(영문) 서울중앙지방법원 2017.4.28. 선고 2016고합1225 판결

Defendant A is a person who is the secretary general of so-called "E", Defendant B is a person in a de facto marital relationship with Defendant A, and F is a person who is the president of "E".

The Defendants and F conspired to deceiving the victims G and H couple who are the will of the Defendants and the H couple in a way of exaggerationing the self-sufficiency of E with no substance and property.

On July 2010, the Defendants stated that “F is K's son who was the mother of the past underground economy,” and that “F is conducting the re-building work of E, which has been holding a water support unit asset. If the Defendants lent expenses to them, they will pay back money to the Foundation and have the Foundation registered director after re-building of the foundation.”

However, because E did not have its substance and assets, the Defendants and F did not have any intent or ability to comply with the above promise even if they received money from the victims.

In collusion with F, the Defendants: (a) conspired with F to induce victims in the above manner; (b) obtained money from the victims to the new bank account in the name of the Defendant B on July 6, 2010; and (c) obtained money from the victims; and (b) obtained money from the victims, from June 10, 2013, totaling KRW 978,300,000,000 from the victims over 165 times, as described in the attached list of crimes, from June 10, 2013.

Summary of Evidence

1. Defendant B’s statement in the first trial record;

1. Statements made by witnesses G and H in the second protocol of the trial;

1. Some police officers and prosecutor's interrogation protocol against the Defendants (including each of the statements of G and H)

1. The police statement of G, H and L;

1. A complaint;

1. Recording notes of June 20, 2012, July 5, 2012, July 9, 2012, and December 17, 2012;

1. E name cards and M account numbers entered;

1. A copy of a loan certificate and a copy of a note, a copy of a promissory note, and a copy of each content certificate;

1. The details of G's national bank, new bank, and each account transaction, H's standards, and the details of H's account transaction, each account transaction, and L's account transaction;

1. Each transfer certificate and a detailed statement of transactions of each automation machine;

1. Details of Defendant B’s account transactions in the new bank, and details of M’s account transactions in the bank;

1. Investigation report (suspect A telephone statement hearing report);

Judgment on Defendant A and his defense counsel’s assertion

1. Summary of the assertion

Defendant A, in a de facto marital relationship, prepared a loan certificate of KRW 2 billion with the victim and borrowed KRW 1.5 billion with the victim, and the victims did not lend only a part of the loan and not lend the remainder to the victim.” Defendant A merely requested the victims to borrow an amount of KRW 1.5 billion with the victim’s promise, which was not yet lent. Defendant A, on the ground of E, conspired to commit a criminal act with Defendant B or F or did not participate in such criminal act.

2. Determination

In full view of the following circumstances that can be recognized by the evidence duly adopted and investigated by this court, it can be sufficiently recognized that Defendant B and F conspired with Defendant B and F, such as the facts constituting the crime in the judgment of the court below, deceiving the victims and deceiving them from the victims. The Defendant A and their defense counsel’s assertion is not acceptable.

A. Statement of the victims

On July 6, 2010, the victims expressed that "the victims knew of F, which is the son of the underground economy," and that they tried to reconstruct the past E, which was operated by the defendant, with respect to the details of deception and the transfer of money. The victims want to read that "I will register the victims as directors after the case was reconstructed, and the victims' children will be in charge of the E museum head and the tax team leader." At the same time, I would like to say that "the defendant A will assist the victims to transfer money to the account designated by the defendants from July 6, 2010," and that "I would not know that I would like to know that I would like to know that I would like to keep the victims from the victim's request to keep the defendant's money back to the account from the victim, and that I would like to know that I would like to keep the defendants from the victim's personal seal after the request of the defendant F, and that I would like to know that I would like to keep the defendant's money back to the bill."

B. Circumstances consistent with the statements of the victims

The following circumstances revealed by the evidence mentioned above are consistent with the victims’ above statements.

1) Around July 2010, Defendant A introduced that “F was a person with a considerable refluence as her agenda,” and recognized the fact that Defendant A met the Victim G with F more than twice to three times (Evidence No. 1159-1160 pages). In addition, Defendant B stated that “At the time when Defendant A was detained on September 2010, Defendant A contacted the Victim G with F at the request of Defendant A at the time of the detention of Defendant A” (Evidence No. 1, 323-324 pages of Evidence Record).

2) Defendant A delivered to the victims a name named as “N of the Secretary-General E of the Foundation” (Evidence No. 2 No. 18 of the Evidence Record), and on December 17, 2012, in dialogue with the victim G on December 17, 2012, Defendant A sent to the victims a name named as “N of the Foundation E of the Foundation” (Evidence No. 1 of the Evidence Record No. 60-61 of the Evidence No. 1).

A person who is in the position of the Secretary-General;

3) In the first police interrogation protocol confirmation column against Defendant A, the seal in F’s name is affixed to the right side of the signature of Defendant A (Evidence No. 1No. 32), and Defendant A appears to have had the seal in the name of Pyeongtaek F. 2)

4) The victims first remitted money to the account in the name of Defendant B from July 201 to the new bank account (Account Number 0) in the name of Defendant B (the mother of Defendant B). At that time, Defendant A, on his own hand, sent money to the victims (Evidence No. 21 of the Evidence No. 21).

5) On June 20, 2012, Defendant A demanded payment of money in the currency with the victim G on June 20, 2012, and it is difficult for the victim G to seek money from any other person, and “I would like to make f to do so. I would like to do so. I would like to do so. I would like to do so. I would like to pay more than 10 million won.” (Evidence No. 2, No. 1182-184, 1187-1190 of the Evidence Records) and on July 5, 2012, Defendant A would have continuously prepared and executed a certificate of borrowing KRW 1 billion from the victims and a promissorysory note with the victim’s certificate of receipt of KRW 1 billion from the victims, and “I would like to attract money from the Foundation to 107 billion,” and “I would like to the effect that I would like to attract money from the victim’s 105 billion won and 107 billion won from the E-197 evidence.”

6) In dialogue with the victims on July 9, 2012, the Defendants requested that "at least 20 million won shall be paid to the victims." On the other hand, as the victims receive money at any time, the Defendants made a password to F before the lapse of 3 weeks," and "after the lapse of 3 weeks". The Defendants made a call from F during the conversation that Defendant A was suffering from F and the victims viewed as "F did not understand that G G G Ngggggggggggggggggggggggs and Ggggggggrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgr." (Evidence evidence evidence No.

1) As seen below, there are many criminal records of the same kind, and the victim G also knew of the fact that Defendant A had a criminal record at the time of detention in 2011, and Defendant B made a statement to the effect that “Defendant B may not be trusted, but Defendant B may lend money to a clear person.” (No. 1144 of the evidence record, and the witness G tape page 7). However, there are no circumstances suggesting that the victims had known of Defendant A’s criminal record from the beginning, and considering the fact that the victims had already lent money to the Defendants at the time of becoming aware of Defendant A’s criminal record in 201, it is difficult to view that Defendant B, alone, did not take part in Defendant A’s criminal record and did not take part in Defendant A’s criminal record.

2) Even according to Defendant A’s statement, Defendant A and Victim G were friendly as the type of punishment, and the victim G were also the Defendant A who introduced F to the victim G as a considerable re-power. The victim G was requested to lend money on the ground of F’s re-performance, and Defendant A’s assertion that Defendant A did not notify the Defendant A of this fact is difficult to understand.

3) In the police investigation, Defendant B stated, “There was no fact that the victims were sent on July 2010, and Defendant A was detained, and the suspension of execution took place on October 2010.” (No. 1st right 323 pages of the evidence record) and stated, “The victims were only able to take her face with the victim’s face.” As seen earlier, Defendant B transferred money to the account in the name of Defendant B from July 6, 2010, it is contradictory to the assertion that Defendant B, alone, borrowed money from the victims.

4) At the time when Defendant A became aware of the victims' remittance of money to the accounts under the name of Defendant B and M (the mother of Defendant B), the first police investigation was called “Defendant B at the time when the victims came to know of the fact,” but the Defendant changed his statement to “as of March 2012 in the prosecutor’s investigation,” “as of March 1, 2012” (No. 1164 pages of the evidence record), and Defendant B also notified Defendant A of the fact of borrowing money when the victims did not enter the said money (307 pages of the evidence record No. 1). In the prosecutor’s investigation, “Defendant A sent the victim G with a certificate of borrowing money and found it on the new wall, etc.” (304 pages of the evidence record No. 1, 307 pages of the evidence record). At the time of borrowing the money, Defendant A made it difficult to know that it was difficult to know that it was the victim’s right of borrowing money, or that it was 314 years or less.

Application of Statutes

1. Article applicable to criminal facts;

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); Articles 347(1) and 30 (General Provisions) of the Criminal Act

Reasons for sentencing

1. The scope of applicable sentences: Three years to thirty years; and

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

[Determination of Punishment] General Fraud type 3 (at least 500 million won, but less than 5 billion won)

【Special Convicted Person】

[Recommendation and Scope of Recommendations] Basic Field, Imprisonment for 3 years, 6 years

3. Determination of sentence;

(a) Common matters:

The instant crime was committed by deception continuously, as if the Defendants were promoting the re-building project of E without any substance over three years against the victims who were in close friendship, and the crime was committed by deceiving the victims a total of KRW 977,830,000 from the victims for the purpose of business expenses, etc., and thus, the crime was not committed. Accordingly, the victims suffered enormous damages, and the damage was not completely recovered. The victims wanted to be punished against the Defendants.

The following individual circumstances and the Defendants’ age, character and conduct, environment, family relationship, motive and circumstances of each of the instant offenses, and the circumstances after the commission of the offense, etc. shall be determined as per Disposition by comprehensively taking into account the various sentencing conditions under Article 51 of the Criminal Act.

However, in the course of investigation and trial, taking into account the fact that the status of the defendant A's appearance and the symptoms of infections by the department of the operation is considerably poor as of the present time, the legal detention of the defendant A is not imposed.

(b) Defendant A: Imprisonment for 4 years;

Although the Defendant led the instant crime, he/she is consistent with the defense that he/she was not liable to Defendant B, and that he/she was unable to obtain it. The Defendant has a number of identical criminal records, including habitual fraud crimes, fraud crimes, etc., which have been sentenced three times to imprisonment.

The defendant has no record of criminal punishment except for a suspended sentence of imprisonment with prison labor once for a violation of the Punishment of Violences, etc. Act.

Judges

Judge of the presiding judge;

Judge Jin-hun

Judges Park Jong-chul

Note tin

1) As to this, Defendant A stated, “I would like to operate a foundation if profits arise in a heat company run by oneself, obtain a trademark registration of E in around 2015, and would have not borrowed money from the victims on the ground of E (No. 1162 pages of evidence record).” However, in light of the contents of the victim’s statement and the record on December 17, 2012, it is difficult to obtain the above Defendant A’s statement.

2) Although Defendant A asserted that he did not have the seal in F’s name, Defendant A asked to the effect that he would simply write the seal in F’s protocol of interrogation of suspect suspect as above (No. 2, 1631 of the evidence record).

3) On July 19, 2011, Defendant B prepared a loan certificate and a letter of commitment to the victims with the loan amount of KRW 2 billion, the due date of repayment of the loan amount of KRW 2 billion, August 31, 201, and the payee P (the victim's children, 'L') (No. 2 of the evidence record No. 19).

4) It was after February 2015 that the victims sent a certificate of demanding the payment of money to the Defendants (Evidence No. 2, 67-78 pages).

5) The victims sold the existing apartment and land shares due to the instant case, and leased the apartment located in Songpa-gu Seoul Metropolitan Government, which had been previously residing, to another person, leased the container or studio at Kimpo-si to a third party, and became liable for a large amount of loans (No. 221-230 of the evidence record, and No. 3-4 of the witness H record).

Attached Form

A person shall be appointed.

참조조문

-특정경제범죄 가중처벌 등에 관한 법률

-특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항 제2호

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