2018Gohap805 A. Violation of the Special Act on Insurance Fraud Prevention

(b) fire-fighting against a suspender vessel;

1.(a) A

2.(a) B

3.(a)(b) C

4.(b)(D)

5.(a) E.

Heading (Lawsuit) and Kim Sung-won (Trial)

Law Firm KPPPP (for Defendant A, C, D, and E)

Attorney Kim Sang-ok, Justice Kim Sang-ok, Justice Kim Sang-hoon, Justice Kim Sang-hoon, Justice Kim Jong-young,

Attorney Lee Hong-soo, Counsel for the defendant Lee Hong-soo

February 15, 2019

Defendant A shall be punished by imprisonment with prison labor for five years and by imprisonment for four years.

Defendant C, D, and E are not guilty.

The summary of the judgment of innocence against Defendant C, D, and E shall be published.

Criminal History 1)

[Public Offering Relations]

Defendant A is a representative director of F Co., Ltd. established for the purpose of deep-sea fisheries, fisheries, fishery products manufacturing, processing, and marketing (hereinafter referred to as “F”), who exercises overall control over the overall business of the company, and Defendant B is a person who acts as the representative director of G Co., Ltd., an affiliate company of F, and is a person who acts as the representative director of F, and subsequently

Defendant A, around June 2013, purchased KRW 1.5 billion by F, was not put into the operation of H, and used the maintenance cost, crew expenses, etc. in excess of KRW 600,000,000, and was at anchor for a long time for three years. Defendant A was able to receive fire insurance money by burning the fire into H.

Accordingly, around August 2016, Defendant A agreed to pay 10% of the fire insurance money if the success of the crime occurred while explaining the above crime plan to Defendant A and Defendant B, and I and Defendant B agreed to do so, and I and Defendant B agreed to take charge of the role of direct control and supervision so that the crime as a contact book of Defendant A can be committed without interruption.

【Criminal Facts】

1. Defendant A. B’s act of committing fire-fighting at the suspender ship; and

On October 2016, Defendant A sent I as a doping that he was responsible for the Haman’s security guards, and then sent I to the Knuri Republic of Friman, and Defendant B was at the appropriate time of committing the crime after receiving a detailed schedule from Defendant B.

In the meantime, the Republic of South Africa, which is not H’s regular crew member, experienced difficulties in getting H on board the Republic of South Africa, Defendant A instructed F Full-time Defendant D to have a first half-time boarding, and Defendant D sent Defendant A’s instructions to the local staff to Defendant C, who is the H Day Navigation Officer through H’s local staff. After that, Defendant C was on board the H, and 1 met the specific place and time of the crime while lodging on board the ship.

I around 05:00 on November 2, 2016, at H’s engine rooms and fishing rooms adjacent to H’s engine rooms anchored in the port of the Republic of South African (local time) of the Republic of South Africa, made three initials (25 cm in length, 5 cm in width) with plastic strings each with a string of light, and fixed the two initials of light on the floor of the roots, with a 10:0 on the same day with a string of the two seconds, and with a 10:0 on the same day (local time) with a string of the two seconds.

Accordingly, the Defendants, in collusion with I, destroyed H equivalent to KRW 1.5 billion, which four persons, such as Indonesian national seafarers J, have resided for the maintenance and management of the vessel.

2. A fire that occurred at H around November 2, 2016 due to Defendant A and B’s conspiracy in violation of the Special Act on Insurance Fraud Prevention, as seen in the preceding paragraph, was caused by Defendant A’s intentional fire, and thus, falls under the exemption from liability of the Victim K Co., Ltd. (hereinafter “K”) under the insurance contract, and F, did not have the right to claim fire insurance money. Nevertheless, the Defendants were willing to claim insurance money as if the fire was concealed in the victim K and was caused by an influence (the presumption of electrical shock).

Since then, Defendant A concealed the fact that H fire was a fire caused by his intentional act, and around December 2016, Defendant A claimed insurance money from the F Office located in Yongsan-gu Seoul Metropolitan City L to the effect that the victim K was destroyed by a fire caused by H due to an unforeseen cause (presumed as an electrical short circuit).

As a result, Defendant A and B conspired with the victim K on December 20, 2016 and obtained USD 5,801,988.14 ( approximately KRW 6.36,78 million) from the victim K to October, 2017.

Summary of Evidence

1. Each legal statement of the defendant A and B

1. Each legal statement of a witness A, B, I, M, and N;

1. Each prosecutor's protocol of examination of the accused A, B, and B;

1. Data and correspondence, a copy of a check issued A, details of the check in his/her front check, investigation report (A, F, analysis of the results of tracking the accounts in zero names, and attachment of a copy of a check);

1. H fire identification reports, disaster accidents reports, H fire investigation reports, H fishing holds, photographs of fish rooms, and insurance policies;

1. Among the results of the CD 4 and B mobile phone analysis, the message stamping, the call recording record with A out of the I mobile phone, the call recording record with A out of the I mobile phone, the call recording with A out of the I mobile phone (2), I and P, Q, R telephone content CD, and the page page of the HK hold agency;

Application of Statutes

1. Relevant Article of the Criminal Act and the choice of punishment (Defendant A and B);

Articles 164(1) and 30 of the Criminal Act (the fact of fire prevention against port-going ships and choice of limited imprisonment) and prevention of insurance fraud

Article 11(1)1 and Article 8 of the Special Act, Article 30 of the Criminal Act (the point of insurance fraud and the choice of limited imprisonment)

1. Aggravation for concurrent crimes (Defendant A and B);

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes with punishment prescribed for a violation of the Special Act on Insurance Fraud Prevention which is heavier than punishment)

1. Discretionary mitigation (Defendant B);

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

Judgment on the assertion of Defendant A, B, and Defense Counsel

1. Defendant A

A. Summary of the assertion

Defendant A and I do not have recruited the claims for the fire insurance money and the fire insurance money of Defendant B and H fire prevention (hereinafter “the fire prevention of this case”). Defendant A did not have any motive for the fire prevention, and Defendant B and I’s statement that Defendant A conspireded to and participated in the fire prevention of this case is not reliable. In addition, Defendant A did not have a mental state for planning and implementing the fire prevention at the time of 2016 when the fire prevention of this case occurred.

B. Determination

1) Facts of recognition

According to the evidence adopted by this court, the following facts are revealed.

A) On September 13, 2016, I left the Republic of South Africa for the purpose of the fire prevention of the instant case (hereinafter referred to as “the first departure”) and went back to H, but waived the crime and returned to the Republic of South Africa on September 24, 2016.

B) On October 24, 2016, I depart from the Republic of South Africa again (hereinafter referred to as “second departure”) on the part of the Republic of South Africa (hereinafter referred to as “the second departure”), and on the part of the Republic of South Africa obtained permission from Defendant C, a navigation officer of H Day, on October 24, 2016, on board H.

C) On November 2, 2016, around 05:00 (on November 2, 2016, at around 12:00, the local time, Korea time, and November 2, 2016) the first three primary (25 cm in length, 5 cm in width) were manufactured by combining three primarys into vinyl with a string, and then the two primarys were tightly cut onto the wooden bottom in the light. At around 08:08:30 (on November 2, 2016, 201) the first two primarys were tightly integrated into the wooden floor of H’s 2, and then the fire prevention of the instant case was lowered by putting the two primarys into a throwter. At around 08:00 to 08:30 (Local Time) on November 2, 2016.

D) The fire, around 10:00 on November 2, 2016 (Local Time) H 1, and the missionary work, etc., eventually H was dissatisfy.

E) At around 10:30 on November 2, 2016, I left the airport of the South African Republic, and returned to Korea on November 3, 2016.

2) Specific determination

Comprehensively taking account of the following circumstances revealed in accordance with the facts and the evidence above, Defendant A conspired with Defendant B and I to prevent the fire of this case and acquired the fire insurance money as if it were a fire due to a cause not attributable to the fire. Defendant A’s assertion cannot be accepted.

A) According to the statements made by the accomplice and part of the defendant B’s corresponding statements, it can be deemed that the defendant A has gathered a specific fire prevention plan, such as that the defendant A would offer the fire prevention of this case to the defendant B and I, and that I would escape him from the engine room.

(1) The credibility of I’s prosecutorial statement to the effect that Defendant A was directly given a fire prevention instruction is higher than the other statutory statement to the same effect.

(A) 1) The Prosecutor made a concrete statement on the fire prevention of this case in detail as follows.

① At around August 2016, Defendant B, at the office of Defendant B located in Daejeon Pungsung-gu, had a Ffold in the Republic of Nam Fafa, and Defendant B said that the insurance amount would have come to a level of KRW 7 billion if the insurance amount would go to a level of KRW 7 billion, and that Defendant A would have a person who would be able to believe. Therefore, it would be said that there was a person who would be able to believe in this case (Evidence No. 6002).

② Defendant A, B, and three persons were met in the office of Daejeon branch of the F Daejeon branch after a week, and Defendant A was able to do so, and Defendant A cannot be able to do so. Expenses incurred in breaking a fire such as a flight tag, etc. are not to be subsidized. If Defendant B is erroneous, it is possible to do so if it is confirmed that the internal expense would be incurred (Evidence No. 6003 pages).

③ In such circumstances, Defendant A, who had an internal work, said that she she she committed her double, would be simple in the engine room, and that she would put 10% of the internal insurance money to shesh if she became aware of the fact that she was established and operated jointly with the Daejeon Free Storage and Company with the money (Evidence No. 6003 pages).

④ When Defendant A, B, and three persons talk about the planning at the Daejeon Branch Office, Defendant A entered the end of H, and KRW 300 million each year and depart from the port, Defendant A would be liable to compensate for damages. The term “I am flick flick flick flick fl,” and “I am flick flick flick flick flick flick flick

(B) In this court, I reversed the statement to the effect that “A was merely the phrase “A from Defendant B made the words such as the above ②, ③, and ④,” but the phrase “I was from Defendant A to the engine room,” but it was only the statement that Defendant A was referred to Defendant B to the extent of his driving.”

(C) The grounds to regard the credibility of the prosecutorial statement as higher than the court’s statement are as follows.

① At this court, Defendant A stated that “I would be able to prevent a fire to Defendant B within the vehicle he drives on August 2016, and will be able to do so to the engine room.” It seems clear that Defendant A had talked about the fire-prevention of the H at least three persons at the same time, even according to the prosecutorial statement and these statutory statements. However, unlike the very detailed prosecutorial statement, Defendant A did not make any detailed statement in the court room other than the phrase “I would be able to see the engine room.” This is difficult to easily understand this in light of the empirical rule.

② According to the I’s legal statement, even though Defendant A did not raise an objection, Defendant A was in a position to listen to the discussions on fire prevention that should be held in secret, and this is also not a prior understanding. As such, as the talk about a serious crime, it is difficult to say that there is no awareness about it.

③ At the same time, I talked about the reason why I reversed the prosecutor’s statement in this court. Of course, I talked about the reason why I reversed the prosecutor’s statement. Of course, I made a mistake in the process of the statement. I also accepted that part of I made a mistake. This part of I would also be recognized. It is difficult to believe that I directly talked with the Defendant A about the fire prevention of this case, one of the most important parts of the crime of this case, namely, whether I made a direct statement before Defendant B’s horses, whether I directly heard Defendant A’s horses, and whether there was the fire prevention of this case by mistake, and the circumstances leading up to the reversal of specific prosecutor’s statement do not easily understand. Rather, I’s statement in the process of denying the conspiracy by Defendant B, which is not significantly related to H on the face of the time when I admitted his criminal act, and that it was not consistent with the above nature or doubtful by the Defendant’s direct statement from Defendant A as if he had been reversed.

(2) Defendant B’s legal statement that corresponds to the main part of the I’s prosecutorial statement may also be trusted.

(A) Defendant B stated in the prosecutor’s office that Defendant A, I, and fire prevention was not vague, and that there was no detailed fact about the fire prevention in this H, and that there was no talk about the fire insurance money at all. However, in this court, Defendant B stated to the following purport.

① Around August 2016, Defendant A and I heard the phrase “S is a person who has performed fire-fighting with a constitutional article by selling a warehouse at auction.” Then, Defendant A and Defendant A stated that “I will receive insurance money by leaving the warehouse,” and “I will receive insurance money by leaving the warehouse,” and it is difficult to take off the remaining gold fishery. There are only one distribution in the remaining public space, and if the operation is carried out, it will be considered as KRW 50 million, and if the match is installed, it will be considered as KRW 300 million.” In this case, Defendant A and Defendant A heard the horses of I. However, if it can be seen as “I will commit fire.”

On September 12, 2016, at the F coffee shop, three persons referred to as the "influence of Defendant A to the engine room" at the front and rear coffee shop.

③ There is no fact that Defendant A would pay 10% of the insurance proceeds if the insurance proceeds would exceed 7 billion won if the said money would be invested in Daejeon to establish a new company in Daejeon, and three persons would give 10% of the insurance proceeds if the company is not operated as freezing storages.

(B) In the name of Defendant B’s legal statement, the part that Defendant A told Defendant A I to the effect that “I would be able to do so if you are able to do so.” However, the expenses are not able to do so,” and the part that “I would be able to fright to a fright to a fright to an fright to a fright to an fright to a fright to a fright to an fright to

(C) It is true that Defendant B’s legal statement is not consistent or somewhat different from Defendant B’s prosecutorial statement about the time and place of the conspiracy of the crime, and the part of the commission of the crime, etc. In order to deny or reduce his participation in the crime, it appears that Defendant B’s first delivered the Defendant A’s criminal act plan to Defendant A and made a false statement about the part of the proposal or the promise of the commission of the crime. The legal statement was made two years after the date of gathering the instant fire prevention, and around that time, Defendant A, B, and I appeared to have frequently passed since that time, it is difficult to reject the credibility of the entire prosecutorial statement and the entire prosecutorial statement of Defendant B, consistent with the main part of the first prosecutorial statement, solely on the grounds that some of them are inconsistent with the Defendant A’s prosecutorial statement and the promise of the commission of the crime.

B) In the absence of Defendant A’s solicitation with the F, the exact location and status of Defendant B and the H owned by this F, and the amount of fire insurance money, etc. were not known, and there was no possibility of boarding this times, irrelevant to H.

(1) From the investigative agency to set up a Ha’s match, I entered the 300 million won each year, and deemed the 500 million won if departing from the Republic of Korea, and stated that H’s fire insurance amount was known to approximately KRW 6 billion to KRW 7 billion. In fact, H had been in a body for a considerable period from June 2013 to KRW 600 million in relation thereto, and paid approximately KRW 600 million in the cost related thereto. H’s fire insurance amount is in line with the above statement. As such, I was generally aware of specific information related to H.

(2) At the time of departure from the Republic of Korea on September 13, 2016, Defendant B delivered to I the mera with the trade name, address, contact number of the person in charge, and H’s anchorage, which is a local agent of H, as of September 13, 2016. Reference to this, Defendant B could bring T’s person in charge into the Republic of South Africa. As such, the mera containing accurate information about H appears not to be able to be secured by Defendant B without going through Defendant A. As such, Defendant A cannot explain the circumstances in which Defendant B obtained the above mera.

(3) On October 18, 2016, I tried to board H after departure from the Republic of Korea on October 2, 2016, but did not achieve that intent, and Defendant B sent to Defendant B the answer letter that “I would have been franked that I would have been on board.” Accordingly, Defendant B sent the answer letter to I that “I would have contacted I I I I I now now.” (Evidence Nos. 165 of evidence list), and thereafter, Defendant A instructed Defendant D, the executive director of the F, to get I on board the H around October 24, 2016.

As such, Defendant A played a key role in the course of boarding this H, and there was no explanation for the reason why Defendant A led to the boarding of the H. First of all, Defendant A made a statement from the investigative agency to the investigation agency to the instant court that: (a) the Defendant sent I to the South Africa to the Republic of South Africa and permitted the boarding of the H; (b) it is difficult to believe this. This is because: (c) Defendant C was not aware of the fact that he was employed as a security guard of Defendant C, as well as the F employees; and (d) Defendant C was also unaware of the fact that he was employed; and (c) Defendant A was made a statement that there was no such fact. The reason why Defendant A was on board the SH was due to the fact that the Defendant was suffering from Albane disease at the time of his boarding, and thus, it is difficult to deem that there was a serious obstacle to the degree of recognition on the part of Defendant A as seen thereafter.

C) Defendant A should be deemed to have provided the required flight fund at the time of damage escape to the criminal expenses required for the instant fire prevention and the tracking of the investigation agency.

(1) Defendant B, at the prosecutor’s office and this court’s order, ordered Defendant A to pay KRW 3 million and KRW 500,000 to I at the expense of the flight tag, etc., and subsequently returned to Defendant A.

A relatively consistent statement was made to the effect that Defendant B and I still remain a telephone recording of the above contents (Evidence No. 165 CDs) on November 5, 2016, the first and second departures of Defendant B paid the expenses first to Defendant A at the time of Defendant B’s departure and then returned it later by Defendant A.

(2) On March 4, 2018, at the time when Defendant A was subject to seizure of the cell phone of this case and the investigative agency’s tracking damage, Defendant A provided 4,30,000 won, and 4.60,000 won, and M delivered the said money to I. At the time of investigation agency and this court, Defendant A provided that Defendant A was aware of the fact that “at the time of the investigation agency and this court, Defendant A was serving in the police.” On the other hand, Defendant A did not appear to have provided that “I would not drink any drinking, and would not drink any drinking,” and “I would not use the said money if I would have used the money to escape to help you escape.”

D) In the absence of Defendant A’s instruction or a conspiracy with Defendant A, there is no motive for preventing the fire of this case from departing from the Republic of South Africa with the risk of life, physical danger and criminal punishment, and there is no motive for preventing the fire of this case. In addition, it is difficult to think of the benefits that can be derived from independent fire prevention with Defendant B without the involvement of Defendant A.

(1) 피고인 B과 I은 뚜렷한 직업이나 재산이 없는 반면, 피고인 A은 원양어선 업체 중 U 안에 드는 F의 대표이사로서 고향 후배들인 피고인 B과 이 피고인 A의 말을 일방적으로 따르는 관계에 있었다. 특히 I은 피고인 B의 소개로 피고인 A을 알게 된 후 피고인 A과 신뢰관계를 쌓아 지속적으로 도움을 받고 싶다는 생각을 가지고 있었던 것으로 보인다. 이 이 사건 방화 이후 지인인 Q에게 피고인 A의 지시로 H에 불을 질렀다고 말하면서 '이것도 또 나한테는 기회니까. 솔직히 나 못 믿는 사람 같으면 그런일 시키지도 못하고 그러잖아. … 이제 좀 기다리고 있는 수밖에 없지, 어차피 뭐 생선이라도 갖다가 팔수가 있잖아. 일을 해놨으니까.'라고 말한 것이나(증거기록 8권 544~548쪽), 이 법정에서 '어차피 저는 그런 큰일을 겪고 할 때 사실은 목숨을 걸었고 어차피 잘못되면 이런 부분이 있다 그런 생각을 했었고 갔다 와서도 마찬가지입니다. 어찌되었든 간에 사업적으로 제가 어려움이 있어서 F 회장님 한 번 도움주시면 나중에 일을 제대로 한 번 해보겠다. 꼭 금전적인 관계를 떠나서 사실은 한 것입니다.'라고 진술한 것을 보면 알 수 있다. 피고인 A과 이러한 관계에 있는 피고인 B과 I이 피고인 A의 지시나 관여 없이 F에 막대한 영향을 미치는 이 사건 방화를 계획하거나 실행하였다고 보는 것은 무리다.

(2) In light of the fact that Defendant B or Defendant A did not actively demand compensation for a crime after the fire prevention of this case, Defendant A asserts to the effect that, from the beginning, there was no specific instruction or promise from Defendant A to commit a crime, and that there was a possibility that Defendant B or the fire prevention of this case could have committed a fire to obtain money from Defendant A or to borrow money from its neighbors, as if Defendant A was involved in the fire prevention of this case.

However, if the plan to receive money from Defendant B or this Defendant A was unable to obtain money from the beginning, it is difficult to obtain a direct demand from Defendant A for money after fire prevention. In other words, Defendant B or I, “after fire prevention, it is difficult for Defendant B or I to take out her horses first (in relation to fire prevention) or her horses first (Evidence 8:278 pages of evidence records), or there was fire prevention. However, how Defendant A first became aware of it (the first witness witness witness witness witness witness record, 31 pages of this case) and it was difficult to take the direct demand from Defendant A for money from the beginning until a considerable period of time after the fire prevention of this case. It is difficult to view Defendant B or V to voluntarily demand Defendant B’s fire prevention from the beginning on February 2, 2018 to the effect that Defendant B and V were 10 for the purpose of fire prevention of this case (the second witness witness witness witness record, 31). It is difficult to see that Defendant B and V were 10 for the purpose of fire prevention of this case.

(3) Defendant B and I seem to have obtained a certain pecuniary advantage or opportunity from Defendant A after the crime of the instant fire prevention even though they were not the first commitment as above. In other words, Defendant B and I, on July 4, 2017 and July 17, 2017, received KRW 100 million from Defendant A as a security deposit for the lease of freezing warehouses in Chungcheongnam-gun, Chungcheongnam-gun. Although the freezing storage rent did not run, they did not return it to Defendant A and consumed it. On July 16, 2017, Defendant B and A were allowed to receive KRW 6,823,00 from Defendant A without any special deposit (Evidence record 6013) in the process of acting in the name of the corporation in which the F and X (Y) was actually operated (Evidence record) in the name of 00,000 won. In addition, Defendant B loaned to Defendant B a security deposit of KRW 4,000,000,0000 to Defendant A without any special deposit.

(Evidence Records 6037 pages) In particular, although I was not directly related to the Defendant’s investment or loan until before the crime of this case was committed, he was given the opportunity to participate in the above monetary support or business after the fire prevention of this case. This seems to have been due to Defendant A’s trust after following Defendant A’s instruction.

E) Meanwhile, Defendant A asserts that, at the time, he did not have a mental state to direct or attract the fire of this case to I due to the decline in recognition ability due to Albuses’ disease, etc., even if Defendant B had talked about the fire of this case, it is highly likely for Defendant B to end at a time of suffering from Albuses’ disease without due diligence.

However, on September 4, 2016, Defendant A was subject to MRI’s inspection and recognition disorder inspection due to a decline in short-term memory, etc., and was determined as not a recognition disorder (Evidence Records No. 175, 176 pages). Defendant A was at the time, but it appears that Defendant A appeared to have worked daily in F and received a report on the current status, etc. of operation. Employees, such as V and Defendant D, also did not raise any objection or confirmation of the instructions issued by Defendant A, such as: (a) Defendant A was unable to view that Defendant A did not have any serious disorder in the interview with A on June 2, 2017; (b) Defendant A was unable to view that it was difficult to determine whether it was a fire-fighting disorder or that it was considerably difficult to view that Defendant A did not have any potential disorder in the interview with Defendant A; and (c) Defendant A did not have any specific meaning of the interview with Defendant A around such time.

F) Defendant A asserts that there was no motive for fire prevention, so it cannot be deemed that Defendant B and I conspired with the instant fire prevention.

Since the end of April 16, 2015, F has promoted the operation plan of the entire mine using H in Anrara. From the Government of Anrara on April 16, 2016, F obtained approval for changing the operation vessel from AB to H from the Government of Anrara on April 16, 2016 (Evidence 13, 14). A specific preparation was made for the operation of Anrara, most of the fire insurance proceeds were used for the repayment of loans to the Export-Import Bank of Korea by AC, a corporate subsidiary. In light of the fact that it is difficult to deem that there was an urgent circumstance to repay the above bank loans at the time (Evidence 67) and there is a part that is difficult to readily conclude that the motive for fire prevention by economic purposes is certain.

However, even according to the data submitted by Defendant A, at the time, H had been in the body for about three years and five months from June 2013 to the fire prevention of the instant case, and had spent approximately KRW 600 million at the expense related thereto only until 2015 (Evidence 5). F participated in the auction to secure Russian operating quotas from H in 2014 to 2015, but failed to secure quotas (proof 57 evidence). At the time of the fire prevention of the instant case, F had been in the state of 00 tons of 200 billion won for the reason that the 105 billion tons of 201 billion won for the 201 billion won for the 2010 billion total operating income from the 2016th anniversary of the fire prevention of the instant case, F had been in the state of 50 billion total operating income from the 20170 billion total operating income from the 2010 billion total operating income from the previous 2017.

As such, even if Defendant A, whose judgment capacity was lowered due to age, etc., did not seriously follow a large amount of insurance money and planned fire prevention in order to compensate for losses in a short period of time, even though H did not engage in operations for a long period of time due to failure of H to conduct operations and spent considerable expenses therefor, and even in the future, it is difficult to view that Defendant A, as seen earlier, was engaged in collusion and participation in the fire prevention of this case solely on the grounds that it is not clear whether economic profit or loss has been incurred or not, is not enough to reverse all the circumstances to deem that Defendant A participated in collusion and participation in the fire prevention of this case.

2. Defendant B

A. Summary of the assertion

Defendant B was not aware of the fact at the time when Defendant A instructed the prevention of a fire, but did not participate in or conspired to commit a fire. In addition, Defendant B did not know of the specific crime of Defendant A and did not share any action, and there was no fact that Defendant A demanded the compensation for the crime.

B. Determination

1) Relevant legal principles

In a case where two or more persons are co-offenders who jointly process a crime, the conspiracy does not require any legal punishment, but is only a combination of intent to realize the crime through a joint processing of a crime. Even if there was no process of the whole conspiracy, if a combination of intent is formed by either consecutive or implicitly and through the conference among several persons, the conspiracy relationship is established. As long as such conspiracy was concluded, even if those who did not directly participate in the act of the crime are subject to criminal liability as co-principal against the other co-offenders (see, e.g., Supreme Court Decision 2013Do5080, Aug. 23, 2013). However, the intent of joint processing as a subjective requirement for the establishment of a co-principal is insufficient solely with the recognition of another person’s crime and without restraint (see, e.g., Supreme Court Decision 2000Do576, Apr. 7, 200).

2) Determination

Comprehensively taking account of the following circumstances revealed by the evidence adopted and examined by this court, it can be sufficiently recognized that Defendant B conspireded to prevent the fire of this case with Defendant A and I, and that Defendant A and I were in charge of liaison between Defendant A and I, etc., functional control through essential contribution to the crime of fire prevention of this case.

A) As seen earlier, I first received the Defendant’s fire prevention plan from the Defendant B at the prosecutor’s office, and told Defendant B to commit a fire, and thereafter, the Defendant A, B, and the Defendant made a statement to the effect that he was “the specific fire prevention mother in his mother.” The Defendant B also stated in this court that “The Defendant A and three persons told Defendant A to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her and to her to her well her to her to her to her to her

B) As seen earlier, Defendant B paid 3.5 million won or more to Defendant A at the time of departure from the Republic of Korea for the purpose of the first and second departure from Korea, and received KRW 5 million from Defendant A later for the purpose of paying 3.5 million or more, such as the value of the flight season, the cost of stay, etc.

After leaving the Republic of South Africa, Defendant B urged I to communicate with the Republic of South Africa while continuing to communicate with the Republic of South Africa, required I to allow I to go on board the Republic of Korea, and confirmed I to be on board the Republic of Korea continuously (Evidence No. 165). Defendant B sent the word “final approval on the progress of multiple days” in order to verify the progress of fire prevention on October 31, 2016, and sent the word “I confirmed on November 11, 2016,” and then sent the word “I confirmed on November 11, 2016 to I” (Evidence No. 165, Defendant 10, Defendant 111).

As such, Defendant B confirmed and delivered Defendant A’s will about whether the Republic of South Africa or the H was playing a key role in the process of departure from the Republic of South Africa and the final fire-prevention process.

C) Defendant B was trying to actively prevent the occurrence of the instant fire, such as sending the word “I’s fire prevention and the passage of work after the accident,” and on November 5, 2016 after I’s return, it appears that Defendant B made efforts to actively prevent the occurrence of the instant fire prevention (Evidence No. 165 CD No. 165).

D) Meanwhile, Defendant B asserted that Defendant B merely took charge of contact between Defendant A and I without knowing the specific fire prevention plan of Defendant A and I. However, considering the details of contact between Defendant B and I as seen earlier, it cannot be deemed that Defendant B merely takes charge of contact between Defendant A and I with the appearance of the fire prevention plan or content of the instant case.

In addition, in light of the aforementioned legal principles, the intention of co-processing, which is the subjective element of the co-principal, does not necessarily need to be subject to prior recruitment of the crime planning. Thus, even if Defendant B did not know about the specific plan, i.e., what part of H, even though he did not know in advance, it does not affect the establishment of the co-principal.

E) Defendant B asserts that there was no promise to receive any criminal compensation in relation to the fire prevention of this case, and that there was no actual benefit.

However, in light of the following: (a) Defendant B, an accomplice, made a consistent statement at the investigative agency to jointly establish a Daejeon freezing warehouse with fire insurance money or to receive insurance money by 10%; and (b) Defendant B also made it possible for Defendant B to have been promised to receive compensation for a crime from Defendant A, in view of the following: (c) how to keep solitary sound, such as: (a) Defendant A received insurance money, and (d) Defendant B’s receipt of insurance money, was discarded into a “company” (Evidence No. 165, No. 165, the evidence record No. 8, the evidence record), etc.

In addition, at the time, Defendant B was under pressure by demanding the Z, one’s own land, to raise funds, and attempted to borrow money from AF, one’s own land (Evidence 8:16-156 pages, 262-265 pages), and as seen earlier, Defendant B requested the Z to lend KRW 400 million to the Z, which is after the fire prevention of the instant case, and Defendant B had requested the Z to do so without any special security. This can be evaluated as having obtained indirect profits from Defendant A after the crime of the instant fire prevention even if Defendant B was not the first promise.

Even if Defendant B did not receive the commission of the crime or did not have a direct relation to the fire prevention of this case, as seen earlier, insofar as it was evident that Defendant B served as a key role in the fire prevention of this case, such circumstance alone cannot readily deny Defendant B’s co-principal establishment of the fire prevention of this case.

Reasons for sentencing

1. The scope of punishment by law;

○ Defendant A: Imprisonment for 5 to 45 years

○ Defendant B: Imprisonment with prison labor for a period of two years to six months from June 22

2. Scope of recommending sentences according to the application of the sentencing criteria;

(a) Fire-fighting of a suspender vessel;

[Determination of Punishment] Class 1 (Setting Fire to Present Living Building, Fire to Public Building, Fire to Public Building, etc.)

[Special Person] The motive for committing a crime to be criticized

[Recommendation and Scope of Recommendation] Aggravation, 4-7 years of imprisonment

(b) Violation of the Special Act on Insurance Fraud Prevention: No sentencing guidelines are set;

C. The scope of final sentence due to the aggravation of multiple offenses

Defendant A: Imprisonment with labor for at least five years, and Defendant B: imprisonment for at least four years (the sentencing criteria are not set for the violation of the Special Act on the Prevention of Insurance Fraud, which is a concurrent crime under the former part of Article 37 of the Criminal Act with the former part of the current vessel and the crime of fire prevention, and the sentencing criteria for the current vessel and fire prevention to which the sentencing criteria apply are set, shall be set at the lower limit of the sentencing criteria, and shall be modified for

3. Determination of sentence;

The crime of this case in collusion with Defendant A and B is not a good crime in light of the fact that Defendant A and B destroyed a ship owned by seafarers for the purpose of acquiring insurance proceeds, destroyed the ship and actually claimed insurance proceeds, and that there is a very planned and interview with the Criminal Act, and that the amount of damage is large. In particular, insurance fraud is a crime that harms the purpose of the insurance system of reasonable diversification of risks, and ultimately causes damage to many good subscribers. In addition, it is necessary to punish the above Defendants as such. In addition, the crime of this case was committed by Defendant A, as the representative director of the F, even though Defendant A provided the beginning of the crime of this case and took fire prevention, Defendant B denied the crime, and Defendant B exchanged with I, made it difficult to obtain payment, regardless of the existence of various objective evidence, such as text messages, etc.

이는 위 피고인들에게 불리한 정상이다. 다만 H에 승선하고 있던 선원들의 생명·신체에 대한 실제 피해는 없었다. 피고인 B은 이 사건 범행에서 피고인 A과 | 사이의 연락을 주로 담당하였는바 불을 지른 주범인 I에 비하여 죄책이 상대적으로 가볍다고 보이고, 보험사기죄에 관해서도 화재 보험금을 직접 분배받았다고 볼 자료는 없다. 피고인 A은 벌금을 넘어서는 전과가 없고, 고령으로 현재 알츠하이머병 등을 앓고 있어 건강이 좋지 못한 것으로 보이며, 피고인 B도 고령으로 건강하지는 않다고 여겨진다. 이러한 사정은 위 피고인들에게 유리한 정상이다.

In addition, the conditions for sentencing, such as the age, character and conduct, environment, motive, means and method of committing the crime, and the scope of recommended punishment according to the sentencing guidelines, shall be determined as per the order, comprehensively taking into account the various circumstances.

Part of Innocence (Defendant C, D, E)

1. Summary of the facts charged

[Public Offering Relations]

Defendant C is a deep-sea fishing vessel owned by F and a navigation officer of H who is anchored in the Republic of South Africa, and is in charge of vessel management. Defendant D is a regular manager of F, who is in charge of vessel insurance contracts and insurance claims, and Defendant E is a local branch of F inf.

As stated in the facts of the crime in the judgment, Defendant A, as the defendant B and I gather fire, and completed the crime planned by Defendant D, C, and E on board with the ship of this case, which is not a registered seafarer of H, and ordered the accident investigation to take measures so that the existence of I and the truth of the cause of the fire can not be revealed even in the course of the accident investigation so that it can not be discovered that it is a fire by intention but a fire by intention. Defendant D, in the Republic of Korea, and Defendant C, in the Republic of South Africa, are able to take the role of helping the H boarding of the H and check the progress of the fire, and take the role of claiming the insurance proceeds by fire, and Defendant E takes the role of controlling the local employees in the Republic of South Africa and monitoring the investigation process so that the truth of the cause of the fire can not be discovered to the insurance company, etc.

【Criminal Facts】

A. Defendant C and D’s act of causing fire to the vessel of this state

On October 2016, Defendant A sent I as a doping that he was responsible for the Haman’s security guards, and then sent I to the Knuri Republic of Friman, and Defendant B was at the appropriate time of committing the crime after receiving a detailed schedule from Defendant B.

As a result, not H’s regular crew members but H was faced with difficulties in boarding the Republic of South Africa, Defendant D sent the direction of Defendant A, a local employee, to Defendant C, who is H first class mate, through H’s local staff, and Defendant C, according to the direction, she was able to get Defendant C, without approval from the authorities of the South Africa Republic, to board the ship in the ship and to look at the specific place and time of the crime while lodging in the ship.

Since then, around 05:00 on November 2, 2016, at H’s engine rooms and fishing division rooms adjacent to H’s engine rooms anchored in the port where the Republic of South Africa is anchored, three initials (25 cm in length, 5 cm in width) are bound by plastic strings, and two initials are fixed on the floor of the ppuri, and the transit is tightly integrated above two seconds on each side of the ppuri, and the transit is 10:00 on the same day (local time) and all vessels, such as a window and missionary work.

Defendant C and D, in collusion with Defendant A, B, and I, destroyed H equivalent to 1.5 billion won, where four persons, such as the Council of Indonesian Nationality Seafarers, reside in the maintenance and management of the vessel.

B. A fire that occurred at H around November 2, 2016 due to Defendant C, D, and E’s conspiracy to commit a crime of violating the Special Act on Insurance Fraud Prevention constitutes an exemption from liability of the victim K under an insurance contract, and F had no right to claim fire insurance money.

Nevertheless, according to the orders of Defendant C, D, and E, Defendant C, D, and E have attempted to conceal these circumstances as if they were a fire by means of a cause not attributable to the victim K and the cause of the fire.

Defendant D, around November 4, 2016 after the occurrence of the fire, considered FF’s local employees of the South Africa Republic of South Africa to be fire prevention through Defendant E. Defendant C’s information, and led Defendant E to the concealment of the cause of the fire, such as taking pictures and recording of the statements made by Defendant C in the process of the fire investigation, following the escape of Defendant C, who retired immediately after H fire, to the South Africa.

Defendant C, around November 3, 2016, stated that the Indonesian crew members of H appeared to have caused the fire, prepared a false statement to the effect that the cause of the fire was stated as “electric dynasium,” and submitted it to the claims adjuster. Defendant C, on board this H, was aware of the fact that he was killed immediately after the fire, and she sought it in the process of investigation conducted by the investigation authorities outside the country and outside the country.

On November 4, 2016, Defendant E prevented Defendant E from filing a fire report to an investigation agency by threatening the said AG to file a complaint for an unrecepted crime, and under Defendant D’s instruction, Defendant C’s supervision over the process of the fire investigation against Defendant C to prevent Defendant C from referring to I.

As above, Defendant A, who operated the cause of a fire systematically, concealed the fact that H fire was a fire caused by his intentional act, and around December 2016, Defendant A claimed insurance money against the victim K from the F office located in Yongsan-gu Seoul Metropolitan Government L to the effect that H was destroyed by a fire caused by a cause not attributable to H (Presumption as an electrical short circuit).

As a result, Defendant C, D, and E in collusion with Defendant A, B, and I, obtained USD 5,801,988.14 ( approximately KRW 6.36,780,00 from December 20, 201 to October 13, 2017) as a fire insurance amount from the victim K, and acquired it by fraud.

2. Determination

A. Evidence without admissibility

1) We examine the admissibility of the first statement (Evidence No. 79,80,83-86) prepared by HH, AI, AJ, and AK and the first statement (Evidence No. 79,80,83-86) prepared by N’s representative of the AL Co., Ltd. (hereinafter referred to as “AL”) and the Indian crew’s statement (Evidence No. 166) attached to the AJ and AL), the written statement (Evidence No. 80-1), the written statement (Evidence No. 80-1), the written statement or e-mail (Evidence No. 24-3, 100-1, 156) prepared by T staff AO, AG, and AP.

2) In order to recognize admissibility of evidence pursuant to Article 314 of the Criminal Procedure Act, where a statement made by a person other than the defendant, including a statement of a witness, was not proven by the statement made in the courtroom, the statement constitutes a case where the person who made the statement is unable to appear and make a statement in the public trial due to death, illness, unknown whereabouts in a foreign country, or any other similar cause, and where the preparation of the document is particularly reliable. The term "foreign residence" here means that the person who requires the statement was in a foreign country. In the course of investigation, the investigative agency’s hearing of the statement and the possibility of future departure is confirmed. If it is probable that the person who made the statement is unable to appear and make a statement due to such reasons as where the person’s residence is in a foreign country or where the person who made the statement is staying in a similar country for a long time, the contact with the person who made the statement should be confirmed in advance at the time and time of his/her temporary return to Korea, and even if the person who made the statement is unable to appear and make the statement sufficiently available.

Furthermore, even if a person who needs to make a statement is residing in a foreign country and is unable to attend the public trial while refusing to appear in the public trial, the address or contact point of the foreign country where the person is living in the foreign country is identified, unless the person’s intention to refuse the testimony itself is clear, should first be examined as to whether a witness may be summoned pursuant to the procedure under the judicial mutual assistance in the international criminal justice, and even if summons cannot be made, the procedure should be followed, such as requesting a witness to attend the public trial in the foreign court. It is difficult to view that the procedure is a case where a person who needs to make a statement is unable to attend the court even if it is possible and considerable means are different (see Supreme Court Decision 2015Do1715, Feb. 18, 2016).

3) There is no evidence to deem that both AH, AI, AJ, K,N, and AP, the originator of the above documents, have taken necessary measures, such as securing the contact address and address of a person who has made a statement in a foreign country, and securing the method of having him/her attend and make statements in a public judgment in the future, although it is highly probable that his/her place of residence may not occur in the future as a foreign country.

Although AO and AG have identified foreign contact details, it revealed that they were unable to attend the court for the first instance due to the cost and other problems. However, there is no ground to view that AO and AG itself clearly refused to testify. Therefore, it was possible to devise the procedure such as whether to summon a witness according to the judicial cooperation procedure or to conduct a witness examination as a judicial cooperation to the courts of the South Africa (the criminal justice cooperation treaty between the Republic of Korea and the South Africa came into force on June 20, 2014) but such procedure was not attempted.

In light of the aforementioned circumstances in light of the legal doctrine as seen earlier, it cannot be deemed that the foregoing written statement, etc., even if possible and considerable means are met, it does not constitute a case where a person who needs to make a statement is unable to appear in the court, and thus, it is difficult to view it as evidence

B. Specific determination

1) Whether Defendant C violated the Special Act on the wise Ship Fire Prevention and Insurance Fraud Prevention

A) According to the evidence submitted by the prosecutor, the following facts are revealed: (a) Defendant C was on board I without verifying the identity, etc. of Defendant C, or without undergoing regular boarding process; (b) Defendant C was on the day of the fire-prevention of the instant fire, at around 07:00 at the time of the fire investigation conducted by Defendant AL representative N, and stated that Defendant C was on the day of the fire (the 874 pages of the evidence record), but did not carry on the patrol of the ship’s office on the day of the fire; and (c) Defendant C stated that there was no officer or employee of the head office visiting H after September 2016 at the time of the fire investigation conducted by Defendant AL representative N, and in light of this, it is doubtful that Defendant C was not aware of the fact that there was a fire-prevention by Defendant C (the 873 pages of the evidence record).

B) However, in full view of the following circumstances revealed by the evidence adopted and examined by the court, it is insufficient to deem that Defendant C conspiredd with Defendant A, B, and I to commit the instant fire prevention, or participated in the crime of taking fire prevention and the fire insurance fraud, without any reasonable doubt, and there is no evidence to acknowledge otherwise.

(1) As seen in the above paragraph 1-B(2) of the "Determination on the Claim of Defendant A, B, and Defense Counsel", H at the time of the fire prevention of this case was in a state of considerable expenses for a long period of body, but it is possible to obtain profits from the operation of Anraracles. Thus, it cannot be readily concluded that the receipt of insurance proceeds from the fire prevention of this case would bring a huge economic benefit. Even if Defendant A instructed the fire prevention of this case to make a temporary loss in a state of somewhat lacking judgment capacity, even if Defendant C, who is only an employee of the F, was under the direction of the representative director, was under the direction of Defendant A related to fire prevention, or was willing to commit a fire prevention with Defendant A, I, etc., on the ground that Defendant C, who is a only one of the first navigation officers of the instant case, was under the direction of the representative director.

It is difficult to see it.

(2) There is no direct evidence to acknowledge that Defendant A notified Defendant C and other F officers and employees of the instant fire prevention plan and ordered them to participate therein, and there is no such circumstance.

Rather, around October 2016, F around that time, purchased materials necessary for the repair of a vessel to prepare for the operation of H H H H H H H H, and consigned to the rink (influent No. 8), recruited crew members, such as captain, deck, and head of agency, etc. to board H, and took specific measures such as reservation of the crew’s flight aircraft labels (influent 19,59,65). This is inconsistent with the fact that Defendant C was aware of the fire prevention plan of Defendant A, B, and I, which is likely to have been involved in the vessel management.

(3) Around October 19, 2016, Defendant C confirmed that he was to embark on the headquarters F, who was to walked on the phone to this H. At the time, the F head of F, who was called the phone, was to contribute to the I’s boarding of the vessel. After the F, Defendant C 1 was on board in the capacity of Defendant A’s seat, and then delivered I information to Defendant C ex post facto. In light of the foregoing, it appears that there was no specific delivery of information or communication with Defendant C, A, and Defendant D on board until the I’s H, which is a key measure for the fire prevention of the instant case, prior to the instant flight.

(4) The facts charged in this part are as follows: "The defendant C was allowed to get the defendant C to board the ship I and to see the specific place and time of crime on the ship," but I stated in the prosecutor's office and this court that "the defendant C was on board the ship in order to provide business indemnity, and there was no fact that the defendant notified the fire prevention plan of this case and sought cooperation."

(5) As seen earlier, even if Defendant C had patroled the cabin and the engine room on the day of the fire, it would be somewhat somewhat unreasonable to view that Defendant C could have made such a statement at the time of the accident investigation in order to reduce or avoid liability for negligence in the management of the fire that occurred on the day of the fire. However, as Defendant C’s first class mate, it is likely that Defendant C had made such a statement at the time of the accident investigation in order to reduce or avoid liability for negligence in the management of the fire that occurred on the ship under his overall control. At the time of the fire investigation conducted by the AL representative N, it was revealed that Defendant C had committed a fire by means of delaying the fire by using two seconds. Thus, it is difficult to view that Defendant C had not made any strong doubt as to the first class prior to the occurrence of the fire, and thus, it is difficult to readily conclude that Defendant C had known that he had been a witness of the representative director of the company.

2) Whether Defendant D violated the Special Act on the Prevention of Vessel Accidents and Insurance Fraud

A) According to the evidence submitted by the prosecutor, it can be acknowledged that Defendant D delivered the direction of Defendant C to Ha to get on board Ha, and thereafter Defendant C got on board Ha, and that Defendant C sent a public notice to the effect that Defendant C et al. gather the whereabouts of the crew, including Defendant C et al. on January 11, 2017, when Defendant C requested an interview with Ha to investigate the AL fire after the fire in the instant case.

B) However, in full view of the following circumstances revealed by the evidence adopted and examined by this court, it is insufficient to view that Defendant D conspiredd with Defendant A, B, and I to commit the crime of fire prevention or obtained fire insurance money, without any reasonable doubt, and there is no other evidence to acknowledge otherwise.

(1) It is difficult to view that Defendant D, who is an executive officer or employee of F, is under the direction of Defendant A related to fire-fighting and under the direction of Defendant A, Defendant A, I, etc., or is a motive for soliciting fire-fighting solely on the ground that Defendant D is under the direction of the company or the Chairperson. In addition, there is no direct evidence to acknowledge that Defendant A notified the instant fire-fighting plan to the executives or employees of F, including Defendant D, and ordered them to take part in the plan, and there is no such circumstance to view it.

(2) It is difficult to see that Defendant D, an executive officer of F, delivered the direction of the representative director that Defendant D D goes on to H as it is, in itself, to the T. Defendant D appears to have been aware of the information about it through Defendant C after he was on board this H. Rather, it accords with Defendant D’s assertion that Defendant D merely knew Defendant D as “the seat of the president” at the time when Defendant D delivered Defendant A’s instructions on the Iboard boarding, and did not know at all about the specific personal matters.

(3) At the time of the investigation of the AL’s fire, Defendant C et al. sent a door to the purport that there is no information about the location of Defendant C et al., but Defendant E took a non-cooperative attitude, such as having Defendant E take and record the process of the fire investigation of Defendant C’s representative N, it is difficult to conclude that Defendant D actively escaped Defendant C or interfered with the investigation of the cause of the fire.

3) Whether Defendant E violated the Special Act on Insurance Fraud Prevention

A) According to the evidence submitted by the prosecutor, Defendant E responded to the purport that Defendant E would report the fire of this case to the effect that TG employees would report the fire of this case, and that Defendant E would file a complaint as a crime of false accusation, the fact that Defendant E would take photographs and records during the process of a fire investigation conducted by the AL representative N, or that Defendant C would not refer to I (Evidence No. 6157 pages).

B) However, the following circumstances revealed by the evidence adopted and examined by the court, namely, Defendant E’s failure to report the first fire to AG to the effect that Defendant E would have reported the first fire-prevention fact, are due to the lack of reasonable grounds to view it as the fire at the time, and Defendant E would have sufficiently responded to Defendant E’s early prevention of the suspicion of AG as the local president. At the time of the AL fire investigation, Defendant E’s failure to notify the existence of I of the first fire was clearly revealed by the method of delaying the fire by using two seconds, and thus, Defendant E did not have to inform the first director of the company’s board without any strong doubt as to the occurrence of the fire prior to the discovery of the first fire, and thus, Defendant E did not have any other reasonable grounds to believe that it was difficult to recognize that Defendant E’s aforementioned act was in the process of fire-fighting or fire-defense, including the fact that there was a lack of sufficient evidence to prove that it was a fire-fighting or defense against the outside officer or employee during the process of the investigation.

3. Conclusion

Ultimately, since this part of the facts charged against Defendant C, D, and E constitutes a case where there is no proof of facts constituting a crime, the court rendered a judgment of innocence under the latter part of Article 325 of the Criminal Procedure Act and publicly announced the summary of the judgment of innocence under Article 58

The presiding judge and the deputy judge;

Regular Category of Judges

For judges the last place:

1) To the extent that there is no substantial impediment to the Defendants’ exercise of their rights to defend, ex officio revision of the facts charged and recognize them as criminal facts without any changes in indictment.