(영문) 서울중앙지방법원 2017.5.11. 선고 2016고합1212 판결

The defendant was the representative director of Jongno-gu Seoul Metropolitan Government G and I (hereinafter referred to as "I") in the third floor (H tourist hotel).

1. Each fraud against 179 victims J, etc.;

On August 2009, when electronic commerce was conducted on online, the Defendant: (a) paid the sales proceeds after deducting the fee to the seller; and (b) paid the sales proceeds from the purchaser to the open market, the Defendant established and operated K (hereinafter “K”) in order to engage in a credit business that takes profit equivalent to the commission by receiving the sales proceeds from the open market; (c) however, as the Defendant offered excessive custody fees to the employees responsible for attracting investment and distributes the high-rate investment proceeds to some investors, the Defendant, as there are almost no actual operating proceeds, has been paid to the employees responsible for attracting investment; and (d) caused a loss equivalent to KRW 700,000,000, which was paid to the existing investors due to the investment proceeds received from the new investors.

On May 17, 2010, the Defendant established an open market selection service by establishing an open market service system that links online market and electronic data because it is difficult to recruit new investors in the existing Kro, which is a method of operating business as a hand-on data.

The Defendant, through L of the head of I marketing headquarters in charge of attracting investment, made a false statement to the victim J on June 15, 2010, that “I is a company that provides the selection service for the seller’s sales proceeds in the Internet Open Market. The Defendant is a company that pays sales proceeds in advance to the seller of the open market and settle accounts after receiving sales proceeds in lieu of the seller from the open market company. The Defendant made a false statement to the effect that I would pay high profits using the investment principal as the fund for the open market selection service if he/she wishes to repay the investment principal.”

However, in fact, I newly established by the Defendant is operated in the same way as K and there was almost no profit itself, and there was no intention or ability to pay the return on investment or to repay the principal, even if he received the investment money from the victimJ, because he did not have an intention or ability to create the profit on investment or pay the principal even if he received the investment money from the victimJ.

As above, the Defendant received KRW 10,00,000 from the victim J on June 15, 2010 to the new bank account (N) in the name of the Defendant on June 15, 2010, as well as from June 15, 2010 to November 10, 2015, the Defendant acquired KRW 11,736,150,000 in total from 179 victims to 479 times, as shown in the attached list of crimes (1).

2. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) for 6 persons, including 0 victims;

The Defendant, as described in the preceding paragraph, received KRW 100,00,000 from the victim’s new bank account (P) in the name of the victim on the same day, even if the Defendant made investments in I but did not have the intent or ability to pay the return of investment profits and paid the return of investment profits. On February 21, 2011, the Defendant made false statements to the victim 0 and received KRW 100,000 from the victim.

In addition, the Defendant received KRW 812,00,000 from the victim in the same manner as indicated in the attached list of crimes (2) in total 11 times from the victim to April 30, 2015, total of KRW 960,000 from the victim Q to September 11, 2015, total of KRW 54 times from the victim Q, and KRW 2,139,50,000 from the victim R until September 18, 2015, total of KRW 2,139,50,000 from the victim and KRW 48,50,000 from the victim from the victim to October 5, 2015, total of KRW 30,506,166,000 from the victim Q to the victim, and KRW 30,60,005,000 from the victim each over 333 times.

Accordingly, the Defendant acquired a total of 12,964,66,666 won from the victim 0, Qu, R, S, T, and U through 150 times.

3. Each fraud against the victim V and W.

The Defendant received KRW 20,00,000 from the victim V to August 24, 2015, KRW 250,000 from the victim V to the new bank account (P) on April 15, 2010, when the Defendant made a false statement to the victim V, such as the statement in paragraph 1, and received KRW 20,00,00 from the victim V to the new bank account (P) on the same day as the victim V, and received KRW 190,00,000 from the victim W seven times every seven times from the time of the crime list (3).

Accordingly, the Defendant acquired a total of KRW 440,000 from the victim V and W.

4. Fraud to victim X;

A. On August 6, 2015, at the I office around 19:00 on August 6, 2015, the Defendant made a false statement to the victim X that “If the amount of payment for the today’s business is lent to the victim one hundred million won as the mother and child would be paid, by August 19, 2015.”

However, even if the defendant borrowed KRW 100 million from the victim, the defendant did not have the intention or ability to pay it.

As above, the Defendant, by deceiving the victim, received KRW 100 million from the Korean bank account (Y) in the I name as the borrowed money from the victim, and acquired it by deceit.

B. On August 19, 2015, the Defendant called the victim X by phone again and called the “as soon as possible” to the victim X, it is necessary to prevent the Defendant from making a regular stop. Before being written a day, the Defendant borrowed KRW 120,000,000 won in a lump sum to the KRW 100,000,000.”

However, even if the Defendant borrowed KRW 120 million from the victim, the Defendant did not have any intention or ability to repay the next year the sum of KRW 100 million borrowed earlier.

The Defendant, by deceiving the victim as above, obtained 120 million won from the new bank account (N) in the name of the Defendant under the name of the victim for the purpose of borrowing money from the victim.

"2017 Gohap163"

5. Fraud of the victim's Z;

Around July 2016, the Defendant, at the Defendant’s residence in Seongdong-gu, Seongdong-gu, Seoul, said that “The victim’s cell phone calls for an investment in the wife and then sells goods by cutting off the customs goods after leaving the vehicle in the customs house.” However, the Defendant made an investment in the wife, and that it would make an investment to the wife in the width. Accordingly, the Defendant would give benefit between 10-15% and 10% after two weeks.”

However, in fact, the defendant's wife did not work in customs office, and did not sell the goods of customs office, and the defendant thought that he would use the cost of attorney-at-law in civil procedure in the process of receiving money from the victim, so even if he received money from the victim, he did not have the intention or ability to pay benefits by investing in the place where the goods of customs office are deducted.

As above, the Defendant, by deceiving the victim and deceiving it from the victim, obtained money of KRW 5 million from September 5, 2016 from the victim to the SCB account (number: AB) in the name of the Defendant.

Summary of Evidence

"2016 Gohap1212"

1. Partial statement of the defendant (the third court date);

1. Each legal statement of a witness, AC, and AD;

1. Each protocol of examination of suspect interrogation of the accused, L, and B by the prosecution;

1. Each police statement made to AE, AF, U,G, F, AH, X, AI, AJ, AD, and AC;

1. Each written statement of the U, AK, AL, and AM;

1. Each complaint filed, each additional complaint filed, and each additional complaint filed;

1. 각 | 팜플렛, 각 본인금융거래, 각 투자계약서, 각 카카오톡 대화, 예금거래내역서, 금전소비대차 계약서, 공정증서, 각 통장거래내역, 계좌 거래내역, 입출금내역, 예금 거래실적증명서, 거래내역, 계좌이체내역, 계좌별 거래명세표, 투자금입금현황, 재무제표, 과거 거래내역조회

"2017 Gohap163"

1. Defendant's legal statement;

1. Statement of the police concerning the Z;

1. A complaint;

1. A list of transactions by account;

Application of Statutes

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

○ Each fraud of Nos. 1, 3, 4, and 5 of the holding: Article 347(1) of the Criminal Act (the choice of imprisonment with labor for each victim) inclusive.

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; hereinafter the same) and Article 347(1)2 of the Criminal Act by covering each victim of the fraud against the victim 0, Q, R, T, and U

Article 3(1)1 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes and Article 347(1) of the Criminal Act (Selection of Imprisonment with prison labor) comprehensively for the second victim S.

1. Aggravation for concurrent crimes;

Article 37 (Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) for a victim S with the largest penalty provided for in the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Articles 32 (1) 3 and 25 (3) 3 of the Act on Special Cases concerning the Promotion, etc. of Lawsuits, etc. of Application for Compensation (it is improper to issue an order for compensation as the scope of liability of the accused is unclear);

Judgment on the argument of the defendant and defense counsel

1. As to the first to third of the holding

A. Summary of the assertion

It was sufficiently profitable to implement the I's selective service business that the defendant promoted, and there was no promise to repay the principal to the victims while attracting investments, and since the victims used the money received from the victims for the above business, they did not deceiving the victims, and there was no intention to commit fraud.

B. Relevant legal principles

1) The intent of the crime of defraudation, which is a subjective constituent element of the crime of fraud, shall be determined by comprehensively taking into account the objective circumstances, such as the Defendant’s financial history, environment, details of the crime, and the process of performing transactions before and after the crime, insofar as the Defendant does not make a confession. The crime of fraud is established by dolusive intent. It refers to the case where the possibility of the occurrence of the crime of willful negligence is uncertain as a subjective constituent element of the constituent elements of the crime (see, e.g., Supreme Court Decision 2015Do9497, Jan. 1, 2016)

2) Where it is recognized that the other party to a transaction would not have been engaged in the pertinent transaction if he/she would have been notified of certain circumstances, he/she is obligated to notify the other party of such circumstances in advance. Nevertheless, failure to notify the other party of the fact that the transaction would have been notified, thereby deceiving the other party (see, e.g., Supreme Court Decision 2014Do9099, Oct. 15, 2014).

3) In the event that a business is forcibly conducted by drawing bonds, etc. beyond the scope of reasonable payment capacity without a systematic project plan concerning the raising of business funds, etc., the crime of defraudation may be recognized (see, e.g., Supreme Court Decision 2005Do741, Apr. 29, 2005).

C. Basic facts

According to the above adopted evidence, the following facts are recognized:

1) The background leading to the establishment of I and the Defendant’s investment attraction

① Around July 2009, the Defendant: (a) registered a business in the name of wifeN; (b) collected funds from his family members; and (c) operated the online loan company that provides services similar to the electronic payment renewal service; (d) at the time, transaction with the four companies, including AO and AP, with four companies; and (e) incurred a loss of KRW 700 million. After that, the Defendant established I with B and AD as capital as KRW 100 million (Evidence 2) (Evidence 126-127, 134, 2,893, evidence records).

② At the Internet Open Market, I is a company providing the service of selecting sellers for the sales proceeds in the Internet Open Market, and its business contents are the business of pre-payment of sales proceeds to sellers in advance and then collecting the pre-payment of sales proceeds until consumer purchases are made after the goods are sold in the online Open Market, including Q, etc.

③ The Defendant, as a partner of B, introduced I to L who was engaged in the insurance sales business, requested the attraction of investment to the effect that he was able to make an investment and the introduction to the surrounding areas, and accordingly, the Defendant recruited investors via L (Evidence Nos. 3,007).

④ In order to attract investment and publicize business activities, the Defendant made a Pamp, and in relation to the safety of the Pamp, the “Pamp I” is more safe than any financial product or system with regard to the safety of investment operation funds by means of a new concept software among various forms of electronic commerce.

The phrase "I, I, as soon as possible, includes the phrase (Evidence Nos. 2, 10, 37, 75).

(5) Article 2 of the Investment Contract, prepared at the time of investment, provides that "as at the end of each month or on the date designated by both parties as agreed upon, among the profits of the company, allocation to investors shall be made on the last day of each month or on the designated date of each other," Article 3 of the Investment Contract shall be used for the I’s AU services and overall unique duties for the investment amount, and Article 7 of the Investment Contract shall set the investment period for a year normally except for a separate consultation. An investor shall determine whether it is extended one month before the expiration of the investment period and notify the I. An investor shall be automatically extended if no separate notice is given. An investor shall be automatically extended. An investor shall not request the I to recover the investment amount before the expiration of the investment period without any special reason (Evidence Nos. 4, 9, 36, 43, 76, 85, 126, etc.).

② From May 2011 to March 2013, 201, the Victim AW invested the Defendant in the aggregate of KRW 60 million in sequence from May 201 to March 201. As the investment amount increases, the Defendant paid an amount equivalent to 2% of the investment amount to the amount of KRW 18 to 36, 45 of the evidence record).

7) As above, the Defendant received investments from investors from from from around 2010 to around 2015, and paid interest monthly settled profits to investors. Such circumstances were shown not only in the account transaction details submitted by the victims (Evidence Records 149-184, 353-384, 772-782, 829), but also in the account details (Evidence Records 964-1,179) in which the Defendant received investments. The Defendant was reduced from 2% to 2014 per month from 2% per month from 2014 to 1.5% per month from 2014 from the first investment amount, and it was also explained by the prosecution that the Defendant would pay investors a monthly amount equivalent to 1.5% per month to 1.2% of the investment amount at the time of attracting investments (Evidence Evidence 2,894, 290, 2986).

2) Statement of victims related to the investment progress

① The victim AW’s husband and the complainant’s agent stated that “E made an investment by using the investment money to the seller in open market selection services and by giving rise to 24% annual revenues on the amount invested from sellers and receiving fees from sellers (Evidence No. 46 pages).”

② AF invested KRW 70 million in total, including KRW 40 million in December 201, and KRW 30 million in July 2012. From October 2014, the victim AF received 24% per annum, and received 18% per annum thereafter, and did not receive from November 2015. Then, the victim AF made a statement to the effect that it was later known that there was no profit at all while carrying on the business, and that it became a situation in which only the investment money would not pay interest to investors (Evidence No. 88-91).

③ At the prosecution, U.S. stated to the effect that “the Defendant used the method of return to pay the money received from investors, and confirmed that the amount repaid by gambling and the amount repaid exceeds KRW 400 million,00,000,000.” The Defendant testified to the effect that “In this court, the Defendant made an investment on the condition that he would pay 1.5% per annum of the principal per month in 2015, namely, 1.5% per month, and that it would be safe to view that the Defendant would make an ordinary payment of monthly revenues, thereby making an investment of each money would result in a total of KRW 60,000,000,000.”

④ On February 2012, the injured party AG deposited KRW 20 million on the same day after entering into an investment contract with the Defendant, and additionally deposited KRW 20 million after one year. The injured party AG stated to the effect that “AG was able to receive interest from the users of the service, but it did not promise to guarantee the principal, at any time when the principal is needed” (Evidence No. 723 of the Evidence No. 723).

(5) The victim F stated to the effect that the victim F did not make an individual investment to the defendant, but made an investment in I, and that if the defendant is a corporate account, the amount of tax revenue would be included in the personal account because the amount of tax revenue would be less than the amount of revenue (Evidence No. 763 pages of the evidence record).

⑥ The victim AH made a statement to the effect that “at the time of January 2015, the L and Investment Contract was prepared and paid 18% per annum, and the principal was paid at any time (Evidence No. 834 pages).”

7) On July 2015, the victim AI paid to the company an investment amount of 1.5% of the monthly investment amount as dividend, and received the introduction to return the principal or extend the contract after one year. Accordingly, from that place, the victim AI transferred the investment amount of 10 million won to a new bank account in the name of the defendant in the name of the new bank account, and received KRW 150,000 per month between November 1 and 4 months from the date of the investment. The victim AI stated to the effect that the dividend amount to be received in October was deposited in November and the defendant was locked through the seal (Evidence record 911).

④ The victim AJ stated to the effect that, around June 2014, when investing in I from the director of the LJ headquarters as the introduction of workplace rent, it would have been 1.5% interest per 10 million won per month, and that the company has been severely growing for more than 5 years, the principal would have no problem. The victim AJ stated to the effect that the principal would not be guaranteed (Evidence Record 923 pages).

3) The method of operating the investment money specified in the Defendant’s account;

① Investment funds from investors had been entered into the account in the name of the corporation of I but there were many cases when the Defendant entered the account in the name of a new bank. The above two accounts were managed directly by the Defendant. The bank account in the name of the I corporation was managed by the settlement team (Evidence No. 3,020 pages).

② On April 15, 2010, among the facts charged in the instant case, KRW 10,000 (attached Form 3) was charged, KRW 2,120,000 for the Defendant’s above account immediately before the deposit of KRW 10,000 into the Defendant’s new bank account on April 15, 2010. On the 16th of the same month, the Defendant paid KRW 50,000 to the above account, KRW 80,000,000,000,000,000,000 KRW 70,000,000,000,000,000,000 KRW 16,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00,00.

⑤ The balance of the account opened in the name of the Defendant was increased at the entry of 15: (a) the maximum amount was KRW 100 million around 2010; (b) approximately KRW 2.6 billion around 201; (c) KRW 8.10 million in 2013; (d) KRW 3.5 billion in 2014; and (e) KRW 15.10 million in 2015; (e) the balance of the account opened in the name of 15.7 months in 2011; and (e) KRW 15.7 months in 201; and (e) KRW 15.7 months in 201, May 7, 2012; and (e) the balance of the account opened in the name of 15.7 months in 2013; and (e) KRW 16.7 months in 20 years in 201, October 11; and (e) the balance of the account closed in the name of 15 months in 15 months.

4) Investment attraction fees, dividends, personal expenditure, etc.

① Defendant L made a statement to the effect that Defendant L was 10% of the amount invested, and that Defendant L was 1.7 billion won in total (Evidence No. 417 pages, 2,910-2, 911 pages) and that Defendant L was 1.7 billion won in total (Evidence No. 417 pages, 2, 910-2, 911 pages) and Defendant L was able to see that “the chief of LL headquarters was able to see the fact that the Plaintiff was satisfing for at least one year, and that the Plaintiff was satisfing as having deposited in the bank.” Therefore, the Plaintiff was 1 year for investors, and the Defendant was satisfying to L if the Plaintiff was able to find money more than one year.”

② 피고인은 I 운영과 관련하여 2010년경부터 2013년경까지 운영자금이 경색될 떄마다 AZ으로부터도 대규모 자금을 조달하곤 했는데, 그 대가로 처음에는 월 5%의, 2011년경부터는 월 4%의 고율의 금원(적요내역상 '배당지급')을 지급하였다(증기기록 2,963~2,966면, 2,893면, 3,019면).

③ With respect to the Defendant’s reimbursement of approximately KRW 460 million to BX, etc., approximately KRW 1.50 million to BY, etc., approximately KRW 560 million, and KRW 560 million to BY, the Defendant explained to the effect that BY’s payment of the said money was entertainment expenses, and that the money to BY was personally invested in the real estate leasing business, and that the money to BY was invested in the real estate leasing business. Furthermore, the Defendant also explained to the effect that the Defendant was able to withdraw the amount of KRW 00 million in cash, and that there was no evidentiary document (see, e.g., evidence record: 416, 94; 1, 317-1, 322, 3, 023-3, 025-3, 317, 317, etc.).

④ On the other hand, among the Defendant’s family members, the head BF, the head BB, the wife AY, and the Yong-Nam CA invested in the Defendant. Based on the difference between the amount of the deposited and the withdrawn amount indicated in the Defendant’s account data, the Defendant’s family members, except for the heading BF (20 million won), appears to have obtained profit, such as approximately KRW 10 million, KRW 94 million, KRW 50 million, and KRW 13,000, KRW 50 million, etc. (see, e.g., evidence records 415 pages, 206-2,907 pages, etc.).

(v) the occurrence of an operating and financial situation of I and an investment risk;

① The sales amount of 1 was mainly paid by the seller in advance to the seller, and the Defendant was paid by transferring part of the investment amount received from the seller to the bank account in the name of 1 corporation whenever the selection fund is required. The settlement team managing the said account has presented the settlement fund from the above account to the seller (Evidence Nos. 1703) and received fees from the seller (Evidence Nos. 1703). AD affiliated with the settlement team was about KRW 10 million as the settlement fund at the time of entry in 2010, and up to KRW 5 billion around 2015. The amount of the settlement fund was about KRW 0 billion.7% of the selection fee was insufficient to cover ordinary expenses (Evidence No. 1,705 page No. 15).

② According to I’s annual income statement, the Defendant stated to the effect that the annual sales in 2010 won were KRW 0, KRW 28 million for the year 201, KRW 950 million for the year 2012, KRW 1.95 billion for the year 2013, approximately KRW 1.99 billion for the year 2013, and KRW 1.1 billion for the year 2014 sales (Evidence No. 1,604-1,620 for the evidence record) and financial statements, including income statement, were submitted directly to the investigation agency by the Defendant. However, the Defendant stated to the effect that “I’s annual sales in 201 are different from the annual sales in 2010 for the year 201, KRW 1.1 billion for the year 2013 sales (Evidence record No. 2,908).”

③ According to the financial statements submitted by the Defendant, I, immediately after the establishment of the Defendant, was omitted in the capital erosion due to the occurrence of the deficit of KRW 14,000,000, exceeding KRW 1000,000,000 capital from the settlement of accounts at the end of 2010.

In the case of 2012, gross sales profit was KRW 100 million, and approximately KRW 598 billion was paid as sales management expenses, and sales loss was KRW 497 million in KRW 20 million in KRW 200 million in KRW 190 million in KRW 200 million in KRW 387 million in year 2013 and KRW 495 million in year 2014. The capital increased to KRW 10 million in KRW 2010,500, KRW 700 in KRW 2012, KRW 2013, and KRW 100 million in KRW 2013 and KRW 1000 in KRW 2014, KRW 2014, KRW 2014, KRW 608-1 billion in capital records.

④ AD stated to the effect that “In the first year there was almost no sales, and thereafter there was KRW 20 million in the next year, and thereafter, sales were made up of KRW 20 million. In 2015, there was a growing increase in the number of instances where the selected capital was insufficient, and there were many cases where the funds were received rapidly in 2015.” The Defendant made a statement to the effect that around 2015, there was a lack of the selected capital from AJ Capital to raise funds.

⑤ From August 2015, the number of investors requesting the recovery of principal has increased as the payment of investment profits began to be delayed, and the number of investors not paying investment profits to investors has increased rapidly around October 2015 (Evidence Record 37 pages, 680 pages).

④ Around November 15, 2015, the Defendant: (a) was locked around 2015, Nov. 12, 2011; (b) the next day, upon the investor’s report of the disappearance, was discovered in the number of young children around November 15, 2015. On November 18, 2015, the Defendant stated to the effect that: (c) around November 18, 2015, the Defendant did not create profits as he/she received and promised to receive money from investors in the CO building located in Jung-gu Seoul Metropolitan Government, and paid only the investment proceeds in the form of interest that he/she received from the victims and eventually did not keep a balance (Evidence record, No. 91, No. 704)22); (d) the Defendant stated to the effect that, although having been able to make profits from business, the Defendant would have to pay basic expenses, and that the amount of investment profits would have exceeded the amount to be paid (Evidence 2908 pages).

D. Specific determination

1) The method of attracting the Defendant’s investment and the motive of the victims

A) At the time, as seen earlier, the Defendant, while attracting investment through L, explained the business and stability of the selective service model to investors, presented the basis for allowing high-rate revenues to be paid. On the other hand, the Defendant promised to pay fixed revenues of 2% per month and 1.5% per month after around 2014, and was actually paid to investors each month.

B) In light of the fact that the form of an investment contract differs somewhat from the one-year investment contract, but the statement to the effect that a certain amount of monthly revenue may not be recovered before the lapse of the investment period of one year was included in any time, and that the Defendant paid the investment profit amount equivalent to the investment amount to investors each month in accordance with the account details, etc., the Defendant explained to the effect that at the time of attracting investment, the Defendant would have given a fixed amount of money to investors every month in preparation for the investment amount and selected an extension or recovery of the investment amount after one year from the investment period.

C) Accordingly, investors seem to have been able to recover the principal when the investment proceeds have been paid in a stable manner and when one year has elapsed since the investment period has passed.

D) As can be seen, investors who received the fixed monthly revenues have been more strengthened to believe that the Defendant’s selective service business is normally operated and that the Defendant would be able to receive revenues through the successful operation of the business. As such, the fact that the amount of revenues significantly higher than the ordinary banking interest rate is paid every month was spread through the entrance door among the investors, which led to the strong incentive of investors to make additional investments and secure new investors.

2) Profit structure of the defendant's selected mountain service business

A) The industrial complex service project promoted by the Defendant is a business of the structure in which the sales proceeds are paid in advance to online sellers who did not receive approximately KRW 1-2 week sales proceeds from the sale of online goods after attracting and inviting advance payment funds, and then obtain a fixed fee among them. This is a business similar to the financial industry in which financial resources are procured and profits are earned by utilizing the procured funds, and the profit structure is the difference between the fees and the investment proceeds.

B) However, in light of the profit structure as seen below, it was impossible for the Defendant to pay the return on investment agreed to the victims through the above business revenue.

(1) The primary source of revenue unique to I is the fee for the selective service, and the unit amount of revenue shall be 0.77% prior to the unit amount, 24) the unit amount of revenue shall be 2.31% per month in consideration of the cycle of circulation of the selected funds.

(2) On the other hand, the Defendant paid 2% (or 1.5% per month) of the unit amount to investors as proceeds from investment, and paid 10% of the unit amount (or 0.83% where the amount is paid on a yearly basis as of the investment period of one year, and is converted at a monthly rate of one year) to investors, including L, as sales allowances, as the sum of the unit amount per 2,33% per month.

(3) As above, the monthly entry of money per unit amount is approximately 2.31%, and the amount to be made is approximately approximately 2.33% ( approximately 2.83% at the time of payment of 2% per month’s profit) and is in a structure with high probability of causing the enemy itself.

(4) However, this is premised on the premise that the entire amount of the investment is returned to the fund for the services in the mountain without being selected (the amount actually used as the settlement fund is less than half of the investment amount) and it is difficult to achieve in reality (the amount actually used as the settlement fund is less than half of the investment amount). Considering the fact that there exists a risk of not collecting claims even if there is a high recovery rate due to the nature of the business acquiring bonds by giving cash and acquiring bonds (the defendant was responsible for collecting money from some distributors even at the time of K operation, and there was a risk of not collecting claims (the defendant was suffering of money from some distributors at the time of K operation). In case of purchase cancellation or return, it is difficult to obtain expected profits

(5) In addition, in consideration of the amount of wages to the employees to be paid monthlyly (at least 18 employees begin with three employees and up to 18 employees), and various business expenses for attracting online distributors, such as advertising expenses and development expenses, etc., the profit rate should be reduced further.

(6) Under the above business structure, the original Defendant was unable to pay the investment profits promised to investors with the profits derived from the selective service fee, and this led to the volume of the investment funds, which are naturally set aside by investors, as well as the nature of the investment funds.

(iii)the payment of proceeds from investment in return and the recognition of victims;

A) In the actual account details, the circumstances revealed that the Defendant paid the so-called return return revenue to the existing investors with the money additionally collected from the new investors. As such, the fact that the profit accrued from the business was not the profit but the investment fund received from the investors was inevitable as a result of the Defendant’s compensating for the profit-making structure itself. As such, rather than the profit derived from the business, the investment fund owned by the Defendant as well as the investment fund itself was continuously raised.

B) As a business model newly designed by the Defendant, the victims at the time of the investment did not seem to have been well aware of the degree of appropriate investment earnings in light of the profit ratio of the business. Furthermore, in light of the victims’ behavior that reserved the principal until the funds were closed, the victims cannot be deemed to have been aware of what the funds were paid to them and what their final conclusion is.

C) If the victims were to know that the principal would have been gradually advanced due to the profit structure, which the Defendant claimed at the time of investment, and that the conclusion of their investment actions was scheduled from the beginning, it shall not be considered that they made a decision on such large amount of investment to the Defendant. Although the investors have to take the corresponding high risk to obtain high-risk to it, it is difficult to view that the investors have to take the risk according to the inherent nature of the investment, i.e., the risks due to the unexpected changes in the future, rather than the risks due to the unexpected changes in the business structure itself.

4) Sub-determination

A) As such, even though the Defendant did not have an intent or ability to guarantee a high rate of return on a monthly basis of his/her business performed by himself/herself, the Defendant received an investment payment from the victims by concealing the fact that the monthly financial resources of the monthly financial resources to be paid to the victims are not a business profit, but a business profit. The victims who did not know of such circumstance were able to receive an investment return from the profits accrued from the selective service business and to recover the investment amount in the future. The victims who did not know of such circumstances seem to have been able to have made an investment in favor of the Defendant in the future. The Defendant raised a long-term large-scale investment by preventing the repayment of the principal during the period of one year, and by inducing the continuous maturity of the principal by allowing the extension of the investment period as much as possible.

B) Considering the fact that the Defendant’s chosen-based service business is not a business that does not have no possibility of success in its original source or there was a plan to repay an amount equivalent to the investment principal out of the investment principal with the money that the Defendant received by selling the company in future M&A, etc., it is difficult to avoid liability in that the Defendant was well aware that the Defendant was able to know that the investment amount in itself in the profit-making structure of the business designed by him/her has been gradually lowered, and that he/she could have known that, while managing the bank account in his/her own name where the investment proceeds enter and the investment proceeds accrue, he/she would have to cause loss to the investors ultimately through the raising and operation of such investment

C) Although it is difficult to first and fully grasp the future revenue and expenditure, expected profits, and accompanying expenses at the time of establishing a new business model and establishing a specific business plan, the Defendant cannot be deemed to have been involved in the specific progress of the business as a representative director before and after the time of attracting investment from the victims. However, considering the Defendant’s experience and status, etc. in which the Defendant was operating K in the previous type of business similar to the above case and actually incurred losses, it cannot be deemed that at the time of attracting investment from the victims, the Defendant could not be deemed to have entirely predicted the appropriate level of investment earnings in accordance with the I’s revenue size at the time of attracting investment from the victims, or that the final result of raising investment funds is due to any contingent cause outside the territory where the Defendant could not control.

D) As above, it is reasonable to view that the Defendant’s act of receiving investment money from the victims, which was erroneous in the fact that the amount of high-determined revenue is paid through a stable selection and delivery service business, is a deception as referred to in fraud, and the Defendant’s act of receiving investment money is also deemed to be a deception, considering the Defendant’s awareness and role, which comprehensively takes charge of the investment attraction and the selection service business as a representative, at the time of receiving the funds necessary for the selection and delivery service business from the victims, and the Defendant’s act of receiving investment money from the victims is also deemed to be a deception as referred to in fraud.

C. Conclusion

Therefore, this part of the facts charged against Defendant A is found guilty, and the Defendant and the defense counsel’s assertion to the different purport is not accepted.

2. As to the fourth ground for appeal

A. Summary of the assertion

The defendant, due to the delay in the payment of the settlement of accounts of Q, has carried out a lump sum financing in urgent time, and at that time, there was no intention or ability to repay the business funds from the victim, such as M&A; and there was a City/Do and a new investment proposal.

B. Determination

1) The intent of defraudation, which is a subjective constituent element of fraud, shall be determined by comprehensively taking into account the objective circumstances, such as the Defendant’s financial history, environment, content of the crime, process of transaction, and relationship with the victim before and after the crime, insofar as the Defendant does not make a confession. In the civil monetary lending relationship, the criminal intent of defraudation of the borrowed money cannot be recognized with the non-performance of obligation, but in a case where the Defendant borrowed the borrowed money by pretending to repay the money in spite of the absence of the intent of full repayment or the ability to repay within the due date as the Defendant promised at the time of repayment (see, e.g., Supreme Court Decisions 83Do1048, Aug. 23, 1983; 2013Do1203, May 16, 2014).

2) Comprehensively taking account of the following facts and circumstances acknowledged by the aforementioned evidence, i.e., ① if the amount of money to be settled on August 6, 2015 by the victim X was loaned to 100 million won until August 19, 2015, the Defendant used 100 million won per day if he/she borrowed money from the victim 10 to 200 million won and again borrowed money from the victim 10,000 won (see, e.g., evidence 85-860 of the record, 870-871 of the record), and the Defendant did not receive money from the victim 10-7,000 won after he/she borrowed money from the victim 10-7,000 won or less (see, e.g., Supreme Court Decision 80-7, Aug. 19, 2015).

C. Conclusion

Therefore, this part of the facts charged against Defendant A is found guilty, and the Defendant and the defense counsel’s assertion to the different purport is not accepted.

Reasons for sentencing

1. The scope of punishment by law;

From June to June 22

2. Scope of recommendations according to the sentencing criteria;

○ Each violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and each fraud

[Determination of Punishment] The amount of not less than five billion won for general fraud, and less than 30 billion won (Type 4) (the sum of amounts as concurrent crimes)

[Special Doctrines] Reductions: Where a person commits a deceptive act with willful negligence, but with a significant damage therefrom, the reductions shall be made for unspecified or large number of victims, or where the person commits a crime repeatedly over a considerable period of time.

[Scope of Recommendation] Basic Area: Imprisonment for 3 years to 6 years

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

The Defendant committed the crime of defraudation by receiving investment funds from many victims while promising to receive a high rate of money that is unable to cope with the online selective services business. The majority of the victims, the damage caused by the crime reaches 25 billion won, and the Defendant has been sentenced to imprisonment twice in the past by fraud. Considering the content and consequence of the above Defendant’s crime, it is inevitable to punish the Defendant with severe penalty corresponding to the liability for the crime.

However, the fact that the defendant did not entirely engage in the business related to the selection of the defendant or that the defendant did not have any substance of the business, the victims seems to be responsible for the expansion of damage, such as expecting excessive profits or giving money to the defendant without thoroughly grasping the risks, etc. In the course of the crime, the total amount of the acquired money by the defendant does not fall under the amount of damage, such as paying money in the name of some profits to the victims in the course of the crime, and the defendant knew about losses incurred after the occurrence of the case, and he made his own effort to recover damage, such as transferring the business rights he used to him to the CP for partial recovery of damage, and the victim S, who did not want to be punished against the defendant, is taking into account the circumstances favorable to the defendant, such as age, character, environment, family relationship, motive, means and method of the crime, and circumstances after the crime, etc., the punishment shall be determined as ordered by taking into account various sentencing conditions as shown in the records and arguments.

[Defendant B]

The acquittal portion

1. Summary of the facts charged

The Defendant, as a general director of I, conspired with A who is the representative director of the said company, and received investment profits even if he did not have the intent or ability to pay the investment profits by creating operating income, or to redeem the principal even if he received the investment funds, by inducing victims to pay high profits using the fund for open market selection service and to pay the investment principal when he wants to repay the investment principal.” The Defendant, as stated in paragraph (1) of the criminal facts in the holding, by deceiving the victims, received a total of KRW 11,736,150,00 from 179 up to 479 times as stated in the facts constituting the crime in the judgment, and acquired KRW 12,964,66,666,666, and66 from the victim as stated in paragraph (2) of the criminal facts in the judgment.

2. Summary of the defendant and his/her defense counsel

At the beginning of the establishment of K and I, the project items and profitability have become good for participation in the project, and the words, which are good business model, and the words, which are helpful for the project of online sellers using the service, have become a good business model. There was no knowledge about how much they enter because they did not have any authority over the fund. The Defendant did not intend to borrow the investment fund, but did not commit a crime of A.

3. Determination

A. Relevant legal principles

1) In order to constitute a joint principal offender under Article 30 of the Criminal Act, two or more persons must jointly commit a crime. Accordingly, it is necessary to commit a crime through functional control by the intent of joint processing and objective requirements, which are subjective requirements. The intent of joint processing is insufficient to recognize another person’s crime and to accept it without preventing it. The purport of joint processing is to shift one another’s intent to implement a specific criminal act by using another person’s act as a joint principal offender. In addition, in order to erase the criminal liability as a joint principal offender, it should be deemed that there is a functional control through an essential contribution to the crime rather than a mere conspiracy (see, e.g., Supreme Court Decisions 201Do729, Nov. 28, 2013; 201Do2616, Nov. 27, 2012).

2) Furthermore, in a case where the conspiracy constitutes a "fact that constitutes a "crime in a co-principal", there was a combination of intent to realize a crime by co-processing the crime. As such, it should be specified and proved to the extent that a person who did not directly participate in the conduct of the crime is able to be held accountable for another co-principal's act as a co-principal. As such, it cannot be readily recognized solely with the description of a position, etc. where it is probable to deem that the conspiracy contributed to the principal offender's act of committing the crime without specific specification and proof (see, e.g., Supreme Court Decision 2016Do2696, Apr. 2,

3) In addition, in a criminal trial, criminal facts ought to be established based on strict evidence with probative value, which makes a judge not to have any reasonable doubt. Therefore, in a case where the prosecutor’s proof does not reach the extent that such conviction would lead to the prosecutor’s conviction, there are suspicions of guilt, such as inconsistency with, or uncomfortable, the Defendant’s assertion or defense.

Even if determined, the interests of the defendant should be determined (see, e.g., Supreme Court Decision 2015Do119, May 14, 2015).

B. Circumstances suspected of being guilty

Considering the circumstances acknowledged in accordance with the above evidence, namely, the Defendant’s establishment of A and K with the Defendant, and the Defendant was involved in the overall selection service business as a general director, and was paid monthly salary, etc., the Defendant was aware that the Defendant had been aware of the aggravation of the company’s management conditions, such as the occurrence of a deficit in sales and the shortage of settlement funds, etc., and that the Defendant was recruited by investors through his/her her her veged L, there may be room for doubt as to whether the Defendant was not recruited or involved in fraud in relation to the inducement of investment funds.

C. Determination

However, in full view of the following circumstances admitted by the above evidence, it is insufficient to view that the facts charged to the effect that the defendant, in collusion with the prosecutor, by deceiving the victims from the payment of high-rate profits by deceiving them, was proven to the extent that there is no reasonable doubt for deliberation, and there is no other evidence to acknowledge this otherwise.

1) The defendant's position in the defendant I and involvement in the attraction of investment

A) The focus of deception in the crime of fraud lies in: (a) soliciting investors and introducing online elective projects; and (b) receiving investment money by concealing that the investment money would inevitably be raised by promising the return of high-rate revenue to them; and (c) introducing online elective projects.

B) However, it appears that the selective service business itself had profitability to a certain extent depending on its operation, and the Defendant primarily performed the work of building the website and promoting online sellers, and after the establishment of an IO corporation, K performed the duties of developing and marketing an fashion as a general director, and performing the duties of soliciting and managing sellers (see, e.g., evidence record 3,081-3,082).

C) Unlike L, the Defendant did not directly attract investors according to A’s instructions or request. It is difficult to view that the Defendant, who participated in the I’s designated services itself, had a functional control over the crime of fraud by soliciting investment money solely on the ground that the Defendant had induced investors, or the Defendant was in the general director position.

2) Whether to recognize the actual status of operating investment and investment returns

A) The Defendant consistently planned and operated a company’s business in the prosecutor’s office and in this court, but it was stated to the effect that “A was unable to have access to the company or another employee as an account that can only be managed by A” (see, e.g., evidence records 2,981, 3,083). A also stated to the effect that “A’s new bank investment account mainly used for the receipt of investment proceeds and the payment of investment proceeds was managed by A, and that “A was not aware of any other person than himself/herself” (Evidence No. 3,020). This is consistent with the Defendant’s aforementioned change suit (Evidence No. 3020).

B) In this Court, A made a statement to the effect that “The Fund is a settlement discount necessary for the Investment Funds and the Company that the Defendant and other employees are aware of the amount invested, but the Investment Funds is attracting investment funds, but the fact that the friendly friendly son has not been aware of the fact that the Defendant was the subject of the examination. The Defendant’s involvement in the Investment Funds is not too rare, but is now raised to the blank.” This also supports the Defendant’s change.

C) The Defendant also seems to have been aware that the sales of I are low, and that there is a hostile person. However, the Defendant and L recommended investment to their parents and relatives. In particular, the Defendant’s attached investment was made even in August 2015 and the Defendant did not fully recover the principal from the time of the occurrence of the occurrence of the occurrence of the accident of raising the investment deposit in November 2015 (see, e.g., evidence records 417-418, 3012, etc.). In light of the fact that: (a) the Defendant was aware of the fact that there was no possibility that the investment deposit itself would have to be advanced due to the structural problems of the method of paying the investment proceeds that A was in progress.

3) Use of selective funds, profits acquired by the Defendant, etc.

A) The Defendant, as a director of I, has raised the approval from A, and received funds necessary for the selection of a bank account in the name of the company in the name of the management account from A to the bank account (see, e.g., evidence records 3,082) and executed it (see, e., Supreme Court Decision 200Do3082, Apr. 1, 200).

B) While working in I, the Defendant was paid approximately KRW 2.2 million in around 2010, approximately KRW 2.8 million in 2012, approximately KRW 3.6 million in 2013, and KRW 190 million in monthly wage for five years between five years including corporate cards (Evidence Records 2,996-2,997 pages). In light of the details of transactions between the Defendant and A or I as a general director in the account and the difference in the entry amount, there is no obvious circumstance to deem that the Defendant received or divided profits from the crime (Evidence Records 2,998-3003, 003, etc.).

4) Sub-determination

A) As above, the Defendant, along with A, established I and carried out an online open market service business as a general director, but did not participate in the act of attracting investment and paying investment earnings to raise the financial resources. Moreover, even though the Defendant was aware that A is raising investors through a dynamic L, it does not appear that the Defendant contributed to the deception of the instant fraud by creating an investment contract form, explaining the attraction of investment, or managing investment funds themselves.

B) In addition, it is difficult to deem that the Defendant was unaware of the total amount of investment proceeds, the specific amount of investment profits, and the method of managing investment proceeds, etc., and it was aware that A paid investment returns in a return-free manner beyond the awareness that there was an enemy of the company, and that A was aware that the investment proceeds themselves were raised or would not have been raised from the beginning by ombudsman.

C) Ultimately, unlike A who directly carried out the act of paying revenues from the attraction of investment in this case and took overall control of the overall operation of the selective service business, the Defendant, who did not have been involved in the act of attracting investment and paying investment revenues corresponding to the act of committing the crime in this case, merely did not actively prevent A from attracting investment even though I was in the position of the general director of the I, cannot be held liable for the crime of fraud in this case on the sole ground that he did not actively prevent A from attracting investment.

4. Conclusion

Thus, the facts charged against Defendant B constitute a case where there is no proof of crime, and thus, it is not guilty under the latter part of Article 325 of the Criminal Procedure

Judges

The presiding judge, the Kim Jong-dong

Judges Kim Gin-han

Judges Doi-ro

Note tin

1) As to K’s business method, the Defendant registered his credit business at the time of “the Defendant,” and explained to the seller in online market that the sales proceeds shall be paid first 80% (excluding 0.77% commission) of the sales proceeds, and that the sales proceeds shall be paid from the broker and the remaining 20% of the sales proceeds shall be settled to the seller again (Evidence Nos. 2,901). In 2008, the Defendant sought a selection project that would give advance funds to the seller while selling goods in online shopping mall (Evidence No. 1,771 page).

2) The corporate register states "software development and service for business purposes" (Evidence Nos. 841). At the time, the Defendant stated to the effect that, at the time, 100 million won capital was paid as office rent (for security deposit 20 million won, monthly rent of KRW 3.7 million), development expenses (for the end of 2010, six employees as of the end of 201), advertising fees, etc. (Evidence No. 2,906 pages).

3) | 설립 경위 및 K와 1의 영업방식 차이에 관하여 B은 '처음에는 판매자에게 일괄적인 선지급을 하지 않고 대출을 하는 것인데, 판매자의 매출을 보고 판매대금의 일부를 대출해주는 방식이었다. 그러다 어느 날 피고인이 기존의 대출 방식이 아닌 선지급 방식으로 운영하면 더 많은 판매자가 이용할 수 있을 것이라면서 법인으로 시작하자고 이야기가 되었다'는 취지로 설명하였다(증거기록 2,981면).

4) On the face of goods in AS and AT, a consumer is obliged to make a purchase decision. Since the purchase decision is made on a one-time basis and the time is expected to take this week, and there are many cases where the payment of sales proceeds is delayed, it is a system that immediately selects the seller and collects the sales fee from the seller during that period. The Defendant introduced this business from the opening of the business to the AU business (AV) to be a system that manages the settlement point by referring this business to the AU business (AV) and managing the settlement point, which is ultimately, it is a business that makes a prior payment of cash and receives the fees (Evidence 576 pages of evidence record).

5) AG’s investment contract made at the time of investment around February 2012 included “2% of the investment amount shall be paid to investors as of the end of each month.” The investment contract made at the time of additional investment around February 2013 was deleted, but there was no change in the method of paying fixed earnings by 2% per month (Evidence No. 642, 672, 674).

6) Although the Defendant did not make an absolute promise because the guarantee of principal goes against the law, the Defendant stated to the effect that it may be said that the investors would have provided fixed interest rates for the investment funds and returned the principal to the investors who want to recover the principal (Evidence Nos. 2,912).

7) The victim W was KRW 5,4,500,000; KRW 500,000 on June 7, 2012; KRW 11,500,000 on January 9, 2013; KRW 500,000 on January 15, 2013; KRW 500,000 on March 15, 2013; KRW 15,500 on April 15, 2013; KRW 1,500 on July 29, 2013; KRW 1,300,000 on July 3, 201; KRW 1,000 on March 1, 2013; and KRW 1,00,000 on March 1, 201; and KRW 3,000,000 on March 1, 200.

8) In relation to the process of attracting investment in an investigative agency, the Defendant said that 1.5-2% of the investment amount will be paid to the investors, and the basis for the profit therefrom will be 2.1% of the investment amount when the low-income amount received 0.7% fee. Therefore, if 1.5-2% fee is paid, 1.5-2% of the investment amount will enter that category, and thus, the Defendant promised to pay it. Although wishing to lower it, the Defendant would not be able to receive an investment smoothly because of the lack of competitiveness in the general financial company. In the case of ordinary expenses, I stated that it would have been able to be sufficiently appropriated through M&A (see, e.g., evidence record).

9) Until the end of May 2011, the expression such as ‘interest payment' or ‘distribution payment', along with the name of the person and the name of the person on the summary of the account. From May 31, 2011, the said expression began to have disappeared and only the name of the person (Evidence No. 991 of the Evidence Record).

10) On June 2010, among the withdrawals of the new bank account in the name of the Defendant, the payment of interest, operating expenses, and living expenses are confirmed. The details of the withdrawals are identified as follows: AO short-term loans of KRW 20 million; KRW 3.5 million; KRW 1.2 million for female employees; KRW 1.2 million for female employees; KRW 2 million for BE down payment; KRW 3.4 million for corporate rent; KRW 5.5 million for office rent; KRW 620,000 for modern department stores; KRW 2 million for June; KRW 10 million for apartment bonds; and KRW 1.5 million for personal information establishment expenses (Evidence records of KRW 970-972).

On the other hand, in June 2010, the principal deposit amount from the new bank account in the name of the defendant was KRW 10 million, J 10 million, KRW 20 million, KRW 20 million, KRW 5 million, KRW 12850, KRW 2850, KRW 12850, KRW 2000, KRW 12850, KRW 100,000, and KRW 12850, KRW 1000,000. In light of the amount unit, etc., it appears that the investor’s investment amount was a substitute (Evidence No. 970-972,

11) The above failure shows that the financial status of the defendant has been continuously affected by the investment funds through new investors, and that the payment of investment earnings and the maturity of the business has been dependent on the investment funds or borrowed funds that have been in line with the business income rather than the business income.

12) L appears to have paid approximately KRW 590 million out of approximately KRW 1.7 billion from 2010 to KRW 2015 as solicitation fees, etc. to BI, Q, BJ, BK, BK, BL, BM, BN, BP, BP, BP, Q, BR, BS, BTS, BS, BU, BV, BV, BV, BW, etc. in terms of business expenses, introduction fees, interest, and other forms (see, e.g., evidence record 421-423 pages).

13) Based on the data presented by the complainants by arranging the account details, the Defendant acknowledged that his family members received profits from receiving more than the amount invested, and the family members made an investment for a long time, and the amount of profits from making an initial investment is bound to increase. However, in the case of the complainants, the complainants explained to the effect that it is difficult to pay profits by making an initial investment. However, in relation to the Defendant’s wifeN received approximately KRW 160,000 from the Defendant, the Defendant also explained to the effect that it includes the Defendant’s monthly payments and deposits into a living expense (see, e.g., evidence record 2,906-2,909 pages).

14) Although B made a statement to the effect that 0.77% of the advance payment is a profit source other than that of 0.77% of the advance payment, there is a profit from the distribution of various commodities in the Public Market (Evidence Nos. 2,986) but there is no evidence showing the size thereof, and there is no other evidence suggesting that there was a profit continuously from the route other than that of the Defendant or the open market.

15) The Defendant made a statement at an investigative agency to the effect that “The Defendant used the victim’s investment funds for the selection of funds, ordinary expenses, profit-making, personal use, etc.” and approximately KRW 25 billion of the investment funds to the effect that the amount used in the selective production is approximately KRW 6 billion (see, e.g., evidence records 1,528, 1,735).

16) This is not significantly different from the sales statement submitted by the Defendant during the trial process (see, e.g., evidence 7-1 to 3 of the trial record).

17) The amount of sales for the five-year period under the above profit and loss statement is approximately KRW 4 billion if the defendant combined all the sales for the five-year period under the above profit and loss statement. The amount of investment proceeds calculated simply by 18% per annum (based on 1.5% per annum) with respect to investment proceeds of approximately KRW 25 billion from among the total investment proceeds attracting by the defendant is about KRW 4.5 billion per annum. It is revealed that the above 2.5 billion has been invested in five-year installments, and that the amount of sales generated by the defendant was not entirely reflected in the financial statements, even if considering the possibility of not entirely reflected in the financial statements, the amount of sales for the five-year period does not reach the investment proceeds to be paid for

18) The Defendant began the first transaction at an investigative agency from the end of November 2009, and the first profit was made. From the end of 2010, there was no money recovered from the first police officer in 2011. From the beginning of 2010, there was no money recovered from the first police officer in 2010. By 2010, it was possible to cover ordinary expenses with profits, but it was also used both ordinary expenses, profit payments, and settlement operation funds, etc. to the effect that the Defendant received investment funds from 2011. The Defendant also made a statement to the effect that “the Defendant secured the sales office” (see, e.g., evidence record 936 pages, 1,530 pages).

19) There were approximately 18 employees, including Defendant 1, general director B, CB director AD director, CB director, agency, development team leader, CD team leader, CE, CF representative, CG representative, marketing director representative, marketing director CH, L of marketing team CI head, CJ head, CJ staff, business team CK head, CL employee, CL employee, CZ director, CMF director, CM employee, and CN, a representative director. The evidence records are 128 pages, 425 pages.

20) A.I.D. lent business funds necessary for E.I.D. services through a business partnership agreement concluded with the company around May 15, 2015. However, the cumulative handling amount of the selected services was approximately KRW 48 billion, the average execution period was not more than KRW 10 billion, and the average balance was not more than KRW 1.8 billion, and the said company or [the profits (interest and fees) obtained therefrom] was maintained at KRW 1.8 billion, and the said company or [the profits (interest and fees)] was not provided as a trade secret (see the results of the inquiry from the State).

21) L was known to the prosecution in “B” and the Defendant did not put in the entire investment fund system. From November 10, 2015, L testified that the Defendant would return the principal of investment to the Defendant around November 10, 2015, while the payment of profits was smuggling, and the Defendant stated to the effect that “it was no longer possible to conceal the circumstances of the company in order to conduct M&A even if it was M&A.” (Evidence record 3,012-3,013 pages).

22) Meanwhile, even in light of the holding details divided by investors while discussing measures at the time, the victims seem to have not been fully aware of the specific size of the investment attraction fee or the method of managing the investment fund at that time (see, e.g., evidence records 712-717 pages).

23) From the standpoint of the sales company receiving the selective service, it is difficult to set up a fee at a higher level because the fee is no longer available because the fee is higher than the general financial rights or the interest rate for capital, and it was difficult to make an entry barriers such as registration of the selective production system as patent. However, in light of the business structure, it was possible for the subsequent competitors to enter the marketing at any time.

The defendant also stated to the effect that the investigative agency set the fee as 1.2%, but he had no choice to reduce it to 0.7% for the maintenance of competition around January 2013 (Evidence Records 2142 pages, 291 pages), and that the return of the fee selected as a substitute was 0.77% (Evidence Records 93 pages, 1,187 pages, 2,901 pages, etc.).

Even based on the "AU agreement with the seller submitted by the defendant", the agreement signed in September 2012 and January 2013 entered into in January 2013 are 0.96%, but the agreement entered into in June 2013, October 2014, January 2014, all of the fees are 0.56% (see, e.g., evidence 6).

24) When a purchaser makes a settlement in an investigative agency regarding the selection and delivery business method of 1,00 won, us will pay sales on the basis of delivery. When a buyer receives goods, us will enter the invoice into the company. Since 7 days after the receipt of the goods is the period of dispute mediation, 7 days will be considered to have no intention of return or refund. When a buyer makes a confirmation of receipt or a decision of purchase, 70,000 won would be prompt. 10,000 won would be paid upon payment of the settlement amount. 10,000 won would be recovered. If the settlement amount is recovered, 10 days would take place, and if that amount would take place again, 0.7% would take place at the same time, 10 days would take place at the same time (see, e.g., record of evidence). The head of the marketing headquarters stated to the effect that 308% of the settlement amount from the Defendant (see, e.g., evidence).

피고인이 사업설명을 위하여 만든 소개서에도 AU 사업에 관하여 '온라인마켓의 정산주기(12~30일)라는 큰 문제점을 해결하여 비즈니스 가속화'라는 문구가 기재되어 있고, 수수료 건당 0.7%에 월 2.5회전율을 기준으로 하여 예상 매출 목표를 작성하기도 하였다(증거기록 579면, 587면), 25) 더구나 피고인이 피해자들로부터 개인계좌로 수취한 약 250억 원 상당의 투자금의 사용처가 모두 규명되지는 아니하였으나, 피고인이 약 5년간 유치한 투자금의 규모에 비하여 1의 자산이나 매출액이 그에 상당 수준 미치지 못하였던 사정과 피고인이 스스로 밝힌 것과 같이 피고인이 피해자들로부터 받은 돈을 오픈마켓 선정산 서비스 사업 자금으로 온전히 사용하지 아니한 사정을 보탤 경우 투자금의 잠식 속도는 더욱 빨라지게 된다.

26) Meanwhile, in relation to L, the Defendant stated to the effect that “L would have become aware of the amount of investment by November 2015, and that it would have become aware of it around November 11, 2015 (Evidence Nos. 3,023).” This is consistent with L himself/herself’s statement (Evidence Nos. 1,410).

27) In light of the purport of the instant facts charged and the process of the trial against the Defendant, it is not possible to determine whether the Defendant is liable for aiding and abetting the instant crime (see Supreme Court Decision 2009Do7166, Nov. 24, 201). However, insofar as the evidence submitted by the prosecutor alone is insufficient to recognize that the Defendant plans the crime with A or was aware of the crime committed, it is insufficient to find that the Defendant had planned the crime, and there is no other evidence to acknowledge it, it is difficult to hold the Defendant liable for the crime as an aiding and abetting the instant crime solely on the ground that the Defendant has attempted his selective service business with A, a representative director, while working together with A.