2016Gohap1281 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

A

The standing rules (prosecutions) and Kim Jung-il (public trial)

Law Firm Law Firm (UP)

Attorney Kim Jong-sik, Park Young-jin, Sho-ho, Kim Jong-Un, in charge

May 25, 2017

A defendant shall be punished by imprisonment for four years.

Criminal facts

The Defendant is the largest shareholder and representative director of C in Gwangjin-gu, Seoul, who actually operates C, and the victim D is the representative director of F in Gangnam-gu, Seoul. From November 30, 2015 to November 30, 2015, the Defendant has discussed a contract of receiving money investment from G, a U.S. subsidiary of F, a victim and C from around November 30, 2015.

around December 9, 2015, the Defendant, at the F Office in Gangnam-gu Seoul E building, has exclusive rights, such as patent technology and exclusive license for H1, and H technology can be promptly commercialized and the company value of C reaches KRW 70 billion.

C is expected to submit a large-scale proposal for H facilities by the I of Saudi Arabia at present with the I of Saudi Arabia to submit a proposal for this, and it is expected that a large-scale increase in the capital through H facilities supply will be expected and the feasibility of the project is very high. However, C is very urgent when it submits a proposal to increase the capital prior to the submission of the proposal due to a lack of capital necessary for the present submission of the proposal. In addition, prior to entering into a contract with C, prior to the prior to the conclusion of the contract with C, if it is intended to increase the capital of C, it would be possible to promptly inspect C’s exclusive rights, such as patent technology and exclusive license, and the value of the C’s stocks after the submission of the proposal, and then would be able to complete the final investment contract with C after the completion of the ex post facto inspection, and presented the C’s stock evaluation standard as KRW 70,709,700,400, Mar. 16, 200.

However, the fact that C was only holding the patent technology and non-exclusive license related to K technology, but did not have exclusive rights such as patent technology and exclusive license for H which combines L process and K technology, and there was no technology capable of realizing the H technology requested by C.

In addition, the above stock value assessment statement presented by the defendant to the victim was prepared by J Accounting Corporation at the request of M&A Co., Ltd. (formerly, N&A) which is a KOSDAQ-listed company on September 2015. The above stock value assessment statement was merely an assessment of C’s stock value, on the premise that M&A made a monetary investment of KRW 10 billion from M Co., Ltd. to C, and on the premise that it would have an effect when M & C made a mutual cooperation, it was merely an assessment of the stock value of C’s stock. Therefore, it was not applicable to M other than M Co., Ltd., but it was not consistent with the situation of C, and its contents were false. At the time, C’s stock value was merely 2,425 won per share (total stock value of KRW 4,026,324,500). The defendant did not think that there was no ex post facto verification agreement with the victim to conceal such fact.

Nevertheless, on December 15, 2015, the Defendant received 10 billion won as the purchase price of new shares of a stock company C on December 15, 2015 from the victim, and caused C to receive the above money.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of witness D, P, Q, R, S, and T;

1. Statement by prosecution against U;

1. Documents of text messages and results of appraisal of digital information storage media;

1. Themera (CVIION);

1. Each patent register, United States Ship, each patent decision, C patent list, C patent list, complainants, and A patent list;

1. Each contract for technology transfer (a list of evidence 124, 125);

1. Public announcement of the subjects of new support for the first industrial core technology development projects, Korean Evaluation Institute of Industrial Technology, and comprehensive opinion of the new Evaluation Committee, in 2016;

1. C Stock Value assessment report of a stock company;

1. A contract for new stocks, a subscription form for stocks, a certificate of keeping stocks payment, a duplicate of passbook, documents related to overseas borrowings, minutes of the board of directors, and a foreign exchange slips;

1. A copy of the passbook and a cashier's check of this case;

1. A copy of the bankbook (Evidence List 46);

1. Copies of the e-mail produced in V;

1. Full certificate and business registration certificate for each registered matter;

1. Analysis of details and equity ratio of capital increase increase;

1. Submission of each evidentiary material (Evidence 161, 188);

1. Each investigation report (Evidence list 159, 160, 166);

1. Investigation report (as stated in the evidence list 195 and as stated in the attached documents);

1. Certification of appropriateness of qualification for application (192);

Application of Statutes

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

Article 3(1)1 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(2) and 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):

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

It is true that the defendant as the largest shareholder of C(hereinafter referred to as "C") and the representative director of F(hereinafter referred to as "F") and C receive money from G, a subsidiary company of F, and it is true that C received money from C (hereinafter referred to as "the investment money of this case") as C's account (hereinafter referred to as "the investment money of this case") with C's new stocks acquisition price, and the passbook of this case's account was transferred to 'the passbook of this case'.

(1) However, C had technical capabilities to realize "K technology that can be linked to the "L technology" requested by I with the recognition of K technical capabilities from I, such as receiving a request for the manufacture of K equipment for the manufacture of L, OLD, etc., and the Defendant merely explained to the victim that "C has exclusive rights, such as patent technology and exclusive license of H, so it is possible to promptly commercialize H technology". It did not mean that "C has exclusive rights, such as patent technology and exclusive license of H, so it is possible to promptly commercialize H technology". ② The victim sent C's stock value assessment report prepared by J Accounting Corporation, the only material that had been objectively assessed by the accounting corporation at the time of the consultation with the victim, and there is no fact that C's false stocks were presented to conceal C's stock value, and ③ the conclusion of the new stocks acquisition contract after concluding the new stocks acquisition contract through normal methods and practices of new stocks acquisition with the victim, and there is no fact that the victim did not separately perform an investigation after the completion in advance.

In the end, the defendant did not deceiving the victim.

2. Determination

(a) the existence of deception as to C’s technical or technical skills;

1) As to the technical or technological capabilities held by C at the time

According to the above macroscopic evidence, in order to realize the H technology of this case, it is necessary to introduce a high level of L technology to avoid mixing with the scopic and its substance into the scopic body in order to spread two sources of origin from the scopic process, which is necessary to pass through the K's roll, and from the scopic process.

However, in full view of the following circumstances, between November 30, 2015 and December 15, 2015, when the victim’s explanation as to the technology held by C from November 30, 2015, C was engaged in research and development of advanced K technology capable of realizing H in combination with L technology, but L technology or completed H technology was not owned, and K technology is merely the level applied for a patent in the stage of an uncertified idea, and thus, it seems that it was not successful in improving H technology to the extent that it can actually be realized.

① At the time of the instant case, C only owned K technology, and C or the Defendant did not hold a patent for L technology. The Defendant also recognized that C or the Defendant did not hold a patent for L technology. In fact, there was no patent for L or H technology among the patents owned under the name of C or the Defendant, and C did not have an exclusive or non-exclusive license for the patent applied under the name of W University, Industry-Academic Cooperation Foundation, and X Co., Ltd. in relation to L process (Evidence No. 1 No. 240).

② At the time of contact with this Section at an investigative agency, H was not secured worldwide, and C also did not hold such technology, and H technology was stated to the effect that H technology does not exist in the world even before September 20, 2016, which was at the time of the statement (No. 3 of the evidence record No. 685-687 of the evidence record). A request was made to this C and the subject matter of the proposal submitted by C is only K technology applicable to L, not H technology (No. 3 of the evidence record No. 681).

C filed an application for “Yday” with the “Z,” and this is an unfolding technology that changes the direction of which one side does not contact the roll if the space necessary for printing is high in K. However, as the technology in the patent application is necessarily required for K technology in the above technology, the technology claimed by the Defendant is not indicated (No. 4, 1277 of the evidence record). Meanwhile, C’s Technical Director R stated in the investigative agency and this court to the effect that it is difficult to view the said patent as a separate independent patent because there are many parts that overlap with the H patent of the AB company (Evidence No. 4, 1224 of the evidence record).

④ At an investigative agency and this court, R stated that, although it had the idea of K’s long-term control techniques for the realization of H technology, it did not have any technology capable of controlling the long-term force that can be put into flexible materials while saving several rolls in contact with flexible materials. In addition, the Defendant stated at an investigative agency that the number of maximum rollers actually engaged in work through K’s work process was 6-7 level, and that “The long-term patent-related technologies held by C are “AC” that control the long-term force on the premise that all rollers and flexible materials are in contact (Evidence No. 4No. 1280 of the Evidence Record).

⑤ Although C submitted a proposal to I with respect to K technology that can combine with L, the portion of “AA” in the proposal is partially indicated and the remainder is left (it is not known that the patent relationship seems to be a patent relationship). Ultimately, C excluded from the final company selection.

6. The Defendant submitted a H equipment supply contract in the name of C and M Co., Ltd. (hereinafter “M”), which was drafted on April 7, 2016, under the name of C and M (hereinafter “M”), to the investigative agency (Article 2:369 of the evidence record), but not only did the delivery of such equipment but also did not receive the advance payment from M (Article 3 of the evidence record).

7) As a result of the evaluation by the Korea Evaluation Institute of Industrial Technology on June 15, 2016, C was selected as eligible for support for industrial core technology development projects related to H technology development (other than the L process requested by the I) (Evidence No. 623). However, the above task is seven institutions, including AD University and participating institutions C. The Defendant stated in an investigative agency that it is impossible to realize C itself without forming a consortium (Evidence No. 4, 1284).

In addition, there is no evidence to find out the progress of the project and the progress of technology development as to the project, and it is in accordance with the empirical rule to view that C did not have completed H technology at the time of the payment of the investment fund of this case, which is six months before the previous stage, even if it was to start the actual development of technology.

2) Whether the Defendant committed deception with respect to C’s technical or technological skills

In full view of the following circumstances acknowledged by the above macroscopic evidence, even though C applied for a patent for the uncertified idea that could complete H only by combining C with L technology of I or other companies, the Defendant would have caused the victim to pay the instant investment amount to C, by holding an exclusive license for H technology or by deceiving C as being applying for a patent.

① The Defendant stated in an investigative agency that C had the H patent technology at the victim’s statement that it was true that C had the victim’s said technology (Evidence Nos. 3, 645, 4112). The Defendant reversed the above statement from the time of the third investigation conducted by the Prosecutor’s Office, which led to the reversal of the said statement by the Prosecutor’s Office, that the victim did not speak that C had the H technology patent, and that C could build a comprehensive H by stating that the AB’s L process technology brought about as aground (Evidence No. 4, 1145).

However, the defendant, in the third investigation at the prosecution, has the technical limit of "damage to Gabo story", and C, although it has been a technology that overcomes such limit, it was stated that it was not yet verified or proven by the fact that it was not yet verified or proven by the whole victim. However, in the fifth investigation at the prosecutor's office, the defendant reversed his statement that there was no explanation that the technology was not verified or proven by the prosecutor's office (No. 4 of evidence record No. 1252).

In order to receive the instant investment amount, the Defendant’s statement on how to explain C’s technology to the victim is not consistent as above, and thus, the Defendant’s statement is inconsistent.

② On November 30, 2015, the Defendant asserted that the victim had explained the data on the actual inspection of C by the victim, and the victim explained at the investigative agency that he/she was requested to submit a proposal by I to the effect that he/she was a technology for which he/she was requested to submit a proposal by I (No. 2 No. 112 of the evidence record). In full view of these statements, the Defendant appears to have shown that he/she had presented the hosting materials (No. 27 of the evidence record, No. 7 of October 27, 2015) to the victim on November 30, 2015.

The above hosting material is indicated as requiring K technology that can combine with the L technology owned by this self-employed, and if the defendant accurately explained the above hosting material and the victim understood it, it is possible for the victim to understand that C was developing high K technology rather than H technology at the time of November 30, 2015.

However, on December 3, 2015, the defendant sent a text message to the victim, "AB, as I would like to propose H similar in the way we want to use." The basic concept was already disclosed, however, whether I would use certain specific substances in any process condition. I predict that I would like to use the technology similar to AB L technology in connection with C's K technology. It is not yet intended to disclose the L technology to be used. C is not yet open to the public. It seems that the above text message "AB is included in AB and I. It appears that "The victim sent the text message to the victim." In this regard, the defendant sent the text message, "IB will only provide emergency services, andman-facturing will not be known?" It appears that "IB will not have any equipment available to the victim," and the defendant sent the text message to the victim, "I would like to find the concept of "IB link" in this field, "I would like to do so at least 20 I would like to present it in this field."

If the defendant only possesses K technology that is likely to combine with L, and accurately explained that L technology or H technology is not owned, it is difficult to understand that the defendant sent a link that explains L technology, not K technology, to explain such technology to the victim without combining I or AB.

Rather, in full view of the contents of each text message above, the Defendant explained that the Defendant was in the process of filing a patent application for H technology combining K technology with L technology, and as part, it appears that the Defendant sent the above link.

In addition to the above circumstances, on December 4, 2015, the victim sent the text message to the defendant on December 4, 2015, "The victim, who is not an expert in H technology, wanted to invest in the C's present and future patent technology, is the first idea of low." The defect in the unrealized machine such as specific usage and place of sale, "I know it is not net," and "I would know about the will of the chairperson. I would like to know it well. I would like to know it at the time of the defendant's offering of investment in this case. I would like to recognize that the defendant's offering of investment in this case would have been sufficiently known, even if I had shown the victim's presentation of I had accurately explained the contents of C's technology in light of the text message stating that "The victim, who is not an expert in H technology, has already received the above text message from the defendant's prior to the development of H technology, was in the process of application for the patent, and commercialization in the near future."

③ On December 14, 2015, at around 07:41 through 07:43, the victim sent a text message to the Defendant, “The summary of sending the Cinvestment proposal to e-mail.” However, the victim stated that there was no timely receipt of the Defendant’s investment proposal from the Defendant, and the Defendant also stated that there was no presentation of the Defendant’s investment proposal from the investigative agency (Evidence No. 4 Book No. 1257 of the Evidence No. 1257 of the Record), and the “dacting materials of the C Investment proposal” refers to the I’s unfolding materials presented by the Defendant to the victim on November 30, 2015.

On December 15, 2015, around 09:25, the victim sent a text message to the defendant about C's patent holding details, details of the application, and important proposals among the I proposal preparation details. On this day, the defendant sent a answer to the defendant by arranging it around 09:47 on the same day (as seen in the front and rear, the defendant did not forward the above documents to the victim).

Comprehensively taking account of the above text messages dialogues and the statements made by the Defendant and the victim, the Defendant appears to have not provided the victim with data or I proposals on technology owned by C until December 15, 2015, except for the verbal explanation given to the victim by the victim.

Therefore, it is reasonable to view that at the time of the issuance of the instant investment money by the victim, C has fully trusted the explanation by the Defendant’s text message that the Defendant filed an application for a patent for H technology, and that it was not given an opportunity to correct it through a review of data that it was false.

④ On December 16, 2015, the victim prepared the 'CVIN' list (hereinafter referred to as the 'CLB', 'LB', 'C', 'IPENCING' (hereinafter referred to as the '1'), 'C', 'C', 'C', 'C' and '16-23' (hereinafter referred to as the '2'), 'C company', 'C', 'C' and '23' in its center, 'the right-hand side-hand side-hand side-hand side-hand side-hand side-hand side-hand side-hand side-hand side-hand side-hand side-hand side-hand side-hand side-hand side-hand side-hand side-hand side-hand side-hand side-hand side-hand side of the 'C' list', 'BINEALALALALALALALALALALALALALALALALALALALALINALALALALALALALALALALALALAL 23'.

The victim stated in this court that "the defendant and the victim met the part of this case by dividing the conversation between the defendant and the victim's vision," and the defendant stated that "the first step, the second step, the third step, and the fourth step," were "the plaintiff explained the first step, the second step, the third step, and the fourth step."

Comprehensively taking account of the victim’s above statement, the title, and the description form of the domain of this case, the Defendant appears to have commercialized each of the above technologies including the above H from 2016 to 2023 based on the victim’s intellectual property rights, experimental facilities, and technical license already owned by C, and explained that C was a plan to establish the retail system of C products from 2017 to 2023, and between 2020 to 2025.

However, even though the entry of "H" in the domain of this case is a commercialization technology in the future, if the defendant explained clearly that he can complete H technology through a consortium with L technology holding company due to the failure of C to hold L technology, if he/she sufficiently advanceded K technology and accurately explained that he/she can complete H technology through a consortium with L technology holding company, it would be in accord with the empirical rule that the defendant should have entered the contact with L technology or the license agreement for the use of L technology in addition to the "IPB LAENCING" referring to intellectual property rights, such as patent rights. Nevertheless, considering the contents of the domain of this case, it is reasonable to view that the victim has succeeded to the development of H technology without the help of other companies or institutions, and has explained that it could be commercialized in the future.

At the time of visiting C office on December 7, 2015, the victim reported K printing equipment and explained about it. The victim used K printing equipment for the pre-existing M&D project and received a link text message from the Defendant on December 3, 2015, namely H patent application on L technology and the screen image link text message explaining L technology on December 4, 2015, it appears that the basic understanding of K equipment and L equipment was made at the time of December 7, 2015. However, while the victim visited C office at the above date and visited K equipment, the victim did not ask the Defendant as to the existence of L equipment or H equipment at the time.

However, since the victim is only the operator of a company using K technology, not the specialist of K, L or H technology, even if the victim believed that C had no L equipment or H equipment, even if the victim did not possess H equipment by the defendant's explanation, it seems that it was difficult for C to have a fundamental question about the technology or patent right even if he knew that C had no L equipment or H equipment.

3) Sub-decisions

Therefore, we cannot accept this part of the defendant and his defense counsel.

B. The presentation of a stock value assessment report, and whether the act of deception is related to the verification agreement after prior investment

1) Whether the defendant deceivings the victim by presenting a false stock value assessment report

On December 9, 2015, the following facts acknowledged by the above macroscopic evidence, etc., (i) the Defendant presented the instant stock value assessment report to the victim at the F Office around 10:30 on December 9, 2015, and explained the objective business situation of C. The instant stock value assessment report was made on June 30, 2015 on the premise of the virtual situation in which M would receive investment worth KRW 10 billion from C in order to determine whether M would make an investment in KRW 10 billion against C. The instant stock value assessment report was made on June 30, 2015; and (ii) before M had already decided not to make the said investment against C before December 9, 2015, the instant stock value assessment report was inappropriate as data to explain the objective situation, such as financial ability, etc. of C; and (iii) the Defendant failed to notify the victim of the aforementioned circumstances and did not enter the stock value in the instant stock value assessment report in the instant case.

2) Whether the Defendant deceivings the victim to conduct a pre-investment inspection

(6) On December 15, 2015, the following circumstances are acknowledged by evidence, etc. (i) the Defendant proposed that the Defendant make an investment to C by December 15, 2015, and the victim paid the instant investment funds on December 15, 2015, (ii) the process of opening the instant investment funds was made on December 9, 2015, the date the victim received the statement of stock value assessment, which is the only data on the objective value of C from the Defendant, and (iii) the victim paid the instant funds within a short period of 13 days after receipt of the proposal of investment and 6 days after receipt of the objective value data of C, and thus, it is considerably insufficient time to conduct an actual inspection of CF to determine the payment of large amount of investment funds, and (iv) the instant funds were established under the name of CF and the FF’s password was used, and the victim appears to have been aware of the fact that CFF’s investment funds were not deposited in the instant account.

The term "investment" refers to the case, and it seems that the victim did not cooperate in the request for inspection after receiving the investment money.

3) Sub-decisions

Therefore, this part of the argument by the defendant and the defense counsel is rejected (However, on December 4, 2015, the victim sent a text message to the effect that "an investment is made in the present and future patent technology" to the defendant, and the defendant stated in this court that the existence of technical capabilities is more important than the objective situation, such as C's ability, etc., and it is reasonable to view that the principal deception by the defendant is a deception on C's technical or technical capabilities recognized earlier).

Reasons for sentencing

1. Scope of applicable sentences under Acts: Imprisonment for two years and six months to fifteen years; and

2. Scope of recommendations according to the sentencing criteria;

[Determination of Punishment] Fraud, General Fraud, Type 4 (at least five billion won, at least 30 billion won),

【Special Convicted Person】

[Scope of Recommendation] 5 years to 8 years (Basic Area)

3. Determination of sentence;

The crime of this case requires strict punishment of the defendant in light of the following facts: (a) the defendant falsely explained the technical elements of his own expertise to the victim who is not a non-professional and received the investment money of this case; (b) the nature of the crime is poor; (c) the amount of damage is large to 10 billion won; (d) the victim knew that he was deceiving from the defendant and withdrawn the investment money of this case to his cashier's checks; (c) the victim reported the accident on the check; and (d) the victim filed a civil lawsuit against the victim for compensation for damage; and (e) the victim was able to recover the damage of the victim by filing a civil lawsuit against the victim; and (e) the victim is punished by the defendant.

However, the defendant has no criminal records of the same kind, C has withdrawn from all of the victims before the use of the investment funds of this case and thereby C has failed to obtain practical benefits from the crime of this case at all, and other sentencing conditions specified in the arguments of this case, such as the defendant's age, character and conduct, health status, family relationship, means and result of the crime, etc., shall be set aside as the order by leaving the lowest sentencing standard, taking into account the various sentencing conditions specified in the arguments of this case,

For the presiding judge or judge;

The same judge's identity

Judges Lee Young-young

1) K refers to the process of continuously printing electronic materials on films by moving films through rollers. L is a technology that displays the material of the original unit into films; H is a technology that displays the material of the material of the original unit into films; H is a technology that continuously expands the material of the material of the original unit into films through K process.