscated from Seoul Central District Prosecutors' Office (No. 2007, No. 4916, No. 166).

6. Defendant 1, 2, 3, 4, 6, 7, 10, 11, 12, 15, 17, 18, 19, 21, 22, 23, 24, 25, 26, and 20 of the facts charged against Defendant 1, 2, 3, 4, 6, 7, 10, 11, 15, 17, 18, 19, 21, 23, 25, 26, and 20 of the facts charged against Defendant 14, 16, and 20 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), and each violation of the Door-to-Door Sales Act among the facts charged against Defendant 5, 8, 9, and

1. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) by Defendant 1, 2, 3, 5, and 6;

Defendant 1, as the representative director of the Central C&A Co., Ltd. (hereinafter referred to as “Central C&A”), a merchandise coupon issuer, actually operated H&A Co., Ltd., a merchandise coupon seller (hereinafter referred to as “N&A”), and Bloba Co., Ltd., a merchandise coupon dealer (hereinafter referred to as “Bloba”), along with the Central C&A’s personal details, and Bloba Co., Ltd., a merchandise coupon dealer (hereinafter referred to as “bloba”).

Defendant 2, as the advisor of the Central C&A, was in charge of the overall management of the sales and sales organization of his personal merchandise coupons.

Defendant 3 as the deputy head of the Central C&A, was in charge of planning such as the establishment of a project plan.

Defendant 5, while serving as a director of Ear Roster International, was managed as a whole in the middle of the sales and management of sales organization of merchandise coupons under the direction of Defendant 1 and 2.

Defendant 6, as the chief director of the Nitter International headquarters, was in charge of the sales of merchandise coupons against many unspecified persons from the beginning stage of the crime and the management of its sales organization.

피고인 1, 2, 3, 6은 2006. 12. 28.경 서울 강남구 대치동 (이하 생략)에 있는 하이존인터내셔널 본사 사무실에서 성명 불상의 소속 직원 등을 통하여 피해자 공소외 10에게 “우리 회사는 하이토탈 상품권을 발행하여 할인 판매하는데, 매출이 지속적으로 증가하고 있는 전도유망한 회사이다. 우리 회사 상품권을 구입하면 구입금액에 따라 원금 대비 125%~140%의 상품권을 지급하겠다. 그 상품권은 회사에서 정한 사용시점에 이르렀을 때 우리 회사 가맹점에서 현금처럼 사용하거나 블루캐시에서 6%~10%의 수수료를 공제하고 상환받을 수 있다. 현재 대기업에서도 우리 회사와 가맹계약을 체결할 예정이기 때문에 앞으로 시간이 지날수록 상품권을 사용할 수 있는 가맹점이 엄청나게 늘어날 것이다. 빨리 상환받는 경우를 가정하면 4~5개월 내에도 상환받을 수 있다. 아울러 상품권을 다른 사람에게 많이 판매하여 매출액 및 하위판매원 수가 증가하면 회사에서 정한 기준에 따라 딜러 ⇒ 상근딜러(컨설턴트) ⇒ 부장(수석 컨설턴트) ⇒ 본부장으로 승진하게 되고, 직급에 따라 영업지원비, 판매지원비, 판매장려금, 판매촉진비를 지급하며, 지점을 개설해 운영하게 되면 지점 운영비와 지점 추천비를 지급하겠다. 원금을 초과하여 지급하는 25%~40%의 상품권 및 수당은 1.5%~20%의 가맹점 수수료 수익(B2B 사업 수익 포함)과 ‘하이서리’(액세서리), ‘하이듀’(정수기-전해환원수기), ‘풀 빌라’(해외 부동산) 사업을 통해 고수익을 창출하여 충분히 지급할 수 있다. ‘상품권 구매자들이 일시에 상품권 상환을 요구하면 회사에 문제가 생기지 않을까’ 하는 걱정이 들 수도 있는데, 롯데백화점 상품권의 경우에도 구매자들이 실수로 세탁기에 넣어 세탁하는 등으로 훼손하거나 분실하는 바람에 지급제시되지 않는 상품권 비중이 20%가 넘고, 우리도 마찬가지니까 걱정할 필요가 없다. 지금 안 사면 회사가 성장할수록 할인율도 낮아지는데다가 서로 사려고 할 것이므로 판매할 수량이 턱없이 부족하게 되어 사고 싶어도 사지 못하는 때가 곧 올 것이다. 그리고 우리 회사 피고인 1 대표이사는 중앙일보 부장기자 출신이고, 특수판매공제조합을 설립했던 사람으로 믿을 수 있는 사람이다. 우리 회사나 대표를 믿고 하이토탈 상품권을 구입하라”고 말하여 이를 진실로 믿은 공소외 10으로부터 실질적으로는 투자금의 성격을 갖는 상품권 구입비 명목으로 1,100만 원을 지급받았다.

Defendant 1, 2, 3, and 6 received total of KRW 207,907,507,502,937 and received total of KRW 964,345,316,976,976 in total from June 8, 2005 to October 8, 2007 as an investment in the name of purchase price for merchandise coupons over 38,547 times, such as the statement in attached Table 1 (Account Statement 1) of the purchase price for merchandise coupons by the same method. Defendant 1, 2, 3, and 6 received KRW 756,437,814,039 in total as an investment in the name of purchase price for merchandise coupons over 16,169 times, as shown in attached Table 2 (Account Statement 2).

Defendant 5, in collusion with the above Defendants, received total of KRW 18,56,204,207 from July 1, 2006 to October 8, 2007, a total of KRW 715,268,64,764 as an investment in the name of purchase price of merchandise coupons over 36,238 times in total, from July 1, 2006 to October 38, 2007, and received KRW 18,556,204,848,871 as an investment in the name of purchase price of merchandise coupons in attached Table 2 (cash transaction) to 16,169,000 from July 1, 2006 to October 1, 2007.

However, the fact is that most of the funds received from the subordinate buyers for the purchase of merchandise coupons are used for the redemption of merchandise coupons, payment of various allowances and employees, etc., and it is practically impossible to realize considerable profits within a short period because there is no assets or promising business entity to pay high profits to the subordinate buyers at least 125% or 140% of the principal, and it is actually impossible to realize considerable profits within a short period, and there is a difference in the amount to be paid to the buyers unless there is an unlimited expansion of the buyers. In such a case, it is difficult to reduce the company's sales, and eventually stop, and it is inevitable to suspend redemption, and there is no intention or ability to pay high profits exceeding the principal as agreed even if the funds are paid from the victims as the purchase price of merchandise coupons.

As a result, Defendant 1, 2, 3, 5, and 6 conspireds to acquire the property equivalent to each of the above amounts habitually.

2. Violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission by all the Defendants

While Defendant 4 was involved in Defendant 1, 2, etc. from the end of May 2005 in the sales of gift certificates and in the sales of gift certificates, Defendant 4 registered as the representative director of his family register from July 2006 and was in charge of the support of the sales organization of gift certificates and the company’s real estate investment-related business upon Defendant 1’s instruction.

Defendant 7 from August 12, 2005, Defendant 10 from around August 16, 2005, Defendant 12 from around August 19, 2005, Defendant 2 from around August 19, 2005, and Defendant 24 from around June 2005, promoted to the head of headquarters, who is the highest class of his home-based personal news, and received allowances according to the results of attracting subordinate investors.

From August 19, 2005, Defendant 11, from around September 3, 2005, Defendant 15, from around September 3, 2005, Defendant 17, from around June 1, 2005, Defendant 18, from around October 10, 2005, Defendant 21, from around June 1, 2005, Defendant 22, from around July 2005, Defendant 25, from around July 2005, Defendant 26, from around the end of August 2005, and from the end of August 2005, Defendant 26, from attracting each investor, received allowances, etc. based on the results of attracting subordinate investors.

From November 1, 2006, Defendant 8, from around May 1, 2006, Defendant 9, from around December 1, 2006, Defendant 13, from around December 2005, Defendant 19, from around November 2005, Defendant 23, from around February 2006, Defendant 27, from around February 20, 2006, and Defendant 27, from around February 20, received allowances, etc. based on the results of attracting subordinate investors.

around August 16, 2005, Defendant 28 entered and worked in the Blug Capital who redeems the Heal gift certificates. From March 2006, Defendant 28 took charge of the affairs of redemption of Healian gift certificates upon Defendant 1’s instruction.

No person shall engage in a business of importing investments under an agreement with many and unspecified persons to pay the total amount of investments or an amount in excess thereof in the future without obtaining authorization, permission, etc. or making registration, report, etc.

피고인 1, 2, 3, 6은 당국의 인가·허가를 받거나 등록·신고 등을 하지 아니하고 2005. 6. 8.경부터 2007. 10. 8.경까지 사이에 하이존인터내셔널 본사 및 지점 사무실에서, 성명 불상의 소속 직원 등을 통하여 공소외 10에게 “우리 회사는 하이토탈 상품권을 발행하여 할인 판매하는데, 매출이 지속적으로 증가하고 있는 전도유망한 회사이다. 우리 회사 상품권을 구입하면 구입금액에 따라 원금 대비 125%~140%의 상품권을 지급하겠다. 그 상품권은 회사에서 정한 사용시점에 이르렀을 때 우리 회사 가맹점에서 현금처럼 사용하거나 블루캐시에서 6%~10%의 수수료를 공제하고 상환받을 수 있다. 현재 대기업에서도 우리 회사와 가맹계약을 체결할 예정이기 때문에 앞으로 시간이 지날수록 상품권을 사용할 수 있는 가맹점이 엄청나게 늘어날 것이다. 빨리 상환받는 경우를 가정하면 4~5개월 내에도 상환받을 수 있다. 아울러 상품권을 다른 사람에게 많이 판매하여 매출액 및 하위판매원 수가 증가하면 회사에서 정한 기준에 따라 딜러 ⇒ 상근딜러(컨설턴트) ⇒ 부장(수석 컨설턴트) ⇒ 본부장으로 승진하게 되고, 직급에 따라 영업지원비, 판매지원비, 판매장려금, 판매촉진비를 지급하며, 지점을 개설해 운영하게 되면 지점 운영비와 지점 추천비를 지급하겠다. 원금을 초과하여 지급하는 25%~40%의 상품권 및 수당은 1.5%~20%의 가맹점 수수료 수익(B2B 사업 수익 포함)과 ‘하이서리’(액세서리), ‘하이듀’(정수기-전해환원수기), ‘풀 빌라’(해외 부동산) 사업을 통해 고수익을 창출하여 충분히 지급할 수 있다. ‘상품권 구매자들이 일시에 상품권 상환을 요구하면 회사에 문제가 생기지 않을까’ 하는 걱정이 들 수도 있는데, 롯데백화점 상품권의 경우에도 구매자들이 실수로 세탁기에 넣어 세탁하는 등으로 훼손하거나 분실하는 바람에 지급제시되지 않는 상품권 비중이 20%가 넘고, 우리도 마찬가지니까 걱정할 필요가 없다. 지금 안 사면 회사가 성장할수록 할인율도 낮아지는데다가 서로 사려고 할 것이므로 판매할 수량이 턱없이 부족하게 되어 사고 싶어도 사지 못하는 때가 곧 올 것이다. 그리고 우리 회사 피고인 1 대표이사는 중앙일보 부장기자 출신이고, 특수판매공제조합을 설립했던 사람으로 믿을 수 있는 사람이다. 우리 회사나 대표를 믿고 하이토탈 상품권을 구입하라”고 말하여 이를 진실로 믿은 공소외 10으로부터 실질적으로는 투자금의 성격을 갖는 상품권 구입비 명목으로 1,100만 원을 지급받았다.

Defendant 1, 2, 3, and 6 received total of KRW 207,907,507,502,937,936,976 in total from June 8, 2005 to October 8, 2007 and received total of KRW 964,345,316,976,976 in total from 38,547 to the investment in the name of purchase price of merchandise coupons, such as the entry in the attached list 1 (Account Statement 1) in the following manner: (a) Defendant 1, 2, 3, and 6 received total of KRW 16,169 as investment in the name of purchase price of merchandise coupons; and (b) received KRW 964,345,316,976 in total from June 8, 2005 to October 8, 207.

As a result, Defendant 1, 2, 3, and 6 conspired and agreed to pay the total amount of investment or the amount exceeding it in the future while raising funds from many unspecified persons without obtaining authorization, permission, registration, report, etc. under the law during the pertinent period, and imported money without delay.

Defendant 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, and Defendant 1, 2, 3, and 6, in collusion with Defendant 4, 5, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25, 26, 27, and 28, respectively, received investment in the name of purchase price of merchandise coupons by the said method from the said date of each participation until October 8,

1. The Defendants’ partial statements in the second trial records;

1. In the third protocol of trial, some statements made by defendants 1, 2, 3, 5, 6, 14, 16, and 20;

1. In the fourth protocol of trial, any of the statements made by Defendants 4, 7, 8, 9, 10, 11, 12, 13, 15, 17, 18, 19, 21, 23, 24, 25, 26, and 27;

1. Each statement made by Nonindicted Party 1 in the 6th trial record, on the witness 10, 15, and 8th trial record

1. Legal statement of the witness non-indicted 1 (as of the 9th trial date)

1. Each legal statement of the witness non-indicted 16 (Provided, That in the case of the 13th trial date, only the remaining defendants except the defendant 15)

1. Entry of the copy of the protocol of examination of witness with respect to Nonindicted 16 in the protocol of 13th trial (limited to Defendant 15);

1. Each part of the protocol of interrogation of the suspect against Defendants 1, 2, 6, and 17 (including the part in which Nonindicted 18 and 19 were stated) and Nonindicted 4 by the prosecution

1. Each statement of statement made by the police against Nonindicted 2, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, and 666;

1. Each statement of fact-finding reply and reply to the true statements of the accounting office;

1. Investigation Report (Related Business Entities), Search and Seizure Report (Investigation Record No. 567, 571, 576, 579, 583, 1491), members of each company and their roles, investigation reports (Investigation Records No. 11) and investigation reports (Related Data on Non-Party 11’s computer files), investigation reports (Investigation Report No. 22B) (Attachment of Data on Non-Party 67’s Statements), investigation reports (Investigation Report No. 67’s Location), research reports (Investigation Records No. 10, 50, 140, 200, 200, 320, 100, 200, 200, 200, 30, 140, 206, 30, 206, 36, 30, 36, 36, 36, 1,000, 3,000, 3,00.

1. Habituality of the holding: The method and frequency of the crime in the holding, and the fact that the same kind of crime has been repeated several times in a planned and organized manner, all of which can be admitted;

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

○ Defendant 1, 2, 3, 5, and 6: Each of the above defendants is covered by Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 351, Article 347(1), and Article 30 (Habitual Fraud, Selection of Imprisonment) of the Criminal Act;

○ Defendants: Articles 6(1) and 3 of the Act on the Regulation of Conducting Fund-Raising Business without Permission; Article 30 of the Criminal Act (the act of performing fund-raising business without Permission and the selection of imprisonment)

1. Aggravation for concurrent crimes;

Defendant 1, 2, 3, 5, and 6: The punishment shall be aggravated to the extent that the punishment is aggregated with the punishment prescribed by the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), Articles 38 (1) 2, and 50 of each Criminal Act.

1. Discretionary mitigation;

Defendant 3, 5, and 6: Articles 53 and 55(1)3 of the Criminal Act (The following extenuating circumstances among the reasons for sentencing)

1. Inclusion of days of detention in detention;

Defendant 1, 2, and 4: Article 57 of the Criminal Act

1. Suspension of execution;

Defendant 4, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 of the Criminal Act

1. Social service order;

Defendant 4, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28: Article 62-2(1) of the Criminal Act; the main sentence of Article 59(1) of the Probation, etc. Act

1. Confiscation;

Defendant 1 and 5: Article 48(1)1 of the Criminal Act

1. Summary of the assertion

A. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

1) Defendant 1

In light of the fact that the enemy due to the discount sale of the gift certificates of this case was planned to preserve them through a profit-making business, and actually engaged in profit-making business, such as developing and selling the Haat's water purifier, the Haat's water purifier, the Haat's cosmetics, and the liquid books, each of which is the brand of the Haat International, and the said gift certificates were actually distributed and repaid at the store, the said gift certificates were actually distributed and repaid at the store, the pertinent gift certificates were offered an advice to the attorney at cost when legal problems arise while conducting the gift certificates of this case, and paid a normal stamp tax while issuing the gift certificates, and the central T&C did not attempt to escape even when the cash market of the Haatian et al. reaches the amount of KRW 100 billion.

2) Defendant 2

Defendant 1 decided on important matters, such as the discount rate or repayment method of the gift certificates of this case. Defendant 2 did not comply with the advice regarding the sale of the gift certificates, and did not take overall control of the sales organization of the personal data in the House, and Defendant 1 believed that the sale of the gift certificates of this case is not a legal issue, so there was no intention to commit fraud.

3) Defendant 3

Defendant 1, etc. did not agree with Defendant 1, etc. to commit the crime, and only planned affairs inside the company by assisting Defendant 1 and did not participate in the sales business of the gift certificates of this case, and there was no intention to commit fraud.

4) Defendant 5

Defendant 4’s instructions only take charge of the management of the internal affairs of Nitter and affairs against the Fair Trade Commission, etc., and there is no fact that he takes charge of the affairs related to the sale of merchandise coupons, and there is no reason to impose a criminal liability as a co-principal.

5) Defendant 6

Defendant 1, Defendant 3, etc. did not have conspired to commit the crime of defraudation, the distribution of merchandise coupons was normal, and the content of the company's education that the company is running a profit-making business and delivered it to the salesperson as it is, there was no intention to commit the crime of defraudation.

B. As to the violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission

1) Joint assertion by the Defendants

Since the merchandise coupon is sold at discounted prices, the defendants cannot be deemed to have engaged in the act of receiving merchandise without permission, and even if it is not so, the above act was conducted after consulting the lawyer and hearing the opinion that it does not violate the law. Therefore, it does not constitute a mistake in the law.

2) Defendant 7, 9, and 28

The above Defendants did not conspired with the other Defendants, including Defendant 1, to commit the crime of fund-raising without delay.

2. Determination

A. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

1) Determination on Defendant 1’s assertion

A) The criminal intent of defraudation, which is a subjective constituent element of the crime of fraud, has to be determined by comprehensively taking into account the objective circumstances, such as the Defendants’ financial history, environment, details and contents of the crime, and the process of transaction performance, insofar as the Defendants do not confession. The criminal intent is sufficient not to have a definitive intentional intent but to have dolusent intent. In addition, the subjective element of the constituent element of the crime refers to cases where the possibility of the occurrence of the crime is uncertain and it is acceptable in light of the subjective element of the crime, and whether the actor has permitted the possibility of occurrence of the crime should be determined by taking into account how the possibility of occurrence of the crime is assessed if the general public is based on the specific circumstances, such as the form of the act and the situation of the act expressed outside, without depending on the statement of the offender (see Supreme Court Decision 2007Do6012, Oct. 11, 2007, etc.).

In this case, in full view of the following circumstances recognized by the foregoing evidence, it is reasonable to view that Defendant 1 received money in the name of the investment fund by soliciting the victims to make an investment in promoting high-profit funds in the event that it is difficult for the victims to pay various allowances to the investors at least pursuant to an agreement, as well as the fact that it is difficult for them to pay the principal of the investment fund upon a certain phase, while sufficiently recognizing the fact that it would not be possible for them to pay the principal of the investment fund. It is difficult to view the above Defendant to have received money in the name of the investment fund solely on the grounds that the above Defendant gave advice to the attorney at the expense and paid the gift certificate stamp or did not attempt to flee with cash. Thus, it is sufficiently recognized that the above Defendant had a criminal intent to commit the crime of defraudation.

(1) Defendant 1 established and operated the instant merchandise coupon issuance, sales, the Central C&A, a money exchange company, and the Bluxa with a view to having worked as the head of planning office in a foreign multi-level company and worked as a managing director in the Special Sales Mutual Aid Association.

(2) Defendant 1, while selling hybrid gift certificates, intended to operate a profit-making business with 25% to 40% or 40% of the principal amount, was paid from June 8, 2005 to October 8, 2007. Defendant 1 received approximately KRW 960 billion from the victims. From the above Defendant’s profit-making business to the victim, the Plaintiff’s profit-making business did not actually be deposited in the company because it was performed in the way of deducting the commission fee from the actual deduction of the commission fee, and it was only started after April 2007, and the profit-making business was merely 1 billion won to the company, and there was no significant opinion that it continued to be purchased at least KRW 200,000,000 from August 8, 2007, and that it continued to be purchased at KRW 200,000,000.

(3) The amount of redemption for gift certificates or the amount of redemption for chain stores paid to investors has been paid in most of the investments received from subordinate investors, and such business structure must have continued to be secured by new investors or continuous expansion of the amount of investment, but may pay to investors the principal and interest or allowances for the amount of the investment.

(4) Nevertheless, Defendant 1, through his subordinate salesperson, did not accurately notify the victims of the aforementioned financial status or specific business plan of the Central C&A, and of the actual financial resources of various allowances to be paid to the victims, etc., and said Defendant 1 said that the Central C&A or C&A is operating a considerable profit-making business.

B) Furthermore, in the case of fraud involving the deception of property, if there is a delivery of property due to deception, it is an infringement of the victim's property by itself, and even if there was no considerable price or damage to the victim's entire property, it does not affect the establishment of fraud. Therefore, even if the above merchandise coupon was actually distributed at the chain store and repaid normally until the time of the commencement of the investigation of this case, it cannot be said that the establishment of fraud was hindered even if the above merchandise coupon was actually distributed at the chain store and repaid normally.

C) Accordingly, Defendant 1 and his defense counsel do not accept this part of the assertion.

2) Determination as to Defendant 2, 3, 5, and 6’s assertion

A) In full view of the following circumstances acknowledged by the aforementioned evidence, it is reasonable to see that the profits earned from the profit-making business of the companies related to the issuance and sale of the gift certificates do not have to pay various allowances to salespersons or investors and it is difficult for them to pay the principal of the investment amount after a certain period of time expires, and it is reasonable to see that the lower-class position, etc. to have the victims receive money in the name of investment by soliciting investment by soliciting the investment by promoting the promotion of high-profit profits to the victims while soliciting the investment. Thus, it can be acknowledged that the above Defendants also had the intent to commit the crime of defraudation of this case.

(1) Since the interest accrued from the profit-making business operated by the company related to the issuance and sale of the gift certificates of this case was considerably low, the sales structure of the gift certificates of this case is bound to pay the profits, etc. to the existing investors with the investment money of subordinate investors, and thus, it was impossible to pay the profits continuously unless the subordinate investors raise additional funds.

(2) ① 피고인 2는, 피고인 1이 이 사건 상품권 발행 및 판매에 관계된 회사들인 중앙씨앤아이, 하이존인터내셔널 등을 설립할 당시 함께 참여하여 자신은 영업을 담당하기로 하고 피고인 6을 영입하는 등 판매조직을 구축하였으며, 중앙씨앤아이의 고문으로 취임하여 하이존인터내셔널의 상품권 판매 및 판매조직 관리 업무 전반을 관장한 점 등에 비추어, ② 피고인 3은 피고인 1이 위 회사들을 설립할 때부터 사업계획을 수립하는 등 회사 내에서 기획업무를 담당하였고, 중앙씨앤아이의 지분도 보유하고 있는 점 등에 비추어, ③ 피고인 5는 이 사건 이전에 다른 다단계업체에 근무하면서 피고인 1을 알게 되어 친구 사이로 지내던 중 2006. 7.경 이 사건 하이토탈 상품권의 판매 회사인 하이존인터내셔널의 이사로 취임하여 하이존인터내셔널의 은행 계좌에 입금된 상품권 판매대금의 입출금을 관장한 점 등에 비추어, ④ 피고인 6은 2000년경부터 2002년경까지 다른 다단계회사인 ‘주식회사 다이너스티 인터내셔녈’에서 최상위직급의 바로 아래 직급인 ‘다이아몬드’ 직급까지 승진하여 근무한 경험이 있고, 피고인 1이 이 사건 상품권 판매회사인 하이존인터내셔널을 설립할 당시 피고인 2와 함께 판매원들을 영입하여 판매조직을 구축하였으며, 하이존인터내셔널의 수석본부장으로서 상품권 판매 및 산하 판매조직 관리업무를 담당한 점 등에 비추어, 모두 이 사건 상품권의 발행 및 판매에 관계된 회사들의 수익사업에서 발생한 이익이 거의 없어 그 수익만으로는 투자자들에게 약정된 수익금을 상환하는 것이 사실상 불가능하며, 기존 투자자들에 대한 수익이나 수당도 수익사업에서 발생한 수익이 아니라 후순위 투자자들의 투자금에서 지급되고 있다는 사정을 알고 있었던 것으로 보인다.

(3) Nevertheless, Defendant 2 also attended the meeting of the head of the headquarters, provided education on the sales method of merchandise coupons, etc., and explained that the company may preserve persons from discount sales through profit-making business. After the education on merchandise coupons sales, Defendant 3 directly provided education to the head of the headquarters and the head of the headquarters of the regional C&A, etc., and Defendant 3 actively participated in each of the merchandise coupons business in the instant case by holding a meeting of the head of the regional C&A headquarters and explaining to the head of the regional C&A’s deputy head and the head of the headquarters, etc.

B) Meanwhile, in the case of co-offenders who are engaged in a crime by two or more persons, the conspiracy does not require any legal form of punishment, but is only a combination of intent to realize the crime by combining two or more persons with intent to jointly process the crime. Although there was no process of conspiracy, if there was a combination of intent to do so either successively or implicitly among several persons, the conspiracy relationship is established, and even if there was no direct participation in the conduct, even if there was a person who did not participate in the conduct, he/she is held criminal liability for the other co-principal. Based on the legal principle of co-principal, the above Defendants are sufficiently recognized to have been engaged in the conduct of the crime through Defendant 2, 3, 5, and 6's status and role within the company, control over the progress of the crime, etc., at least through Defendant 1, at least through an impliedly via Defendant 1, and even if he/she did not directly participate in the business of purchasing gift certificates, he/she did not directly participate in the business of Defendant 3, 5, and 6000.

C) If so, Defendant 2, 3, 5, and 6 cannot be exempted from the criminal liability as a co-principal with respect to the crime of defraudation of this case. Thus, the above Defendants and their defense counsel are not dismissed.

B. As to the violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission

1) Determination as to the Defendants’ common assertion

Article 3 of the Act on the Regulation of Conducting Fund-Raising Business without Permission or Approval under the related Acts and subordinate statutes provides that "the act of importing investment money to the future by promising to pay the whole amount of investment money or an amount exceeding it" as one of the acts of fund-raising business without permission or approval. Thus, the legislative intent of regulating the act of fund-raising business without permission or approval under the related Acts and subordinate statutes is to protect good traders and to establish sound financial order. Thus, in light of the meaning of the term "investment" under the legislative purport or the provisions of the Act on the Regulation of Conducting Fund-Raising Business without Permission, it is difficult to regard the revenue of fund-raising business through the transaction of goods as the revenue of fund-raising business, and if it can be deemed that there is only the revenue of money without the transaction of goods, it can be deemed as the act of fund-raising under the Act (see, e.g., Supreme Court Decisions 2006Do7470, Jan. 25, 2007; 2006Do1646, May 16, 206).

In the instant case, the following circumstances acknowledged by the evidence, namely, the Defendants: (a) engaged in profit-making business while selling merchandise coupons; (b) were paid KRW 25% or 36% of the principal amount for 4 to 5 months; (c) the victims received approximately KRW 9,600,00 from the victims; (d) although the victims used some merchandise coupons, they were relatively small, and most of them were able to receive high profits; (e) Defendant 2 also paid merchandise coupons in cash, and the sales of merchandise coupons increased rapidly. Since it is reasonable for the purchaser to establish a merchandise coupon for money exchange; (e) the amount of redemption to the genuine franchise store is more than 6% of the total amount of money to be paid to the investors for investment in the form of subordinate merchandise coupons, and thus, (e) the amount of redemption for the merchandise coupon is more than 5% of the total amount of money to be paid by the new merchandise coupons or the amount of money to be paid for investment in the form of 4% of the total amount of money to be paid.

In addition, Article 16 of the Criminal Act provides that an act of misunderstanding that one's act does not constitute a crime under the law shall not be punishable only when there is a justifiable ground for misunderstanding. It does not mean a simple legal ground for misunderstanding, but it is generally accepted that the act of misunderstanding is a crime but it does not constitute a crime under the law in its special circumstances, and it is not punishable if there is a justifiable ground for misunderstanding. Although the defendants received opinions from attorneys that the act of selling merchandise of this case does not constitute an act of receiving merchandise of this case by seeking advice from attorneys, or that the defendants believed that the act of this case does not constitute a legitimate act, it cannot be deemed that there was a justifiable ground for misunderstanding that the defendants' act of this case does not constitute a crime (see, e.g., Supreme Court Decisions 91Do894, May 26, 1992; 95Do702, Jul. 28, 199; 205Do2598, Sept. 25, 2008).

Therefore, the Defendants and their defense counsel cannot accept all of their arguments.

2) Determination as to Defendant 7, 9, and 28’s assertion

As seen earlier, in the co-offender relationship that two or more persons jointly process for a crime, the conspiracy does not require any legal form of punishment, but is only a combination of intent to realize the crime by combining two or more persons in a specific crime. Although there was no process of the whole conspiracy, if there was a combination of intent in order or impliedly and the combination between several persons, the conspiracy relationship is established. Defendant 7 is the head of hybrid, Defendant 9 is a full-time and full-time employee, and Defendant 9 has collected money from sales proceeds of merchandise coupons in exchange for gift certificates. Defendant 28 operated a brug in charge of money exchange business of the gift certificates of this case upon Defendant 1’s instruction, and Defendant 28 can fully recognize a conspiracy relationship with the remaining Defendants, such as Defendant 1, in light of the contents of the gift certificate business of this case and the business structure.

Therefore, Defendant 7, 9, and 28 and their defense counsel's above assertion cannot be accepted.

Defendant 1, 2, 3, 5, and 6 conspired to operate a merchandise coupon selling company, etc., and acquired a large amount of money exceeding KRW 960 billion on a multiple occasions, and engaged in the act of receiving money without delay prohibited by the law in the process, and other Defendants also conspired with the above Defendants to receive money without delay. It is also very good that such crime is committed in that it is not only because the victim's individual but also is extended to the family and society, and its ability to receive money is weak.

However, on the other hand, a considerable portion of the received amount is already returned to some victims in the form of investment profits, etc., and the actual amount of damage seems to be much less than the received amount. A considerable portion of the sales merchandise coupons of this case is actually used for the purchase of goods and services, and the creditors group composed of the victims and creditors group of the victims of this case agreed that the creditor group was not punished by the above defendants, and some other victims want to be punished by the defendants, and there is a reason to take into account the circumstances such as the defendants' opinion that there is no illegality by seeking advice from the attorney-at-law as to the act of receiving the same kind of goods of this case. In addition, there are extenuating circumstances such as the defendants' opinion that there is little illegality by the defendants as to the acts of receiving the same kind of goods of this case, and those who are in the position of salespersons of the defendants directly purchase the merchandise merchandise of this case or recommend their neighboring family members or relativess to purchase them.

Therefore, in determining the punishment against the Defendants, other sentencing conditions as shown in the pleadings, such as the Defendants’ age, character and conduct, the environment, the background of the participation in the crime, and the circumstances after the crime, shall be considered together with the above factors as basic factors to be considered. In particular, the sentence is imposed in consideration of the following individual circumstances.

1. Defendant 1

Defendant 1 has no particular criminal record other than the fine imposed due to the violation of the Road Traffic Act, but has been actually established and operated by the Central C&A, E&A personal records, and Blugs, and in light of the fact that the overall crime of this case was led by each of the crimes of this case, Defendant 1 is the most liable, and thus, he/she cannot be held liable for strict liability corresponding thereto. Therefore, the same sentence as the order is sentenced.

2. Defendant 2, 3, 5, and 6

Defendant 2, 3, and 6 are primary offenders, and Defendant 5 has not yet been sentenced to punishment, but Defendant 2 has not yet been sentenced to punishment. Defendant 1 actively participated in each of the crimes of this case by taking into account the fact that Defendant 1 actively participated in each of the crimes of this case by issuing, selling, selling merchandise coupons, by the Central C&C, which is a money exchange company, and by establishing and operating a sales organization. Defendant 3 is in charge of Defendant 1’s establishment of the above company, by taking into account the degree of participation or participation period of the above Defendants, etc., Defendant 1 is in charge of planning, such as establishing a business plan, holding a considerable share of the Central C&C, and explaining the business method to the head and the head of the headquarters of the Korea E&C, who is a vice head, as the vice head, in charge of operating the Korea E&W International, and managing the money from selling merchandise coupons, etc., Defendant 5 shall be sentenced to punishment in accordance with the order of participation or participation.

3. Defendant 4, 14, 16, 20

Defendant 4 was involved in the sales of gift certificates with Defendant 1, 2 from the end of May 2005, which was the beginning of the business, from around the end of May 2005, and took part in the sales of gift certificates with Defendant 2, 3, 5, and 20. From July 2006, Defendant 4 was appointed as the representative director of Hasoon International, a gift certificate selling company, and participated in the act of receiving gift certificates in depth under Defendant 1’s order while taking charge of the support of sales organization of gift certificates and the company’s real estate investment-related business. Defendant 14, 16, 20 were employed as the head of the headquarters from the early stage of the act of receiving the similar goods in this case, and all of the crimes are deemed to have accrued considerable profits by performing the sales of gift certificates. However, the degree of participation of Defendant 4, 14, 16, and 20 was less relatively less than that of Defendant 2, 3,5, and 60 first of the suspension of execution.

4. Defendant 7, 8, 9, 10, 11, 12, 13, 15, 17, 18, 19, 21, 22, 23, 24, 25, 26, 27, 28;

Defendant 7, 10, 12, and 24 participated in the act of receiving gift certificates in each of the instant case as the head of each subordinate personal headquarters, who takes charge of the sales of gift certificates. Defendant 28 participated in the act of receiving the same in each of the instant case upon Defendant 1’s instruction. Defendant 8,9, 11, 13, 15, 17, 18, 19, 21, 22, 23, 25, 26, and 27 took charge of the sales of gift certificates as the head of each subordinate branch or full-time with the aim of selling gift certificates; Defendant 7, 8, 10, 11, 19, 219, 18, 19, 19, 19, 18, 21, 27, 25, 27, 27, 27, 25, 27, 27, and 31.

1. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) among the facts charged against Defendant 14, 16, and 20

A. Summary of the facts charged

Defendant 14 received KRW 756,437,814,039 in total from 38,547 as indicated in [Attachment List 1], Defendant 16, and Defendant 20 as the 11 Headquarters head, in collusion with Defendant 1, 2, 3, and 6, in charge of the sales of merchandise coupons and management of sales organization thereof against many unspecified persons. Defendant 1, 2, 3, and 6 received total of KRW 756,437,814,039 in total from 38,547 to 16,169, as indicated in [Attachment List 1], in collusion with Defendant 1, 2, 205 to 8, 207; and received total of KRW 16,169 in total from 16,169 to 207,396,3796,796,79,79,79,74,79,797, and 397,796,7,7,97,7

B. Determination

1) In a criminal trial, the finding of guilt ought to be based on evidence of probative value, which makes it possible for a judge to have the truth that the facts charged are true beyond a reasonable doubt, and if there is no evidence to form such a conviction, even if there is no doubt of guilt against the defendant, it is inevitable to determine the benefit of the defendant even if there is a suspicion of guilt against the defendant.

On the other hand, a co-principal under Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements, namely, the commission of a crime through functional control based on the intent of co-processing and the common intent. A person who directly shared part of the elements of a crime among the competitors may be liable for the crime as a co-principal even if he/she did not implement the crime. However, when comprehensively considering the status, role, control or power over the process of the whole crime, etc., he/she should not be deemed to have functional control through the intrinsic contribution to the crime (see, e.g., Supreme Court Decision 2007Do2144, Jun. 1, 2007). In addition, the intention of co-processing is insufficient to recognize another person's crime while he/she did not restrain it, and the intention of co-processing is to move his/her own intent to commit a specific crime by using another person's act (see, e.g., Supreme Court Decision 2008Do4278, Apr. 27, 20108).

2) However, Defendant 14, 16, and 20 did not intend to commit the fraud described in the facts charged in this court, and Defendant 1, 2, 3, and 6 did not intend to commit the fraud, and the chief of the headquarters, who believed it as true and re-educated it to the salespersons as is, as the head of the headquarters trained, as the head of the headquarters was trained. As such, Defendant 14, 16, and 20 did not argue that there is no reason to commit the crime as a co-principal in relation to the other Defendants

Therefore, unlike Defendant 14, 16, and 20, Defendant 14, 16, and 20, unlike Defendant 14, 16, and 20, Defendant 14, 16, and 20 worked as the head of the headquarters, and there is no sufficient evidence to acknowledge that Defendant 1, 16, and 20 served as the head of the headquarters while recognizing that their education was false and delivered it to subordinate salespersons. Even if Defendant 14, 16, and 20 participated in the act of receiving the same kind of money and acquired a considerable amount of monetary gain by participating in the act of receiving the same as the head of the headquarters, the above Defendants purchased and possessed a large amount of gift certificates at KRW 20 million. In light of the above legal principles as to the recognition of guilt and the requirements for the establishment of joint principal offender, it cannot be readily concluded that the above Defendants conspired with Defendant 1, 2, 3, and 6, and there is no other sufficient evidence to acknowledge that they engaged in the crime of this case with another person’s intent to commit the fraud.

Therefore, the above part of the facts charged against Defendant 14, 16, and 20 constitutes a case where there is no proof of crime, and thus, the court acquitted Defendant 1 pursuant to the latter part of Article 325 of the

2. Violation of the Door-to-Door Sales Act among the charges against the remaining Defendants except Defendant 28

A. Summary of the facts charged

피고인 1은 2005. 5. 20.경 중앙씨앤아이 사무실에서 ‘딜러 ⇒ 상근딜러(컨설턴트) ⇒ 부장(수석 컨설턴트) ⇒ 본부장’으로 승급되는 다단계회사인 중앙씨앤아이, 하이존인터내셔널을 설립하고, 피고인 2, 3은 피고인 1을 도와 다단계판매조직을 구축하여 운영하였다.

The Central C&A and E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-

Defendant 5, as a director of the Epire International, assist Defendant 1, 2, and 3, and Defendant 6, as the chief director of the Epire International, constituted each stage from the date of the participation in paragraph 2 of the judgment, as the chief director, Defendant 11, 15, 17, 18, 21, 22, 25, and 26, as the chief director, and Defendant 8, 9, 13, 19, 23, and 27, as the chief director of the Epire International.

Accordingly, Defendant 1, 2, 3, 4, 5, 6, 7, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, and 27 were established and operated without registration with the competent authorities.

B. Determination

Article 2 subparag. 5 of the Door-to-Door Sales Act provides that "multi-stage sales" refers to selling goods, etc. through a multi-stage sales organization (including sales organizations prescribed by Presidential Decree, where the stage of a salesman who has joined a sales organization is in fact managed and operated as a sales organization with not less than three stages) in which a salesman is admitted by a multi-stage sales organization (referring to any retail profit that a multi-stage salesman gains by selling goods, etc. to consumers in a multi-stage sales and support allowances paid by a multi-stage sales business operator to such multi-stage sales organization) in order to have a certain person become a multi-stage salesman and to have a certain person become a multi-stage salesman in whole or in part and to have a certain person become a multi-stage salesman in a multi-stage sales organization (see, e.g., Supreme Court Decision 2007Do4775, Jan. 25, 2007). Thus, in order for a multi-stage salesman to become a multi-stage salesman as prescribed by the Door-to-Door Sales Act, etc.

In this case, the method of selling the gift certificates of this case in Ear Roster International is the way of selling the gift certificates of this case in Ear Round, full-time with a salesperson, the head of the division, and the head of the headquarters to deposit the purchase price of the gift certificates into the bank account of Ear Roster personal or pay the purchase price of the gift certificates in cash and receive the gift certificates between Ear Roster International and Ear Roster. (Therefore, the seller of Ear Roster shall not sell goods on his own account not only to the consumer's name and account but also to the role of mediating the sales contract between Ear Roster and the consumer, and it seems that the seller actually had a similar position in the commercial law.) The sales price of Ear Roster Roster - the seller's profits from purchasing the gift certificates of Ear Roster - the consumer's profits from the purchase price of the goods, "the full-time seller's profits from the sale price of Ear Roster - the seller's profits from the consumer."

However, according to the records, the sales support is paid every month by the full-time with a certain amount of sales support, sales support, sales support, sales promotion expenses, and sales promotion expenses while engaging in the merchandise coupon sales business. The sales support is paid to a certain amount of sales support, the sales support is paid to the payment of a certain percentage of the sales that the sales have sold by the salespersons, and the sales promotion subsidy is paid to the payment of a certain percentage of the sales that the salespersons have sold by their assistant salesmen, and the sales promotion expenses are paid to the head of the headquarters, the head of the headquarters, and more than the head of the headquarters in accordance with the growth ratio of the entire sales of the company.

However, such operating expenses, sales support, sales promotion expenses, and sales promotion expenses are stipulated in Article 2 subparag. 7 of the Door-to-Door Sales Act in light of the nature of payment of the said money, and “the economic benefits that multi-level marketing operators pay to multi-level marketing salespersons in relation to the organization management and education and training performance for assistant multi-level marketing salespersons belonging to multi-level marketing salespersons, sales performance of goods, etc. of multi-level marketing salespersons belonging to multi-level marketing salespersons or sales performance of goods, etc. of multi-level marketing salespersons belonging to the multi-level marketing salespersons.”

In light of the purport of the legislation regulating multi-level marketing, there is no need to request registration even in the case of a business method without retail profit and paying support allowances as provided by the Door-to-Door Sales Act. However, in light of the principle of no punishment without law, it cannot be extensively interpreted that the current law includes the above cases in violation of the explicit provisions under the current law).

Therefore, the facts charged that Defendants 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, and 27 conspired to establish and operate a multi-level sales organization without registration under the premise that multi-level marketing salespersons as prescribed by the Door-to-Door Sales, etc. Act are multi-level marketing salespersons. The facts charged that Defendants 1, 2, 3, 4, 5, 6, 8, 9, 10, 111, 12, 13, 14, 15, 16, 17, 19, 200,

3. Violation of the Protection of Communications Secrets Act among the facts charged against Defendant 5, 8, 9, and 13

A. Summary of the facts charged

1) Defendant 5, 13

Defendant 5, around 17:00 on March 26, 2007, instructed Defendant 13 to record the investigation process by putting a small tape recorder on the part of Defendant 13 and recording the investigation process in order to educate Defendant 13, Defendant 13, Defendant 13, Defendant 13, Defendant 13, Defendant 13, and Defendant 13, Defendant 13, and Defendant 13, and Defendant 3, Defendant 2, Defendant 2, Defendant 2, Defendant 2, and Defendant 3, Defendant 2, Defendant 2, and Defendant 2, Defendant 2, Defendant 2, and Defendant 3

Accordingly, Defendant 13, around 10:00 on March 27, 2007, concealed a tape recorder at the toilet of the Seoul Metropolitan Mapo-gu Seoul Metropolitan Police Agency located in Mapo-gu, Seoul and disguisedly recorded the contents of the conversation between police officers and police officers, Nonindicted 3 and Nonindicted 2, 4, and 5, conversation between police officers and police officers, Nonindicted 6 and Nonindicted 3, and persons whose names are unknown, and the conversation between police officers and police officers, Nonindicted 7, and Nonindicted 8, and persons whose names are unknown.

Accordingly, the defendant 5 and 13 recorded a conversation between others that is not open to the public.

2) Defendant 5, 8

Defendant 5, around 10:00 on March 27, 2007, instructed Defendant 8 to record the investigation process with the purpose of training Defendant 8 who was requested to attend the Seoul Regional Police Agency’s head office, training Defendant 8 on the police officer’s answers according to the police officer’s interrogation, monitoring Defendant 8’s answers as well as preparing measures to avoid punishment by recording the investigation process.

As a result, around 15:00 on March 27, 2007, Defendant 8 had concealed and operated a tape recorder near the court of the Seoul Local Police Agency, and recorded the conversation between Nonindicted 3, 6, and 9, a police officer, by entering a criminal department or office.

As a result, Defendant 5 and 8 recorded an undisclosed conversation between others in collusion.

3) Defendant 5, 9

around 10:00 on March 27, 2007, Defendant 5 instructed Defendant 9 to record the investigation process with the aim of training Defendant 9 who was requested to attend the Seoul Regional Police Agency’s head office, Defendant 9, Defendant 9, Defendant 9’s response guidelines according to the police officer’s interrogation, monitoring Defendant 9’s response as well as preparing measures to avoid punishment by recording the investigation process, and recording Defendant 9’s response as well as recording the investigation process.

As a result, around 15:00 on March 27, 2007, Defendant 9 had concealed and operated a tape recorder near the court of the Seoul Local Police Agency, and recorded the conversation between Nonindicted 3, 6, and 9, a police officer, by entering a criminal department or office.

As a result, Defendant 5 and 9 recorded an undisclosed conversation between others in collusion.

B. Determination

1) Determination on the above facts charged No. 1

According to the investigation report (Attachment of Investigation Record No. 11,698), the contents recorded by Defendant 13 include: (a) the conversation between Defendant 13 and Nonindicted 1, 3, and 6 with Nonindicted 2, 4, and 5; and (b) the statement that Nonindicted 6 of the police officer called “if any, and the bus company,” and the statement that Nonindicted 7 of the police officer, who appears to have not participated in the investigation, appears to be “Seongkkh” (No. 11,723 of the Investigation Record) and the statement that Nonindicted 7 of the police officer and Nonindicted 8 of the police officer were sent to the police officer Nonindicted 7 and the police officer on a simple basis (No. 11,740 of the Investigation Record).

However, Article 3(1) of the Protection of Communications Secrets Act provides that “A third party who does not participate in the conversation shall not record or listen to a conversation that is not open to the public.” Since the purport of Article 3(1) is that a third party, who does not participate in the conversation, shall not record the speech between others, one of the three persons, if one of the persons recorded the conversation, the other person’s speaking cannot be deemed to be “the conversation between others” in relation to the recorder, and such recording cannot be deemed to violate Article 3(1) of the Protection of Communications Secrets Act (see Supreme Court Decision 2006Do4981, Oct. 12, 2006, etc.). This also applies to a conversation between four or more persons.

Examining the above contents of the recording in accordance with such legal doctrine, Defendant 13, along with Nonindicted 2, 4, and 5, cannot be deemed to constitute “the conversation between others” in relation to Defendant 13, who is the tape recorder, after being examined by Nonindicted 1, 3, and 6 by police officers.

In addition, when considering the fact that Defendant 5 and Defendant 13 instructed Defendant 13 to record the investigation process in order to take measures to escape punishment by recording the investigation process, Defendant 5 and Defendant 13 to record the investigation. Of the above recording contents, the part that Nonindicted Party 6 called “where it is?” and Nonindicted Party 7 appears to have not directly participated in the investigation, and the part that Nonindicted Party 7 sent to Nonindicted Party 7 and Nonindicted Party 8 simply sent with Nonindicted Party 7 and Nonindicted Party 8 on the phone with others, and the part that Nonindicted Party 5 and 13 expected to have been examined, it is difficult to conclude that Nonindicted Party 1’s conversation between Defendant 13 and Nonindicted Party 13 did not appear to have been recorded in the middle of the investigation process, and the part that Nonindicted Party 6 and Nonindicted Party 13 attempted to illegally record the above conversation between Defendant 1 and the police officer during the investigation. In addition, it is difficult to view that Nonindicted Party 16 and the police officer’s name of the Defendant 13 and the police officer during the investigation.

Therefore, this part of the facts charged is ultimately not a crime or without proof of a crime, and thus, it is not guilty under the former or latter part of Article 325 of the Criminal Procedure Act.

2) Determination as to the above facts charged 2) and 3

According to the investigation report (Attachment of Investigation Record) (Attachment 11,679, 11,687 of Investigation Record), most of the recorded contents by Defendant 8 and Defendant 9 include the conversation between Defendant 8 and Defendant 9, which was divided by Nonindicted 3, 6, and 9, while being examined by Nonindicted 3, 6, and 9 by police officers, and the contents of telephone conversations between Defendant 9 and Defendant 9 during investigation (Investigation Record No. 11,683, 11691 of Investigation Record) and the contents of telephone conversations between Defendant 6 and Defendant 5 during investigation (Investigation Record No. 11,685, 11693 of Investigation Record).

Examining the aforementioned recording in accordance with the legal principles as to “other persons’ dialogue” as seen earlier, Defendant 8 and 9’s conversation between Defendants 3, 6, and 9 cannot be deemed to constitute “other persons’ conversation” that is not disclosed in relation to Defendant 8 and 9.

In addition, it is difficult to readily conclude that the content of the conversation between Defendant 8, 9 and the police officer Nonindicted 6 during the investigation conducted by Nonindicted 9, in light of the situation at the time, falls under the conversation between others, and even if there is room to view it as falling under the conversation between others, Defendant 5 had Defendant 8, 9 record the contents of the interview at the same time for the purpose of monitoring the answer as trained by Defendant 8, 9, and preparing measures to avoid punishment by recording the investigation process. In light of the fact that Defendant 8, 9 had such a conversation between others and the police officer during the investigation process, and it is difficult to deem that Defendant 5, 8, and 9 had anticipated that it had been recorded in advance. Thus, it is also difficult to view that Defendant 5, 8, and 9 had criminal intent to illegally record the above contents of the conversation.

Therefore, since each of the facts charged is not a crime or there is no proof of a crime, it is not guilty under the former or latter part of Article 325 of the Criminal Procedure Act.

It is so decided as per Disposition for the above reasons.

Judges Posckic fever (Presiding Judge)