(영문) 서울중앙지방법원 2018.1.26. 선고 2014고합340 판결

Defendant shall be punished by imprisonment with prison labor for two years for each of the crimes in the case No. 2014 high-class340, and by imprisonment with prison labor for ten months for each of the crimes in the case No. 2014 high-class548, respectively.

40,000,000 won for the crime of the case No. 2014Gohap340, which was decided by the defendant, and 57,673,119 won for the crime of the case No. 2014,548, respectively, shall be additionally collected.

The amount equivalent to each of the above additional charges shall be ordered to be paid provisionally.

Of the facts charged against the Defendant, the fraud of the case No. 2014Gohap1472 is acquitted.

Reasons

Criminal facts

"2014 High 340 Criminal Power"

On September 2, 2011, the Defendant was sentenced to four months of imprisonment with prison labor for habitual gambling at the District Court of the Republic of Korea on April 2, 201, and the said judgment was finalized on April 26, 2012, and was sentenced to six months of imprisonment with prison labor at the same court on July 8, 2016, and the said judgment became final and conclusive on October 13, 2016.

Criminal facts

The Defendant introduced H, through E and F, which was promoting the acquisition of the Busan-gu G building through the Busan-gu Busan-gu G building. On December 2, 2011, the Defendant promised to the effect that “The Defendant would receive a loan from H through a financial institution as collateral for the G building,” upon request of H to “the amount of KRW 80 billion which is necessary for the acquisition of the G building” from the J coffee shop located in Seocho-gu Seoul, Seocho-gu, Seoul.

On December 22, 22 of the same year, the Defendant arranged a loan of KRW 80 billion through a financial institution in accordance with the above agreement, and H shall pay KRW 4 billion in service charges to the Defendant, which is equivalent to 5% of the loan, and entered into a contract to make the advance payment in the form of a down payment of KRW 400 million, which is 10% of the loan, in the form of a down payment, and received a copy of a cashier’s checks of KRW 400 million from K delegated by H at the same place.

As a result, the Defendant received KRW 400,000 from a financial company to arrange matters related to the duties of executive officers and employees of the financial company.

1. Joint offenses with L or M;

On October 2012, the Defendant received N from L to request L to arrange for a loan of business funds from the same financial institution as the Korea Credit Guarantee Fund. The Defendant asked M with M in a pro-friendly relationship with the Korea Credit Guarantee Fund for N's loan. M stated that "in order to receive a guarantee from the Korea Credit Guarantee Fund, it is necessary to pay 30 million won or more," and the Defendant talked with L.

L, from the Q Office operated by N in Pocheon-si P on October 10, 2012, "A loan broker who knows well inside and outside, is well aware of it with the Korea Credit Guarantee Fund, so if a business fund is needed, L will receive a loan from the Korea Credit Guarantee Fund. In order to receive a loan, the expenses needed are changed from time to time."

Accordingly, on October 27, 2012, N transferred 5 million won to the account in the name of R, 30 million won to the account in the name of M on November 9, 2012, 12, and 3 million won to the account in the name of S on November 12, 10 of the same year. On November 9, 201 of the same year, L provided a corporate card to the Defendant through L, and used 19,673,119 won as N’s corporate card from that time until December 20 of the same year. Accordingly, the Defendant received money and valuables or other benefits in collusion with L, 673,119 won in total with respect to the intermediation of matters belonging to the duties of officers and employees of financial institutions.

2. The defendant's sole criminal conduct;

(a) Fraud;

The Defendant, as stated in the above paragraph (1), received money from the victim N as the expense for business loan, even if he did not intend to use the money as the expense for the loan, and received money with the victim’s false statement of necessity for the expense for business loan, and received money from the victim to use it as personal entertainment expenses, etc.

As stated in the foregoing paragraph 1, the Defendant made a false statement that it is necessary for the victim to pay a loan to the victim through L. The Defendant received KRW 5 million from the victim’s account in his/her name on October 27, 2012, and KRW 3 million from the account in his/her name on December 10 of the same year, and used KRW 19,673,119 from the time he/she received the corporate card on November 9 of the same year to use KRW 19,673,119 until December 20 of the same year. Accordingly, the Defendant by deceiving the victim, thereby acquiring property or property benefits equivalent to KRW 27,673,119.

(b) Embezzlement;

On February 2, 2013, the Defendant returned the amount of KRW 30 million transferred from N to N and embezzled it for the same personal purpose while the Defendant was in custody for the victim, upon request from N, at the parking lot of the Cheongdong-dong, Jung-gu, Seoul Metropolitan Government Cheongdong-gu, Seoul.

Summary of Evidence

“2014Gohap340

1. Partial statement of the defendant;

1. Legal statement of the witness H;

1. Statement made by a witness H in the third protocol of the trial;

1. U statement of a witness in the fifteenth trial records;

1. Statement made by the prosecution with regard to H;

1. Statement made to F and K in the police statement;

1. A service contract for a project, a receipt, a copy of a cashier's check, a statement of transaction by account, and an investment contract;

1. Previous convictions in the judgment: A summary of the summary agreement of the case (the High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court's High Court'

1. Partial statement of the defendant;

1. Statement of the accused and L in the sixth trial records;

1. Statement of witness N in the third protocol of the trial;

1. Statement of each prosecutor's protocol of examination of the accused;

1. Entry of the protocol concerning the examination of suspect concerning L by the prosecution;

1. Statement of each police suspect interrogation protocol (three times and fourth time) against the accused;

1. Entry into a complaint prepared by the N;

1. Statement of replies to an order to submit each financial information to a single bank;

1. Application of Acts and subordinate statutes on account transactions;

1. Article applicable to criminal facts;

Article 7 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 11304, Feb. 10, 2012); Article 7 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 11304, Feb. 10, 201); Article 7 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 11304); Article 30 of the Criminal Act (in addition, Article 347(1) of the Criminal Act (including fraud)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (Article 40 and 50 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Aggravated Punishment, etc. of Act on the Aggravated Punishment, etc. of Specific Economic Crimes)

1. Selection of punishment;

Each Imprisonment Selection

1. Handling concurrent crimes;

The latter part of Article 37 and Article 39(1) of the Criminal Act [Article 39(1) of the Act on the Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Aggravated Punishment, etc. of Specific Economic Crimes) and habitual gambling crimes, and between frauds]

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (i.e., fraud and embezzlement in the case of 2014Da548) (i.e., increase of concurrent crimes with punishment provided for in more severe frauds)

1. Additional collection:

Article 10 (3) and (2) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

A. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Aggravated Punishment, etc. of Specific Economic Crimes) in relation to the G building

The defendant tried to operate H and G buildings (hereinafter referred to as the "building in this case") in partnership. The defendant's act of raising funds to raise expenses to be incurred in the above business is an act for his own business, and a separate contract is required as a basis for settlement of expenses, and the defendant entered into a service contract for business management (hereinafter referred to as the "contract in this case"). The defendant's act of receiving 400 million won from H in accordance with the above contract is merely an act of receiving expenses for his/her business, not an act of arranging loans from financial institutions. Even if the contract in this case was not established at the time of receiving money and valuables, the defendant merely offered convenience for loans to the client, and cannot be said to receive money and valuables for arranging matters belonging to the duties of executive officers and employees of financial institutions.

B. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes in Q [2014Gohap548]

The Defendant, as an employee of Q Q Q’s operating company, made efforts to lend business funds to the Defendant, and only incurred expenses in the process, cannot be deemed to have received money and valuables as consideration for the loan mediation by financial institutions.

C. As to the fraud against the victim N [2014Gohap548]

The defendant made efforts to lend a financial institution to Q Q's staff but did not achieve its purpose, but did not deceiving the victim N as stated in the facts charged.

D. As to the embezzlement against the victim M [2014 high-priced 548]

The defendant did not receive KRW 30 million from the victim M with the request for return to N. Therefore, there is no fact that the defendant embezzled the above money.

2. Determination

A. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Aggravated Punishment, etc. of Specific Economic Crimes) relating to the G building

1) Relevant legal principles

"Good offices" referred to in Article 7 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes mean "act of arranging or promoting convenience between a certain person and the other party with respect to a certain matter." The act of good offices is included in cases where the act of good offices is subject to legitimate job performance, and the act of good offices is established regardless of the actual act of good offices if the good offices received money, etc. under the pretext of good offices. On the other hand, whether there is a quid pro quo relationship between a good offices or an employee belonging to a financial institution and a provider of good offices shall be determined by comprehensively taking into account all the circumstances, such as the contents of good offices, relationship between good offices and a provider of good offices and a provider of good offices, details of and timing for giving or receiving profits, and it shall be sufficient that there is a comprehensive and comprehensive

Where the nature of consideration for other acts is indivisiblely combined, the entire form of consideration for an indivisible act has the nature of consideration for an indivisible act (see, e.g., Supreme Court Decisions 2007Do8117, Jan. 31, 2008; 2006Do7067, Jun. 12, 2008).

2) Determination

Comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and examined by the court, the instant contract was concluded by the Defendant to arrange a loan to a financial institution. It is sufficiently recognized that the Defendant received KRW 400 million from H not only the cost of providing convenience for the loan of a financial institution, but also the cost of the loan of a financial institution as well as the cost of providing convenience for the loan of a financial institution. The Defendant and the defense counsel’s above assertion cannot be accepted.

A) At the investigative agency and this court, H consistently stated that “If the Defendant arranged to borrow a loan of KRW 80 billion through a financial institution, the amount of KRW 50 billion, which is 10 billion, would be paid in advance as service charges, and that it would be paid in advance by centering on down payment, which is 10% of the above contract, was not engaged in the same business until the date of conclusion of the contract, and that there was no discussion to convert a new corporation into the same business contract in the course of promoting the loan as the principal agent after concluding the contract (Article 1-181, 1-368 of the Evidence Record No. 2014, No. 340, No. 181, 1-368, H witness examination record (the third trial date) No. 4, 10, and H witness examination record No. 6).

B) Article 1 of the "Project Brokerage Contract" (hereinafter referred to as the "Contract") prepared under the contract of this case clearly states that "the defendant is an agent for financial services for the purchase of the building of this case and H is the purpose of the contract of this case to procure financial costs to acquire the building of this case." Article 2 (1) states that "the defendant must arrange for a finance of 80 billion won or more at the cost of acquiring the building of this case" (Article 2-12 of the evidence record No. 2014Da340). He received the draft for the preparation of the contract of this case, reflecting the contents of the contract of this case which the defendant wants through F, and then revised the form or part of this contract, and basically, he stated that the portion of the 80 billion won loan of this case which is 5 billion won or more, and that the defendant paid 16 billion won or more as down payment, which is 100 billion won or more, was paid as down payment (the evidence of this case).

C) The Defendant and H were in no special friendly relationship with each other. At this Court, U introduced the Defendant through E to H, and thereafter, she was boomed up to two to three weeks prior to the conclusion of the instant contract. He stated that H and the Defendant were not well-known (the fifth page of the record of the examination of the English witness) and H only twice before the instant contract was concluded (the third page of the record of the examination of the H witness (the record date during the 29th trial).

D) It is excessive to deem that the Defendant’s 4 billion won was a large amount of 5% of the loans up to 80 billion won upon the Defendant’s request for services costs, which is the cost of providing convenience, such as assistance in ordinary loan business, in light of its ratio or amount. Moreover, it is difficult to view that the term of the contract is to have the loan up to 80 billion won within the remainder of one month, and thus, it is difficult to view that the Defendant was money at the ordinary level of loan request. From the prosecutor’s office, it was necessary for a financial expert to cause the PF as it is impossible to use the G products as a security loan, and it was introduced by the FF’s f’s her f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s f’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’.

E) The document prepared by E is consistent with the Defendant’s assertion that the instant contract was merely formally prepared as evidentiary materials for the settlement of expenses incurred in the operation of the business.

(2014 high 340 pages 1-261 of the evidence records. However, with respect to the above argument that conflict between the facts of the preparation of the contract of this case and the facts of this case, it is impossible to listen to the statements of E in a state of unknown whereabouts up to now, and the defendant making the above assertion also has not disclosed specifically how the contract of this case can be used as the basis for settlement of expenses under the contract of this case [ contrary to the defendant's assertion, with respect to the partnership business of this case, because the defendant changed his share of 4 billion won for the service cost of 4 billion won, so the defendant's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 10 billion won' to the above 's 100 billion won' and 's 100 billion won' to the above 's '600.0 billion won'.

B. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes in Q [2014Gohap548]

1) Relevant legal principles

Article 7 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, which belongs to the duties of officers and employees of financial institutions, shall be interpreted to refer to all cases or affairs of the person other than the person himself/herself. In cases where the defendant was engaged in the street activity in exchange for a request by the representative director of a corporation, and without any involvement in the ordinary affairs of the corporation for the convenience of his/her activities, if he/she received the money under the pretext of solicitation by using the corporation's office as a director without any participation in the ordinary affairs of the corporation, it shall not be deemed to be the defendant's own affairs (see, e.g., Supreme Court Decisions 200Do357, Jun. 11, 2002; 2010Do2554, Apr. 29, 2010).

2) Determination

Comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and examined by this court, it is sufficiently recognized that the Defendant received money and valuables and corporate cards in collusion with L and Q from N operating Q to receive a request for issuance of a letter of guarantee from the Korea Credit Guarantee Fund through M in collusion with Q and received the payment for the act of mediation and its indivisible expenses. The above assertion by the Defendant and the defense counsel cannot be accepted.

A) At the investigative agency and this court consistently made a statement to the effect that N consistently offered money and goods to the Defendant regarding loan brokerage consistently. At this court, N knew of the Defendant in Q’s employee or director, and there was no plan for the Defendant to work or work as a staff member, director, or director of Q, and L has issued a corporate card by requesting the Korea Credit Guarantee Fund to provide support as necessary to receive a guarantee fee, and L sent KRW 30 million as necessary for L to engage in secret business (N witness record page Nos. 3, 4, 6 pages), and N also stated that “the Defendant is connected with L,” and that “the Defendant would have provided a loan brokerage from the Korea Credit Guarantee Fund along with the Defendant,” and that it should pay a fee to the Defendant if it is good (the record No. 4, 5).

B) At the investigation agency and this court consistently stated to the effect that L, in response to the Defendant’s talking that the Defendant had a pro rata relationship with the Korea Credit Guarantee Fund 0, it would be possible to obtain a guarantee from the Korea Credit Guarantee Fund, and that “N would no longer obtain a loan through the Korea Credit Guarantee Fund at the time of the establishment of the factory.” In the prosecutor’s investigation, it was true that N would no longer obtain a guarantee from the Korea Credit Guarantee Fund and requested the Defendant to provide a loan to the Defendant, etc., and eventually, it was difficult to obtain a loan in a normal way (Article 1, 243, 244 of the Evidence Record No. 1, No. 20148 of the Evidence Evidence No. 20148), the Defendant requested N to obtain a loan from the financial company, etc. and attempted the Defendant to receive the loan under the pretext of receiving the loan from the financial company, etc. (Article 247 of the evidence record No. 1).

C) The Defendant and N only contacted L only with L, and there was no separate contact (No. 6 pages of the N Examination Record). The Defendant and N did not have any consultation with each other on the issuance of a letter of guarantee from the Korea Credit Guarantee Fund, and L merely delivered all things to the middle and processed the work (No. 7 pages of the L Examination Book).

D) The Defendant used Q Q’s name cards (Evidence No. 2). However, with respect to L’s above order, the Prosecutor stated that “the Defendant’s name was asked from the Defendant to n to see that it could be considered as brode by broman (No. 1st, No. 245 of the Evidence No. 2014Gohap548), and that “the Defendant’s name was not recommended to N as a director of Q Q, but it would be helpful for the Credit Guarantee Fund to carry out its work, and the Defendant’s name was merely made to broman so that it can be seen as his work (LUC No. 3). According to L’s consistent statement, according to the foregoing consistent statement, it appears that the Defendant’s name was merely prepared as a means for loan intermediary activities.

C. As to the fraud against the victim N [2014 high-priced 548] Comprehensively taking account of the following circumstances acknowledged by the evidence duly admitted and investigated by this court, it is sufficiently recognized that the Defendant received 8 million won money from the victim N for the expenses of the loan and used the corporate card after being provided with the corporate card even though the Defendant did not intend to use it as the expense for the loan. The above assertion by the Defendant and the defense counsel is unacceptable.

1) L consistently stated in an investigative agency and this court that the Defendant incurred expenses incurred in promoting loans from the Korea Credit Guarantee Fund, and consistently stated that the Defendant requested money and corporate cards and delivered the content thereof to the victim N, informing the Defendant of the account number known to the Defendant, and the receipt and delivery of the corporate card to the Defendant (Article 1, No. 45, 241 of the Evidence Record No. 2014 and No. 1, No. 45, 241 of the L Examination Record)

2) In the first investigation by the prosecution, the defendant stated that "I did not have any other person before the date of the investigation," "I do not have any other person who does not have any other person," (No. 258 of the evidence record No. 1) and transferred money under R and S's name to the victim N through L in order to pay the drinking value after drinking with his son. The corporate card used personal information without relation to the issuance of the Credit Guarantee Fund's letter of guarantee (No. 1 of the evidence record No. 260, 261 of the above evidence No. 1), which is different from the above contents at the time of the investigation, the defendant stated that "I think that I would like to have used the above evidence or money for the purpose of the first investigation of the suspect before the detention without any specific statement of the defendant (no. 262 and 263 of the evidence record No. 1 of the evidence record No. 263 of the defendant's statement)", and that "I think I would like to have any other person to use the evidence or money."

3) The Defendant promoted the issuance of a letter of guarantee from the Korea Credit Guarantee Fund through M. For this purpose, the Defendant appears to have no particular reason to use the personnel of the Korea Credit Guarantee Fund as expenses or service charges, and the Defendant did not expressly state who used or used the funds in detail in this court.

D. In full view of the following circumstances acknowledged by the evidence duly admitted and investigated by this court as to the embezzlement against the victim M, it is sufficiently recognized that the Defendant used the victim M at his/her discretion without returning it to N even if he/she received a return of KRW 30 million with the request to return it from the victim M and received a refund of KRW 30 million. The Defendant and the defense counsel’s above assertion cannot be accepted.

1) After the third statement of the police, the Defendant consistently stated the fact that he received KRW 30 million from the victim M in several times from the investigative agency. In other words, the Defendant received 30 million from the third statement from the police officer M to receive full return of KRW 30 million from the victim M in cash in the course of investigation (No. 1st page of evidence No. 548 of 2014), and confirmed the fact that he received KRW 30 million in accompanying M in the fourth statement of the police officer, and the Defendant did not return KRW 30 million in cash to the Defendant without having received 30 million in cash from the prosecutor’s office until 30 billion (the first statement of the Prosecutor’s Office was returned KRW 10,112,13 of the evidence record). The Defendant received 30 billion in cash from the victim’s prosecutor’s office to return the remainder of KRW 200,000,0000,000 from the victim’s 300,000 won in cash.

2) The victim M's statement that the defendant used his account in his name and that he did not know about the above KRW 30 million is difficult to believe. In other words, the victim M made a clear statement that the victim M returned 30 million won in cash to the defendant at the time of the police investigation (Article 112 and 113 of the above evidence record), ② the defendant clearly stated that he did not use his account in his name and consistently stated that he did not use his account in his name (the third page of the defendant's newspaper record (the third page of the date of the sixth trial) and the third page of the defendant's newspaper record (the third page of the defendant's newspaper record)), ③ according to the letter of response to the submission of financial information to Han Bank (the sixth trial date), the victim M directly collected KRW 30 million,000,000,000 to the victim M in order to reduce his involvement in the crime in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the second trial date).

3) L has been asked to return directly to the Defendant at the prosecution around January 2013 and around February 2, 2013 of the same year. Since March 2013, L made a statement that “N did not contact and urged it to return to oneself.” The Defendant stated that he would be expected to return 30 million won to himself from March 2013 to April 201, that “the amount he received ( approximately KRW 60 million) would be resolved in a clean fashion,” and thereafter, the Defendant failed to inform the N’s account number due to contact with the Defendant (No. 2014Da548 of evidence evidence record No. 1). The statement of this case conforms to the purpose of the Defendant’s statement at the investigative agency [the Defendant’s defense counsel’s refusal to answer to questions at the time of this court’s refusal to return to the Defendant’s defense counsel, but the Defendant did not appear to have known the Defendant’s defense counsel’s statement that “the Defendant’s defense counsel’s refusal to answer to question is one of the Defendant’s defense counsel.”

Reasons for sentencing

1. Cases No. 2014 high-priced340;

(a) Scope of applicable sentences under law: Imprisonment with labor for one month to five years;

B. The crime in the holding is not subject to the sentencing guidelines, since the crime of habitual gambling, the crime of fraud and the crime of concurrent crimes in the latter part of Article 37 of the Criminal Act are related to the crime in which the judgment becomes final and conclusive, but the scope of the recommended sentence

[Extent of Recommendation] Basic Area of Punishment No. 4 (at least 100 million won) concerning the duties of officers and employees of a gold Eup institution (at least 2 years to 6 months to 6 months of imprisonment)

【Special Convicted Person】

C. Determination of sentence: The crime of this case for the two-year period of imprisonment not only damages the public’s trust in the duties, fairness, etc. of executives and employees, such as financial institutions, but also disturbs the sound order in the financial market, and thus is highly likely to be subject to criticism. Furthermore, the amount of loans that the Defendant intended to arrange is large in amounting to KRW 80 billion, and the amount of the commission of mediation received in return is a large amount of 400 million won. The Defendant has a criminal record of the same kind of punishment, and did not return

However, it is necessary to consider the balance between the defendant and the defendant's failure to actually participate in the loan brokerage, and the crime of habitual gambling and the case of being judged simultaneously with the crime of fraud.

The punishment as ordered shall be determined by taking into account the above circumstances and the defendant's age, character and conduct, environment, motive and background leading to the crime, means and consequence thereof, circumstances after the crime, etc., and all of the sentencing conditions shown in the arguments.

2. The scope of applicable sentences under law: Imprisonment with prison labor for one month to 15 years.

B. The sentencing criteria are not applicable because the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Aggravated Punishment, etc. of Specific Economic Crimes) and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes are mutually concurrent crimes, but the range of recommending

[Extent of Recommendation] Class 3 (at least 50 million won, less than 100 million won) basic area (at least one year to 6 months) (at least one year to 2 years and 6 months), which has no basic area (at least 50 million won, 100 million won) for the duties of officers and employees of financial institutions (Fraud)

[Extent of Recommendation] General Frauds Type 1 (less than KRW 100 million)

[Special Mitigation] 3 Crimes (Embezzlement and Breach of Trust) who is not subject to punishment

【Scope of Recommendation】

Type 1 (100 million won) Reduction Area ( Imprisonment of one month to 10 months)

[Special Mitigation] Where considerable damage has been recovered;

The final sentence scope following the increase of the* In addition, one year and six months to three years and March 10. The sentence of imprisonment: the crime of this case in October is likely to disrupt the sound order in the financial market as well as the damage the public’s trust in the duties and fairness of officers and employees, such as financial institutions, etc.; furthermore, even though the Defendant did not have any intent or ability to use it as the expense for issuing a letter of guarantee from the Korea Credit Guarantee Fund, the Defendant committed fraud, such as personal consumption of money and valuables and corporate cards provided by the victim N, and even if he received a request from N for the return of KRW 30 million from the victim M to N, he arbitrarily consumed and embezzled it. The Defendant’s crime of this case as to the overall crime is inferior.

However, in relation to the defendant's crime of fraud, it seems that the defendant made efforts to issue a letter of guarantee requested through M to some extent, and the victim expressed his/her intention not to punish the defendant by restoring the damage substantially. In relation to the defendant's embezzlement, it seems that the damage of N, a substantial victim, has been recovered considerably.

Parts of innocence

1. 공소사실의 요지( 2014고합1472) H은 2011. 12. 초순경 서울 강남구 W에 있는 X호텔 커피숍에서 피해자 K에게 'G 복합상가를 인수하려고 포스코건설과 협의 중인데, 그 인수자금 800억 원을 A라는 사람이 대출해주기로 하였다. A는 부동산을 다수 보유하고 있는 수천억 원 상당의 재력 가로, Y은행 설립자의 손자이고, 하룻밤에 도박으로 수억 원을 잃어도 눈도 깜짝하지 않는 사람이다.'라고 말하였다. 또한 H은 E과 함께 같은 달 20.경 서울 강남구 Z에 있는 AA병원 내 병실에서 피해자에게 'A의 부동산을 담보로 800억 원의 대출을 받기로 하였는데, 사전에 감정료, 수수료 등이 들어가니 4억 원을 빌려달라. 대출이 이루어지면 8억 원을 돌려주고, 만약 대출이 이루어지지 않더라도 재력가인 A로부터 위약금 포함 5억 원을 직접 돌려받을 수 있도록 해주겠다'라고 말하였다.

On the 22th day of the same month, the Defendant and E continued to talk with F and U on the victim at the coffee shop located in Seocho-gu Seoul, Seocho-gu, Seoul, and then re-enter the same purport. The Defendant took place as if he could receive a large amount of loans as security by using real estate as his considerable re-facencies, and if the victim did not receive a large amount of loans from the Defendant, as discussed in advance, the Defendant stated in the lower part of Article 3 (Payment of Service Costs for Project Project Project Project Scentain), “The refund and penalty shall be paid to the victim” under the proviso of Article 3 (Payment of Service Costs) of the “Contract for Project Scentainment” as discussed in advance, and signed and sealed on the contract after confirmation.

However, there was no intention or ability to obtain a loan of KRW 80 billion as security because the Defendant did not own any property, such as special real estate, at all, and even if the Defendant and H received KRW 400 million from the victim, it was thought that they were used in dividing them into E, etc., and did not think that they were normally used for the loan of acquisition fund, and there was no intention or ability to directly return 500 million won, including penalty, to the victim upon failure of the loan.

Accordingly, the defendant deceivings the victim as above, and received 400 million won cashier's checks from the victim as a loan fee, and acquired them.

2. Determination

A. Relevant legal principles

The crime of fraud is established by deceiving another person to omit a mistake and inducing a dispositive act, thereby obtaining property or pecuniary gain. The causal relationship between deception, mistake, and property disposal act is required. On the other hand, the existence of causal relationship between such deception and property disposal act should be determined objectively and objectively in consideration of the transactional situation, the other party’s knowledge, character, experience, occupation, and other specific circumstances at the time of such act. Therefore, in a case where the defendant’s act causing the victim’s property disposal or property disposal act is conducted under close relation with the victim’s failure or performance of any business, the existence of causal relationship is not determined on the basis of the victim’s financial power or credit status, and the relationship between the victim and the defendant, the degree of awareness and involvement of the victim in the pertinent business, the victim’s specific circumstance in which the victim made property disposal in relation to the pertinent business, the possibility of success of the relevant business, and the victim’s experience and occupation, etc. shall be determined objectively and objectively (see, e.g., Supreme Court Decision 201Do8298, Mar. 29, 2013).

B. Determination

In light of the following circumstances acknowledged by the evidence duly adopted and investigated by the court, namely, ① the end of Article 3 of the Agreement, and the refund and penalty of this Article shall be paid to the K Accounting Officer." The proviso is written, and the defendant who confirms the addition of the contents is sealed (No. 2, No. 1473 of the Evidence Record No. 2, No. 2014 and No. 1473 of the Agreement). ② The victim clearly stated in this court that the defendant would return KRW 500,000 if he/she was wrong, ② the victim stated that he/she would return the amount of KRW 50,000,000 to him/her, and stated that he/she signed and sealed the contract (the second page of the K Examination Recording (the fifth trial date)] in compliance with E’s above proviso], it is recognized that the defendant would conclude the contract of this case and receive KRW 40,000,000 from the victim under clear understanding of the proviso.

However, in light of the following circumstances acknowledged by the record, the evidence submitted by the prosecutor alone stated that the defendant was to obtain a loan of KRW 80 billion to the victim as security, or that even if the defendant was to receive KRW 400 million from the victim, it is difficult to view that the defendant did not think that he was to use it as expenses necessary for the loan of acquiring funds, or that he was deceiving the victim by falsely indicating his ability to repay to the victim even though he did not have the intention or ability to directly return it to the victim, or that he did not have any other evidence to acknowledge it.

1) There is no evidence to acknowledge that the Defendant made a speech or behavior to explain the lending plan to the victim or to see his ability to repay his refund and penalty before and after the conclusion of the instant contract. Rather, in this court, the victim made it clear that the Defendant “to return KRW 500 million if the Defendant was wrong.” However, at the place of conclusion of the instant contract, the victim only appeared the Defendant at the time of the conclusion of the instant contract, and there was no fact that the Defendant was the Defendant in connection with the acquisition of G building, and there was only talking about the Defendant from H and E (as of the fifth trial date), and the first and second pages of the record of the examination of the witness in K (as of the fifth trial date), the victim made a statement that he would arrange for the lending of KRW 80 billion by any method, and that he was heard from H and E before that date (as of the above record, the victim did not appear to have caused much real estate to the Defendant” at the prosecutor’s office, and that the Defendant did not make any further statement to the Defendant that the Defendant did not appear as evidence 15714.

2) 아래의 사정들에 비추어 보면, 피고인이 피해자에게 '피고인의 부동산을 담보로,800억 원의 대출을 받기로 하였다'고 말하였다는 사실이 합리적 의심의 여지없이 입증되었다고 보기 어렵다. 즉, ① 피해자는 이 사건 계약 체결 당시 동석하여 이 사건 계약서 내용을 확인한 바 있는데, 위 계약서에는 피고인이 대표로 있는 주식회사 AB가 이 사건 상가의 인수비용 800억 원 이상의 금융을 '주선 '한다고만 기재되어 있을 뿐 피고인의 부동산을 담보로 대출을 받는다는 내용은 전혀 나타나 있지 않을 뿐만 아니라, 피해자의 주장대로 피고인이 자신의 부동산을 담보로 제공하고 800억 원을 대출받아 주는 것이라면, 피고인으로서는 대출금의 변제가 이루어지지 않을 경우 담보로 제공한 부동산의 소유권을 상실할 위험을 감수하여야 함에도, 그 대가로는 금융조달금액의 5%에 불과한 40억 원만 지급받는다는 것은 상식적으로 이해하기 어려운 내용의 계약임에도, 공인회계사인 피해자가 이 사건 용역계약의 내용에 관하여 의문을 제기하거나 구체적인 담보 부동산 내역을 확인하지 아니하였다는 것은 쉽사리 납득하기 어려운 점, ② 피고인이 실제로 이 사건 계약 체결 후 이 사건 건물 인수사업의 주체였던 주식회사 AC(이하 'AC'라고 한다) 명의로 AD 등으로부터 입점의향서를 받고, 대신자산운용 주식회사(이하 '대신자산운용'이라고 한다)를 통해 이 사건 상가를 담보로 한 대출을 추진하는 등 자신 소유의 부동산이 아닌 이 사건 건물을 담보로 한 대출을 추진한 점(2014고합1472호 증거기록 제1권 제415쪽), ③ 피해자는 수사기관에서 '2011. 12. 19.경 H이 입원한 병원에서 H으로부터 "A가 자신의 부동산을 담보로 돈을 빌리기로 하였다"는 이야기를 하는 것을 그곳에 있던 AE과 함께 들은 바 있다'고 진술하였으나(위 증거기록 제1권 제90쪽), AE은 수사기관 및 이 법정에서 '당시 H으로부터 피고인이 어떤 방법으로 800억 원을 구할 것인지에 관하여는 들은 바 없다'(위 증거기록 제1권 제168쪽), '피고인의 부동산을 담보로 800억 원을 조달하기로 하였다는 사실은 전혀 모른다. 당시 H이 입원한 병원에서 H이 "A가 자신의 부동산을 담보로 돈을 빌리기로 했다"는 취지로 말한 것에 관하여는 기억이 나지 않는다'(AE 증인신문 녹취서 제6, 9쪽)고 진술한 점, ④ F은 경찰 조사에서는 '2011. 12. 22.경 피고인과 H 사이에 이 사건 계약을 체결할 당시 피고인이 위 800억 원을 자신의 부동산을 담보로 구하겠다고 했는지, 아니면 PF 형식으로 빌리겠다고 하였는지 여부를 그 자리에서는 들은 바 없고, 그로부터 며칠 전에 E으로부터 듣기로는 PF 형태로 빌린다고 들었다'고 진술한 점(위 증거기록 제1권 546쪽), ⑤ 피해자에 앞서 H으로부터 투자 제안을 받았던 AF는 이 법정에서, H으로부터 'A회장(피고인을 지칭함)이라는 사람이 G 건물을 담보로 PF를 일으킨 다', 'A회장이 아는 돈이 많은 다른 회장이 G를 담보로 PF를 일으킨다', 'A회장님이 부동산이 많으니까 그 부동산으로 돈을 일으킨다'는 세 가지 방안을 모두 들었고, 피해자가 H으로부터 어떤 내용의 방안을 들었는지는 알지 못한다고 진술하였는바(AF 증인신문 녹취서 제1 내지 3쪽), 피해자가 H으로부터 들었던 방법들 중 피고인에게 불리한 내용으로 진술하였을 가능성을 배제할 수 없는 점 등에 비추어 보면, 검사가 제출한 증거들만으로는 피고인이 피해자에게 '피고인의 부동산을 담보로 800억 원의 대출을 받기로 하였다'고 말하였다고 인정하기에 부족하고, 달리 이를 인정할 만한 증거가 없다.

3) In light of the following circumstances, it is difficult to view that the Defendant merely thought that he would have used 400 million won to take over the instant commercial building with H, etc. even if he received 400 million won from the victim, and that he did not think that he would have used H as necessary costs for acquiring funds. That is, ① the Defendant actually promoted the loan of the instant building by means of asset management instead of the name of AC (No. 414 through 417 pages of Evidence No. 1472 of 2014, evidence No. 1472), ② the Defendant, H, F, and E did not know that it was impossible to use PE loan to the instant commercial building at the time of the instant contract (the date of 30 days prior to the date of 29 days prior to the date) by dividing the Defendant’s recording paper No. 8, H examination record (the date of 29 days prior to the date of 30 days prior to the date) by 16, 1600, 5, 5, 30100, and H account of U.

4) On December 12, 2011, the victim entered into an investment contract with AC to the effect that it will invest KRW 400 million in the project project funds under the instant contract. H jointly and severally guaranteed the obligation to pay proceeds of KRW 800 million according to its investment and the obligation to pay penalty of KRW 500 million [the 2014 Gohap 340, No. 2-53 of the evidence evidence examination record (the 29th trial date)]. The victim did not receive a separate loan certificate from the defendant, but it was determined that H did not have any property at the time, and the victim would not have been aware of its ability to guarantee the principal, and the victim would not have been able to pay the penalty of KRW 400,000,000,000,000,000,0000,000,000,0000,000,000,000).

3. Conclusion

Thus, this part of the facts charged against the defendant constitutes a case where there is no proof of crime, and thus, the defendant is acquitted under the latter part of Article 325 of the