Defendant

The letter-type (prosecution), the last sentence (public trial)

Attorney Kang Han-soo et al., Counsel for the defendant-appellant

A defendant shall be punished by imprisonment for not less than two years and six months.

Of the facts charged in the instant case, all of the charges are acquitted.

"2016 Highest 7419"

1. Fraud;

On July 24, 2012, the Defendant, as a dentist, entered into a contract with Nonindicted 3, the victim Nonindicted 3, who is a university engine, to transfer the “○○○○○○○” located on the second floor of the Gangnam-gu Seoul ( Address 1 omitted), to KRW 500 million, and on July 25, 2012, the following day, the Defendant: “Around July 25, 2012, the Defendant shall make payments to the victim within two to three months of the acquisition payment date, with the payment date sufficient and the funds stable”; and (b) written a notarial deed of a monetary loan for consumption with the content that the victim would pay KRW 310 million to the victim by April 25, 2013; and around August 9, 2012, prepared a loan certificate with the content that the victim would pay the remainder of KRW 190 million by November 9, 2013.

After that, on November 27, 2012, the defendant's creditors filed an application with the Seoul Central District Court to order the seizure and collection of claim amounting to KRW 310 million against the above borrowed money loan No. 310,000,000,000 with the money loan No. 310,000 won with the above borrowed money No. 300,000 won with the above borrowed money No. 30,000,000 won with the above borrowed money No. 30,000,000 won with the above borrowed money No. 30,000,000 won with the above borrowed money No. 30,000,000 won with the above borrowed money No. 9,000,000 won with the above borrowed money No. 10,000,000 won with the above borrowed money No. 30,000,000 won with the above borrowed money No. 30,000,000 won with the above borrowed money No.

In such circumstances, the Defendant concluded a contract for transfer or takeover of the content of the above ○○○○○○○○○○○○ in △△ building and the transfer of the substance to the victim, on February 28, 2013, at a place where it is not known, and the Defendant concluded a contract on the transfer or takeover of the content of the above ○○○○○○○○○○ and the delivery of the debt, upon cancelling the execution of the seizure and collection order, and withdrawing

However, the Defendant had no intention or ability to transfer the said ○○○○ and the Bocomon as promised to the victim, even if the Defendant cancelled the seizure and collection order and withdraws the application for the payment order, on the ground that it was difficult for the Defendant to make the payment of the rent for ○○ Building at the time.

Nevertheless, the Defendant, by deceiving the victim as such, and requiring the victim to cancel the execution of the above collection claim seizure and collection order from February 28, 2013 to March 7, 2013, thereby acquiring financial benefits equivalent to the value of security of the seizure and collection order, in which the victim had suspended the repayment of the above collection claim amounting to KRW 310 million.

"2016 Highest 4214"

On November 2013, when the Defendant was preparing to open the “○○○○○○○○○○○○○○○,” which is specialized in the surgery of bad faith and the surgery of an Absculptivity, around December 3, 2013, when opening the instant member of the Assembly, Nonindicted 7, known as a dead sexual intercourse and intention, is expected to have monthly sales at KRW 200 million, and was invested KRW 150 million from Nonindicted 8 under the pretext of investment for the establishment of ○○○○○○○○○○○○○○○○.

After that, on February 25, 2014, the Defendant requested the victim's office located in Seocho-gu Seoul ( Address 4 omitted) to make an additional investment of KRW 350 million to the victim, and requested 00 million to open the ○○○○○○○○○, but the size of the sales has decreased due to the decline in its size, and thus the hospital further leases the hospital and expand its members. On the other hand, the sum of the sales of the ○○○○○ and the ○○○○○○○○○ in which the Defendant was in operation is anticipated to reach KRW 60 million. As such, the Defendant distributed the profits of KRW 21 million each month from the sales amount, and said, the principal would be repaid in installments over seven years with the interest of KRW 12% per annum.

However, at the time of the Defendant’s request for investment more than twice, there was little possibility that Nonindicted 7’s entry of the capital in the instant case would not have been able to reach KRW 600 million in the aggregate of the monthly sales of KRW 200 million or KRW 200 million and KRW 00 million in the monthly sales of KRW 00 million in the instant member, and on July 29, 2012, the Defendant acquired the capital in KRW 500 million from Nonindicted 3 from Nonindicted 3, but the Defendant did not pay the capital in full, and thus, on June 26, 2013, the dispute between Nonindicted 3 and Nonindicted 1 was underway. Since the Defendant was unable to pay the capital in full after borrowing KRW 200 million from Nonindicted 1 to Nonindicted 1 on July 8, 2013, the Defendant agreed to conduct business with △△△△△△△△△△△△△△△△, which was managed by the Defendant by converting the borrowed capital into the capital in proportion to the Defendant’s nonperformance of obligation.

On February 28, 2014, the Defendant and the victim agreed to receive additional investments of KRW 350,000,000 from the Defendant and the victim, and paid KRW 21,000,000 per annum to the victim as interest and monthly dividends of KRW 12% per annum. On the other hand, with respect to KRW 50,000,000 per annum from the date of investment to the end of every three years, the amount of KRW 50,000 per month shall be paid in six months from the date of investment, and the business and loan agreement (hereinafter referred to as the “instant agreement”) shall be prepared to pay KRW 62,50,00 per annum by the end of every seven years from the date of investment.

The victim, as stated in the instant agreement, received from the Defendant the profit of KRW 21 million each month and interest of KRW 12% per annum as above, as well as in belief that the principal may be repaid in installments over seven years, as well as in belief that the monthly sales of KRW 00 million and KRW 20 million per month from Nonindicted 7’s entry into the office of Nonindicted 7, i.e., KRW 180 million and KRW 150 million, respectively, were delivered to the Defendant on February 28, 2014, and wired KRW 150 million to the account under the name of the Defendant on March 5, 2013.

Accordingly, the defendant deceivings the victim and 350 million won in total.

"2016 Highest 5153"

1. Fraud against the victim Nonindicted 9

Around November 2013, the Defendant made a false statement to the effect that: (a) the victim Nonindicted 9 was able to withdraw from China through the establishment of “mscopic person for medical services” (mscopic person); (b) if the Defendant borrowed KRW 100 million, the Defendant made a false statement to the effect that the Defendant would pay 60% of the equity interest of mscopic person and 2% of the monthly interest and the principal payment.

However, in fact, the Defendant was liable for a financial institution worth KRW 400 million at the time, and the Defendant’s bank deposit claims and credit card sales claims were provisionally seized with respect to personal debt KRW 310 million. With respect to the goods payment obligations against Nonindicted Co. 5, the Defendant’s claim for return of the lease deposit was provisionally seized with respect to KRW 130 million, and Nonindicted Co. 1 did not have any intent or ability to repay the claim even if the Defendant received KRW 100 million from the victim, such as Non-Indicted. 1’s failure to repay the obligation to Nonindicted Co. 1.

피고인은 이에 속은 피해자로부터 2014. 1. 6. 서울 강남구 ▷▷동 ♤♤빌딩 3층에서 현금 1억 원을 교부받아 이를 편취하였다.

2. Fraud against the victim Nonindicted 9 and Nonindicted 10

around July 2014, the Defendant stated to the victims that “○○○○○○ and operating funds need to be loaned KRW 200 million, 4% per month and the principal shall be repaid if the Defendant borrowed KRW 200 million.”

However, as seen in paragraph (1) at the time, the Defendant did not have any intent or ability to repay the said money even if he received the money from the victims (or at the time when he did so, he additionally borrowed KRW 350 million from Nonindicted 8 to KRW 350 million).

Nevertheless, on August 14, 2014, the Defendant obtained KRW 50 million from the victim Nonindicted 9, and KRW 150 million from the victim Nonindicted 10, and fraudulently acquired it.

3. Nullity of an indication on duties.

The Defendant owned 14 points of goods on the market price and 14 points in the Defendant’s house located in Gangnam-gu Seoul ( Address 5 omitted), Gangnam-gu (GaTEC), Gangnam-gu, Seoul (hereinafter “STEC”).

On October 21, 2013, the enforcement officer, who belongs to the Seoul Central District Court, seized the above goods at the defendant's home and attached a seizure mark on October 21, 2013 upon the creditor's delegation of the execution by non-indicted 11 to non-indicted 3. However, on January 2015, the defendant transferred the above goods to the ○○ Hospital's warehouse located at the ○○ Hospital located at the south of Gyeonggi-do.

[Criminal facts of Decree No. 2016 Highest 7419]

1. The witness Nonindicted 3’s legal statement

1. Partial statement of the prosecutor's protocol of examination of the accused;

1. Partial statement of the police interrogation protocol of the accused;

1. Each police interrogation protocol against Nonindicted 1 and Nonindicted 2

1. The police statement of Nonindicted 3

1. A written contract on takeover of business, notarial deed, additional written agreement on repayment of debts, and protocol of settlement of complaint telephone;

1. A copy of each order of seizure and collection, and a copy of each judgment;

[Criminal facts of 2016 Highest 4214]

1. Each legal statement of the witness, Nonindicted 8, 12, and 13

1. Partial statement of the prosecutor's protocol of examination of the accused;

1. The prosecutor’s statement of Nonindicted 8

1. Partial statement of the police interrogation protocol of the accused;

1. Each police protocol on Nonindicted 12 and Nonindicted 8

1. A statement of reason for appeal;

1. Letters of decisions and copies of written judgments;

[Criminal facts of Decree No. 2016 Highest 5153]

1. The defendant's legal statement (limited to the invalidation of official indication);

1. The witness Nonindicted 9’s statement in court

1. Partial statement of the police interrogation protocol of the accused;

1. Each police statement made against Nonindicted 9 and Nonindicted 3

1. Report of attachment of corporeal movables and report of additional attachment;

1. Each investigation report;

1. Article applicable to criminal facts;

Articles 347, Paragraph 1, and 140, Paragraph 1, and Paragraph 1, Article 140 of each Criminal Code (a point of invalidation of indication in the line of duty)

1. Selection of punishment;

Each Imprisonment Selection

1. Aggravation of concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

In the process of taking over and operating a large scale of dental services, each of the crimes of this case appears to have been committed by the defendant, the total amount of money or financial gains acquired by the defendant reaches KRW 650 million, the victims want to punish the defendant, and the victim seems to have been compensated for some damages on the one hand, the defendant has no record of having been sentenced to imprisonment without prison labor or heavier punishment, the defendant has been sentenced to imprisonment for two years at the Seoul Central District Court on June 23, 2016, and is currently serving in an appellate trial after being sentenced to punishment for fraud, etc., and is now serving in the appellate trial, taking into account the sentencing conditions such as the defendant's age, character and behavior, character and environment, intelligence and environment, relationship with victims, motive, means and consequence of the crime, and the circumstances after the crime.

1. Summary of this part of the facts charged

A medical person shall not establish or operate a medical institution under the name of another medical person, and shall not establish or operate two or more medical institutions under any pretext.

From June 12, 2012 to June 12, 2012, the Defendant: (a) registered as a business operator of “○○○ dental clinic” on the second floor of the building in Gangnam-gu, Seoul; and (b) established and operated a dental hospital from June 12, 2013 to December 24, 2013; (c) established and operated the “△△△△△△△△△△△△△” on the second floor of the building in Gangnam-gu, Seoul ( Address 3 omitted); and (d) established and operated the “△△△△△△△△△△△” on the second floor of the △△△△△△△△△△△△△, located in the name of the business operator, and located in the fourth floor of the building in the above △△△△△△△△△, supra, as Nonindicted

2. The defendant and his defense counsel's assertion

Although the defendant agreed to operate each dental plant in the form of the business with Nonindicted 1 and Nonindicted 2, since he actually did not directly engage in or directly perform the medical business, the defendant cannot be deemed to have opened a medical institution overlappingly.

3. Determination

The purport of Article 33(8) of the former Medical Service Act (amended by Act No. 13658, Dec. 29, 2015) is to limit the number of medical institutions that medical personnel can establish and operate to one, and to protect and promote the health of the people by setting a temporary limit in order for medical personnel who establish a medical institution to concentrate themselves on medical practice conducted at a medical institution established on the basis of their own license.

Therefore, the fact that a medical person who already establishes and operates a medical institution under his/her own name employs another medical person, establishes a new medical institution under his/her name, directly employs his/her employees, and pays wages to him/her, and takes profits from the business of the newly established medical institution, cannot be deemed to have established a separate medical institution. However, in cases where he/she directly engages in the operation of the institution, and he/she directly provides medical services or engages in a non-medical act under his/her own supervision, the above medical person already established and operated a medical institution under his/her own name is deemed to have established a duplicate medical institution. Furthermore, in cases where a medical person who already established and operates a medical institution under his/her own name takes over the existing medical institution under his/her own name and takes over another medical person’s license and borrowed the previous medical person’s license, and subsequently excluded the previous founder from the management of facilities and human resources of the medical institution, the implementation of the medical business, the raising of funds needed, and the transfer of the operational performance of the medical institution, etc., and the previous medical institution is also established and operated under his/her name.

According to the evidence duly adopted and examined by this court, Nonindicted 1, a dentist, established “△△△△△△△” on the second floor of the Gangnam-gu Seoul Metropolitan Government ( Address 3 omitted), and the first floor of the building located in the △△△△△△△△ building in Gangnam-gu, Seoul, from June 12, 2013 to December 24, 2013; and around April 16, 2014, Nonindicted 2, a dentist, established “△△△△△△△” on the fourth floor of the building in the △△△△△△ City.

In an investigation agency, Nonindicted 1 stated that “The △△△△△△△△△ Department” was closed on December 24, 2013 due to the following reasons: (a) under a contract under the agreement on equity investment and joint management with the Defendant on investment of 200 million won; (b) the Defendant invested in 200 million won; (c) the Defendant jointly operated a method in charge of accounting and marketing; (d) the Defendant paid KRW 20 million monthly remuneration; and (e) the Defendant closed down his business on December 24, 2013; and (e) in light of these statements, it is difficult to view that the Defendant leased Nonindicted 1 name to have opened and operated the △△△△△△△△△△△△△△△△△△△△△△△△△ Department, and there is no other evidence to support the Defendant. Furthermore, there is no material to deem that the Defendant performed a medical practice directly at

In addition, Non-Indicted 2 stated in the investigative agency that “The defendant prepared and operated the agreement on the business partnership and share agreement with the defendant on March 14, 2014, and opened and operated the "Masan Department" on April 15, 2014. Although the defendant had a 30% stake, he entered into a contract under the condition that he is provided with free treatment at the post-management level of the patient's pre-existing patient, and only recognized the above shares due to the problem of offsetting equipment, etc., and there is no part in the operation of the defendant. When the pre-existing patient's free treatment is completed after a considerable period of time, he/she is allowed to operate the contract independently with the defendant on January 20, 2015, and he/she became to operate the contract independently with the defendant as of January 20, 2015. In light of such statement contents, it is difficult to view that the defendant had established and operated the "Masan Department" with the defendant lent his/her name. Furthermore, there is no evidence to deem that the defendant directly provided medical treatment by the defendant.

4. Conclusion

If so, this part of the facts charged constitute a case where there is no proof of crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

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

Judges B. For judges

Note 1) Although the facts charged are “the first floor above the ground,” it is apparent that it is a clerical error of “the first floor above the ground,” according to the description of the attachment and collection order of the Seoul Central District Court 2012TTTT 2012TT 37198.