2018Gohap377 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), fraud

A

Stick lines (prosecutions), sent back (public trial)

Law Firm B

Attorney C, D

October 12, 2018

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

Criminal facts

The defendant was a current or former inside director of corporation E (hereinafter referred to as "E") established to engage in real estate development and investment business, and F and G are the former representative director and the current representative director of E, respectively.

1. Fraud on April 28, 2016

Around April 28, 2016, the Defendant, along with F and G, told the victim H to “a gold-related business at the company,” in the mutual infacs shop located in the territory of the Gangnam-gu Seoul Foreign Exchange Bank (Seoul), that the Defendant would make profits if he imports the gold-related business from a foreign country and sells it by refining in the Republic of Korea. The Defendant said that the former share would pay twice the amount borrowed within 45 days if he/she lends money.”

However, at that time, there was no fact that the Defendant, together with F and G, promoted the business related to the import of gold in fact or formulated a specific implementation plan, and there was no fact that the Defendant directly reviewed or confirmed the progress of the above business or the anticipated profit structure, etc., and the Defendant did not secure the share of investment in the above business, and there was no property owned by the Defendant or E, and thus, even if the Defendant borrowed money from the victim, it did not make profits from the use of the funds for the business within a short period of time, or did not have any intent or ability to pay twice the amount borrowed to the victim within 45 days by attracting the investment amount of KRW 20 billion.

Nevertheless, the Defendant, in collusion with F and G, by deceiving the victim as above, and acquired the victim's KRW 150 million on the same day from the victim.

2. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) in May 9, 2016;

On May 9, 2016, the Defendant stated that “If the Defendant loaned KRW 500 million necessary for the acceptance of the Jeju-do I set, the Defendant would complete payment twice of the borrowed money from May 23, 2016 to the victim H in the mutually French coffee shop located in the Gangnam-gu Seoul Metropolitan Government branch.”

However, there was no fact that the Defendant directly reviewed or confirmed the progress of the Lart acquisition business in Jeju-do, where the Defendant promoted with F and G, and there was no intention or ability to pay two times the money borrowed within a short period by attracting funds from other investors, even if he borrowed money from the victim, since the Defendant did not have any intention or ability to pay two times the money borrowed within a short period of time by using it as the money from the recipient of the I Lart acquisition business or by attracting funds from other investors.

Nevertheless, F and G borrowed money from the owner of the funds in relation to the Jeju-do I Triart acquisition business, the Defendant borrowed KRW 500 million from the victim, and accordingly, the Defendant was issued KRW 500 million from the victim on May 10, 2016.

Accordingly, the defendant, in collusion with F and G, received property by deceiving the victim as above.

3. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) in June 1, 2016;

On June 1, 2016, the Defendant stated that “The Defendant would make a pledge by paying KRW 600 million to the victim H within 500 million and depositing the funds to the corporate account to which he/she intends to take over, within the limit of KRW 1) at the instant coffee shop in Gangnam-gu Seoul, Gangnam-gu, Seoul.”

However, there was no need for the defendant or E to pursue the acquisition of another company at that time. Meanwhile, the defendant did not normally proceed with the business of importing gold powder with the above F, G, the business of acquiring Jeju-do Ign-do, and the business of supplying passenger supplies from the Malaysian J hotel. There was no other property owned by the defendant or E. Thus, even if the defendant borrowed money from the victim, there was no intention or ability to pay the principal and interest of the borrowed money within the short time period after depositing the money into the corporate account of the company acquiring the said money, or using the said money as the company's acquisition fund, etc., and then making no intention or ability to pay the principal and interest of the borrowed money within the short time.

Nevertheless, F and G lent KRW 500,000,000 necessary for the above J hotel supplies supply business to the above Defendant, and accordingly, the Defendant was provided with KRW 500,000,000 from the victim on June 2, 2016 by deceiving the victim as above. Accordingly, the Defendant, in collusion with F. G, received property by deceiving the victim as above.

Summary of Evidence

1. Partial statement of the defendant;

1. Legal statement of the witness H;

1. Each prosecutor's protocol of examination of the accused;

1. The prosecutor's statement concerning H;

1. The protocol of interrogation of some police officers against the defendant (excluding the first protocol of interrogation of police officers, but including H’s statement among the second protocol of interrogation of police officers) and the first protocol of interrogation of police officers attached to the protocol of interrogation of the defendant;

1. The check issuance number certificate attached to the police statement of H, the second police statement, and the text message printed out from the suspect;

1. A complaint, and text messages attached thereto;

1. Details of the use of a check, the results of inquiry into the details of payment of a check, copies of each check, investigation reports (to endorseors of a check), investigation reports ( telephone conversations), investigation reports (to be attached to suspect data - telephone conversations) and copies of gold import transaction contracts attached thereto, investigation reports (to be attached to the account tracking warrant execution results, page 403, 404) and account transaction reports attached thereto, records of investigation (to be attached to criminal investigation records, page 403, 404) and the details of account transactions attached thereto, copies of documents such as printed documents of investigation reports (to be attached to the criminal investigation records, documents such as printed documents, written confirmations, etc. attached thereto, documents and photographs of criminal investigation reports (to be attached to the suspect's counsel) and text messages attached thereto, investigation reports (as a result of the execution of the account tracking warrant, page 517 through 519 of the investigation records), details of payment of each check, statement of financial transaction information provided, copies of each check, copies of each relevant deposit sheet, copies of investigation reports, copies of deposit documents attached thereto, copies of cash transaction agreements (to be attached thereto).

1. Determination as to the Defendant and defense counsel’s assertion regarding the output of Kakakao text messages (the investigation record No. 393, 394 pages)

1. Summary of the assertion

Although the defendant and his defense counsel received a total of KRW 1.150 million from the victim as stated in the facts of crime (hereinafter referred to as "each of the instant money"), the defendant also transferred the above KRW 1.15 million received from the victim to G, etc., in collusion with G, etc., and the defendant did not deceiving the victim with intent to commit the crime of defraudation. In particular, the facts of the crime paragraph (3) are received KRW 500 million under the name of joint venture corporation's capital related to the supply of guest room supplies at the Malaysia's hotel in addition to the company acquisition fund, and even if the defendant recognized the fact that he participated in each of the instant crimes, it is only an aiding and abetting crime.

2. Determination

In full view of the following facts and circumstances acknowledged by the evidence submitted by the prosecutor, the defendant can be recognized as having committed fraud in collusion with G, etc. and have contributed to deceiving the victim. Thus, this part of the defendant and the defense counsel cannot be accepted.

①) 피해자는 수사기관에서부터 이 법정에 이르기까지 '피고인이 직접 금 관련 사업 등을 진행하는 것으로 알고 있었고, 피고인의 말을 믿고 이 사건 각 금원을 대여해 준 것'이라는 취지로 일관되게 진술하였을 뿐만 아니라(수사기록 제267면, 증인 H에 대한 증인신문 녹취서 제25면), 이 법정에서 '피고인의 재력을 확인해보지 않았으나, (피고인이) 안 되면 주식을 팔아서 돈을 주겠다고 이야기하였다. K 등 다른 사람들로부터 피고인이 대기업 며느리라고 들었고, 피고인이 직접 은행 부행장 등 금융기관 임직원을 알고 있으며, 특정 대기업 회장을 만난다는 이야기를 한 적이 있다'는 취지로 진술하였는바(증인 H에 대한 증인신문 녹취서 제3, 4면, 제28, 29면), 피고인 스스로 피해자 앞에서 주식회사 L은행 부행장과 통화한 사실을 인정하고 있는 점, 피고인이 피해자와 나눈 문자메시지 내용을 보면 피고인은 피해자에게 약속된 금원을 변제하지 못하는 상황에서도 계속해서 피해자에게 다른 여러 사업을 동시에 진행하고 있다는 취지로 이야기하면서 자신의 능력을 과시해 온 것으로 보이는 점, 피해자가 특별히 친분이 깊지 않은 피고인에게 3회에 걸쳐 거액의 이 사건 각 금원을 대여해 주면서도 이례적으로 구체적인 약정내용을 확인할 수 있는 차용증 등 서류를 단 한번도 작성하지 않은 점 등에 비추어 보면, 피해자는 피고인의 과장된 재력, 신분, 인맥 등을 믿고서 피고인에게 이 사건 각 금원을 대여한 것으로 보이므로 피해자의 위 진술내용을 신빙할 수있다[나아가 피해자가 이 사건 각 금원 중 범죄사실 제3항 기재 금원의 대여명목에 관하여만 허위로 진술할만한 동기나 이유를 찾기 어려운 점, 피해자는 위와 같이 피고인의 말을 전적으로 신뢰하여 각 사업의 실체 여부에 관하여 제대로 된 확인절차를 거치지 않고 이 사건 각 금원을 대여해 준 것으로 보이는 점(피해자가 금 관련 사업과 관련하여 피고인 등과 함께 주식회사 하나은행 강남역 지점에서 설명을 들은 사실이 있기는 하나, 이는 피해자가 이미 피고인의 말을 믿고서 범죄사실 제1항 기재와 같이 1억 5,000만 원을 대여해 준 이후의 사정이다) 등의 사정에 비추어 보면, 범죄사실 제3 항 기재와 같이 회사인수 자금으로 5억 원을 대여해 준 것이라는 피해자 진술의 신빙성을 배척하기 어렵다.. 이에 대하여 피고인은 '피해자가 피고인이 아닌 G 등이 사업을 주도적으로 진행한다는 점을 잘 알고 있었다'는 취지로 변소하나, ① 피해자에게 직접 금원대여를 요구하고 피해자로부터 이 사건 각 금원을 교부받은 당사자는 G 등이 아니라 피고인이었고, 피고인은 범죄사실 제2항 기재 금원을 차용한 이후인 2016. 5. 12.경 및 2016. 5. 19.경 피해자에게 피고인 자신이 사업에 직접 관여하고 있고 아무런 문제없이 사업이 잘 진행되고 있으니 걱정하지 말라는 취지의 문자메시지를 보내기도 했던 점(수사기록 제7면), ㉡ 피해자는 1억 5,000만 원을 대여한 2016. 4. 28.경 당일 피고인으로부터 처음으로 G 등을 소개받기 전까지 G 등을 전혀 알지 못하였고, 이후에도 2016. 5. 말경 주식회사 하나은행 강남역 지점에서 피고인과 함께 한 차례 더 G을 만난 사실이 있을 뿐, 피해자가 피고인이 아닌 G 등과 이 사건 각 금원에 관하여 따로 이야기를 나눈 것으로 보이지 않는 점, Ⓒ 피해자는 당초 약속한 금원을 변제받지 못하는 상황이 되자 G 등이 아니라 피고인에게 사업의 진행상황을 묻거나 변제를 독촉하였던 점 등의 사정에 비추어 보면, 피고인의 위 변소는 믿기 어렵다.

② In light of the following: (a) only there exists an internal agreement or agreement made between the Defendant and G, etc. with respect to gold-related business or Liet acquisition business; (b) there is insufficient objective data to deem that the Defendant actually carried out each of the instant projects or borrowed each of the instant funds from the victim from the time the Defendant lent the instant funds to the present time; (c) while each of the checks issued by the Defendant from the victim was presented for payment in the name of many people other than the Defendant and G, and some of them were given out from the victim, and it appears that they were used as gambling funds in Gangwonland as well; and (d) the Defendant voluntarily stated to the effect that he borrowed KRW 50 million from G and used them for personal use, the Defendant did not actually proceed with the gold-related business or I Tet acquisition business, etc. claimed by the Defendant, or that each of the instant funds was not used for each of the instant businesses.

③ Around May 23, 2016, the Defendant, along with G, etc., established E as an internal director of E, etc., and, as seen earlier, the Defendant promised a large amount of interest, such as having the victim pay twice the principal within a short period of time, and borrowed each of the instant money from the victim. During the process, the Defendant borrowed text messages that the victim would normally proceed with each of the instant projects (on face 7 of the Investigation Records). Although the Defendant did not repay money within the agreed period of time, he did not properly confirm the reasons of the crime No. 2 of the criminal facts, but did not look at G, etc., to pay KRW 100 million to the victim as indicated in the criminal facts No. 3 of the instant criminal facts, and did not submit any objective data to deem that the Defendant committed each of the instant criminal acts with the investigative agency through this court to have been conducted normally, it is difficult to view that the Defendant did not act with the intent of each of the instant parties to commit the instant crime, and thus, did not directly change the Defendant’s intent to commit the instant crime.

④ Even according to the Defendant’s statement, at the time of borrowing each of the instant money from the victim, the Defendant appears to have had no economic ability to repay the borrowed money as originally promised to the victim with the economic capacity of the Defendant, and thereafter, the Defendant did not fully repay the borrowed money to the victim.

Application of Statutes

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

Articles 347(1) and 30 of the Criminal Act (the first fraud, the first fraud, the choice of imprisonment), Articles 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 347(1) and 30 (the second and third frauds) of the Criminal Act

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, Article 50 of the Criminal Act and Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (the defendant has no criminal records of the same kind of crime)

1. Reasons for sentencing: Imprisonment with prison labor for a year and June to June 22;

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 Mitigation] Where the victim also has a substantial responsibility for the occurrence of a crime or the expansion of damage;

[Recommendation and Scope of Recommendations] Reduction Area, Imprisonment of one year and six months to four years

3. Determination of sentence: Imprisonment for 2 years and 6 months; and

Although there are no circumstances to consider the Defendant in light of the following: (a) there is no criminal history other than sentenced to a fine due to the crime of this case; (b) there is no criminal history other than sentenced to a fine due to the crime of this case; (c) the criminal proceeds of the Defendant personally consumed or retained by the crime of this case are deemed not to be significant compared to the total amount acquired by deception; and (d) there is a need to close down the law by treating the Defendant through treatment in a facility in a short period without properly checking the repayment power of the Defendant or the substance of the business; and (c) there is a certain amount of responsibility for expanding damage to the victim who has continuously lent money to the Defendant. However, each of the crimes of this case is deemed to have committed by the Defendant by deceiving the victim three times, and the nature of the crime is poor; (d) the Defendant was not present in an investigative agency intentionally on the ground that he was aware of the fact of receiving a complaint from the victim; and (e) it is difficult to view that there is no effort to recover damage after the arrest of the victim; and therefore, it is necessary to close the Defendant’s age of law, age, occupation, character and circumstances, etc.

The judge of the presiding judge shall be net;

Judges Choi Dong-hwan

Judges Kim Gin-han

1) Although the indictment is written as ‘one week', the victim is not ‘one week from the prosecution investigation', unlike the police investigation, ‘one week' but ‘one month from the prosecution investigation'.

After making a statement that was due (No. 385 of the Investigation Records) and this court testified to the same effect (Witness H).

The fact that the defendant also returned KRW 600,000,000,000,000,000,000,000,000,000

In light of the above statements made by the victim and the defendant (as of No. 270 of investigation records), the "month at the time of committing the crime of No. 3 of the defendant's decision" has changed.

It can be recognized that the defendant raised facts, and even if so, it does not seem that the defendant did not have any substantial disadvantage in exercising his right to defense.

As such, the part of the due date for the crime of paragraph (3) of the judgment ex officio is changed and recognized as above.