Defendant

Defendant and Prosecutor

Formation leaps (prosecutions) and hearts (trials)

Law Firm Jungwon, Attorneys Kang Young-gu et al.

Daegu District Court Decision 2016Gohap50 Decided April 22, 2016

1. The judgment below is reversed.

2. The defendant shall be punished by imprisonment for not less than three years and six months; and

3. 841,850,000 won shall be collected from the defendant.

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts or misunderstanding of legal principles

With regard to the embezzlement, Nonindicted 1’s delivery of the check of KRW 1.92,37 million to the Defendant via Nonindicted 2 and Nonindicted 4 constitutes illegal consideration as it is in accordance with the purpose of washing money from criminal proceeds, and thus constitutes illegal consideration. Thus, even if the Defendant used the check at will without returning it, it does not constitute embezzlement. Even if the crime of embezzlement was committed, the amount of KRW 40 million out of the above money is the money permitted to be used by the Defendant for commission or introduction to exchange, such as Nonindicted 5, etc., from Nonindicted 4, and KRW 350 million is used solely by Nonindicted 7, and thus, the crime of embezzlement is not established as to each of the above money.

With regard to the calculation of the additional collection charge, the court below's measure that calculated the additional collection charge as KRW 861,850,000,000, which was actually acquired by the defendant among KRW 1.922,770,000, which was delivered to Nonindicted 5, etc. to Nonindicted 6, KRW 200,000 delivered to Nonindicted 7, and KRW 33,70,000,000, excluding KRW 1.355,000,000 delivered to Nonindicted 7, was unlawful, since the defendant was detained and abused in China, most of the above money was returned to China.

2) Unreasonable sentencing

The punishment of the lower court (two years of imprisonment, additional collection of KRW 861,850,00) is too unreasonable.

(b) Prosecutors;

The sentence of the court below is too unhued and unfair.

2. Judgment on the defendant's assertion of mistake of facts or misapprehension of legal principles

A. As to the assertion of illegal consideration

In the lower court, the Defendant also asserted the foregoing, and the lower court determined that the delivery of the check of this case does not constitute illegal consideration on the ground that the delivery of the check itself cannot be deemed to have the character of anti-social order, even though the check constitutes criminal proceeds and the delivery of the check of this case constitutes criminal proceeds, since it cannot be deemed that the delivery of the check of this case pursuant to the above contents of the consignment relationship itself has the character of anti-social order.

In light of the records and attitude of the circumstances stated by the court below, the above judgment of the court below is just, and there is no error as alleged by the defendant. Therefore, this part of the defendant's assertion is without merit.

B. As to the assertion that KRW 40 million should be excluded from the amount of embezzlement

In full view of the following circumstances acknowledged by the evidence duly admitted and examined by the court below, the defendant cannot be deemed to have used the money of KRW 40 million at his own discretion, and the said money should be excluded from the amount of embezzlement. Accordingly, this part of the defendant's assertion is with merit.

① The Defendant received a check exchange request from Nonindicted 4, and sent it to Nonindicted 5, which was 10% of commission fees, and Nonindicted 4 made it to Nonindicted 4, and Nonindicted 4 asked Nonindicted 5 to make a check exchange on the condition that he would accept commission amounting to KRW 40 million, and the Plaintiff requested Nonindicted 5 to make a check exchange on the condition that he would give KRW 30 million to Nonindicted 5, and 1.4 billion to KRW 1.5 billion to KRW 1.5 billion to KRW 1.5 billion to KRW 1.5 million to KRW 3 million in exchange for cash after the cause of the occurrence of the collision, and paid KRW 30 million by mixing the checks and cash as commission, and stated that the remaining KRW 10 million was deducted by considering it as his fee (Evidence record from KRW 628 to629,650 to 651, 655 to 656).

② The Defendant’s above statement is sufficiently reliable and there is no other circumstance to suspect that the Defendant’s above statement is sufficiently reliable and is otherwise reliable. The Defendant’s above statement is not likely to be otherwise doubtful. The Defendant’s fee for cash exchange of KRW 1.4 billion to KRW 40 million.

③ In light of these circumstances, it seems sufficient that the Defendant would have been permitted to use Nonindicted 4’s KRW 40 million.

C. As to the assertion that KRW 350 million should be excluded from the amount of embezzlement

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court below, the defendant embezzled KRW 1.883.7 million in collusion with the non-indicted 7, but it cannot be deemed that the non-indicted 7 used KRW 350 million out of the defendant's death. Thus, the above money should not be excluded from the amount of embezzlement. Accordingly, this part of the defendant's assertion is without merit.

① At the prosecution, the Defendant: (a) 1.4 billion to 1.5 billion won exchanged in cash from Nonindicted 5; and (b) 1.9 billion won to 1.6 billion won to 1.6 billion won to 6.6 billion won to 1.6 billion won to 1.6 billion won to 6.6 billion won to 1.6 billion won to 6.6 billion won to 1.6 billion won to 1.6 billion won to 65 billion won to 6.6 billion won to 1.6 billion won to 6.6 billion won to 1.6 billion won to 6.6 billion won to 1.6 billion won to 6.6 billion won to 1.6 billion won to 1.6 billion won to 1.6 billion won to 3.6 billion won to 6 billion won to 6.6 billion won to 1.6 billion won to 1.6 billion won to 1.6 billion won to 1.6 billion won to 1.6 billion won to 1.6 billion won to 6.

On the other hand, Nonindicted 9, the father of Nonindicted 7, stated at the prosecution that he was divided into KRW 1 billion from Nonindicted 7 to KRW 70 million (Evidence No. 763 of the record) and that the Defendant, who was being examined later, was able to say that he was the father of Nonindicted 7 that he was 350 million won from Nonindicted 7, and that he was 1 billion won from Nonindicted 7’s father, and that he was able to say that he was 1.35 billion won from Nonindicted 7’s father, etc., and that he was able to say that he was 1.35 billion won from Nonindicted 7, but the Defendant was not able to make a false statement (Evidence No. 776-78 of the record of evidence).

② From among the above statements by the Defendant, the part that became aware that the Defendant was guilty of proceeds from the crime while keeping in his/her vehicle the 1.4 billion to 1.5 billion won exchanged in cash and the 1.5 billion won failed to exchange the remainder of the money, the part that was kept in custody with Nonindicted 7 with money as it was true, and the part that delivered Nonindicted 7 KRW 1.1 billion to Nonindicted 6, KRW 200 million to Nonindicted 8, and KRW 300 million to Nonindicted 8, among the money that were kept in custody, are consistent with the part that he/she used in the said statement with Nonindicted 9’s statement, and is not inconsistent with any other evidence, and thus, sufficiently

However, the part of the defendant's above statement that Nonindicted 7 arbitrarily used KRW 350 million without his own permission is not trustable. The reasons are as follows.

According to the Defendant’s statement, the Defendant did not take any measures despite being aware of Nonindicted 7’s arbitrary use of the above KRW 350 million without his own permission, and rather, did it deliver KRW 1 billion to Nonindicted 7, who said Nonindicted 7, “in return for the payment of the said KRW 350,000,000,000 to a foreign country.” It is difficult to understand how the Defendant believed and kept a large amount of KRW 350,000,000 to a person who brought about the death without his own permission.

(C) In light of the series of acts in which the Defendant partially distributed the proceeds of the crime to Nonindicted 7 and Nonindicted 6, and the remainder was used by himself, it seems that Nonindicted 7 had already granted the Defendant’s explicit or implied permission on the use of the said proceeds before Nonindicted 7 used the entire proceeds of the crime.

Along with the above act, it is natural to view that there was no communication between the Defendant and Nonindicted 7 with respect to the use of the proceeds of crime in spite of the above act, it is reasonable to view that there was no communication between the Defendant and Nonindicted 7 with respect to the use of the proceeds of crime.

③ Ultimately, in collusion with Nonindicted 7, the Defendant expressed his intent to acquire unlawful acquisition by transferring the money stored in the vehicle to another place and keeping it in custody. Accordingly, the crime of embezzlement is established for the total amount of KRW 1.888,77 million, and Nonindicted 7’s use of KRW 350 million thereafter does not affect the nature of the crime of embezzlement that has already been completed.

D. As to the calculation of the surcharge

According to the Act on Special Cases Concerning the Confiscation and Restoration of Corruption Property (hereinafter “Corruption Property Confiscation Act”), the value of the Corruption Property may be confiscated if it is deemed impossible or unreasonable to confiscate it. The above 1.8837 billion won, which the defendant acquired, is the criminal proceeds of Article 2 subparag. 2 (a) of the Corruption Property Confiscation Act, and is apparent that it is a Corruption Property, and thus, it may be additionally collected from the defendant and his accomplice. Meanwhile, the additional collection as prescribed by the Corruption Property Confiscation Act is for the purpose of preventing the defendant from being deprived of illegal profits from being deprived of them, and thus, if it is impossible to determine the amount distributed, the amount of money equally divided shall be additionally collected from the defendant.

First of all, if the defendant obtained the above KRW 1.883.7 billion and the non-indicted 6 deducts a clear amount of KRW 200 million, such as the facts charged, the remaining amount of the collection is KRW 1.6883.7 billion.

Next, in light of the following circumstances acknowledged by the lower court and the evidence duly adopted and examined as to the details of distribution between the Defendant and Nonindicted 7, namely,: (a) the Defendant asserts that Nonindicted 7 would have been distributed KRW 1.35 million to Nonindicted 7; (b) Nonindicted 7’s statement was inconsistent with the Defendant’s assertion and amount; and (c) Nonindicted 7 returned part of the statement to Nonindicted 7 for the purpose of returning it to the Defendant; and (d) Nonindicted 7 did not secure Nonindicted 7’s statement as to the details of distribution because of uncertainty of the present location; and (e) there was no objective material that may identify the details of distribution between the Defendant and Nonindicted 7, such as the details of account or the details of check tracking; (b) the evidence submitted in the instant case alone is impossible to determine the amount distributed between the Defendant and Nonindicted 7.

Therefore, it is reasonable to collect the above KRW 1.683 billion from the Defendant and Nonindicted 7 equally divided the amount between the Defendant and Nonindicted 7. As such, the above KRW 84,1850,000 equivalent to a half of the above amount shall be collected from the Defendant.

3. Conclusion

Therefore, the Defendant’s appeal is reasonable, and the lower court rendered a single sentence by deeming each of the crimes in its judgment as concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, the lower judgment is bound to be reversed in its entirety. Therefore, the lower court’s judgment is reversed under Article 364(6) of the Criminal Procedure Act without examining the Defendant’s and the prosecutor’s assertion

The summary of the facts of the crime recognized by this court and the summary of the evidence is as follows, except for the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) in Article 369 of the Criminal Procedure Act, since it is stated in each corresponding column of the judgment of the court below.

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

On November 208, 2008, the Defendant exchanged the check in cash at a place that was not a police officer, as described in paragraph (1), and then conspired with Nonindicted 4, etc. to arbitrarily use it, by taking advantage of the fact that Nonindicted 4, etc. could not actively exercise his right to the said check and cash, with respect to the cash exchange of KRW 1.88 billion, excluding KRW 40,000,000,000, which was allowed to pay the fee, for the cash exchange of KRW 1.883,70,000,000, excluding KRW 40,000,000,000.

On November 9, 2008, the Defendant, along with Nonindicted 6 and Nonindicted 7, distributed 200 million won out of the above KRW 1.8837 billion to Nonindicted 6, and distributed the remaining amount to Nonindicted 7 for use by the Defendant and Nonindicted 7, and used it voluntarily for personal use from November 9, 2008 to February 2009.

Accordingly, the Defendant embezzled KRW 1.883 billion in collusion with Nonindicted 6, Nonindicted 7, etc.

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

A. Criminal proceeds and concealment: Article 3(1)1 and 3(1)3 of the former Act on Regulation and Punishment, etc. of Concealment of Criminal Proceeds (amended by Act No. 10201, Mar. 31, 2010); Article 30 of the Criminal Act (elective of Imprisonment)

B. The point of embezzlement: Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 11304, Feb. 10, 2012); Article 35(1) and Article 30 of the Criminal Act (However, the upper limit of punishment shall be governed by the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 201)

2. Aggravation of concurrent crimes;

Article 37 (Aggravation of Concurrent Crimes within the scope of the sum of the long-term punishments of the crimes in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) with the heavier punishment, Article 38 (1) 2, and Article 50 of the Criminal Act)

3. Additional collection:

Articles 6(1), 3(1), and 5(1) of the Act on Special Cases concerning the Confiscation and Restoration of Corruption Property

The instant crime was committed by Nonindicted 3, etc. by exchanging in cash the check of KRW 1.922,37 million, which is the proceeds from Nonindicted 3, etc.’s multi-stage fraud, to pretend and conceal criminal proceeds, and by embezzlement of KRW 1.883,70 million among them, and the crime was heavy. The said money was the property of the victims of multi-stage fraud, and it was eventually impossible for the Defendant to recover to the said victims by embezzlement, etc.

On the other hand, the Defendant generally leads to the commission of the crime and the mistake. The Defendant, upon the request of Nonindicted 4, etc., participated in money laundering for the purpose of getting a fee, but led to the crime of embezzlement, and considerable part of the embezzled money is deemed to have been reverted to the co-offenders who are not the Defendant. As a result, the Defendant spent considerable amount to return part of the embezzled money to Nonindicted 1, and thereby, has experienced economic difficulties so far. The Defendant is the first criminal without any criminal power.

In addition to these circumstances, the punishment as ordered shall be determined by comprehensively taking into account all the circumstances, such as the Defendant’s age, character and conduct, environment, motive, means and consequence of the commission of the crime, and the circumstances after the commission of the crime, etc.

The summary of embezzlement among the facts charged in the instant case is that the Defendant conspired with Nonindicted 6 and Nonindicted 7 on November 9, 2008, distributed 200 million won out of the above KRW 1.92 billion to Nonindicted 6, and the remaining amount to Nonindicted 7 for personal use from November 9, 2008 to February 2009, and embezzled it for personal use. As seen earlier, the Defendant was not guilty under the latter part of Article 325 of the Criminal Procedure Act, because it falls under the case where there is no proof of crime, and thus, he/she should be acquitted under the latter part of Article 325 of the Criminal Procedure Act, but as long as he/she is found guilty of embezzlement of KRW 1.837 million, which is included in this part of the facts charged, he/she shall not be convicted in the judgment of conviction.

Judge Lee Dong-dae (Presiding Judge)

1) The defense counsel argued in the statement of grounds for appeal that there was no intention because he did not know that the check was criminal proceeds since the beginning of the exchange of the check in cash. However, even in the above argument, the check was known to Nonindicted 3's criminal proceeds during the exchange of the check in cash. ② Even if the prosecutor knew of the fact that the check was the criminal proceeds of Nonindicted 3 around the time of receipt of the above check, the defendant, even though he knew of the fact that the check was the criminal proceeds of Nonindicted 4, etc., may at least make the company operated by Nonindicted 4, etc. that made it possible to create illegal funds, to avoid tax evasion, avoid sales, conceal various crimes of tax, or to make the illegal deduction of the amount of money. However, considering that the issue at the time was known, the defendant stated that he paid 20 million won to the defendant a suspicion that he would not have any problem (Evidence 654 of the evidence record). ③ The defendant received the above amount of money in this part of the facts charged and stated that he could sufficiently recognize the credibility of the Defendant's confession.