(영문) 서울중앙지방법원 2018.5.4. 선고 2017고합1187-1 판결

One cell phone (No. 4), one new physical card (No. 5), one passbook (No. 6), one new card (No. 7), and one new security card (No. 8) shall be confiscated from each accused.

Reasons

Criminal facts

On January 31, 2013, the Defendant sentenced the Busan District Court to two years and six months of imprisonment for fraud, and on February 2, 2015, the Seoul Southern Prison completed the enforcement of the sentence.

1. Violation of the Act on the Aggravated Punishment of Specific Economic Crimes;

On December 7, 2015, the Defendant made a gold fund that paid profits from investment in the market where gold is sold in Busan, to the victim D, who has shown in the above law as a result of the introduction of the branch in Gangnam-gu Seoul and 302, with the introduction of the branch in order to return the principal for six months or ten months after the investment in the gold fund, and to guarantee the high profits of 20% or 30% or more each month.

However, the above facts did not exist, and the defendant did not have any intent or ability to return the profits even if he received the investment money from the victim D because it did not have any investment.

As such, the Defendant, by deceiving the victim D, received 19,00,000 won from the victim D to the account of community credit cooperatives (E) in the name of the Defendant on the same day, and acquired it by fraud. From December 7, 2015 to March 2, 2017, the Defendant received a total of KRW 849,480,00 from the victim D, totaling KRW 3,878,90,00 from the victim F, totaling KRW 3,878,90,00 from three persons, including KRW 5,316,980,00 from the victim G, in total, from December 7, 2015 to March 2, 2017.

2. Fraud;

On June 30, 2016, the Defendant was a gold fund that paid profits by investing in the market where gold is sold in Busan, to the victim H, which appears to be in the above legal branch with the introduction of the zar, in the legal branch of the Defendant’s operation in Gangnam-gu Seoul and 302. The Defendant said that the Defendant would return the principal of the gold fund after six months or ten months, and guarantee the high profits of 20% or 30% per month.

However, the above facts did not exist, and the Defendant did not have any intent or ability to return the profits even if he received the investment money from the victim H because it did not have any investment.

As such, the Defendant, by deceiving the victim H, received 10,000,000 won from the victim H to the national bank account (I) in the name of the Defendant on the same day from the victim H, and acquired it by fraud. From December 14, 2015 to March 3, 2017, the Defendant received 5,019,190,000 won in total from 42 persons, such as the victim H, by means of the aforesaid method, as shown in the attached list of crimes (2) from December 14, 2015 to March 3, 2017.

3. Violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission.

No person shall engage in a business of raising funds from many unspecified persons without obtaining authorization or permission, making registration, reporting, etc.

Nevertheless, the Defendant received a total of KRW 10,36,170,000 from around December 7, 2015 to March 3, 2017 as stated in paragraphs 1 and 2, from 45 to 724 times in total.

Accordingly, the defendant was engaged in the fund-raising business without obtaining authorization, permission, etc.

Summary of Evidence

1. Defendant's legal statement;

1. Legal statement of the witness J;

1. Each police statement made to K, L, H, M, and N;

1. A letter of complaint prepared by H;

1. Each police officer and each prosecutor's office shall file a report on the investigation of evidence (the list Nos. 6, 7, 8, 12, 21, 22, 30, 32);

1. Details of financial transactions;

1. Previous convictions in judgment: Inquiry records such as criminal records, etc. (A), police officers and prosecutor's offices, and investigation reports (Evidence List Nos 17,33);

Application of Statutes

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

Each Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347(1) of the Criminal Act, Article 347(1) of the Criminal Act (including fraud against victims specified in paragraph (1) of the facts of the crime, including each victim), Article 347(1) of each Criminal Act (the fraud against victims specified in paragraph (2) of the facts of the crime, including each victim, each party's choice of imprisonment with labor), Articles 6(1) and 3 of the

1. Aggravation for repeated crimes;

Article 35 (Offense of Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) within the limit of the proviso of Article 42 of the Criminal Act)

1. Aggravation for concurrent crimes;

Article 37 (former part, Article 38 (1) 2, and Article 50 (Provided, That the proviso of Article 42 of the Criminal Act shall be limited) of the Criminal Act.

1. Scope of sentencing under Article 48 (1) 1 of the Criminal Act: Imprisonment with prison labor for not less than three years but not more than 50 years;

2. Scope of recommended sentences according to the sentencing criteria;

(a) Violation of each Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), each fraud;

[Determination of Punishment] General Fraud 4 type (not less than 5 billion won but less than 30 billion won)

[Special Convicts] Reductions - Punishments or where damage has been recovered from a considerable part.

Aggravation - Where a crime has been committed for unspecified or many unspecified victims or repeatedly over a considerable period of time.

Cumulative Offense

[Determination of Recommendation Area] Aggravation

[Scope of Recommendation] 4 to 9 years

* descriptive criteria: 1-stage increase in type as a result of adding up the same competition;

(b) Violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission: It shall not be set the sentencing criteria. The application of majority of the sentencing criteria shall not be less than four years of imprisonment (the lowest limit of the recommended range of the sentencing criteria for crimes for which the sentencing criteria are set shall apply, since crimes for which the sentencing criteria are set and crimes for which no sentencing criteria are set are concurrent crimes under the former part of

3. Determination of sentence;

The Defendant had been punished several times for the same kind of crime in the past. In particular, at the time of the instant crime, the Defendant was sentenced to criminal punishment by means similar to the above criminal facts and was under repeated crime period. Nevertheless, from the time when several months have not elapsed since the release, the Defendant deceiving victims for a long period of time, thereby deceiving them more than 10 billion won.

○ favorable circumstances: (a) the Defendant paid the interest or profit-making money from the victims in the course of obtaining money from the victims; and (b) the actual amount of damage the victims suffered due to the occurrence of partial recovery of damage after the instant crime appears not to be KRW 2 billion; (c) the victim D,O, K, P, Q, expressed the intent that the victims do not want to be punished. The Defendant is fully led to the entire confession of the crime.

In addition, the age, health, character and conduct, environment, family relationship, motive of the crime, circumstances after the crime, etc. of the defendant shall be determined as the order in consideration of all the sentencing conditions shown in the argument of the case.