(영문) 서울중앙지방법원 2014.3.6. 선고 2013고합964 판결

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Cases

Defendant

Prosecutor

Defense Counsel

Imposition of Judgment

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글꼴

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줄 간격

자간(%)

(영문) 서울중앙지방법원 2014.3.6. 선고 2013고합964 판결

가.특정경제범죄가중처벌등에관한법률위반(사기)나.유사수신행위의규제에관한법률위반

Cases

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

B. Violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission

Defendant

1. A;

2. B

Prosecutor

Is-Pacs (Courts) and the highest court (Courts)

Defense Counsel

Attorney C, D (for Defendant A)

Law Firm E, Attorney F (Defendant A)

Attorney G (Defendant B)

Imposition of Judgment

March 6, 2014

Text

Defendants shall be punished by imprisonment for one year and six months.

Reasons

Criminal History Office

The Defendants recruited investors in a way of financing sod by undermining a large number of unspecified retirees, home owners, etc., and received money in the name of the investment money from them, and paid dividends to investors for a certain period of time. The Defendants agreed to attract several investors and to pay solicitation fees to those who recruited the above investors. They conspired to commit the above crimes, such as inducing profits in mind and HI, etc., in order to attract profits, and then, Defendant A made the acquisition of a Dormant corporation for the establishment of a corporation, such as a corporation I (hereinafter referred to as "the corporation"), or registered the Dormant corporation as an auditor in order to obtain the appearance of the company as normal company such as I (hereinafter referred to as "the corporation"), manage and operate the I Station, and recruit investors. Defendant B, in relation to the establishment of a corporation, listed in the company as an officer, such as company director, etc., and, in order to create the appearance of the company, recommended the investors to gather and operate the I Station and its branch office.

1. Defendant A

(a) Violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission;

No person shall engage in a business of raising money under the pretext of deposits, installment savings, installment savings, deposits, etc. by an unspecified number of people under an agreement to pay the total amount of principal or an amount exceeding the amount of principal in the future without obtaining authorization, permission, registration, or report under the finance-related Acts and subordinate statutes.

Around February 27, 2012, the Defendant: (a) in collusion with H and lower-ranking agents, etc., who agreed to engage in trading of stocks without obtaining authorization, permission, or filing a registration or report under the finance-related Acts and subordinate statutes; (b) the representative H has been working for N 20 years and operated and managed listed stocks; (c) the general team leader operating and managing at least 20 billion won of the national representative movement fund with entrusted funds of KRW 50 million and generated profits at least 100,000,000 won in total from 10,000,000 won in 20,000,000 won in 10,000,000 won in 20,0000 won in 10,000 won in 20,000 won in 20,000 won in 30,000 won in 20,000 won in 20,000 won in 20,000.

(b) Violation of the Act on the Aggravated Punishment of Specific Economic Crimes;

On February 27, 2012, the Defendant entered into a contract with L with the victim, as described in paragraph (1) at the office of the I station branch in the fourth floor of the Gangnam-gu Seoul, Seoul, and as described in paragraph (1).

However, the fact that H did not have any record of having graduated from M University or worked in N, and there was no fact that H had been operating the national representative sports team pension or trading listed stocks with the commission fund of KRW 500 million, and there was no fact that H had been establishing a corporate asset management company. (2) The amount of profits from stock transfer trading was extremely limited, and the Defendant did not use the investment funds received from investors to generate profits through the entire stock transfer trading, but rather used most of the funds for various expenses, such as investment solicitation allowances, dividends, office rent, etc. In particular, since the characteristic of stock trading was very uncertain whether it was difficult to pay dividends solely because the profits from the stock trading was a situation in which it was difficult to generate dividends, it was rather possible to provide investors such as the victim with agreed profits by the unique trading method of investors, and thus, it was difficult to secure the stable payment of dividends to investors. (3) In addition, in the case of investment trading, it did not have any specific form of profit-making and dividend in the case of investment trading, and it did not have any specific form of capital from investors.

Nevertheless, the Defendant: (a) conspired with the above H and subordinate recruiters; (b) knew the victim as above; (c) received KRW 10 million from the victim under the name of investment in stock trading as above; (d) from February 27, 2012 to November 16, 2012, the Defendant acquired a total of KRW 4,468,090,000 from the victims total of 158 victims on total of 538 occasions under the name of investment in stock trading as shown in the attached list of crimes (1).

2. Defendant B

(a) Violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission;

around August 16, 2012, the Defendant: (a) in the office located in the second floor of the Gangnam-gu Seoul Building, in collusion with H and subordinate solicitors, etc. without obtaining authorization, permission, registration, or reporting under the finance-related Acts and subordinate statutes; and (b) provided explanation of investment as described in paragraph (1) of Article 1; (c) received KRW 100 million from the said P as the stock transfer investment fund; (d) from January 5, 2012 to November 16, 2012, in the office located in the I Station branch, the Gangnam branch, and the head office, etc. of Gangnam-gu, the Defendant received money from 136 persons in total five times as indicated in the attached Table of Crimes (2) under the name of stock transfer investment fund; and (e) agreed to raise and pay money in excess of the principal amount in the future from a large number of unspecified deposits, installment savings; and (e) received money in the name of deposits, installment savings, etc. under the name of a large number of investors.

(b) Violation of the Act on the Aggravated Punishment of Specific Economic Crimes;

On August 16, 2012, the Defendant entered into a contract with the victim P, as described in paragraph 2(a), at the office of the I Gangnam branch located in the second floor of the building in Gangnam-gu, Seoul, and as described in paragraph 2(a).

However, as described in paragraph 1(b), H's weak history was different from the fact, and as long as the investor's unlimited expansion did not occur, the repayment of principal and interest for the subordinate investors is inevitable.

Nevertheless, the Defendant: (a) conspired with the above H and subordinate recruiters; (b) received KRW 100,000 from the victim to November 16, 2012, a total of KRW 4,371,36,204 from the victims total of KRW 525 times in total under the pretext of investment in trading in stocks, as shown in Section 1-b; and (b) received from the victim from January 5, 2012 to November 16, 2012, a total of KRW 136,00,000 from the victims under the pretext of investment in trading.

Summary of Evidence

1. The defendants' respective legal statements (in the case of the defendant A, the date of the second trial)

1. Each prosecutor's interrogation protocol against the Defendants

1. A copy of each protocol of suspect examination of H by the prosecution;

1. A copy of each police interrogation protocol against Q, R, S, T, U,J, V, W, X, Z, AA, L,C, AD, P, AE, AF, AH, AH, and AJ;

1. Copies of each police statement made to AK, AL, and AM;

1. A copy of the statement N;

1. Copy of the corporate register;

1. Business registration certificate;

1. Printeds;

1. Academic inquiry;

1. A certificate of work history;

1. Notification of investigation and answer;

1. Investigation by institutions in charge of institutions and financial institutions (I and AO);

1. Notification of a suspected business entity without permission;

1. Report on internal investigation (report on payment of deposits and submission of investment certificates), and report on internal investigation ( analysis of financial accounts);

1. Investigation report (report on amounts received without delay by each branch office of a suspect);

Application of Statutes

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

Articles 6(1) and 3 of the Act on the Regulation of Conducting Fund-Raising Business without Permission, Article 30 of the Criminal Act (a comprehensive imprisonment with labor), Article 3 subparag. 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 351, 347(1), and 30 of the Criminal Act (a comprehensive imprisonment with labor)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of each Criminal Code [ within the scope of adding up the long-term punishment for the crime of Violation of the Special Act on the Punishment, etc. of Specific Economic Crimes (Fraud) with heavier punishment]

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Code (see, e.g., Articles 53 and 55(1)3 of the Criminal Code)

Reasons for sentencing

1. The scope of punishment: Imprisonment with prison labor for not less than one year and six months and not more than seven years and six months;

2. The scope of recommendations: Imprisonment with prison labor for not less than two years but not more than five years; and

[Types of Crimes] Fraud, organizational fraud, and not less than five billion won but less than five billion won

[Special Mitigation Measures] Simple Doctrine, the occurrence of a crime or the expansion of damage to the victim is reasonably responsible;

[Special Aggravationd Elements] When committing a crime against an unspecified or large number of victims or repeatedly over a considerable period of time

[Determination of the Recommendation Area] Reduction Area

3. Determination of sentence: One and half years of imprisonment; and

Defendant A had the same criminal record, which was sentenced to punishment by fraud or act of fund-raising without permission, and Defendant B had the record of being punished by fraud. Defendant B also had the record of being punished by fraud. The crime of this case is a systematic and systematic collective crime against many unspecified victims, which is a large amount of damage up to KRW 9.2 billion in total, and most damage caused by the crime of this case are not recovered. In light of the fact that the possibility of recovery of damage in the future is very rare, punishment by imprisonment for the Defendants is inevitable.

However, the defendants recognize all the crimes of this case and reflects on the fact that the crime of this case was committed under the lead of H, and the defendants appear to have not been only to have been engaged in simply. In some investors, the proceeds from the investment fund were paid a considerable portion, and the actual amount of damage would not reach the amount of damage indicated on the facts of crime. Defendant A actively endeavored to recover damage, such as partial repayment of damage to victims, etc., and certain victims do not want the punishment of Defendant A, and want to take into account the favorable circumstances in favor of the Defendants, and determine the punishment by leaving the lowest limit of the sentencing range of the recommended sentence according to the sentencing guidelines in consideration of all other factors of sentencing specified in the argument of this case.

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

Judges

Equal judges of the presiding judge;

Judges Lee Jae-sik

Judges Ooman

Note tin

1) A public prosecution against H was instituted earlier than the Defendants under this Court 2013 Gohap813, but the date was presumed to have been determined by the lower court’s decision to suspend the execution of detention due to the unknown state of consciousness.