2017Gohap795 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

A

Kim Woo (prosecutions) and the largest case (public trial)

Law Firm B

Attorney C

Law Firm D

Attorney E, F, G, H, I, J.K.

February 2, 2018

A defendant shall be punished by imprisonment for two years.

However, the execution of the above punishment shall be suspended for three years from the date this judgment becomes final and conclusive.

Criminal facts

The Defendant is the president of M&A Co., Ltd., a stock company and KOSDAQ-listed company, who operates the above companies.

On February 28, 2015, the Defendant: (a) at the P office operated by the victim, who was located in 101, Songpa-gu Seoul Nbuilding No. 101 on February 28, 2015, L Co., Ltd., Ltd., has exclusive business rights for QP, Inc.; (b) The Defendant gains a large amount of profit by selling R to China and Korean companies, such as Aluria, an E-Commerce, an E-Commerce; and (c) at the Busan Bank, 30 billion won is invested. At the end of this year, M Co., Ltd.’s share price of KRW 1,700 per share will be two times after one month; and (d) at the end of this year, at the end of this year, 10,000 won will be more than KRW 20 billion. At present, it is necessary for M Co., Ltd. to obtain a large profit; (d) it is clear that M Co. will have made an investment from the Busan Bank to participate in capital increase.

However, due to the lack of funds, L did not obtain a balance of KRW 1 billion for the purchase of the above exclusive business license to Q Q, and there was no decision from the Busan Bank to invest KRW 30 billion in M in the stock company. The stock company M was not likely to attract investments because of the deficit accumulated and a large amount of debt, and there was no specific plan or method to raise funds to conduct the business through L or M as a designated beneficiary who escaped using a name of bad credit and bad debt, and the defendant did not have any specific plan or method to raise funds to conduct the business through L or M as a beneficiary who escaped using a name of a large amount of debt.

As above, the Defendant deceiving the victim, and caused the victim to deliver KRW 2 billion from P to M Co., Ltd. on March 2, 2015 for the above consideration for capital increase.

Summary of Evidence

1. Defendant's legal statement;

1. Each prosecutor's interrogation protocol concerning T;

1. Each prosecutor's protocol of statement about 0, U, V, and W;

1. 확약서, 송금계좌내역, 보호예수증서, 주식인수증, 추가합의서, 감사의견 한정 확인, 재무제표 감사보고서, 법인등기부등본(M 등), 20억 원 사용내역서 5억 원 송금 사실 확인, ㈜Q 회사소개서, R 제조공정 도식도, ㈜M의 2015. 3. 31.자 독립된 감사인의 감사보고서, 내부 회계관리자 운영실태 평가보고서, R 사업소개서, M에서 제작한 R 팜플렛, M에서 제작한 R 샘플, 서울중앙지방법원 2017고단135 판결문

1. Investigation report (to hear telephone statements at the head of Busan bank X branch office);

Application of Acts and Subordinate Statutes)

1. Article applicable to criminal facts;

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347 (1) 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. Suspension of execution;

Article 62(1) of the Criminal Act (The following grounds for sentencing has been repeatedly taken into consideration for favorable circumstances)

1. The grounds for sentencing;

[Determination of Punishment] General Fraud. Type 3 (at least 500 million won, less than 5 billion won)

[Special Convictd Persons] Reductions: Non-Mitigation of Punishment

[Scope of Recommendation] Imprisonment of 1 year and 6 months to 4 years (Mitigation)

2. The crime of this case is that the defendant, who operates a company that develops and manufactures products for the prevention of forgery and alteration, notifies the company's self-defluence, acquisition of exclusive business rights, loan to financial institutions, etc., and solicits the victim to participate in capital increase with capital increase and receives KRW 2 billion as a price for stocks. The crime of this case is not easy to commit the crime in light of the fact that the amount of fraud is large, the damage has not yet been fully recovered, and the fact that there has been a history of having been sentenced to punishment for the same crime.

However, the Defendant entered into a contract to take over the exclusive business rights of Q and R, and paid KRW 850 million as the price, used the above KRW 2 billion for the purpose of notifying the victim, and repaid approximately KRW 120 million to the victim in the course of the public trial. The victim wanted to recover approximately KRW 1 billion by selling the shares of Q and R, and trusted the Defendant’s specific repayment plan for the remaining amount of damage.

In addition to these various circumstances, the defendant's age, character, conduct and environment, relationship with the victim, motive and consequence of the crime, circumstances after the crime, etc. are considered, and the same punishment as the order is determined within the scope of recommended sentencing guidelines and the execution thereof is suspended.

The presiding judge and judges;

Judges Sung Jae-in

Judges' Index

1) Prosecutor’s charge and the violation of the Securities and Exchange Act, which became final and conclusive on July 2, 2016, constitute experience crimes under the latter part of Article 37 of the Criminal Act.

However, in full view of the evidence duly admitted and examined by this Court, the Defendant was the crime of occupational breach of trust in Seoul High Court on September 12, 2008, as the crime of occupational breach of trust in Seoul High Court.

The fact that the judgment was final and conclusive on January 15, 2009 (hereinafter referred to as "final and conclusive judgment") and June 24, 2016, which was sentenced to imprisonment with prison labor for one year, by the same court.

On July, 2016, which was sentenced to one year and six months due to a violation of the past law, the judgment became final and conclusive on July, 2016 (hereinafter referred to as "the second final and conclusive judgment"), and recognition in that judgment.

Since the crime of the defendant who was the first final judgment is recognized as being poor before the date of final judgment, the crime of the second final judgment and the final judgment of the first final judgment are recognized.

The crime committed after the day shall not be adjudicated at the same time from the beginning.