2016Gohap1071, 1393 (Joint)

Violation of the Act on the Aggravated Punishment, etc.

e) The Aggravated Punishment Act of the Specific Economic Crimes

Anti-Fraud (Fraud)

A

Kim Young-il, Oscop (prosecutions), and Kim Jung-il (Trial)

Law Firm B

Attorney C, D

August 17, 2017

A defendant shall be punished by imprisonment for not less than two years and six months.

Criminal facts

【Criminal Power】

On October 27, 2016, the Defendant was sentenced to two years and six months of imprisonment at the Seoul Central District Court for fraud, etc., and the said judgment became final and conclusive on May 17, 2017, and on October 27, 2016, the Seoul Central District Court sentenced one year and six months of imprisonment with labor for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. (Mediation) and the said judgment became final and conclusive on July 18, 2017.

【Criminal Facts】

"2016, 1071"

Around August 2010, the Defendant was asked by the victim F F, who became aware of through the branch E, to receive and receive the claim that the victim G has against the obligor H on behalf of the obligor H.

On December 7, 2010, the Defendant agreed to the effect that, at the J Office, the Defendant, located in Gangnam-gu Seoul, operated by the Defendant in Gangnam-gu Seoul, H and the victim’s agent K, etc., the victim should receive H as KRW 1.1 billion, and that, at the KRW 1.1 billion out of the KRW 1.1 billion, the Defendant shall be the Defendant’s fee and the amount shall be paid to the victim through the Defendant.

On December 29, 2010, according to the above agreement, the Defendant received KRW 400 million from H to the account under the name of the Defendant, and transferred the remaining KRW 300 million to the victim with the Defendant’s high expense, and transferred the remaining KRW 300 million to the victim. On January 19, 2011, the Defendant received KRW 200 million from H and remitted the money to the victim.

On February 19, 2011, the Defendant received KRW 500 million from H to the national bank account under the name of the Defendant, and was kept in custody for the victim. At that time, the Defendant voluntarily consumed the amount for personal debt repayment, etc. and embezzled it.

"2016 Gohap1393"

On July 15, 2011, the Defendant planned to take over Ma, an advertising company, and enter into the advertising electronic sign board business. On July 15, 201, the Defendant entered into an agreement to acquire 530,000 won of the shares of the said company from N owned by M Co., Ltd. and paid 300 million won of the down payment to N, but the intermediate payment was not paid due to the shortage of the funds, as the contract was rescinded as of August 30, 201.

Around that time, the Defendant’s comprehensive fashion project promoted in China was suspended due to the situation on the Chinese side, and there is little income from the lack of a certain occupation, while personal debts exceeded one billion won and did not have any intent or ability to complete payment, even if they borrowed money from other persons, and there was no ability to have the Defendant receive the facilities and fire fighting works ordered by the stock company, and even if they borrowed money from other persons, they did not use it for the purpose of taking over M Co., Ltd or purchasing the stocks of the company, but rather used it as gambling funds or for the repayment of personal debts.

around September 201, the Defendant: (a) borrowed money from the victim R. (54) engaging in the construction of fire-fighting and equipment construction business; (b) did not use it for the purpose of taking over the Plaintiff; (c) did not have the right to order construction for the Defendant’s personal debt or gambling fund; and (d) did not have the right to order construction for the Defendant’s money; (c) did not have the victim’s right to order construction for the Defendant’s order through S with the president’s departure; and (d) if the Defendant borrowed money from the Plaintiff to take over the Plaintiff, the Defendant would have the Defendant paid KRW 200 million to the Defendant’s bank account in the name of the Defendant on September 30, 2011.

On November 29, 2011, the Defendant continued to receive 0 facilities or fire fighting construction from the victim.

In high, while making a loan to take over a stock company, the victim did not have any money any longer, and the victim again made a false statement to the victim that "I will use the loan by obtaining a loan under the name of T Co., Ltd. on the high seas, and will be responsible for and repaid later," and the member paid the above loan amounting to KRW 284,962,135 on December 27, 2012 by having the victim repay the above loan amounting to KRW 280,000,000 at the Busan-gu Busan-gu Busan-gu Busan-gu Busan-gu Busan-gu Busan-gu Busan-gu Busan-gu Busan-gu Busan-gu, Busan-do, and KRW 2209 and KRW 2609 on the victim's wife as the debtor, which is each of the above loan amounting to KRW 284,962,135 on the pretext of the above loan and its interest.

In addition, the Defendant, around March 19, 2012, extended the funds to take over Ma to the victim in the coffee shop located in Gangnam-gu Seoul, but, on the same day, was transferred KRW 300 million from the account of national bank in the name of Y, the Defendant temporarily borrowed from the victim to the account of the national bank in the name of Y, the Defendant borrowed from the victim any further loan to the victim, and if the victim borrowed the funds to take over Mean Co., Ltd. by making the sound and joint guarantee to the debtor in the form of security, the Defendant would pay the annual interest up to 8% until March 31, 2014.

Accordingly, the defendant deceivings the victim and received KRW 500 million from the victim 3 times, and acquired pecuniary benefits equivalent to KRW 280 million.1) Summary of the evidence

"2016, 1071"

1. The defendant's partial statement in the first protocol of trial;

1. Each legal statement of the witness K, F, and H;

1. Copy of the suspect examination protocol of the accused;

1. Declarations, contracts, and agreements;

1. A certified copy of each register (Evidence List 7,11);

1. Previous convictions in judgment: A inquiry letter, each previous disposition and report on the results of confirmation, and a written judgment shall be made;

1. Partial statement of the defendant;

1. Each legal statement of the witness R and Z;

1. Entry of the accused in the statement of AA in the second interrogation protocol of the prosecution;

1. M M Acceptance summary (Evidence 30,49);

1. Confirmation of the details of changes in stock holdings (50 of the evidence);

1. Current status of receipt of orders for construction works and the register of stockholders (Evidence List 12, 13);

1. Letters (Evidence 14);

1. Each reply (Evidence List 74, 75);

1. Allowances related to the selection of fire-fighting facilities and electrical construction companies;

1. Details of each letter of agreement, contract, certificate of confirmation, copy of cashier's check, copy of passbook, personal financial transaction, issuance of cashier's check (Evidence List 17 through 22, 55, 56);

1. A detailed statement of details of entry and withdrawal, and details of transactions by other exchange account (Evidence List 70, 71);

1. Inquiries about the full payment of loans (Evidence 4);

1. Receipts (Evidence 5);

1. Copy of text messages (Evidence 45);

1. The loan certificate (Evidence List 6);

1. Certificates of confirmation (lists of evidence 59);

1. Four copies of the principal financial transaction, certificate of confirmation, and copy of the passbook (Evidence List 24 through 26);

1. Each investigation report (Evidence list 31, 32, 58, 60, 86);

1. Previous convictions in judgment: Residents, criminal records and investigation records inquiry, previous convictions and report on results of confirmation, each investigation report (Evidence List 79,89,90), written judgments (Evidence List 80);

Application of Statutes

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

Articles 3(1)2 and 355(1) of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 11304, Feb. 10, 2012); Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 13719, Jan. 6, 2016); Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 13719, Jan. 6, 201

1. Handling concurrent crimes;

The latter part of Article 37 and the first part of Article 39(1) of the Criminal Act (the crimes of each judgment and each crime of each judgment)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act / [Aggravation of concurrent crimes with the punishment prescribed in the Act on the Punishment, etc. of Specific Economic Crimes, which is heavier than the quality of the crime]

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

Judgment on the argument of the defendant and defense counsel

1. As to the assertion and judgment on the case 2016Gohap1071

A. Summary of the assertion

1) On February 19, 201, H transferred KRW 500 million to the Defendant, and the Defendant first used KRW 400 million as the share price that the Defendant intended to take over at the time, and then made profits thereafter, he would pay KRW 100 million to the husband G of the Victim F. The remainder of KRW 100 million was delivered to the person as instructed by H. The Defendant used all of them for the entrusted purposes.

2) In addition, the foregoing money is illegal consideration for money and valuables received from H by threatening the victim FF to raise issues with H’s non-funds, etc., and thus, even if the Defendant used the said money in breach of the purpose entrusted, it does not constitute embezzlement.

B. Determination

In full view of the following circumstances that can be recognized by evidence, etc., the Defendant voluntarily consumed the money owned by the victim F, which was kept by the victim F for the F, contrary to the purpose of entrustment. Therefore, the above act of the Defendant constitutes embezzlement.

Therefore, this part of the defendant's and defense counsel's assertion is without merit.

① The victim F, H, and K consistently stated in investigative agencies and this court that the Defendant arbitrarily used KRW 500,000,000 paid to the victim F or G without the victim F or H’s consent.

Recognizing that the defendant himself voluntarily uses KRW 500 million received from the victim F, the defendant himself prepared a letter of commitment to reimburse the victim F with the amount of KRW 500 million or to transfer the equivalent shares (Evidence No. 14) and recognized that the investigation agency arbitrarily used KRW 500 million received from H to the victim F without the victim F's consent (Evidence No. 210 pages).

③ On December 20, 2010, the victim F and its AB made a statement to the effect that when the victim F and H receive money from H as the recipient of H, they will deliver the account books, etc. of AC, which were operated by the G, to H and will not raise any issue, such as demand for money and goods. In addition, the Defendant made a statement to the effect that the victim F will open to the public the interest of AD operated by H to the public by threatening H to receive the above KRW 500 million delivery via the Defendant (Evidence record 80,730,735 page), E, and in the investigative agency, “H will first pay KRW 50 million to the Defendant and the victim F, and the remaining KRW 500 million will return to the Defendant at the end of the statute of limitations period for the non-financial issue of H.”

(Evidence Records 106)

However, the investigative agency stated that the victim F was 10 billion won to help and invest in G, and that this court stated that the payment of the above KRW 500 million to G and the victim F was irrelevant to AD’s non-financial problem, and that E also stated that the victim F was unaware of the victim’s non-financial obligation without the victim’s claim for supply of G, and that the victim F was threatened with H’s non-financial obligation. In light of the above statement of performance and the defendant’s statement and the investigation agency’s statement, it is difficult to view that the victim F was 10 million won to receive the above KRW 50 million in relation to non-financial consideration. Even if the victim F was 20 million in consideration of the above statement of performance and the defendant’s statement at the above investigation agency, it was difficult to view that the victim F was 90 million won in consideration of the victim’s non-financial obligation to collect the amount of the illegal consideration (see, e.g., Supreme Court Decision 200 million won in consideration of the victim’s non-financial obligation.

2. As to the assertion and judgment on the case 2016Gohap1393

A. Summary of the assertion

1) The Defendant mentioned the acceptance and acceptance of M Co., Ltd., and did not deceiving the victim R, and the victim R was consulted with the Defendant since February 2, 201 through March 3, 201, and sought sufficient explanations from the Defendant, and paid KRW 200 million to the Defendant for the purpose of investment in M&A based on his own decision.

2) As to the loan obligation of KRW 280 million in the name of T Co., Ltd., the victim offered as security the real estate owned by U and the victim's wife so that the victim R may believe the horses of CE and obtain a loan. In this regard, the defendant merely introduced AE to the victim R, and did not induce the victim R, and only delivered approximately KRW 100 million out of the above KRW 280 million to AE's creditor, and did not use the above money.

3) Although 300 million won remitted from March 31, 2012 to the account under the name of Y was formally borrowed, the victim R, a representative director of Y, was invested in Y Co., Ltd. at his own discretion by hearing sufficient explanation from Z, and the Defendant used it in the operation of Y Co., Ltd., and thus, the Defendant did not deceiving the victim R in relation thereto.

In addition, on March 9, 2012, the Defendant transferred 100,000 shares of M Co., Ltd. to the victim R, which was sufficiently repaid or offset by the amount equivalent to the value of the above shares even if the above KRW 300 million was borrowed to the Defendant.

B. Determination

In full view of the following circumstances, even if the defendant borrowed money from the victim R, it is reasonable to view that the defendant, even if he/she was aware that he/she was to take over M Co., Ltd. (hereinafter referred to as "M") or to use it for any purpose other than for purchasing M, and that he/she received KRW 500,000 from the victim R by deceiving the victim R, and that he/she acquired pecuniary benefits equivalent to KRW 280,000,000 from the victim'sR. Therefore, this part of the defendant and his/her defense counsel

1) The part in receipt of remittance of KRW 200 million to the account under the name of the defendant

① As to the title of remittance, the victim argued that the Defendant lent KRW 360,000,00 to use money as down payment for M acceptance, and that the Defendant loaned KRW 200,000 to use money for part payments thereafter. The Defendant argued that the victim invested KRW 360,000 as down payment to invest KRW 360,000 in M in order to use it as down payment, and that the Defendant also delivered KRW 200,000,000,000. The Defendant appears to have concluded a contract with N on July 15, 2011 and MM KRW 530,000,000 (hereinafter “instant share transfer contract”) with KRW 301,00,000,000,000 on July 25, 201, and that the Defendant cancelled the above transfer contract and issued the intermediate payment payment to KRW 301,000,000,0000 on August 30, 2011.

② However, the victim R consistently lent funds to the investigative agency and the Defendant for acceptance of M in this court, and the Defendant was willing to arrange for the victim R to fully assign the facilities and fire fighting construction to the victim R through this Chairperson, so that the victim R had no choice but to lend money in trust to the Defendant due to the expectation therefor.

On July 14, 2011, the Defendant prepared a loan certificate with a maturity of KRW 360 million on September 30, 201, with the content that the Defendant borrowed KRW 360 million from the victim R as a down payment for M acceptance. This conforms to the victim R’s statement.

③ On the other hand, the Defendant asserts that the Defendant issued the Defendant and M to jointly accept the Defendant based on the unique judgment of the Victim R, and that, on July 14, 201, AG would make a complicated agreement, etc., and whether it would not be simple from a loan certificate of KRW 360 million in the match, and that the Defendant issued AG a loan certificate to AG and delivered it to the victim R.

However, it is difficult to easily understand that the agreement to operate the same business merely because it is more complicated than the loan certificate and prepared a loan certificate. AG merely stated in this court that it merely received and delivered the loan certificate as the victim R's representative and stated that it is contrary to the defendant's assertion. If the defendant and the victim R agreed to jointly accept M as the defendant's assertion, it is quite unusual that the conclusion of the agreement to transfer the shares of this case and the payment of the down payment of 300 million won to N are made in the defendant's sole name. In light of the above, the above argument by the defendant is not persuasive.

④ The fact that the Defendant submitted a confirmation document to the effect that L, which was carrying the M acceptance plan with the Defendant, was an investment by the victim R, is recognized. However, L, at an investigative agency, stated that the above confirmation document was prepared by the Defendant and affixed a seal only to L, and all the contents of which are false (Evidence No. 634). In this court, it is not aware that the relationship between the Defendant and the victim R is an investment or borrowed, and that the content of the above confirmation document was written to the effect that it would give a seal to the Defendant by taking account of the kind of relationship with the Defendant even if the content of the above confirmation document was completed, it is difficult to believe that the

After July 15, 2011, the Defendant paid the down payment of the instant stock transfer contract to N, the Defendant did not incur any expenditure for the acquisition of M shares. From July 15, 201 to October 2015, the Defendant incurred a total of at least 2.2 billion won from the fixed casino to gambling without any special hospitalization. Therefore, the Defendant is presumed to have used the said KRW 200 million as the Defendant’s gambling fund regardless of the acquisition.

2) The portion secured by the loan of KRW 280 million in the name of T Co., Ltd. (hereinafter “T”)

① The victim R consistently stated in the investigative agency and this court that the Defendant’s request for a loan of funds necessary to acquire M is difficult because there is no money for the victim due to the lack of money due to the lack of money for the Defendant’s request for a loan from a financial institution. If so, the Defendant’s request for a loan from a financial institution was made by T to provide a security for the above loan obligation. The victim’s statement made by AA employees of U.S. Co., Ltd. (hereinafter “U”) whose procedures for the provision of security are for the victim R is consistent with the victim’s above statement.

② From February 2015, the Defendant paid money exceeding KRW 1,00,000 per month to the interest on the said loan. Around April 2015, the Victim R sent several letters demanding the Defendant to pay interest unpaid, and thereafter, the Defendant promised to pay the interest and made a reply indicating the failure to pay the interest.

Although the Defendant alleged that the victim invested in AE but the victim was responsible for the introduction of AE by phone calls to the Defendant, and that the Defendant has been criticized for the Defendant, and that the Defendant continued to pay interest on the unfortunate mind. However, solely on the intent of the victim R’s criticism or introducing AE, it is very exceptional that the Defendant paid the loan interest on behalf of the Plaintiff without any objection for a long period of time. In addition, the Defendant stated that the investigative agency was unaware of the company and carried out the loan at any bank (Evidence No. 178 of the evidence record), but this is inconsistent with the fact that the Defendant paid the interest on the loan on a regular basis.

③ Although the Defendant asserts that the above loan was money unrelated to himself, the Defendant stated that he delivered KRW 110 million to AF. The Defendant only delivered the above loan amount of KRW 110 million upon the request of AE (Evidence No. 178 pages), or that AE paid the loan amount of KRW 178 million (Evidence No. 253 page). However, with respect to the circumstances surrounding the occurrence of the above loan amount, the Defendant lent KRW 150 million to AE by means of deposit in the Defendant’s national bank account at least six months prior to the above loan amount of KRW 6 months prior to the receipt of the loan amount of KRW 150 million, and as AF lent money to the Defendant, the Defendant made a statement that the above loan amount of KRW 110 million was paid to AF through the payment of the loan amount of KRW 110 million to the Defendant, at least KRW 150 million,000,0000,000,000 to the Defendant’s statement that the loan amount was used by the Defendant.

④ The Defendant also recognized that the victim R was not well aware of AE (Evidence No. 177-178, 254). The Defendant’s assertion that the victim offered a security for a large amount of loans for AE for which the victim R was well aware is inconsistent with the empirical rule.

⑤ Meanwhile, the fact that the victim R filed a criminal complaint against AE around December 2014 with the Defendant and AF for a loan of KRW 280 million is recognized.

However, since the victim R brought KRW 110 million out of the above loans to the defendant, the defendant could not pay the above loans to the victim R. Thus, the victim filed a complaint against AE, and made a statement to the effect that it only provided the above security against the defendant who is not AE (Evidence Nos. 177-178). In light of the victim R's statement, the victim R provided the security to the defendant, but the circumstances leading up to the victim's complaint against AE is sufficiently acceptable. On the other hand, the defendant withdrawn the complaint against AE thereafter.

3) Part of the remittance received 300 million won to the account under the name of Y Co., Ltd. (hereinafter referred to as Y)

(1) The victim R consistently stated in an investigative agency and this court that the Defendant has consistently requested to lend funds to acquire M and then remitted KRW 300 million to the account in the name of Y, which is consistent with the statement of Y representative director.

② The victim R stated that the Defendant was the actual president of Y from the Defendant, and the Defendant was the representative director (Evidence No. 24-25 of the evidence record). The Defendant also stated that Y was actually operated when the Victim R first met (Evidence No. 65-6 of the record). The victim R and Z state the same that there was no difference between the two before the victim R transferred KRW 300 million to the Y account. Thus, the victim R and Z state that 30 million won transferred under the victim R and Y’s name did not have invested in Y after hearing the explanation of Y, or after hearing the explanation of Y.

③ On March 20, 2012, the Defendant and Y borrowed KRW 300 million annually from U, and on March 31, 2014, the Defendant: (a) issued a loan certificate to the victim on March 20, 2012, stating that the Defendant and Y jointly and severally guaranteed the above loan obligation; and (b) affixed the corporate seal impression and the Defendant’s seal impression affixed thereon to the victim R.

(4) On March 2012, 200 million won, the Defendant stated at an investigative agency that 300 million won of the above 300 million won was invested in Y by the Defendant’s proposal (Evidence Records No. 71), and that 300 million won was invested in Y in the above 300 million won (Evidence Records No. 179), and that the Defendant provided Y with 2.3 billion won of the above 300 million won of the 300 million won of the 300 million won of the 300 million won of the 300 million won of the Y’s shares to purchase part of the 230 million shares, and that the 300 million won of the Y’s shares were invested in Y since the Defendant appears to have been paid 90 million won of the 300 billion won of the 300 billion won of the 300 billion won shares, it seems that it was difficult for the Defendant to easily obtain the 900 billion won of the M shares.

Of the above KRW 300 million, KRW 100,000,000,000 to J, 60,000,000 for each Defendant’s loan creditors, and KRW 60,000,000 to each Defendant, was used directly by the Defendant, and the remainder of KRW 40,00,000 was used as Y’s operating fund. Considering the circumstances recognized earlier, it is reasonable to view that the Defendant was in the position of having substantial management or considerable influence at the time, and thus, the above KRW 300,00 is deemed to have been used by the Defendant.

⑤ As seen earlier, it is difficult for the above KRW 300 million and the Defendant to believe the Defendant’s statement on the relationship of KRW 100,000 of the M shares transferred to the Victim R. As seen earlier, as seen earlier, the Defendant, by deceiving the Victim R, was already transferred KRW 200,000,000, and was transferred after acquiring property benefits equivalent to KRW 280,000,000,000,000,000,000,000,000,000 won, and the transfer was made before the Victim R was issued. In light of the fact that the above KRW 300,000 and KRW 300,000,000,000,000 were paid to the Victim, it does not affect the establishment of the crime of fraud.

Reasons for sentencing

1. Scope of applicable sentences under Acts: Imprisonment for one year and six months to twenty-two years; and

2. That the sentencing criteria do not apply to concurrent crimes under the latter part of Article 37 of the Criminal Act;

3. Determination of sentence;

The Defendant embezzled money owned by the victim F and obtained money or pecuniary benefits by deceiving the victim R by deceiving the victim R, which is significant in quality of the crime. The Defendant again committed the instant crime in the case of 2016 large sum1071 even though he had been sentenced to imprisonment for three years on April 11, 2002 due to the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement). Nevertheless, the Defendant should be punished strictly in light of the following: (a) the Defendant has committed the instant crime in the case of 2016 large sum1071.

However, the Defendant partly repaid the victim F of the instant case to the victim F, and the victim F does not want to be punished by the Defendant under mutual consent with the victim F and the need to consider equity with the case where the Defendant’s judgment became final and conclusive at the same time with each of the crimes in the instant case. Other factors such as the Defendant’s age, family environment, motive of the crime, and circumstances before and after the crime are considered in light of all the sentencing conditions as indicated in the instant pleadings.

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

For the presiding judge or judge;

The same judge's identity

Judges Lee Young-young

1) Although the changed facts charged are deemed to have obtained pecuniary benefits equivalent to KRW 780 million, the defendant received KRW 500 million from the victim according to the facts obtained through the examination of evidence, and recognized that the defendant obtained pecuniary benefits equivalent to KRW 280 million from the victim according to the facts obtained through the examination of evidence (see Supreme Court Decision 2003Do7828, Apr. 9, 2004).