Defendant

Orscop (prosecutions) and hulllle (public trial)

Attorney Noh Jeong-hee

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

Punishment of the crime

1. A person subject to the Aggravated Punishment Act;

피고인은 2016. 10. 7.경 ◁◁시 (지번 등 생략)에 있는 피해자 공소외 37이 운영하는 '▷▷‘ 옷가게에서 피해자에게 “돈을 빌려주면, 경매에 나오기 직전이나 경매에 나온 관광버스를 싸게 구입한 후 되파는 방법으로 수익을 내서 그 이득금을 지급해 주겠다”라고 말하여 5,000만 원을 빌리고 며칠 후 5,700만 원을 갚는 방법으로 피해자를 믿게 한 후, 2016. 10. 11.경 같은 장소에서 위와 같이 말하면서 9,000만 원을 빌려달라고 하였다.

However, the Defendant had no intention or ability to pay the benefit by resaleing a tourist bus even if he/she borrows the money from another person in return for the repayment of the debt amounting to four billion won at the time.

Accordingly, the Defendant, by deceiving the victim as above, received KRW 90 million from the victim’s account under the name of the Defendant on the same day, and received a total of KRW 2.36 billion from around that time to July 4, 2017 in the same way as indicated in the separate crime list, from around 36 times in total.

2. Fraud;

In September 2017, the Defendant called the victim by phoneing to the victim and received the tema tour event in the name of the victim. If the Defendant received the above company, he/she may receive a loan from a community credit cooperative as collateral and pay the money that he/she has not repaid before he/she received, and may operate a corporation together with a corporation. A certificate of personal seal impression, a certificate of seal impression, and an identification card are used to take over the company.”

However, in fact, the defendant was able to obtain a loan by setting up the victim as a joint guarantor using the above certificate of personal seal impression which belongs to the true use and received, and there was no intention or ability to take over the company in the name

이로써 피고인은 위와 같이 피해자를 기망하여 이에 속은 피해자로부터 같은 날 ◁◁시 소재 피고인이 운영하는 ‘공소외 11’ 사무실에서 시가 불상의 인감증명서 등을 위 ‘◇◇관광’ 직원인 공소외 38을 통해 주1) 교부받았다.

3. Forgery of private documents and the display of private documents;

피고인은 2017. 9. 28.경 익산시 (주소 3 생략)에 있는 ‘법무법인 ♤♤’ 사무실에서 위 공소외 38로 하여금 공정증서 위임장의 채무금란에 “일억육천만 원”, 대여일란에 “2017. 9. 28.”, 변제일란에 “2017. 11. 28.”, 이자란에 “연 12%”, 연체이자란에 “연 25%”, 채권자란에 “공소외 39”, 채무자란에 “(유)◇◇관광”, 연대보증인란에 “피고인, 공소외 37”, 위임인란에 “피고인, 공소외 37”이라고 기재한 뒤 그 이름 옆에 위와 같은 경위로 받아 가지고 있던 공소외 37의 도장을 찍도록 하였다.

이로써 피고인은 공소외 39로부터 1억 6,000만 원을 차용하는 데 행사할 목적으로 공소외 38로 하여금 권리의무에 관한 사문서인 공소외 37 명의로 된 위임장 1장을 위조하게 하고, 같은 일시, 장소에서 그 위조 사실을 모르는 ‘법무법인 ♤♤을’의 성명 불상의 직원에게 위와 같이 위조한 위임장을 마치 진정하게 성립한 문서인 것처럼 교부하게 하여 이를 행사하였다.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of the witness, Nonindicted 37 and Nonindicted 38

1. Each police suspect interrogation protocol against the accused (including statements of Nonparty 37);

1. Each police statement on Nonindicted 37 and Nonindicted 40

1. Submission of reference materials, a certified copy of the register, a confirmation of facts, a statement of bank transactions, the accused and written contents, the accused and written contents, the full details of transactions with the accused, power of attorney, authentic deeds, a loan certificate and a statement of circumstance, each official document (in response to a request for investigation cooperation), reply to each request for the provision of each financial transaction information, the response to the statement of transactions in the Nonghyup Bank (Defendant), Korea Bank (Defendant), the Nong Bank (Defendant), the Nong Bank (Defendant), the Nong Bank's statement of transactions in the Nong Bank (Defendant), the Nong Bank's statement of transactions in the NongHy-gu Agricultural Bank (Defendant), the statement

1. Each investigation report (the sequence 3, 12, 22, 25, 47, 48, 52, 58 of the evidence list);

Application of Statutes

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

Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 15256, Dec. 19, 2017); Article 347(1) of the Criminal Act; Article 347(1) of the Criminal Act; Article 231 of the Criminal Act (amended by Act No. 15256, Dec. 19, 201); Article 234 and Article 231 of the Criminal Act (amended by Act No. 15256, Dec. 19, 201)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act / [Aggravation of concurrent crimes with punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) with the largest punishment]

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (The following extenuating circumstances are considered for the reasons for sentencing):

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

A. In relation to the criminal facts of the judgment, the victim suggested that the victim was engaged in a tourist bus business and bond business with the defendant around October 2016 with the money of Nonindicted 41 and Nonindicted 42 that the victim was well aware of, and that the defendant and the victim engaged in a tourist bus business and bond business with the money invested by Nonindicted 41 and Nonindicted 42, and it does not mean that the defendant deceivings the victim that he took profits from a tourist bus auction to acquire money.

B. In relation to the crime Nos. 2 and 3 of the judgment, the Defendant, in the course of borrowing money from Nonindicted 39 to take over the interior tour event under the name of the victim, obtained a certificate of personal seal impression, etc. from the victim with the consent of the victim, and prepared a proxy form

2. Judgment on the crime No. 1

In full view of the following facts and circumstances that can be recognized by the evidence duly admitted and investigated by the court, the defendant can be found to have taken account of the following facts and circumstances: (a) even if the defendant borrowed money from the victim as stated in paragraph (1) of the criminal facts, he/she would not have the intent or ability to pay the benefits by resale of the tourist bus; (b) would make a sum of 2.369 billion won by deceiving the victim to pay the benefits by resale of the tourist bus immediately before the auction or auction. Accordingly, this part of the defendant and the defense counsel’s assertion is rejected.

A. The victim consistently stated that the investigative agency and the court have lent money to the Defendant on the ground that it is necessary to lend money to the Defendant as the Defendant would be going to auction or resell the tourist bus immediately before the auction.

B. In full view of the following circumstances that can be recognized by the adopted evidence of this court, it is reasonable to deem that the victim was accused and paid money from the defendant to the defendant, and it is difficult to deem that the defendant and the bond business are engaged in the business.

(1) The victim stated that the victim’s money out of the money acquired by the Defendant in this court is KRW 100 million, the remainder is the money borrowed from Nonindicted 42, etc., the victim is the principal, and if the victim is not reimbursed from the Defendant, the victim must pay the money to the principal.

(2) On December 9, 2016, the victim sent a text message to the Defendant, stating “1500, 1000, 10000, 1000,0000,0000,00000,0000,0000 to 10,000,000 to 10,000 or more, and requested the Defendant to pay interest on the money lent to the Defendant. In addition, on the part of the Defendant, Nonindicted 41 sent the text message to the Defendant, “I will return the text message,” and “I will return the text message,” and “I will delay reimbursement.”

In light of the above text messages, the victim appears to have urged the defendant to repay money, and the text messages that the defendant and the victim have lent money to a third party and receive interest, etc. are not found.

(3) The meeting civil petition letter (Evidence No. 2) submitted by the Defendant appears to have referred to the situation in which the victim was urged to pay from the victim's will who was deceiving the Defendant to pay the money to the Defendant, and it is difficult to see that the Defendant and the victim engaged in the bond business.

(4) As seen in the following C. D., as seen in the foregoing paragraph, the Defendant only paid the Defendant’s personal debt to the creditors of the Defendant, and there is no particular evidence to deem that the Defendant and the victim engaged in the bond business, such as lending money to a third party.

C. The Defendant also acknowledged the following facts at an investigative agency: ① (a) the victim did not receive money in exchange for money transactions with the Defendant from October 2016 to July 2017; (b) the Defendant’s financial standing had been difficult at the time of commencing money transactions with the victim; (c) the Defendant paid money to other creditors with the victim with the money of the victim and repaid the money to the other creditors; and (d) the Defendant used it for any purpose different from the actual contents of the victim, such as paying the money to the other creditors with the money of the victim; and (e) the Defendant paid the money to the other creditors with the money of the victim.

D. The Defendant: (a) immediately transferred most of the money deposited by the victim to the Defendant’s personal creditors, including Nonindicted 43, Nonindicted 44, and Nonindicted 45, and (b) did not actually purchase a tourist bus or use it for the expenses of the tourist bus business. Nonindicted 43, Nonindicted 44, and Nonindicted 45, etc. in an investigative agency, the Defendant recognized that Nonindicted 43, Nonindicted 44, and Nonindicted 45, etc. were personal monetary traders with the Defendant. (b)

E. If the victim knew in advance that he would use the money that he received from the victim to pay his personal debt, it is difficult to view that the victim borrowed money from his own person and lent 2.369 billion won in total to the defendant, and in fact, the victim stated in the investigative agency that "I knew that the defendant would pay his profit through normal tourist buses and corporate transactions, and it is entirely known that he would have lent his money to the defendant, or that he is making money transactions in such a way as to prevent it from returning."

F. The Defendant asserts that the amount of money not paid to the victim is less than KRW 2.369 billion in the damage amount to the crime of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud). However, as seen in the above paragraph (c), the Defendant acknowledged in an investigative agency that “the amount not paid by the victim in the course of paying money transactions with the Defendant from October 2016 to July 2017 shall be KRW 2.36 billion over 36 times.” Furthermore, in a fraud with the content of acquiring money, if there is a delivery of money by deception, the crime of fraud is established only because it infringes on the victim’s property, and even if there was no considerable price or there was no damage to the whole property of the victim, it does not affect the establishment of the crime of fraud (see Supreme Court Decision 2006Do7470, Jan. 25, 2007). Accordingly, the Defendant’s assertion that the amount of money paid by the victim does not affect the whole victim’s establishment of the crime of fraud.

3. Determination as to facts constituting the crime Nos. 2 and 3

In full view of the following facts and circumstances that can be recognized by the evidence duly admitted and investigated by this court, the fact that the defendant deceptions the victim as necessary to take over theme tourist tour tour guide as stated in paragraph (2) of the crime committed by the defendant, thereby deceiving the victim, and forging and using a proxy form in the name of the victim by using a certificate of the personal seal impression.

A. The victim consistently stated that the investigative agency and this court accepted theme tourism in the Bapo in the name of the victim, and the victim would repay the victim's obligation by facilitating theme tourism. Since the victim's certificate of personal seal impression, etc. is required in the process of accepting theme tourism, the victim consistently stated that the victim issued the certificate of personal seal impression, etc. to Nonindicted 38 as required by the victim.

나. 공소외 38은 수사기관과 이 법원에서 2017. 9. 28. 피고인으로부터 ‘피해자에게서 인감증명서를 받아서 익산에 있는 법무법인 ♤♤ 사무실에 가져다주어라’, ‘목포 여행사 법인 주식 인수하는 데 쓸 거야’라는 말을 듣고 피해자로부터 인감증명서 등을 받아 법무법인 ♤♤ 사무실에 갔는데, 채무에 공증을 서는 내용이라 잘못되면 공소외 38에게 피해가 갈 수 있으므로 공정증서에 서명을 하기 전에 피고인에게 전화를 하였고, 피고인이 ‘괜찮으니까 다 이야기되었으니까 빨리 끝내라.’고 말하여 피해자와 피고인 사이에 이야기가 끝난 것으로 생각하고 공정증서를 작성하였다고 진술하였다.

C. The Defendant stated at an investigative agency that “In September 2017, the Defendant was at the time when he had no mind as a matter of the obligation, and therefore, he did not clearly state whether he had talked before setting up the victim as a joint and several surety or whether he had obtained the consent after setting up the joint and several surety.” On the other hand, the Defendant stated at the investigative agency that “The victim was given the Defendant a later hearing about the fact that he was carrying the lower amount as a joint and several surety, but it does not have any fact that he consented in advance.”

Reasons for sentencing

1. Scope of applicable sentences under law: Imprisonment with prison labor for a year and six months from June to June 22;

2. Application of the sentencing criteria;

(a) Basic crime: Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), and fraud 9);

[Determination of Punishment] General Fraud. Type 3 (at least 500 million won, less than 5 billion won)

[Special Sentencing] Reduction element: Where the victim is fully responsible for the occurrence of the crime or the expansion of damage;

[Scope of Decision and Recommendations] Reduction Area, Imprisonment of 1 year and 6 months to 4 years

(b) Concurrent crimes under subparagraphs 1 and 2: Crimes of forging private documents and uttering of private documents;

[Determination of Punishment] Type 1 (Counterfeit, Alteration, etc. of Private Document)

【Special Convicted Person】

[Scope of Decision and Recommendations] Basic Field, 6 months to 2 years of imprisonment

(c) Scope of recommending punishment based on the standards for handling multiple crimes: One year and six months to five years (in addition to the upper limit of the scope of punishment for basic crimes, one-half of the upper limit of the range of punishment for primary crimes and one-third of the upper limit of the range of punishment for secondary concurrent crimes, respectively).

3. Determination of sentence: Imprisonment with prison labor for a period of two years and six months;

The crime of this case is not against the nature of the crime in light of the circumstance of the crime, method, and degree of damage, etc. by deceiving the defendant to pay the proceeds by means of resale of tourist buses held immediately before or after the auction, and by deceiving the victim to receive a loan under the victim's name even though he was planned to obtain a certificate of the victim's personal seal impression, etc., and by deceiving the victim to take over a tourist event under the victim's name even though he was planned to obtain a loan by means of the victim's certificate, etc., and using the proxy certificate of the victim's name was forged or used. Despite the maximum amount of damage caused by the crime of this case, the defendant did not deny all the crime and did not take any specific measures for recovery from damage.

However, there is no past record of criminal punishment or a fine heavier than that of the defendant prior to the same crime, and in the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), the fact that the victim seems to be partially responsible for the occurrence of the crime or the expansion of damage by lending large amounts of money from the witness without closely checking the specific contents of the business in which the victim intends to obtain high profit in a short period, and paying it to the defendant, etc. shall be considered as favorable to the defendant, and the punishment shall be determined as per the order, comprehensively taking into account the various sentencing conditions shown in the argument of this case, such as

(attached Form omitted)

Judges Park Jong-young (Presiding Judge)

주1) 검사는 제5회 공판기일에서 ‘◁◁시 ♡♡동에 있는 피고인이 운영하는 ◇◇관광 사무실’을 ‘◁◁시 소재 피고인이 운영하는 공소외 11 사무실’로, ‘◇◇관광 직원인 공소외 38로 하여금 교부받게 하였다’를 ‘직원인 공소외 38을 통해 교부받았다’로 변경하는 내용으로 공소사실을 변경하였다.

Note 2) Evidence 164 pages

Note 3) Evidence records 171 pages

Note 4) Evidence 811, 812

Note 5) Evidence 794 pages

Note 6) Evidence 801 pages

Note 7) Evidence 813 pages

Note 8) Evidence 815 pages

9) The sentencing criteria set a type of fraud crime on the basis of the sum of the amount of profit for the same concurrent crimes.