2017Gohap378 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), fraud

A

Fire-proof leathers, and trial after the use thereof.

Attorney Yellow Jae-in

July 27, 2018

A defendant shall be punished by imprisonment for three years.

Criminal 1)

The defendant, as the vice president of B (the name of the representative C and hereinafter referred to as "stock company") corporation, was engaged in the business of importing and selling Aluminum aluminium by opening a letter of credit under the name of the above company.

Around November 201, the Defendant opened a guaranteed letter of credit in the name of AD and received and sold Aluminumum in the name of Aluminum. Around November 201, the Defendant was unable to operate the said company no longer without paying a loan equivalent to approximately KRW 180 million. Around two months after entering D’s office, the Defendant was able to conduct the business of Aluminum and import and sales using D’s credit, but there was no fund to conduct the said business, and there was insufficient information and knowledge about this.

In such a situation, the Defendant planned to conduct the business of importing and selling Aluminum by using another person’s name on February 2012, 2012, and the B representative director C received the right to conduct the business of importing and selling Aluminum in the name of B to import and sell Aluminum in the name of B, and the right to conduct the business of importing and selling Aluminum in the name of B was delegated by C to do so. The Defendant planned to conduct the business of importing and selling Aluminum in the name of B. The business was the first 50% deposit of the L/C amount and the first 50% deposit amount of the L/C amount to be deposited with D and the bank issued with L/C (L/C) and received the L/C at the Incheon Customs office’s bonded warehouse and received the remainder of the L/C amount of the L/C’s credit and made the remainder of the L/C amount after deducting the payment from the L/C’s bonded warehouse to be made.

However, the Defendant is not only required to return funds borrowed from D upon issuance of the credit, but also the sales proceeds to be paid from D are not the full amount of the import proceeds, but also the amount obtained by deducting the expenses incurred in directly taking over and selling Aluminium aluminium from the import proceeds (No. 4: the amount equivalent to 10% of the import price of Aluminium aluminium) and thus the Defendant will incur losses as the above transactions continue.

In order to continue the above transactions, the Defendant received a new letter of credit and received and sold Aluminum in order to import and sell Aluminum and repeated to cover the shortage of the pre-existing letter of credit payment due to the sale proceeds. However, it is inevitable to increase the debt to pay the price of the letter of credit to the bank in structure, and thus, it is ultimately impossible to continue the transaction. Although the Defendant was well aware of the aforementioned circumstances, he was able to engage in the business of importing and selling Aluminum by obtaining a letter of

The Defendant, from October 8, 2012, opened a L/C transaction account to G bank under B’s name and received Aluminum from the above bank, and imported Aluminum with the L/C intent and ability to pay the L/C price to the employees of the above bank at maturity. On May 12, 2014, the Defendant issued L/C of USD 300,00 ($150,000) under the name of B, and received L/C of USD 17,000 ($175,000), and received Aluminum (5,000), and did not pay 275,000 U.S. dollars guaranteed without deposit ($320,798,000), and did not pay 37,000 U.S. dollars in the same way as the L/C bank, and did not pay 57,000 U.S. dollars in the same way as the L/C’s financial profit, 2717,707,01.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of witness K, L and M, and part of witness D's legal statement;

1. The statements of witnesses C and N in the fifth trial records;

1. The defendant's written statements in part of each interrogation protocol of the prosecution (including the substitute part) against the defendant;

1. The written statement of each prosecutor's office with respect to C, and the written statement of each prosecutor's office with respect to D;

1. Each police statement of 0, K, L, and M;

1. Each written statement of D;

1. Written indictment (Seoul Central District Court Decision 2016No. 69300, etc.), recording records, CDs, transcript of corporate register (B-P. Q.), R's mail and records of delivery to users, records of investigation into telephone conversations by reference N, B's lending date and maturity date of credit by financial company company B, records of transfer by R to B, copies of multi-use building register, copy of passbook B's bank and records of withdrawal, details of non-payment and book-keeping by bank, documents of response by bank, bank's statement of financial transactions, records of bank registration, records of deposit transactions, B's financial statements [201, 2012, 2013, 2013, 2014, 2014, 2014, 2014, 2014, 2014, 200, 2010, Ga bank's account transfer statement, bank account settlement, bank account books, etc. by bank, GaJ's bank account books, etc.

1. Each investigation report (investigation into business transfer and takeover contract, B deposit and withdrawal details);

Application of Statutes

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

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347 (1) of the Criminal Act (including fraud against the victim's industrial bank), Article 347 (1) of each Criminal Act (Article 347 (1) of each Criminal Act) (Article 347 (1) of each Criminal Act for victim's HH bank, I bank, J bank, G bank, and enterprise bank; among them, each fraud against the victim's H bank, J bank, G bank, and enterprise bank is covered by each victim, and each of them

1. Aggravation for concurrent crimes;

The grounds for judgment of conviction in the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act are the most severe penalty provided for in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

1. Summary of the defendant's assertion

For the growth and development of B, the Defendant gave advice and assistance to B representative director C with respect to the import and sale transaction of Aluminum at the advice of the operator D of R Co., Ltd., and did not deceive the employees of the affected bank who conducted credit transaction with B, and did not commit fraud, and did not have acquired property benefits through the credit transaction between B and the affected bank.

2. Determination

A. Facts recognized

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

(i) the business of importing and selling aluminiumumumumum in B;

A) B entered into a transaction by importing Aluminum from F, etc. and selling R with the content of import and sale of Aluminum. R, despite that it is not a direct party to the above import and sale transaction, performed a leading role in the above transaction, such as lending deposit for the issuance of L/C to B, actually performing the import procedure by proxy, and disposing of Aluminumum, which completed a customs clearance.

B) As above, R made profits by acquiring and selling Aluminum at a price of 90% of the import price from B in accordance with the prior agreement with B (the price less than 10% of the import price as law fees) in return for lending funds to B and acting as an agent for the import procedure. R falsely stated the sales price on the tax invoice at a lower amount than the import price, and remitted the sales price on the tax invoice to B on the date Alinium and delivery, but immediately, D immediately submitted a statement of settlement, which calculated the difference between the sales price on the tax invoice and the actual sales price applied by Boinium on the tax invoice, and received a settlement return from the Defendant. The settlement amount was first paid in cash at D’s request, but some of it was paid by the Defendant in excess of the cash withdrawal amount, and was reduced from the beginning the sales price on the tax invoice by reflecting the law fees (Evidence 1:430 pages of evidence record).

C) From the standpoint of B, the above import and sale transactions sell Aluminum at a discounted price of about 10% above the import price. As such, every transaction is the structure in which losses are incurred and losses are accumulated as much as transactions are repeated. The profit gained from the above transactions is the level of financial profit that can be used in cash received on the date of delivery of Aluminum and cash for 90 days, which is the credit extension period of the credit, and in fact has the meaning of raising short-term funds of high-ranking rate.

D) If B, using the above sales proceeds, resulting in the use of the L/C sales proceeds, the above transaction can be a useful financing method for B, but if it is difficult for B to raise separate funds due to the lack of such revenue, it is inevitable for B to extend L/C transaction by opening a L/C again and paying the above borrowed money with the proceeds of importing and selling Aluminum at another bank or under the name of another company or in another company. Therefore, in order to be evaluated as a normal transaction, it should be possible to use Aluminum and sales proceeds in order to create revenue corresponding to the L/C transaction, unless there is a separate financing plan.

2) Defendant B and other companies led to business activities

A) Around 2011, the Defendant, as indicated in its holding, discontinued with A and Aluminum in the name of E in which he/she was the representative director, and discontinued his/her business with the burden of paying a large amount of credit, but was unable to repay the L/C price, but he/she became aware of the practical practice of D and Aluminum import and sale at D’s office. Around February 2012, the Defendant accessed B’s representative director C and was delegated with the authority to import and sell Aluminumumum in the name of B from April 2012 to engage in a transaction with D again. The Defendant used B’s representative director without having been entrusted with the authority to import and sell Aluminumumum in the name of B, unlike the time of conducting the business of importing and selling Aluminum in the name of E, and as a result, C, as the representative director of B, performed the obligation related to B’s credit transaction as a joint and several surety.

B) The Defendant continued to extend L/C transaction with funds borrowed from D while repeatedly engaging in import and sales transactions with Aluminum and continued to inflict losses on the extension of L/C transaction (Evidence 1:472 pages). From April 2013 to February 2013, the Defendant started transactions with Aluminum import and sale of Aluminum in the name of P Co., Ltd. from February 2014 to February 2014, and extended B’s L/C transaction with the funds. The Defendant, without being entrusted with officers such as the representative director in P and Q, moved K and L into a formal representative director, participated in the business, leading the Defendant to the Defendant to directly issue and sell B-C tax invoices by purchasing Aluminum and Qluminum B, and made the Defendant directly withdraw from B-C’s revenue and sales account statements, and made the Defendant directly withdraw from B-C’s revenue and sales account statements.

C) On July 9, 2014, K’s representative director: (a) received KRW 581,561,125 from B for the purpose of issuing the credit; and (b) there was a situation in which it is difficult to repay the price of the credit in B as the credit was used at will for other purposes without using it for the opening of the credit; (c) the Defendant donated an apartment owned by the principal to his spouse on July 29, 2014; (d) discussed C and B’s bankruptcy around August 2014; and (e) subsequently, B and Q failed to repay the price of the credit.

(iii) the business details and financial status of B;

A) On December 21, 2007, B: (a) Company C established for the purpose of film, broadcasting, video, performance production, and agency business, etc.; (b) the annual sales in 201 was approximately KRW 1,610,89,98; and (c) the duration of the ongoing business was an advertisement that enters between the external producer of the broadcast program and the external producer of the broadcast program. As the Defendant started the business of importing and selling Aluminum in the name of B around April 2012, the business was divided into C’s film production and the Defendant’s alinium import and sales business; (c) the Defendant and C did not know the details of the other party’s exclusive business because they managed the corporate passbook independently while taking full charge of each individual business, and the Defendant did not know the other party’s specific business. The Defendant stated that C was responsible for and proceeding with Aluminum import and sales business; and (d) C was unable to request C to establish the credit exclusively with the Defendant’s intent to provide funds to himself.

B) Although the Defendant was aware of the impossibility of operating a company in a normal manner as long as the amount of loss equivalent to the royalty was accumulated whenever the Defendant engaged in the business of importing and selling Aluminum, it was merely referring to B and C’s credit management, such as checking whether C’s personal debt is subrogated and the payment of the corporate card price was made by B, to continue such business, and there was no plan or attempt to engage in profit-making business based on the said sales price. C in 2013, as the video business was poor and the video business was carried out, but all of them were suspended without any particular progress.

C) According to the financial statements B, B’s sales related to Aluminium and trade were sharply increased to KRW 4,295,940,210 in 2012, KRW 19,294,350, KRW 264 in 2013, KRW 6,366,793,050 in the first quarter of 2014, while sales from other projects, such as film production, etc., were reduced to KRW 1,744,604, KRW 545 in the year 2012, KRW 589,215,054 in the year 2013, and KRW 21,528,938 in the quarter 2014. Ultimately, B did not have any losses and methods to fill these losses.

(iv)the Defendant’s financial advantage from the transactions with Aluminium and import or sale;

A) During the process of preparing for B’s bankruptcy around August 2014, C confirmed the fact that the Defendant withdrawn KRW 1,571,742,263 out of Aluminium and sales proceeds from around April 2012 to June 2014, and filed a complaint against the Defendant on the charge of embezzlement (Seoul Central District Prosecutor’s Office No. 2015 type No. 70893). However, during the investigation process, the Defendant submitted relevant data by asserting that he/she paid KRW 1,654,750,000, the cash withdrawal amount to D under the pretext of settlement, such as law fees, and submitted them to D periodically received cash refund from the Defendant on January 18, 2016.

B) However, as seen earlier, the argument that the Defendant engaged in the above-mentioned transactions for the growth and development of B was difficult to obtain easy access to the assertion that the Defendant engaged in the business of importing and selling Aluminum in B, as seen earlier, was in a structure where there was a loss equivalent to the fees for each transaction, and thus, the Defendant made the above-mentioned transactions for the growth and development of B (this is more so in light of the fact that the Defendant did not engage in any profit-making business with Aluminum and the sales proceeds, and that there was no intended plan. Although the investigative agency issued a non-prosecution disposition with regard to the Defendant’s suspicion of embezzlement at the investigation agency, it seems difficult to conclude the total amount of cash withdrawn by the Defendant as the settlement amount for D even if based on the records in the instant case, even if so, the possibility that some of the settlement amount was

C) In this regard, D submitted a written statement to the investigative agency that cash received from the Defendant is only KRW 2-300 million, including the amount to be repaid to the individual obligation (Evidence No. 691 of the evidence record). N that assisted the Defendant’s business, and at the investigative agency that made the Defendant’s business, when the credit was issued and the amount to be paid is deposited in Althanum and the sales amount, the Defendant released cash and settled D. At the time the Defendant was said to have divided D and the sales amount. At the time, the Defendant stated that there was a paper stating that there was a balance between D and the sales amount to be paid to each person (Evidence No. 164 of the evidence record 164);

B. Specific determination

Various circumstances revealed in the above facts or the records and arguments of this case, in particular, the defendant did not have any way or plan to meet the above Aluminum import and sales business, which has no choice but to accumulate losses as the losses will continue to occur, and rather, if losses were accumulated from the beginning and the situation where it is no longer possible to extend the transaction transaction through the L/C return prevention, it would have been thought that B would have been bankrupt. Furthermore, even if the defendant goes bankrupt, if he takes over the company B, he did not take any legal responsibility, such as the representative director, etc., and takes charge of the above Aluminum and import and sales business, without taking charge of the legal liability when he takes over the company to avoid the liability for guarantee even after the bankruptcy of B, and the injured bank led the above Aluminum and import and sales business. ③ The injured bank did not issue the L/C by means of short-term financing unrelated to the normal transaction, or because it did not have any ability to repay to B, it would not have been possible to recognize that B had acquired the credit by deception or return of the credit.

1. The grounds for sentencing: Imprisonment with prison labor for a period of three to forty-five years;

2. Scope of recommendations according to the sentencing criteria;

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

[Special Convictd Persons] None

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

3. The crime of this case committed by the sentence of sentence was committed by the defendant while opening a term letter of credit in the name of the company with the vice president, and extended the transaction of the credit through ice ice ice or return of the credit. The defendant was unable to pay a certain amount of at least 2 billion won of the credit amount to the bank that opened the credit. Although the defendant discontinued his business in the same way, he abused the term letter of credit system in the same way and did not incur a large amount of damages to the bank that opened the credit at the 6th place, and as the representative director of the above company, C, who was discharged from the above debt as the representative director of the above company, takes a heavy punishment against the defendant.

However, there are favorable circumstances such as the fact that the substantial part of the profits acquired by the Defendant through the crime of this case seems to have been reverted to D who participated in the transaction of import and sale of the above Althanum as the capital owner in this case where the actual amount of profits acquired by the Defendant is not revealed, and that the Defendant has no criminal record.

In addition, considering the various circumstances shown in the records and pleadings, such as the age, character, conduct and environment of the defendant, motive and consequence of the crime, relationship to victims, circumstances after the crime, etc., the punishment as ordered within the scope of recommended sentencing guidelines shall be determined.

The presiding judge and judges;

Judges Kim Young-ho

Judgment of the Prosecutor

1) The facts charged and basic facts are identical to the facts charged and are not likely to substantially disadvantage the defendant’s exercise of his/her right to defense.

The specific facts are partially recognized differently from the facts charged.

2) In such a situation where a foreign supplier enters and keeps exports first of all at its own expense and risk to a domestic bonded warehouse;

The method of concluding a sales contract with an importer is called BWT; BWT; Boned Whouse Telecommunication.

3) B The Credit Guarantee Amount (=the amount equivalent to the deposit + the amount equivalent to the bank pure guarantee) minus the deposit in the Credit Amount (the bank’s net credit amount)

The credit must be repaid within 90 days from the date on which the credit was issued.

4) In the course of selling D's imported goods directly by delivery, Law fees shall be the cost of loading and unloading, transportation and storage of the goods on behalf of the importer.

Expenses, exchange losses, etc. are expenses, exchange losses, etc.

5) If an employee of the bank issues a credit to B, B shall guarantee the remainder of the credit guarantee price less deposit than that of the credit.

(1) In order to obtain security, thereby causing the fraud of the defendant. However, the prosecutor is not equivalent to the above amount of payment guarantee.

D. The following amounts were charged by deeming the amount equivalent to B’s outstanding amounts of the credit as financial gains; and the amount is less than the amount equivalent to the amount of the credit guarantee.

Since it is not unfavorable to the defendant, it shall be recognized as property damages.

6) In the course of ‘Nice Dog or L/C return', there is a loss of the law amounting to the law again.

7) The N in which the Defendant had colored the Company at the Defendant’s direction is a corporation in which at the time the Defendant lent 50 million won to the Defendant at the time.

The statement was made to the effect that it was false (Evidence No. 1, 160 pages).

A person shall be appointed.