2017Gohap638, 880 (Joints)

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

(b) Fraud;

1.(a) A

2.(a) B

3.(a) C.

Nowon-Jin-Jin, resident iron (prosecution), Kim Woo-m (Trial)

Attorney D (for the defendant A)

Law Firm E (for Defendant A)

Attorney F, G

Attorney H, I (for the defendant B)

Attorney J (Korean Tribunal for Defendant C)

November 30, 2017

Defendant A shall be punished by imprisonment with prison labor for five years, Defendant B and C, and three years.

Criminal History Office

【Criminal Power】

Defendant A was sentenced to two years in Seoul High Court on October 11, 2013 to imprisonment for a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), and the period of parole was expired on January 29, 2014 during the execution of the sentence and July 10, 2014. Defendant B was sentenced to two years of suspension of execution for eight months in the Seoul Eastern District Court on May 25, 2016, and the said judgment became final and conclusive on January 13, 2017, and Defendant C was sentenced to ten months of imprisonment for a crime of fraud at the Seoul Northern District Court on May 7, 2015, and the execution of the sentence was terminated on December 9, 2015.

【Criminal Facts】

"2017 Gohap638"

The Defendants, together with K and L, conspiredd to acquire money and valuables against unspecified persons by borrowing investment in the disposal costs of specified objects, such as political funds, underground financial funds, new and old cash stored in the Switzerland form, gold bars, bonds, etc. (hereinafter referred to as "specified objects") in the past in Korea and abroad, the Association, and institutions.

Accordingly, on April 2016, Defendant B accessed the victim M who was in need of business funds to “is aware of the person who works for a specific object,” and introduced K and L to those who are involved in specified objects at the coffee shop near Yongsan-gu Seoul Metropolitan Government on April 27, 2016.

On April 28, 2016, K and L stated, at the above coffee shop, that “A is a person who treats specific goods.” At the above coffee shop, A shows that the victim has good capacity, sample 1 (50,000 won in cash, 500,000 won in cash, 7.5 billion won in investment.” On the other hand, K purchased approximately KRW 100,000,000,000 in cash, and caused Defendant C to bring about two duds in custody of Defendant C, and Defendant C knew that the above duds were used to put the victim over the above duds, with the knowledge that the above duds were used to put the victim, and that the above duds were treated as the result of treating the specified goods, and Defendant B also made the specific goods to create a false atmosphere as a result of creating money to the victim.”

Then, Defendant B and K called “I will be responsible for and paid the amount deposited into A account when the amount promised until the bank is closed,” and K issued a written statement of performance to the same purport to the victim and recommended investment, and designated the deposit account in the name of Defendant A as the deposit account in the national bank account in the name of Defendant A.

However, the Defendants merely planned to use specified goods with money from the victim, but did not have any intent or ability to pay the said money by using the said money as the cost of disposal of the specific goods as stated by the Defendants, even if the Defendants received KRW 5 billion from the victim. As such, the Defendants deceiving the victim as such, and were remitted KRW 5 billion from the victim to the bank account in the name of the Defendant A (N) on April 28, 2016 as the cost of disposal of specified goods.

As a result, the Defendants conspired with K and L in sequence, and received property by deceiving the victim.

"2017 Highly 880"

The defendant has committed as if he were the manager of the ‘cognition', which is a place of cash storage of the early construction work, and has taken the mind to acquire money and valuables.

On June 11, 2015, at a place where the location is unknown, the Defendant: (a) held a 500 million won compact (in the event of remitting KRW 500 million to the Defendant’s national bank account on the security of the money) to the effect that “on the face of remitting KRW 500 million; (b) shows this to the investors; and (c) received an investment of KRW 10 billion in the same week, and then made an investment of KRW 10 billion, five hundred in the next business capital; and (d) received money from the victim on June 11, 2015.”

However, the defendant was not a manager of the above "original", and there was no intention or ability to pay the business fund which was promised to receive from the victim even if he could not take out KRW 500 million of the original right from the above "original".

Accordingly, the defendant was given property by deceiving the victim.

Summary of Evidence

"2017 Gohap638"

1. Defendants’ respective legal statements

1. Each legal statement of witness K and M;

1. A copy of a protocol of police interrogation regarding P;

1. Copy of the statement made to Q Q in the police station;

1. A copy of the petition (limited to the defendant A and B);

1. Each investigation report (with respect to the analysis of enforcement, reply, and verification warrant 2017-3261, subject to the application of the financial account trend, attaching details on victim MC, analyzing documents seized to B, verifying the suspect B mobile phone text messages, circumstances that B played a wind to M, analysis of documents seized to A, real check confirmation report, and victim MC contents);

"2017 Highly 880"

1. The defendant A's partial statement

1. Each legal statement of witness 0, R, S and T;

1. Decision 2012 High Court Decision 2012 High Court Decision 2012 High Court Decision 2013No1626 decided;

1. Details of passbook transactions, cash factoring, copies of cashier's checks, and details of account transactions;

The Electric Affairs Division Act

1. Each criminal history report and each investigation report (the attachment of the previous criminal suspect's report and written indictment, a copy of the indictment, etc., evidence of confinement of the suspect, repeated crime, confirmation, such as the period of suspension of execution, fixed date of the suspect,

Application of Statutes

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

A. Defendant A: Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 347(1) and 30 of the Criminal Act (the fraud of the victim M, the choice of limited imprisonment) and Article 347(1) of the Criminal Act (the fraud of the victim and the choice of imprisonment)

B. Defendant B: Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 347(1) and 30 of the Criminal Act

C. Defendant C: Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 347(1) and 30 of the Criminal Act

1. Aggravation for repeated crimes;

A. Defendant A: Violation of Article 35 of the Criminal Act (Fraud) within the limit of the proviso of Article 42 of the Criminal Act

B. Defendant C: the proviso to Article 35 and Article 42 of the Criminal Act

1. Handling concurrent crimes;

Defendant B: the latter part of Article 37 and Article 39(1) of the Criminal Act

[In accordance with each of the criminal records of Defendant C, Defendant C was sentenced to imprisonment for one year with prison labor for the victim K who committed on April 14, 2017 at the Seoul Eastern District Court on January 19, 2015, and the judgment becomes final and conclusive on April 22, 2017; ② the District Court of the Republic of Korea on September 2, 2016, on July 23, 2014, with prison labor for 20 years with prison labor for 10 months for the victim U.S., and 3 years with prison labor for 20 years, and 3 years with prison labor for 20 years, and 3 years with prison labor for 20 years with prison labor for 20 months before the judgment became final and conclusive. ④ The above judgment of the Supreme Court of Seoul Northern District Court of the Republic of Korea on May 7, 2015 and 20 years with prison labor for 216 months with prison labor for each of the above crimes against Defendant C.

1. Aggravation for concurrent crimes;

Defendant A: the former part of Article 37, Article 38 (1) 2, Article 50, and the proviso of Article 42 of the Criminal Act [in the case of concurrent crimes within the limit of the proviso of Article 42 of the Criminal Act provided for in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) with heavy

1. Discretionary mitigation;

Defendant B and C: Each of the Articles 53 and 55(1)3 of the Criminal Code (The following consideration of favorable circumstances among the grounds for sentencing)

Judgment on the Defendants and their defense counsel's arguments

1. Defendants’ assertion regarding the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against the victim M in relation to the violation (Fraud)

A. Summary of the assertion

1) Defendant A

Although Defendant C was aware that it was an illegal act by deceiving an unspecified person as a specific object, it was recognized that Defendant C had two B alleybs and known his account number. However, Defendant C was not subject to KRW 5 billion per day under the pretext of unreshing KRW 7.5 billion or KRW 10 billion per day. In light of Defendant’s status, role, etc., it is difficult to recognize a functional control over the instant crime.

2) Defendant B

On April 28, 2016, the victim met with L and K, and at the time, the victim told that if investing KRW 5 billion in the treatment of specified goods, the amount of KRW 10 billion would be returned to the account in the name of A, and the victim knew that the amount of KRW 5 billion transferred to the account under the name of A is the money in the name of the investment in the disposal of the specific goods. However, there is no prior collusion for the instant crime with other Defendants, L, K, and the instant case.

3) Defendant C

There was no conspiracy to commit the instant crime with other Defendants, L, K, and the fact that KRW 5 billion was deposited in the account under the name of Defendant A was later known, and there was a fact that served as an intermediary in the middle due to the relationship with Defendant A, but there was a fact that served as an intermediary in the middle. However, it is only an aiding and abetting because it did not act as a functional place for the instant crime.

B. Determination

1) Judgment on Defendant A’s assertion

The Defendant stated in the prosecutor’s office to the effect that his crime was led (1,185 pages of investigation records). In this court, the Defendant asserts that the degree of his participation cannot be recognized as functional control.

However, the witness K testified to the effect that "if the defendant makes an investment of 5 billion won by making a phone call to the defendant on the face, it would be possible to make an amount of 7.5 billion won, and the victim later remitted 5.0 billion won to the defendant's account." The victim M, who is the victim, testified to the effect that "the defendant B could not make funds through the disposal of specified objects, and the defendant A was a person with such ability." The defendant transferred 5 billion won to Busan to receive the promised money, and the defendant believed that "the defendant could make money with the approval of Cheong-man's office on the first day of the following month, and believed that the defendant may make money with the approval of Cheong-man's office", and that the defendant's act of making the above 5 billion won of money with the defendant's own ability to commit the crime of fraud or 5 billion won as a core act in sequence, and the defendant's act of making the above 5 billion won of money with his own ability to commit the crime of fraud or 5 billion won of the defendant."

2) Judgment on Defendant B’s assertion

Although the Defendant led to the confession of his criminal act in this court, the Defendant asserts that it does not constitute a co-principal because there was no fact that he conspiredd to commit the crime in advance with other accomplices first known to the Defendant in this case. However, according to the aforementioned evidence, the Defendant’s introduction that the victim invested KRW 5 billion in specified objects and the Defendant was aware that the victim would have transferred the specified objects to such purpose at the time. The Defendant received KRW 5 billion from K immediately after deposit into the account under the name of the Defendant A, and immediately received KRW 500 million from K as a consideration, and thus, it is recognized that the Defendant received KRW 500 million from K on May 4, 2016. The Defendant’s assertion is not acceptable.

3) Determination as to Defendant C’s assertion

In full view of the following facts and circumstances acknowledged by the aforementioned evidence, the fact that the Defendant conspiredd with other accomplices in the instant crime and participated therein can be sufficiently recognized. The Defendant’s above assertion is rejected.

① On April 20, 2016, Defendant A created a business fund to the Defendant, and the market price was approximately KRW 100 million. On April 28, 2016, the Defendant, while having been in custody of the said B B, he said that K, who was aware of this, did not talk with L and Defendant B about the victim M, and did not contact with the Defendant in a nearby place. The Defendant did not ask for the reasons, etc., and immediately brought two said B B, without having asked the Defendant, brought the said B, and sent it to K. The K had the ability to easily drive the said B, and on the same day, the victim transferred KRW 5 billion to the account in the name of Defendant A.

In this court, the defendant stated that "the defendant would be used to show and display a dub in a place where money was lent to K for the reason of giving a dub," and that "K would bring a dubbb to the defendant without asking for the reason that K would bring a dubb, and even if K delivered the dubb to the defendant B, it seems that there was a unity between the defendant and K on the acquisition of the dubbb in that it did not raise any objection.

Defendant A stated to the effect that “Before deposit of KRW 5 billion from the victim on April 28, 2016, the Defendant made a statement to the effect that “K made a phone call to oneself and received money so that she would receive money, thereby making it difficult to make a deposit of KRW 15 billion.” Accordingly, Defendant A was already aware that, contrary to the Defendant’s assertion that “A merely delivered the dudb and that it is irrelevant to the amount of KRW 5 billion remitted by the victim, the Defendant used the dudb and received KRW 5 billion from the victim.”

③ Even after the Defendant delivered alley, the Defendant continued to leave Busan, along with other accomplices, brought the victim into Busan, and delivered the fact directly to Defendant B on May 4, 2016. Defendant A received KRW 500 million from the victim, out of KRW 5 billion. Defendant A received KRW 500 million from the victim. If the Defendant was irrelevant to the instant crime, there seems to be no special reason to conduct such act, except for the delivery of the Alley to K.

2. Defendant A’s assertion related to fraud against the victim 0 (2017Gohap880)

A. Summary of the assertion

There is no fact that the victim made a statement as stated in the facts constituting the crime, and only it was intended to create a new 500 million won package to be a new letter upon R's request.

B. Determination

In light of the following facts and circumstances admitted by the evidence mentioned above, the defendant's statements as stated in the facts constituting the crime can be sufficiently recognized, and the defendant's above assertion is rejected, since it can sufficiently be recognized that the defendant received KRW 80 million from the victim.

① The victim stated consistently from the time when he was investigated by the police to the time of this Court that “The Defendant had an amount of KRW 500 million stored in the “original” and that he would offer the amount of KRW 1.5 billion as business funds by having an investment of KRW 10 billion to investors and having an amount of KRW 10 billion (1.5 billion as business funds).” (The Investigation Record 103 pages), and R stated to the same effect (110 pages). In addition, R testified to the purport that the Defendant did not first request the Defendant to create and deliver the fact that it did not have requested the Defendant to pay KRW 500 million.

② The Defendant, while bringing about the victim from the “original”, was also true that actually shown the 500 million fake factoring (not more than 136 pages of investigation records). However, the Defendant’s 500 million fake factoring, which was the end, did not result from the “original custody of new rights” in the Korea Minting Corporation, but was merely an exchange of 500 million won new rights sealed in a commercial bank.

③ The Defendant was a person irrelevant to “original”, and merely shown to other investors the fact that it is practically impossible to receive an investment of KRW 10 billion with the fact that it is contrary to the general transactional concept, and thus, the Defendant seems to have no intention or ability to pay the business funds promised to the victim.

Reasons for sentencing

1. Defendant A

(a) Scope of punishment by law: Imprisonment with prison labor for not less than five years but not more than 50 years;

(b) Scope of recommending sentencing criteria applicable: Imprisonment with prison labor for not less than five years but not more than six years and not more than six months;

1) A violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

【Scope of Recommendation】

General Fraud Type 4 (not less than 5 billion won, less than 30 billion won) Reduction Area (3-6 years)

【Special Convicted Persons】

○ Aggravations: Cumulative Offense

○ Mitigation elements: the victim is also responsible for the occurrence of a crime or the expansion of damage;

2) Fraud (No. 2 crime)

【Scope of Recommendation】

General Fraud Type 1 (less than KRW 100,000) (one month to one year)

【Special Convicted Persons】

○ Aggravations: Cumulative Offense

○ Mitigation elements: If the victim is fully responsible for the occurrence of the crime or the expansion of damage, non-compliance with the penalty

3) Scope of sentence due to the aggravation of multiple offenses: Imprisonment with prison labor for not less than three years but not more than six years and not more than six months (4) and the scope of sentence compared to the sentencing sentence: Imprisonment with prison labor for not less than five years but not more than six years and not more than six months; decision of sentence: five years;

In this case, the victims' intention for the abnormal profit trend is to facilitate the defendant's criminal act, and there is no direct evidence to regard the defendant's crime of 2017 senior and 638 case as closely gathered with other defendants in advance. The defendant returned 1 billion won to M who is the victim of the 2017 senior and 638 case, the defendant returned 2017 senior and 638 case to M who is the victim of the 2017 senior and 2017 senior and 880 case, and the defendant expressed his intention that 0 does not wish to punish the defendant, and the defendant is against his act.

However, the crime of this case in 2017Gohap638 is committed by taking partial charge of several roles, deceiving the victim, and deceiving the victim the maximum amount of KRW 5 billion from the victim, which is not good from the aspect of the criminal law and the result. Since long as the defendant was sentenced to the criminal facts that acquired money by means similar to each of the crimes of this case and released the criminal, the defendant committed the crime of this case at once again during the period of repeated crime, the defendant seems to have acquired most of the damage amount, but it is not sufficient to recover damage to the victim M, and the victim M expressed his wish to punish the defendant, it is disadvantageous to the defendant.

Other factors of sentencing, such as the age, character and conduct, environment, motive and consequence of the crime, and circumstances after the crime, shall be determined as per the order, comprehensively taking into account.

2. Defendant B

(a) Scope of punishment by law: Imprisonment with prison labor for not less than two years and not more than six months but not more than 15 years;

B. Non-application of the sentencing criteria: The sentencing criteria do not apply inasmuch as the crime in the judgment is in the relationship of fraud for which the judgment was made on January 13, 2017 and the latter concurrent crimes of Article 37 of the Criminal Act.

(c) Determination of sentence: Three years of imprisonment;

In this case, the victim's intention of abnormal profit trend is to facilitate the defendant's crime, and the victim is also responsible for certain parts of the occurrence of the crime, there is no direct evidence to regard the criminal act of this case as closely gathered with other defendants in advance, the defendant reflects his act, and the defendant must consider equity in the case of a judgment simultaneously with the judgment that became final and conclusive in relation to concurrent crimes under the latter part of Article 37 of the Criminal Act.

However, the crime of this case is a situation unfavorable to the defendant, such as the fact that the defendant, who takes part in multiple roles, deceivings the victim, and defrauds the maximum amount of KRW 5 billion from the victim, and that the nature of the crime is poor in terms of the method and result of the crime; the defendant commits the crime of this case even though there are several previous and previous crimes; the defendant acquired KRW 500 million from the amount of damage but did not return it to the victim or did not endeavor to recover the damage; and the victim expressed his wish to punish the defendant.

Other factors of sentencing, such as the age, character and conduct, environment, motive and consequence of the crime, and circumstances after the crime, shall be determined as per the order, comprehensively taking into account.

3. Defendant C.

(a) Scope of punishment by law: Imprisonment with prison labor for not less than two years and not more than six months but not more than 25 years;

(b) Scope of recommending punishment by applying the sentencing criteria: Imprisonment with prison labor for not less than three years but not more than six years;

【Scope of Recommendation】

General Fraud Type 4 (not less than 5 billion won, less than 30 billion won) Reduction Area (3-6 years)

【Special Convicted Persons】

○ Aggravations: Cumulative Offense

○ Mitigation elements: the victim is also responsible for the occurrence of a crime or the expansion of damage;

(c) Determination of sentence: Three years of imprisonment;

In this case, since the victim's intention of abnormal profit trend is to facilitate the defendant's criminal act, the victim is also responsible for a certain portion of the occurrence of the crime, there is no direct evidence to regard the crime of this case as closely gathered in advance with other defendants, and there is no fact that the defendant did not directly deception against the victim. The fact that the defendant did not appear to have committed a direct deception against the victim is favorable to the defendant.

However, as the crime of this case takes part in multiple roles, deceiving the victim, and deceiving the victim, which is five billion won from the victim, the crime of this case is not good in terms of the method and consequence of the crime, the defendant has been punished several times due to the criminal facts that he acquired the money by means similar to the crime of this case, and commits the crime of this case at once again during the repeated crime period of which one year has not passed since he was sentenced to the same kind of crime, and the defendant did not return it to the victim or make efforts to recover from damage even though he acquired more than KRW 500 million out of the damaged amount, and expressed his intent to punish the defendant.

Other factors of sentencing, such as the age, character and conduct, environment, motive and consequence of the crime, and circumstances after the crime, shall be determined as per the order, comprehensively taking into account.

The presiding judge, the highest judge;

Judges of the High Instance

Judges Kim Dong-dong