2014No195 A. Violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission

(c) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes;

(Partially Accepted Crime: Fraud)

(c) Fraud (name of partial change: Specific Economic Crimes Aggravated Punishment;

Violation of the Act on the Punishment, etc. (Fraud), Partially Recognized Crime

: Violation of the Aggravated Punishment Act

(Fraud)

(d) Forgery of private documents;

(e) Events of a falsified investigation document;

(f) False entry in a passport;

(g) Fraudulent entry and passport events;

(h) Violation of the Passport Act;

2014 early 16 Application for a compensation order

Long-AA (59********), non-service workers

Both parties

Maximum lehee (prosecutions), users (public trial)

Attorney Im Chang-soo

Attorney Han Han-ju

KimB ( Address: 470-4 101, Gangdong-gu, Seoul Metropolitan Government)

Daejeon District Court Decision 2011Gohap578 (Joint) and 2013Gohap decided April 11, 2014

146(Joint), 2013Gohap424(Joint), Judgment

October 13, 2014

1. Of the judgment of the court below, the part of the guilty and the part of the non-guilty (the part of the judgment of the court below is the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), victim***,**,**,**,**,**,**,**,**,**,**,**,**,***,*****, of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Death) on the Aggravated Punishment, etc. of Specific Economic Crimes (the violation of the Act on the Regulation on the Aggravated Punishment, etc. of Specific Economic Crimes) against the victim).**

2. The defendant shall be punished by imprisonment for eight years;

3. Of the facts charged in the instant case, the facts charged against the victims listed in the attached list No. 1 of the victim's list in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and the fraud against the victims listed in the attached list No.

4. Of the acquittal portion of the lower judgment, the Prosecutor’s appeal regarding the fraud against the victim*** is dismissed.

5. The application by the applicant for compensation shall be dismissed.

1. Summary of grounds for appeal;

A. Defendant

(1) misunderstanding of facts or misapprehension of legal principles

(A) Fraud against thisCC 1)

The Defendant did not have concluded a sales contract to purchase the instant forest land in KRW 10 billion from thisCC. However, if the Defendant used the said real estate for the Defendant’s business and the Defendant’s business is well-grounded, the amount of KRW 10 billion, which is the value of the said real estate, would have been tried later. The Defendant did not acquire real estate from the victim by deceiving the victim by concluding that the Defendant would pay KRW 10 billion to the victim the purchase price. Rather, rather, the Defendant acquired the real estate of KRW 40 billion, which was only about KRW 10 billion, from the Defendant without any conditions, under the pretext that the Defendant would have acquired the ownership of the real estate without any conditions as if the Defendant was deemed to have acquired the ownership of KRW 10 billion

(B) Violation of the Act on the Regulation of Conducting Fund-Raising Activities with Respect to Many Investors, and violation of the Act on the Punishment, etc. of Fraud and Specific Economic Crimes (Fraud) 2

1) As to the calculation of the amount of fraud or revenue

From among the persons stated in the facts of a crime that the court below found guilty, those who did not state the fact of damage in an investigative agency or in a court does not commit deception or act of receiving investments by deception. Fraud is established for each victim. However, it cannot be recognized as a victim of a crime of fraud by ratification of the transaction details in the account merely on the ground that there is evidence of conviction against some of the traders. Therefore, the part of the part that the court below found guilty should be excluded from the facts of a crime.

2) Regarding the application of the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

The court below judged that the amount of fraud is 500 million won or more, and judged as the victim of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), since the value of the property and property gains is part of the elements of crime organization, and the value of the property acquired through deception should be strictly and carefully calculated, but it is improper for the court below to confirm it as investment funds and determine it as the amount of fraud of fraud solely on the ground that there is the details of deposit to Defendant's account.

3) As to overlapping the fact of damage

A) With respect to GimD, No. 69-73 of [Attachment 1] Crime List No. 69-73 was deposited in the name of KimD, because it was found that the transaction date, amount, and deposit account were non-influened, and it was identical to the above crime list No. 1004-108, which is the fact of damage under XX, the victim KimD. Thus, from the criminal facts against the victim KimD, the above annual crime No. 69-73 should be excluded.

B) In view of the victim Ge-E, No. 372 per annum of the crime day table No. 1 is deemed to have been deposited to the KimEF, and the relevant amount is lent to the 00F. Moreover, even if the 00 KimE’s act of transferring the 00F’s account to the Defendant’s account is the act of the 00 FF to deliver it to the Defendant’s account, the details deposited in the name of the 00F was overlapped with the above crime day No. 582 per annum, which is the fact of damage of the 00F in light of the transaction date, the amount invested, and the deposit account details, so the above 372 annually out of the criminal facts of the victim KimE should be excluded.

4) As to the part where the fact of damage is unclear

[Attachment 1] List 1292, No. 1392, No. 1392, No. 1292, and No. 1392, against the victim assistanceG, are the fact that the victim assistanceG deposited to each gramJ. However, there is no evidence of the fact that the DoJ delivered each of the facts to the defendant. Thus, the defendant's crime should be excluded from the facts of the crime.

(2) Unreasonable sentencing

The sentencing of the lower court (11 years of imprisonment) is too unreasonable.

(b) A prosecutor;

(1) misunderstanding of facts or misapprehension of legal principles

With regard to the violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission for Many Investors and the violation of the Act on the Punishment, etc. of Specific Economic Crimes (Fraud)

(A) The portion not guilty of some victims

According to the evidence submitted by the prosecutor, this part of the facts charged is found guilty.

(B) The non-guilty part of the victim Z;

검사가 제출한 증거에 의하면, 피해자 장ZZ가 2006. 4. 28. 피고인의 공범 헤 QQ에게 현금 1억 4,000만 원을 투자금으로 교부한 사실이 인정되므로, 허QQ이 그 중 1억 원만을 피고인에게 송금하였더라도 1억 4,000만 원 전부에 대한 사기죄가 성립한 다.

(2) Unreasonable sentencing

The sentencing of the court below is unfair because it is too unhued.

2. Judgment on the grounds for appeal by mistake of facts or misapprehension of legal principles

A. Fraud on the Victim CC

(1) Summary of the facts charged

From May 2005 in Daejeon-gu and Daejeon-gu, the Defendant was operating as the representative director of the SO New Industries Development Co., Ltd. (hereinafter referred to as the "SO"), a similar recipient company, from May 2005, and at the same time, the Defendant was running the SOE Co., Ltd. (hereinafter referred to as the "SOE"), the real estate-invested company (hereinafter referred to as the "SOE"), the Internet Open Market Co., Ltd. (hereinafter referred to as the "SHP"), *SOP, SH*, the company that is a US exchange student, and the gold Co., Ltd. (hereinafter referred to as the "gold"), which is a charnel company.

In August 205, the Defendant received KRW 70 billion from 16 billion to 3,000,000,000 from 5,000,000,000,000,000,000 from 70,000,000,000,000,000,000,000,00,000,000,000,000,000,000,000,000,000,000,000,000 70,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00,00,00,00.

However, the Defendant did not have been making a bank loan on his own land as collateral, and there was no intention or ability to receive a loan as collateral and pay ten billion won to the victim. However, the Defendant was thought to have been making an investment by providing the said land as collateral to investors.

Nevertheless, the Defendant, by deceiving the victim as above, obtained all necessary documents before the right to own land from the victim, and completed the registration of transfer of ownership of the forest of this case on the same day, and acquired the forest of this case in the amounting to 409,720,200 won at the market price owned by the victim.

(2) The judgment of the court below

The lower court found the Defendant guilty of this part of the facts charged on the following grounds.

(A) Whether the sales contract for the instant forest was concluded

In light of the following reasoning established by the evidence duly adopted and examined by the lower court, it is reasonable to view that the Defendant and the victim entered into a sales contract with the purchase price of KRW 10 billion with respect to the forest land of this case.

① The VictimCC consistently stated that the Defendant would purchase the forest land of this case, including approximately 463,00,000 forest land in the victim’s name, from the investigative agency to the instant investigation agency, at KRW 20,000,000, in a lump sum, and thereafter, the Defendant would purchase the forest land of this case in the amount equivalent to half of the total forest area at KRW 10 billion and complete the registration of ownership transfer thereafter.

② The victim’s wife KimK also made a statement in compliance with the victim’s statement on the fact that the Defendant sold the forest of this case, including the forest of this case, at KRW 20 billion. The victim’s wife KimK also made a statement to the same effect. The victim’s right to remove, regulate, and Kim Jong-Un also made a statement to the same effect.

③ After completing the registration of transfer of ownership on the instant forest land in the Defendant’s future, the Defendant provided the investors with the said forest land as security, and the market price of the instant forest was KRW 15 billion (2012 Gohaphap578, 240), and Park PP, which was a major investment solicitation scheme, as a new industry, said that the market price of the instant forest in the instant case is at least eight billion won for investors (2 right 236 investigation records, No. 2012 Gohap578, 2012).

④ The injured couple had wanted to sell the instant forest land before the Plaintiff met. Since then, the Defendant, such as the injured couple’s mother time, etc., was frighten between the injured party and the injured party. Even if the injured party was to utilize the instant forest land as the Defendant’s business, it is difficult in light of the empirical rule that the injured party completed the registration of transfer of ownership in the future and finally settled the instant forest land by making it available for the Defendant’s business.

(B) Whether the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and fraud are established

In this case, as long as the victim completed the registration of ownership transfer of the forest of this case with respect to the forest of this case by deceiving the victim to purchase the forest of this case in KRW 10 billion, the crime of fraud concerning the forest of this case is established, and in this regard, the money paid to the victim cannot be deducted from the amount of defraudation.

However, as to whether the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) is established, the specific amount of profit of the defendant, which is the premise of the establishment of the above crime, shall be calculated on the basis of the market price of the forest of this case. However, with the view to the fact that the market price of the forest of this case is equivalent to ten billion won, each statement made by thisCC and KimK is insufficient to recognize it, and there is no objective evidence to acknowledge it otherwise (in accordance with the Internet output (3: 738 pages of investigation records No. 2012No. 578) related to the land price, there is no objective evidence to acknowledge it (the fact that the sale of part of the forest of this case in this case is equal to or more than 10,000 won at the same time on the surface of the Y-dong, Chungcheongnam-dong, Chungcheongnam-dong, Chungcheongnam-gun, and Jeon-do, the land of this case can be calculated on the basis of the location, topography, environment, and use status of the forest of this case.

Rather, according to the evidence duly adopted and examined by the court below, the total officially announced value of the forest in this case as of January 1, 2006 was approximately 330,00,000,000 won (the investigation records No. 2012,578) and the market value of the forest in Young-gun among the forest in this case as of August 2, 2006 as of August 2, 2006 was the total of 302,836,200 won as of July 28, 2006, the market value of the forest in this case was 106,884,000 won as of July 28, 2006, the market value of the forest in this case was 409,720,000 won in total, and the market value of the forest in this case was 106,720,000 won in total as of July 20, 2005.

Therefore, even if the amount of profit of the defendant by deceit of the forest of this case does not go to the public system of the secured debt amount of the right to collateral security, as long as the market price of the forest of this case is less than 500 million won in itself, this part of the facts charged cannot be used by Article 3 (1) of the Aggravated Punishment, etc. of Specific Economic Crimes Act.

As a result, only simple fraud under Article 347(1) of the Criminal Act is established with respect to the facts charged in this part, which is equivalent to the market price of 409,720,200 won by deceit of the forest land of this case (Provided, That in order to calculate the actual amount of profit of the defendant, prior to the crime, the amount of the secured debt of the right to collateral security established on the forest of this case should be deducted, but this is not directly related to the establishment of the simple fraud, and therefore, it

(3) Judgment of the court below

(A) Relevant legal principles

In a crime of fraud, the content of which is the taking-off of property, if there is a delivery of property due to deception, it constitutes a crime of fraud by itself, thereby infringing on the property of the victim, and there was no reasonable payment, or there was no damage to the whole property of the victim. Even though the establishment of fraud does not affect the establishment of fraud, it is not the difference between the value of the property given by deception and the value of the property given by the victim, but the amount of fraud is the whole property received (see, e.g., Supreme Court Decision 95Do203, Mar. 24, 1995).

Meanwhile, the crime of fraud under Article 347(1) of the Criminal Act is established by deceiving a person to receive property or acquiring pecuniary advantage by deceiving him/her, and the value of the property or pecuniary advantage received by him/her does not constitute ice (see Supreme Court en banc Decision 2005Do7288, Apr. 19, 2007, etc.).

(B) Determination

Examining the reasoning of the judgment below in light of the above legal principles and records, the judgment of the court below is acceptable, and it is difficult to see that there was an error of misconception of facts or misunderstanding of legal principles as the grounds for appeal [the defendant acknowledged the fact that he entered into a sales contract equivalent to 10 billion won in the prosecutor's office (324, 365, 453). At the time of the instant case, the victimCC believed that the actual value of the forest of this case exceeds 10 billion won, and it is difficult to see that the victim deceptiond the defendant in relation to the actual value of the forest of this case.

(c) Violation of the Act on the Regulation of Conducting Fund-Raising Activities Related to Many Investors, fraud, and violation of the Act on the Punishment, etc. of Specific Economic Crimes (Fraud);

(1) On the argument about calculating the amount of fraud or revenue and the application of the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

(A) The judgment of the court below

The lower court, on the following grounds, determined that, even in the case of investors who did not state the fact of damage in the investigation agency or court among the amount obtained by deception and revenue amount in the attached Form 1 crime list, as long as the deposit details of funds to the Defendant’s account exists, it shall be deemed as investment money unless there are special circumstances, and this shall also be deemed as included in the amount obtained by deception or the revenue amount of the crime of receiving through deception of the crime of

1. ① The Defendant: (a) established a company such as the sea wave, new industry, etc.; (b) had the company attend a meeting to explain the investment to the investors who had been in the office every day; (c) had them look at the office; and (d) had each other explain the investment; and (d) had the solicitation book pay a certain amount of money in accordance with the attraction of the investment (the 11th trial trial record, the witness statement statement, 2012, 578 investigation records, 3rd 678, 682 through 684, 687). The Defendant organized investment attraction activities under the name of the company, such as holding an explanatory meeting or gathering investors, and visiting neighboring areas by grouping the real estate subject to investment.

2) The investors generally agree and explain that “the defendant would sell the real estate for auction, resell the real estate for auction, invest in the land scheduled for the relocation of the new administrative capital or the Chungcheongnam-do government office, sell the apartment in China, invest in the land scheduled for the sale of the apartment in the Chinese ambaba and the ambaba and the ambaba and the ambaba, invest in the land located in the ambaba and the ambaba and the ambaba, or make an investment in the gold ambaba and the ambababa and the ambaba, etc.” The investors stated that “the defendant would pay the profits of 15 to 20% within three months if the investors make an investment in the defendant, and that the defendant would create a right to collateral in the forest located in Chungcheongnam-dong, Chungcheongnam-gun, etc. as a collateral for the investment funds, and that the investors also invested in a specific business.

(3) It seems that the business itself of the defendant explained is extremely low in practice, such as cutting off things managed by the court from the legal personality of the defendant, or covering or resale, with the defendant's high-class information, real estate including apartment buildings in Seoul Metropolitan Government, etc.

④ The Defendant’s account was transferred to approximately KRW 1,400,000 to KRW 260,000,000, which was less than KRW 1,400,000, for a period of one year and seven months. As above, the Defendant’s future transfer of money was the name of the investment deposit, other than that of the said large amount of money, cannot explain the said large amount of transactions.

⑤ In the case of some victims who denies the act of deceitation and fund-raising without delay, the amount equivalent to a certain ratio of the money transferred to the Defendant’s account was transferred to the victims through the account of the Defendant or other investment solicitation policies after a certain period of time.

(B) Judgment of the court below

This part of the judgment of the court below is not acceptable for the following reasons.

1) Facts of recognition

According to the records, the following facts are recognized:

① When the prosecutor also confirms the deposit details of the Defendant and its related persons who did not make a statement of damage due to the bank account transactions by the said complainants in the course of investigating the complainants who submitted a written complaint that they suffered damage from investment from the Defendant and their accomplices, the prosecutor charged the instant case on October 15, 2012 by including the deposit amount in the name of the said persons without additional confirmation of damage from the said complainants.

② After that, the prosecutor filed an application for changes in the indictment with the lower court as of August 20, 2013 and an application for changes in the indictment as of April 9, 2014. The lower court permitted changes in the indictment as of April 34, 2014, and excluded the part concerning the nine victims from the facts charged in the instant case as to the original facts charged in accordance with the changes in the indictment as of April 10, 2014 (see, e.g., the prosecutor’s revocation of the indictment as to

③ 원심은 변경된 공소사실 중 피해자 김MM 부분은 김MM이 피고인의 처 로서 피고인에게 기망당하여 투자하였다고 보기 어렵다는 이유로, 피해자 박NN 부분 은 박NN이 투자모집책인 박PP의 부친으로 박PP에게 투자금을 수령하는 계좌 명의를 빌려준 것에 불과하다는 이유로, 피해자 이TT는 피고인이 운영하던 신산업 내 지위 와 역할에 비추어 이를 위 피해자의 투자금이라고 단정하기 어렵고 피고인에게 기망당 하였다고 보기도 어렵다는 이유로, 피해자 허QQ 부분은 허QQ의 피고인과의 관계와 거 래내역과 이 사건 투자사업에서의 역할 등에 비추어 피고인에게 기망당하였다고 보기 어렵다는 이유로 각 무죄로 판단하였다.4)

The witness RR5) stated on the second trial date of the trial, “The half of the damage amount in the original trial is a separate ginseng investment-related amount.”

⑤ At the fourth trial of the trial, the witness SS6 stated to the effect that “The amount of damage as indicated in the judgment of the court of original instance was all returned to the Defendant that all the Defendant lent the business fund. There is no fact that the Defendant has invested and recovered money due to the Defendant’s falsity.”

6) On September 3, 2014, the defense counsel stated that "in accordance with evidence submitted to the trial court on September 3, 2014 (Evidence No. 3-1 through 5), the victim’s U7 was the person who was the mother of the defendant at the time of the instant case, and that "No transaction was made to the effect that the defendant was personally required to pay money."

7) On September 29, 2014, the defense counsel presented evidence (Evidence No. 4-1, No. 4-2) to the trial court, and the victim V8 stated to the effect that “The amount that he received around 2005 in relation to a separate real estate sales contract shall not be returned in 2006, but shall not be deposited in real estate investment.”

8. Of the facts charged in the instant case, the part concerning 180 victims W, etc. pointing out by the defense counsel, is that the investigative agency and the court below did not make a statement of damage.

2) Determination

The burden of proving the facts charged in a criminal trial should be based on evidence with probative value, which leads a judge to have a substantial doubt as to the facts charged, to the extent that there is no reasonable doubt. Thus, if there is no such evidence, the doubt of guilt against the defendant should be determined with the benefit of the defendant even if there is no such evidence (see Supreme Court Decisions 2001Do2823, Aug. 21, 2001; 2002Do6110, Feb. 11, 2003, etc.).

In light of the circumstances such as the mode of investment activities of the defendants and recruitment books as stated by the court below, the nature of deception, the business itself, the possibility of business itself, and the details of transactions with a long amount of money deposited in the defendant's account, it is doubtful that the money deposited in the bank account of the defendants and interested parties is not equivalent to the amount acquired by deceit or the amount of revenue by deception of this case by the defendants and the public officials.

However, as shown in the above facts, some of the victims who were prosecuted by the prosecutor under the initial suspicion as mentioned above were excluded from the facts charged through the modification of the indictment (in light of the above, there seems to have been some objections against the defense counsel's assertion, such as not investors or personal transaction relations, etc.). 6 The court below determined that some of the victims stated in the changed facts charged did not constitute the amount of fraud or the amount of revenue in light of the relationship between the defendant and the relevant victims although investigation agencies conducted investigation, and the judgment is acceptable in light of the records, and according to the victim SS, the court's statement of the trial at issue of Korea RR, and the confirmation document of this V preparation, all or part of the amount stated in the facts charged, which the above victims and the relevant persons deposited into the account of the defendant and the relevant persons without the victim's statement in the name of the victims who did not reach the statement in the investigation agency, and there is a possibility that the amount deposited into the account of the defendant and related persons in the name of the victims, not the amount of fraud or the amount of revenue from the transaction.

Therefore, the circumstances presented by the court below and the evidence submitted by the prosecutor alone cannot be readily concluded that the part of the amount entered in the name of the victims who did not make a statement of damage as pointed out by the defense counsel during the indictment office of this case would be harmful to the amount obtained by deceit or revenue through the deception of this case by the defendant and related persons. Ultimately, even if the judgment of conviction was based on the above legal principles, it is inevitable to determine the defendant's profit

Therefore, there is an error of misunderstanding of facts or misunderstanding of legal principles in this part.

(2) As to the assertion of duplication and uncertainty of damage

(A) Victim KimD parts

According to the records, the victim KimD has been suffering from damages of KRW 340,000,000 from the police, and it has been put into two times on August 30, 2006, including KRW 140,000,000,000 on August 31, 2006, and KRW 140,000,000. (No. 3 of the investigation records of the case No. 34698 in 2012), and it is recognized that the statement (no. 765,00) was made to the same effect on the 20th trial date of the court below.

According to the above facts, among the facts charged of the victim KimD portion, only the sum of KRW 340 million, including the sum of KRW 740,000,000,000 on August 31, 2006, No. 740,000,000 on August 30, 2006, and KRW 200,000,000,000,000 on August 30, 2006, shall be deemed to be damage of the victim KimD. As such, from among the facts charged of this part, the victim KimD portion No. 69 to 73 shall be excluded from the amount of fraud or the amount of revenue of the victim KimD, regardless of whether it overlaps with No. 1004,108,000 on August 31, 206.

(B) Victim KimE part

According to the records, the defendant's foreign exchange bank account (620- 164943- 8881) does not have the deposit details of KRW 20 million on November 22, 2006, which corresponds to No. 372 of the annexed crime list No. 1 of the annexed crime list No. 372, among the facts charged against the victim KimE portion, and the victim00 won was confirmed to be deposited by the victim0 million won on November 22, 2006, such as No. 582 of the above crime list No. 582, and there is no other evidence to acknowledge the deposit details corresponding to the above year No. 372.

Therefore, among the facts charged against the victim Kim E-E part, No. 372 of the crime sight list should be excluded from the amount obtained by defraudation or import of the victim Kim E-E.

(C) The part of the victim assistanceG part

In the facts charged of the part of the victim assistanceG (attached Form 1 Crime List No. 1292), the victim assistance GG has invested KRW 260 million in the defendant through the SeodaemunJ on September 30, 2006.

However, evidence submitted by the prosecutor alone is insufficient to recognize that the above 200 million won was invested in the defendant on September 30, 2006 through the YongJ on September 30, 2006, and there is no other evidence to acknowledge it. [The defendant 2.6 billion won was deposited at the police station around September 2006 as the head of CheongJ, and deposit KRW 10 million in the same passbook on November 16, 2006, and deposit KRW 50 million in the same passbook; around December 4, 2006, the defendant 2.6 billion won was invested at KRW 190,000,000,000,000 won was 2.6 billion,000,000 won was 6.6 billion,000,000 won was 6.6 billion,000,000 won was 6.6 billion,000 won was 6.6 billion,000,0000 won was 6.6.6.

Therefore, the facts charged in the part of the victim assistanceG (attached Form 1 No. 1292) should be excluded from the amount of fraud or the amount of revenue.

(D) Victim HaH part

On October 17, 2006, the facts charged of the victim Yellow H part of the charge (attached Form 1 No. 1392), the victim He was prosecuted by investing KRW 135 million in the defendant through the SeodaemunJ on October 17, 2006.

According to the evidence duly adopted by the court below, it is recognized that the court below invested 5 million won in total to the defendant through the YJ on October 17, 2006 (the investigation record of 2012 type 34698 type 3,253 type 30,000,000 won on October 17, 2006, and the cash custody certificate of 25 million won on October 17, 2006 (the investigation record of 4 type 1258 & 1264 type 4 type 4 of the above investigation record).

However, the remainder of the evidence submitted by the prosecutor alone is insufficient to recognize that the victim sulfurH made an additional investment of KRW 80 million in addition to the above KRW 5 million in addition to the above KRW 50 million through the AppellateJ on October 17, 2006 (i.e., KRW 1350 million - 50 million -), and there is no other evidence to acknowledge it (based on the above evidence, the victim Yellow HH made an investment of KRW 135 million in the police through the LJ, and received a cash custody certificate of the Defendant’s preparation several times from the DoJ, on which he received the cash custody certificate of KRW 160 million on November 15, 2006, each of the above facts charged is not the cash custody of KRW 135 million on December 11, 2006, KRW 2006, KRW 1660,000 on December 16, 2006, KRW 1606,000.

Therefore, the remainder of KRW 85 million out of the facts charged of the victim Yellow H portion (No. 1392 No. 1392) should be excluded from the amount obtained by deception or the amount of revenue.

C. Sub-decision

Therefore, with respect to the violation of the Act on the Regulation of Conducting Fund-Raising Business, Fraud and Specific Economic Crimes (Fraud), part of the criminal facts (attached Form 1) found guilty by the court below that it is difficult to recognize the money as the amount of fraud or revenue due to the failure to make a statement of damage, etc. (the whole list of crimes No. 1) and the part which overlaps or is unclear with the fact of damage [1.... (69 through 73 parts of attached Table 1 of the victim Kim DD list of crime No. 1, ② Part 372 of the victim KimE part of the above crime list of crime No. 372, ③ Part G part of the victim assistanceG (the above crime list No. 1292), ④ part of the victim yellow H (the above crime list No. 1392), and the part of the judgment of the court below shall be reversed.

3. Judgment on the prosecutor's grounds for appeal for mistake of facts or misapprehension of legal principles

A. Violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission for the Victims and Ten others, and violation of the Act on Fraud and Punishment of Specific Economic Crimes, Etc. (Fraud)

The lower court determined that the part of the facts charged by the victims was a non-crime on the ground that it is difficult to recognize that the victim was actually different from the indicted victim, or that it is difficult to recognize that the money was invested in the date of indictment or that the amount of damage was more than 50 million won, as stated in its reasoning.

Examining the reasoning of the judgment below in light of the records, the judgment of the court below is acceptable ( contrary to the prosecutor's statement of grounds of appeal, the victim was changed in the trial or the victim was not specified in the specific time and amount of damage). It is difficult to see that there was an error of misconception of facts or misapprehension of legal principles as alleged

B. The morale of the victim Z

(1) The judgment of the court below

The lower court acquitted this part of the facts charged on the following grounds.

신한은행 계좌내역(754- 11- 003698) 및 제20회 공판조서 중 증인 장ZZ의 진 술기재에 의하면 장ZZ는 허QQ을 통해 피고인에게 투자하기로 하면서 2006. 4. 28 . 허 QQ에게 현찰로 1억 4,000만 원을 교부하였고, 허QQ은 같은 날 그 중 1억 원만을 피 고인의 통장에 입금한 사실을 인정할 수 있을 뿐이고, 장ZZ 앞으로 발행된 2006. 4. 28.자 현금보관증(2011고합228 수사기록 4권 451쪽)만으로는 장ZZ가 2006. 5. 12. 에 피고인에게 1억 3,400만 원을 더 투자하였다고 인정하기에 부족하며 달리 이를 인정 할 증거가 없다.

(2) Judgment of the court below

원심판결의 이유를 기록에 비추어 살펴보면, 원심의 판단은 수긍할 수 있고 거 기에 항소이유로 주장하는 사실오인 내지 법리오해의 위법이 있다고 보기 어렵다[ 허 QQ에 대한 관련 형사사건의 심리경과에 비추어 보면 , 검사가 제출한 증거만으로는 허 QQ을 피고인의 공범으로 단정하기 어려우므로, 허QQ이 2006. 4. 28. 피해자 장ZZ로 부터 수령한 1억 4,000만 원 중 원심이 무죄로 판단한 4,000만 원에 관하여 허QQ이 이를 수령하는 즉시 피고인의 사기죄가 성립한다고 보기 어렵다 .

4. Scope of reversal

As seen earlier, this part of the judgment of the court below is reversed on the ground that the defendant's assertion of mistake or misapprehension of legal principles as to the part of the guilty portion is with merit, and the above reversal part and the remaining guilty parts of the judgment of the court below which rendered a single sentence should be reversed ex officio in order to determine one punishment again. The part of the judgment of the court below which was found guilty and the part of the non-guilty part of the judgment of the court below which was in the view of the above guilty part and the single comprehensive crime [the victim's violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against thisCC, victim XX, fraud against 11 person outside the ZZ, and violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), violation

5. Conclusion

Therefore, the part of the judgment of the court below which examined the whole guilty and the part of the acquittal as mentioned above. Thus, this part of the judgment of the court below is reversed under Article 364(2) and (6) of the Criminal Procedure Act without examining the grounds for appeal of unfair sentencing by the defendant and the prosecutor, and it is again decided as follows. The prosecutor's appeal on the fraud against the victim OB among the acquittal part of the judgment of the court below is without merit, and it is dismissed under Article 364(4) of the Criminal Procedure Act

【Discretionary Judgment】

Criminal facts

Except for the following changes, the part of the judgment of the court below regarding "the Act on the Regulation of Conducting Fund-Raising Business without Permission" and "3. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)" in the case of 2012 high-priced 578 among the

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

No one shall receive investments and provide an agreement to pay the total amount of investment or an amount in excess thereof in the future as a business of raising funds from many and unspecified persons without obtaining authorization, permission, registration, reporting, etc. under finance-related Acts and subordinate statutes.

그럼에도 불구하고 피고인은 2005년 5월경 대전 중구 오류동에 신○산업을 설립하 고 , 서울 강남구 도곡동 타워팰리스에 서울 사무실을 두고, 박PP을 팀장으로 하는 교 대팀, 한BC을 팀장으로 하는 양재팀 등을 만들고 , 김장미, 김순영, 정임훈, 박문자, 이 대식, 이난희, 김DD, 심재진, 윤영옥, 유우순, 이현순, 박관순, 임진자 등이 각 팀의 팀 원으로 일하면서 투자자를 유치하게 하고, 경리 강지현, 감사 송석철이 금전의 출납을 관리하게 하고, 투자설명회를 개최하는 등 투자자를 모집하여 자금을 조달하는 것을 업으로 하기로 박PP, 한BC 등과 모의하였다.

After sharing roles as above, the Defendant operated a new industry without obtaining authorization, permission, etc. under the finance-related Acts and subordinate statutes. From June 3, 2005 to December 29, 2006, at the new industry office, etc. located in Daejeon Jung-gu, Daejeon to find an office through the introduction of employees, the Defendant purchased new auction to sell the property of an individual in relation to the legal management of the enterprise at the court, so that the property can be sold to the public, and the land planned for new administrative capital can only be sold through light and public sale. The Defendant purchased the land at 0% of the total amount of the land to be sold and sold to the public, and then would be 1% of the total amount of the money to be sold to the public. The Defendant would be able to purchase and sell the real property at 0% of the total amount of the investment planned for the public sale of the real property at 0% of the total amount of the investment planned for the public sale of the real property at 0% of the investment planned for the public sale of the real property at 20% of Seocho-dong.

On September 1, 2005, the Defendant, in collusion with ParkP, HanBC, etc., received KRW 26,918,264,000 ( = 26,282,764,000 in the separate list of crimes No. 1 + KRW 635,50,00 in the separate list of crimes No. 200) from 80 investors to 783 times from 26,918,264,00 in total, as shown in the separate list of crimes No. 26,282,764,00 in the separate list of crimes No. 200 + KRW 635,50,00 in the separate list of crimes No. 250).

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

The Defendant made a false statement to the victims in such manner as above at the time and place specified in paragraph (2).

However, the fact is that the new industry operated by the defendant is a fund-raising company without any change and has structure of paying the principal and interest to the upper-tier investors, and most of the businesses operated by the defendant, such as gold, SH**, Co., Ltd.****, etc., are only in the form, and there was only a company with no real status, so there was no intention or ability to pay the principal, etc. even if receiving investments from investors.

Nevertheless, the Defendant, in collusion with ParkP, HanBC, etc., by deceiving the victims as above, and by deceiving them total sum of KRW 26,282,764,00,00 through 768 times, such as the portion of "the crime of violation of the interest of the party" in the attached Table 1 Crimes List from 79 victims."

Summary of Evidence

The relevant part of the judgment of the court below is as follows.

Application of Statutes

1. Article applicable to criminal facts;

Article 347(1) of the Criminal Act (the fraud againstCC), the former Act on the Regulation of Conducting Fund-Raising Business without Permission

Articles 6(1) and 3 of the Criminal Act (amended by Act No. 10045 of February 4, 2010); Articles 30 of the Criminal Act

Article 2(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the Act on February 10, 2012)

Article 3(1)2 of the Act, Article 347 of the Criminal Act, Article 347 of the Act

Paragraph 1 and Article 30 [The point of fraud for 16 victims (including each victim): Provided, That the sentence shall not be imposed

Korea's Criminal Code (amended by Act No. 10259, Apr. 15, 2010) is in the main sentence of Article 42 of the former Criminal Code

[J] Articles 347(1) and 30 of each Criminal Code (other than the above sixteen victims)

Article 231 of the Criminal Act, Article 234 of the Criminal Act, and Article 234 of the Criminal Act,

Articles 231, 30 (Occasion of falsified Official Document), 228(2), and 30 (Occasion of a passport) of the Criminal Act

(1) The former Passport Act (wholly amended by Act No. 8990 of March 28, 2008), hereinafter the same shall apply.

C) Article 13(2), Article 30 (Unlawful Issuance of Passports) of the Criminal Act, Articles 229 and 228(2) of the Criminal Act

Article 13 (3) 1 of the previous Passport Act (the point of holding a false passport)

Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347 of the Criminal Act

Paragraph 1. [1.......] ] Fraud

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (Mutual between the crime of false entry in a passport and the violation of the Passport Act due to unlawful issuance of a passport);

Punishment imposed on a crime of violating the Passport Act due to a more severe issuance of a passport. Non-performing term

The crimes of a second passport and the crimes of violation of the Passport Act due to the exercise of another person's passport, and punishment heavier;

Punishment imposed on the crime of false entry and use of passport)

1. Selection of penalty;

Each crime of fraud, violation of the Act on the Regulation of Conducting Fund-Raising Activities without Permission, Forgery of Private Document, and Uttering of Private Document;

In regard to the violation of the Passport Act due to unlawful issuance of passport, and the crime of false entry and passport, choice of imprisonment for each crime;

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

Aggravation of concurrent crimes resulting from violation of the Punishment, etc. Act (Fraud)

1. Dismissal of application for compensation;

Article 25 (3) 4 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (the trial proceedings are suspended due to a compensation order)

It is not reasonable to issue an order for compensation in criminal proceedings, which is likely to considerably delay;

be recognized as such)

Reasons for sentencing

1. The scope of applicable sentences: Imprisonment for a period of three years to twenty-two years;

2. Scope of recommended sentences according to the sentencing criteria; and

(a) Basic crime: A violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and fraud (a multiple damage);

【Person】

[Determination of Type] A systematic fraud which is not less than five billion won but less than 30 billion won (type 4)

【Special Convicted Persons】

- Mitigation elements

Where the victim is fully responsible for the occurrence of the crime or the expansion of damage;

- Aggravations

Where he/she ledly plans or directs the implementation of the crime of fraud;

For unspecified or large number of victims, or repeatedly over a considerable period of time;

in the case of crime

[Scope of Recommendation] Aggravation: Imprisonment for 5 years and 4 months to 11 years (a decision made by adding the amount of profit of the same concurrent offense)

The minimum range of sentence is reduced by 1/3 because the type is higher than that of the most severe single crime.

b)

【General Convicts】

- Aggravations

Class A repeated crime, the same kind of crime not constituting a repeated crime, and the criminal punishment for embezzlement and Misappropriation (after completion of the execution thereof)

Less than 10 years)

(b) Minority crime: A crime of fraud (related to VictimCC);

[Determination of Punishment] Fraud. At least KRW 100,000 and less than KRW 500,000.

[Scope of Recommendation] Basic Area: Imprisonment for one year to four years

【General Convicts】

- Aggravations

Class A repeated crime, the same kind of crime not constituting a repeated crime, and the criminal punishment for embezzlement and Misappropriation (after the completion of the execution thereof)

Less than 10 years)

(c) Concurrent crimes: Crimes of forging private documents, or uttering of private documents;

[Determination of Punishment] Forgery, Alteration, etc. of Private Documents

[Scope of Recommendation] Basic Area: Imprisonment of six months to two years;

【General Convicts】

- Aggravations

Where a person who has conducted forgery, alteration, etc. uses the relevant forged or altered document;

(d) Standards for handling multiple crimes: Imprisonment for 5 years and 4 months to 13 years ( = 11 years + 2 years + 8 months);

E. Sentencing is a concurrent crime in which the sentencing criteria are set and the sentencing criteria are not set.

Only the lowest limit of the criteria shall be applied.

3. Determination of sentence;

The crime of fraud and fund-raising in this case was committed by deceiving many unspecified persons under the pretext of investment by deceiving them to secure high profit by using a large number of corporations, such as new industries, without intent or ability to conduct real estate business, and using a solicitation policy, and received money in an amount equivalent to 26.9 billion won under the pretext of investment, and is not good in light of the circumstances leading the crime, the amount of damage, etc., and the defendant committed the crime in a systematic and professional manner after establishing a large-scale organization and leading each of the above crimes at the normal point of the organization. The defendant committed the crime by sharing a large number of persons while participating in the above crimes at the normal point of the organization, and sharing the roles of the organization and sharing the roles of the victims, the victim has great social criticism, and there is significant harm to our society, and even if the defendant had been sentenced to a previous punishment for fraud, it is inevitable to further commit the above crimes, and even if the defendant was sentenced to the punishment of the defendant under the name of the defendant who was sentenced to prohibition of departure from each of the above crimes, it is issued under the Chinese passport.

However, some of the amount of fraud appears to have been returned to the victims, and the profit of the crime possessed by the defendant is not to reach the amount of fraud, in the original trial, some victims submitted a written application that they would jointly with the defendant, and they did not want to punish the defendant against some victims, and in the original trial, some of the victims were acquitted of the crime in the original trial (in the original trial, about 261 persons guilty, about 4.3.2 billion won of the amount of damage was found not guilty, but about 80 persons guilty, about 26.9 billion won of the amount of damage was reduced in the first instance trial), etc., taking into account the circumstances favorable to the defendant, and the sentencing conditions, such as the defendant's age, character and behavior, environment, motive for the crime, and circumstances after the crime, etc. as shown in the argument of this case, are to be mitigated, and the punishment of this case shall be determined as ordered.

Parts of innocence

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

The relevant part of the judgment of the court below is as follows.

2. Fraud related to multiple investors and violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud);

A. The part on 180 persons, including the victim Kang W, etc.

(1) Summary of the facts charged

The Defendant, in collusion with ParkP and HanBC, by deceiving 180 persons, such as the victim W, as stated in the facts of the crime in the judgment, and by deceiving the victims of the “not guilty in the trial” portion of the “not guilty in the attached Table 1 Crime List,” as indicated in the corresponding column, obtained a total of 15,910,245,722 won as stated in each corresponding column.

(2) Determination

As examined in Article 2-2(b)(1)(b) of the judgment on the grounds of appeal above, this part of the facts charged constitute a case where there is no proof of the crime, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

B. Of the part concerning the victim KimD, No. 69 through 73 of the crime sight table No. 1 attached hereto

(1) Summary of the facts charged

In collusion with ParkP, Korea-BC, etc., the Defendant acquired a total of KRW 80 million as stated in the “not guilty of the party trial” portion of the “not guilty of the party trial” in the attached Table 1 List from the victim KimD, as shown in 69 to 73.

(2) Determination

As examined in Article 2-2(b)(2)(a) of the judgment on the grounds of appeal above, the facts of the public prosecution in this part constitute a case where there is no proof of the crime, and thus, the defendant should be acquitted under the latter part of Article 325 of the Criminal Procedure Act, but the defendant shall be acquitted. However, as long as it is found that the defendant is guilty of a crime of fraud in the relation of

C. Of the part against the victim Kim E-E, No. 372 per annum of the crime sight table in Attached Form 1.

(1) Summary of the facts charged

The Defendant, in collusion with ParkP, HanBC, etc., acquired KRW 20 million as indicated in the “not guilty in the trial of the party” of the “not guilty in the attached Table 1 List from KimE” from the victim KimE.

(2) Determination

As examined in Article 2-2(b)(b)(b) of the judgment on the grounds of appeal above, the facts of the public prosecution in this part fall under the case where there is no proof of the crime, and thus, the defendant should be acquitted under the latter part of Article 325 of the Criminal Procedure Act, but the defendant shall be acquitted. However, as long as it is found that the defendant is guilty of a crime of fraud in relation to

D. Part on the victim assistanceG (attached Form 1 Crime List No. 1292)

(1) Summary of the facts charged

In collusion with ParkP, Korea-BC, etc., the Defendant acquired 260 million won as stated in the “not guilty of the party trial” portion of the “not guilty of the victim’s crime list of Attached 1 Crimes List from the victim assistanceG,” as stated in 1292.

(2) Determination

As examined in Article 2-2(b)(2)(c) of the judgment on the grounds of appeal above, this part of the facts charged constitute a case where there is no proof of the crime, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

E. Part 80,000,000 won in the part of the Victim HH (attached Form 1 No. 1, 1392)

(1) Summary of the facts charged

The Defendant, in collusion with Park PP, HanBC, etc., acquired the part of "not guilty of the trial", excluding KRW 50 million, which was found guilty of KRW 135 million out of the amount indicated in No. 1392 of the annual list of crime No. 1 of the annexed Table No. 1 of the victim H from the victim Y. 80 million.

(2) Determination

As examined in Article 2-2(b)(2)(d) of the judgment on the grounds of appeal above, the facts of the public prosecution in this part fall under the case where there is no proof of the crime, and thus, the defendant should be acquitted under the latter part of Article 325 of the Criminal Procedure Act, but the defendant shall be acquitted. However, as long as it is found that the defendant is guilty of a crime of fraud in relation

F. The part on 11 victims, Z, and 10 others

The relevant part of the judgment of the court below is as follows.

3. The violation of the Act on the Regulation of Conducting Fund-Raising Business without Permission;

A. Summary of the facts charged

피고인은 박PP, 한BC 등과 공모하여 2005. 9. 1.경부터 2007. 1. 29 .경까지 별지 제1 범죄일람표 중 '당심유죄’ 부분 및 별지 제2 범죄일람표 기재와 같이 합계 26,918,264 ,000원11) 을 수신한 외에, 투자자 김MM, 박NN, 오AB, 이TT , 이XX, 장ZZ, 허QQ, 한BC 외 14명으로부터 72억 8,990만 원, 투자자 강WW 등과 투자자 김DD , 김 EE, 조GG, 황HH 등 184명으로부터 16,350,245,722원12) 등 총 206명으로부터 합계 23,640,145,722원을 수신하여, 투자자 271명으로부터 1,535회에 걸쳐 합계 50,558,409,722원을 수신하였다.

B. Determination

There is no evidence to acknowledge that the Defendant received the total sum of KRW 23,640,145,722 from the total sum of 206 persons as above. Therefore, as long as it is found that the Defendant was guilty of a crime of violating the Act on the Regulation of Conducting Fund-Raising Business without Permission, which is related to a single comprehensive crime, the Defendant shall not be sentenced to a separate verdict of innocence.

The principal offender (Presiding Judge)

Kim Jin-ray

Long-term Private Telecommunication

1) The lower court cannot recognize that the value of the property acquired by the Defendant is more than 500 million won, and therefore, the lower court is a specific Economic Crimes against the VictimCC.

In finding a not guilty of violating the Act on Aggravated Punishment, etc. (Fraud), only the fraud within the scope of the same charge is found guilty.

Part is a part.

2) As seen below, there is a defense counsel’s entry in the grounds of appeal as follows. However, there is an appeal on the amount of fraud or fraud, including calculation of the victims of the amount of fraudulent fraud or the amount of revenue received, or the fraud or the criminal intent of the crime of deception in the statement of appeal.

There is no indication in the record. The judgment of the court below on the deception or criminal intent of the victims whose statement of damage was made, even upon ex officio examination.

We agree with this Opinion.

3) The original facts charged were the victims or investors total of 299, the sum of the amount obtained by defraudation or revenue amount of KRW 55,964,69,522.

4) 피해자 김MM, 이TT, 허QQ은 수사기관에서 조사가 이루어진 사람들이다.

5) A person who did not make a statement in an investigative agency.

6) A person who did not make a statement in an investigative agency.

7) A person who did not make a statement in an investigative agency.

8) A person who did not make a statement in an investigative agency.

19) Of the lower judgment, the part concerning acquittal of reasons.

10) 15,910,245,72 won = 16,350,245,722 won = 16,350,245,722 (total sum of “not guilty in the trial” in attached Form 1) - Victim KimD 80,000,000 won -

Victim KimE 20,000,000 - Victim Cho G 260,000,000 - Victim H 80,000,000 won

11) It is the amount finally found guilty at the trial.

12) An amount which was judged not guilty of an additional amount in the trial of a party is the amount which was determined not guilty of an additional amount: KRW 16,350,245,72 = KRW 180,910,245,722 + KimD 80,000,000

Won + KimE 20,000,000 + ChoG 260,000,000 + Yellow H 80,000,000 won