(영문) 서울중앙지방법원 2017.11.17. 선고 2017고합637 판결

Defendant A shall be punished by imprisonment with prison labor for a period of three years and six months, and by imprisonment for a period of three years.

Reasons

Criminal facts

【Criminal Power】

On April 7, 2016, Defendant A was sentenced to four months of imprisonment for fraud at the Suwon District Court on April 7, 2016, and the execution of the sentence was terminated on May 4, 2016.

【Criminal Facts】

Defendant A purchased from H on December 21, 2015 the Dongjak-gu Seoul Metropolitan Government I and 102 Dong 302 (hereinafter referred to as the “instant apartment”) KRW 930 million from H, and established the right to collateral security (hereinafter referred to as the “mortgage”) in the instant apartment in which “the maximum amount of the claim is KRW 260 million, the debtor J, the mortgagee J, and the Daejeon Western Saemaul Depository,” and received a loan of KRW 200 million from H and H, the lease deposit of which is KRW 780 million from the Daejeon Seo-gu Saemaul Bank. On the other hand, Defendant A succeeded to the said lessor’s status under a lease agreement with the lessee on September 16, 2015.

On May 2016, Defendant A, as well as L, known through the introduction of JJ, which was the land owner, sought a loan for the instant apartment complex as collateral, but it was not possible to grant a loan due to the existence of the lessee K and senior mortgage, who has the right to preferential reimbursement of KRW 780 million as lease deposit. On July 2016, Defendant B introduced Defendant B, the hub of loan from L, and discussed the loan method with L and Defendant B by discussing the loan method along with L and Defendant B, thereby soliciting the sale of the instant apartment complex and concealing the existence of the lessee who has the right to preferential reimbursement.

Accordingly, on July 27, 2016, Defendant B conspired with L and M with the false buyer, and the Defendants drafted a false sales contract stating that “the Defendant A sells the instant apartment at KRW 950 million to M on July 11, 2016 at the coffee shop near the N branch of the National Bank of Korea.” On the same day, the Defendants and M found the Defendant at the N branch of the National Bank of Korea, the Defendant, the Defendant, and the lending employee, and the Plaintiff, the buyer, who entered into a sales contract for the instant apartment. In relation to the funds to purchase the instant apartment, they sought a housing security loan regarding the purchase of the instant apartment. However, the Defendants did not reside in the instant apartment and have a person residing in the instant apartment but only move-in report, and prepared a false sales contract with the condition that prior security loans should be granted to the victim by cancelling the senior mortgage and move-in report to obtain prior security loans, etc., on condition that prior security loans should be granted to the victim.”

On July 28, 2016, Defendant A received contact from PO to explain what relationship "K is confirmed as having made a move-in report," and "K is living free of charge due to her relative. There is no problem in granting a loan," and "K may not prepare a written confirmation of free lease because it is in a foreign country" from P upon receipt of a request from P to "K may not prepare a written confirmation of free lease because it is in a foreign country", and M was called as "I know that it is moving-in from P to the seller's relative."

However, in fact, from November 26, 2015, the lessee K was in a state of having acquired preferential rights by making a move-in report and obtaining a fixed date after obtaining a lease contract with the lease deposit amounting to KRW 780,000,000 for the instant apartment from November 26, 2015. Therefore, the victim could not obtain a senior security. In such a case, it was impossible for the victim to lend KRW 635,50,000 to the instant apartment as security.

As a result, the Defendants conspired with L, M, etc. in order and deceiving the victim as above, and then acquired 425,258,315,000 won from the Defendant’s bank account in the name of the national bank account in the name of the Defendant, after deducting 75,000 won of the loan amounting to 633,50,000 won of the loan, and 70,620 won of the national housing bonds, from the establishment of the right to collateral security (hereinafter “mortgage”) on July 29, 2016, the Defendants acquired 63,50,000 won of the loan amounting to 63,350,000 won, from the loan amounting to 635,50,000 won.

Summary of Evidence

[2017Gohap637]

1. Each legal statement of the witness0, J and B;

1. Each police suspect examination protocol of Q, R, S, T, and U;

1. Each police statement of P;

1. A complaint;

1. Management date, receipts, entry and exit details, each real estate sales contract, recording form, recording book, perusal details, real estate transaction contract certificate, receipts, certificates of completion of report on real estate transaction, receipts, facts confirmation, copies of passbook A, certificates of passbook transaction, certificates of confirmation of account transaction, certificates of confirmation of account transfer, documents on search and seizure warrant and reply, written loan transaction agreement, loan transaction agreement, mortgage contract, entry and exit agreement, receipt, receipt, loan receipt, deposit receipt, statement, report on the current status of lease investigation, details of transfer generation inspection, apartment lease contract, conditional loan management record, name certificate, content certification, mortgage, lease contract, CD;

1. Investigation report (to submit materials for reference, details of the call of reference witnesses, materials for suspect, details of flow of funds for damaged funds, and submitting materials by complainants);

1. Previous records of judgment: Criminal history records, investigation reports (report on the confirmation of crimes, etc. during the period of repeated crimes A by a suspect), personal confinement status, judgment (2017Gohap809);

1. Defendant B’s legal statement

1. Each legal statement of the witness0 and the J;

1. Copy of some police officers and suspect examination protocol of prosecution against A;

1. Copies of each police interrogation protocol against L, J, Q, R, S, T, or U;

1. Copies of each police statement concerning P;

1. A complaint;

1. The management date, receipts, entry and exit details, each real estate sales contract, recording form, recording book, perusal details, real estate transaction contract certificate, receipts, certificates of completion of report on real estate transactions, receipts, facts confirmation, copies of passbook A, certificates of passbook transaction, certificates of confirmation of account transaction, certificates of confirmation of account transfer, documents on search and seizure warrant and reply, written loan transaction agreement, loan transaction agreement, mortgage contract, entry and exit statement, public stamp receipt, receipt of loan entry and exit statement, receipt, receipt of deposit and withdrawal statement, books, report on the current status of lease investigation, details of transfer generation inspection, apartment lease contract, conditional loan management record sheet, name

1. Investigation report (Submission of reference materials, details of reference witnesses J currency, submission of suspect L documents, details of victim cash flow, submitted materials by the complainant, and suspect interrogation protocol attached);

Application of Statutes

1. Article applicable to criminal facts;

Defendants: Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes; Articles 347(1) and 30 of the Criminal Act

1. Aggravation for repeated crimes;

Defendant A: the proviso to Article 35 and Article 42 of the Criminal Act

Judgment on the defendant A and his defense counsel's assertion

1. Summary of the assertion

The Defendant merely received, at the request of M., the purchaser of the apartment of this case, the remainder of the bank loans secured by the apartment of this case from the purchaser of the apartment of this case in order to repay the loans to Daejeon Western Saemaul Savings Depository. The above loan was led by B, etc., and the Defendant was not willing to commit the crime of fraud by acquiring bank loans. The Defendant was notified that he had priority in the apartment of this case to B, who arranged the bank loans, and the Defendant was aware that he was the lessee of the apartment of this case and did not belong to the lessee who is residing free of charge by K, and thus did not participate in the act of committing the crime of fraud.

2. Determination

According to the following circumstances acknowledged by the evidence duly adopted and examined by the court, the Defendant, along with B, L, M, etc., conspired to get a loan to the bank by concealing the fact that the lessee has the right to set up the lease deposit at KRW 780 million in the apartment of this case and the lessee with a fixed date, and then, to P, who is the employee in charge of lending the bank of the victim bank, “K is one’s relative and is residing in the apartment of this case without compensation.” The Defendant and his defense counsel’s assertion are not acceptable.

① The Defendant’s deduction of the Plaintiff’s purchase price of the instant apartment (930 million won) or the KB bank price (95 million won, 2017Gohap637 investigation record 1) of the instant apartment from the KB bank price (Evidence No. 1) of the instant apartment from [Attachment No. 1] 6 pages (Evidence No. 1) of the instant apartment, from the amount of the bank loans (loan principal amount to KRW 20 million and the maximum amount of the mortgage claims to KRW 260 million) and the obligation to refund the lease deposit to K, it is apparent that there is little ability to secure the instant apartment.

② The Defendant, who introduced L from J as the purchaser of the instant apartment complex, was refused to obtain a loan from the community credit cooperatives and credit unions, but the Defendant refused to obtain a loan from V on May 2016, but did not proceed with the process of lending by refusing to request the verification of the tenants. The Defendant was aware that the foregoing reason for refusal was insufficient to secure the collateral of the instant apartment, as seen earlier, and that it is difficult to obtain a loan even if the existence of a lessee with the requisite for setting up against the financial institution and having a fixed date is true.

③ The Defendant was introduced B from L to obtain a loan for the instant apartment after the instant loan was repeated and subsequently failed. In light of the relationship between the Defendant and B, L, and M and the background of introduction, etc., the Defendant was well aware that “B is so-called a loan hub,” and M is a person who sought to obtain a loan for the purpose of the purchase of a loan rather than an actual user of an apartment, rather than an actual user of the apartment.

④ On July 28, 2016, the Defendant: “K is residing free of charge in her relative; at present, K is unable to obtain a certificate of free residence in a foreign country; and if a loan is implemented, it will immediately leave the country of lessee; and then, by deceiving the victim on the current status of lessee.”

[2017Gohap637 case number 148 (Evidence No. 15)]

6. The Defendant deducted all of the costs of bank loans of KRW 63,500,000,000 from the credit amount of KRW 625,258,315 to repay senior mortgage obligations, and then remitted KRW 180,000 to L to M, respectively, among KRW 425,258,315 to L, and KRW 50,000,000 from the above KRW 18,000,000 which was remitted to L, Defendant B divided KRW 80,000,000, KRW 50,000,000 to L, and KRW 20,000,000,000 to J, and KRW 60,000,00 to Q, 40,000,000,000 to 30,000,000,000 to 30,000,000,00.

Reasons for sentencing

1. Defendant A

(a) The scope of punishment by law: Imprisonment with prison labor for three years - fifty years; and

(b) Scope of recommendations based on the sentencing criteria;

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

[Special Sentencing] Cumulative Offense

[Recommendation and Scope of Recommendations] Aggravation, 4 years of imprisonment, 7 years

The crime of this case is committed in collusion with B, L, M, etc. by deceiving the employees of the bank of the victim with respect to the existence of tenant with the requisite for setting up against against the obligor and having a fixed date, which is an important part in the evaluation of the collateral and collateral value of apartment housing, and the crime of this case is bad in nature. The crime of this case was planned to repay the existing financial institution loans by the Defendant, and the degree of the Defendant’s participation in the crime was also significant, such as falsely answering the current status of lessee. Of the criminal proceeds from the crime of this case, the amount reverted to the Defendant is more than KRW 190 million compared to other accomplices. The Defendant used the remaining money of KRW 34,667,000, out of which the amount was paid by the Defendant compared to other accomplices. Since the Defendant had the previous head prior to several times and the Defendant had the previous head of the judgment, the crime of this case constitutes the same type of repeated crime, and thus, there is no possibility of criticism against the Defendant.

However, considering the facts that the proceeds of the instant crime were distributed to accomplices, etc. and only a part of the proceeds of the crime belongs to the Defendant, the circumstances favorable to the Defendant are considered. In addition, comprehensively taking into account various sentencing conditions stipulated in Article 51 of the Criminal Act, such as the Defendant’s age, character and conduct, environment, family relationship, motive and circumstance of the instant crime, circumstances after the crime, etc., the Supreme Court’s sentencing guidelines set forth in the sentencing guidelines

2. Defendant B

(a) The scope of punishment by law: Imprisonment with prison labor for three years - thirty years; and

(b) Scope of recommendations based on the sentencing criteria;

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

【Special Convicted Person】

[Recommendation and Scope of Recommendations] Basic Field, Imprisonment for 3 years, 6 years

The crime of this case is committed in collusion with A, L, M, etc. by deceiving the employees of the victim bank to take measures to set up against against the lessee, who has an important part in the evaluation of the capability of collateral and security value of apartment buildings, and the existence of a lessee who has an important part in the evaluation of the value of collateral and the fixed date, and the nature of the crime is bad. The defendant is not an actual user of apartment complex, but an actual user of apartment complex, and is in charge of "the so-called "loan hub", such as seeking M intending to rent as a purchaser for the purpose of buying a secured loan, and selling a bank loan secured by the apartment of this case, etc.", and the amount of KRW 80 million out of the criminal proceeds from the crime of this case was reverted to the defendant. The defendant was a previous criminal record at several times. The damage recovery was not made at all

However, the circumstances favorable to the defendant should be taken into account such as the defendant's age, character and conduct, environment, family relationship, motive and circumstance of the crime of this case, circumstances after the crime of this case, etc., comprehensively considering various sentencing conditions under Article 51 of the Criminal Act, such as the defendant's age, character and conduct, family relationship, motive and circumstance of the crime of this case, circumstance after the crime, etc., are divided into and distributed to accomplices, etc. to part of the proceeds of the crime of this case, which belongs to the defendant.