2016Gohap704 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), public conflict

A

Yielded succession, Gangwon-gu's court (public trial)

Attorney B

June 8, 2017

A defendant shall be punished by imprisonment for one year.

However, the execution of the above punishment shall be suspended for two years from the date this judgment became final and conclusive.

Of the facts charged in this case, the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes is acquitted.

The summary of the judgment of innocence of this case is publicly announced.

Criminal facts

The defendant acquired a factory around August 2012 and completed the construction of the factory, and completed the resale, and was an urgent situation in which money was needed to pay interest on the loans of financial institutions that had been previously incurred.

While the Defendant, along with her husband C, operated a religious community under the name of "Ed Association" in Yangyang-gun of Gyeonggi-do, the Defendant was willing to borrow money and valuables against F, which is the same member to resolve the interest, etc. on the above loans.

On August 22, 2012, the Defendant sent money to the victim F at the above Escopian conference to the victim F, and “Escoping to death, frighting to die, and frighting to death money.” If the Defendant could not seek money by transmitting it by the mobile phone text message to the same purport, he/she made verbal abuse and intimidation as if he/she would cause harm to the body of the victim, and made him/her take 3 million won from G to the post office account under the name of the Defendant at that time, and then, from that time until July 23, 2014, he/she received KRW 152,920,000 in total over 41 times from that time, as in the list of crimes, from that time until July 23, 2014.

Summary of Evidence

1. Partial statement of the defendant;

1. Statement made by a witness F in the first trial record;

1. Investigation report (F statement confirmation);

1. Characters, details of accounts in the name of the F, details of accounts in the name of the Bank, details of accounts in the name of the F, and details of accounts in the name of the F;

Application of Statutes

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

Article 350(1) of the Criminal Act (Overallly, the choice of imprisonment)

1. Suspension of execution;

Article 62(1) of the Criminal Act (Consideration favorable Circumstances to be Considered as Grounds for Sentencing below)

Judgment on the Defendant and defense counsel's argument

1. Summary of the assertion

The defendant did not have to force the victim to borrow money by threatening the victim, and did not have any intention to do so, and there was no causal relationship between intimidation and the receipt of money.

2. Determination

In light of the following circumstances acknowledged by comprehensively taking account of each evidence in the judgment, the Defendant’s demanding the victim to lend money to the victim through high-tension verbal and verbal abuse on several occasions is evaluated as an act of conflict sufficient to cause the victim’s fear of fear, and therefore, it can be sufficiently recognized that the Defendant received money from the victim.

1) From the investigative agency to this court, the victim threatened the victim from "the defendant demanding that the defendant raise funds," etc., and if he/she fails to lend money, he/she was able to do so, or she was allowed to do so. On August 17, 2014, the victim stated to the effect that it was too unfilled so that he/she satisfying down his/her clothes, flicking him/her off his/her clothes, flicking him/her on a shower face, flicking him/her on his/her hand, making him/her wears water into a shower face, fling his/her hand, and flick it into a shower face, so that he/she escaped between the defendant and his/her knowledge."

2) From September 5, 2013 to April 28, 2014, even when considering the details of mobile phone text messages sent and received by the Defendant and the victim during the period from September 5, 2013 to April 28, 2014, the victim’s request for continuous lending of money from the visitors, and where the victim fails to do so, he/she would have the victim’s failure to make such request, i.e., “S. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h.). The victim’s behavior is required to be reported daily, or the bank account in the victim’s name is directed to transfer the funds in accordance

3) Meanwhile, while the Defendant living in a 15-year religious community with the victim, he was in a position to control the overall life of the victim by determining not only the victim’s employment and career, and by receiving loans from the victim’s name or opening and using a bank account, etc. The Defendant appears to have been in a position to take charge of the overall life of the victim. As such, even though he was well aware of the circumstances that the victim was able to keep himself and it was difficult for the victim to receive his instructions, the Defendant would have been scambling or verbal abuse. As seen earlier, even if he was aware of the circumstances that the Defendant would have been scambling with the victim, demanding the victim to lend money to the scambly strudly scams, and if not, the Defendant would have been scambling, the Defendant would have committed a crime of attack, and the causal relationship between the Defendant’s

Reasons for sentencing

1. The scope of punishment by law;

Imprisonment with prison labor for not more than ten years;

2. Application of the sentencing criteria;

[Extent of Recommendation] Class 3 (at least KRW 100,000, less than KRW 500,000) of General Bribery

[Special Mitigation] Ad hoc Inspector

3. Determination of sentence;

In light of the fact that not only the crime is a crime of conflict committed by a defendant who uses a religious superior position, but also the fact that the defendant is consistent to this court until this court, and that the amount of damage is a higher amount, the criminal liability of the defendant is not weak.

However, considering the fact that the victim does not want the punishment of the defendant, the fact that the defendant is the first offender, etc. in favor of the defendant, the defendant's age, character and conduct, environment, family relationship, motive and circumstance of the crime and circumstances after the crime, etc., the punishment as ordered shall be determined by comprehensively taking into account all the conditions of sentencing specified in the arguments

The acquittal portion

1. Summary of the facts charged

The Defendant, who operated an agricultural company H (hereinafter referred to as “H”), was willing to acquire money under the pretext of investment, on the ground of the salted fish business.

On February 2, 2012, the Defendant stated to the effect that the Defendant would make up high profits if he manufactures the salted fish and establishes a selling company in the Seoul Gangnam-gu Office for the third floor of the Seoul Building, and then distribute the salted fish, which would make it possible to make an investment of KRW 500,000,000 to be provided as security by the husband C.

However, the Defendant came to know on November 201 that it was no longer able to receive help from the business and sales capacity of P with a view to selling salted fish, and that it was thought that the Defendant would not have been able to receive help from the business and sales capacity of P, and that it was able to use 500 million won for other businesses or as a sudden lender under the name of investment deposit even though it did not carry on the salted fish business from February 2012. In addition, the Defendant did not think that the value of the security was maintained as it was as soon as it was agreed to provide as it was with the security).

As such, on July 3, 2012, the Defendant deceptioned L, and acquired 500 million won from L to H account by transfer from L to H.

2. Determination

(a) Relevant legal principles;

The establishment of a crime of fraud shall be determined at the time of such act. The criminal intent of defraudation, which is a subjective constituent element of a crime of fraud, shall be determined by taking into account the objective circumstances, such as the Defendant’s re-power environment before and after the crime, the background and content of the crime, and the process of transaction execution, unless the Defendant makes a confession. Meanwhile, the recognition of guilt ought to be based on evidence with probative value that leads to the conviction that the facts charged are true to the extent that there is no reasonable doubt by the judge. Thus, if there is no such evidence, even if there is doubt of guilt against the Defendant, it is inevitable to determine the benefit of the Defendant even if there is a doubt of guilt against the Defendant, and this is also true in determining the criminal intent, which is a subjective element of the crime of fraud (see, e.g.

B. Determination

In full view of the following facts and circumstances acknowledged by the evidence examined in this court, it is insufficient to view that the Defendant did not proceed with the salted fish business as at the time of receiving KRW 500 million from the Jeju J (hereinafter “instant company”) and was thought to have used the investment money for other businesses or as a sudden loan interest in the Defendant’s other businesses, without any reasonable doubt that there was an intention to acquire money in the name of the investment fund, and there is no other evidence.

1) The only direct evidence to the effect that the Defendant was aware of the lack of P’s business and sales capacity from February 2012, 201 that the Defendant did not proceed with the salted fish business is the statement (Evidence Records No. 168, No. 191) of the witness F’s investigative agency (Evidence Records No. 168, No. 191). However, even based on the F’s statement, it is merely a statement that the Defendant was a M business entity, but it was not actually engaged in the business, and that M’s bank account was transferred money in its name

Moreover, in this court, F refers to the question of whether the Defendant had not carried on the salted fish business from February 2012 to the effect that it was a certified public accountant, so it was not engaged in the business and it was not easy to hold it in the business. However, it was stated to the effect that it was "The statement made by the investigative agency is that it reported the details of the passbook." In the end, it is difficult to deem that F's statement to the investigative agency on the termination date of the salted fish business was a evidence to support the fact that the Defendant had not carried on the salted fish business from February 2012.

2) In addition, it appears that the amount of KRW 64 million was transferred to the bank account in Q from July 10, 2012, to the bank account in Q Q from July 10, 2012. Such bank account details are also inconsistent with the facts charged that the Defendant did not carry on the salted fish business after February 2012.

3) Meanwhile, on December 2014, the Defendant introduced the instant company as a vice-chairperson via the introduction of the R Chairperson S. From December 2, 2013 to July 3, 2014, L, who was in charge of the discovery, examination, and follow-up management of investment of the instant company, was frequently exchanged with the Defendant during a approximately six-month period from December 2, 2013 to July 3, 2014. In doing so, L, who was in charge of the discovery of investment, examination, and follow-up management of the instant company, provided that he/she would be an internal director by establishing a special-purpose corporation and suggesting a project investment structure by investing funds from the instant company and distributing profits.

In addition, L is also true to send the sample of the business plan to the Defendant for reference in preparing the business plan, visit the inner plant to conduct an inspection. In light of the circumstances where the instant company decided to make an investment through a review and inspection of the profitability of the salted factory business for a considerable period of time, and where the instant company was considerably involved in the progress of the salted factory business in the instant company, such as L, etc., it is difficult to readily conclude that the instant company made a false statement to the instant company as to whether the Defendant was operating the salted factory and its profitability, etc., and that the instant company decided to make an investment therein.

4) At the time of attracting investment from the instant company, the Defendant offered the company’s land NP as a collateral. In fact, the instant company set up a collateral on the said land; however, since the company set up a second-class collateral prior to the establishment of a collateral on the instant company, the company’s establishment of a collateral on the instant land additionally became a third-class collateral at the time of the establishment of the collateral on the instant company.

L, at the time of determining the investment of the company in this case, grasped the value of the land in this case as KRW 1.1 billion at the time of determining the investment of the company in this case, and deemed the maximum debt amount set up including the right to collateral security of this case to be KRW 900,00,00,000 to be KRW 70,000 if the company in this case becomes the second-class mortgagee due to changes in the middle priority (the steam record No. 21), and the court stated that the company in this case may need additional money at the time, and it is not clear whether there was an explanation as to whether the company was set as the second-class collateral or not. The following circumstances revealed by this, namely, even if the company in this case set the third-class collateral security right to the company in this case, the value of the land in this case was set up at KRW 3,100,000, and later the company's priority registration was cancelled, and thus, the company in this case did not have any obligation under each of the secured debt in this case.

5) The Defendant received KRW 50 million from the instant company, and did not report the details of the instant company’s business progress. Of the said money, the Defendant appears to have used the volume of KRW 350 million to purchase the land or other land, etc. located in Pyeongtaek-si U, etc. or the land, etc. located in Ansan-si where it is difficult to find a direct relation with the salted salted 350 million among the said money.

However, around October 9, 2012, the instant company requested H to answer to the current business progress and the response measures following the increase in prices of raw materials, etc., and the Defendant sent a public letter to the H on October 15, 2012, and November 15, 2012, stating that the fishery products price was so heavy as to be notified of the circumstances, and that it is difficult to achieve the investment rate of small period during November 30, 2012, it is determined that it would be difficult to achieve the investment rate of small period. Accordingly, the Defendant notified that it was a plan to repay KRW 500 million by December 31, 2012. In light of the fact that the Defendant purchased the land of Pyeongtaek-si and Ansan-si was in mind of the relocation of the salted factory, the Defendant’s purchase of the land of Pyeongtaek-si and Ansan-si was not considered to have been in mind of the transfer of the salted factory from the time of attracting the investment amount to the instant company.

C. Conclusion

Thus, this part of the facts charged constitutes a case where there is no proof of crime, and thus, is pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment of not guilty is publicly announced pursuant to Article 5

The presiding judge, judges, and the Yellow Constitution

Judges Jong-jin

Judges Kim Jae-han

1) On July 27, 2012, upon receiving a demand for the establishment of the right to collateral security under the agreement on the provision of collateral, prior priority was established over the maximum debt amount of 0,000 million won in the future without the consent of the victim with respect to the above Yang Pream Forest.

A person shall be appointed.

A person shall be appointed.