Defendant

Defendant and Prosecutor

Orsaly, Kim Han-hu, Kim Jong-chul, Kim Jong-dae, Lee Jong-dae, Lee Jong-ho, Lee Jong-ho, Lee Jong-ho, the largest number of his/her indictments, Kim Jong-chul (public trial)

Attorney Jin-deok

1. Jeonju District Court Decision 2018Dahap181 decided December 14, 2018; 2. The Jeonju District Court Decision 2018Da376, 2018 Godandan801 (Joint) decided January 11, 2019; 2. The Jeonju District Court Decision 2018 Godan37, 2018 Godan80 (Joint), 2018 Godan832 (Joint); 2018 Godan111 (Joint); 2018 Godan1258 (Joint); 2018 Godan1381 (Joint); 2018 Godan1429 (Joint); 2018 Godan1632 (Consolidated); 3.2018 Godan1632 (Consolidated); 2018 Goju District Court Decision 2013Mo2848 (Joint) decided August 28, 2012 (Joint).

The convictions in the first and second judgment and the third judgment of the court below shall be reversed.

The punishment of the accused shall be eight years of imprisonment.

Of the facts charged in the instant case, each of the facts charged in Articles 2018 Highest 1111 cases is acquitted.

The prosecutor's appeal on the acquittal portion of the judgment of the court below is dismissed.

1. Summary of grounds for appeal;

A. Defendant

(1) misunderstanding of facts

A) The part of the first instance judgment (victim non-indicted 4 related)

In the facts charged, there is no deception of the victim as stated in the facts charged, and the victim was aware of the fact that the defendant was using bonds with a high interest rate, by soliciting another person to bear interest at a high interest rate, and by lending money from the victim, and all of the money borrowed from the victim was repaid. As such, the defendant is not a deception of the victim, and the defendant was not a defrauded of the money as stated in the judgment. In addition, in the course of borrowing money by the defendant, the proxy form with the consent of the victim was prepared, and the proxy form in the name of the victim was not forged without authority.

B) The second instance judgment

(1) The part concerning the fraud of Paragraph (1) of the crime of the 2018 Highest 111 (victim Nonindicted 5)

The defendant did not deceiving the victim, and received money from the victim as stated in the facts charged, but this is the defendant's investment or borrowing from the victim non-indicted 8.

(2) The part concerning the violation of trust under Paragraph (3) of the criminal facts of the judgment [the part concerning Nonindicted Co. 2 of the victim]

The Defendant received money from Nonindicted 9 in connection with the ○ bus, and tried to terminate the mortgage established on the bus with the said money, but failed to cancel the mortgage because he did not receive money from Nonindicted 9. Thus, there is no intention of breach of trust on the part of the Defendant.

In relation to the △△△ bus (hereinafter “instant bus”), the Defendant: (a) transferred the instant bus with Nonindicted 10 believed that Nonindicted 10 would repay all the debt incurred on the bus; and (b) thus, there was no intention to commit a breach of trust against the Defendant.

(3) [3] obstruction of another’s exercise of rights (related to Nonindicted 7 Depository)

The fact that the defendant, a limited liability company, created a mortgage on the ○○ bus owned by Nonindicted 11 as a creditor, is recognized. However, since the defendant believed that he would repay all the obligations set forth by Nonindicted 9 at the time of the transfer of the bus to Nonindicted 9 and transferred the bus to Nonindicted 9, there was no intention that the defendant would interfere with the exercise of the rights of the victim.

(4) The part concerning the fraud of paragraphs (1) and (2) of the facts constituting the crime in [2018 Highest 1429]

Since the defendant recommended investment in the company operated by the defendant to the victim and the victim invested accordingly, there is no deception of the defendant.

2) Unreasonable sentencing

The sentencing of the first and second original judgment (two years of imprisonment, ten years of imprisonment and fine of ten million won) is too unreasonable.

B. Prosecutor (Obstruction of one’s right in the judgment of the court below)

(1) misunderstanding of facts

In light of the fact that Nonindicted 4 had a seal imprint and a certificate of personal seal impression issued by the Defendant, and there was no fact that the Defendant paid the installment of the vehicle to the Defendant before November 2, 2017, and Nonindicted 4 did not have paid the installment, it cannot be deemed that the Defendant sold the vehicle to Nonindicted 4. In addition, if Nonindicted 4 operated the vehicle by having the ownership transferred from the Defendant before Nonindicted 4 entrusted the vehicle to Nonindicted 4 as a security, it is sufficient to provide 10 million won to Nonindicted 12 as the owner in the process of borrowing the vehicle from Nonindicted 4 as a joint and several surety, even though it is sufficient to provide Nonindicted 4 with the vehicle as security. This is more meaningful to view that the Defendant provided the vehicle to Nonindicted 2 as the owner of the vehicle to use the vehicle as a security, and rather, it is more meaningful to deem that the Defendant provided the vehicle to Nonindicted 4 as a joint and several surety in the process of borrowing the vehicle to Nonindicted 4 as a collateral, and that the Defendant provided the vehicle to Nonindicted 2 as the owner of the vehicle as a security.

2) Unreasonable sentencing

The sentencing (two years of imprisonment) of the judgment of the court of the third instance is too uncomfortable and unfair.

2. Ex officio determination

The grounds for appeal by the defendant and prosecutor shall be examined ex officio prior to judgment.

(a) Consolidated hearings;

The defendant and the prosecutor filed an appeal against the defendant against the judgment below, and this court tried to concurrently examine the above appeal cases. All the crimes that the judgment below found the defendant guilty are concurrent crimes provided for in the former part of Article 37 of the Criminal Act, and a single sentence should be imposed in accordance with Article 38(1) of the Criminal Act. In this regard, the above judgment of the court below cannot be maintained any more.

B. Contributory of legal principles [the misunderstanding and exercising of each tax invoice under each subparagraph of paragraphs (2) and (3) of the 2018 Highest 111 case]

1) Summary of the facts charged

가) 피고인은 2017. 4. 5. ◁◁시 (주소 생략)에 있는 피고인의 사무실에서 컴퓨터를 이용하여 □□대학과 유한회사 ◇◇관광이 거래한 내역의 전자세금계산서를 1장 출력한 후 위 ◇◇관광으로 기재되어 있는 공급자란에 ‘유한회사 ☆☆☆☆여행사’라는 문서를 붙여 전체를 다시 복사하는 방법으로 권리의무에 관한 사문서인 □□대학 명의의 ‘전자세금계산서’ 1장을 위조하고, 같은 날 위 사무실에서 그 위조 사실을 모르는 공소외 13에게 교부하여 이를 행사하였다.

B) On the same day, the Defendant printed out one copy of the electronic tax invoice on the details traded by Nonindicted Co. 14 and △△△ Tourism, using the computer in the above office, and then forged one copy of the “electronic tax invoice” in the name of Nonindicted Co. 14, which is a private document on the rights and obligations, in the manner of reproducing the entire document by attaching the document “○○○ Tourism Co., Ltd.” to the supplier column indicated as △△△ Tourism, and exercised it by delivering it to Nonindicted Co. 13 who is aware of the forgery at the above office

2) Determination

A) The term “document forgery” refers to an unauthorized person who prepares a document in the name of another person. A tax invoice is to be prepared and delivered by a value-added tax taxable entity when it supplies goods or services (Article 32(1) of the Value-Added Tax Act), and the person who prepares the tax invoice is deemed to be a supplier that supplies goods or services. The person who prepares the tax invoice is merely a voluntary entry, not a requisite entry. (Article 67(2) of the Enforcement Decree of the Value-Added Tax Act does not affect the validity of the tax invoice even if the trade name, name, and address of the person who receives the tax invoice are not entered, and the consent or cooperation of the supplier is not required in preparing the tax invoice. In light of the above, the person who receives the tax invoice is merely a part of the content of the document, but is not a person who prepares the tax invoice, and it is not a person who receives the tax invoice, and it cannot be deemed that the crime of forging a private document is established in relation to the person (see Supreme Court Decision 2007Do16969, Mar. 15, 2007).

B) Examining the instant case in light of the aforementioned legal principles, inasmuch as the Defendant, as the actual operator of the △△△ Group, prepared the tax invoice as stated in this part of the facts charged, he voluntarily stated in the column of the recipient of the said tax invoice as “Seong University” and “Nonindicted 14 Co., Ltd.,” and even if he used such a tax invoice, it cannot be deemed as having prepared a document by gathering another’s name without the authority to prepare it, and thus, it cannot be deemed as having forged and used each tax invoice, which is a private document under the name of the

Therefore, since the facts charged against the defendant as to the forgery of each private document and the uttering of each private document constitute a crime, and thus, should have been pronounced not guilty in accordance with the former part of Article 325 of the Criminal Procedure Act, the court below erred by misapprehending the legal principles, thereby finding the defendant guilty as to the above facts charged, the court below is no longer erroneous by misapprehending the legal principles, which affected the conclusion of the judgment,

However, even if there are such reasons for ex officio reversal, each argument of mistake between the defendant and the prosecutor is still subject to the judgment of this court.

3. Judgment on the defendant's assertion of mistake of facts

A. Judgment of the court of first instance on the argument of the court below (victim non-indicted 4)

In the first instance court’s argument, the Defendant also argued the same, and the first instance court recognized the fact that the Defendant, even though he/she borrowed money from the victim, he/she was aware that he/she would receive benefits by means of resale of tourist buses, even though he/she did not have an intent or ability to pay such benefits, and that he/she would receive benefits by means of resale of tourist buses immediately before or after the auction, and that he/she has forged and used the proxy form in the name of the victim by deceiving the victim of the personal seal impression, seal imprint, identification card, and personal seal impression.

Examining the circumstances in the lower court’s reasoning duly admitted and investigated by the evidence, the lower court’s aforementioned determination is just and acceptable, and contrary to the Defendant’s assertion, the lower court did not err by misapprehending the legal doctrine that affected the conclusion of the judgment. This part of the Defendant’s assertion is without merit.

B. Determination as to the argument on the judgment of the court below

1) The part concerning the fraud of Paragraph (1) of the crime of the 2018 Highest 111 (victim Nonindicted 5)

In full view of the following facts and circumstances recognized by the lower court and the evidence duly adopted and investigated by this court, the Defendant’s assertion that he borrowed money from Nonindicted 5, not from the victim Nonindicted 5, cannot be accepted, and the Defendant could fully recognize the fact that the Defendant deceptioned the victim Nonindicted 5, as indicated in the facts charged, by deceiving the victim Nonindicted 5 as indicated in the facts charged.

A) The victim consistently made a statement to the investigative agency and the lower court that the Defendant lent money to the Defendant.

B) At the trial, Non-Indicted 8 of the victim appeared as a witness in the trial, and testified to the effect that “the defendant asked the victim to lend money to any person or the victim where money is needed to pay money, and the money received from the victim was used by the defendant. In the transaction between the defendant and the victim, he was an intermediary and is not a trade subject.”

C) The Defendant also testified at an investigative agency that “I will comply with the question that I would like to receive KRW 650,000 from the complainant under the pretext of borrowing KRW 60,00,000” (the third party of the evidence record), and that I would like to use the money borrowed from the victim to resolve the company’s operating funds and personal debts, and that I would like to refund money to the victim by lending money to other place than repaying obligations and interest (the third party of the evidence record No. 143,452 pages), and (3) I would like to find that I would like to say that I would like to use the money borrowed from KRW 150,000,000,000,000,000 to the complainant, and that I would like to say that I would like to have 80,000,000 won of money borrowed from KRW 50,000,000,0000,000,000,000).

D) The Defendant asserts that, based on the fact that the victim remitted money to Nonindicted 8’s account and the part of the loan, the Defendant borrowed money to “Nonindicted 8” rather than the Defendant, rather than the Defendant, on the ground that he stated the creditor as “Nonindicted 8,” the creditor, and the Defendant borrowed money from Nonindicted 8, regardless of the victim. However, considering the above statements contrary to the Defendant’s assertion and the following circumstances, Nonindicted 8 appears to have been in a position to perform the work to make the Defendant’s employee under the Defendant’s instructions, and delivered money received from the Defendant’s instructions, as the Defendant demanded the payment of money to the Defendant, the Defendant was given a loan of KRW 650,000,000,000, which is the amount obtained by the Defendant, with the victim’s demand, the Defendant prepared and delivered a loan certificate stating the victim as the creditor, the victim took advantage of the Defendant’s phone at the time of borrowing money to the victim, and the Defendant cannot accept the Defendant’s testimony from the Defendant’s employee with his full repayment of money.”

2) [The part concerning the violation of trust under Paragraph (3) of the criminal facts of the judgment [the part concerning Nonindicted Co. 2 of the victim]

A) Relevant legal principles

In the event a mortgage is established on an automobile, the exchange value of the automobile is included in the mortgage, and even if the mortgager sells an automobile and the owner is different, it does not constitute a crime of breach of trust merely because the mortgager simply sells an automobile which is the object of the mortgage to another person, barring any special circumstance. However, if the debtor who provides and occupies an automobile as a security conducts an act of unreasonably reducing the value of the security, the liability for the crime of breach of trust cannot be exempted (see Supreme Court Decision 2010Do165, Sept. 13, 2012

B) Specific determination

Considering the following facts and circumstances acknowledged by the evidence duly admitted and investigated by the court below in light of the aforementioned legal principles, the defendant, even though he knew that it would be impossible to exercise the victim's right to confluence on the bus of this case, can be deemed to have practically lost the security value of the bus of this case by transferring the bus of this case to another person and delivering it. Accordingly, the court below's judgment on this part is just and there is no error of misapprehending the legal principles or misapprehending the legal principles.

(1) Although the Defendant concluded a loan contract with the victim as collateral, the Defendant disposed of and delivered the instant bus to Nonindicted 15, 10, 9, etc., engaging in smuggling export while the Defendant had not repaid the debt with the instant bus over which the mortgage was established.

(2) The Defendant asked the location of the instant bus to the Defendant in order for the Defendant to exercise the mortgage over the instant bus, and the Defendant sent the instant bus to Nonindicted 16, and notified Nonindicted 16 that the remainder of the bus was stored. However, the location of the instant bus was not confirmed, and the Defendant responded that the location of the instant bus was ambiguous.

(3) The terms and conditions applicable to a loan agreement entered into between the victim and the defendant provide that "the debtor shall not engage in an act of alteration of the current state that may hinder the preservation of the claim of the financial company by destroying, destroying, disposing of the subject matter with respect to the security, or decreasing the value of the security value thereof. The debtor shall immediately notify the financial company of the fact when the debtor engaged in any other act of alteration of the current state, creation of rights for a third party, or transfer to a third party, etc. However, although the defendant alleged that he/she notified the victim of the transfer of the bus at the time of the transfer of the bus of this case (the defendant was asserting that he/she notified the victim of the transfer of the bus of this case, but his/her employees stated that "the bus of this case was requested by the defendant from September 2017 to return the bus of this case, but the bus of this case was not recovered," and that the victim notified the defendant of the return of the security on or around October 2017, the above argument of the defendant cannot be accepted).

(4) The Defendant concluded a contract with Nonindicted 15 for the transfer and takeover of a corporation and transferred the ○○ bus. Article 6 of the above contract states that “The Defendant shall adjust all debts (mortgage and seizure rights) to the entire vehicle to which he belongs.” Meanwhile, the Defendant transferred the △△△△ bus to Nonindicted 10, and Nonindicted 10, in the currency with the investigative agency, purchased the bus from the Defendant at KRW 3.5 million, and Nonindicted 10, in the currency with the investigative agency, stated that “The bus was purchased from the Defendant at KRW 3.5 million, and the Defendant paid the price and delivered the bus, but the Defendant did not cancel the mortgage, which was delivered by the Defendant.” (Evidence record 141-142 pages).

(5) The Defendant discontinued the repayment of loans to the victim, and according to the police investigation report, the location of the bus of this case cannot be identified at all (Evidence No. 235-236 pages). Ultimately, the victim is in a situation in which the mortgage cannot be executed on the bus of this case. Thus, it is reasonable to deem that the Defendant’s act of such disposal has a substantial loss of the security value.

3) [Interference with another’s exercise of rights (related to Nonindicted Party 7’s safe)]

A) Relevant legal principles

The crime of obstruction of another’s exercise of right under Article 323 of the Criminal Act is established by interfering with another’s exercise of right by taking, concealing, or destroying his/her own property, etc. which is the object of another’s possession or right. Here, “cambing” refers to impossible or considerably difficult conditions to detect the location of one’s own property, etc. which is the object of another’s possession or right. If a situation is likely to interfere with the exercise of right, the crime of obstruction of exercise of right is established and the exercise of right is not required to be interfered with (see Supreme Court Decision 2017Do230, May 17, 2017, etc.

B) Specific determination

According to the evidence duly adopted and examined by the lower court, Nonindicted 11, who was operated by the Defendant, was granted a loan for corporate funds from the victim on October 4, 2016, and was established as a collateral on the ○○ bus (bus number omitted), and the mortgage creation contract includes the following: “The founder shall not perform any act affecting the preservation of the right to collateral, such as transfer of ownership, creation of various rights, such as mortgage and lease, or modification of registration, with respect to the mortgaged items without the obligee’s prior consent; and the Defendant transferred the said bus to Nonindicted 15 on July 29, 2017; the victim attempted to voluntarily sell the said bus to the place of use on the right to collateral security on August 29, 2017; however, the said bus was not executed due to the absence of the said bus; the Defendant, in default of the loan to the victim, was found to have not yet confirmed the existence of each of the aforementioned obligations.

In full view of the above facts and the legal principles as seen earlier, it is reasonable to deem that the Defendant’s act of transferring the above bus, which is a collateral security, to Nonindicted 15, constitutes a “harbor act,” which is a constituent element of the crime of obstruction of rights. Since the Defendant appears to have committed the above act while fully aware of the possibility of occurrence of the above result, the Defendant is also deemed to have failed to perform the above act.

피고인은 공소외 9에게 버스를 양도할 당시 공소외 9가 설정된 채무를 모두 변제하겠다는 말을 믿고 버스를 양도한 것이라 주장하기도 주1) 한다. 그러나 피고인의 수사기관 진술(증거기록 111, 112쪽)에 따르면, 피고인은 피해자에게 담보로 제공한 버스를 2017. 1. 5.경 공소외 17이 운영하는 회사인 ‘▽▽▽▽▽’에 양도하였다가 계약이 해제되어 이를 2017. 7. 7. 피고인의 남편인 공소외 18이 대표이사로 있는 ‘◎◎◎◎◎◎’로 이전하였고, 피고인이 운영하던 회사들을 공소외 15에게 매매하는 과정에서 위 버스를 함께 양도하여 2017. 7.경 공소외 15에게 위 버스를 인도해준 사실이 인정된다. 피고인의 위 진술에 의하면, 피고인은 공소외 15와 체결한 법인양도양수 계약을 통하여 버스를 양도한 것으로 볼 수 있는데, 앞서 본 것과 같이 위 계약서에서 피고인이 소속 차량 전부에 대하여 채무금(저당권 및 압류권)을 모두 변제하기로 약정한 사실을 인정할 수 있을 뿐이므로, 이러한 사실과 배치되는 피고인의 이 부분 주장도 받아들이지 않는다.

4) The part concerning the fraud of paragraphs 1 and 2 of the crime in [2018 Highest 1429] stated

In full view of the following circumstances recognized by the lower court and the evidence duly adopted and investigated by this court, the fact that the Defendant deceivings the victim as stated in the judgment and acquired the total of KRW 140 million can be recognized. Accordingly, the Defendant’s assertion on this part is not acceptable.

A) The victim consistently makes a statement from the investigative agency to the court of the court below that “the defendant has lent money” as stated in the facts charged. The credibility of the statement is recognized, and there are no special circumstances to dismiss it otherwise.

나) 피고인은 피해자가 투자한 것이라 주장하면서도 투자하게 된 구체적인 경위 등을 진술하지 못하였다. 반면에 피해자는 ‘◁◁시에서 식당을 하려고 하던 중 피고인으로부터 투자제의를 받았고 이를 거절하였으나 피고인이 대여를 제의하면서 피고인의 회사에서 일할 것을 권유하였다’고 진술하여 그 경위를 구체적으로 진술하는 점, 피고인은 피해자 공소외 5가 지급한 돈도 공소외 8이 투자한 것이라 주장하였으나 위에서 본 것과 같이 피해자 공소외 5로부터 차용하였던 것으로 판단되는 되는 점 등에 비추어 보면 피해자가 피고인에게 지급한 돈은 투자금이 아닌 차용금이라고 봄이 타당하다(한편 투자금이라고 보더라도 피고인이 이를 변제할 의무가 있음을 인정하고 있어 이를 반환하여야 한다는 점에서는 차용금과 사실상 차이가 없으므로, 결국 피고인이 피해자로부터 받은 돈의 성격이 무엇인지는 이 사건 공소사실 기재 사기죄의 성립 여부에 별다른 영향을 미치지 아니한다).

C) From August 2016, the Defendant asserts that the Defendant paid approximately KRW 3 million monthly to the victim as investment profits. However, the Defendant exchanged letters with the victim to the effect that the victim should attend school from August 2, 2016 (Evidence 18Da1381). The victim stated in the process of the investigation by the Employment and Labor Agency that “the Defendant had performed the duty of registration, cancellation, etc. of vehicle under the Defendant’s order, the duty of preparation and submission of contract documents, etc. at school,” and Nonindicted 19 and Nonindicted 20, etc., who had worked together with the victim, confirmed the victim’s work (Evidence 1381 evidence records 12-13). In light of the fact that the victim was insured in the April 2, 2016 (Evidence 1381 evidence records, evidence records, evidence 12-12, and 46th of each month, etc., it is reasonable to deem that the victim was the Defendant’s investment profits.

D) On July 19, 2016, the Defendant was investigated by an investigative agency and stated to the effect that, at the time of receiving KRW 70,000 from the victim, the Defendant borrowed money to the effect that he/she had repaid other debts. On April 25, 2017, at the time of receiving KRW 70,000 from the victim, the Defendant was making a statement that the company was unable to return because it was difficult at the time of receiving KRW 70,000,000,00 from the victim, and that he/she would have borrowed money to the victim due to the need for money (Evidence No. 280-281 of the evidence record), it is reasonable to deem that the Defendant deceiving the victim and acquired money from the victim even though he/she did not have

4. Judgment on the prosecutor's assertion of mistake of facts

1) Summary of this part of the facts charged

On November 19, 2015, the Defendant: (a) concluded a credit transaction agreement with the employees of the victim Nonindicted Co. 21 and (vehicle number omitted) to pay KRW 714,240 to 60,00 in the name of the victim company for the purpose of the credit period; (b) 60 months; (c) interest rate 7.6%; (d) one time to 814,815 won; and (d) two times to 60 times to 60 times; and (e) provided the said vehicle as security; and (e) provided the said vehicle with a mortgage.

Since then, the Defendant paid the principal and interest each month in accordance with the above loan agreement, and did not pay it from November 2, 2017, and thereafter, the Defendant lost the due interest due to the loss of time due to the receipt of the peremptory notice from the victim of temporary payment at that time, and returned the vehicle. However, from November 10 to November 18, 2017, the Defendant arbitrarily provided the said troke vehicle to Nonindicted 12, including the Defendant’s sports and Ecoos, as security.

Accordingly, the defendant concealed the goods of the defendant, which is the object of the victim's right, and interfered with the victim's exercise of right.

2) The judgment of the court below

In light of the following facts: Nonindicted 4’s legal statement of Nonindicted 12, Nonindicted 12’s written statement of the police statement of Nonindicted 4 on Nonindicted 12, and the witness’s partial statement, namely, the motive Nonindicted 4’s intent to borrow from Nonindicted 12 is to repay the Defendant’s obligations to Nonindicted 4; Nonindicted 4’s active act in borrowing, and the Defendant appears to have been passively in cooperation with the loan; ② Nonindicted 4 was driving the vehicle by delivering Nonindicted 4’s trokegle to Nonindicted 4 before several months prior to the instant crime, and Nonindicted 4 was issued the Defendant’s seal impression, personal seal impression, etc. to Nonindicted 4 in order to transfer the name of the instant trokeer on October 2017; ③ Nonindicted 4, while borrowing KRW 12,00 from Nonindicted 4 without the Defendant on the part of Nonindicted 4’s written application for a new troke, it was difficult for the Defendant to recognize that the Defendant was using the said vehicle under the name of Nonindicted 4’s vehicle as security.

3) Determination of the immediate deliberation

The burden of proof for the facts constituting an offense prosecuted in a criminal trial is to be borne by a public prosecutor, and the conviction is to be based on evidence with probative value, which makes the judge feel true beyond a reasonable doubt. Therefore, if there is no such evidence, even if there is suspicion of guilt against the defendant, it is inevitable to determine the benefit of the defendant (see Supreme Court Decision 2009Do1151, Jul. 22, 2010).

In light of the above legal principles, Nonindicted 12 appeared as a witness and lent money as security to Nonindicted 4 on or around November 2017, at the lower court’s trial, as follows, which is acknowledged by the records of this case. In other words, Nonindicted 4 appeared as a witness in the lower court’s judgment, and Nonindicted 4 testified that Nonindicted 4 had all transferred documents, such as a vehicle registration certificate, sales documents, and certificate of personal seal impression, if Nonindicted 4 purchased a vehicle from Defendant from Defendant, and Nonindicted 4 was in fact possessed by Nonindicted 4. In so doing, Nonindicted 4 testified was in fact deemed to have been owned by Nonindicted 4 (Evidence No. 103, 106). In view of the fact that Nonindicted 4 testified made a testimony that “the person who borrowed money to himself is Nonindicted 4, who is not the Defendant.” (Evidence record No. 103, 106), the lower court is justified to have determined the Defendant not guilty of the facts charged of this case on the grounds stated in its reasoning, and there was no

5. Conclusion

Thus, since the guilty part of the first and second judgment and the third judgment of the court below have grounds for ex officio reversal as seen earlier, the guilty part of the first and second judgment and the third judgment of the court below under Article 364(2) of the Criminal Procedure Act are reversed pursuant to Article 364(2) of the Criminal Procedure Act without further proceeding to decide on the grounds of unfair sentencing by the defendant and prosecutor, and they are again decided as follows. The prosecutor's appeal on the acquittal part of the third judgment of the court below is without merit,

[Grounds for multi-use Judgment]

Criminal facts and summary of evidence

The summary of the facts charged and the evidence admitted by this court is as follows, except for the revision of part of the judgment of the court of second instance as follows, and therefore, it is accepted in accordance with Article 369 of the Criminal Procedure Act.

Criminal facts

○ The 12th 10 to 13th 7th gate of the judgment of the second instance shall be applied as follows:

“The use of a falsified document on April 5, 2017”

On April 5, 2017, the Defendant, at the above office, delivered to Nonindicted 13, who was aware of the forgery, a “coverage bus operation contract” under the name of the Seocho University, and a “coverage bus transport contract” under the name of Nonindicted 14 Co., Ltd., as if it were a document duly formed, and exercised it.”

Summary of Evidence

○○ KRW 20 (20) of the lower judgment’s 20th sentence, “A copy of the electronic tax invoice between the △△△ and the △△ University,” and “a copy of the electronic tax invoice between △△△ and Nonindicted 14,” respectively, shall be deleted.

○ The following evidence shall be added to the case of "2018 Godan111" written judgment of the second instance:

“1. Witness 5. Each legal statement of Nonindicted 8 and Nonindicted 8

○ The following evidence shall be added to the case of "2018 Godan1429" written judgment of the second instance:

“1. Nonindicted 6’s legal statement of the witness

Application of Statutes

1. Article applicable to criminal facts;

Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 15256, Dec. 19, 2017); Article 347(1) of the Criminal Act (including fraud against the victim non-indicted 4); Article 347(1) of the Criminal Act (including fraud against the victim non-indicted 16 and non-indicted 23); Article 24, non-indicted 24, 13, 25, 26, 16, and 6; each fraud against the victim; Article 231 of the Criminal Act (each fraud against the non-indicted 3); Article 234, 231 (each Article 3) of the Criminal Act; Article 151-2, Article 46-3, Article 57(3), Article 17(3) of the Road Traffic Act; Article 35(2) of the Criminal Act; Article 25(3) of the Criminal Act; Article 57(2) of the Criminal Act;

1. Commercial competition;

Articles 40 and 50 (Punishment on April 5, 2017) of the Criminal Act for the crime of uttering of a falsified investigation document between the crimes of uttering of the above investigation document and punishment for the crime of uttering of a falsified investigation document due to the forgery of a bus operation contract under the name of △ University with heavy criminal situation)

1. Selection of punishment;

The punishment for the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) shall be limited to imprisonment and imprisonment for the remaining crimes.

1. Aggravation for concurrent crimes;

Articles 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes with punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) with the largest punishment)

Reasons for sentencing

1. Scope of punishment by law: Three to forty-five years of imprisonment;

2. Scope of recommended sentences according to the sentencing criteria;

(a) First crime (Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud);

[Determination of Punishment] The General Fraud [Type 3] 50 million won or more, and the amount of less than five billion won

* Determination of types on the basis of the sum of the amount of profit in each crime as indicated in accordance with the method of dealing with the same concurrent crimes

【Special Convicted Persons】

- The factors for mitigation: where the victim is fully responsible for the occurrence of the crime or the expansion of damage; where substantial damage has been restored;

- Aggravations: Where a crime has been committed for unspecified or large number of victims or repeatedly over a considerable period of time, the method of crime acceptance is very poor;

[Recommendation and Scope of Recommendation] Basic Field, 3 to 6 years of imprisonment

(b) Second offense;

【Determination of Punishment】

Embezzlement and Breach of Trust (Type 2) No less than KRW 100 million, but less than KRW 500,000,000.

[Recommendation and Scope of Recommendation] Basic Field, Imprisonment with prison labor for one to three years

(c) A third crime;

【Determination of Punishment】

Embezzlement and Breach of Trust (Type 2) No less than KRW 100 million, but less than KRW 500,000,000.

[Recommendation and Scope of Recommendation] Basic Field, Imprisonment with prison labor for one to three years

(d) Scope of recommendations according to the standards for handling multiple crimes: Three to eight years of imprisonment (the upper limit of the first crime + the upper limit of the second crime + the 1/2 of the upper limit of the second crime + the 1/3 of the upper limit of the third crime);

3. Determination of sentence: Eight years of imprisonment;

The circumstances are that the Defendant is disadvantageous to the Defendant, such as the following: (a) repeatedly deceiving many victims, and the method and result of the commission of the crime is considerably significant; (b) creating a new victim and expanding the amount of damage to continue to use the “defluence”; (c) forging a private document to use it for a part of the crime; (d) forging it; (e) there are still many victims who have not been recovered; and (e) there seems to be difficult for the Defendant to recover it; (e) Nonindicted 13 and Nonindicted 5, the victim of the crime of fraud, continuously wanting to punish the Defendant; (e) the Defendant commits multiple crimes other than the above frauds; and (e) the Defendant commits multiple crimes other than the above frauds; and (e) the fact that a number of victims have been recovered

On the other hand, the fact that the defendant generally acknowledges and reflects his mistake, there is no past history of criminal punishment or a fine heavier than that of a fine for the same crime before, and in the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), it seems that the victim is partially responsible for the occurrence or expansion of damage, such as paying a large amount of money to the defendant without closely checking the specific business content and reality of obtaining high profit in a short period, etc. In the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), it appears that the victim is partly responsible for the occurrence of the crime or the expansion of damage. The defendant has reached an agreement with Nonindicted 4, 35, 36, 33, and 25, which are some of the victims, or the criminal conciliation has been established, and the victims have failed to punish the defendant or cancelled the complaint against some victims (the husband of the victim, Nonindicted 34, 29, and 30, etc.).

As above, the sentencing conditions stipulated in Article 51 of the Criminal Act, such as the Defendant’s age, character and conduct, environment, motive, means, and consequence of the crime, including the circumstances favorable to the Defendant, shall be determined as follows:

The acquittal portion

This part of the facts charged is the same as the entry of the above 2.B-1 Item (b). This constitutes a case that does not constitute a crime on the grounds as stated in the above 2.B-2 Item (b) of Article 325 of the Criminal Procedure Act, and thus, the defendant must be acquitted pursuant to the former part of Article 325 of the Criminal Procedure Act. However, the part of the facts charged concerning the uttering of the above investigation documents in the facts charged is not guilty as long as it is found that the defendant guilty of the crime of uttering of the above investigation documents concerning the "coverage bus operation contract" and the "coverage bus transportation contract" under the name of the insurance university and the

Judges Kim Sung-ju (Presiding Judge)

(1) On June 3, 2017, the Defendant entered into a contract with Nonindicted 15 on the transfer and takeover of a corporation, and transferred the said bus together with Nonindicted 11, limited liability companies, △△△ Tourism, limited liability companies, and new △△△ Tourism, to transfer the ownership of the said bus. However, Nonindicted 15 asserts that the actual contracting party to the contract is Nonindicted 9 (2018 Highest 1381 Evidence Record 196 pages).