(영문) 서울중앙지방법원 2018.12.12. 선고 2018고합455 판결

C Around January 2014, a person who established a committee for the development of tourist destinations (hereinafter referred to as "D") and promoted a project for the development of a tourist destination, such as theme park, by establishing a plan for the development of a tourist destination in Vietnam. Around September 2014, the Defendant leased a hotel in the above D, together with C, around September 2014, and promoted a project for developing the surrounding area as a tourist destination and attracting Korean tourists.

Around January 2014, C, with the introduction of F, known to F, was the same as F, and the victim B, who was the dynamics of F, was in the process of performing theme park development project in H in H in H in H in H in H in H in H in H in H in H in H in H in H in P, and proposed to make an investment in theme park development project promoted by him, and the victim was to make an investment in theme park development project, and at the time of the defect that the victim was to make an investment in the project of C in the project of Empha, the above D was established in order to promote theme park development project in Vietnam in Empha City. However, C had no property, and D had difficulty in implementing theme park development project due to no funds, but the victim transferred approximately KRW 350 million from January 2014 to August 2014, to C was actually developing the project under the pretext of investment, and most of the projects did not have been developed under the pretext of development.

On September 2014, the Defendant, as the proposal of C, was employed as the representative of the travel business part by combining C with the above D, and the Defendant and C, as a result, leased a hotel in Vietnam with the victim, and remodeled the surrounding site, and explained the “E development project plan, such as attracting Korean tourists, by leasing the restaurant and burging the surrounding site on the leased site, and explaining the “E development project plan, such as attracting Korean tourists,” with the victim’s money in the name of investment.

(b) Criminal facts;

According to the above public offering, the Defendant and C explained the victim’s program of E development in Vietnam on September 10, 2014, and suggested the victim’s investment in it, as well as suggesting the investment in it, and try to remodel by leasing a J hotel in E, and further lease the surrounding site to a restaurant and to attract Korean tourists who are in Korea. In addition, they want to make an investment.” However, even if the victim received an investment from the victim, it was thought that it was used in another place irrelevant to the business, and D did not have any intent or ability to continue the business because it did not have any particular funds or revenues. After that, the Defendant sent the victim’s account number to the Defendant’s pro-Japanese company, and then received KRW 2,205,00 from the victim to the above company account in the name of K bank and received KRW 2,50,00 from the same day.

In addition, during the period from June 26, 2015 to June 26, 2015, both the Defendant and C deceptiond the victim in the same manner on six occasions as shown in the attached Table of Crimes List (1) and were transferred to E Development Project (hereinafter referred to as the “instant Project”).

Accordingly, the defendant, in collusion with C, received property from the victim by deceiving the victim.

2. Violation of the Act on Special Measures for the Control of Public Health Crimes (Unlawful Medical Service Providers) is a person operating D as above; the Defendant is a person in charge of tourism business in D; L is a person who has no capacity to obtain a doctor as a pastor; M and N are qualified as an oriental medical doctor.

No person, other than a medical person, shall perform medical practice, and no medical person shall perform any medical practice, other than those licensed.

Nevertheless, the Defendant and C, L, M, and N wanted to open medical facilities in apartment buildings in Vietnam, and intended to attract and treat domestic cancer patients; C is in charge of installing and operating unauthorized medical facilities; L is in charge of supplying illegal drugs created by mixing with prescription drugs, etc. while leading general patients, including cancer patients, etc. at home; M and N is in charge of treating patients under the above L’s guidance; the Defendant is in charge of checking the patient’s condition while managing the inventory of drugs and reports it to L; and if L prescribes, he is willing to perform the duty of transmitting the prescription to M and N.

According to the above public offering, the Defendant and C, L, etc. conducted medical practice by treating Q, which is a patient at home, in an illegal medical facility established in the instant apartment P in Vietnam from January 3, 2017 to February 13, 2017 (hereinafter referred to as “the instant medical facility”); treating Q, which is a patient at home; administering a 'AMApus’, which is a blood-related injection, and a splus, which is a prescription prescription, performed medical practice; and transferred KRW 83,60,000 from Q to the Korean bank account (S) in the name of R, the mother of M, who is a prescription prescription.

The Defendant, L, C, etc. provided five cancer patients (hereinafter referred to as “patients of this case”) as shown in the attached crime sight table (2) between December 2016 and early March 2017, including the above Q Q, and received a total of KRW 271,30,00 from them as medical expenses. Accordingly, the Defendant was engaged in medical practice in collusion with L, C, etc. for the purpose of profit-making in collusion with the Defendant and his defense counsel’s assertion.

1. When the instant project is well promoted by C, the Defendant only helps to promote the instant project by receiving a proposal that he will take charge of the travel-related affairs, and did not encourage the victim B to make an investment, or by deceiving the victim to acquire the investment money.

2. The Defendant believed that L, M, and N were eligible to engage in legitimate medical practice, and during that process, the Defendant merely harming interpretation or assist in incidental work, and did not intend to either engage in any unlawful medical practice with L, M, N, C, or receive money under the pretext of medical expenses.

Judgment

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

In full view of the following circumstances recognized by the records, the evidence alone submitted by the prosecutor is insufficient to recognize the fact that the defendant conspireds with C to deception the victim and acquired the investment money as shown in the annexed crime list (1), and there is no other evidence to acknowledge it.

A. Around August 2014, the victim received a proposal from C to make an investment in the instant business, and thereafter thereafter, the victim was introduced by C as a person in charge of the tourism business (9 pages, 16 pages), and ① before August 2014, the victim transferred the investment money after receiving a proposal from C to make an investment in theme park business, gas station business, etc. in Vietnam. The defendant did not participate in the investment recommendation to the victim. ② The defendant's role related to the instant business is premised on the successful progress of the instant business as a role of soliciting tourists after being equipped with infrastructure, such as the lease of a hotel in E and construction of a hotel around a hotel, etc.

B. On September 2014, after receiving the investment proposal for the instant project from C, the victim visited Vietnam, a project site of the instant project, and even thereafter, most of the explanation of the instant project was made by C, and thereafter, C through C, did not have any specific dialogue on the instant project (Evidence No. 1, No. 395, Examination Record of Witnesses). Moreover, the amount transferred by the victim to C, including the investment funds for the instant project, was managed by D’s employees from January 2014 to February 2, 2015. From February 2, 2015, the Defendant was also in charge of U.S. witness examination, as well as the management of the investment funds for the instant project, as well as the management of the authorization and permission, documents, etc. (Evidence No. 391, No. 395, Examination Record of Witnesses).

D. Although the Defendant informed the victim of his domestic account under the name of K on December 10, 2014, and the victim transferred 2,2050,000 won to the above account, the Defendant stated that he received USD 20,000 from K from Vietnam immediately after the said investment deposit was transferred and delivered D’s funds management (the steam record 1:379 pages). The statement of the detailed statement of D deposit withdrawal prepared by T corresponds to the Defendant’s above statement (Evidence 115 No. 115), ② The Defendant informed the victim of the funds to transfer the funds for the instant business to the victim on December 10, 2014; ③ the victim transferred the funds to the domestic account by the victim on December 10, 2014 other than the Defendant’s account, and the victim transferred the funds to the above domestic account under the name of 20,000,0000 from 10,0000,000) to 3.4,000,000.

E. Meanwhile, in the process of the instant project, the Defendant merely received some of the transportation expenses, oil supply expenses, etc. while carrying out simple business activities, such as driving of vehicles and local guidance on Vietnam, and does not seem to have any circumstance where the victim and his family members, who are investors, enter Vietnam, receive some of the transportation expenses and oil supply expenses, etc. In addition, the Defendant did not appear to have received the victim’s investment

2. Determination on the violation of the Act on Special Measures for the Control of Public Health Crimes

A. Relevant legal principles

Joint principal offender under Article 30 of the Criminal Code is a joint principal offender under Article 30 of the Criminal Code with two or more joint principal offenders.

In order to establish a crime, it is necessary to carry out a crime through functional control by the co-processing intent, which is a subjective element, and the co-processing intent should be integrated to carry out a specific criminal act with a common intent, and the content of the co-processing’s transfer of one’s own intent by using another’s act (see, e.g., Supreme Court Decision 2001Do4792, Nov. 9, 2001).

B. Specific determination

Based on the above legal principles, the following circumstances are as follows: ① C and L temporarily operated the instant medical facility from June 2016, prior to the commencement of the medical facility with the permission of the Vietnamese Government. From around June 1, 2016, L had been provided free of charge at the promotional point of Woowon, but from December 2016, L began to provide medical treatment at the instant medical facility for the purpose of attracting cancer patients. ② However, the Defendant did not directly participate in the installation and operation of the instant medical facility, attraction and treatment of cancer patients, supply of illegal medicine, etc. to Vietnam, and it is difficult for the Prosecutor to take charge of providing equipment management by delivering the treatment content of nurses to LA et al. to LA patients, and it is hard for the Prosecutor to readily conclude that the Defendant did not appear to have been in charge of providing medical treatment for the purpose of treating the instant medical facility, and there is no other evidence that the Defendant did not appear to have been in charge of providing medical treatment for the purpose of supporting the Defendant in the instant medical facility.

3. Conclusion

Thus, since each of the facts charged in this case constitutes a case where there is no proof of crime, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act and Article 58(2) of the Criminal Act.

The summary of the judgment of innocence shall be announced publicly, and the application for compensation by the applicant for compensation shall be dismissed in accordance with Article 32 (1) 2 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings.