2016 Gohap1195, 2017 Gohap 308 (Joint)

A violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

(Fraud), fraud

A

Magrasty, magrasty (prosecutions), Magrasty, and Magrasty (public trial)

Attorney B

October 12, 2017

A person shall be punished by imprisonment with prison labor for not less than three years and by imprisonment with prison labor for not less than one year and six months for a crime of No. 2 as stated in the judgment of the defendant.

Criminal facts)

"2016 Gohap1195"

1. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against Victims C and fraud against Victims D;

[Status of Defendant and Helper E]

The defendant is the representative of G with the aim of wholesale and retail of fishery products in the Haan-gun F, Chungcheongnam-gun, and E is the representative of the agricultural partnership I (hereinafter referred to as "I") established for the purpose of building marine animals and manufacturing salt farm products in the Haan-gun, Chungcheongnam-gun.

【Basic Facts】

J(hereinafter referred to as the "J") is a corporation established for the purpose of investing in founders under the Support for Small and Medium Enterprise Establishment Act, the establishment of a business start-up investment association under the Support for Small and Medium Enterprise Establishment Act, and the execution of its duties, and K was the representative director of J.

L. 1 (hereinafter referred to as "the above partnership") is an association established by the fund of funds for agriculture and food investments, which is a general partner, J. M., a limited partner, and the fund of funds for agriculture and food investments, which is a special partner (in order to promote investments in the agricultural, forestry and food industry, and to create the foundation for sound growth of agricultural, fisheries and food enterprises, funds invested in agricultural policy funds by the Ministry of Agriculture, Food and Rural Affairs and the Ministry of Oceans and Fisheries for agricultural policy funds (the association established by the Korea Agricultural and Food Insurance Finance Institute, which is a specialized investment management institution) and the Ministry of Oceans and Fisheries for two billion won, six billion won, six billion won, and eight billion won (investment ratio; 12.5%, 37.5%, and 50%: Provided, That a stock company M. by transferring its shares to J, in fact, by the J and the fund of funds for agriculture and food investments).

The J, a general partner, established the Victim C Co., Ltd (hereinafter referred to as "victim C") and the Victim D Co., Ltd (hereinafter referred to as "victim D") as the representative of K in order to achieve the purpose of distributing, processing, selling, purchasing, etc. fishery products through the above union.

Accordingly, on December 24, 2014, the said association invested KRW 3 billion to the victim C for distribution at implied ports, and the victim C entrusted the purchase, sale, management, etc. of stores to the N 0, and the project period was March 31, 2015, the investment contract to be terminated, December 24, 2014, the victim D invested KRW 3.1 billion in order to prevent distribution at Bosung-gun and Bosong-gun, and the victim D entrusted the purchase, sale, and management of seals to the P Co., Ltd., and the project period was terminated on March 31, 2015, respectively.

On the other hand, while K has invested the funds of the above association in the victim C and the victim D, it was difficult to recover the investment amount due to the failure to perform the distribution project, and it was asked the representative director of Q2 limited liability company, who was known to the general public, about the expiration of the project period, whether there is a way to only respond to the failure of the project by making profits through the distribution of fishery products in a short period.

【Criminal Facts】

When the Defendant came to know that R, which was known to the general public, was seeking to find ways to mislead the victims C and D's poorness, the Defendant was able to obtain the help from E and to obtain the purchase price from the victims C and D by making a false statement of transactions, entry, and delivery certificate, by pretending to do so without using the real transaction of the self-employed ginseng, and preparing a false statement of transactions, entry, and delivery certificate.

Accordingly, around March 2015, the Defendant secured L's self-conscepting three of the 1st century. Accordingly, if the victim C and D were to receive self-conscepting three of the live three of the live three of the live three of the live three of the live three of the live three of the live three of the live three of the live three of the live three of the live three of the live three of the live three of the live three of the live three of the live three of the live three of the live three of the live three of the live three of the live three of the live three of the live three of the live three of the live three of the live three of the live three of the live three of the live three of the live three of the live three of the live three of the three.

On the other hand, R listened to the Defendant’s proposal and proposed to K to the effect that it would make profits in a short period through self-consigning distribution. On March 16, 2015, K voluntarily changed the project’s project’s project’s object to Q LLC by the end of June 30, 2015, without carrying out the resolution of the Investment Deliberation Committee of the said union and reporting procedures to the special union members.

Around May 15, 2015, the Defendant sent to R a certificate of confirmation issued under the I’s name that “The Defendant supplied 4,572 km 3,572 km to this Victim C, supplied 1,714 km 1,714 km to the victim D, and kept the relevant quantities in the I’s freezing warehouse.”

However, as seen earlier, the Defendant did not have properly secured the volume of self-employed ginseng, and there was no intention or ability to supply the normal self-employed ginseng. Nevertheless, the Defendant by deceiving R as above and then transferred KRW 800,100,000 from the victim C around May 15, 2015 [around May 15, 2015, the Defendant received KRW 299,950,000 from the victim D as the purchase price for self-employed ginseng around May 15, 2015.

Accordingly, the Defendant acquired 800,100,000 won from the victim C and 299,950,000 won from the victim D, respectively.

"2017 Gohap308"

2. Fraud;

【Criminal Records】

On January 16, 2015, the Defendant was sentenced to imprisonment with prison labor for six months for a violation of the Fisheries Act in the Seosan Branch of the Daejeon District Court on April 14, 2015, and the judgment became final and conclusive on April 14, 2015.

【Criminal Facts】

On May 16, 2012, the Defendant entered into a business agreement with T, etc., stating that “10 million won shall be 50:50,000,000 won shall be contributed to each other, but 80,000,000 won shall be paid by the end of November 2012, the Defendant shall pay 8% interest, and the right in the business shall be paid by the end of November 2012, and shall be exercised from the time when the amount of KRW 80,000,000 shall be fully paid to the fishing village fraternity.”

The Defendant, who did not have the ability to repay the above amount of KRW 100,000,000,000 and the interest thereof, was able to obtain money from the victim U who was aware of the fact that he had been engaged in the same business, such as investment money, the cost of leasing fishing ground management lines, and the settlement money of equity in the same business.

At around 14:00 on June 6, 2012, the Defendant: (a) invested 100 million won with another partner, and leased 50% of the shares to the victim’s house located in Chungcheongnam-gun, Chungcheongnam-gun; and (b) made an investment of KRW 50 million, 50% out of the shares in, and distributed profits. It is necessary to pay for the rent of fishing ground management line; (c) return the amount of KRW 90 million invested by another partner to KRW 50 million; and (d) adjust the shares to run a business with KRW 50:50; and (e) arrange the shares to raise an individual fund.”

However, in fact, there was no intent or ability to use money to secure the victim's share in the sea spawn. However, there was no intention or ability to reduce the amount that was promised to pay 80 million won as agreed with another partner, and there was no intention or ability to lease the fishing ground management vessel. There was no intention or ability to adjust the share with other partners, and there was no intention or ability to invite personal funds.

The Defendant received KRW 25 million in total from the victim on June 7, 2012, around June 18, 2012, KRW 25 million on or around September 18, 2012, KRW 45.2 million on or around September 18, 2012, KRW 90 million on or around December 18, 2012, KRW 19.5 million on or around July 12, 2013, under the name of the Defendant’s agricultural bank account in the name of KRW 24.7 million on or around July 12, 2013.

Accordingly, the defendant, by deceiving the victim, received the property by deceiving the victim.

Summary of Evidence

"2016 Gohap1195"

1. Statement of the accused in the first protocol of trial;

1. Each protocol concerning the examination of suspects of E and R by the prosecution;

1. The statement of the accused in E and R among the protocol of suspect interrogation (two times, replacement) of the prosecution;

1. Investigation report (verification of payment to the C, D, and I post office account);

1. Investigation reports (verification of details of tax returns, such asG value-added tax);

1. Investigation reports (verification and attachment of data on tax returns, such as I value-added tax);

1. A investigation report (C, D fisheries deposit account, I post office account-account tracking results report), C (State), D (State) fisheries deposit account transaction, I post office account transaction, I bank account transaction, X agricultural bank account transaction, X agricultural bank transaction on May 29, 2015, and KRW 130 million deposited without passbook by A on May 29, 2015;

1. A copy of the investigation report (X foreign currency investment securities account, tracking report on the results), X-registered investment securities account (Y) and a copy of the statement of transactions on June 5, 2015, KRW 220 million;

1. Fixed-term service contract, written goods, each project investment contract, each project investment contract, details of each bank transaction, request for purchase of each fishery product, certificates of storage, copies of bankbooks, and each transfer results inquiry;

"2017 Gohap308"

1. Partial statement of the defendant;

1. Each legal statement of the witness and Z;

1. Investigation report (Submission of transcripts by the complainants);

1. Police suspect interrogation protocol of the accused (third time);

1. An agreement on joint investment projects, a certificate of borrowing, a detailed statement of ordinary deposits, a certificate of deposits without passbook, a record of payment without passbook, a copy, a statement of deposits without passbook, a transaction account statement, a contract for the same business, S third operations, details of account transactions in A, and details of account transactions in the account;

1. Previous convictions indicated in the judgment: Criminal history records, etc. report (A), investigation report (a) and other documents attached thereto;

Application of Statutes

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

Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 13719, Jan. 6, 2016); Article 347(1) of the Criminal Act (the fraud of the victim C); Article 347(1) of each Criminal Act (the fraud of the victim D and U; the choice of imprisonment)

1. Handling concurrent crimes;

The latter part of Article 37 and Article 39(1) of the Criminal Act (the crime of fraud against the U.S. and the violation of the Fisheries Act for which judgment has become final

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (Fraud), Article 38 (1) 2, and Article 50 (Offense of Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) of the Criminal Act, between frauds against Victims D, and punishment is more severe, concurrent crimes with concurrent crimes

Judgment on the argument of the defendant and defense counsel

1. The gist of the claim (Seoul Central District Court 2017Gohap308);

The Defendant agreed to operate a maritime gathering business with the victim. The Defendant explained the circumstances described in paragraph (2) of the judgment, which inevitably occurred in the course of running the maritime gathering business, to the victim in advance, and received a total of KRW 24.7 million from the victim’s partner. In addition, the fishery village fraternity at the time was unable to smoothly operate the maritime gathering business due to the problem of the fishing village fraternity, but the Defendant only explained the situation to the victim in advance and used it for other businesses related to the maritime ginseng.

Therefore, the defendant did not defraud the above money by deceiving the victim.

2. Determination

(a) Facts of recognition;

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

1) At around 2012, Z and T paid KRW 180 million to AA of the fishing village fraternity head of the Chungcheongnam-gun, Chungcheongnam-gun, Chungcheongnam-do, 2012, and acquired the right to collect sea water at the village joint cultivation, i.e., the right to collect sea water at the village joint cultivation, but no sea water was collected against the outsider's fishing ground.

As a result, AA has to return the above KRW 180 million on the part of the Z.

2) However, A already divided the above KRW 180 million into all members of the fishing village fraternity, and thus, AA could not return the said money to the part of the Z. Accordingly, the Defendant, who is a fishing village fraternity, participated in the Z ginseng gathering business on the part of the Z, and engaged in the business of collecting sea ginseng in the village joint cultivation in the Z, T, and Zan-gun, Chungcheongnam-gun, Chungcheongnam-gun, and entered into a partnership agreement around May 16, 2012. The main contents of the above agreement are as follows.

Article 3 Investments of T and Defendant are KRW 100,000,000, respectively, and the shares are equal in 50:50.

The Defendant shall pay KRW 80,00,000,000, which was additionally paid to AB fishing village fraternity in his name as the Defendant’s charge, to T at the end of each month. The Defendant’s right to the same business is when deposit KRW 80,00,000 per day is completed to T. The Defendant shall provide collateral equivalent to KRW 80,000. The Defendant’s 80,000,000 shall be fully paid by the end of November 2012.

When the defendant is unable to perform his/her duties by the end of November 2012, the defendant shall waive all his/her rights and transfer his/her rights to T.

3) On June 2012, the Defendant leased a village joint farming house from AA to the head of a fishing village fraternity at KRW 200,000,000,000,000 for a lease period of 4 years, annual rent of KRW 50,000,000,000, excluding the remainder of KRW 180,000,000 already paid by the Z.

4) Meanwhile, on December 14, 2012, the Defendant prepared a joint investment agreement with the victim on December 2012, 2012, stating that “The amount of gains on all profits from joint investment in the production, processing, and sales of (i) dissolutions, such as tidal wave, fry, fireworks, fry, and interest rates, shall be divided by 50:50; and on the same day, the Defendant shall pay to the victim the above amount by November 30, 2013” (i.e., the sum of KRW 210,000,000, and the sum of the above amounts).

B. In addition to the above facts found, the facts acknowledged by the evidence duly adopted and examined by this court and the circumstances inferred therefrom are as follows.

1) As to 50 million won investment

A) On June 7, 2012, the victim, for the first time, remitted KRW 25 million to the Defendant as investment, and the Defendant immediately thereafter remitted KRW 20 million to the head of the fishing village fraternity A on June 8, 2012, which was the next day. However, as the Defendant and Z had already paid KRW 200 million to the fishing village fraternity, it was no longer necessary to pay rent to the fishing village fraternity. In addition, on June 12, 2012, the Defendant remitted KRW 15 million to another account (AC) of the Defendant for stock investment.

On June 18, 2012, the victim transferred additional KRW 25 million to the Defendant as investment money, and the Defendant immediately transferred KRW 30 million to another account (AC) of the Defendant for stock investment on the same day.

In light of this, it is reasonable to view that the Defendant used the total amount of KRW 50 million received from the victim as investment funds for the purpose of personal use, such as stock investment, rather than using it for the instant sea water gathering business.

B) In addition to the first two partners, the Defendant did not explain the fact that the Defendant paid the entire rent to the fishing village fraternity by the end of November 2012, 201, that the Defendant had already paid the entire amount of the said rent to the fishing village fraternity, in particular, the specific content of the partnership agreement entered into between the Defendant and the Z and T, and that in particular, the amount of KRW 80,000,000 and its interest (8% per annum) that the Defendant first paid to the fishing village fraternity. Accordingly, the victim seems to have been aware that the amount of KRW 50,000,000, which he invested, would be naturally used as

C) On July 3, 2012, the Defendant remitted the victim’s total amount of KRW 8.5 million, including KRW 7.5 million and KRW 1 million from July 23, 2012, to the victim. However, the Defendant did not take any necessary measures, such as notifying the victim of the investment or entering into a new partnership agreement with the Z in order to secure 25% of the shares as a partner of the instant maritime ginseng extraction business. The Z was present in the court as a witness and was aware of the fact that the victim invested and did not know that the victim was changed to the village joint cultivation. After December 18, 2012, the Defendant stated that the victim invested in the Defendant. Moreover, the Z was aware of the fact that the Defendant did not make an investment in the ZZ only by phone call and did not know that it was an investor’s new investment.

2) As to the rent of the fishing ground management vessel KRW 45.2 million

A) On September 9, 2012, 18, the victim remitted the sum of KRW 45.2 million to the Defendant for the leased expenses of fishing ground management line, and the Defendant immediately transferred KRW 30 million to another account (AC) of the Defendant for equity investment on the same day. In light of this, it is reasonable to view that the Defendant used KRW 45.2 million for the management of fishing ground of this case, not for the management of fishing ground of this case, but for the personal purpose, such as stock investment.

B) In this court, the witness 2 stated in this court that “the Defendant leased the fishing ground management vessel to B, which would not be said to be the word. In addition, in terms of expenses, the lease and operation of the fishing ground management vessel is larger than that of the vessel.” As such, the Defendant’s partner appears to have determined that the lease and operation of the fishing ground management vessel was not possible in terms of safety and cost. In this situation, the Defendant is not able to independently lease and operate the fishing ground management vessel, and it is difficult to view that the fishing ground management vessel was necessary.

C) The Defendant also stated at an investigative agency that “the money that the victim received from the victim for the rent of the fishing ground management vessel was used for another business without leasing the fishing ground management vessel.” In addition, there is no evidence that the Defendant said that the victim would use the fishing ground management vessel for another business, or that the victim consented thereto.”

Although the Defendant failed to lease a fishing ground management vessel, unlike the victim’s talks, the Defendant did not fully explain the reason why the Defendant was unable to lease the fishing ground management vessel to the victim from September 18, 2012 to August 2015, which received the cost of leasing the fishing ground management vessel from the victim.

3) As to the settlement of shares in the business sector KRW 90 million

A) On December 18, 2012, the victim remitted KRW 90 million to the Defendant the settlement amount of equity shares in the same business to be paid to the Defendant on the part of the Z. However, from December 18, 2012 to January 14, 2013, the Defendant transferred KRW 58 million to another account (AC) of the Defendant for equity investment, withdrawn KRW 30,100,000 from the cash withdrawal period, and remitted KRW 12 million to AD on January 14, 2013. In light of this, it is reasonable to view that the Defendant used KRW 90,000,000,000 paid from the victim with the settlement of equity shares in the same business, not from the use for the instant third ginseng gathering business.

B) In this Court, the witness Z stated in this Court that “it was favorable for the Defendant to maintain a partnership relationship with the Defendant in the year 2012 and 2013 and did not mean that only the partnership relationship should be settled and the shares should be adjusted. The Defendant did not speak that only the partnership relationship should be organized and the shares should be adjusted.” Ultimately, the Defendant, who received a transfer of KRW 90 million from the victim for settlement of shares in the partnership, appears to have no intention or plan to acquire shares on the part of the Z on December 18, 2012.

C) Furthermore, according to the partnership agreement entered into with Z and T, the Defendant could not repay the amount of KRW 80 million and its interest (80 million per annum) paid to the fishing village fraternity until November 30, 2012. Therefore, in order to settle the partnership with the Z around December 18, 2012, the Defendant is required to repay not only the amount of KRW 10 million invested in the Z, but also the said KRW 80 million and its interest. In addition, it does not appear that the Defendant had financial ability to repay the said amount of KRW 10 million and its interest to the Defendant in addition to the amount of KRW 90,000,000,000 paid from the victim as the share settlement, to the extent that the Defendant can fully repay the said amount of KRW 80,000 and KRW 80,000.

D) Even after 2013, the Z side continued to bring profits from the instant sea water gathering projects, and instead, the head of the passbook managed by the Defendant first began to be directly managed from 2013. Nevertheless, the Defendant did not notify the victim of such fact and did not pay profits to the victim.

4) As to the fund solicitation cost of KRW 19.5 million

A) On July 12, 2013, the victim remitted KRW 19.5 million to the Defendant for personal fund solicitation expenses. However, on the same day, the Defendant immediately transferred KRW 10 million to the Plaintiff, a Chinese partner, KRW 5,000,000 to T on July 15, 2013, and KRW 11,00,000,000 to the AF on July 16, 2013, respectively. In light of this, it is reasonable to view that the Defendant used KRW 19.5 million, which was paid from the victim as expenses for personal fund solicitation, not for the instant maritime ginseng collection business, but for personal debt repayment, etc.

B) Around July 12, 2013, when the Defendant received KRW 19.5 million from the victim as expenses for soliciting personal funds, the victim had already paid KRW 185.2 million to the Defendant in relation to the instant piracy business, but did not receive the proceeds properly. As such, the victim was faced with the imminent situation in which the Defendant did not receive the proceeds properly even though he/she invested a large amount of money.

Although the Defendant did not have experience in raising or managing private funds in the past, in order for the Defendant to continuously take profits from the instant tidal collection business, it seems that the Defendant deceivings the victim to need the solicitation of private investors, and received KRW 19.5 million from the victim as the expenses for soliciting private funds.

5) As to the Defendant’s assertion

A) The Defendant asserts that “the Defendant was invested in the overall business of the Defendant rather than receiving investment money, fishing ground management rent, settlement of equity interests, personal fund solicitation expenses, etc., specifying the purpose of use from the victim.” However, the Defendant explained the facts acknowledged by the evidence duly adopted and investigated by the court, and the circumstances that are inferred therefrom, namely, the Defendant: (a) specified that it was the business of collecting sea ginseng by leasing the village joint culture form in the Chungcheongnam-gun, Chungcheongnam-gun, Chungcheongnam-gun; (b) even when the Defendant was paid money from the victim, the Defendant stated that it was necessary to pay money to the victim; and (c) provided that the victim paid money to the victim for the purpose and necessity thereof at the time of examining the explanation on the purpose of use and necessity thereof, it is reasonable to deem that the Defendant believed that the Defendant received money from the victim by specifying the purpose of use of the funds necessary for the instant sea extraction business, fishing ground management expenses, loan of the company operation expenses, settlement of equity interests, individual fund solicitation expenses, etc.

B) The Defendant asserts that “the Defendant may earn more profits from the Defendant’s processing and packing of the 3rd anniversary of the 10th anniversary of the 2013 anniversary of the 3rd anniversary of the 2013rd anniversary of the 2013rd anniversary of the purchase of the 3rd ginseng in AG and used the 3rd ginseng processing business with the victim’s consent.” However, the Defendant did not actively consent to the Defendant’s purchase of the 3rd ginseng processing business with the 1st anniversary of the 2013rd ginseng processing business without the Defendant’s consent to the 3rd ginseng processing business.” However, the Defendant did not agree to the 1st three years of the 1st 2013rd ginseng processing business without the Defendant’s consent to the 1st 3rd ginseng processing business, and the 1st 2nd 2nd 1st 7th 2013.

C) The Defendant asserts, “The Defendant explained all the matters concerning the sea3 extraction business of this case to the victim, and thus did not deceiving the victim.” However, according to the evidence duly adopted and examined by the court, the Defendant did not explain to the victim at all about what the content of the Z, T with the partnership business with the Z, whether the fishing ground management line was leased, Z, and T with the Z, whether the Z, T with the Z, when the sea3 processing business was conducted, and even when when the sea3 processing business was conducted, the Defendant did not explain to the victim at all. The Defendant started to explain only the necessary part in order to vindicate the reasons why the victim who did not receive the profits did not pay the profits at all. Accordingly, the Defendant’s assertion against this

C. Sub-committee

In light of the facts and circumstances, even if the Defendant received KRW 24.7 million in total from the victim, such as investment funds, expenses for leasing a fishing ground management line, settlement of equity in the club business, and expenses for raising private funds, it cannot be deemed that the Defendant had the intent or ability to pay profits to the victim by leasing and operating the fishing ground management line, or continuing the fishery ground collection business by inviting personal investors. Furthermore, it cannot be deemed that the Defendant has consented to the use of the funds paid to the Defendant for other businesses, such as the Maritime Ginseng Business, rather than the Maritime Ginseng Business. Accordingly, the Defendant and the defense counsel are not acceptable.

Reasons for sentencing

1. The scope of punishment by law;

A. As to the first crime in its holding, three years to forty years of imprisonment

B. On No. 2 Crimes: Imprisonment with prison labor for up to 10 years

2. The scope of recommendations based on the sentencing criteria for the crimes of subparagraph 1 in its holding;

【Scope of Recommendation】

General Fraud Type 3 (at least 500 million won, less than 5 billion won) Basic Area (at least 3 years to 6 years of imprisonment)

【Special Convicted Person】

3. Determination of sentence;

Although I did not supply the victim C and D with self-conscepted ginseng, in order to pretend that there was a real self-consceptic ginseng transaction, the Defendant led the instant crime by issuing a false certificate of storage and delivery under the name of E with the help of E, and the method of the crime is very poor.

The defendant is also highly likely to acquire the government finance and funds illegally and the illegality by acquiring the funds from the victim C or D who is operated with the government finance and funds to create the foundation for the sound growth of agricultural, fisheries and food enterprises.

In addition, the Defendant, by abusing the U.S. trust of the victims of middle and high school-friendly job offers, deceiving the Defendant to run the instant sea water gathering business in partnership, deceiving the Defendant to be necessary funds for the said business, thereby deceiving the Defendant by deceiving the sum of KRW 24.7 million with investment funds, etc. In addition, the Defendant used the money acquired by U.S. for personal purposes, such as stock investment, repayment of personal debt, etc. In light of these circumstances, the Defendant’s crime and criminal

Moreover, the Defendant did not agree with the victims, and the victims C and D had an amount equivalent to KRW 470,524,00,000, and the victims U did not fully repay the amount of damage.

However, the Defendant is attempting to commit a crime against the victim C and D. In addition, the Defendant repaid KRW 629,526,00 among the amount of damage to the victim C and D. Moreover, the instant sea ginseng extraction project, which was explained to the victim U, was not carried out at all, but was operated as Z, T and actual partnership with Z, and in 2012, the Defendant paid KRW 8,500,000,000 to the victim U.S. for profits in 2012. The Defendant did not have any criminal record heavier than the suspended sentence, and the Defendant did not have any criminal record heavier than the suspended sentence, and simultaneously took account of equity in the case where the judgment was

In addition, in consideration of all the circumstances, such as the age, character and conduct, circumstances of the crime, and circumstances after the crime, the punishment as ordered shall be determined in the same manner as the sentencing of the defendant.

The acquittal portion

1. Summary of the facts charged (Seoul Central District Court 2016 Height195);

On May 15, 2015, the Defendant, as stated in paragraph (1) of the judgment, by deceiving R, and thereafter, remitted KRW 800,100,00 from the victim C to the post office account in one name, and received KRW 299,950,000 as the purchase price from the victim D on May 15, 2015, and acquired KRW 1,100,050 in total from the victim C and D as the purchase price.

2. Determination

A. Relevant legal principles

The amount of profit as referred to in Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes means the sum of the amount of profit when a simple crime or a single comprehensive crime is established, and it does not mean the sum of each amount of profit which can be punished as concurrent crimes (see, e.g., Supreme Court Decision 2000Do28, Mar. 24, 2000). In a case where multiple victims acquire each pecuniary profit by deceptive act, even if the criminal intent is single and the method of crime is the same, each victim's legal interest is independent, so it cannot be understood as a single crime, and the victim's independent crime is established. Provided, That if the victims are deemed to have the same legal interest as the victim's legal interest due to the formation of a single company, etc., even if the victim is multiple, it can be viewed as a single crime (see, e.g., Supreme Court Decision 201Do769, Apr. 14, 2011).

B. Specific determination

The prosecutor considered this part of the facts charged that the defendant acquired a total of KRW 1,100,050,000 from the victim C and D as a comprehensive crime, and raised a prosecution for the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud).

In light of the facts acknowledged by the evidence duly adopted and examined by this court and the circumstances inferred therefrom, i.e., ① the Defendant made a fraudulent entry and delivery certificate (Evidence Nos. 12, 18, 23, 27, 31, and 56 in each victim C and D, and ② the Defendant made and submitted a written request for purchase of fishery products (Evidence No. 16, 26 of the Evidence No. 16 of the victim C and D) with respect to the self-employed ginseng by each victim C and D, it is reasonable to view that the Defendant separately made a fraudulent act against the victim C and the victim D, and there is no other evidence to acknowledge that the victim C and the victim D constitute a single business entity and thus are the same legal interests and interests of the victim.

Therefore, even if the criminal intent of the defendant is single and the method of crime is the same, it is not possible to grasp the crime of this case as an all-inclusive crime, and the crime of fraud of KRW 800,100,000 with the amount obtained by defraudation of the victim C and the crime of fraud of KRW 299,950,000 with regard to the crime of violation of the Act on the Aggravated Punishment, etc.

Ultimately, the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) in which the amount of profit is KRW 1,100,00,000 as a result of the crime of fraud committed against the victim C is not established, since the amount of profit is KRW 80,100,00,000. Furthermore, the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) in which the amount of profit is KRW 1,100,050,000 as a result of the crime of fraud committed against the victim D is not established.

3. Conclusion

Therefore, this part of the facts charged should be pronounced not guilty on the defendant under the latter part of Article 325 of the Criminal Procedure Act since there is no proof of crime. However, as long as the above facts charged includes the victim C's violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and the facts charged of fraud against the victim D, which are judged within the same facts charged, and the crime of violation of the Act on the Aggravated Punishment, etc.

The presiding judge, judge Kim Jong-tae

Judges Kim Gin-han,

Support for judges' organization

1) To the extent that the facts acknowledged by the evidence duly adopted and investigated by this Court do not disadvantage the defendant’s right of defense, the following facts charged are modified.

2) The crime No. 2 in the holding constitutes concurrent crimes under the latter part of Article 37 of the Criminal Act and thus does not apply the sentencing criteria.