2016Gohap465 Fraud

2017Gohap74 (Consolidation) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

2017Gohap89 (Joint)

○○ (64 years old, south)

Kim, Ma○, Ma○, Ma○ (each indictment), Ma○, Ma○, Kim○, Mo○ (each public trial)

Law Firm***** Attorney Kim○, Song-○, Song○○

September 22, 2017

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

Criminal History 1)

" 2017 Highly 465" 2017 Highly 74 " 2017 Highly 89

The defendant, as the representative director of a corporation A (hereinafter referred to as "A") with the purpose of golf membership sales business, was in charge of the overall operation of the company, such as the development of related goods, fund management, and management of members and branch offices related to "(hereinafter referred to as "a similar membership rights")" from September 2008 to November 23, 2015 when he actually runs the company abroad.

1. Fraud;

From October 2006, the Defendant was in a bad credit standing position due to the Defendant’s failure to repay credit card payments, etc., and around December 29, 201, the Defendant did not have any particular property or income, such as being recorded in the defaulters’ list by the Seoul Southern District Court’s ruling, because he was unable to repay the debt of KRW 150,000 to a private person and was not recorded in the defaulters’ list.

A has continuously recorded the enemy every year since 2008, and the net loss in the current period was equivalent to 6.2 billion won in 2013, 5.8 billion won in 2014, and 24.9 billion won in liability as of December 31, 2013, and 4.3 billion won in capital as of December 31, 2014.

In this situation, the Defendant had attempted to acquire money from an unspecified number of victims by selling similar memberships that compensate for the difference of golf course 3).

In fact, there was a situation where the financial standing of the defendant and the company was not good, and where the similar membership was sold, the structure of losses incurred in the sales of similar membership by paying more than the amount of the deposit and membership fee deposited in A as sales commission to the sales offices, etc., and it was difficult to form a large amount of investment capital by paying more than 10-30% of the deposit and membership fee as sales commission. There was no profit structure or profit-making business for compensating for large losses incurred by similar sales of membership in the company. Thus, it was difficult to compensate for the difference of the previous members at the participation fee of the members later, so it was difficult to preserve the difference as agreed upon.

Nevertheless, from March 2009, the Defendant recruited similar membership members in the name of A by making up for the difference between members and non-members at the time of using a golf course through sales organization, such as a general sales board, branch office, and sales manager, and making up for the difference between members and non-members.

Therefore, on March 23, 2009, the Defendant received transfer of KRW 13.8 million from the victim Park Jong-dae to his/her office located in Samsung-dong in Gangnam-gu, Seoul to October 30, 2015, including the transfer of KRW 1,3.8 million from the victim Park Jong-dae as the membership fee for similar membership membership, and acquired the money from 06,643,29,202 Won7) to 6,552 each year of the victim's ○○ 6,52 as indicated in the attached list of crimes (1) and (2) 5 (3) 6 (3) from October 30, 2015.

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

The Defendant was actually operating a victimized company A from September 2008 to November 2015, and was in custody for the victimized company after being issued from members the sales proceeds of similar membership in accordance with paragraph (1).

The Defendant instructed the employees in charge of the accounting of the victimized Company to pay the Company's funds withdrawn from the representative director for the purpose of paying the funds to the Defendant's family members' real estate purchase funds, etc., in order to use the company's public funds at will.

On September 4, 2009, the Defendant purchased an implied land in the name of the Defendant’s spouse, and subsequently consumed it for personal purposes by withdrawing KRW 600 million from the account of the said company with temporary border and voluntarily using it as the purchase price for the said land.

In addition, from around that time to October 13, 2014, the Defendant withdrawn KRW 5,616,338,861 in total from the account in the name of the victimized Company through 46 times, such as the list of crimes in attached Table (4) and embezzled by arbitrarily using this amount as 8).

Summary of Evidence

Omission

Application of Statutes

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

Article 3 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356 and 355 (1) of the Criminal Act (Selection of Imprisonment) and Article 347 (1) of each Criminal Act (as a whole, choice of imprisonment with prison labor for each victim)

1. Aggravation for concurrent crimes;

Determination on the assertion of the defendant and defense counsel under the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act / [Article 50 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) with the largest punishment

1. Determination on each fraud

A. Summary of the assertion

① It is predicted that members will use a golf course less than the maximum number of times available during the agreed period. Under the business agreement with the golf course, only discounted volume or partially reduced volume of the golf course, and if the maturity members re-enter the membership, they could bring profits from similar membership sales business itself because they would not pay commissions to the sales manager. ② A purchased land located in Gyeonggi-gu Hyeong-gun, 150 million won per annum, operated 30 million won, and operated 3D work and 1.0 billion won per annum, 3D supply of a broadcasting station, and 10 billion won or more, * KRW 100 million from 3,000 to 100,000 won, and 2,000 won from 3,000,000 won or more, and the Defendant received from 10,000 won or more from 2,000 won to 10,000 won from 20,000 won or more from 10,000 won from 3,00 won or more than 21.

B. Determination

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by this court, such as the profit structure of the similar membership sales business itself, the capital status of A and profit-making business, the defendant's methods of operating funds and the defendant's appearance after the occurrence of financial shortage, etc., the defendant is sufficiently recognized that the defendant, although he knew that A was not able to pay the difference to its members in accordance with the agreement, as if A had such ability, by deceiving the victims to sell similar membership and receive membership fees. Accordingly, the above assertion by the defendant and the defense counsel is rejected.

(1) In light of the product details of similar memberships sold by A, sales deposited by A when it sells similar memberships shall be the entire membership fee in the case of termination, and in the case of security for deposit, the membership fee and interest accrued on the deposit during the future contract period (based on the period) in the case of security for deposit.

3. An amount equivalent to 5-5% interest rate is all, and even if only the total cost of green volume expected to be spent for each maximum number of times available during the coverage period under the agreement, it is the amount that is larger than the sales amount when calculating the sales amount ex officio. Furthermore, in addition, A pays 11-30% of the membership fee in the case of a launcing type in the sales amount, and the amount equivalent to 10-15% of the deposit in the case of a launcing type, as a fee, to the sales manager, it is a structure in which losses are incurred by the sales of similar membership by itself.

Furthermore, even when considering the assumption that the elderly members are using only 70% of the maximum number of times available to them, it is larger to use green volume and fees, etc. than the sales amount such as membership fees. Accordingly, it is difficult to readily conclude that most members are likely to not use all of the agreed number because the number of members, other than the members, would make up for the difference to a maximum of 3 persons designated by the members or in life, and most of them would not use all of the agreed number. There is no place where A entered into a business agreement with the golf course on the basis of attracting potential customers, and therefore, it is reasonable to deem that A has not confirmed any material such as financial details that A has received the difference from the golf course in accordance with the actual use of the golf course, and even if so, it appears that A has some of it, and even if so, it appears that there was a certain amount of sales fee, even if the existing members have subscribed to the golf course at maturity, it can not be said that there was a similar structure to make profits from sales of membership.

② There is no evidence to see that A has earned profits from camping business and Malaysia** golf course operation, even if there is no evidence to see that A has earned profits from camping business, as alleged by the Defendant, 180 million won per annum, ****** 100 million per day, in light of the fact that the green price that A has to pay an average of 100 million won due to the operation of a golf course, the above camping business and *** * * * 3D operation of a broadcasting station and the 2000 200 200 200 200 20 200 200 20 200 20 200 20 200 20 200 30 200 20 200 20 200 30 20 20 200 20 20 200 30 20 30 200 2

③ As alleged by the Defendant, the head of the Busan branch office, one of the main sales branches, at the Busan branch offices, takes place without having certain members join as A and subtracting them from the number of senior members. In other words, the lack of funds has occurred immediately without having to enter the membership fee of the newly recruited members. In light of the above, it can be confirmed that A’s similar membership sales business is a structure of “the right to stop a return of the term “the right to prevent a return of the difference of the existing members,” in which it is inevitable to compensate for the difference of the existing members’ participation fee at the last member’s participation fee.

④ On August 30, 2011, A is acknowledged as not having been suspected of violating the Act on Fair Labeling and Advertising since its advertising activities conducted by the Fair Trade Commission. However, it appears that prior to the said determination, unlike other similar companies, A had withdrawn certain measures to secure the security of its members by subscribing to a periodical deposit in the name of its members in a financial institution or issuing insurance policies to its members. After the said determination, A started to develop and sell relatively low-end membership products with a relatively low-end membership fee and sell them mainly, from around March 25, 2015, "limited opinion on the audit results of an external accounting firm from around 2014.3 billion won in the relevant fiscal year, losses of its business during the pertinent fiscal year were high, 5.8 billion won in net profits in the current fiscal year, 5.2 billion won in total, and 120 billion won in total, and 200 million won in total, it was difficult to expect A's financial statements to increase its sales from around 2015.

⑤ The Defendant did not take measures to suspend sales even when the existing members did not make up for the difference in their green volume due to the shortage of funds. The Defendant continuously focused on increasing sales by continuously leaving piece rates for each branch office and each individual and announcing the sale of new products at the time of the delivery of new products, and encouraging the sales manager to sell similar memberships. As examined thereafter, A’s financial shortage situation.

It is doubtful whether the money borrowed as security by investing the money, etc. of real estate in the actual funds of A to use it as compensation for the shortage.

(6) In addition, on October 30, 2015 and November 13, 2015, the Defendant sent a text message to the members to normalize as soon as possible in seeking understanding and cooperation with respect to the unpaid situation, and the Defendant left the Republic of Korea on November 23, 2015, where he/she had a family member, and was receiving a part of the race, on August 18, 2016, he/she surrendered to the Republic of Korea on September 9, 2016 when he/she was arrested by the Immigration Office of Malaysia on August 18, 2016.

2. Judgment on the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

A. Summary of the assertion

1) Although, as a part of A’s profit-making business, it was inevitable for A to purchase real estate under the name of A due to a relationship that is not a farming corporation, and thus, A’s spouse or mother’s purchase of real estate was inevitable. It was not intended to use A’s funds individually. At the time of audit on March 25, 2015, at the time of audit on this part, the real estate acquired with A’s funds pointed out or received a secured loan and deposited all the proceeds into A’s corporate account. Accordingly, the Defendant did not have any intent to acquire unlawful profits.

2) Furthermore, even if embezzlement is recognized, part of the real estate purchased under the name of the spouse or mother does not have been purchased with the funds of full A, but the spouse or mother has taken over the existing collateral obligation established on the pertinent real estate or paid part of the purchase price with the loan obtained as security, and thus, the amount equivalent to the loan should be deducted from the amount of embezzlement.

B. Relevant legal principles

In the crime of occupational embezzlement, it is necessary for a prosecutor to prove that there is an act of embezzlement as an act of realizing the intent of unlawful acquisition. The evidence should be based on strict evidence with probative value that causes a judge to have no reasonable doubt. If there is no such evidence, even if there is doubt of guilt against the defendant, it shall be determined as the defendant's interest. However, if the representative director of a corporation withdraws and uses the company's money, and fails to present documentary evidence as to the place of use, and if there is no reasonable explanation to understand the reasons for withdrawal and the source of use, such amount may be presumed to have been withdrawn and used for personal use (see Supreme Court Decisions 2003Do2807, Aug. 22, 2003; 2007; 2007.

19.6. 6. The representative director of a company has no agreement on interest or maturity in withdrawing and using large company funds for any purpose other than expenditure for the company as provisional payment, etc., and it is nothing more than lending and disposing of company funds for private purposes by using the representative director's status beyond the generally acceptable scope and without going through lawful procedures such as a resolution of the board of directors (see, e.g., Supreme Court Decision 2003Do135, Apr. 27, 2006). Meanwhile, the intention of illegal acquisition in embezzlement refers to the intention of disposing of other person's property in violation of his/her duty for the purpose of pursuing his/her own or a third party's interest, and even if he/she has an intention to return or compensate for it later, it does not interfere with the recognition of the intention of unlawful acquisition (see, e.g., Supreme Court Decision 2003Do135, Apr. 27, 2006).

10. The amount of ex post facto reimbursement or preservation is not required to be deducted from the amount of embezzlement (see, e.g., Supreme Court Decision 2004Do5167, May 27, 2010).

C. Determination

1) Whether embezzlement is established

In light of the above legal principles, in full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court, the defendant's act of withdrawing company funds as stated in the list of crimes (4) by the representative director for the purpose of using the real estate purchase fund in the name of his spouse or mother as the fund for the purchase of real estate in the name of the spouse or mother can be sufficiently recognized as embezzlement based on the defendant's intent of unlawful acquisition. Accordingly, the above assertion by the defendant and the

① During the operation of A, the Defendant has frequently withdrawn a large amount of money as a representative director. However, there is no account book stating a specific name or place of use separately, and it is impossible to confirm the place of use. The remainder, excluding the fee out of the membership fee and the amount to be paid such as dump, etc., of the deposited members, was used by transferring A’s funds to A’s account under one’s control without distinction from that of the Defendant’s personal funds.

② Some of the A funds withdrawn by the Defendant was used as funds to purchase real estate under the name of the Defendant’s spouse or the mother’s name. The majority of real estate, excluding the pre-existing or the answer that cannot be acquired under the name of the Defendant, appears to have no impediment to acquiring in the name of A in apartment, multi-household house, site, forest land, etc., but purchased in the name of the spouse or the mother’s name and did

③ On March 25, 2015, the Defendant: (a) created a collateral security right in the name of a financial institution or an individual as collateral with respect to part of the real estate indicated in the separate list of crimes (4) purchased from A; (b) took out a loan from a financial institution or an individual after its cancellation; (c) took out a part of the real estate under the name of A; and (d) took out a loan as collateral; and (e) took out a part of the real estate to a third party, the real estate was sold to the third party; and (e) the money was deposited in the name of the lender or the purchaser of the real estate. However, it is difficult to verify whether the money was deposited to a third party on the loan or the sale price of the real estate under the name of the third party, and it is merely a large amount of money to be deposited in the account; (e) whether the money was deposited in the loan or sale price of the real estate to be deposited to A; and (e) whether the money was deposited in the loan or sale price of the real estate at issue.

B) Part concerning the amount of embezzlement

As seen earlier, the Defendant does not accept the Defendant and his defense counsel’s assertion that “A’s funds” should be voluntarily withdrawn to use for real estate purchase funds, and that, as long as the Defendant did not submit objective data that he had used for real estate for A, the amount that was not used for real estate purchase funds out of the funds of A withdrawn by the Defendant should be deducted from the amount of embezzlement.

Reasons for sentencing

1. The scope of applicable sentences by law: Imprisonment for not less than five years nor more than 45 years; and

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

(a) Basic crimes: Each fraud;

[Determination of Type 5] Systematic Fraud (at least 30 billion won)

[Special Persons] Where a person led to or led to the commission of a fraud, he/she committed a crime against an unspecified or large number of victims, or committed a crime repeatedly over a considerable period of time.

[Recommendation and Scope of Recommendations] Special Daehan, and 5 years and 6 months or more (at least 5 years and 6 months of imprisonment) (In aggregate as a result of the combination of identical competitions, the minimum sentence of sentence shall be reduced by 1/2)

(b) Concurrent crimes: Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement);

[Determination of Types of Embezzlement and Breach of Trust Act] Type 4 (5 billion won or more, and less than 30 billion won)

[A person under special jurisdiction] In the event of a large volume of victims (including workers, shareholders, creditors, etc.), or in the event of causing serious damage to the victim

[Scope of Recommendation] Aggravation, 3 years and 4 months to 8 years (in addition to the same kind of competition, 1/3 of the minimum sentence due to the increase in the first step as a result of adding up the same kind of competition)

C. According to the majority crime processing standards: the sentence of imprisonment with prison labor for not less than five years and six months: the crime of this case in which the defendant had been sentenced to five years and six months is uncertain as to whether the defendant would be able to carry out the similar membership sales business in accordance with the agreement even if he sells a member's membership; the defendant acquired a large amount of money equivalent to KRW 106.6 billion from many victims; further, the defendant's funds should be used as personal funds such as arbitrarily withdrawing the funds of the defendant's family members and acquiring real estate in the name of the defendant's family members. Nevertheless, even though some sales officers could normally operate the similar sales business in a normal manner, the defendant failed to engage in the business without a temporary change of funds due to the circumstances such as the deduction of the members, and the defendant failed to submit a statement to the effect that he could not acquire real estate in the name of the victim, and it is not clear that the defendant did not have to pay the defendant's fees to the person in charge of sale, which was finally demanded for an excessive return of the funds.

However, the defendant has no criminal history except for the case of a fine of about 15 years prior to two times and a suspended sentence of one time, and some of the money that the defendant acquired by the defendant through similar membership sales business was paid to the victims under the pretext of payment of the difference in finite, and the actual amount of damage is less than the amount of fraud, such as the deposit in financial institutions and the possibility of return in the future is expected, and the defendant has a spouse and a child to be supported by him/her, and other circumstances that are favorable to the defendant, such as the defendant's normal conditions and age, character, health conditions, intelligence and environment, etc., shall be determined as per the order.

Judges in the form of a judge

Judges Kim Jae-chul

Judge Lee Sang-hoon

1) The contents of the facts charged were appropriately revised.

2) If a person claims the difference between a golf course member and a non-member after arbitrarily using a nationwide unspecified golf course, the amount shall be compensated in cash.

(2) the Corporation shall be entitled to such

(iii)the fees paid to the golf course for the costs required for the golf course;

4) Nos. 646, 684, 749, 3771, 3772, and 3802 No. 646, 784, 779, 3772, and 3802 (each of the damages is stated as zero won) on the 10th trial date, No. 283, 2834, 3038

4871, 5001 was the 15th public prosecutor's revocation of public prosecution, and it was excluded.

5) On the 15th trial date, the dismissal of the public prosecution was decided by the prosecutor’s cancellation of the public prosecution, and this was excluded.

6) On the 15th trial date, No. 2 was the 15th trial date, and the dismissal of the public prosecutor was decided as the cancellation of the public prosecutor’s indictment.

7) 106,082, 349, 202 won in total ( = 106, 266, 649, 202 won in = 11,00,000,00 won in each year - No. 2833 - No. 2834 in each year.

The amount of 11,00,000 won - The amount of damage No. 3038 per annum 11,00,000,000 won per annum - The amount of damage No. 4871 - The amount of damage No. 12,100,000 per annum - The amount of 139,200,000 won per annum No. 5001, 200,00)

Total amount of damage (2) 47,025,00 won = 51,025,00 won per annum - amount of damage 4,00,000 won per annum 3) and total amount of damage (3) of crime sight table (3)

513, 925,00 ( = 525,475,00 won per annum - Amount of 11,550,000 won per annum 2).

8) In the indictment, the amount that was withdrawn from the provisional payment to the defendant, such as the statement in the list of crimes in attached Form (4) shall be used only for the purchase of real estate.

However, according to the evidence duly adopted and investigated by this Court, all of the money was used only as a real estate purchase fund.

It is difficult to see that ‘real estate purchase fund' is recognized as ‘real estate purchase fund', and even if it is recognized as such, the defendant's right of defense is practically infringed.

As such, it cannot be seen that the indictment is corrected ex officio without the amendment procedure.

19) According to the sentencing guidelines, life imprisonment is recommended range, but only a fine and a limited imprisonment are prescribed in fraud.

shall not be selected.