2013Gohap868 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

A

Gambane (prosecutions) and double-trials (public trials)

Attorney B

May 1, 2014

The defendant shall be innocent.

1. Summary of the facts charged

Since June 2010, the defendant was supplied with D'D manufactured by C(hereinafter referred to as "C") from around June 2010, and is the representative director of E(hereinafter referred to as "E") of the corporation established for the purpose of supplying the above goods to the closed type of the large enterprise's welfare sunset.

On July 10, 2010, the Defendant entered into a contract for the business of building C-Welfare Complex with G Co., Ltd. (representative director H; hereinafter referred to as “victim Co., Ltd.”) established for the purpose of the integrated construction of information and communications services and systems in the E office located in Gangnam-gu Seoul, Seoul (hereinafter referred to as “Seoul”) and the total service cost of KRW 660 million (value-added tax of KRW 60 million and value-added tax of KRW 60 million).

However, at the time, the Defendant had no economic ability to pay the employees’ benefits in the operation of E, as well as the establishment and operation of the above company with no interest rate as well as with the establishment of the above company from the financial institutions and the persons who established and operated the above company. Therefore, the Defendant could receive program development costs or service charges from C. However, since the Defendant’s debt to C is much more than that of the Defendant’s debt to C, it would be offset with the Defendant’s debt to C, so the victim did not have any intent or ability to pay the service charges to the victim company even if the Defendant performed the services for the establishment of the C company’

Accordingly, the Defendant, as seen above, by deceiving the victim company, obtained financial benefits equivalent to KRW 60 million due to the failure to pay the above service cost despite having been provided with the development services for the C Enterprise Welfare Complex from July 201 to April 201 by the victim company.

2. Determination

A. Legal doctrine

The finding of guilt in a criminal trial ought to be based on evidence of probative value, which leads a judge to have a conviction that is sufficient to have a reasonable doubt that the facts charged are true. Thus, in a case where the prosecutor’s proof does not sufficiently reach the degree of sufficient conviction, the determination is inevitable in the interests of the defendant even if there is a suspicion of guilt.

The crime of fraud is established by deceiving another person by omitting his/her dispositive act, thereby obtaining property or pecuniary benefits. It requires causation between deception, mistake, and property disposal act. In cases where the victim’s property disposal act or the defendant’s act inducing such property disposal act is closely related to the failure or performance of any business that the defendant plans, the existence of deception or causation should not be determined solely on the basis of the defendant’s financial power or credit standing, etc., and it should be determined objectively and objectively by taking into account all the circumstances such as the relationship between the victim and the defendant, the degree of awareness and involvement of the victim in the relevant business, and the possibility of success of the relevant business (see, e.g., Supreme Court Decision 2011Do829, Oct. 13, 2011).

In addition, insofar as the criminal intent of defraudation, which is a constituent element of fraud, is not the confession of the defendant, it shall be determined by comprehensively taking into account the objective circumstances such as the financial history, environment, details and details of the crime, and the process of transaction (see, e.g., Supreme Court Decision 2008Do11718, Apr. 9, 2009).

B. In the instant case

1) The facts acknowledged based on the evidence duly adopted and examined by this Court are as follows.

① On May 2012, C decided to enter into online shopping mall projects (only for persons with certain qualifications, such as members, etc. of a specific company or organization, and the general public is unable to access, online shopping mall in a closed form) and held a project explanation meeting on May 19, 2012. At the time, C was expected to make selective welfare agency transactions conducted through online shopping mall growth by 20% each year, and the total scale of the market as of 2010 exceeds 1 trillion won, and sold D, etc. through online shopping mall, the sales amount is KRW 10 billion in 2010,35 billion in 201, and KRW 70 billion in 2012, and KRW 100 billion in 2013.

On June 3, 2010, five companies, including E, participated in the first examination for the development of closed sunset and the selection of entrusted companies, and three companies, excluding one company and one company whose final decision of nonconformity was made, have been selected as closed submerorororororororororororororororororororororororororororororororororor, and E, which received the highest score, was also selected as closed submeror.

③ A drawn up a draft of the understanding letter for entrusted operation, and met with an attorney-at-law on June 22, 2010, and took an interview on June 22, 2010, it was pointed out by the attorney-at-law that it is difficult to obtain any right regarding the closed sunset itself, making it difficult to achieve the purpose of entering into the original closed sunset project. By July 9, 2010, C drafted a business model in the direction corresponding thereto, and tried to reconform the business model in the direction corresponding thereto, including entering into a contract for closed sunset development services from July 12, 2010.

④ On July 10, 2010, the Defendant entered into a standard contract for a project for building C-Welfare M&D to pay KRW 660 million (including additional tax) to the victim company when entering into a subcontract with the victim company for the services for construction of closed sunset. 1)

E entered into a memorandum of Understanding on July 27, 2010, and on August 16, 2010, with C, E sold D products supplied by C while operating closed sunset under the entrustment of C, and C entered into a closed sunset consignment contract with E to pay 20% of the sales price of products as the commission for entrusted operation.

(6) On the other hand, the Defendant proposed a purchase price of approximately KRW 2.7 billion at a discount of KRW 3.63 billion from the development cost to KRW 2.5 billion in return for transfer of closed sunset developed in C on July 6, 2010, but C demanded a price reduction of KRW 2.2 billion. Accordingly, on September 28, 2010, the Defendant suggested a correction proposal of KRW 2.2 billion, and on September 29, 2010, the Defendant and C suggested a method of receiving an additional payment of KRW 870 million in the development cost to be paid for temporary payment of KRW 8.7 billion in the amount of KRW 87 billion in the amount of KRW 8.7 billion in the amount of KRW 3% in the total amount of sales from closed sunset operation as monthly fees, and eventually, on November 16, 2010, E transferred the right to use only the amount of KRW 40 billion in the amount of KRW 40 billion in the amount of online services to be paid.

vii From September 2010, E began to operate the closed area in accordance with the above consignment operation contract. C, on December 13, 2010, changed the above consignment operation contract between E and E into a goods supply contract, and determined the due date for the payment of the goods at the time of credit transaction. As such, as the content of the contract changes from the consignment operation to the goods supply, E had a burden of paying to C the equivalent amount of the goods taken over for monthly sales.

8) However, the JJ, which jointly start up with the Defendant and E, embezzled the proceeds of goods sold through closed sunset, and also uses the proceeds of goods from acquiring goods from C and paying the proceeds of sales to C in order to repay the proceeds of goods to C by its D agency, which was operated in the manner of collecting fees, and as such, E is unable to pay the proceeds of goods to C. Accordingly, the unpaid amount of goods amounting to KRW 860 million as of April 201, and ultimately, the amount of goods unpaid to C was offset by KRW 440 million when receiving from C.

9. The Defendant paid the victim company the sum of KRW 92.5 million on September 7, 2010, KRW 27.5 million on September 16, 201, KRW 10 million on January 7, 201, and KRW 92.5 million on the cost of closed sunset development services.

2) In light of the aforementioned factual basis, if the Defendant, at the time of concluding a subcontract agreement with the victim company, was aware that it was difficult for the victim company to receive fees in proportion to the amount of sales through the consignment operation of closed sunset without any risk of sales. Furthermore, if the Defendant did not have yet to set the terms of time until the victim company entered into a subcontract agreement with the victim company for closed sunset development, it is difficult for the victim company to have agreed that the Defendant would not pay the funds for the entrusted operation under the name of the victim company to the extent that it would have been difficult for the victim to receive the funds for the Defendant to receive the funds for the entrusted operation solely because the Defendant did not have detailed discussions on the specific rights and duties of the victim company under the structure of its business revenue, and that it would have been difficult for the victim to receive the funds for the funds for the entrusted operation from the victim company to the extent that the Defendant would not have yet been able to receive the funds for the funds for the entrusted operation under the premise that the Defendant would not have yet been able to receive the funds for the entrusted operation from the victim company.

3. Conclusion

Thus, the facts charged in this case constitute a case where there is no proof of crime, and thus, the defendant is acquitted pursuant to the latter part of Article 325

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

Equal judges of the presiding judge;

Judges Lee Jae-sik

Judges Ooman

1) However, the E incorporation procedure was not completed until that time, and thus, the Defendant’s geographical representative entered into a contract with one corporation.