(영문) 부산지방법원 2009.7.23.선고 2009노1912 판결

The part of the judgment of the court below against Defendant A1 is reversed. Defendant A1 is punished by imprisonment with prison labor for one year. Defendant A2’s appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. Case of mistake of facts (as to Fraud)

Defendant A2, who became aware of the entry into the Republic of Korea at the time of entry into the Republic of Korea for employment, did not withdraw the money by Defendant A1 upon C1’s request, and the Defendants did not commit the instant crime while working as a member of the telephone fraud group at the time. However, the lower court erred by misapprehending the fact that all of the instant facts charged was guilty, thereby adversely affecting the conclusion of the judgment.

B. Unreasonable sentencing

Considering that the amount actually withdrawn by Defendant A1 is limited to KRW 6 million, that the Defendants did not obtain any pecuniary profit in return for withdrawing the amount, and that Defendant A1 did not withdraw the money upon the request of Defendant A2 known to the upper party A2 who was in a relationship with the former and the latter, Defendant A1 did not withdraw the money, the lower court’s sentencing (one year and six months of imprisonment) against the Defendants is unreasonable.

2. Determination

A. Judgment on the assertion of mistake of facts (as to the fraud)

In light of the following circumstances revealed through evidence duly admitted and investigated by the lower court: ① the Defendants stated that they were aware of the fact that they were not able to obtain money from the Defendant at the time of the crime of this case and that they were not able to obtain money from the Defendant at the time of the crime of this case, i.e., the Defendants were aware of the fact that they were not able to obtain money from the Defendant at the time of the crime of this case, and that they were not able to obtain money from the Defendant at the time of the crime of this case, and that they were not able to obtain money from the Defendant at the time of the crime of this case, i.e., the Defendant was able to obtain money from the Defendant at the time of the crime of this case, i.e., the Defendant was able to obtain money from the Defendant at the time of the crime of this case, i.e., the Defendant was able to obtain money from the Defendant at the time of the crime of this case, i.e., the Defendant was able to obtain money from the Defendant 1 by fraud.

B. Determination on the assertion of unfair sentencing

(1) As to Defendant A1

In light of the fact that the amount of damage caused by the instant crime was not recovered, and that the Defendant directly withdraws cash and delivered it to C1, it is not necessary to strictly punish the Defendant in light of the fact that the period of illegal stay in the Republic of Korea is shorter than that of the Defendant A2. However, the Defendant’s participation in the instant fraudulent act is relatively minor compared to the Defendant A2, such as simple cash withdrawal role, and the Defendant does not have any economic benefits derived from the instant fraudulent act; the Defendant appears to have faithfully lived without any criminal history since entering the Republic of Korea; the Defendant’s entry into the Republic of Korea, without any particular criminal history prior to the instant fraudulent act; the Defendant is in depth of his mistake; and other various circumstances, such as the background of the instant crime; the circumstances before and after the instant crime; the degree of the crime committed; the Defendant’s criminal history; the Defendant’s age, gender, character, and family environment, etc., the lower court’s sentencing against the Defendant is somewhat inappropriate, and thus, the Defendant’s assertion of unfair sentencing is justified.

(2) As to Defendant A2

In light of the intelligence, systematic, and planned nature of the crime by deceiving many unspecified victims of the fraud of this case, the crime of this case is very poor and there is a serious need for strict punishment. The defendant has been in charge of collecting the amount of cash withdrawal from CI, etc. from before the crime of this case, and the degree of the defendant's participation in the crime of this case cannot be said to be less easily. The damage amount caused by the fraud of this case is not only small but also has not been recovered from the judgment of the court below to the point of view of the fact that the damage amount caused by the fraud of this case is not recovered from the judgment of the court below, and the circumstance of the crime of this case, the degree of the crime of this case before and after the crime of this case, the defendant's age before and after the crime of this case, and the circumstances of the defendant's environment, the defendant's character and behavior, etc. are not acknowledged in light of the records of unfair sentencing.

3. Conclusion

Therefore, since Defendant A1’s appeal is well-grounded, pursuant to Article 364(6) of the Criminal Procedure Act, the part of the judgment below against Defendant A1 among the judgment below is reversed, and it is again decided as follows. Defendant A2’s appeal is without merit, and it is dismissed pursuant to Article 364(4) of the Criminal Procedure Act.

The summary of the facts constituting an offense and evidence (defendant A1) recognized by the court against Defendant A1 and the summary of the evidence are the same as the description of each corresponding section of the judgment below against Defendant A1. Thus, it is cited as it is in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Relevant Article of the Act and the choice of punishment for the crime;

Articles 347(1) and 30 of the Criminal Act (Fraud, Selection of Imprisonment), Article 94 Subparag. 5 and Article 17(1) of the Immigration Control Act (Violation of the Immigration Control Act and Selection of Imprisonment)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (within the scope of the sum of the long-term punishments of the above two crimes, the punishment shall be aggravated by concurrent crimes prescribed in the heavier fraud)

It is so decided as per Disposition for the above reasons.