(영문) 서울중앙지방법원 2017.1.12. 선고 2016고합405 판결

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(영문) 서울중앙지방법원 2017.1.12. 선고 2016고합405 판결

가.특정경제범죄가중처벌등에관한법률위반(사기)나.사문서위조다.위조사문서행사라.사기

Cases

2016Gohap405, 898(combined). A. The Act on the Aggravated Punishment, etc. of Specific Economic Crimes

Violation (Fraud)

(b) Forgery of private documents;

(d) Fraud;

Defendant

1.(a)(c) A;

2. D. B

Prosecutor

The in-depth stone, the outer scarcity (each indictment), the scarcity, the Kim Hyun-ia (trial)

Defense Counsel

Law Firm C (private ships for Defendant A)

Attorney D, E

Attorney F (Korean National Assembly for Defendant B)

Imposition of Judgment

January 12, 2017

Text

Defendant A shall be punished by imprisonment with prison labor for a period of two and a half years, and by imprisonment for a period of one year.

Provided, That with respect to Defendant B, the execution of the above punishment shall be suspended for two years.

Reasons

Criminal History Office

[2016, 405]

Defendant A1) In order to let G, etc. open a mobile phone and take over a mobile phone and receive a mobile phone, etc., G, etc., sold at approximately KRW 13,00 per copy of the identification card to G, etc., and G, through H, etc., inquired or confirm whether a cell phone has opened in the future in the name of the nominal owner of the copy, etc. of the identification card; as a result of the inquiry, he issued a copy, etc. of the identification card of a person identified as not being a subscriber to a mobile phone to a person who has operated the mobile phone sales store; and I, using a copy, etc. of another person’s identification card delivered from G, by opening one or four mobile phones for each nominal owner, and then sold the mobile phone to a mobile phone operator, such as a mobile phone.

1. Forgery of private documents;

According to the order above, the Defendant sold G a copy of his identification card to G, approximately 13,00 won per page, and G, upon inquiry into whether the nominal owner of the copy of his identification card delivered by the Defendant is affiliated with the mobile phone, and as a result of the inquiry, G voluntarily prepared an application form for forgery of his personal document from around June 5, 2012 to around October 16, 201, to enter into the mobile phone sales store of "K" located in the Seogu Seo-gu, Daegu-gu, Daegu-gu, with the content of "L", "L", "M", and "M in the resident registration number column, and then arbitrarily prepared an application form for forgery of his personal document under the name of L from May 21, 2012 to October 16, 207, as well as arbitrarily prepared an application form for forgery of his personal document under the name of L from May 21, 2012.

Accordingly, the Defendant, in collusion with G, I, etc., voluntarily prepared and forged Chapter 1,667 for the purpose of uttering.

2. Uttering a falsified investigation document;

On June 5, 2012, at G and I, the Defendant submitted to the employee in charge of receipt of the application for joining the mobile phone in the name of G and I, and submitted to the employee in charge of receipt of the application for joining the mobile phone in the name of the forged L, as described in the preceding paragraph, and submitted the application for joining the mobile phone in the total of 1,667, which is the above investigation document, from May 21, 2012 to October 10, 2012, as described in the attached list of crimes.

Accordingly, the Defendant conspireds with G and I in sequence, and held each of them a falsified mobile phone application in Chapter 1,667, which is a private document on rights and obligations.

3. Violation of the Act on the Aggravated Punishment of Specific Economic Crimes;

The Defendant, along with G, I, etc., at the aforementioned “K” mobile phone sales store around June 5, 2012, even if joining the damaged company, did not have the ability or intent to pay the price of the mobile phone, communications fees, etc., even if he/she was aware of the application for joining the mobile phone in the name of “L” submitted to the victimized company, but the document was submitted as if such document was normally prepared, and deceiving the victimized company, and the equipment was received from the victimized company around June 5, 2012 the amount equivalent to KRW 93,90,00 from May 21, 2012 to October 10, 2012.

Accordingly, the Defendant conspireds with G, I, etc. in order to acquire the total amount of KRW 1,549,911,144 from the damaged company.

[2016Gohap898]

1. The Defendants’ co-principal

On June 201, the Defendants conspired to acquire money under the name of investment by deceiving the prices of scrap metal for scrap metal products purchased by Defendant A with the price of KRW 20 million and the price of scrap metal products purchased at two weeks.

On June 28, 2011, the Defendants conspired as above and conspired with Defendant B as an intermediate buyer, and Defendant A acquired the victim P who became aware of the introduction around that time by Defendant A as an intermediate buyer by means of “the amount of KRW 328 million is high value, which is already invested in KRW 200 million, and thus, it would be punished by KRW 80 million in the name of the victim if it is invested in KRW 128 million.” Accordingly, the Defendants acquired KRW 128 million from the victim P as an investment deposit and acquired it by deception around July 1, 2011.

2. Defendant A

Around July 20, 2011, the Defendant, even if he received the investment money from the above victim P, did not have an intention or ability to pay the proceeds from the scrap metal business, and the Defendant, although he did not have an intention or ability to pay the proceeds from the said scrap metal business, said victim, “If he/she makes an investment of KRW 5 million in Gyeonggi-do, he/she would give the proceeds of KRW 400,000 to KRW 500,000 per month,” and he/she acquired the amount of KRW 5 million from the victim as the investment money.

Summary of Evidence

[2016, 405]

1. Partial statement of the defendant (A)

1. Each legal statement of witness G and Q;

1. Each prosecutor's protocol of examination of the accused;

1. Each protocol of examination of the prosecution against G, R, Q, S, and I (including each substitute part);

1. Each prosecutor's statement concerning G and R;

1. Each written statement of G, Q and S;

1. Each investigation report (Evidence Nos. 1, 3, 10, 36, 48, 52, 57, 60, 71, 73, 75, 77) and accompanying documents;

1. Each judgment;

1. A certified copy of identification card and a mobile phone opening document forged;

[2016Gohap898]

1. Defendants’ respective legal statements

1. The witness B’s legal statement (as to the defendant A)

1. Each prosecutor's protocol of statement about P, T, U, and V;

1. Details of deposit withdrawal, receipts, and the assertion and determination of the defendant A and his/her defense counsel in each contract (2016, 405 case);

1. The assertion;

Although the Defendant was partly involved in the crime, such as delivering the USB containing personal information to Q three times upon Q’s request, etc., all the criminal acts listed in the crime list of this case cannot be held liable for the crime committed by the Defendant.

2. Determination

In relation to co-offenders who are jointly engaged in a crime, the conspiracy does not require any legal punishment, but is only a combination of two or more persons to jointly process a crime and realize the crime. Even if there was no process of the whole conspiracy, if the combination of intent is achieved in a successive or implicit manner among several persons, the conspiracy relationship is established, and even if there was no direct participation in the act of the commission, the person who did not participate in the act of the commission is criminal liability as a co-principal against the other co-principal (see, e.g., Supreme Court Decision 2005Do8645, Feb. 23, 2006).

Comprehensively taking account of the evidence duly adopted and examined by this court, the Defendant, using the personal information data that the Defendant delivered by G, etc., was well aware of the fact that he/she committed the crime of forging and uttering private documents, and committing the crime of fraud. G, etc., by using the data received from the Defendant from May 21, 2012 to October 10, 2012, it is recognized that the Defendant committed the forgery and uttering of private documents and the crime of fraud, as described in the crime list of this case. Accordingly, the Defendant is criminal liability as a co-principal. This is based on the following circumstances.

(a) Final judgment on accomplices;

G was convicted of four years of imprisonment at the Daegu District Court from May 21, 2012 to November 1, 2012 due to criminal facts such as "a total of 2,011 mobile phone entrance applications, including Chapter 1,667, stated in the crime log of this case," and by exercising this, "a person who was obtained 2,01 mobile phone from the victim Lplus Co., Ltd. and obtained 2,011 mobile phone fraud by fraud". G appealed appealed against the above judgment, and the Daegu High Court, the appellate court, was reversed on the ground of unfair sentencing on August 14, 2014 and sentenced to three years of imprisonment. The appellate judgment became final and conclusive on August 22, 2014 [the above criminal facts, etc.] was revoked on the ground of imprisonment with prison labor for 2014 to the Daegu District Court on January 17, 2014, and the appellate court was reversed on the ground that the appellate court was convicted of imprisonment with prison labor for 2014 years,2014.

(b) Statement of accomplices or related persons;

Q, from the end of 2011 or on the beginning of 2012, received personal information from S, etc. and transmitted it to G through R, and G opened a cell phone by using it.

In addition, in order to resolve the conflict with G, etc., the Defendant and G have introduced the Defendant, who is affiliated with Gwangju White Movement, and tried to resolve the conflict. From this point of view, the Defendant and G consistently made a statement to the effect that “The Defendant would deliver personal information and would exclude the Defendant from the transaction.” Although Q has made an inconsistent statement with the Defendant and G at the time when the transaction was made between April 6, 2012 (the first investigation agency stated that Q was around April 6, 2012, but the Seoul Central District Court stated that the Defendant was involved in the case from January 2, 2012, the Seoul Central District Court 2014Da3828). This appears to be due to the Defendant’s intervention time or due to the loss of memory following the passage of time, etc., and thus, it does not constitute any ground to suspect the credibility of the entire statement.

On the other hand, G was supplied with personal information through Q and R from December 201 to April 201, 201 in the investigative agency and this court and transferred it to W, and W was opened a cell phone using it.

A. On April 2012, Q began to be supplied with personal information directly by the president (referring to the defendant) of Q Q's upper line, which frequently entered the report on the identity theft of personal information supplied by Q Q.

From April 2012 to June 2012, from Suwon-si, the Republic of Korea: (a) purchased more than 2,000 USB from AA, AB, etc., which was accompanying the president and the president, and sent it to I, and (b) stated that “B opened a cell phone including personal information,” which had been accompanied by 2,00 times in Suwon-si, the south-si, or the Northwest-gu coffee, and the Zatum shop, etc.: (c) from September 2012 to June 2012, G made a statement that “a cell phone opened a cell phone by delivering it to I.” This case’s final judgment was final, and the execution of the sentence had already been completed, and there is no reason to give special unfavorable testimony to the Defendant.

G received personal information only from AC (referring to the Defendant) and AD from May 2012 to October 2012 at an investigative agency. AC identified the personal information file received from AD, and by finding out at least 70% of the personal information purchased from AC and opening a cell phone using it. AD’s personal information file may be distinguished because it was stored in the name of “AE” or “AF” or “AF” or “the date of issuance is included in the data received from the Chinese ship.” AD specifies the personal information file received from AD. A prosecutor, from May 2012 to October 2012, 201, took part in the remainder of the mobile phone 2,01, which was opened with the personal information file received from AD and opened from AD, with the effect that the Defendant participated in the personal information file other than the opened part.

① As above, G is specifically stating the period and content of the Defendant’s crime; ② The number of persons without any personal information received is 7-10%; in light of the total amount of personal information that the Defendant exceeded G (at least 12,00 items, it does not seem that the number of the entries in the list of crimes in this case is excessive; and there is a little difference between the time when the Defendant’s personal information was transferred to G and the time when the cell phone opening in the list of crimes in this case is located; however, a considerable time to find out whether it is possible to open by making an inquiry into a large number of personal information, even after being inquired into a single line, it may be recognized without any reasonable doubt that the Defendant took part in all of the crimes in the list of crimes in the judgment.

Application of Statutes

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

A. Defendant A: 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); Articles 347(1) and 30 of the Criminal Act (including fraud against the victim ELS) of the Criminal Act; Articles 231 and 30 of the Criminal Act; Articles 234, 231, and 30 of the Criminal Act; Articles 231, 230 of the Criminal Act; Articles 234, 231, and 30 of the Criminal Act; Articles 347(1), 30 of the Criminal Act; Articles 347(1), 30 (1), and 347(1) of the Criminal Act of the Republic of Korea

B. Defendant B: Articles 347(1) and 30 of the Criminal Act (the point of committing fraud against Victim P, and the choice of imprisonment)

1. Aggravation for concurrent crimes;

Defendant A: The first sentence of Article 37, Article 38(1)2, and Article 50 of the Criminal Act are the largest penalty provided for in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

1. Discretionary mitigation;

Defendant A: Articles 53 and 55(1)3 of the Criminal Act (The conditions favorable to the reasons for sentencing below)

1. Suspension of execution;

Defendant B: Article 62(1) of the Criminal Act (General Considerations favorable to the reasons for sentencing below)

Reasons for sentencing

1. The scope of punishment by law;

(a) Defendant A: Imprisonment with prison labor for one year and six months to twenty years and six months;

(b) Defendant B: Imprisonment with prison labor for not more than ten years;

2. Application of the sentencing criteria;

(a) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and fraud (Defendant A);

[Determination of Punishment] 50 million won or more of general fraud, and less than five billion won

[Special Esponsor] Where a criminal act has been committed repeatedly for a considerable period of time, and the method of crime is very poor (Aggravated factor).

[Scope of Recommendation] Four years to Seven years of imprisonment

[Special Adjustment of the Extent of Recommendation] Imprisonment from 4 years to 10 years (Special Mitigation).

There are more than one person)

(b) Fraud (Defendant B);

[Determination of Punishment] At least KRW 100 million, but less than KRW 500,000,000

【Special Convicted Person】

[Scope of Recommendation] One year to four years (Basic Area) imprisonment

3. Determination of sentence;

(a) Defendant A: Imprisonment for a period of two years and six months;

(b) Defendant B: One year of imprisonment and two years of suspended execution; and

[Unjustifiable circumstances] Defendant A deceiving a telecommunications company by forging or exercising a document by stealinging the name of another person in collusion with his accomplice. The method of criminal act is organized and planned, and in light of the substance and scale of the crime, etc., the nature of the crime may be considerably high. The mobile phone opened by the aforementioned method may be used for other criminal acts or may cause social harm and injury caused by leakage of personal information. Defendant A did not agree with, or was not used for, the nominal owner of the crime of forging documents related to the mobile phone fraud and the crime of forging documents. In addition, Defendant A, in collusion with, or alone, by deceiving another victim related to the scrap metal business, by deceiving the victim of another victim related to the business. Nevertheless, Defendant A attempted to reduce the degree of his/her participation while denying a part of the crime. Therefore, it is inevitable to punish the victim who is equivalent to his/her liability.

[Sluri circumstances] Defendant A’s [2016Gohap405] Although the degree of participation in the crime of the instant case cannot be deemed to be less than that of the Plaintiff, the Defendant was involved in the crime in the middle by Qua’s request, etc., and the amount of profit actually acquired also appears to be small compared to the total amount of fraud. Defendant A appears to be a small amount of profit acquired.

[2016Gohap898] The victim of the instant crime and the victim do not want the punishment against the defendant. The degree of participation in the instant crime by the defendant Eul seems to be relatively relatively relatively less than other accomplices, and the amount of profit acquired by the crime seems to be very low. The defendant A recognizes the remainder of the crime except for the degree of participation as a substitute, and the defendant A shows the attitude of recognizing and opposing all the crimes. The defendant A has no record of punishment exceeding a suspended sentence, and the defendant A has no record of being punished or has no record of being punished for the same crime. The defendant A has no record of health. The motive, means and result of the instant crime, relationship with the victim, circumstance after the crime, age, character and conduct of the defendants, environment, family relationship, balance with other accomplices for whom the judgment has become final and conclusive, etc. In full view of all the sentencing factors indicated in the instant argument, including the motive, means and result of the instant crime, the defendant A has no record of being punished beyond the lower limit of the recommended sentence according to the sentencing guidelines.

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

Judges

The presiding judge, judge and mining interference

Judge Choi Min-man

Judges Kim Gin-han

Note tin

1) Not more than 2016 Gohap405 is referred to as "defendants" only for the case.

2) In the case of paragraphs 1 and 2 of the instant criminal facts [2016Gohap405], since the crime of fraud is accompanied by the forgery of a document while committing the crime of fraud, each of the following crimes is not treated as a separate multiple crimes, and the crime of forging and uttering of a falsified document is treated only as a sentencing factor (the very poor law) within the crime of fraud.