2013No101 Computer, etc. Fraud (Partially Accepted Crime Name Fraud)

1. The lecture;

2. KimB

3. KimC.

Defendants

Yellow-time (prosecution) and scarcity (public trial)

Attorney Kim Yong-soo, Kim Hong-man (for defendant Kang-A),

Law Firm Geum River

Attorney Kim Jong-won in charge (for defendant KimB)

Attorney Kang Jae-sik (for the defendant Kim C)

Changwon District Court Decision 2012Ma2031 Decided January 4, 2013

April 4, 2013

The judgment of the court below is reversed.

Defendant Gangnam and KimB shall be punished by imprisonment with prison labor for one year, and by imprisonment with prison labor for eight months. However, with respect to Defendant KimC, the execution of the above sentence shall be suspended for two years from the date this judgment became final and conclusive.

1. Summary of the grounds for appeal by the Defendants

The punishment sentenced by the court below to the defendants (one and half years of imprisonment, and eight months of imprisonment) is too unreasonable.

2. Determination

A. Reasons for common sentencing to the Defendants

All of the defendants' number of victims due to the crime of this case reaches 836 persons, and the total amount of damage exceeds 1.6 billion won, and the crime of this case caused by the defendants continues for a long period from February 2009 to December 201, and since the whole country, the investigation of D was initiated with the same method as the crime of this case, the victims of this case appear to be the ordinary people who received a loan from D (hereinafter referred to as "D"). The victims of this case are officers of financial institutions that require high morality and expertise, and the defendants are officers of financial institutions that have no critical mind while engaging in large-scale crimes such as the crime of this case.

However, the following facts are favorable to the Defendants: (a) the Defendants were aware of the facts charged in the instant case; (b) there was no particular criminal power against the Defendants; (c) the full amount of damage was returned through D following the commencement of the investigation; (d) a considerable number of victims wanted to take the Defendants’ preference; and (e) the Defendants did not commit the instant crime to gain personal benefits. (b) At the time of the commencement of the instant crime, D standing directors did not exist; (c) the final approving authority was the head of the association; and (d) even in relation to the credit business, the said Defendant was the said Defendant, the head of the association; and (d) even though some employees oppose, it is difficult to exempt the Defendants from liability for taking part in the illegal action of D members as the head of the association by encouraging the adjustment of interest rate through a public notice.

However, in full view of the circumstances favorable to the above defendants, such as the circumstances favorable to the above defendants, such as the circumstances favorable to the above defendants, such as the character, conduct and environment of the above defendants, and the background and result of the crime in this case, the circumstances after the crime, etc., the punishment imposed by the court below is somewhat inappropriate and unreasonable, and thus, the above defendant's above assertion is justified.

C. Defendant KimB, even before the introduction of the standing director system, was in charge of the central role of practice on behalf of the president of an association, which is non-financial business, and the fact that there was a problem of additional interest from D's personnel KimE, disregarding and implementing it, etc. are unfavorable to the above Defendant.

However, in full view of the circumstances favorable to the above defendant, including the fact that the health of the above defendant is not good, and all the circumstances that are favorable to the above defendant, such as the character, conduct and environment of the above defendant, the background and result of the crime of this case, and the circumstances that are conditions for sentencing as shown in the arguments and arguments, the punishment of the court below is somewhat inappropriate, and thus, the above argument of the above defendant is justified.

D. The above Defendant appears to play a leading role to a certain extent as a person in charge of the crime of this case as a person in charge of the crime of this case, such as explaining the proposal of interest rate to other executives. The above Defendant did not actively report the fact that the interest rate of this case is illegal at the executive committee or the board of directors, etc., even though he had been aware of the meaning of the interest rate of this case as a person in charge of credit business in financial institutions for a long time.

However, the above defendant was in a position to receive instructions from the defendant Gangwon-A, the former president, the defendant KimB, in the position of credit business at the time when the proposal of interest rate increase was discussed. Since January 1, 2009, the above defendant had no right to make decisions at the board of directors confirming D's interest rate change from credit business to management. The defendant did not participate in the process of committing the crime of this case, and the defendant is responsible for the livelihood of his family members. In full view of all the circumstances favorable to the defendants, favorable to the above defendants, such as the circumstances, character and environment of the above defendant, the background and result of the crime of this case, the circumstances after the crime of this case, etc., and all the circumstances that are conditions for sentencing as shown in the records and arguments, the above defendant's above argument is somewhat unreasonable. Thus, the above argument of the above defendant is justified.

3. Conclusion

Therefore, the defendants' appeal is justified, and the judgment of the court below is reversed and it is decided again as follows.

Criminal facts and summary of evidence

The summary of the facts constituting an offense and evidence recognized by this court is as shown in each corresponding column of the judgment below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

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

Articles 347-2 and 30 of the Criminal Code [Article 347-2 and 30 of the Criminal Code [the point of fraud by use of computers, etc. (the part of receipt of excess interest by automatic transfer], choice of imprisonment] Articles 347(2) and (1), and 30 of the Criminal Code [the point of fraud (the part of receipt of excess interest by automatic transfer]

2. Aggravation for concurrent crimes;

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

3. Suspension of execution;

Defendant Kim C: Judgment on the assertion in the trial of the defense counsel in the case of Defendant Kang-C under Article 62(1) of the Criminal Act (the favorable circumstances in light of the above reasons for reversal)

1. Summary of the assertion

Defendant Gangnam-A retired from the president of the Association on February 27, 2010 and did not participate in the instant crime. As such, Defendant Gangnam-A cannot be held liable as a co-principal for the crime after the said Defendant retired.

2. Determination

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

In order to be established, a subjective requirement is the intention of co-processing and an objective requirement, which requires the fact of implementation of a crime through functional control over a functional act based on a co-processing. The intention of co-processing is insufficient to recognize the crime of another person and to accept it without restraint, and the intention of co-processing is to move one another's own intent by using one another's act as a co-principal. In addition, in a co-principal, in a case where one of the co-offenders withdraws from his/her conspiracy relationship before the other co-offender reaches the act of implementation, he/she shall not be held liable as a co-principal with respect to the subsequent act of the other co-offenders. However, a deviation from the conspiracy relationship needs to resolve functional control over the other co-offender's act performed by the conspiracy. Thus, when the co-offender participates in the conspiracy and has an effect on the execution of the other co-offenders, he/she cannot be deemed as escaping from the conspiracy relationship unless removing influence on the implementation, such as actively endeavoring to prevent the crime, etc. (see, e.g., Supreme Court Decision 2008Do294.2094.

On the other hand, in cases where the defendant, who committed part of the crime, which is a single comprehensive crime, escaped from the accomplice relationship, but committed the remaining crime by another accomplice, the defendant bears the responsibility for the crime against the part in which he/she did not participate (see, e.g., Supreme Court Decisions 2005Do630, Apr. 15, 2005; 2010Do9927, Jan. 13, 201).

Comprehensively taking account of the evidence duly adopted and examined by the court below, the above defendant conspired with the defendant KimB, KimC, etc., who are executive officers and employees of D, decided to implement a plan to increase D's profit by arbitrarily raising additional interest rates without the consent of customers at the executive meeting held in December 2008 and January 2009, and then obtaining additional interest rates, decided on January 22, 2009, and instructed each branch of D's office and five branch executive officers and employees of D's office and five branch offices to enter the interest rate higher than the agreed interest rate in the loan account into an automatic transfer or reception counter, and actively prevented the defendant from actively taking part in the crime of this case from taking part in the crime of this case from 836 members from February 1, 2009 to 21 December 31, 2011 to 201.

In full view of the facts charged by fraud using computers, etc. or the facts charged by the act of receiving excessive interest through automatic transfer for a certain period of time due to the act of receiving excessive interest by automatic transfer to a person, the facts charged of fraud by the act of receiving excessive interest from the counter shall continue to be repeated for a certain period under each of the continuous crimes, and the legal interests protected by the said legal interests are the same as that of each of the above crimes, and thus, the above defendant cannot be deemed to have escaped from the public conspiracy relationship with regard to the part concerning the act of acquiring money through automatic transfer or counter receipt after retirement from the partnership, and thus,

The presiding judge, judges and judges;

Judges Park Gyeong-soo

Judges Dong-ju