2017No3539 Violation of the Act on the Protection of Financial Users and Credit Business, etc.

1. A;

2. B

3. C:

Defendant

He/she shall file prosecutions, stay in court (public trial).

Law Firm Square (for Defendants A and C)

Attorney Park Jae-sik, and Kim Jong-hwan

Attorney Kang Jong-ho (the national election for the defendant B)

Seoul Central District Court Decision 2016 Height5485 Decided September 14, 2017

January 26, 2018

The part of the judgment of the court below against Defendant A and C shall be reversed.

Defendant A and C are not guilty.

Defendant B’s appeal is dismissed.

1. Summary of grounds for appeal;

A. Defendant A and C

(1) misunderstanding of facts

As to the crimes related to corporation E, the case necessary for Defendant A to issue a credit

The judgment of the court below which held Defendant A liable for a joint principal as to the acts of violating the Credit Business Act of the above company and the operator of K on the premise that it did not pay an advance or provide an error in the name of gold security.

2) Legal principles

D Co-principals related to Co., Ltd. (operator F) and co-principals related to Co., Ltd. E (operator K)

As to conduct, Defendant A was an operator of C, who actually runs the wholesale business of Aluminium, and only purchased Aluminium from each of the above companies, and cannot be deemed as sharing the act of practice with the intent of joint processing as to each of the above companies, F, and K’s violation of the Credit Business Act.

Even if Defendant A conspiredd to commit the above acts of violation of the Credit Business Act, such as each of the above companies, F, and K, it cannot be viewed as an act committed by the representative of C, and thus, it is unlawful to punish Defendant C as an act of violation of both punishment provisions.

2) Unreasonable sentencing

The sentence of the lower court (each fine of KRW 20 million among the defendants) is too unreasonable.

B. Defendant B (unfair form of punishment)

The lower court’s sentence (5 million won) is too unreasonable (the Defendant B’s ground of appeal is deemed to have been contested on the ground of mistake of facts as to the crime committed on October 28, 2013, which was submitted on November 24, 2017, after the deadline for submission of the grounds of appeal expired. However, the grounds of appeal filed by the defense counsel during the statutory period are only disputing the grounds of unfair sentencing, and the grounds of appeal asserted by Defendant B do not constitute grounds affecting the conclusion of the judgment, and thus, Defendant B’s above assertion is not determined.)

2. Determination

A. Ex officio determination

With respect to D (States) of the facts charged against Defendant A and C, which came to the trial of the public prosecutor.

The part of the co-principal's indictment is modified as described in paragraph (1)(b)(1)(a) below (the part of the co-principal's indictment shall be deleted from 70 times up to 1-71(number 1-71(number 9) of the annexed list of crimes listed in paragraph (a) of Article 1 of the Public Prosecution Act to be changed to 1-59 times). The judgment of the court below shall be reversed on the ground that this court permitted this to be tried.

However, despite the above reasons for ex officio reversal, Defendant A, corporation’s misunderstanding of facts and misapprehension of legal principles on the relevant part are still subject to the judgment of the competent court.

B. Determination as to Defendant A and C’s assertion

1) Summary of the modified facts charged

○ The Defendant A (State) is a person who operates a trade name “A” and a trade name “A” and “A”.

(c)

A) Joint Offences related to D(States)

N. F. F. F. H.D. operator on October 4, 2013

Note I, H) Operators I, and J, proposed to the effect that “I will have Aluminium in custody in a domestic bonded warehouse, and will receive the credit in cash upon the issuance of the credit. If an import credit with a maturity of 30 to 90 days is issued against a financial institution, I would like to give the credit in cash after deducting the fee from the amount of Aluminium revenue.” At the time of the issuance of the credit, I and J proposed that “I will also lend the deposit security (in excess of 50 per cent of the amount of the credit) required by the bank.”

On October 2013, the Defendant: (a) at the office of the Sinju City Enterprise Bank of Prisoners of War, F

Upon the request of the importer, the importer provided F with an advance letter of intent to sell the letter of intent of the exporter named as the importer, and agreed to take over alinium in the amount calculated by deducting 4% or 5% of the revenue from commission. On October 4, 2013, I and J applied for a loan to issue the letter of intent to sell the letter of intent, deposit security, etc. in the name of F and obtained approval from the banking officer (the amount of deposit security is KRW 350 million, credit amount is KRW 180 million).

Accordingly, F shall have prior lent approximately KRW 500 million to Aluminium imported on the same day.

At KRW 153,130,794, excluding KRW 350,000,000, 153,130,794, 95,716,421, 15,716, and 136.8% per annum, excluding KRW 57,414,373, 300, 11.4% per annum, 136.8% per annum, i.e., the Defendant acquired Aluminium with the amount obtained by deducting 4 or 5% from the amount of revenue (in case of 30-day L/C import, 57,414,373, 30-day interest rate per annum).

In addition, the Defendant was between October 4, 2013 and December 6, 2015.

Around 59 times, as shown in the annexed List 1, F took over imported aluminium after deducting 4% or 5% of the revenue from F as commission, and F made an application for a loan to issue an import L/C under the name of 21 companies, such as (main)G, etc. with no experience in importing aluminium, although it is urgently required to pay in cash, and after making an application for a loan to issue an import f/C under the name of 21 companies, such as (main)G, etc. with no experience in importing aluminium, 8% or 14.5% (4% or 5% of this amount shall be the Defendant’s profit, and the remaining amount shall be the profits of F/Bers) of the loan, namely, 8% or 14.5% of the loan (the total amount of the revenue, including the deduction fee, shall be paid within 30 days or 90 days under the L/C transaction with the bank.

Accordingly, the Defendant, in collusion with F, does not register with the competent authorities.

AB made it.

B. (States) Joint Action related to E;

In the case of a change of a type of credit service provider (owner), K, executive L, or M (hereinafter referred to as "K, etc.")

On March 2014, 2014, Haman issued a credit to Nmannman only with Aluminium in custody in the domestic bonded warehouse, i.e., at the time of the issuance of an import credit. When issuing an import credit to a financial institution, it proposed that the bank will provide deposit security (in excess of 50% of the amount of revenue) required by K, etc. at the time of issuing the credit, the Defendant provided documents necessary for the issuance of the credit, such as a letter of intent to sell written N as an importer at the request of K, etc.

On March 31, 2014, a loan officer of an O bank approved an import credit with a time limit of 200,000 U.S. dollars and issued an import credit.

Accordingly, K, etc. is located in a place not exceeding Seoul around March 31, 2014 where it is impossible to identify the place.

In doing so, approximately 190,000 won was paid to N operators after deducting about 10% of 200,000 US dollars 200,000 on the day imported (30,000 US dollars 212,000,000) (the annual interest rate of 40% because it is a 90-day import letter of credit).

The defendant acquired aluminium from K, etc. with an amount obtained by deducting 2% to 3% from 500,000 US dollars.

In addition, the Defendant from January 8, 2013 to February 17, 2015

In 25 times, as shown in Schedule 2 of the Crimes List 2, K, etc. acquired aluminium with the amount of 2% or 3% of the revenue from K, etc. after deducting the fee from the fee, and K, etc. made an application for a loan to issue an import letter of credit under the name of nine companies, such as (1)P, which do not have experience in importing aluminium, and after making an application for a loan to issue an import letter of credit, K, etc., paid 5% or 10% (2% or 3% of this amount shall be the defendant's profit, and the remaining amount shall be attributed to K, etc.) of the loan as the fee, and the representative of the above company has the obligation to pay the full amount of the revenue including the deduction fee within 30 days to 90 days under the credit transaction relation with K, etc. (the rate shall be 120%).

As a result, the defendant in collusion with K et al. without being registered with the competent authority.

The assistant was engaged in the practice.

○ Defendant (State)C

The description in the preceding paragraph between January 8, 2013 and December 6, 2015 by the Defendant

A, the representative of the defendant, in collusion with F, K, etc., engaged in credit business without being registered with the competent authority.

2) Relevant legal principles

In order to establish a joint principal offender, the intent and the object of joint processing as a subjective requirement.

The fact that a crime is committed through functional control by a joint doctor as a subjective element is necessary. As such, the intention of joint process as a subjective element is insufficient to recognize another person’s crime and not to restrain it, but to accept it. The purport of joint process is to shift one’s own intent by using another person’s act with a common intent to commit a specific criminal act (see, e.g., Supreme Court Decision 200Da4788, Apr. 7, 200).

3) Specific determination

In light of the above legal principles, the health class, the court below and the court below are legitimate.

In full view of the following circumstances found by the evidence adopted and examined, it is difficult to view that Defendant A shared processing with the intent to commit a violation of the Credit Business Act, including F and K, and there is no other evidence to acknowledge liability as a joint principal offender for the above violation of the Credit Business Act. Therefore, the judgment of the court below that recognized Defendant A’s liability as a joint principal offender is erroneous in the misapprehension of legal principles or in the misapprehension of legal principles.

Furthermore, Defendant A is not liable for violation of the Credit Business Act.

Since Goman C Co., Ltd. can not be punished in accordance with both punishment provisions, the defendants' assertion of mistake or misapprehension of legal principles is with merit.

A) Defendant A is an operator of C Co., Ltd., which is engaged in the wholesale business of aluminium.

A Co., Ltd. imports Aluminum directly from exporters or from Aluminum distributors such as F and K, and sells Aluminum to the first consumer of Aluminum. Defendant A may sell a large amount of alinum with a low price as the price of Aluminum is acquired, but if the market of Aluminum falls below the purchase price, damage therefrom should also be borne.

(B) 'Alumin' using so-called 'Alumin aluminium loan' made by F and K is issued a credit.

It is called the so-called 'alternative credit business' because it does not fall under the ordinary type of credit business, such as bill discount, transfer of security, etc., because it is given cash to the above enterprise after having the desired enterprise proceed with the import of Aluminium, and then, it is difficult to view that the above purchase of Aluminium by F and K constitutes an act of violation of the Credit Business Act.

C) Defendant A needs to issue a letter of credit regarding the violation of the Credit Business Act by F, etc.

There is a fact that Defendant A has made an advance payment under the name of deposit security required for the issuance of a credit. However, this is understood as an act in the instant case where Defendant A has made a cash transaction rather than processing the act of violating the Credit Business Act, such as F, etc. In other words, due to the characteristics of the trading transaction, the name of the importer and the conditions of sale stated in the letter of intent should be accurately stated in the letter of intent to sell, and the import procedure can be completed so that A is clearly delivered to the Defendant A through the importing company. In this regard, there is a case where Defendant A pays advance payment at the F Party’s request, and in such a case, there is a date of opening the bank on the date of the credit. However, this is for the purpose of securing the delivery of L/GL (documents necessary for the issuance of the credit) after the issuance of the credit from the F Party to the F Party, and there is no wish between the issuer and the issuer of the credit and the issuer of the credit.

D) The lower court determined as follows: Defendant A’s desired enterprise to issue the letter of credit that requires funds;

In recognition of the overall structure of disposing of aluminium imported by using a miscarriage loan to F and K, and securing cash, it should be deemed that the functional control should have been performed because it constitutes an essential part for the execution of the entire crime, on the ground that F and K have provided F and K with funds used as a documentary credit and a deposit security necessary for the issuance of the letter of credit.

However, as examined below, the violation of the Credit Business Act by F, etc.

It is only 18 out of 59 cases stated in the changed facts charged that high-party A paid advance payment as a deposit security, and there is no evidence that K provided a letter of intent to sell or paid advance payment for violation of the Credit Business Act.

(E) As to the facts charged in relation to Co., Ltd. (1), Defendant A wishes to issue a credit

There is no evidence that the company received an advance payment from the export company (BK or BL) for import of Aluminium and sales intent necessary for the issuance of the credit (the above E E's operator K, L, and M stated that the above sales intent was directly prepared by the export company's agent and delivered it to the export company). ② Defendant A purchased Aluminum from the company E, and it appears that there was a case where some advance payments (the above advance payment is used as a deposit security necessary for the issuance of the credit, or it appears that E would be used as the sales price when the desired company for the issuance of the credit) was used as a deposit security for the issuance of the credit, or when E purchases Aluminum from the desired company for the issuance of the credit, but there is no evidence that Defendant A (C) paid advance in relation to the facts charged related to the E-related joint principal offense. In conclusion, it is difficult to view that the Defendant either issued the letter of intent to sell necessary for the issuance of the credit or paid advance payment in the name of deposit security.

F) As above, Defendant A’s violation of the Credit Business Act by F and K

In a situation where it appears that the act of providing documents necessary for the issuance of the letter of credit or paying advance payment is not a general and typical case in the transaction of aluminium between Defendant A, F, and K, even though Defendant A was aware of the overall structure that Defendant A would be able to secure cash and purchase aluminium transacted in the process through 'Alumin tin', the company desiring the issuance of the letter of credit was able to purchase aluminium in the process, such recognition alone is insufficient to put the above Defendant a co-principal liability for violation of the Credit Business Act.

G) Ultimately, as to Defendant A’s violation of the Credit Business Act by F and K, Defendant A

It is consistent with the substance of deeming that he/she has participated in a series of Aluminium transactions with the intent to purchase aluminium imported without the intention of processing under a discounted condition that does not reach the imported price as a condition of cash payment.

H) In addition, as regards Defendant A’s breach of F and K’s Credit Business Act

If the liability for the crime is to be asked, it would lead to the conclusion that the defendant A should not purchase aluminium which does not reach the hospitalization price by having the defendant confirm all the details of the prior transactions. This seems to be difficult to expect it in reality to the business operator who runs the aluminium wholesale business.

C. Judgment on Defendant B’s assertion

The fact that there is no history of punishment against the defendant for the same crime, and that it seems that the awareness of the fact that it is a brokerage of credit business is not significant, etc. is advantageous circumstances, or that the gain acquired by the above brokerage cannot be deemed to be low, and even if there is no special change in circumstances to change the punishment as prescribed in the records in this case without any change in circumstances that are shown in the records, the sentence of the court below is too unreasonable. The defendant's assertion is groundless.

3. Conclusion

Therefore, since the part of the judgment of the court below against Defendant A and Defendant C among the judgment below is subject to ex officio reversal, pursuant to Article 364(2) of the Criminal Procedure Act, the above part of the judgment below is reversed, and it is again decided as follows. Since the appeal against Defendant B is without merit, it is dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

【Reasond Judgment: Defendant A and Defendant C】

The summary of this part of the facts charged is as indicated in Article 2-2(b)(1). This constitutes a case where there is no proof of a crime as seen in Article 2-2(b)(3) and thus, a judgment of innocence is rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act, but the summary of the judgment of innocence is not publicly announced pursuant to the proviso of Article 58(2) of the Criminal

The presiding judge, senior judge, and leather

Judges Kim Gin-han

Judges Hwang Sung-sung

A person shall be appointed.

A person shall be appointed.