A. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

B. Violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission

1. A;

2. B

Both parties

Isopon (prosecutions) and Kim Sung-hwan (Trial)

Attorney BD (the national election for Defendant A)

Law Firm BE, Attorney BF in charge (Defendant B)

Seoul Central District Court Decision 2013Gohap964 Decided March 6, 2014

May 30, 2014

All the judgment below against the Defendants is reversed.

Defendants shall be punished by imprisonment for one year and six months.

1. Summary of grounds for appeal;

A. Defendant A

1) Legal principles

The crime of fraud against several victims is not a single crime, even if the criminal intent is the same and the method of the crime is the same, it is not a single comprehensive crime, but a single crime is established for each victim. The crime of fraud committed by Defendant A is only a concurrent crime under the Criminal Act, and it cannot be subject to the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, which regulates cases where the amount of damage in fraud exceeds 50

2) Unreasonable sentencing

The punishment sentenced by the court below to Defendant A (one year and six months of imprisonment) is too unreasonable.

B. Defendant B (unfair form of punishment)

The punishment sentenced by the court below against Defendant B (one year and six months of imprisonment) is too unreasonable.

(c) An inspection;

Each sentence sentenced by the court below to the defendants is too unaffortable.

2. Determination

A. As to Defendant A’s assertion of misapprehension of the legal doctrine

Where a person who habitually commits multiple crimes repeatedly, it is not to regard each crime as a separate crime and be punished as a single crime that covers all of them, but rather to constitute a single crime that is a habitual offender (see, e.g., Supreme Court Decision 2011Do769, Apr. 14, 201).

Considering that Defendant A (hereinafter referred to as “Defendant A”)’s criminal act, the number and frequency of victims and the number of crimes, the period of the crime, and the fact that the instant fraud crime is planned and systematically repeated as indicated in the judgment of the court below, etc., the Defendant’s commission of fraud is recognized ( examining the facts charged in the judgment of the court below and the application of the statutes, it is clear that the court below recognized the Defendant’s commission of fraud. However, the summary of the evidence is omitted, and it is added as seen later).

Therefore, the judgment of the court below that recognized the defendant's fraud as a single comprehensive crime of habitual fraud and added up the amount of damage to the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) is justified, and the defendant's assertion

B. Ex officio determination

1) Defendant B-related

We examine the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) to the victim BG in the part of the judgment of the court below ex officio.

The nature of fraud under the Criminal Act is even in cases where a punishment is aggravated under Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, and there is no explicit provision that Article 354 of the Criminal Act shall be maintained as it is and the same Act shall be excluded from the application of Article 354 of the same Act. Therefore, the above Article 3(1) shall also apply to the crime of violation of Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes. Accordingly, in accordance with Articles 354 and 328 of the Criminal Act,

According to the records, since the fact that the victim BG is a woman of the defendant is recognized, this part of the facts charged can be prosecuted only when the victim's complaint is filed pursuant to Articles 354 and 328 (2) of the Criminal Act concerning relative precedent. However, there is no evidence to acknowledge that the victim filed a complaint against the defendant.

Therefore, since the prosecution procedure on this part is invalid because it constitutes a violation of the provisions of the law, the court below erred in finding the defendant guilty under Article 327 subparagraph 2 of the Criminal Procedure Act, which includes this part, and since this part and the remainder of the guilty part against the defendant are concurrent crimes under the former part of Article 37 of the Criminal Procedure Act, the part of the court below's judgment on the defendant cannot be maintained any longer.

2) Defendants related thereto

We examine the evidence admitted by the court below ex officio and examined by the court below. A suspect interrogation protocol without the suspect's signature and seal is inadmissible even if the defendants consented to the examination as evidence (see, e.g., Supreme Court Decision 81Do1370, Oct. 27, 1981).

The court below adopted and examined "aF a copy of the protocol of interrogation of the police suspect" as evidence, and stated it as a summary of the evidence, and based on the judgment of conviction against the Defendants. However, AF refused to affix seal and seal to the police investigation and then there is no signature or seal of AF in the protocol of interrogation of the police suspect against AF (Evidence Nos. 156, 158, 3294-3295, 3346-367 of the evidence record No. 8).

Ultimately, the judgment of the court below against the Defendants is erroneous in finding the Defendants guilty on the ground that the Defendants adopted and examined “a copy of the protocol of interrogation of the police suspect against AF,” which has no admissibility of evidence due to the lack of signature and seal, as evidence, and recorded the summary of the evidence in the summary

3. Conclusion

Therefore, the judgment of the court below against the defendants is reversed in accordance with Article 364 (2) of the Criminal Procedure Act without examining the defendants and the prosecutor's allegation of unfair sentencing, and the judgment of the court below against the defendants is reversed, and it is again decided as follows.

【Discretionary Judgment】

Criminal facts and summary of evidence

The summary of the facts of the crime and evidence recognized by this court is as follows: (a) the last sentence of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against Defendant B is changed to the part of the facts of the judgment below; and (b) the summary of the evidence is "1. Habituality of the Defendants' holding: Habituality of the Defendants' holding: the number and frequency of each crime, the number of victims and the number of crimes, the period of the crime, and the period of the fraud of this case are planned and organizedly repeated; and (b) the defendants' conviction recognition is added to each corresponding column of the judgment of the court below except for deletion of "a copy of the protocol of suspect examination of police officers against AF" as stated in each corresponding column of the

Notwithstanding the changed part of the facts constituting an offense, the Defendant: (a) conspired with the above H and subordinate recruiters, and habitually deceivings the victim as above; and (b) received KRW 100 million from the victim to November 16, 2012 under the same method as the entry in subparagraph (b) of attached Table 1-B (Provided, That the same shall not apply to cases where 231, 240250, 295, 296, 301, 305, 335, 468, and 495 of the victim BGs in the aggregate amount of KRW 525,371,36,204, total amount of KRW 516,366,204 from the victim to November 16, 2012; and (b) received the total amount of KRW 1361,54,65,000 from the victim to the total amount of KRW 525,516,364,564,00.

Application of Statutes

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

The Defendants: Articles 6(1) and 3 of the Act on the Regulation of Conducting Fund-Raising Business without Permission; Article 30 of the Criminal Act (a comprehensive penalty of imprisonment with labor); Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes; Articles 351, 347(1), and 30 of the Criminal Act (a comprehensive penalty of habitual fraud)

1. Aggravation for concurrent crimes;

Defendants: Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act (within the scope of adding up the long-term punishment of two crimes in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) with heavier punishment)

1. Discretionary mitigation;

Defendants: Articles 53 and 55(1)3 of the Criminal Act (The following conditions of sentencing)

Reasons for sentencing

1. Sentencing Defendant A

① Defendant A (hereinafter “Defendant”) had a criminal record of the same kind, which was punished by fraud or act of fund-raising without permission, and was sentenced to two times among them. ② The crime of this case is a systematic and systematic crime against many unspecified victims, which amounts to KRW 466,809,00,000, and the victim reaches KRW 158,000. ③ The Defendant established H et al., using a Dormant Corporation introduced through one’s own person to commit the crime of this case, and registered his wife as an auditor of the corporation of this case. Since June 13, 2012, H played a certain role in the crime of this case. ④ The amount of the Defendant’s allowance received was also KRW 340,000,000,000,000,000,000,000,000,000,000,000,000,000 won, and the Defendant’s allowance also did not recover from the damage.

On the other hand, the fact that the defendant recognized all of the crimes of this case and reflecteds, ② The crime of this case appears to have been planned and implemented by H under the lead of H, and most of the profits were to have been held by H; ③ In the case of some investors, the profit from the investment fund was paid considerably, and the victims were included in the amount of damage after the return of the existing investment fund, and thus, it seems that the actual amount of damage is not less than the amount of damage stated in the crime. ④ The defendant actively made efforts to recover from the damage, such as partial repayment of the damage to the victims, etc. (the sum of the amount of damage suffered by the victims agreed until the original trial: 1.87459 million won, the total amount of damage suffered by the additional victims agreed at the trial: 445 million won, the total amount of damage suffered by the additional victims agreed at the

In addition, considering the Defendant’s age, character and conduct, environment, circumstances of each of the instant crimes, circumstances after the commission of the Criminal Procedure Act, etc. comprehensively taking into account various sentencing conditions, such as the Defendant’s age, character and conduct, and environment, and the scope of recommended sentence according to the sentencing guidelines of the Supreme Court Sentencing Committee, and considering the circumstances that the Defendant agreed additionally with certain victims, the lower court’s punishment as a result is too heavy or too weak, and thus, should be sentenced to

2. Sentencing Defendant B

① Defendant B (hereinafter in this paragraph “Defendant”) has the history of being punished for a crime of fraud (in particular, the Defendant was punished for a crime of this case committed on June 25, 2009 by committing the crime of this case by “BH operator, who was an operator of the Suwon District Court, and who received money without the intent or ability to return the profit even after having received the money from the victim’s investment.” The amount of damage to the crime of this case is 4.31 billion won, ② the amount of damage to the crime of fraud reaches 4.311 billion won, the victim is up to 135 persons (excluding the portion of dismissal of prosecution), ③ the Defendant was working as the director of the Suwon District Court as the director of the corporation I, and ③ the Defendant was acting as a certain role in the crime of this case committed by H, such as managing and operating the branch of the Suwon District Court and the branch of the Gangnam District Court, ④ most damage caused by the crime of this case appears to have not been recovered, and ⑤ the possibility of recovery of the damage in the future is 400 million won.

On the other hand, the following facts are as follows: (a) the Defendant recognized the entire crime of this case; (b) the Defendant committed the crime of this case: (c) the Defendant appears to have been led and planned by H, and most of the profits therefrom appears to have been held by H; (c) some investors paid a considerable portion of the profits from the investment fund; and (d) the victims’ return of the existing investment fund to the victims included in the amount of damage; and (d) the Defendant expressed in the lower court the intent that the victim BC, P, BB, and BI would not be punished against the Defendant; and (e) the Defendant made efforts to recover damage, such as expressing his intent that the victim BJ, BK, BL, BN, and B were not punished against the Defendant.

In addition, when comprehensively taking into account the Defendant’s age, character and conduct, environment, the circumstances following each of the instant crimes, and the sentencing guidelines of the Sentencing Committee, etc., the lower court’s punishment is somewhat minor, but considering the circumstances in which the Defendant agreed in addition to certain victims, the lower court’s punishment is too heavy or too weak, and thus, the lower court’s punishment is to be imposed.

Public Prosecution Rejection Parts

Of the facts charged in the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), Defendant B (hereinafter referred to as “Defendant”) was guilty of the fraud against the victim BG among the facts charged in the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) of this case (hereinafter referred to as “Defendant”), 231, 240, 250, 295, 296, 301, 335, 468, 495, total amount of damages, and 60 million won). As seen above, Defendant BG is related to the victim under Article 328(2) of the Criminal Act. Since there is no evidence to acknowledge that BG filed a complaint against the Defendant, this part of the indictment is invalid because the prosecution procedure under Article 327 subparag. 2 of the Criminal Procedure Act becomes invalid in violation of the provisions of the Act, it shall not be dismissed, but as long as the remainder of the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) is charged as a single crime.

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

Judges Lee Jin-jin

Judges Park Jong-chul

Judge Kang Young-hun

1. Scope of punishment: Imprisonment with prison labor for not less than one year and six months and not more than six months;

2. Scope of recommendations concerning fraud: Imprisonment with prison labor for not less than two years but not more than five years;

[Types of Crimes] Fraudulent Offenses, Systemal Frauds, 50 million won to 5 billion won

[Special Mitigation Measures] Simple Doctrine, the occurrence of a crime or the expansion of damage to the victim is reasonably responsible;

[Special Aggravation] Where a crime was committed against an unspecified or large number of unspecified victims or repeatedly during a considerable period of time.

[Determination of the Recommendation Area] Reduction Area

3. Determination of sentence: Imprisonment with prison labor for one and half years; and

2. The scope of punishment: Imprisonment with prison labor for not less than one year and six months and not more than six months;

2. Scope of recommendations concerning fraud: Imprisonment with prison labor for not less than two years but not more than five years;

[Types of Crimes] Fraudulent Offenses, Systemal Frauds, 50 million won to 5 billion won

[Special Mitigation Measures] Simple Doctrine, the occurrence of a crime or the expansion of damage to the victim is reasonably responsible;

[Special Aggravation] Where a crime was committed against an unspecified or large number of unspecified victims or repeatedly during a considerable period of time.

[Determination of the Recommendation Area] Reduction Area

3. Determination of sentence: Imprisonment with prison labor for one and half years; and