(영문) 서울중앙지방법원 2018.2.6. 선고 2017고합907 판결

피고인은 2012년 8월 중순경 고향 선배인 피해자 E가 전자상거래업체인 주식회사 F을 운영하면서 현금동원력을 가지고 있다는 것을 알게 되자, 피해자에게 자신이 SK텔레콤 주식회사의 직영대리점을 운영하면서 SK네트웍스의 G의 전폭적인 도움으로 휴대전화기 공기계 해외수출사업을 하고 있고 하루에 300대를 공급하고 대당 20,000원의 수입이 고정적으로 확보되어 매일 6,000,000원의 수입을 위험부담 없이 올리고 있는 것처럼 행세하면서, 위 공기계 해외수출사업을 위하여 SK네트웍스에 담보금 300,000,000원을 납입하여야 하는데 100,000,000원은 자신이 마련할 수 있으니 나머지 200,000,000원을 차용하여 주면 매일 2,000,000원의 수익을 지급하겠다고 거짓말을 하였다.

However, the fact was that the Defendant operated the SK Telecom agency from November 24, 2009 to May 21, 2012, but the agency code was terminated on the grounds that it reported false opening performance during the specialphone business process, and it was impossible to conduct a normal transaction with SK Telecom or SK affiliated company on August 2012, and there was no fact that the Defendant continued to conduct the SK K K K KNA export business with the SK NNA, or developed a business plan to supply stable number of public machinery export businesses every day and make stable profits every day. Ultimately, the amount received from the victim was thought to be consumed in its existing loans or the outstanding monthly wages. At that time, the Defendant did not have any intention or ability to pay the above amount by bearing the obligation of several billion won to the loan company or bond company, the existing investors, and there was no intention or ability to pay it.

그럼에도 불구하고 피고인은 2012. 8. 14.경부터 2012. 8. 17.경까지 사이에 SK네트 웍스 담보금 납입을 위한 대여금 명목으로 금 200,000,000원을 송금받아 이를 편취한 것을 비롯하여 그 무렵부터 2013. 7. 29.경까지 별지 범죄일람표 기재와 같이 공기계 수출을 위한 담보 납입금, 휴대폰 방문판매를 위한 자금 대여금, 공기계 수출사업을 위한 추가 담보 납입금, 악성고객 반품 해결을 위한 담보금, 직원들 급여지급을 위한 각 대여금 명목으로 합계 3,346,600,000원을 송금받아 이를 편취하였다(피해자는 그중 14억 2,670여만 원을 수익금 명목으로 돌려받아 잔존 피해금액은 19억 1,990여만 원 상당이다).

2. Forgery of private documents;

피고인은 2012. 8. 14.경부터 2012. 8. 17.경까지 위 제1항 기재와 같이 E로부터 200,000,000원을 송금받은 다음 그 돈을 자신이 부담하기로 한 100,000,000원과 함께 SK네트웍스와의 공기계 수출사업을 위한 담보금으로 납입하였는지 확인하는 요청을 받자, 2012년 8월 말경 서울 강서구 H에 있는 피고인 운영의 주식회사 I 대리점에서 행사할 목적으로 'SK텔레콤이 주식회사 I과의 유통단말기 사업을 위한 잔고액 300,000,000원이 존재한다'는 취지의 문서를 작성한 다음, SK텔레콤 주식회사 J의 이름을 기재하고, 임의로 새긴 법인인감을 날인하여 SK텔레콤 주식회사 명의의 공문 1장을 위조하였다.

Accordingly, the defendant forged the above letter of official document, which is a private document on fact-finding.

3. Uttering a falsified investigation document;

around August 2012, the Defendant presented forged private documents to E, as described in paragraph (1), at the F Office of Operation of E in Gangnam-gu Seoul, Seoul, as if they were duly formed.

Summary of Evidence

1. Defendant's legal statement;

1. Each prosecutor's statement of E, L and M;

1. Each police statement of the N,O, or P;

1. An investigation report, a criminal investigation report, a criminal investigation report, a criminal investigation report, a criminal investigation report, a criminal investigation report (Listening to the statements of a witness), an investigation report, a criminal investigation report (Listening to the statements of a witness), a criminal investigation report (Listening to the statements of a witness), a criminal investigation report (Listening to the statements of a witness), a criminal investigation report (Listening to the statements of a witness X), a criminal investigation report, and a criminal investigation report;

1. An investigation report (verification report on the authenticity of a loan), investigation report (Submission of additional data on the loan), attached data, investigation report (filing of details of financial transactions of a suspect), and each account transaction report, investigation report (report on trends of transfer of a book), investigation report (for export of a public machine), investigation report (for the export of a public machine), 140,000 won under the name of the export business of the public machine), investigation report (for the export business of the public machine), 140,00 won under the name of the user of the public machine, investigation report (for the results of inquiry into the SK Telecom Comcom reply), and ICE, credit information (for the export business of the public machine), investigation report (for the export business of the public machine), 140,000 won under the name of the user of the loan, 2.4 billion won under the name of the user of the research report (for the export business of the public machine), 300,000 won under the name of the user of the investigation report, 300,00,00,000 won investigation report on deposit account use report (1.

1. To describe the suggestions for answers to the written request for verifying the balance of transactions and the existence of such recommendations;

Application of Statutes

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

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 347 (1) of the Criminal Act; and Article 231 of the Criminal Act (amended by Act No. 13719, Jan. 6, 2016; Article 347 (1) of the Criminal Act, comprehensively, includes the violation of the Aggravated Punishment, etc. of Specific Economic Crimes Act (Fraud); Article 231 of the Criminal Act; Article

1. Aggravation of concurrent crimes;

The reason for sentencing under the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (limited to the sum of the long-term punishments of each of the above crimes) is as follows: The reason for sentencing of concurrent crimes prescribed by the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

1. The scope of punishment;

Imprisonment with prison labor for not less than 0 but not more than 40 years;

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

[Extent of Recommendation] General Fraud Type 3 (at least 500 million won, less than 5 billion won), Basic Field (at least 3 years but not more than 6 years)

[Special Sentencing] Where the victim is fully responsible for the occurrence of a crime or the expansion of damage (requirements for mitigation) / Where the method of the receipt of a crime is extremely poor, (1) an aggravated factor)

3. Determination of sentence;

The following circumstances and the Defendant’s age, character and conduct, environment, motive and background of the crime, means and consequence of the crime, etc., and all of the sentencing factors shown in the trial process of this case, including the circumstances after the crime, shall be determined as ordered.

D. Unfavorable circumstances: A large amount of money acquired by the instant crime is up to 3.3 billion won, and the method of committing the instant crime is also closely and systematically established, and thus, the nature of the crime is not good. The Defendant has a record of criminal punishment of a fine of KRW 5 million for the same crime in 2009.

○ favorable circumstances: (a) the Defendant provided 1.4 billion won out of the money acquired by the instant crime to the victim under the name of proceeds, etc., and the actual amount of damage is less than the amount of fraud. In light of the content and circumstances of deception, and the agreed return on profit, the victim does not check in detail whether it is objectively feasible in order to obtain high-profit profits in a short period; and (b) it seems that the victim is partly responsible for the occurrence and expansion of damage solely because it is beyond the Defendant’s deception. The Defendant recognized the commission of the crime and reflects his mistake. The Defendant has no history of criminal punishment exceeding the fine for the same kind of crime.

Judges

The presiding judge, judge and presiding judge;

Judges Man-ho

Judges Han Han-chul

Note tin

1) The crime of forging private documents of this case and uttering of private documents was accompanied by the crime of fraud of this case, and thus, special interest is important.

The sentencing criteria shall not be applied separately after taking into account small areas.

Attached Form

A person shall be appointed.

참조조문

-특정경제범죄 가중처벌 등에 관한 법률

-특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항 제2호

유사 판례

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