2013 Highest 2718 Fraudulent

A

The both sides of a case shall be brought up, and the case shall be tried.

Attorney B (Korean National Assembly)

October 21, 2014

A defendant shall be punished by imprisonment for not less than eight months.

Criminal history room (the relation to the previous tasks)

On September 20, 2011, the Defendant was sentenced to 10 months of imprisonment for embezzlement and 2 years of suspended execution at the Seoul Northern District Court (Seoul Northern District Court) on March 15, 201 and the above judgment became final and conclusive on March 15, 2012.

【Criminal Facts】

The defendant is a person who has worked as the representative director of D, a corporation established for the purpose of real estate consulting business in Yongsan-gu Seoul Metropolitan Government.

On August 8, 2008, the Defendant stated that “A development project, such as real estate, etc., located in Gangnam-gu Seoul Metropolitan Government H, is being implemented,” to the victim G at the F office located in the second floor of the Gangnam-gu Seoul E building, Gangnam-gu, Seoul, and that “A loan of KRW 100 million shall be made 1.8 million as interest per month and the principal shall be repaid after three

However, at that time, the Defendant was unable to pay benefits due to the aggravation of the financial standing of the above company, and there was no other financial ability to pay the above money within the due date, so even if he borrowed money from the victim, he did not have the intent or ability to pay the money.

Nevertheless, the Defendant, by deceiving the victim, received 100 million won from the victim to the new bank account (I) of the said company on the same day.

Summary of Evidence

1. Partial statement of the defendant;

1. Examination protocol of the accused by prosecution;

1. Each legal statement of the witness J and K;

1. A report on investigation (not more than 147 pages);

1. Previous convictions in judgment: Investigation report (report on confirmation of previous convictions in disposition, results of confirmation, and date of release);

Application of Statutes

1. Article applicable to criminal facts;

Article 347(1) of the Criminal Act

1. Handling concurrent crimes;

Judgment on the assertion of the defendant and defense counsel under the latter part of Articles 37 and 39(1) of the Criminal Act

1. The assertion that he/she had ability to repay;

The defendant and his defense counsel asserted that the defendant had the ability to repay the apartment amounting to KRW 350 million at the time of borrowing KRW 100 million from the victim, such as having the right to return the deposit of KRW 170 million at the time of borrowing KRW 350 million from the victim, so that he did not have the intention to commit fraud.

According to the above evidence, the Defendant owned KRW 106,00,000 to 3,000,000,000 won, and owned KRW 105,000,000 to 2,000,000,000,000,000 KRW 2,000,000,000,00 KRW 2,000,000,000,00 KRW 3,000,00,000,000,00 KRW 2,000,000,000,00 KRW 2,000,000,00,000,00 KRW 2,5,000,000,000,00 KRW 2,000,00,000,00,000,00,000,000,000,06,06.

According to the above facts, it cannot be said that there has been real value as a collateral in light of the fact that the collateral security was established with respect to the real estate owned by the defendant for the time when the defendant was in common with L, and that the real value as collateral was sold to the auction procedure. Next, even if each claim for the return of the lease deposit held by L, which is the wife of the defendant, or the real estate held by P, cannot be evaluated as the defendant's ability to repay the lease deposit. Even if each claim for the return of the lease deposit held by L is assessed as the defendant's ability to repay the lease deposit, the claim for the return of the lease deposit against the above N apartment was borrowed as collateral as at the time when the defendant borrowed 100 million won, and the claim for the return of the lease deposit against 0 is not worth considering the debtor's financial ability and the auction situation of the leased house, it can be seen that the defendant did not have any ability to repay the loan deposit at the time when the defendant was in operation. This part of the argument is rejected.

2. The assertion that loans are not borrowed from G;

Although the Defendant and his defense counsel asserted to the effect that the crime of fraud against GIST is not established since he borrowed from G, not from other persons, but borrowed from G. However, the Defendant’s statement to G as stated in the judgment, and the Defendant received KRW 100 million, as stated in G, is merely a document prepared in the name of S, which was written in the name of G’s household-level, for convenience, as well as a document prepared in the name of S, in which the contractual party to a contract for a loan for cash consumption was a S, separate from the fact that it is a party to a contract for a loan for cash consumption, the Defendant and his defense counsel cannot be said

In addition, the defendant and his defense counsel argued to the effect that there is no criminal intent to commit fraud because the advisory fee claim that was not received by the victim's loan advisory service is merely a claim for the victim's loan advisory service, etc., and thus, the defendant and his defense counsel argued to the effect that there is no criminal intent to commit fraud. Thus, this part of the claim is not accepted, since Article 7 of the above advisory contract is also recognized as a fact that the advisory service contract was concluded on April 10, 200 between Te and D Co., Ltd. operated by G as the representative director and the defendant who is the representative director of D Co., Ltd. (the investigation record 43 pages), on the other hand, the above advisory service cannot demand additional money under the pretext of expenses, fees, and any other terms except for the loan or the advisory service fee related to investment attraction, and it is also recognized that the contract was concluded to pay the advisory fee after the deposit is completed. Even if the claim under the above advisory contract belongs to the defendant's individual.

It is inevitable to sentence the defendant on the ground that the crime of this case is committed in the first head of the judgment and the concurrent crime of the latter part of Article 37 of the Criminal Act.

The punishment shall be determined by taking into account all the sentencing conditions indicated in pleadings, such as the fact that the equity in the case of a joint trial is to be considered, that the sum of interest 24,20,000 won is paid over 13 times a year and more, that the company in which the defendant was operated is expected to conclude an advisory contract with the company in which the victim was operated and that the defendant seems to have performed certain duties, and the age, academic background and career of the defendant, relationship with the victim, and circumstances

Judges Park Jong-chul