2012 Highest 2207, 2309(combined), occupational embezzlement, fraud, theft

2013 initially 45 Application for a compensation order

A

Isecat (prosecution) and dong residents (public trial)

Attorney B (Korean National Assembly)

C

January 24, 2013

A defendant shall be punished by imprisonment for one year.

An application for compensation by an applicant for compensation shall be dismissed.

Punishment of the crime

Criminal Power

On July 5, 2010, the Defendant sentenced the Seoul Southern District Court to two years of imprisonment for violating the Act on Aggravated Punishment, etc. of Specific Crimes, etc., and completed the enforcement of the sentence on May 6, 2012 at the Seoul Southern District Court.

Criminal facts of the 2012 Highest 2207 case

1. Fraud;

On May 23, 2012, the Defendant heard from F, an employee of the East-gu Seoul Metropolitan Government “Ecafeteria,” that there is a problem as F’s G Lart car under the name of F as the ‘G Lart car’ in the name of F, and falsely speaks F, “I would resolve the problem of car installments and attorney fee on the face of the week,” and let F transfer F’s false words to F’s H.

However, even if the defendant receives money from F or the victim, he did not have the intention or ability to resolve the installment or legal problem of the car.

On May 24, 2012, the Defendant, by deceiving the victim as above, received KRW 7 million from the victim to the new bank account under the name of the first bank under the name of the victim, around June 7, 2012, the amount of KRW 3 million under the name of the attorney at law from June 7, 2012 to the post office account under the name of the defendant, and the amount of KRW 500,000,000 in total to the bank account under the name of the Buddhist winner on June 22, 2012.

2. Occupational embezzlement;

The Defendant, from September 29, 2012 to October 30, 2012, was engaged in delivery business of the Okwikset service at “J” operated by C from around October 29, 2012.

A. At around 14:00 on October 24, 2012, the Defendant received from C one of the 5th floor of the K-building in Guro-gu Seoul Metropolitan Government to deliver a mobile phone to a non-surging mobile phone agent located in Yangcheon-gu Seoul Metropolitan Government D, at the above 'L’ office, the Defendant received one of the victim M, EL in the 'L’ office, e.g., the victim M., EL-based observers smartphone 1, scar 3 smartphones, and Samsung Ggalthot 2 smartphones.

While the Defendant kept three of the above smartphones on behalf of the victim, he delivered one of the above smartphones smartphones, and one of the smartphones 2 smartphones as a mobile phone agent instructed by Samsung Tallon 2 smartphones, and he embezzled the remainder of the market value of 99,900 won at his own discretion with 3 smartphones, which is worth 99,90 won at the remainder.

B. On October 30, 2012, the Defendant received four smartphones, the sum of the market value of the victim RR owned by Samsung Ggalthon in Samsung Galthon, which is equivalent to KRW 4,395,600, in the above Ngalthon store in Yeongdeungpo-gu Seoul, Seoul, under the direction of the Defendant to deliver a mobile phone from the Ogalon store No. 417, 417, Dong-gu, Seoul, to the 'Balthon P in Dongjak-gu, Seoul.

The defendant did not deliver the above four cell phone units to the above Q Q, which he had been instructed during his business keeping the above four cell phone units for the victim and embezzled them at will.

3. Larceny;

At around 12:20 on November 14, 2012, the Defendant: (a) served as a principal employee at a gas station operated by the victim S in the “Yannam-dong Inter-dong Highway” square; (b) was stolen with money and valuables worth KRW 750,000,000 in cash owned by the said victim and one bicycle worth KRW 950,000 in the market value of U owned by the said gas station, which was set up in the said gas station.

Criminal facts in the case 2012 Highest 2309

The defendant was engaged in the delivery service of Okwikset in the cooperation company of V's ‘W', ‘X'.

At around 18:00 on October 31, 2012, the Defendant received two gallon 3 smartphones equivalent to KRW 1,900,00 in the victim's market in the above "Z" store in Mapo-gu Seoul as "AB located in the same Gu in the "Z" store in the same Gu.

While the Defendant kept two smartphones on behalf of the victim, the Defendant did not deliver them to the mobile phone agent instructed, and embezzled them at will.

Summary of Evidence

[2012 Highest 2207]

1. Defendant's legal statement;

1. Each protocol concerning the examination of the accused by the prosecution;

1. Statement of each police statement of S, U, H, and C;

1. C Complaints (including attached documents);

1. Previous records of judgment: Criminal records and investigation reports (verification of previous records of the same kind and results of dispositions, and attachment of a copy of judgment, and confirmation of the expiration date of execution);

[2012 Highest 2309]

1. Defendant's legal statement;

1. A V statement;

1. A report on internal investigation:

Application of Statutes

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

Articles 347(1), 356, 355(1), and 329 of the Criminal Act; the choice of imprisonment

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Dismissal of an application for compensation order;

Articles 25(3)4 and 32(1)1 and 32(3)3 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (where an application for compensation has been filed after the closure of pleadings, there is concern that the procedure of trial may be delayed, and it is not reasonable to issue an order for compensation in criminal proceedings).

Judgment on the defense counsel's mental disability claim

A defense counsel asserts that the defendant was in a state of mental disorder at the time of the crime of this case due to a divesive disorder for which it is difficult for the defendant to restrain shockion. According to the medical certificate, etc., it is recognized that the defendant is emotional unstable and has an impediment to shock adjustment, but it is difficult to view that the defendant was in a state of weak ability or decision-making ability to discern things at the time of the crime of this case due to such mental disorder. Thus, the defense counsel's assertion is without merit.

Reasons for sentencing

1. Fraud;

【Determination of Type 1 of General Fraud】

[Scope of Recommendation] Imprisonment with prison labor for six months - One year and six months;

2. Crimes of occupational embezzlement:

[Determination of Punishment] Type 1 of Embezzlement

[Scope of Recommendation] Imprisonment with prison labor for April - One year and four months;

3. Theft;

[Determination of Punishment] General Larceny

[Recommendation Scope of Punishment] 10 months of imprisonment - 2 years (Aggravation as repeated crime of the same kind)

4. Standards for handling multiple crimes: Imprisonment with prison labor for 10 months - December; and

5. Decision on sentence: One year of imprisonment (the punishment shall be determined, considering the amount of damage, character and conduct of the defendant, attitude after committing the crime, health, home environment, criminal records, etc.).

Judges Song Ma-han