(영문) 서울중앙지방법원 2018.11.23. 선고 2018고합771 판결

A stock company B (hereinafter referred to as "B") is a corporation with the purpose of selling clothes in Gwangjin-gu Seoul Special Metropolitan City, and E is the chairperson of B and the executive director in charge of raising funds in B. Around 2013, E orders the F to select employees to raise funds necessary for B and then F entered the Defendant, an existing investor, as the employee in charge of raising funds, and the Defendant was working as the employee in charge of raising funds in B from September 2013. Although E agreed to pay 7% of the investment funds to the employees in charge of raising funds, the Defendant was not paid an allowance for attracting investments from the end of December 2013, but the Defendant was not able to pay dividends to the investors in light of the circumstances, since B was ordered from the end of December 2013 to receive senior dividends from the investors in charge of raising funds in B, it became difficult for business managers to pay dividends from the financial situation and subordinate investors.

Around January 26, 2015, the Defendant: (a) at H located in Seongbuk-gu, Seongbuk-gu, Sungnam-si, the Defendant did not have the ability to pay dividends to investors; and (b) despite the fact that it was prevented from returning investments at the time, “B” is a corporation that sells clothes, etc. through home shopping. The Defendant may earn a fixed amount of profit every month if he/she made an investment by purchasing goods at a container and selling them at a container in the home shopping, thereby making an investment. The Defendant shall pay 5% of the monthly investment amount as profits for one year after the investment; (b) deducts the above profits if he/she collects the investment amount within one year; and (c) return the principal after three months; and (d) falsely, he/she shall pay the principal amount by 20 million won until the date of return of the investment amount; and (e) falsely, he/she received 300 million won from the victim’s account in collusion, namely, from 200 days to 205.7 billion won.

Summary of Evidence

1. Partial statement of the defendant;

1. Partial statement of the suspect interrogation protocol of the accused by the prosecution;

1. Each police statement made to F, E, and I;

1. The application of Acts and subordinate statutes governing investigation reports (Submission of suspect account records, etc., No. 9-241), investigation reports (Submission of suspect A data, No. 1 right 453-572 pages of investigation records), investigation reports (Submission of reference data, No. 2 right 585-590 pages of investigation records, No. 2 right 585-648 of investigation records), investigation reports (Submission of suspect A data, No. 2 right 591-648 pages of investigation records), investigation reports (Attachment of documents related to the place of piracy, No. 2 right 849-862 pages of investigation records, No. 2 right 849-862 of investigation records, etc.), investigation reports (No. 2 right 929-950 pages of investigation records, etc.), investigation reports (No. 5 telephone investigations, No. 3 rights 136, 137 pages).

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. 15256, Dec. 19, 2017); Article 347(1) and Article 30 of the Criminal Act (amended by Act No. 15256, Dec. 19, 201); Article 347(1) and Article 30 of the Criminal Act (amended by Act No. 347(1) and Article 30 of the Criminal Act (amended by Act No. 15256

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act / [Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) with the largest penalty ]

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Suspension of execution;

Judgment on the assertion of the defendant and his defense counsel under Article 62(1) of the Criminal Act (hereinafter referred to as "the grounds for sentencing"),

1. Summary of the assertion

The defendant is expected to be listed in the KOSDAQ between the victims, and the Home shopping business in B is expected to be expanded to China, and it is proposed that the defendant trusted the horses such as B Chairperson E, Executive Director F, etc. and make investments in B, and he also belongs to E, F, etc. Therefore, the defendant did not have any intention to acquire money by receiving money from the victims as investment funds.

2. Determination

(a) Facts of recognition;

According to the above evidence, the following facts are acknowledged.

1) B is a company for clothing sale, etc., and E is the Chairperson, and F is the Executive Director.

2) Around December 2013, F was instructed from E to select employees who will raise funds required for B, and the Defendant was employed as an employee in charge of soliciting investment funds from September 2013, and the Defendant was working for B as an employee in charge of soliciting investment funds (Article 1-203, 204, 456, 839 of the Investigation Record) (No. 1-203, 204, 456, 839 of the Investigation Record). The Defendant was unable to receive allowances for attracting investment from the end of December 2013, and the Defendant was instructed from F to pay dividends to senior investors with the investment funds offered from junior investors. Accordingly, the Defendant paid dividends to senior investors with the investment funds of junior investors (the Investigation Record No. 6,7, 9, 10 pages, 1-205, 206, 457, 4684, 4686-46, 286, 468-4686).

4) The Defendant sells clothes, etc. to the victim I, L, M, N,O, and P through Home shopping. The Defendant may earn a fixed amount of profit every month if E gains a considerable amount of profit by purchasing goods at a container and selling them at home shopping. 5% of the monthly investment amount shall be paid within one year after the investment, and the said amount shall be deducted if the investment amount is recovered within one year, and the principal shall be returned within three months after the return of the investment amount. 2% each month shall be paid up to 36% until the date of return of the investment amount, 3.5% each month, 48 to 278, 279 to 378, 375 to 278, 486 to 278, 375 to 379, 278 to 379, 207, 278 to 379, 200, 279 to 375, 200, 2786 to 375, and 3707.5.

B. Specific determination

1) The crime of fraud is established when deceiving another person to receive property or to acquire pecuniary benefits based on the defective intent resulting from the deception, and the deception as a requirement for fraud refers to all affirmative or passive acts that have to abide by each other in property transactional relationship (see, e.g., Supreme Court Decision 83Do1013, Jun. 28, 1983). Furthermore, insofar as the defendant does not confession, the criminal intent of defraudation, which is a subjective constituent element for the crime of fraud, shall be determined by taking into account objective circumstances such as the defendant’s financial power before and after the crime, environment, details of the crime, process of the transaction, relationship with the victim, etc. (see, e.g., Supreme Court Decision 2013Do1203, May 16, 2014).

2) Examining the instant case in accordance with the aforementioned legal principles, it is reasonable to view that the Defendant had the intent to obtain deception, taking into account the following facts and circumstances acknowledged by the aforementioned evidence, in addition to the above facts admitted. Therefore, the above assertion by the Defendant and the defense counsel is not acceptable.

① The Defendant received the remittance of investment funds from B and remitted dividends therefrom, used the Defendant’s personal account or the Defendant’s personal account designated by F, which is not the company’s account (Article 1, 205, 268, 277-283, 457, 458, 849-862 of the Investigation Records). This is not an ordinary and normal way to attract investment funds to be used by the company for its operation.

(2) The Defendant was not paid an allowance for attracting investments from the end of December 2013. Moreover, the Defendant was unable to pay dividends to the investors in the instant case due to the lower-ranking investors’ investment, even though it was a situation in which the dividends to the senior investors were paid due to the lower-ranking investors’ investment, and the so-called return was made, and received the instant investment money from the victims.

③ The Defendant did not immediately remit the instant investment money from the victims to the company account B, and used the considerable amount of the said money preferentially to pay dividends to other senior investors (Article 1-258-263, 266-273, 277-283, 457, 458, 460, 461, 462, 843, 849-862 of the Investigation Records).

④ As can be seen, if the victims were aware of the circumstances where considerable portion of the investment funds in this case were used for other purposes without investing in B, and the above situation was being returned, the victim I appeared not to have invested in B, and the victim I also knew that there was no profit since there was no sales around the end of 2015, and that it was the situation in which subordinated investors would pay dividends to senior investors with the investment funds, and it was known that "I would have been actually used to purchase the goods, and that I would have raised a high profit as the goods." Since I would have paid dividends with the investment funds before it was listed, I would like to have stated that I would return the dividends and principal as a whole if you were listed, I would not make an investment, and I would like to have stated that I would like to have included 10% of the capital funds in the passbook and that I would not have to know that I would have been entering the company. I would like to know that I would have to know that I would have to know that I would have to know that I would have to know that I would have to know that I would have to know it.

⑤ When listing on the KOSDAQ, the Defendant continued to prevent the return as above without directly checking the progress and process of listing on the KOSDAQ and the possibility of sexual intercourse, etc., with the belief that the financial situation of the company would be improved and that the payment of allowances and dividends would normally be made normally.

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

2. Application of the sentencing criteria;

[Determination of Punishment] The amount of not less than 50 million won for general fraud, and less than 5 billion won for fraud (Type 3)

【Special Convicted Person】

[Recommendation and Scope of Recommendation] Basic Field, 3 years to 6 years

3. Determination of sentence: The crime of this case 2 years of imprisonment and 3 years of suspended sentence is a large amount of money acquired by the defendant from many victims, and the defendant continued to commit the crime of this case by actively taking advantage of personal trust relationship with the surrounding victims; the victims have not been recovered; and the damage is likely to be completely recovered in the future in light of the scale of damage and the property status of the defendant, etc.

However, it cannot be denied that the victims who invested for the purpose of obtaining high-income profits from the crime of this case had no previous convictions against the defendant, and there is no responsibility for the occurrence and expansion of damage caused by the crime of this case. In addition, there is no profit acquired by the defendant in the course of the crime of this case, as well as the fact that the actual amount of damage falls short of the amount of criminal facts by paying a large amount of dividends to the victims, etc., considering the circumstances favorable to the defendant, and taking into account other factors such as the defendant's age, character and behavior, environment, motive, means and method of the crime, and circumstances after the crime of