Defendant

Defendant

Haw-ho (prosecutions) and Maw-ho (Trial)

Law Firm LLC et al. and one other

Seoul Northern District Court Decision 2017Gohap104 Decided September 1, 2017

The judgment of the court below is reversed.

Defendant shall be punished by imprisonment for not less than two years and six months.

1. Summary of grounds for appeal;

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

1) Legal principles

The Act on Long-Term Care Insurance for the Aged established under the Act on Long-Term Care for the Aged (hereinafter “the Act on Long-Term Care for the Aged”) provides the elderly with the facility benefits under the Act on Long-Term Care Insurance for the Aged at △△△△△△△ (hereinafter “the Act”). Even if the State has a duty to provide such facility benefits, the State has to compensate for the expenses incurred in providing the facility benefits. The State has to take measures to reduce the facility benefits that the National Health Insurance Corporation (hereinafter “the Corporation”) should pay to the care institution according to the provisions related to the Act on the Standards for Providing Long-Term Care Benefits and the Methods for Calculating the Expenses for the Payment of Long-Term Care Benefits. As such, the Act on Long-Term Care for the Aged Insurance for the Aged has no provision on the reduction of the facility benefits, and such a provision is unconstitutional and unlawful. Therefore, even if the Defendant did not apply to the aforementioned reduction of the expenses for long-term care benefits, this does not constitute deception. Moreover, given that the Defendant did not obtain any economic benefits from a person who provided the care benefits.

Nevertheless, the court below erred by misapprehending the relevant legal principles that recognized deception, which is a constituent element of the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), and acquired property or proprietary profits, thereby affecting the

2) misunderstanding of facts

Until the Defendant’s husband Nonindicted Party 1 (the Nonindicted Party: the Nonindicted Party 1) died on November 2014, Nonindicted Party 1 was practically deprived of the Defendant and operated the medical care center entirely with Nonindicted Party 2, and the Defendant started to participate in the operation of the medical care center only after Nonindicted Party 1’s death.

In addition, the reduction rate of attached Table 1 (hereinafter referred to as the "attached Table 1") on the charge was mistakenly calculated. First, among the items listed in attached Table 1 No. 1, 2, 3, and 6 through 14, the reduction rate of 20% due to the vacancy of the assistant nurse was erroneous. This is because the standards for the placement of the assistant nurse are one for each 25 resident, so the number of the assistant nurse is three, and the number of the assistant nurse is less than 60, and there is no increase in the number of the assistant nurse assignment standards unless the number exceeds 15, so the number of the assistant nurse registered as shown in attached Table 1 No. 24, No. 25, per annum. 1, the reduction rate was lower than that of the annexed Table 1. As a result of the application of the reduction rate in the attached Table 1, the number of the assistant nurse who is registered more than 15.

Nevertheless, the lower court erred by misapprehending the fact that the lower court rendered a guilty verdict of all the attached Table 1, thereby adversely affecting the conclusion of the judgment.

B. The point of occupational embezzlement

1) misunderstanding of facts or misunderstanding of legal principles as to illegal acquisition intent

Around 2007, the representative director of ○○ Foundation borrowed KRW 200 million to Nonindicted 4 in order to build a medical care center. Nonindicted 4 demanded repayment from ○○ Foundation around the end of November, 2010, ○○○ Foundation held a board of directors on December 16, 2010 and decided to pay off the borrowed amount in installments from the accounts of the ○○○ Foundation. In order for ○○ Foundation to pay off the debt to Nonindicted 4, the Defendant and Nonindicted 1 subscribed to LIG premium savings in the name of the Defendant. The Defendant and Nonindicted 1 did not have any damage to ○○ Foundation on account of having subscribed to installment savings and insurance, and it is difficult to view that the Defendant and Nonindicted 4 had any unlawful intent to obtain reimbursement from ○○○ Foundation by subrogationing the Defendant’s debt to ○○○○○ Foundation’s creditor on July 27, 2012, the Defendant and Nonindicted 1 had any unlawful intent to obtain reimbursement from ○○○ Foundation.

Nevertheless, the lower court erred by misapprehending the legal doctrine that found the Defendant guilty of this part of the facts charged of occupational embezzlement and by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

2) misunderstanding of facts or misunderstanding of legal principles concerning the payment of room rent

Since it was necessary for the Defendant to urgently employ a physical clinic who will work at the hospital, the Defendant paid the room rent upon the request of the medical clinic. It cannot be deemed that there was any economic damage to the ○○ Foundation by paying the rent instead of the rent, and it is difficult to view that there was an intention of unlawful acquisition by the Defendant.

Nevertheless, the lower court erred by misapprehending the legal doctrine that found the Defendant guilty of this part of the facts charged of occupational embezzlement, thereby adversely affecting the conclusion of the judgment.

C. Unreasonable sentencing

The punishment of the lower court (four years of imprisonment) shall be too unreasonable and the amount of the punishment is determined unreasonable.

2. Determination

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

1) Whether the notice on reduction of facility benefits costs becomes invalid

Where a provision of a statute grants the authority to determine the specific matters of the statute to a specific administrative agency and the delegated administrative agency specifically determines the matters to be the contents of the statute in the form of a public notice which is an administrative rule, the delegated administrative agency shall be deemed to have effect as an external binding order, unless it goes beyond the delegated limit of the pertinent statute (see Supreme Court Decision 2007Du4841, Apr. 10, 2008, etc.).

Article 39(1) of the Act on Long-Term Care Insurance for the Aged provides that “The Minister of Health and Welfare shall determine and publicly announce expenses for facility benefits after deliberation by the Long-Term Care Committee under Article 45 according to the type of benefits, the class of long-term care, etc.” and Article 39(3) of the Act on Long-Term Care Insurance for the Aged shall provide that “the detailed method of calculating the expenses for facility benefits under paragraph (1) and the items thereof shall

The Enforcement Rules of the Long-Term Care Insurance for the Aged shall provide that "the detailed calculation methods and items of expenses for home care and facility benefits under Article 39 (3) of the Act shall be as follows. In such cases, detailed calculation standards shall be determined and publicly notified by the Minister of Health and Welfare," and subparagraph 2 of Article 32 provides that "the calculation standards shall be determined and publicly notified by the Minister of Health and Welfare."

Accordingly, the former Public Notice of Long-Term Care Benefit Costs (amended by the Ministry of Health and Welfare No. 2009-125, Jun. 30, 2009; hereinafter referred to as the “former Public Notice of Medical Care Benefit Costs”) provides that “The expenses for long-term care benefits shall be calculated on the basis of the calculation of expenses for each type of benefit and the calculation basis, but the expenses for long-term care benefits shall be counted on the basis of four thousand won if the amount calculated by adding or reducing the expenses for long-term care benefits is less than ten won (I. 2.).” In addition, the general principle of institutional benefit provides that “the expenses for long-term care benefits shall be calculated on the basis of the number of days for which the expenses for long-term care benefits are provided, such as personal hygiene and bathing, care management, hobbies, hobbies, sports, nursing, daily life guidance, skills training, and other welfare benefits for the elderly” (Article 2(3) of the former Public Notice of Infant Care Benefit Costs).

In addition, the Ministry of Health and Welfare’s announcement on the criteria for the provision of long-term care benefits and the calculation method of expenses for long-term care benefits (hereinafter “public announcement on the calculation method of expenses for long-term care benefits”) was fully amended on June 26, 2014 by the Ministry of Health and Welfare under Article 2014-97, also adopts the method of calculating additional (in addition to the calculation standard of expenses for long-term care benefits in Section 2) or calculating reduction (in addition to the calculation standard for the reduction

According to the public notice of the cost of health care benefit or the public notice of the method for calculating the cost of health care benefit of the Gu, the cost of facility benefits is calculated in the formula of [((the number of days of payment of x benefit costs per day) x reduction rate].

The legislative intent of this provision that reduces the cost of facility benefits or calculates the additional cost is to determine the daily cost of medical care for each inmate in a long-term care institution (at least the number of necessary human resources) so that inmates can receive basic facility benefits, and to encourage the institution to provide more quality medical care benefits by forcing compliance with the standards for the placement of human resources and assigning more human resources.

In light of the legal principles as seen earlier, the provisions pertaining to calculation of reduction among the public announcement of medical care benefit costs or the public announcement of the method of calculating allowance costs (hereinafter “instant public announcement provisions”) shall not be deemed to have been specifically delegated to the relevant statutes as delegated by Article 39(1) and (3) of the Act on Long-Term Care Insurance for the Aged, and Article 32 of the Enforcement Rule of the Act on Long-Term Care Insurance for the Aged, and shall not be deemed to have exceeded the bounds of the relevant statutes. The instant public announcement provisions, combined with relevant provisions of the Act on Long-Term Care Insurance for the Aged, have effect as an external binding legal order.

In addition, a sanatorium for the elderly, such as a sanatorium, can only claim the Corporation for expenses incurred in providing facility benefits, which is calculated in accordance with the announcement of the Act on Long-Term Care Insurance for the Aged and its Enforcement Rule, and the former medical care benefit calculation method, or the method of calculating expenses incurred in providing facility benefits to the inmates. The application of the instant notification provision is limited to the calculation process of expenses incurred in providing appropriate facility benefits to the institution for long-term care, and the Corporation does not ex post limit the right to claim for facility benefits that has already been established by the one day care cost per person admitted to the institution for each long-term care. Therefore, it is difficult to deem that the reduction in accordance with the notification provision of the instant case constitutes an indive administrative act

Therefore, the Corporation does not accept this part of the Defendant’s assertion because it does not violate the principle of statutory reservation to calculate the amount of expenses for long-term care benefits by reducing the amount of expenses for long-term care benefits.

2) Whether there was a deception or not

According to the evidence duly admitted by the court below, the following facts can be acknowledged. Comprehensively taking into account these facts, the Medical Care Center’s claim for the cost of long-term care benefits calculated according to the details of the statement and registration is a fraudulent act which constitutes a constituent element of a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) by stating and registering the reason for calculating the amount of reduction provided in the notice provision of this case in a false manner or not reporting and registering the change in the details of the change. Therefore, the Defendant’

(1) A long-term care institution, such as a medical care center, shall submit to the Service a list of the number of employees and occupations, the date of admission and the date of retirement of inmates by grade to the Service, and shall report to the head of a local government without delay when any ground for admission to or retirement from the relevant employee arises, and shall report the admission to or discharge from the relevant inmate, and the relationship between the admission to or discharge from the hospital and the

(2) In addition, a long-term care institution shall claim medical care benefit costs to the NHIS every relevant month in accordance with such report or registration. It is not automatically paid by the NHIS for calculating the medical care benefit costs of the relevant long-term care institution according to the maximum number

③ In order to avoid the application of the reduction rate under the notified provision of this case, the medical care center registered falsely a caregiver or a physical care worker, rather than working as a caregiver, and registered falsely as if the working hours as a caregiver were working for less than 160 hours a month but less than 160 hours a month, and filed a claim for expenses for long-term care benefits not subject to the reduction rate under the notified provision of this case due to vacancy, excess in the prescribed number of medical care workers, etc. without filing a report even though the medical care center was admitted to excess of the fixed number of accommodation.

④ Nonindicted 5 stated in the court that “At the time of work at the medical care center, Nonindicted 5 worked for five days a week, eight hours a day, or eight hours a day or more per week. When there was no person on the kitchen, the witness left the room and worked as a caregiver at any time, and he was from time to time as a caregiver. The caregiver was serving from nine p.m. to six p.m., and from six p.m. in the kitchen and from three p.m. in the event of work at the kitchen.”

3) Whether the Defendant was involved in the crime before November 2014

A) Summary of the facts charged

Since the facts of the judgment of the court below are the same as the part of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), it shall be quoted in accordance with Article 369 of the Criminal Procedure Act (the summary thereof is that the defendant, alone from October 2009 to July 201, by deceiving the Corporation by deceiving the victim about the number of inmates to be admitted to the hospital, placement and use of employees, etc., and by receiving the reduction rate under the notified provision of this case from the Corporation for the calculation of expenses for long-term care benefits from the victim to receive the total amount of KRW 2.57,837,370,320 from the facility benefit costs)

B) Facts of recognition

According to the evidence duly admitted by the lower court and the appellate court, the following facts can be acknowledged:

① Acceptance of Nonindicted 1 and Defendant ○○○ Foundation

On July 31, 1999, Non-Indicted 3 established the ○○○ Foundation. The ○○○ Foundation established a medical care center in 2007 and operated it after being designated as a long-term care institution under the Act on Long-Term Care Insurance for the Aged in 2008. On August 1, 2007, the Defendant promoted his membership as a medical care center and served as the head of the secretariat under the control of Non-Indicted 3.

After taking over the Defendant’s husband Nonindicted 1 and the Defendant’s husband Nonindicted 3 to Nonindicted 3, the Defendant’s husband Nonindicted 1 was appointed as the representative director on March 2, 2008. The Defendant, who was qualified as a social welfare worker, was appointed as the director of the Medical Care Center on July 2, 2009. Accordingly, the Defendant, as the director of the Medical Care Center, was promoted to Nonindicted 2, who was employed as the director of the welfare division of the Medical Care Center around September 2008. The Defendant was appointed as the director of the Foundation on March 27, 2010.

The couple of the defendant was living in the room with two children.

② Operation of Nonindicted 1-led Medical Care Center

Since the representative director of the ○○○ Foundation was appointed on November 2, 2014, Non-Indicted 1 continued to have no position in the medical care center until the dismissal on November 2, 2014 (the director of the medical care center could not be the director because he was not qualified as a social welfare worker), but left the office to be used as a mixed person within the building of the medical care center with the assistance of Non-Indicted 2, who is supported by Non-Indicted 2, directly presides over the daily staff meeting at the medical care center and directly manages the employees' status at every day, and directly deals with the affairs related to the admitted person such as the guardian and interview, etc. while staying in the defendant’s office in the week, for example, the following final approval authority of the medical care center is the director, and the defendant is in charge of employment and placement of employees of the medical care center, management of facilities, claim for expenses for long-term care benefits, management of the admitted person, etc.

On November 20, 2009, the document Nos. 1 included in the main sentence and the name of the medical care center’s accountant and the person responsible for the accounting of the medical care center on November 20, 2009, the renewal of the surety insurance policy was established on December 1, 2009, at low temperature storage for corrosion storage by the medical care center on November 11, 2010, when the medical care center’s expenses for long-term care benefits were claimed on November 11, 2010 on February 24, 2011, the report on the change of personnel, retirement, qualification, and the report on the change of the medical care center’s expenses for the settlement of revenue and expenditure in the year of 2010 on April 25, 2011, the report on the employment of employees (nutritions) and the report on the change of the person responsible for long-term care benefits on July 20, 2011, and the report on the demand for long-term care benefits on May 313, 2013, 2013.

As seen above, Non-Indicted 1, while participating in the claims for long-term care benefit costs in general, took the responsibility of Non-Indicted 2 directly for the Secretary General in cases where the cost of benefits is less than ordinary times. In addition, if the nature of the charge is too excessive and his direction is not implemented at once, Non-Indicted 1 would promptly take a bath to the employee.

Nonindicted 1 ordered Nonindicted 2 to pay a full-time director allowance to Nonindicted 2 on the grounds that the expenses incurred in attracting the aged while actually operating the medical care center as above, and received 4 million won per month from the medical care center as a full-time director allowance.

From October 2014 to October 2014, Nonindicted Party 1 rejected Nonindicted Party 1’s return from ○○ Foundation’s representative director and director’s work. Accordingly, on November 2, 2014, the board of directors of the ○○○ Foundation decided that “Nonindicted Party 1 was dismissed from office by the representative director and director, and the Defendant was appointed as the representative director of the ○○ Foundation.” During that process, Nonindicted Party 2, the secretary-general, who had continued to return Nonindicted Party 1’s intention while gathering Nonindicted Party 1’s daily work, was dealt with in the same way as before.

③ The sole operation of the Defendant after the death of Nonindicted Party 1

While Nonindicted 1 actually led and operated the medical care center as above, the Defendant was directly approved by various internal documents and participated in the operation of the medical care center while attending various meetings, as seen in the above example, while he was mainly in charge of the funeral service, such as food materials procurement, cooking, and cooking.

Around November 2014, the Defendant was appointed as the husband Nonindicted 1 and the representative director of the ○○○ Foundation, and Nonindicted 1 committed suicide on November 19, 2014. Since then, the Defendant received the business assistant of Nonindicted 2 from the secretary general, and directed the director general Nonindicted 2 to operate the medical care center according to the method operated by Nonindicted 1.

C) Relevant legal principles

In a case where it is deemed that there is no concern about actual disadvantage to the defendant's exercise of his right to defense in light of the progress of trial, the court may recognize ex officio the facts constituting a crime different from the facts charged within the scope consistent with the facts charged even if the indictment was not modified, and in this case, if the indictment is not punished for the reason that the facts constituting a crime actually recognized is serious in comparison with the facts charged, and if it is not punished for the reason that the indictment was not modified, it shall recognize ex officio the facts constituting a crime (see Supreme Court Decision 2005Do9268, Apr. 13, 2006).

D) Joint principal offenders between the Defendant and Nonindicted 1

Examining the above facts in light of the above legal principles, it is reasonable to view that, until November 2014, the president of the Medical Center, who was appointed as the representative director of the ○○ Foundation, the husband non-indicted 1 conspired with the defendant to practically operate the Medical Care Center and commit the fraud against the victim, and then, the defendant operated the Medical Care Center independently as in the previous case, and the defendant continued to commit the fraud. Even without any changes in the indictment, it is reasonable to determine that the above part of the facts charged was partially modified and the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) is committed.

Therefore, among the facts charged against the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), since there is no proof of a crime since the part that the defendant committed the crime by himself from October 2009 to October 2014, this part of the defendant's assertion is justified only within the above scope of recognition, and the remainder is without merit.

4) The defendant's assertion regarding the economic benefit of the defendant or the victim's property damage to the Corporation

The Defendant conspired with Nonindicted 1 or by deceiving the Victim Corporation alone, thereby allowing the Victim Corporation to pay more money than the cost of legitimate facility benefits in the future (no legal personality exists). Since the Defendant actually managed and used the money equivalent to the difference paid in the future of the Medical Care Center, fraud is established regardless of whether the Defendant actually gains any economic benefit.

In addition, as the victim corporation belongs to the aforementioned deception and paid more money than the cost of facility benefits under the instant notification to the care center as the cost of facility benefits, the crime of fraud is established regardless of whether the victim actually suffers economic loss to the care center.

Therefore, this part of the defendant's argument is without merit.

5) Whether the amount of fraud has been proven to the extent that there is no reasonable doubt

First of all, the number of nurses according to the criteria for the placement of a sanatorium for the elderly is calculated in 4-5 manner to the maximum extent favorable to the sanatorium for the elderly (Evidence No. 818 page). According to the evidence record, the number of nurses according to the criteria for the placement of a sanatorium for the elderly is 60 persons, and the criteria for placement of a nurse for each 25 person are 2.4 persons, and the number of nurses for the nursing (Assistant No. 60) is 2.4,4,5, and the number of nurses for each 25 persons is 2.4, and 4,5, and the number of nurses for the nursing (Assistant No. 60) is 63 persons and the number of nurses is over 3,25, and the defendant's registered nurse's registered nurse's registered nurse's registered nurse's registered nurse's registered nurse's registered nurse's registered nurse's registered nurse's registered nurse's registered nurse's registered nurse's registered nurse's registered nurse's registered nurse's registered.

Next, in the case of the attached Table 1 No. 24 and 25, it will examine whether the reduction rate has been erroneously applied and the amount of fraud has increased more. In the case of the attached Table 1 No. 25, no error exists in the application of the instant public notice provision, and rather, in the case of the attached Table 1 No. 24, it is only an external form where the reduction rate like the attached Table 25 can be applied once a year, and the application of the lower reduction rate is no less favorable to the defendant. Therefore, this part of the defendant's assertion is without merit without the need to examine it.

6) Sub-determination

Therefore, the defendant's ground of appeal against violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes is justified only for the misconception of facts.

B. As to the assertion of misconception of facts and misapprehension of legal principles as to occupational embezzlement

According to the evidence duly adopted by the lower court and the appellate court, all of the circumstances acknowledged in the part on “2. Determination of the Defendant and the defense counsel’s assertion” in the judgment of the lower court are acceptable. Moreover, there is no objective evidence such as the financial statements of the ○○○ Foundation, the financial statements of the ○○ Foundation, and the details of banking deposits transactions, which may be doubtful that the ○○○ Foundation (the representative director Nonindicted 3) borrowed money from Nonindicted 4 or that the money borrowed from Nonindicted 3 was transferred to ○○ Foundation. Furthermore, the Defendant and Nonindicted 1 appears to have taken over the management right of the ○○○ Foundation with Nonindicted 3. Accordingly, it appears that the ○○ Foundation did not have any reasonable reason to succeed to the Defendant and Nonindicted 1’s obligation against Nonindicted 3 or Nonindicted 4, and that the Defendant and Nonindicted 1 were sufficiently aware of these circumstances.

In full view of these circumstances, the part of the facts charged that the Defendant embezzled 54,431,200 won out of the admission fees owned by the ○○○○ Foundation using personal installment savings, personal savings premium payment, and room rent payment under the name of the Defendant can be fully recognized. Thus, this part of the Defendant’s assertion is without merit.

3. Conclusion

Since the defendant's appeal based on the assertion of mistake of facts is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act without examining the defendant's assertion of unreasonable sentencing, and the judgment below is again ruled

The Defendant was the president of the Medical Care Center under the Jung-gu, Daejeon District Office from October 2009 to July 2016, and was appointed as the representative director of the ○○ Foundation around November 2014. Nonindicted Party 1, the husband of the Defendant, who was appointed as the representative director of the ○○ Foundation around March 2008, was dismissed on November 2014.

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

The Defendant, as the president of the Medical Care Center, was the representative director of the ○○ Foundation and the Defendant, who actually acquired the management right of the ○○ Foundation along with the Defendant, and jointly operated the Medical Care Center, provided inmates with long-term care services by employing physical care workers, caregivers, kitchens, etc., and claimed expenses for long-term care benefits in a lump sum to the ○○ Foundation.

From July 2008, the Corporation provides beneficiaries who have difficulty in living a daily life through the long-term care insurance system for older persons or for reasons of elderly diseases, etc., with facility admission and home care benefits, and provides them to operators of long-term care institutions with such medical care benefits. A long-term care institution shall provide long-term care benefits in accordance with Article 35 (2) of the Long-Term Care Insurance for Older Persons Act and provide long-term care benefits in accordance with the criteria, procedures, methods, etc. for providing long-term care benefits pursuant to Article 35 (2) of the same Act and Article 39 (3) of the same Act and Article 32 (Method and item of Calculating Expenses for Home Care and Facility Benefits) of the Enforcement Rule of the same Act.

Accordingly, an operator of a long-term care institution must pay expenses incurred in providing benefits to all beneficiaries in proportion to the actual vacancy of human resources. As such, if a vacancy occurs for a caregiver, etc. different from the criteria for placement of employees, the Service should have access to the victim’s website to accurately enter the number of standards for placement of employees, such as the fact, whenever the vacancy occurs, and then claim for the following expenses. In addition, he/she should subscribe to a professional liability insurance that compensates for legal losses in preparation for injury, etc. of beneficiaries who could incur in the course of providing long-term care benefits.

The Defendant and Nonindicted Party 1 conspired with each other, while being aware of the foregoing provisions, filed a claim for expenses for long-term care benefits (hereinafter referred to as “care expenses”) with the Victim Corporation, and filed a false registration of a caregiver or physical clinic, or filed a false registration as if he had worked for less than 160 hours a month as a caregiver, even though the working hours were less than 160 hours a month, and furthermore, he did not apply a reduction rate based on the vacancy ratio and the excess of the prescribed number by failing to report even though he/she accepted the number exceeding the admission quota of the above medical care center, and instead did not apply a reduction rate according to the number of vacancies and the fixed number

At around December 2013, Nonindicted 1 led the Defendant’s consent by allowing the head of the secretariat, Nonindicted 2, etc. to access the information system on the victim’s website at the office of the Medical Care Center by using a computer installed therein. Nonindicted 8, Nonindicted 5, Nonindicted 9, Nonindicted 10, Nonindicted 11, and Nonindicted 12, etc., who is a caregiver, serve as a caregiver or a custodian, not a caregiver, and entered false facts as if they worked for at least 160 hours a month even though the hours of care were not 160 hours a month, and did not apply the reduction rate from the Corporation at that time, and thus, the medical care allowance costs were paid to the victim more than 21,160,164 won.

The defendant and the non-indicted 1 conspired with the defendant from October 2009 to October 2014, as shown in the attached list 1 of the crime sight table, and from November 2014 to July 2016, the defendant independently received a total of KRW 2,578,378,320 in the future from the victim Corporation through the head of each secretariat non-indicted 2, etc. to receive a further payment of KRW 2,578,378,320.

2. Occupational embezzlement;

The Defendant, as the director of the medical center under the ○○○ Foundation, has received KRW 500,000 per capita each month from those who failed to report the medical center to the separate account (Account Number 1 omitted; hereinafter referred to as the “instant account”) in the name of the medical center under the name of the medical center and directly managed the account.

On October 25, 2011, the Defendant arbitrarily used KRW 1,000,30,000, out of admission fees, which was kept by the Victim ○○○○ Foundation, to transfer to the account of the community credit cooperatives (Account Number 2 omitted) in the name of Non-Indicted 1, an individual installment savings account.

The Defendant, including this, embezzled the total amount of KRW 54,431,200 from October 201 to April 2015 by using personal installment savings, personal savings premium payments, and studio rent payments, etc. over a total of 59 times from around 2011 to around 2015.

Pursuant to Article 369 of the Criminal Procedure Act, the corresponding column of the judgment of the court below shall be cited, and "1. The witness of the appellate court made the legal statement of Nonindicted 5, the copy of the minutes of the temporary board of directors held by the Daejeon Metropolitan City (Evidence 22), and the seal page (Evidence 23) in the minutes of each board of directors' meeting shall be added."

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

Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347(1) and Article 30 of the Criminal Act (Fraud and inclusive of fraud: Provided, That Article 30 of the Criminal Act shall be limited to the part from October 2009 to October 2014); Articles 356 and 355(1) of the Criminal Act (the point of occupational embezzlement, inclusive of imprisonment)

1. Aggravation of concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes (limited to the sum of the long-term punishments of the above two crimes) prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) with heavier punishment]

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act

1. Scope of punishment by law: Imprisonment with prison labor for not less than one year and six months, but not more than 20 years;

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

(a) Basic crime: A violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud);

[Determination of Punishment] Fraudulent Crime, General Fraud, and not less than five billion won but less than five billion won (Type 3)

【Special Esponsor ] A person who has been actively involved in the crime committed by her husband at the main part of the crime (the partial evaluation of cases corresponding to passive participation by de facto pressure, etc.

[Scope of Recommendation] Imprisonment of not less than one year and six months but not more than four years (Evaluation as equivalent to mitigation area)

(b) Concurrent crimes: Occupational embezzlement;

[Determination of Punishment] Embezzlement and Breach of Trust, and Less than KRW 100 million (Type 1)

【Special Convicted Person】

[Scope of Recommendation] Imprisonment with prison labor of not less than four months but not more than one year and four months (Basic Area)

(c) Scope of final recommendations based on the standards for handling multiple crimes: Imprisonment with prison labor for a period of one year and six months to four years and eight months (in addition, the upper limit of the amount of recommendations and sentences for concurrent crimes shall be up to the upper limit of the amount of penalties for recommending concurrent crimes);

3. Determination of sentence: Imprisonment with prison labor for a period of two years and six months;

In the course of operating a sanatorium for older persons, the Defendant was sentenced to a judgment (2009No2429) suspending the sentence of a fine of KRW 3 million on February 19, 2010 for the criminal fact that: (a) deceiving the Victim Corporation over a long-term period to pay the amount of KRW 2.5 billion as expenses for long-term care benefits; (b) causing the aggravation of the finance of the National Health Insurance; and (c) embezzled money owned by the ○○○○○ Foundation. The Defendant was sentenced to imprisonment with prison labor for the Defendant as much as there is a high possibility of social criticism on the Defendant.

However, among the crimes of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), the part from October 2009 to October 2014, which was committed by the Defendant’s husband Nonindicted 1 in the leading position, was about 80% of the total amount obtained by deception of the period. The Defendant recognized the part of the Defendant’s participation in the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud). Of the damage inflicted on the victim’s Corporation, KRW 75 million among the damage inflicted on the victim’s ○○○ Foundation, and KRW 20 million among the damage inflicted on the victim’s ○○○ Foundation, was restored. The Defendant was frequently absent from his employees due to the relationship that operated the medical care center at a very remote place, and was difficult to find a new employee. In addition, it is highly probable that the Defendant would have made efforts to provide the Defendant with high-quality meals at the home and directly with his employees.

In addition, comprehensively taking account of the defendant's age, family relation, character and conduct, environment, motive and circumstance of the crime, and all of the sentencing factors in the process of the crime in this case and the circumstances after the crime, the sentence shall be determined as above.

The summary of this part of the facts charged is that the defendant alone committed the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) from October 2009 to November 2014, as described in Article 2-A-A-A-A-A-A-B of the above facts charged. Of this facts charged, the part that "in Germany" committed the crime constitutes a case where there is no proof of crime for the same reason as mentioned in Article 2-A-3(b), C-D of the Act. Accordingly, the defendant should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, but it is recognized that the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) (Fraud), which is judged in the relation of a single crime, and thus, the judgment of not guilty

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

[Attachment]

Judges Kim Jong-soo (Presiding Judge)