Defendant

Both parties

Escopical or written indictments and trials

Law Firm continental State, Attorneys Cho Jae-chul et al.

Suwon District Court Decision 2015Da2676 decided November 11, 2015 and application for compensation order 2015 Seocho1335 decided November 11, 2015

All appeals by the defendant and prosecutor are dismissed.

1. Summary of grounds for appeal;

(a) Defense counsel;

(1) misunderstanding of facts and misunderstanding of legal principles (as to the guilty part of the lower judgment)

On January 3, 2014, the victim non-indicted 5 lent KRW 20 million to the defendant without any agreement on interest or due date, and thereafter, the defendant paid interest and principal part of the principal, and thereafter, the defendant deposited the full amount of the loan after the prosecution of this case, and the defendant had the intent and ability to repay. Thus, it cannot be deemed that the defendant conspiredd with Non-indicted 5, and there was no intention to commit fraud. Non-indicted 5 has been he has been able to commit fraud with a long exchange with the defendant for a long time, and the defendant has been entrusted with or obtained counseling on the issues of family members, and it is merely lent KRW 20 million to the defendant with trust and did not deliver KRW 20 million to the defendant. Thus, there is no causation between the defendant's deception and non-indicted 5's act of disposal. Nevertheless, the court below did not err in the misapprehension of legal principles as to the causal relationship between the act of fraud and the act of disposal.

(b) Prosecutors;

(1) misunderstanding of facts and misunderstanding of legal principles (as to the acquittal portion of the lower judgment)

(A) When the Defendant came to know of the fact that Nonindicted 5’s wife Nonindicted 2 suffered from mental fission for a long time, it can be acknowledged that, without any grounds, the Defendant obtained the Defendant, by deceiving Nonindicted 5 to her wife and family members, “it was covered with ear,” and Nonindicted 5 did not first request the Defendant to assist his wife and family members, but actively deceiving Nonindicted 5, who was psychologically disturbed by the Defendant, and continuously received money from Nonindicted 5, and used part of the money for other purposes. In full view of the facts that the Defendant used the money received from Nonindicted 5 for the purpose of using it for any other purpose, the lower court may recognize the fact that the Defendant, despite being aware of the fact that Nonindicted 5’s wife and family members did not have any ability to resolve the problem, by deceiving Nonindicted 5 to 1, 207, August 1, 201, 201, each of the facts charged in this case, by deceiving him on the part of Nonindicted 5’s wife and family members for treatment and gambling.

(B) On January 16, 2012, the victim non-indicted 5,00,00 won, which was delivered to the defendant on January 16, 2012, consistently stated that "the defendant had no intent or ability to repay the money at the time," and the court below found the defendant guilty of the facts of fraud by deceiving Non-indicted 5, thereby misleading him about the facts of fraud. The court below erred by misapprehending the legal principles as to the fraud of this case, but acquitted the defendant on the facts of fraud.

(2) Unreasonable sentencing

In light of the fact that the victim wanted to severely punish the defendant, and that the wife of the victim died of an accident and suffered property damage due to his/her continued deception during several years, and the victim suffered considerable mental pain, etc., the sentence of the court below, which sentenced two years to a suspended sentence in six months of imprisonment, is too uneasable and unfair.

2. Determination

A. Judgment on misconception of facts and misapprehension of legal principles

(1) The guilty part of the judgment below

The Defendant also asserted in the lower court, and the lower court rejected the Defendant’s assertion on the grounds as stated in its reasoning, and convicted the Defendant of fraud on January 3, 2014 among the facts charged in the instant case.

The court below and the following circumstances that can be recognized by evidence duly adopted and investigated by the court below. ① The victim non-indicted 5 was asked to lend 20 million won from the defendant on December 31, 2013, but refused to repay the principal of the loan at that time and to receive more than one year since retirement was difficult, but the defendant demanded to repay the principal and interest of 20 million won and responded to such demand. In light of the above, it is difficult to view that the victim merely delivered 20 million won to the defendant due to her friendship or trust relationship with the defendant, and that the defendant did not have to pay the principal and interest of 20 million won since 10 years after the loan was received from the defendant, and that the defendant did not have to pay the principal and interest of 20 million won since 20 years after the loan was received from the public prosecutor, and that the defendant did not have to pay the principal and interest of 20 million won until 10 days after the loan was made.

Therefore, the judgment of the court below which found the Defendant guilty of fraud among the facts charged in the instant case on January 3, 2014 is just and there is no error as alleged in the grounds of appeal.

(2) The non-guilty part of the judgment below

(A) Of the instant facts charged, each of the fraud committed on August 21, 2007, September 24, 2008, September 24, 2008, February 9, 2009, September 26, 201, September 1, 201, November 1, 201, November 11, 201, and December 30, 201.

For the reasons indicated in its reasoning, the lower court determined that the evidence submitted by the prosecutor alone cannot be deemed to have acquired money by actively deceiving Nonindicted 5, on the ground that the evidence submitted by Nonindicted 5 is difficult to recognize otherwise, in light of the following: (a) the period and circumstances when the Defendant was engaged in his activities at ○○○○ company as a legal profession; (b) the period during which Nonindicted 5 was introduced the Defendant to find the treatment method for mental fission that Nonindicted 2 suffered from; (c) the reason why Nonindicted 5 paid each of the instant money to Nonindicted 2 as a tool fee, etc.; (d) the period and amount when Nonindicted 5 entrusted Nonindicted 5 to the Defendant; (e) the period when Nonindicted 5 entrusted Nonindicted 2 to the Defendant; (e) the Defendant’s use of money received from Nonindicted 5; and (e) Nonindicted 5’s accusation, career, and occupation, etc., the fact that the Defendant was aware of the imminent situation of Nonindicted 5; and (e) there was no other evidence to recognize otherwise.

In light of the evidence duly admitted and examined by the court below, the above judgment of the court below is justified and there is no error as alleged in the grounds of appeal.

(B) The fraud of January 16, 2012 among the facts charged in the instant case

The court below consistently asserted that the defendant's ability to lawfully adopt and investigate the following circumstances, i.e., ① to return the above KRW 50 million to the non-indicted 5, who was returned by the non-indicted 5 to the non-indicted 5, i.e., to the non-indicted 5, and the non-indicted 5 received KRW 50 million from the non-indicted 5, and the non-indicted 5 stated that he will come to the inspection together with his family members after his retirement and would not take the defendant's family members into consideration. ② The non-indicted 5 did not receive the above KRW 50,00 from the case of occupational embezzlement of the defendant around 2013, and the non-indicted 5 stated that "It was difficult to find the defendant's non-indicted 5's opinion that he would not have borrowed KRW 50,000 to the defendant and did not receive the above KRW 0 at the time of the above loan." The non-indicted 5 stated that the defendant's opinion and his family members would not have been paid to the defendant's family members at his own expense.

Therefore, the judgment of the court below which acquitted the Defendant on the fraud of January 16, 2012 among the facts charged in the instant case is just and there is no error as alleged in the grounds of appeal.

B. Determination on the assertion of unfair sentencing

In full view of the circumstances alleged in the grounds of appeal, such as the Defendant’s age, character and conduct, environment, motive and background of the crime, degree of damage, and circumstances after the crime, the lower court’s punishment is too uneasible even if considering the circumstances alleged in the grounds of appeal, and thus, it is not deemed unreasonable. Therefore, the above assertion is without merit, given that the lower court’s punishment is too uneasible even if it considers the circumstances alleged in the grounds of appeal.

3. Conclusion

Since the appeal by the defendant and the appeal by the prosecutor are without merit, all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Jin Jina decoration (Presiding Judge) and Lee Jin-hun