Defendant

Kim Jong-seok (prosecutions) and a trial for a crym;

Attorney Park Jae-con (National Election)

Applicant for Compensation

Law Firm DelS, Attorneys Lee Dong-soo et al.

A defendant shall be punished by imprisonment for four years.

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

The Defendant, while serving as an insurance solicitor of the Korean Commercial Bio-resources from around 1997, maintained friendship with the Nonparty (applicant for compensation) who became aware of as a customer of the insurance from around 1997 (the Nonparty 61 years of age), was aware of the fact that the victim had much property and was able to make investments in the fund safe and high return rate of return, thereby receiving money from the Defendant to use the money for the Defendant’s debt repayment, living expenses, etc.

1. Fraud related to the Korean Commercial Securities Fund;

Around August 2008, the Defendant: (a) on the victim’s villa located in the Crossing-gun of Gangwon-do, the victim made a false statement to the effect that “The rate of return on investment has been 6.5% per annum after the lapse of 6.5%; (b) investment is good; and (c) the Defendant issued a false statement to the Fund; and (d) the Defendant issued a false statement to the Fund; (b) however, the Defendant thought that the Defendant would use the victim’s money for repayment of debts, living expenses, and other stock investments instead of investing in the Fund, and thus, did not have any intent or ability to recover the investment money by investing in the Fund even if he/she receives the money from the victim.

Around August 11, 2008, the Defendant received KRW 49,210,000 from the victim to the foreign exchange bank account in the name of the Defendant’s name as a fund investment deposit, and received KRW 49,210,000 in total seven times from the above date to June 22, 2012, as shown in the attached Table of Crimes (1).

2. Fraud related to the fund of chip securities;

Around December 2011, the Defendant called the victim at the Defendant’s residence located in Yangyang-si ( Address omitted) Yangyang-si, and made a false statement to the effect that “The Defendant received a fixed interest rate of 7.5% high interest rate of 7.5% from the same type securities. The Defendant was making an investment in this old unit.” However, the Defendant did not have received the payment of debt, living expenses, and other stock investments. However, even if he was transferred money from the victim, the Defendant did not have any intent or ability to recover the investment money by investing in the fund.

Around December 28, 2011, the Defendant received KRW 55,000,000 from the victim’s account of the same kind of securities in the name of the Defendant, and received KRW 400,000,000 in total on six occasions from the above date to June 10, 2013, as shown in the list of crimes (2).

Accordingly, the defendant, by deceiving the victim, received a total of 891,210,000 won, and acquired it by fraud.

1. Statement of the accused in the first protocol of trial;

1. The Nonparty (applicant)’s statement among the police interrogation protocol against the Defendant

1. Statement of the police statement of the Nonparty (applicant);

1. A written confirmation of the fund, a borrowing certificate, a bank remittance certificate, and a specification of transactions;

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. 13719, Jan. 6, 2016); Article 347 (1) of the Criminal Act (generality)

1. Dismissal of application for compensation;

Articles 32(1)3 and 25(3)3 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings [the applicant seeking compensation for the amount of 891,210,000 won acquired by deception, but at the time of the accusation, 1.12 million won won was alleged to be the amount acquired by deception, and the fact of repayment of 46 million won out of the amount acquired by deception is recognized (Article 50 of the Investigation Records). Since the scope of the Defendant’s liability is unclear, it is not reasonable to issue a compensation order in the criminal procedure];

1. Defendant and his defense counsel’s assertion

Since the crimes related to the Korean Commercial Securities and the crimes related to the same kind of securities are not a comprehensive crime but a substantive concurrent crime, it is not a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) but a general crime.

2. Determination

In the case of fraud, in which the money is acquired through deception several times against the same victim, if the criminal intent is single and the method of the crime is the same, only the comprehensive crime of fraud is established, and if the single and continuous nature of the crime is not recognized or the method of the crime is not the same, each crime constitutes a substantive concurrent crime (see Supreme Court Decision 9Do4862 delivered on February 11, 200, etc.).

The evidence duly adopted and examined by this court is acknowledged as follows: ① on August 11, 2008, the Defendant received money until June 22, 2012 by making a false statement that he/she would make an investment in the fund operated by Hanyang Securities with the victim on August 11, 2008; and on December 28, 2011, the Defendant made a false statement that he/she would make an investment in the fund operated by Hanyang Securities with the victim on June 10, 201, and he/she received money until June 10, 201, and each of the above crimes overlaps when he/she received money; ② all of the crimes related to Hanyang Securities Fund and the crimes related to Hanyang Securities Fund are paid money as an investment fund; ③ The Defendant also appears to have committed the crime with the intent to use it as a repayment of debt, living expenses, and other stocks investment purposes, and thus, the Defendant’s assertion that the aforementioned crimes were identical to the comprehensive crimes related to the aforesaid securities and his/her defense counsel’s identity.

1. The scope of applicable sentences: Imprisonment for not less than three years nor more than thirty years;

2. Application of the sentencing criteria;

【Scope of Recommendation】

General Fraud> Type 3 (at least 500 million won, less than 5 billion won), the subject to the aggravated area (4-7 years)

【Special Person under Guard】

Where a crime has been committed for unspecified or large number of victims or repeatedly over a considerable period of time;

3. Determination of sentence: Four years of imprisonment; and

The crime of this case is a situation unfavorable to the defendant, in addition to the repayment of KRW 46 million to the victim, that the defendant repeatedly acquired money from the victim over a considerable period of time under the pretext of investment money by using the occupation of the insurance solicitor and the trust relationship with the victim, and that the amount of damage was not more than KRW 890,000,000, and it is not good to commit the crime.

However, it is favorable to the defendant that the defendant recognized the defendant's mistake and reflects his mistake, that there is no penalty force other than five times a fine, and that there is no previous fault, and that the family and relatives of the defendant want to take the action against the defendant.

In addition, the defendant's age, character and conduct, environment, family relationship, motive of the crime, means and result of the crime, and all sentencing factors as shown in the arguments in this case, such as the circumstances after the crime, shall be determined as ordered.

[Attachment]

Judges Lee Dong-ju (Presiding Judge)