(영문) 서울고등법원 2009. 5. 13. 선고 2008노3261, 2009초기27, 92, 93, 99, 101∼115, 118∼127, 129∼149, 152∼166, 169∼197, 199∼273, 275∼329, 335 판결

1. Of the convictions of the lower judgment, the part against the remaining Defendants except the Defendants 28 and the part not guilty of the lower judgment on the violation of the Act on Door-to-Door Sales, etc. against the said Defendants.

2. Defendant 1: Imprisonment for 10 years; imprisonment for 5 years; imprisonment for 3 years; imprisonment for 6 years; and imprisonment for 3 and 5 for 2 years; imprisonment for 4, 14, 16, and 20 for 1 year and 6 months; imprisonment for 11, 15, 17, 17, 18, 21, 22, 25, and 26 for 1 year; imprisonment for 8, 9, 13, 19, 23, and 27 for 2 years and 10 months; and

3. The number of days under detention prior to the pronouncement of the original judgment shall be 179 days, the above sentence against Defendant 1, the above sentence against Defendant 2, and the one day shall be included in the above sentence against Defendant 4.

4. However, with respect to the defendants 4, 14, 16, and 20 for four years from the date this judgment became final and conclusive, the execution of each of the above two years shall be suspended for three years; with respect to the defendants 7, 10, 12, and 24; and with respect to the defendants 8, 9, 11, 13, 15, 17, 18, 19, 21, 22, 23, 25, 27, for two years.

5. With respect to the defendant 4, 14, 16, 20 hours, 40 hours each, 7, 10, 12, 24 hours each, 320 hours each, 11, 15, 17, 18, 21, 22, 25, and 26, the community service order shall be issued for 20 hours each, 8, 9, 13, 19, 23, and 27 hours each.

6. Three copies of the computer seized shall be confiscated from Defendant 5, and three parts of the computer (No. 15 of the same proof) from Defendant 1, respectively, shall be confiscated from the Seoul Central District Prosecutors' Office (No. 2007, No. 4916, No. 16 of the same proof).

7. The prosecutor's appeal against the defendant 28 and the prosecutor's appeal against the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against the defendant 5, 8, 9, and 13 are all dismissed.

8. All applications filed by the applicant for compensation shall be dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendants

(1) Defendant 1

(A) misunderstanding of facts or misunderstanding of legal principles

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

The Defendant, at one-stage, secured shock customers and franchise stores through hybrid gift certificates, had been engaged in profit-making business, such as developing and putting out “Haat” water purifiers, “Haat” cosmetics, and Latho, which are the brands of Hatho International at two stages, and plans for expanding the area of online money at three stages. In fact, Hatho gift certificates were distributed at 9,000 member stores and repaid normally. Although Hatho gift certificates were distributed at 9,000 member stores, there was no problem in redemption due to commencement of profit-making business such as Hatho and Latho, it was impossible to properly conduct business and profit-making business due to an investigation over a long period of the Seoul Regional Investigation Agency, and thus, were not repaid, even if the Defendant did not have any criminal intent to receive money from the victims by selling Hatho gift certificates, the lower court found the Defendant guilty of this part of the facts charged or erred by misapprehending legal principles on the grounds stated in its reasoning.

2) Violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission

Since the gift certificates of this case were distributed in a franchise store and repaid normally, the defendant cannot be deemed to have engaged in the act of receiving money without delay, and even if not, he consulted with the lawyer and consulted with him that the act does not violate the law, and thus, it does not constitute a crime. However, the court below found the defendant guilty of this part of the facts charged, just on the grounds as stated in its reasoning, thereby causing misconception of facts or misunderstanding of legal principles.

(B) Unreasonable sentencing

Considering all the sentencing conditions against the defendant, the sentence of the court below (10 years of imprisonment) is too unreasonable.

(2) Defendant 2

(A) misunderstanding of facts or misunderstanding of legal principles

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

Defendant 1 requested that Defendant 1 be a adviser of the Central C&A, and was in charge of selling basic wages and merchandise coupons in response to this request, and there was no conspiracy between Defendant 1 and Defendant 1 to commit a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) of this case. In addition, even if Defendant 1 was paid money from the victims of merchandise coupons as the purchase price of merchandise coupons, he did not know at all that he did not have the intent or ability to pay high-amount profits exceeding the principal amount as agreed upon. Therefore, the lower court did not have the intention to commit fraud. The lower court found Defendant guilty of this part of the facts charged solely on the grounds as indicated in its reasoning, thereby falling under the misapprehension of the legal doctrine

In addition, the defendant did not have any criminal record identical or similar to the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) of this case, and in light of the process and degree of participation in the crime of this case, the defendant cannot be recognized as habitualness of the crime of this case. However, the court below, solely on the grounds stated in its holding, put the defendant as a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) due to habitual fraud, and thus

2) The violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission

(B) Unreasonable sentencing

Considering all the sentencing conditions against the defendant, the sentence of the court below (five years of imprisonment) is too unreasonable.

(3) Defendant 3

(A) misunderstanding of facts or misunderstanding of legal principles

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

The defendant only worked as the deputy head of Sinman International, and the Henman gift certificates were distributed at 9,00 franchise stores and repaid normally, and there was no problem in repayment due to the commencement of the profit-making business, such as Hau, Hau, etc., but could not be repaid due to the investigation over a long period of the Seoul Regional Police Agency, since it was impossible to properly conduct profit-making business due to the investigation over a long period of the Seoul Regional Investigation Agency, and thus, the defendant did not intend to buy money from the victims. However, the court below found the defendant guilty of this part of the charges only for the reasons stated in its reasoning, thereby making it erroneous in the misapprehension of the legal principles.

2) Violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission

(B) Unreasonable sentencing

Considering all the sentencing conditions against the defendant, the sentence of the court below (four years of imprisonment) is too unreasonable.

(4) Defendant 5

(A) misunderstanding of facts

If the person in charge of receiving money requests the Defendant to approve the payment of money, the Defendant did not have any criminal intent to sell the gift certificates of this case and take money from the victims by conducting only the formal business, such as obtaining the final decision of Defendant 4, the representative director of the personal data base, and thereby, did not have any criminal intent to receive money. In addition, the Defendant did not have conspired to commit the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and the Regulation on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) by comprehensively managing the sales and organization of the gift certificates of his/her personal data or taking charge of paying money, but the lower court did not have conspired to commit the crime of violating the Aggravated Punishment, etc. of Specific Economic Crimes

(B) Unreasonable sentencing

Considering all the sentencing conditions against the defendant, the sentence of the court below (three years of imprisonment) is too unreasonable.

(5) Defendant 6

(A) misunderstanding of facts or misunderstanding of legal principles

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

In light of the fact that the Defendant did not participate in the establishment of a corporation at the time of the incorporation of the company, did not participate in the management of the company, did not form a business team, did not educate the head of the business team, the employees, and the position of the trainee who received education with other head of the headquarters, and there was no reason to deal with the status and role especially differently compared with other head of the headquarters, and there was no reason to deal with the status or role. Moreover, even if the Defendant did not recognize the fact that he did not have any intention or ability to pay high-amount profits exceeding the principal as agreed upon, even if he received money from the victims who are the purchaser for the purchase of merchandise coupons, he did not know that he did not have any intention or ability to pay high-amount profits exceeding the principal as agreed upon, the lower court did not have the intention to commit fraud. The lower court found this part

2) The violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission

(B) Unreasonable sentencing

Considering all the sentencing conditions against the defendant, the sentence of the court below (four years of imprisonment) is too unreasonable.

(6) Defendant 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27

(A) misunderstanding of facts or misunderstanding of legal principles as to the violation of the Regulation on Conducting Fund-Raising Business without Permission

Since the gift certificates of this case were distributed in a franchise store and repaid normally, the defendants cannot be deemed to have engaged in the act of receiving the gift certificates without permission, and even if they are not, they did not violate the law by checking the opinions of the attorney-at-law who did not violate the law on the part of the member company in the Ear Roster and selling the gift certificates and soliciting the purchase to the deceased and his relatives. Thus, they did not constitute a crime. However, the court below convicted the defendants of this part of the facts charged, just on the grounds as stated in its reasoning, and thereby committed an error of law or of misapprehending legal principles.

(B) Unreasonable sentencing

Taking into account the overall conditions of sentencing against the Defendants: Imprisonment for a period of one year and six months: three years of probation; three years of social service; two years of probation; two years of probation; two years of community service; two years of probation; three years of probation; three years of community service; three years of probation; two years of probation; two years of probation; two years of probation; one year of community service; two years of probation; four years of probation; four years of probation; four years of community service; two years of probation; two years of probation; one year of probation; two years of probation; two years of probation; two years of probation; one year of probation; two years of probation; two years of probation; two years of probation; one year of probation; two years of probation; two years of probation; two years of probation; two years of community service; two years of probation; two years of probation; two years of probation; one year of probation; two years of probation; two years of probation; and one year of community service; and one year; and two years of imprisonment with prison labor for two years; and

(b) Prosecutors;

(1) misunderstanding of facts as to Defendant 14, 16, and 20 on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

In light of the fact that the Defendants attended a meeting held at the head office each month as the highest class of the Defendants and received reports on the current status of monthly or market sales and payment of allowances, and accordingly, even though they knew that the payment of principal and interest and allowances to senior investors would be impossible except for continuous recruitment of subordinate investors, they continuously recommended subordinate investors to purchase gift certificates, the Defendants also participated in the fraud of Defendant 1, etc. Therefore, even if they were guilty of this part of the facts charged against the Defendants, the lower court found the Defendants guilty of this part of the facts charged, and thus, found the Defendants guilty of this part of the facts charged.

(2) misunderstanding of facts as to the violation of the Protection of Communications Secrets Act against Defendant 5, 8, 9, and 13

The Defendants recorded all conversations in the office with the knowledge that the criminal administration and the office of the National Police Agency, the place of investigation, prior to recording, is not an independent space with only the police officers and two persons subject to investigation, but a space in which other police officers have made a full-time conversation while performing their respective activities, and thus, the Defendants were guilty of this part of the facts charged. However, the lower court found the Defendants guilty of this part of the facts charged, solely on the grounds as stated in its reasoning, thereby causing a mistake of facts or misapprehension of the legal doctrine.

(3) Unreasonable sentencing

Considering all of the sentencing conditions against the Defendants, each sentence of the lower court is unreasonable.

2. Determination

A. Ex officio determination

Before determining the grounds for appeal by the Defendants and the Prosecutor’s assertion of unreasonable sentencing against the remaining Defendants except Defendant 28, prior to the judgment on the grounds for appeal by the Defendants, the Prosecutor added the facts charged as stated in Articles 1- A-A-A-A-A-A-A-A and 2-A-A-off of the part not guilty under the facts charged as to the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes against Defendant 1, and withdraws “Articles 51(1)1 and 13(1) of the Door-to-Door Sales, etc. Act” as applicable provisions of law to the remaining Defendants except Defendant 28, and added “Articles 52(1)3 and 23(2) of the Door-to-Door Sales, etc. Act” to “Article 52(1)3 and 23(2) of the Act on Door-to-Door Sales, etc.” as well as the summary of the following facts and evidence to which the judgment was modified by granting permission. As such, the remaining part of the judgment below is no longer maintained against the Defendants 28.

In addition, the part on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Fraud) against Defendant 1 and the part on the violation of the Act on Door-to-Door Sales, etc. to the remaining Defendants except Defendant 28 who are found guilty as follows and the part on the conviction against the said Defendants should be sentenced to one punishment in the concurrent crimes under the former part of Article 37 of the Criminal Act. Accordingly, the part on the conviction against the remaining Defendants except Defendant 28 among the part on the judgment below, and the part on the violation of the Act on Door-to-Door Sales, etc. to the said Defendants among

On the other hand, the judgment of the court below has a ground for ex officio destruction, but the defendants' argument of misunderstanding of facts or misunderstanding of legal principles is still subject to the judgment of the court of this case.

B. Of the grounds for appeal by the Defendants, the determination of facts and misapprehension of the legal principles as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

(1) As to the assertion that there is no intention to obtain fraud among the grounds for appeal by Defendant 1, 2, 3, 5, and 6

(A) Facts of recognition

Comprehensively taking account of the evidence duly admitted by the court below, the following facts are recognized:

1) The sales and redemption structure of the gift certificates of this case

The Central C&A, which is a merchandise coupon issuer, shall sell merchandise coupons at an amount equivalent to 88% of the face value at a cargo coupon seller, to the purchaser through a sales organization, such as Drheat and full-time dratur, etc., with a certificate of 125 to 140% of the principal (5,00 won, KRW 50,00 won, KRW 50,000 won, KRW 50,00 won, KRW 500,00 won, KRW 1,000 won, and KRW 6 kinds of KRW 1,00,000) on the amount of the merchandise coupon purchase. The purchaser possessing the merchandise coupon shall receive a refund in cash from Blug, which is a merchandise coupon exchanger, or purchase goods or services at a franchise store that entered into a franchise contract with the Central C&A, and use it in the same way as cash.

In this process, buyers take advantage of the difference between the premium rate of 25 to 40% at the time of the purchase of merchandise coupons and the rate of 6 to 10% at the time of the repayment of merchandise coupons, and the Central C&A and E-Ear International can not be seen as the persons corresponding to the benefits they gain.

Blugman shall pay the gift certificates to the buyer with the borrowed money from the Central C&A, and the purchased gift certificates shall be redeemed in cash by the Central C&A after deducting the fees of 1.5 to 6% from the buyer for the gift certificates received from the buyer, which have been sold at a discount of 5%.

In this process, the franchise store purchased at a discount of 5% from Blug City as above, or registered as the salesperson of Eluitius and purchased gift certificates at a rate of 125 to 140% with the registration of Eluitius, and as consumers pretended to purchase goods or services at the franchise store, and thus, considered the difference between the purchase price of gift certificates and the redemption price of gift certificates and the sales payment as a salesperson as a salesperson. However, the Central C&A does not appear to have any person corresponding to his/her profits.

(ii)all allowances for his/her personal person;

In the event that a registered salesperson sells merchandise coupons, he/she: (a) with 5% (3 to 4% after October 2006); (b) with the sales promotional expenses for the branch manager; (c) 2% (0.5 to 2% after October 2006); (d) with the sales promotion expenses for the branch manager; (c) with 2% (0.88% after October 2006) of the sales amount; (d) with the sales promotion expenses for 1% (0.4% after October 2006); (e) with the head of the division and the head of the headquarters, the sales promotion expenses for the branch manager; (e) with the sales promotion expenses for 1% (0.4% after October 206); (e) with the sales promotion expenses for the branch manager; (e) with the sales promotion expenses for 20% (0.4% from 10 million to 5 million won; and (e) with the total operating expenses for the branch manager at least 200 million.

Due to the payment of various allowances as above, the Central C&A, H&A, and H&Wn International cannot be seen as a person corresponding thereto.

3) Whether profit-making business can cover the foregoing persons

The Central C&A had a plan to appropriate the above enemy's revenue (including the revenue from the business of B2B), H&A, profit-making business, such as H&A (cosmetic, Li, Li, Li, Li, Li, Li, Li, Lib, Lib (overseas real estate), and Lib, which the buyer did not refund the gift certificates to the wind that he damages or loses them. However, the above franchise fee revenue was actually deducted from the credit card company's credit card fee that was actually repaid to the credit card company, and the sales amount was entirely different from the credit card company's credit card fee that was actually paid by the credit card user, so it was not actually paid to the company, and the revenue from the business was reduced to one billion won since it was commenced on April 207, 2007, and it was not a request to the online shopping business operator for the purchase of the gift certificates at around 200 billion won, and it was not a request to the online shopping business operator for the purchase of the gift certificates at around 200.

In fact, there was a result of denying opinions on the External Audit of the Central C&A in 2006, stating that “any uncertainty exists that may cause a serious doubt about the capacity of a company to continue to exist as a company.” This is attributable to the fact that the Central C&A cannot presume the profits of a company that continues to exist.

4) Defendants’ respective acts

피고인들은 중앙씨앤아이 및 하이존인터내셔널의 직원, 본부장으로서 소속 판매원들에 대한 교육, 상담 등을 통하여 피해자들에게 중앙씨앤아이, 하이존인터내셔널의 위와 같은 재정상태나 구체적인 사업계획, 상품권 판매에 따라 지급될 각종 수당의 실질적 재원 등 이 사건 상품권 구매에 따른 구조적 위험성을 정확하게 고지하지 아니한 채, “하이토탈 상품권을 구입하면 구입금액에 따라 원금 대비 125%~140%의 상품권을 지급하겠다. 그 상품권은 회사에서 정한 사용시점에 이르렀을 때 우리 회사 가맹점에서 현금처럼 사용하거나 블루캐시에서 6%~10%의 수수료를 공제하고 상환받을 수 있다. 현재 대기업에서도 우리 회사와 가맹계약을 체결할 예정이기 때문에 앞으로 시간이 지날수록 상품권을 사용할 수 있는 가맹점이 엄청나게 늘어날 것이다. 빨리 상환받는 경우를 가정하면 4~5개월 내에도 상환받을 수 있다. 아울러 상품권을 다른 사람에게 많이 판매하여 매출액 및 하위판매원 수가 증가하면 회사에서 정한 기준에 따라 딜러 ⇒ 상근딜러(컨설턴트) ⇒ 부장(수석 컨설턴트) ⇒ 본부장으로 승진하게 되고, 직급에 따라 영업지원비, 판매지원비, 판매장려금, 판매촉진비를 지급하며, 지점을 개설해 운영하게 되면 지점 운영비와 지점 추천비를 지급하겠다. 원금을 초과하여 지급하는 25%~40%의 상품권 및 수당은 1.5%~20%의 가맹점 수수료 수익(B2B 사업 수익 포함)과 하이서리, 하이듀, 풀 빌라 사업, 구매자들이 실수로 상품권을 훼손하거나 분실하는 바람에 지급제시되지 않는 상품권을 통한 낙전수입 등으로 해결되므로 걱정할 필요가 없다. 지금 안 사면 회사가 성장할수록 할인율도 낮아지는데다가 서로 사려고 할 것이므로 판매할 수량이 턱없이 부족하게 되어 사고 싶어도 사지 못하는 때가 곧 올 것이다.”고 말하는 등 상품권의 구매를 통한 이득을 얻을 수 있다는 점 및 각종 후원수당을 지급받을 수 있다는 점만을 부각하여 이를 믿은 피해자들로 하여금 상품권을 구입하게 하였다.

(B) Determination

In a case where the accused denies the criminal intent of deceptiveation, the facts constituting the subjective element of such crime are bound to be proved by the method of proving indirect or circumstantial facts having considerable relevance with the criminal intent due to the nature of the object. In this case, what constitutes indirect or circumstantial facts having considerable relevance should be determined by the method of reasonably determining the connection of the facts by means of an imminent observation or analysis based on normal empirical rule (see, e.g., Supreme Court Decision 2005Do8645, Feb. 23, 2006). Meanwhile, as a subjective element of constituent elements, it refers to the case where it is recognized in light of the probability of the occurrence of the criminal act that is uncertain, and it is permissible in order to acknowledge the possibility of the occurrence of the criminal fact. Furthermore, it is necessary to determine the possibility of the occurrence of the criminal fact from the perspective of the general public without depending on the external statement of the offender, and how it is possible to confirm the criminal facts from the perspective of 504Do404, etc.

The above facts and evidence revealed that Defendants 1 had experience in multi-level marketing consulting companies and the Korea Financial Cooperative, as the representative director of the Central C&A, had a leading role in the sales and redemption structure of gift certificates, sales and sales commission of 2-year merchandise coupons, and that Defendant 2 had been aware of the overall business affairs of the company, including sales and management of gift certificates, and Defendant 1 had been working for the Korea Financial Cooperative of 00,000 won. Defendant 2 had been working for the Korea Financial Cooperative of 00,000 won. Defendant 2 had been working for the Korea Financial Cooperative of 0,000,000,000 won. Defendant 2 had been working for the Korea Financial Cooperative of 0,000,000 won. Defendant 1 had been working for the Korea Financial Cooperative of 2-year merchandise coupons, and had been working for the Korea Financial Cooperative of 2-year merchandise coupons. Defendant 2 had been working for the Korea Financial Cooperative of 2-year merchandise coupons, and had been working for the Korea Financial Cooperative of 4.

(2) As to the assertion that Defendant 2, 5, and 6 did not constitute joint principal offenders

(A) Relevant legal principles

In order to constitute a joint principal offender, it is necessary to implement a crime through a functional control based on the joint principal’s intent as a subjective element. Here, the intent of joint process is insufficient to recognize another person’s criminal act and to accept it without restraint. The purport of joint process should be to move one’s own intent to commit a specific criminal act as a joint principal offender by using another person’s act. A joint principal offender may be held liable even for a person who directly shared part of the elements of a crime and did not perform it. However, in light of the status and role of the principal in the whole crime or the control or power over the progress of the crime, it should not be deemed that there exists a functional control through an essential contribution to the crime (see, e.g., Supreme Court Decisions 2005Do352, Jul. 22, 2005; 2007Do4277, Oct. 26, 2007).

(B) Determination

The following circumstances are acknowledged based on the evidence duly adopted by the court below.

1) Defendant 2

Defendant 2 participated in the establishment of the Central C&A, H&A, H&A, and the establishment of the basic structure of the company, such as the sales and redemption structure of merchandise coupons, the sales commission of H&A, and the sales organization of H&W’s personal news. Defendant 2, who was appointed as an adviser by the Central C&A, had established sales organization by entering the headquarters, had been in charge of the business. Defendant 2 had been in charge of the management of the sales and sales organization of H&A’s personal merchandise coupons, and explained that the members of the company may attend the headquarters and provide education on the sales method of merchandise coupons, etc., and preserve persons from the company due to increase in sales through profit-making business. The instructors recruited by the company were in charge of the overall management of the sales and sales organization of H&A’s personal merchandise coupons, such as conducting education directly at the core point, and received incentives equivalent to KRW 2.4 billion.

2) Defendant 5

From July 207 to July 1, 2007, Defendant 5, at his recommendation, was appointed as a director for the Earbal International, the selling company of the Earbal gift certificates of this case, and was in charge of the sales and sales organization of Earbal gift certificates in the middle. Defendant 5 took charge of the sales of Earbal gift certificates deposited into the bank account of Earbal International, and approved the payment of various support allowances. Upon the commencement of the investigation of this case, Defendant 5 provided education to the salespersons so that they can prepare for investigation related to the sales business of gift certificates.

3) Defendant 6

Defendant 6 entered as the head of the headquarters from the time when Defendant 1 was established as the sales company of the gift certificates of this case. From November 2006, Defendant 6, as the head of the headquarters, established a sales organization by entering the sales organization with Defendant 2 as the head of the headquarters, and was in charge of the sales organization by participating in personnel such as the recommendation of promotion of other head of the headquarters. The head of the headquarters was sent the details of the meeting to other head of the headquarters and the head of the department. After being appointed as the head of the headquarters, Defendant 6 received a certain amount of allowances according to the sales performance of other head of the headquarters, and received allowances of KRW 2.9 billion due to the sales of the gift certificates of this case.

In full view of the above circumstances, it is reasonable to deem that the Defendants had the intent to jointly process the crime of defraudation by the sale of the gift certificates of this case with the above defendants 1 by performing the duties as seen in the above. In addition, in light of the details of the specific duties of the Defendants, the status of the Defendants in charge, the status of the Central C&A, and the amount of profit acquired by the Defendants through the sale of the gift certificates of this case, it is reasonable to deem that the Defendants engaged in functional control by making an essential contribution to the crime of defraudation by the sale of the gift certificates of this case. Accordingly, it is sufficient to recognize that the Defendants conspired with the defendants 1, etc., and therefore, this part of the assertion is without merit.

(3) As to the assertion that Defendant 2 was not a habitual offender

Habituality in habitual fraud refers to the nature of the actor as a habit of repeated fraud. In determining the existence of such habition, even if the criminal record of fraud is important, but even if there is no criminal record of fraud, if the habition of fraud is recognized by taking into account all the circumstances, such as the frequency of the crime, means and methods, motive, etc., the habituality should be recognized. In particular, in a case where a business is conducted by opening an adult site and employing employees by investing considerable funds from many unspecified persons for the purpose of acquiring membership secret money from the beginning for a long time, the repetition of the act is considered as the nature of the actor in the sense that the act is a business, and the repetition of the act is characterized as the nature of the actor, and it can be easily recognized as the substance of the habition in capital or economic activities that are connected with the fund already invested, and thus it can not be easily seen as such fraud (see, e.g., Supreme Court Decision 2006Do2860, Sept. 8, 2006).

As seen in the above, the Defendant conspired with Defendant 1, 3, 5, and 6 on June 8, 2005 to October 8, 2007, obtained a total of KRW 964,345,316,976 in total from many unspecified victims about 54,716 times as the purchase price for gift certificates, and in light of all the circumstances, such as the method, frequency, motive, means, etc. of the instant crime, even if the Defendant did not have a criminal record prior to the instant crime, it is reasonable to deem that the Defendant had a habit of fraud at the time of the instant crime, and therefore, the above argument by the Defendant is without merit.

C. As to the mistake of facts and misapprehension of legal principles as to the Defendants’ part of violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission

(1) As to the assertion that it does not constitute an act of fund-raising without delay

Article 3 of the Act on the Regulation of Conducting Fund-Raising Business without Permission or Approval under the related Acts and subordinate statutes provides that "the act of importing investment money to the future by promising to pay the whole amount of investment money or an amount exceeding it" as one of the acts of fund-raising business without permission or approval. Thus, the legislative intent of regulating fund-raising business without permission or approval under the related Acts and subordinate statutes lies in protecting good customers and establishing a sound financial order. Thus, in light of the meaning of the term "contribution" under the legislative purport or the regulations on the Regulation of Conducting Fund-Raising Business without Permission or Approval, it is difficult to regard the revenue of fund-raising business through the transaction of goods as the revenue of fund-raising business, and thus, it can be deemed as an act of fund-raising without permission under the Act only where it can be deemed that the revenue of fund-raising business without the transaction of goods is the revenue of fund-raising business (see Supreme Court Decision 2006Do7470, Jan. 25, 2007, etc.).

Comprehensively taking account of the evidence duly admitted by the court below, the following circumstances are recognized:

In general, in the case of merchandise coupons, the total amount of merchandise coupons can be used as soon as they are issued and the purchase of goods or services equivalent to their face value is not made in cash, and merchandise coupons in this case are sold by means of additional issuance of merchandise coupons corresponding to 25 to 40% of the purchase amount according to the purchase amount, and the total amount can be repaid in cash for 4 to 5 months, and the victims' motive to purchase merchandise coupons in this case is to obtain high profits from cash repayment rather than to purchase goods or services at the franchise store. The victims' rapid increase in the amount of damage amount of KRW 9,643 billion was to purchase merchandise coupons in excess of the victims' profits.

Until June 29, 2007, the amount of money repaid by the Central C&A to the franchise store by the purchaser of merchandise coupons by using the franchise store until June 29, 2007 is about 1,38.5 billion won (each entry in the redemption details by each 15,16th Central C&A). This is limited to 10% of the total amount of merchandise coupons issued during the same period (Evidence Record 17,4815, evidence records, investigation report (verification of the current status of sales and assets). The amount used at the franchise store is limited to 10% of the total amount of merchandise coupons issued at KRW 1,38.5 billion (each entry in the redemption details by each 15,16th Central C&A). Since the amount of merchandise coupons purchased at the franchise store is to be considered as the difference between the purchase price and the redemption price of merchandise coupons and the profits from sales, the amount of merchandise coupons actually purchased from the franchisee's cash or service is included in the amount of redemption of the merchandise coupon.

In addition, although the contents of goods, services, etc. handled by franchise stores are limited to gas stations, restaurants, consumer goods, services, etc., it is said that even if the victims purchase merchandises exceeding the number of billion won, the victims are able to view the benefits arising from cash repayment rather than the purchase of goods or services.

In full view of the above circumstances, although the gift certificates transaction of this case made by the defendants takes the appearance of the gift certificates sales contract in the form of a gift certificate sales contract, the substance of the transaction can be deemed to be only the receipt of money without the transaction of goods, and it constitutes an act of receiving money without the transaction of goods. Therefore, this part of the allegation is without merit.

(2) As to the Defendants’ assertion that the Defendants constituted legal mistake

Article 16 of the Criminal Act provides that an act of misunderstanding that one's own act does not constitute a crime under the Acts and subordinate statutes shall not be punishable only when there is a justifiable reason for misunderstanding. However, it is generally accepted that his act constitutes an offense but it does not constitute a crime under the Acts and subordinate statutes in his own special circumstances, and if there is a justifiable reason for misunderstanding, it shall not be punishable. Whether there exists a justifiable reason shall be determined depending on whether the act of misunderstanding is not aware of the illegality of one's own act as a result of misunderstanding, although it could have been recognized that the act of misunderstanding could have been aware of the illegality of the act of misunderstanding if the act of misunderstanding was made with his intellectual ability, and there was a opportunity for misunderstanding or making inquiries about the possibility of illegality of his own act (see, e.g., Supreme Court Decision 2006Do7968, Oct. 26, 207; 200Do1604, Oct. 16, 1990).

In light of various circumstances such as the defendants' age, academic background, career, and circumstances leading to the crime of this case, although the defendants received advice from the attorney-at-law that the act of selling merchandises of this case does not constitute an act of receiving merchandises of this case, or the defendants believed it as it is, it appears that the defendants did not make efforts to avoid their intellectual ability, such as reviewing, examining, or inquiring about the possibility of illegality of their act, and trust the attorney's advice or management's explanation. In addition, it seems that the defendants' act is generally a crime, but there is no reason to believe that the defendants' act does not constitute an act permitted by the law in their own special circumstances, and there is no reason to believe that there is no reason to believe that the defendants' act is not an act permitted by the law.

D. As to the prosecutor's allegation of mistake on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against Defendant 14, 16, and 20

(1) Summary of this part of the facts charged

Defendant 14 received total of KRW 756,437,814,039 from 8,547 as indicated in attached Table 1 of the facts constituting an offense in the lower judgment, and Defendant 20 received total of KRW 756,437,814,039 as an investment in the purchase price of merchandise coupons, and KRW 16,169,3757,79,797,797, and total of KRW 16,97,975,97,97,97, and KRW 16,97,97,97, and KRW 16,97,97,79 as indicated in attached Table 2 of the facts constituting an offense in the lower judgment, in collusion with Defendant 1,2,3, and 6.

(2) Determination

In a criminal trial, the conviction should be based on evidence with probative value, which makes it possible for a judge to have the truth that the facts charged are true beyond a reasonable doubt, and if there is no evidence to establish such a degree of conviction, the conviction should be based on the benefit of the defendant even if there is suspicion of guilt against the defendant.

On the other hand, a co-principal under Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements, namely, the commission of a crime through functional control based on the intent of co-processing and the common intent. A person who directly shared part of the elements of a crime among the competitors may be liable for the crime as a co-principal even if he/she did not implement the crime. However, when comprehensively considering the status, role, control or power over the process of the whole crime, etc., he/she should not be deemed to have functional control through the intrinsic contribution to the crime (see, e.g., Supreme Court Decision 2007Do2144, Jun. 1, 2007). In addition, the intention of co-processing is insufficient to recognize another person's crime while he/she did not restrain it, and the intention of co-processing is to move his/her own intent to commit a specific crime by using another person's act (see, e.g., Supreme Court Decision 2008Do4278, Apr. 27, 20108).

In light of the following circumstances acknowledged by the record, Defendant 14, 16, and 20 have commenced the sales business of the gift certificates of this case at the recommendation of the above defendant 6, who is the head of his own headquarters on June 2005. From March 2006, Defendant 14 had been the head of eight headquarters; Defendant 16 had been promoted from July 2006 to the head of nine headquarters; Defendant 20 had been engaged in the sales of the said gift certificates of this case with the head of the Central C&A; Defendant 20 did not participate in the determination of the method of selling the gift certificates of this case; the establishment of the head of the sales team of this case; the establishment of the head of the sales team of this case; and the establishment of the sales team of the head of the sales team of this case by the head of the sales team of this case; and all of the defendants did not participate in the sales of the said certificates of merchandise coupons of this case by the head of the sales team, including the head of the sales team of this case.

Therefore, since this part of the facts charged against the defendants constitutes a case where there is no proof of crime, the fact-finding and judgment of the court below on this point is justified, and there is no error of law affecting the conclusion of the judgment by misunderstanding the facts.

E. As to the Prosecutor’s assertion of mistake as to the violation of the Protection of Communications Secrets Act against Defendant 5, 8, 9, and 13

(1) The summary of each of the facts charged

(A) Defendant 5, 13

Defendant 5, around 17:00 on March 26, 2007, instructed Defendant 13 to record the investigation process by putting a small tape recorder on the part of Defendant 13 and recording the investigation process in order to educate Defendant 13, Defendant 13, Defendant 13, Defendant 13, Defendant 13, Defendant 13, and Defendant 13, Defendant 13, and Defendant 13, and Defendant 3, Defendant 2, Defendant 2, Defendant 2, Defendant 2, and Defendant 3, Defendant 2, Defendant 2, and Defendant 2, Defendant 2, Defendant 2, and Defendant 3

Accordingly, Defendant 13, around 10:00 on March 27, 2007, concealed a tape recorder at the toilet of the Seoul Metropolitan Mapo-gu Seoul Metropolitan Police Agency located in Mapo-gu, Seoul and disguisedly recorded the contents of the conversation between police officers and police officers, Nonindicted 3 and Nonindicted 2, 4, and 5, conversation between police officers and police officers, Nonindicted 6 and Nonindicted 3, and persons whose names are unknown, and the conversation between police officers and police officers, Nonindicted 7, and Nonindicted 8, and persons whose names are unknown.

Accordingly, the defendant 5 and 13 recorded a conversation between others that is not open to the public.

(B) Defendant 5, 8

Defendant 5, around 10:00 on March 27, 2007, instructed Defendant 8 to record the investigation process with the purpose of training Defendant 8 who was requested to attend the Seoul Regional Police Agency’s head office, training Defendant 8 on the police officer’s answers according to the police officer’s interrogation, monitoring Defendant 8’s answers as well as preparing measures to avoid punishment by recording the investigation process.

As a result, around 15:00 on March 27, 2007, Defendant 8 had concealed and operated a tape recorder near the court of the Seoul Local Police Agency, and recorded the conversation between Nonindicted 3, 6, and 9, a police officer, by entering a criminal department or office.

As a result, Defendant 5 and 8 recorded an undisclosed conversation between others in collusion.

around 10:00 on March 27, 2007, Defendant 5 instructed Defendant 9 to record the investigation process with the aim of training Defendant 9 who was requested to attend the Seoul Regional Police Agency’s head office, Defendant 9, Defendant 9, Defendant 9’s response guidelines according to the police officer’s interrogation, monitoring Defendant 9’s response as well as preparing measures to avoid punishment by recording the investigation process, and recording Defendant 9’s response as well as recording the investigation process.

As a result, around 15:00 on March 27, 2007, Defendant 9 had concealed and operated a tape recorder near the court of the Seoul Local Police Agency, and recorded the conversation between Nonindicted 3, 6, and 9, a police officer, by entering a criminal department or office.

As a result, Defendant 5 and 9 recorded an undisclosed conversation between others in collusion.

(2) The judgment of the court below

(A) Relevant legal principles

Article 3(1) of the Protection of Communications Secrets Act provides that “No recording or listening to conversations between other persons that are not open to the public shall be recorded or heard.” Since the purport of Article 3(1) is that a third party who does not participate in the conversation should not record the speech between other persons who make the said conversation, a third party’s speech cannot be deemed to be “the conversation between other persons” in relation to the recorder, and such recording cannot be deemed to be contrary to Article 3(1) of the Protection of Communications Secrets Act (see Supreme Court Decision 2006Do4981, Oct. 12, 2006, etc.). This also applies to a conversation between four or more persons.

(B) Determination as to the above facts charged (A)

According to the investigation report (Attachment of the Record) (No. 2007 type No. 115121, No. 19, 5753 of the evidence), most of Defendant 13 recorded the contents of Defendant 13; Defendant 13, along with Nonindicted 2, 4, and 5, received the investigation from Nonindicted 1, 3, and 6 with Nonindicted 1, 3, and 6; Defendant 6, while the investigation was conducted, called “where he or she or he or she is or was a bus company,” and Nonindicted 7, who appears to have not participated in the investigation at issue, includes the content of conversation between Defendant 13 and Nonindicted 7 and police officer (Evidence No. 5804 of the evidence record No. 199).

Examining the above recording in accordance with the legal principles as seen earlier, Defendant 13, along with Nonindicted 2, 4, and 5, under investigation conducted by Nonindicted 1, 3, and 6 by police officers, and the contents of the conversation divided by Defendant 13 cannot be deemed to constitute “the conversation between others” in relation to Defendant 13 as the tape recorder.

In addition, when considering the fact that Defendant 5 and Defendant 13 instructed Defendant 13 to record the investigation process in order to take measures to escape punishment by recording the investigation process, Defendant 5 and Defendant 13 to record the investigation. Of the above recording contents, the part that Nonindicted Party 6 called “where it is?” and Nonindicted Party 7 appears to have not directly participated in the investigation, and the part that Nonindicted Party 7 sent to Nonindicted Party 7 and Nonindicted Party 8 simply sent with Nonindicted Party 7 and Nonindicted Party 8 on the phone with others, and the part that Nonindicted Party 5 and 13 expected to have been examined, it is difficult to conclude that Nonindicted Party 1’s conversation between Defendant 13 and Nonindicted Party 13 did not appear to have been recorded in the middle of the investigation process, and the part that Nonindicted Party 6 and Nonindicted Party 13 attempted to illegally record the above conversation between Defendant 1 and the police officer during the investigation. In addition, it is difficult to view that Nonindicted Party 16 and the police officer’s name of the Defendant 13 and the police officer during the investigation.

According to the investigation report (Attachment of Record) (Evidence 19, 5744, 5751), most of the recorded contents by Defendant 8 and Defendant 9 include the following: Defendant 8 and Defendant 9 are subject to investigation by police officers Nonindicted 3, 6, and 9; Defendant 9 was subject to investigation by police officers; Nonindicted 9 was subject to investigation by police officers; Nonindicted 9 made a telephone conversation with a police officer during the investigation (the evidence record 19, 5747, 5755) and Nonindicted 6 made a telephone conversation with a police officer during the investigation (the evidence record 19, 5749, 5757 pages).

Examining the above recording in accordance with the legal principles as seen earlier, the conversation between Defendant 8 and 9, which was investigated by the police officers Nonindicted 3, 6, and 9, cannot be deemed to constitute “the conversation between others” that is not disclosed in relation to Defendant 8, 9.

In addition, it is difficult to readily conclude that the content of the conversation between Defendant 8, 9 and the police officer Nonindicted 6 during the investigation conducted by Nonindicted 9, in light of the situation at the time, falls under the conversation between others, and even if there is room to view it as falling under the conversation between others, Defendant 5 had Defendant 8, 9 record the contents of the interview at the same time for the purpose of monitoring the answer as trained by Defendant 8, 9, and preparing measures to avoid punishment by recording the investigation process. In light of the fact that Defendant 8, 9 had such a conversation between others and the police officer during the investigation process, and it is difficult to deem that Defendant 5, 8, and 9 had anticipated that it had been recorded in advance. Thus, it is also difficult to view that Defendant 5, 8, and 9 had criminal intent to illegally record the above contents of the conversation.

(3) Judgment of the court below

In light of the above legal principles, the evidence of this case is sufficiently examined closely in light of the above legal principles, and the evidence submitted by the prosecutor alone when considering the above circumstances presented by the court below properly, and there is no other evidence to acknowledge this part of the facts charged. Thus, the fact-finding and judgment by the court below as to this point is just, and there is no error of law that affected the conclusion of the judgment by misunderstanding facts.

F. As to the prosecutor's assertion of unreasonable sentencing on Defendant 28

Considering the motive and background leading up to each of the crimes of this case, circumstances after the crime of this case, the defendant's age, character and conduct, etc., such as the fact that the defendant entered Blug and repaid the Hlug gift certificates around August 2005, and that there was no previous conviction, and reflects the fact that there are other conditions of sentencing indicated in the records of this case, it is not recognized that the sentence imposed by the court below against the defendant is too unreasonable.

3. Conclusion

Therefore, among the conviction portion of the judgment below, the part against the other defendants except the defendant 28 and the part against the above defendants on the violation of the Act on Door-to-Door Sales, etc. to the above defendants among the acquitted part of the judgment of the court below is reversed ex officio. Thus, under Article 364 (2) and (6) of the Criminal Procedure Act, all of the above parts of the grounds for appeal by the above defendants and the prosecutor are reversed and remanded through pleadings. The prosecutor's appeal against the defendant 28, and the prosecutor's appeal against the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against the defendant 14, 16, and 20 among the acquitted part of the judgment of the court below, against the defendant 5, 8, 9, 13 and the part on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes against the defendant 5, 209, 92, 93, 101 through 15, 11 through 218 through 297, 1 through 297

Criminal facts and summary of evidence

The summary of the facts constituting an offense and evidence of the remaining Defendants except for the defendants 28 recognized by this court (hereinafter referred to as the "defendants") are as follows: "Defendant 14, 16, and 20" in Chapter 16 of the facts constituting an offense of the lower judgment and the end of the facts constituting an offense [additional facts constituting an offense] below [the summary of additional evidence] under the summary of the evidence and [the summary of additional evidence] are as stated in the corresponding column of the lower judgment. Thus, all of them are cited in accordance with Article 369 of the Criminal Procedure Act.

【Additional Crime】

No one shall engage in any financial transaction without performing any transaction of goods, etc., or engage in any actual monetary transaction by pretending the transaction of goods, etc. using any multi-level marketing organization or any similar multi-level organization.

Nevertheless, Defendant 1, 2, 3, and 6, from June 10, 2005 to October 8, 2007, as well as about 20 branch offices consisting of the above 8 branch offices from around 10, 2007, as well as the above 20 branch offices, are recruited to invite many and unspecified persons to pay a certain amount of money for each of the above branch offices, “If there is withstanding (e.g., payment of a certain amount of money for each of the above branch offices, 5% of the amount of his own investment attraction is paid as sales promotion expenses, sales promotion expenses, and sales promotion expenses, etc., 5% of the amount of his subordinate sales attraction is paid as sales promotion expenses, sales promotion expenses, etc., 1, 2, 3, 4, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 2, and 97, 2.

Defendant 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, and 27 in collusion with approximately 118 persons, including the above Defendants 1, 2, 3, and 11, receive money from each of the above employees by October 8, 207.

As a result, the Defendants conspired in sequence to use a multi-level marketing organization or a similar multi-level marketing organization only for financial transactions without trading goods.

【Summary of Additional Evidence】

1. Each testimony at the court of the first instance of the defendant 1, 4, and 6;

[List of Evidence of No. 128525]

1. Each statement made by each prosecutor of the suspect examination protocol against Defendant 1, Nonindicted 4, and Nonindicted 11

1. Statement made by the prosecution against the defendant 6;

1. Documents to be submitted by Defendant 1;

Application of Statutes

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

(a) Defendant 1, 2, 3, 5, 6

Each inclusive, Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 351, Article 347(1), and Article 30 of the Criminal Act (each habitual fraud, each selection of each limited term of imprisonment);

B. Defendants

Articles 6(1) and 3 of the Act on the Regulation of Conducting Fund-Raising Business without Permission, Article 30 of the Criminal Act (the point of performing fund-raising business without permission, each of which is imprisonment), Articles 52(1)3 and 23(2) of the Act on Door-to-Door Sales, Etc. (the point of each similar multi-level organization and each similar multi-level organization, each of which is imprisonment choice)

1. Aggravation for concurrent crimes;

(a) Defendant 1, 2, 3, 5, 6

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of each Criminal Code [Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)]

B. The remaining Defendants

Article 37 former part of Article 37, Article 38 (1) 2, and Article 50 (Aggravation of Punishment and Offense)

1. Discretionary mitigation;

Defendant 3, 5, and 6: Articles 53 and 55(1)3 of the Criminal Act (The following favorable circumstances among the reasons for sentencing)

1. Inclusion of days of detention in detention;

Defendant 1, 2, and 4: Article 57 of the Criminal Act

1. Suspension of execution;

Defendant 4, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 of the Criminal Act

1. Social service order;

Defendant 4, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27: the main sentence of Article 62-2(1) of the Criminal Act and Article 59(1) of the Probation, etc. Act

1. Confiscation;

Defendant 1 and 5: Article 48(1)1 of the Criminal Act

Judgment on the Defendants’ argument (the violation of the Door-to-Door Sales Act)

1. Defendants’ assertion

The gift certificates of this case are purchased at 9,000 member stores and distributed normally by the holder of the gift certificates of this case. The Blueman is a legal entity separate from the Eluter personal data and collected the gift certificates by independently using the member store. Thus, the Defendants did not engage in only a monetary transaction without the transaction of goods, etc., or only a monetary transaction under the precluding the transaction of goods, etc.

2. Provisions concerning punishment;

Article 23 (Prohibited Acts)

(2) No one shall engage in financial transactions without any transaction of goods, etc., or engage in financial transactions without any transaction of goods, etc. in pretending any transaction of goods, etc. using a multi-level marketing organization or any similar multi-level organization that is comprised of persons who have joined a multi-level sales organization by stages. In such cases, detailed details of the act of actually conducting

Article 52 (Penal Provisions)

(1) Any person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than five years or by a fine not exceeding 150 million won:

3. A person who has performed financial transaction without performing the transaction of goods, etc. in violation of Article 23 (2) or has performed only the financial transaction under the referring to the transaction of goods, etc.

Article 32-2 (Details of Acts of Performing only Money Transaction)

3. Selling gift certificates (referring to securities in which the issuer issues and sells a bearer certificate stating a certain amount of money or the quantity of goods, etc. to the issuer or a person designated by the issuer (hereafter referred to as the " issuer, etc." in this Article) without relation to its name or form, and it is possible for the holder to receive goods, etc. from the issuer, etc. according to the contents of the certificate by presenting, delivering, or using it by other means; hereafter the same shall apply in this Article) to multi-level marketing salespersons, etc. falling under any of the following items

(a) Repurchasing gift certificates sold by a distributor to multi-stage salesmen, etc. or having other persons purchase them;

(b) Paying bonuses, etc. to the sales performance of merchandise coupons, the actual substance of which is not deemed to be for the transaction of goods, etc. in light of the capability of the merchandise coupon issuer, etc. to supply goods, etc. to multi-stage salesmen, etc., supply performance of goods, etc

3. Determination

As seen earlier, the Central C&A of this case (hereinafter “C&A”), H&A’s personal details, and Blugsians are different companies under the law, but in substance, they are one company operated for the same purpose by Defendant 1, etc., and are conducting a series of processes, such as the issuance, sale, and redemption of H/C gift certificates. The Defendants sold the gift certificates of this case by the head of headquarters, department, full-time withstanding, or dr, which are similarly joined in each step-by-step, and allowed to purchase the gift certificates of this case through Blug within four to five months, and the amount of goods or services handled by the member shop of the gift certificates of this case is limited to the amount of the gift certificates issued, and the amount of the gift certificates issued until June 29, 2007 are equal to KRW 1.3,107,000,000,000 won, and the buyers are more than KRW 1.00,000,000,00 sales of the gift certificates, etc.

Therefore, the Defendants’ above assertion is without merit.

Reasons for sentencing

1. Common elements of sentencing against the Defendants

Defendant 1, 2, 3, 5, and 6 have established a Central C&A, and have a main role in the company or play a key role in the company, by inducing the victims to sell support allowances, cash redemption benefits, etc., and by inducing them to sell a large amount of more than KRW 960 billion. The victims reach several thousands, and each victim suffered a large amount of damage by reaching a large number of thousands or KRW 500,000,000, and the individual victims suffered a large amount of social growth, as well as the purchase of gift certificates of KRW 1,2,3,50,000,000, which can be less than the number of individual victims even if they purchase the gift certificates of this case, and the family is disappeared due to the purchase of the gift certificates of this case, and the result of the crime is significant, such as the occurrence of assets, etc.

In addition, the remaining Defendants except Defendant 1, 2, 3, 5, and 6 shall also receive the corresponding punishment on the ground that the nature of the crime is somewhat weak by educating subordinate salespersons in selling merchandise coupons by the representative director, chief of the headquarters, chief, full-time wither, branch office, etc., and encouraging the sale of merchandise coupons by encouraging the sale of merchandise coupons, etc., such as acts of receiving merchandise coupons which are prohibited under the Act on the Regulation of Temporary Collection of Goods and Door-to-Door Sales Act, etc.

However, it seems that a considerable portion of the amount of fraud through the sale of the gift certificates of this case seems to have been returned to the victims due to cash redemption or the payment of support allowances, and the actual amount of damage is much less than the amount of fraud. Any extent of the sale gift certificates of this case actually used for the purchase of goods and services, Defendant 2, 6, 7, 15, 16, and 18 agreed with the creditors' group composed of the victims and the creditors' group, and the creditors' group did not punish the above defendants. Some of the victims want the defendants' preference, and other victims want to take into account the opinions that there is no illegality after consultation with the attorney who is an expert in relation to the act of receiving the gift certificates of this case. Among the defendants, those who are in the position of salespersons have purchased the gift certificates of this case directly or recommended their neighboring family members or relatives, etc. to purchase the gift certificates of this case, and all of the defendants are divided into normal parts in this case.

Therefore, in determining each of the above Defendants’ punishments, the individual sentencing conditions against the Defendants, including the Defendants’ age, character and conduct, environment, the process of participation in the crime, and circumstances after the crime, based on which each of the above Defendants was jointly punished, should be taken into account. However, in particular, the sentence is imposed in accordance with each of the following circumstances, taking into account:

2. Defendant 1

Defendant 1 did not have any particular criminal record except for minor fines, but in light of the fact that Defendant 1 established and actually operated the Central C&A, E&A’s personal records, and Blugs, and led all of the crimes of this case, Defendant 1 is the largest, and thus, Defendant 1 is sentenced to the same punishment as the disposition, on the ground that it cannot hold strict responsibilities corresponding thereto.

3. Defendant 2, 3, 5, and 6

Defendant 2, along with Defendant 1, established the Central C&A, H&A’s personal records, and Blugs, established a sales organization, took charge of all merchandise coupon sales business and sales organization management, and received incentives of KRW 2.4 billion due to the sales of merchandise coupons in this case.

Defendant 3, along with Defendant 1, established a business plan from the time of the establishment of the above company, and the central C&A as the vice head of the headquarters, explained the compensation franchise to the head of the headquarters and took charge of merchandise coupon business, and carried out the business related to the franchise store, and did not receive incentives or allowances due to the sales of merchandise coupons in this case.

Defendant 5 has no record of punishment yet, and from July 1, 2006, Defendant 5 managed the sales organization of merchandise coupons as his personal director in the middle of the sales organization of merchandise coupons, taking into account the fact that he was in charge of the payment of merchandise coupons sales and the fact that he did not receive incentives or allowances due to the sales of merchandise coupons in this case.

Considering the fact that Defendant 6 was the first offender, the appointment director of Honman International from the time of the establishment of the above company, and the head of the headquarters from November 2006 in charge of the management of sales of merchandise coupons and its affiliated sales organization, and the fact that Defendant 6 received total of KRW 2.9 billion from the sales of merchandise coupons of this case.

In consideration of the above various factors of sentencing, each sentence shall be imposed on the Defendants, and the degree of the Defendants’ participation, the period of participation, the amount of profit, etc. shall be differentiated and determined as per the order.

4. Defendant 4, 14, 16, 20

Defendant 4 did not have any particular criminal record except for minor fines, and from the end of May 2005, Defendant 1 and Defendant 2 engaged in the sales of merchandise coupons from around the end of the business beginning to the end of May 2005, and from July 2006, Defendant 4 was appointed as the representative director of Honman International, a merchandise coupon sales company, and was in charge of support of merchandise coupon sales organization and company’s real estate investment-related business and participated in the act of receiving merchandise in this case under the order of Defendant 1.

Defendant 14, 16, and 20 are both primary offenders, and considering the fact that Defendant 14, 16, and 20 works as the head of the headquarters from the early stage of the act of receiving the same kind of money in this case and gains considerable profits by engaging in sales

Considering the above factors of sentencing, each suspended sentence shall be imposed on Defendant 4, 14, 16, and 20, but the community service order shall be imposed.

5. Defendant 7, 8, 9, 10, 11, 12, 13, 15, 17, 18, 19, 21, 22, 23, 24, 25, 26, 27;

Defendants: (a) were first offenders, or there was no particular criminal conviction except for minor fines; (b) Defendants 7, 10, 12, and 24, who are the chief of the headquarters of the personal data base, are in charge of the sales of merchandise coupons; (c) Defendants 8, 9, 11, 13, 15, 17, 18, 19, 21, 22, 23, 25, 26, 27, who are in charge of the sales of merchandise coupons, are the chief of the personal data base or the full-time with the personal data base; (d) each of them participated in the act of receiving merchandise coupons in each of the instant case; (e) the degree of their participation was relatively minor; and (e) the actual benefits acquired by the act of receiving merchandises of this case are considered to be significantly minor; and (e) the community service order shall be imposed; and (e) the order shall be determined differently in consideration of the role of duties or the degree of their participation in the instant act of receiving merchandises.

Parts of innocence

1. As to Defendant 1’s fraudulentation of the price for capital increase

A. Summary of this part of the facts charged

Around June 2006, the Defendant proposed that, in the Gangnam-gu Seoul Gangnam-gu vagaz International Office, the victim Defendant 6, 7, 15, 16, and 18, etc., “Hain-dong Co., Ltd., Ltd., Ltd., Ltd., Ltd., in order to increase its capital because there is a need to increase its capital because it is necessary to increase its capital when the company, which started as its capital of KRW 50 million, externally, is a company that started as its capital of KRW 50 million. The chief of the headquarters, each of which is KRW 50 million, and the chief of the division, will create a corporation with capital of KRW 50 million,00,000,000, and the head of the division, each of which is KRW 2

From the end of June 2006 to the end of August 9, 2006, the Defendant was transferred or delivered KRW 50 million from Defendant 6, Defendant 16, the victim’s KRW 50 million from Defendant 15, the victim’s KRW 20 million from Defendant 18, and KRW 25 million from the victim’s 7, respectively, in the office of “Hamman International Co., Ltd.” located in Gangnam-gu Seoul Metropolitan Government (hereinafter “Hamman International”) for the purpose of increasing personal resources. However, even if the Defendant received money from the victims for the purpose of capital increase, the Defendant had no intent to use it as capital increase. Accordingly, the Defendant received KRW 165 million from the victims by deceiving the victims.

B. Determination

(1) Defendant’s assertion

The defendant, from the end of June 2006 to the end of 2006, received the above money as the price for the capital increase from the head of the headquarters and the head of the department, such as the defendant 6, 7, 15, 16, and 18, but the above price for the capital increase is due to the fact that the head of the headquarters and the head of the division voluntarily participated in the company's policy regarding the capital increase. However, although the defendant attempted to increase the capital around early February 2007, it was because the Seoul Metropolitan Police Agency's metropolitan investigation commission started the investigation into the beginning of the search and seizure, and failed to increase the capital after the commencement of the investigation into the time.

(2) Review

The intent of the crime of defraudation, which is a subjective constituent element of fraud, shall be determined by comprehensively taking into account the objective circumstances, such as the financial power of the accused before and after the crime, the environment, the details and details of the crime, and the process of transaction execution, so long as the accused does not confession, etc. Meanwhile, the conviction should be based on evidence with probative value that leads to the conviction that the facts charged are true to the extent that there is no reasonable doubt. Therefore, if there is no such evidence, even if there is a suspicion of guilt against the accused, it is inevitable to determine it as the interest of the accused even if there is no such evidence, and the same applies to the recognition of the criminal intent, which is a subjective element of the crime of fraud (see, e.g., Supreme Court Decision

According to the records of this case, the defendant 14 had to maintain the above 70 billion won by taking account of the fact that the defendant 2 was using the above 70 billion won as the defendant's capital increase at the meeting of the head of the headquarters and the head of the division of the headquarters around June 2006. Thus, the head of the headquarters and the head of the division consented to the necessity of the capital increase. As the part of the defendant's full-time with the head of the headquarters and the head of the division at the time were excluded from the above 70 billion won, and there is no doubt that the defendant's testimony of the witness 14, the statement of the prosecutor's protocol of investigation of the defendant 11 (the evidence No. 128525, No. 2008, No. 128525) and there is no other evidence that the defendant had been found guilty of the above 100 million won amount of the capital increase from the defendant's 200,000 won.

2. As to Defendant 1’s fraudulentation of the name of attorney appointment fee

A. Summary of this part of the facts charged

Defendant 6,7,15,16, and 18 at the Seocho-gu Seoul High Court’s office on June 2007, the Defendant was subject to a large number of investigations in the Republic of Korea, including 180 persons who are to be examined as suspects from the present metropolitan investigation team, and is now punished by a fine. As such, the amount of 10 billion won which is entered at the attorney’s appointment fee shall be 10 billion won, in full, to a person who is to be investigated as suspects’ status. The remaining head of the headquarters and the head of the division may be sentenced to a fine of 30 billion won and not guilty verdict of 9.9.9 billion won. The amount of 6 billion won and the amount of 1.6 billion won and the amount of 1.6 billion won and the amount of 5 billion won and the amount of 1.6 billion won and the amount of 1.6 billion won and the market price of 1.6 billion won and the amount of 5 billion won and the amount of 1.6 billion won and the market price of 1.

However, even if the defendant received money from the victims for the appointment of a lawyer, he did not intend to use it as the cost for the appointment of a lawyer for the victims who were suffering from violation of the Act on the Regulation of Conducting

As a result, the Defendant, who habitually entices victims, was issued a 168 million won and 684.8 billion won ("62.8 million won" in the written application for changes in indictment submitted by March 26, 2009, was issued a nives gift certificate in an amount equivalent to the amount of 68 billion won and 684.8 billion won ("62.8 million won").

B. Determination

(1) Defendant’s assertion

When the investigation of the Seoul Central Police Agency metropolitan investigation is initiated and the investigation is long-term, the defendant claims that the head of the headquarters and the head of the headquarters and the head of the division who manage the salesperson would collect the fees of the lawyer and appoint the lawyer at the company level rather than appoint the lawyer.

(2) Review

In light of the above legal principles regarding the crime of fraud and the records of this case, i.e., the defendant appointed an attorney-at-law to be investigated as a suspect at the time of the commencement of the investigation into the above crime of fraud, i.e., the defendant was required to collect money from the company as well as the head of the headquarters and the head of the division after meeting 10% of the criminal proceeds. The defendant appointed an attorney-at-law from 60 million won and 68 billion won in cash received from 168,48,00 won, including the head of the headquarters and the head of the district court 1.7 billion won in total, and issued 1.7 billion won in cash and 1.7 billion won in gift certificates to 6 billion won in consideration of the fact that the defendant was not guilty as well as 1.7 billion won in cash from 6 billion won in case of the above crime of fraud. However, the defendant was not guilty since the commencement of the investigation into this case, and the defendant could not actually use the defendant's testimony at 14.4 billion won in Seoul.

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

[Attachment Applicant List and Community Service Order Omission]

Judges Cho Jae-jin (Presiding Judge)

심급 사건

-서울중앙지방법원 2008.11.20.선고 2007고합1233,2008고합241(병합)

서울고등법원 2009.5.13.선고 2008노3261,2009초기27,92,93,99,101∼115,118∼127,129∼149,152∼166,169∼197,199∼273,275∼329,335

-대법원 2009.9.10.선고 2009도5075

원심판결

-서울중앙지방법원 2008. 11. 20. 선고 2007고합1233 판결

본문참조판례

-2009초기27, 92, 93, 99, 101∼115, 118∼127, 129∼149, 152∼166, 169∼197, 199∼273, 275∼328호

-2009초기329, 335호