2016Gohap1253 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

A

Freeboard (prosecution), chip (public trial)

Attorney B,C

January 26, 2018

A defendant shall be punished by imprisonment for two years.

Criminal facts

The defendant is the actual operator of D Co., Ltd., a film producer.

On July 8, 2013, at the above D office located in the building in Gwanak-gu in Seoul Special Metropolitan City, the Defendant: (a) around July 8, 2013, the victim F needed KRW 5 billion to produce the 'motion picture'; (b) 4 billion has already been invested; (c) the investment was made; (d) the investment was to commence the production of motion pictures; (d) the investment was to be used only for the production cost of motion pictures; and (e) the Defendant was to pay the principal and profits by producing motion pictures. However, even if the victim invested KRW 4 billion from other investors because the Defendant did not have received any investment of KRW 1 billion from other investors, the Defendant was not able to start the production of the 'G' film; and (e) the victim was expected to spend part of the amount of the victim's investment as part of the investment funds, and the Defendant was expected to pay the principal and profits to the victim.

As above, on July 8, 2013, the Defendant, by deceiving the victim and deceiving the victim, acquired KRW 500 million in total from the Defendant’s blood bank account (Account Number M) in the name of the Defendant’s wife, and KRW 500 million in total from the account of the National Bank in the name of D Co., Ltd. (Account Number N) on August 5, 2013, and acquired KRW 1 billion in total from the victim.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of witness F,O, and P;

1. A e-mail (as of July 5, 2013), a film production portion investment contract, a detailed liquidity transaction investigation, an additional investment contract for film production portion, a contract for monetary loan, a notarial deed for the attached investment contract for film production, a photograph of Defendant’s management organization’s signboards, film “G” production planning, film “G” production planning, a letter of agreement for film production (as of October 14, 2014), each e-mail (as of June 5, 2014), each e-mail (as of December 2, 2013; as of March 29, 2014; as of April 4, 2014; as of April 10, 2014; as of April 10, 2014; as well as the details of deposit transactions; as the details of account settlement; as well as the details of account settlement; as the details of account settlement; as well as the details of account settlement;

1. Each investigation report (Submission of data on the investigation of the RR call for reference, and the details of execution of one billion won by the suspect);

Application of Statutes

1. Article applicable to criminal facts;

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347 (1) of the Criminal Act

1. Discretionary mitigation;

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

Grounds for conviction

1. Summary of the defendant's assertion

In the process of receiving an investment of KRW 1 billion from the victim in order to produce a film, the defendant does not have to say that 4 billion of the film production cost is already secured or that 5 billion of the film production cost is to be paid to the victim as principal and profit, and all of the 1 billion won invested by the victim was used for producing the film, and the defendant also has invested more than 1.1 billion of the film production in the film production and has produced the film by securing other investors, so the defendant does not receive an investment money from the victim with the intent to obtain it.

2. Relevant legal principles

The deception as a requirement for fraud refers to all affirmative and passive acts that have to observe each other in a widely related property transaction, and therefore, it is sufficient to say that the deception does not necessarily require false indication as to the important part of a juristic act, and that it is the basis for judgment in order for an actor to take a disposition of property which he wishes to take by mistake. Thus, in a case where it is recognized that a transaction would not take place if the other party to a transaction would have been notified of certain circumstances, a person who receives property has a duty to notify the other party of such circumstances in advance in accordance with the principle of trust and good faith. Nevertheless, failure to notify the other party of such circumstances despite the fact that the transaction would have been notified, thereby deceiving the other party, thereby constituting fraud (see, e.g., Supreme Court Decision 2003Do7828, Apr. 9, 2004).

3. Determination

A. Comprehensively taking account of the various evidence duly adopted and examined by this Court, the following facts and circumstances are revealed.

1) The defendant's process of attracting investment

The Defendant decided to produce “G” (hereinafter referred to as “the film of this case”) that inhabited in Dokdo Island, and supervised the film supervisor who works in the United States on January 2013, 2013, and employed P as a producer around March 2013. The Defendant, together with the Defendant, attempted to make an investment from January 2013, but did not receive any particular result, recommended the Defendant to make an investment in the production of the film of this case to the victim known to P and P around June 2013, while the Defendant did not receive any benefit, and the Defendant was also aware of the victim by obtaining the Defendant.

2) relating to securing an investment cost of KRW 4 billion;

A) Around July 2013, the Defendant and the victim made a statement to the effect that “a contract for investment in the production of a film” (hereinafter referred to as “the investment contract in this case”) was concluded on or around July 2013, the Defendant and the victim stated that “the Defendant guarantees that the execution of the investment in the remaining four billion won out of the net production cost of 5 billion won is scheduled as of July 2013 (Evidence 22 pages),” and the victim stated to the effect that “the Defendant believed that an investment in the production of the film would be made immediately if the Defendant made an investment in the production of the film in this case was made, and that “the Defendant was able to secure the amount of 4 billion won as at the time of the examination of the witness,” and that “the Defendant did not make a statement to the effect that an investment in the production of the film in this case would have been made as at the time of the examination of the witness.”

B) The total production cost of the instant film was KRW 5 billion for the first time, but the scenarios were modified and increased to KRW 7 billion. As such, as the production size has increased, the amount of KRW 1 billion invested by the injured party could only be limited to the amount of prior work (Preparation for film photographing up to the stage prior to the stage of the Cjke), and at least KRW 3 billion was required to move back to the Cjke phase (the stage of commencing film photographing).

C) The Defendant asserts to the effect that the instant investment contract was prepared retroactively after receiving KRW 1 billion from the victim, and the victim made a statement to the effect that “In this Court, the victim shall be memoryed by the contract date of July 8, 2013, which was signed directly by the instant investment contract and remitted KRW 500 million to Japan (the 16th page of the F Examination).” As long as the victim has decided to make an investment to believe that the investment amount of KRW 4 billion has been secured, the relationship between remittance of KRW 1 billion and the preparation of the instant investment contract does not have an important meaning.

(iii)the place where the investment was made.

A) After receiving an investment of KRW 1 billion from the victim, the Defendant was engaged in pre-management work, such as employing a film production team and revising scenarios. Of KRW 1 billion, approximately KRW 340,000,000,000, such as production books, distribution books, art teams, etc. required for pre-management work, and scenario writerss were paid to the Plaintiff.

B) Meanwhile, the Defendant transferred part of the above KRW 1 billion to the Agricultural Cooperative account under his own name, and used the J Public Relations Cost (the Defendant also recognized that he did not receive investment in the production of the instant film from T), the office rent of the Company D, the office rent of the Defendant, and the printing cost of the “U” book published by the Defendant, and there was no fact that the Defendant informed or sought understanding of the payment plan of the said investment money to the victim in advance.

C) The instant investment contract defines the amount necessary for planning, production, and completion of the instant film as the net production cost, while specifying the total production cost as the total production cost, the total production cost means the amount including net production cost, P&A (the amount required for advertising and public relations in connection with the opening and distribution of the instant film, such as printing cost, deliberation cost, advertising and promotional material production cost). It is divided into net production cost and total production cost (Article 3). In addition, the net production cost of the instant film is set at 5 billion won, and the victim’s investment ratio is set at 20 billion won, and the victim’s investment ratio is recognized as 20 billion won, and the investment cost is set at 1 billion won cannot be used for any purpose other than the payment for the instant film production cost (Article 4)

B. In light of the above facts, the victim did not invest in the entire V business promoted by the defendant, but intends to obtain profits by investing in the production of the film of this case, and the defendant received investment funds without properly notifying the victim of the progress of the production of the film of this case and of securing other investment funds, so it can be recognized that there was a criminal intent to acquire the money at least. (However, although the defendant stated that "the defendant's possession of the victim and the planned production plan will be carried by capital, such as H and I" (Evidence No. 51 pages of the evidence record), the above production plan is merely a "plan that has a high possibility of changing the distribution of the money," and there is no evidence to acknowledge that the defendant and the victim said that the distribution of the money was confirmed, it cannot be deemed that the defendant accused the victim with respect to the production of the money contributed."

Reasons for sentencing

1. Scope of recommendations according to the sentencing criteria;

[Determination of Punishment] General Fraud. Type 3 (at least 500 million won, less than 5 billion won)

[Special Doctrines] Reductions: Where a person commits a deceptive act with willful negligence;

[Scope of Recommendation] Imprisonment of 1 year and 6 months to 4 years (Mitigation)

2. The instant crime committed by the Defendant, the representative of the film producer, has received an investment of KRW 1 billion by deceiving the Defendant as if most of the investments would have been secured in the process of attracting investment in the production of Dokdo-related motion pictures. The instant motion picture is not made up of the date of subsequent investment, and thus, it is inevitable to punish the Defendant for a considerable period of time as it does not completely recover damage therefrom.

However, the Defendant initially produced motion pictures and proposed to attract investment or raise funds, resulting in the instant crime. The Defendant appears to have invested its funds for the production of the instant motion pictures prior to being invested in the said KRW 1 billion, and the Defendant has been endeavored to recognize the said KRW 1 billion as the borrowed money and to repay the said amount. There is no criminal record.

In addition to these various circumstances, the age, character, character and environment of the defendant, motive and consequence of the crime, damage

The punishment shall be determined as ordered within the scope of the recommended sentencing guidelines in consideration of the various circumstances shown in the records and pleadings, such as the relationship with the person, the circumstances after the crime, etc.

The presiding judge and judges;

Judges Sung Jae-in

Judges' Index

1) In addition, the Defendant’s specific deception that the facts charged stated to the effect that it was decided to contribute a well-known good by “H and I.”

Although the defendant is included in the following, there is evidence to support that the defendant deceivings the victim with respect to the raising of contribution.

Therefore, this part is excluded from criminal facts.