Defendant 1 and two others

Defendants

100.000

Judicial Trainees Cho Jae-ju

Seoul Eastern District Court Decision 2004Da3166, 3206 (Consolidated), 3353 (Consolidated), 2005Kadan570 (Consolidated) Decided April 8, 2005

The judgment of the court below is reversed.

Defendant 1 shall be punished by imprisonment for two years, by imprisonment for one year and two months, and by imprisonment for three months, respectively.

The number of days of detention before the pronouncement of the judgment below shall be 169 days in the above sentence against Defendant 1; the nine days in the above sentence against Defendant 2; and the two days in the above sentence against Defendant 3.

However, with respect to defendants 2 and 3, the execution of each of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

Defendant 2 and Defendant 3 shall be subject to probation and shall be ordered to provide community service for 120 hours.

Of the facts charged against Defendant 2, the charge against the alteration of securities and alteration of securities shall be acquitted.

1. Summary of grounds for appeal;

(a) Fact-finding (Defendant 1, 3)

(A) Criminal facts of the court below (Defendant 1)

Co-defendant 2 and Defendant 2 conspired to commit this part of the crime. In accordance with the direction of Defendant 2, Co-Defendant 2, who was a workplace company, only received KRW 50 million borrowed from Defendant 2 to transfer it to the Customer.

(B) Facts constituting the crime of the court below

(1) Defendant 1

There was no conspiracy between Nonindicted 2 and Defendant 3 to commit this part of the crime. Nonindicted 2’s instruction as a workplace company was merely delivered to Defendant 3.

(2) Defendant 3

There was no conspiracy between Nonindicted 2 and Defendant 1 to commit this part of the crime. It was only promoted according to the direction of Nonindicted 2 and Defendant 1, who was a workplace company.

(C) Facts constituting the crime of the court below (Defendant 1)

Although each of the instant transactions had the intent or ability to repay, it was inevitable to pay the price due to the failure to properly perform the projects planned thereafter. In particular, the victim Nonindicted 3 and Nonindicted 4 had been set up a physical security.

B. Unreasonable sentencing (Defendants)

The sentence of the lower court against the Defendants is too unreasonable.

2. Ex officio determination

Before determining on the grounds for appeal by the Defendants, the following are considered ex officio.

A. As to Defendant 1 and 3

(1) We examine the fraud against the Defendants stated in Paragraph (2) of the facts constituting the crime of the lower judgment. The prosecutor prosecuteds the Defendants as acquiring pecuniary advantage equivalent to KRW 52,483,200, excluding KRW 22,492,80,000, which was paid as down payment from Nonindicted 5’s victim Nonindicted 5 as down payment. The lower court also convicted the Defendants. However, even if the Defendants did not have the intent or ability to pay the down payment of the electronic equipment, as stated in Paragraph (2) of the lower court’s facts constituting a crime of fraud, if the Defendants were to have obtained electronic equipment of KRW 74,976,00 from the victim around June of the same month, and received delivery of KRW 74,976,00 from the victim, it does not affect the victim’s pecuniary advantage equivalent to the remainder of the down payment of the goods (in case of taking over the goods, if there is a delivery of property by deception, which is a crime of fraud, this does not directly affect the victim’s money of down payment).

(2) We examine the fraud against Defendant 1 as stated in Article 3-2(b) of the facts constituting the crime of the lower judgment. The prosecutor prosecuted that the Defendant did not pay KRW 45 million in total after having received the registration of ownership transfer from the victim Nonindicted 6 on the forest owned by the victim Nonindicted 7, even after having received the registration of ownership transfer under the name of Nonindicted 7, and thereby acquired pecuniary profits equivalent to the same amount. The lower court also convicted the Defendant. However, even if the Defendant received the registration of ownership transfer, if he did not have the intent or ability to pay the intermediate payment and the balance, and he received the registration of ownership transfer from the victim Nonindicted 6 under the name of Nonindicted 7 as described in Article 3-2(b) of the facts constituting the lower judgment, this would not be deemed to have obtained the victim

(3) In this respect, the part of the lower judgment against the Defendants cannot be maintained any longer.

(C) The first instance court rendered a single sentence against Defendant 1 on the ground that each of the above crimes and the remaining crimes constituted concurrent crimes under the former part of Article 37 of the Criminal Act. As such, the part of the lower judgment against Defendant 1 cannot be reversed in its entirety.

However, as seen above, when comparing the criminal facts of the taking advantage of profits and the criminal facts of taking advantage of property, the amount, the form of deception, and the content of damage are the same as the substance and there is no difference in the basic facts, it cannot be deemed that the defendant exceeded the identity of the facts charged, and there is no disadvantage in the defense of the defendants. Thus, even if there is no modification procedure of the indictment, each part of the facts charged can be recognized as criminal acts of taking advantage of property, as seen below.

B. Defendant 2 (Article 4 of the Original Judgment of the court below)

(1) Summary of this part of the facts charged

(A) On October 3, 2003, the Defendant received a copy of a promissory note with the place of payment (name omitted), the place of payment (name omitted), the place of payment (name omitted), the place of payment, and the place of payment (name omitted), and asked Nonindicted 9 to correct the difference in amount, and Nonindicted 9 altered a copy of a promissory note in the name of the representative director (name omitted) in the name of the securities company (name omitted), the amount of KRW 50,000,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,000.

(B) In October of the same year, the Defendant issued to Nonindicted 10 a promissory note altered as above at the second floor of the Seoul High-speed Bus Terminal located in Seocho-gu Seoul, Seoul, and exercised it.

(2) The judgment of this Court

Article 214(1) of the Criminal Act provides that “the alteration of securities” refers to the alteration without authority in the entry of securities in the name of another person, which is authenticly formed. As such, the forged securities does not constitute the object of alteration. In full view of the prosecutorial investigation record against the Defendant, the copy of the prosecutorial investigation record against Nonindicted 11, the part of the prosecutorial investigation record on the Defendant’s interrogation of the suspect, the police protocol against Nonindicted 11, and the copy of the police protocol against Nonindicted 12, etc., the fact that the instant promissory note delivered by the Defendant from the old type was not the authentic promissory note, but the fact that the instant promissory note, which was delivered by the Defendant in the old type, was a forgery of the previous unit. Therefore, even if the Defendant, without authority, changed the face value of the instant promissory note into “20 million won” and exercised a revised promissory note, it cannot be punished as the crime of alteration of securities and the crime of exercising the

Although there is no proof of the facts charged as above, the court below found the defendant not guilty under the latter part of Article 325 of the Criminal Procedure Act, the court below found the defendant guilty and rendered a single sentence on the ground that the remaining crime and concurrent crimes under the former part of Article 37 of the Criminal Act are concurrent crimes. Of the judgment below, the part on the defendant 2 cannot be exempted from the whole reversal.

3. Conclusion

The judgment of the court below shall be reversed ex officio pursuant to Article 364(2) and (6) of the Criminal Procedure Act, and the judgment shall be rendered again after pleading as follows:

The summary of the criminal facts and evidence of the defendants recognized by the court below is as follows: "Acquisition of a considerable amount of proprietary benefits by receiving the ownership transfer registration from an electronic device 74,976,800 won, and by not paying the remainder of KRW 52,483,200,000, even if the amount equivalent to KRW 74,976,000 has been received from the electronic equipment and by not paying at all, the sum of KRW 52,483,200 shall be paid," and Article 3-2 (2) (4) through (14) of the criminal facts of the judgment of the court below shall be deemed as "acquisition of proprietary benefits equivalent to the sum of the intermediate payment and the remainder of the evidence, even if the ownership transfer registration has been completed, by not paying KRW 45,00,000,000,000," and Article 369 of the Criminal Procedure Act shall be cited as it is as stated in each of the relevant columns of the court below.

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

A. Defendants: Articles 347(1) and 30 of the Criminal Act (the crime No. 1 and 30 of the Criminal Act against Defendant 1, the fraud under paragraphs (1) and (2) of the Criminal Act, the criminal facts against Defendant 2, the fraud under Paragraph (2) of the criminal facts against Defendant 3, and the choice of imprisonment with prison labor)

(b) Defendant 1: Article 347(1) of the Criminal Act (the fraud of each of the crimes listed in Article 3-1(a) through (c) of the Criminal Act, each of the imprisonment options), Article 3(1) and (2)1 of the Act on Special Cases concerning the Settlement of Traffic Accidents, Article 268 of the Criminal Act (the fact of crime No. 3-4(d) of the Act on Special Cases concerning the Settlement of Traffic Accidents,

1. Aggravation of repeated crimes;

Defendant 1: Article 35 of the Criminal Act ( against each of the crimes of fraud)

1. Aggravation of concurrent crimes;

Defendant 1: the former part of Article 37, Article 38(1)2 and (2), Article 50, and the proviso of Article 42 of the Criminal Act

1. Calculation of days of detention;

Article 57 of each Criminal Code (the period of detention pending trial was included in the punishment of the lower court against Defendant 2. However, according to the records, Defendant 2 was arrested on May 18, 2004, and was released on the 20th of the same month, and was detained on October 23 of the same year, and was detained on the same criminal facts on October 28 of the same year. Accordingly, the number of detention pending trial prior to the pronouncement of the lower judgment is the total of 9 days = 3 days [from May 18, 2004 to 20 days of the same month] + 6 days (from October 23, 2004 to 28 of the same month)];

1. Suspension of execution;

Defendant 2 and 3: Article 62(1) of the Criminal Act

1. Probation and community service;

Defendant 2 and 3: Article 62-2(1) of the Criminal Act

1. As to the assertion of denial of conspiracy

(1) Criminal facts Paragraph (1) (Defendant 1)

Defendant 1 asserts that there was no conspiracy to commit this part of the crime. However, in full view of Defendant 2’s statement in the trial court at the trial court at the trial court at the court below, Defendant 2’s conspiracy relation between the Defendant and Defendant 2 is recognized. In full view of the evidence duly examined and adopted at the court below (in particular, the second examination of Defendant 1, the third examination protocol of the prosecution, and the examination protocol of the prosecution against Defendant 2).

(2) Criminal facts Paragraph (2) (Defendant 1, 3)

The Defendants asserts that there was no conspiracy to commit this part of the crime. According to the evidence duly examined and adopted by the lower court, the following facts are recognized. Nonindicted 2 is the executive director of the corporation (title omitted), Defendant 1 is the head of the planning office of the said company, and Defendant 3 is the persons working as the senior managing director of the said company. The Defendants were well aware that the above company’s liabilities exceed KRW 200 million at the time of February 2003, it is difficult for employees to pay monthly salary, and even if they were supplied electronic equipment on credit by the victim Nonindicted 5, even if they were supplied by the victim Nonindicted 5. Nevertheless, Defendant 3 received instructions from Nonindicted 2 and Defendant 1, and received delivery of electronic equipment amounting to KRW 74,976,00 as stated in the criminal facts. According to each of the above facts acknowledged, there is also a conspiracy between Nonindicted 2, Defendant 1 and Defendant 3.

2. As to the assertion of denial of defraudation (Defendant 1)

The Defendant is dissatisfied with the intent or ability to pay the price at the time of each of the instant transactions. However, according to the evidence duly examined and adopted by the lower court, the lower court acknowledged the fact that there was no intent or ability to pay the price at the time of each of the instant transactions (in particular, the Defendant: Nonindicted 3 and Nonindicted 4 created a physical security even for the victim Nonindicted 3 as indicated in the summary of the evidence. According to the evidence recorded in the summary of the evidence, the Defendant created a right to collateral security on the building located in Seoul (detailed address omitted) and created superficies and a right to collateral security on the forest located in Newnam-ri as indicated in Article 3-C(C) of the Criminal Act, if he was aware of the fact that the Defendant created a right to collateral security on the building located in Seoul (detailed address omitted) to the victim Nonindicted 4 as stated in Article 3-C(C) of the Criminal Act, but on the other hand, it is recognized that the said housing was insufficient in the relationship with the lessee having priority over the deposit amount of KRW 45 million, and that forest is insufficient. The Defendant also did not have the intent or ability to pay at the time of the instant investigation.

① Defendant 1 again delivered goods on credit without the intention or ability to pay the price, and then did not constitute a crime of fraud, such as dumping, etc. up to low prices. Defendant 2 was unable to agree with the victims of the crime of fraud other than the victim Nonindicted 1 by committing the same type of crime in 2001 and 2002. Defendant 3 also did not agree with the victim Nonindicted 5 until the trial of the case. In addition, various sentencing conditions, such as the motive and background leading up to the crime, circumstances after the crime, the Defendants’ age, character and conduct, environment, etc., are considered.

Of the facts charged against Defendant 2, the summary of the facts charged as to the alteration of securities and the exercise of altered securities among the facts charged in the instant case is as shown in Article 2-2-2 (2).

Judges Kim Jong-dae (Presiding Judge)