(영문) 서울중앙지방법원 2017.9.28. 선고 2017고합627 판결

On October 31, 2013, the Defendant sentenced the Suwon District Court to nine months of imprisonment for fraud, and completed the execution of the sentence on January 13, 2014.

2017 Gohap627

1. Fraud against victim V;

around March 2015, the Defendant was scheduled to build a new apartment house by conducting a real estate development project for the Gyeonggi-gu Gyeonggi-gun W, X, andY land owned by the victim between the victim and the victim at the office E Co., Ltd. (hereinafter referred to as “E”) in Gangnam-gu Seoul (hereinafter referred to as “E”), and the Defendant entered into a contract with the victim with the intent to purchase the said three parcels of land in KRW 2.5 billion and pay the purchase price until July 15, 2015 (by no later than May 30, 2015 for the Gyeonggi-gunY land). However, the Defendant failed to pay the real estate purchase price to the victim without any real estate development project.

In June 2015, the Defendant continued to implement a real estate development project, such as sending a certificate to the Z Co., Ltd., the Defendant: (a) did not make a decision to select the conditions that one unit of construction business has been entering into several parts of the construction project; (b) when the value of the land is raised after the authorization was paid, us can enter into a contract with the superior advantage; and (c) us is able to choose under good conditions leading to the financial power." (d) In addition, around September 2015, the Defendant knew the victim of the fact that “in order to obtain the authorization and permission for the business progress, the victim should prepare development charges immediately, and if the Defendant borrowed money for the establishment of a collateral security on the land and used it as the design and development charges, the Defendant would make a false payment of the land as the money in advance from the 2nd financial right.”

However, the Defendant had no experience in real estate development projects. At the time of the conclusion of the above contract with the victim, the Defendant had no financial capacity to take employment with H to the extent that he would be punished for fraud. If the money was raised, the Defendant had no intent or ability to undertake real estate development projects, such as mortgage, and even if the Defendant offered money on the land owned by the victim, he did not have an intention or ability to use the real estate development projects, such as the cost of design and development charges.

Nevertheless, on September 4, 2015, the Defendant borrowed KRW 200 million from AA, and caused the victim to jointly secure each of the above land to set up a collateral equivalent to the maximum debt amount equivalent to KRW 300 million against the mortgagee A as the Defendant. Among them, the Defendant also set the superficies for the purpose of owning a solid building, structure, or trees with the person holding superficies as A, on the Gyeonggi-gun W and Y land.

Accordingly, the Defendant, by deceiving the victim, had AA gain pecuniary advantage equivalent to the maximum debt amount of the right to collateral security 300 million won.

2. AB Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud);

The Defendant, around May 2015, at the office of AD (hereinafter referred to as "AD") for the management of AB of the victim AB located in the Gu and America, recommended the sale of the above three parcels of land to be a real estate development project for AE, AF, and AG land owned by AD, and continued to sell the said three parcels of land around June 2015, the Defendant purchased the said three parcels of land at KRW 3.468 billion and paid the purchase price by September 8, 2015, but the Defendant concluded a contract between the victim and E with the victim to pay the purchase price by September 8, 2015.

Around that time, the Defendant continued to make a false statement to the effect that “the creation of a right to collateral security on land is necessary for the purchase and sale of land and the promotion of real estate development projects by borrowing construction work policy funds.”

However, on the grounds stated in the preceding paragraph, the Defendant did not have any intent or ability to undertake the real estate development project, as promised with the victim, and even if the Defendant extended money by establishing a collateral right, such as collateral security, on the land owned by AD, the Defendant did not have an intention

Nevertheless, on June 16, 2015, the Defendant borrowed KRW 400 million from AH from the bondholder, and caused the victim to jointly secure each of the above land to set up a mortgage equivalent to KRW 600,000 of the maximum debt amount, which the mortgagee AH, as a joint collateral. In addition, the Defendant also established superficies for the purpose of owning buildings and other structures on each of the above land as AH.

Accordingly, the Defendant, by deceiving the victim, had AH gain pecuniary advantage equivalent to the maximum debt amount of the above-mortgage 600 million won.

"2017 Highly 719"

1. At the end of June 2016, the Defendant introduced the victim AK as a able student instructor of a private teaching institute who graduated from the Seoul AL department to the victim AK who is a marina company located in the AI at Sungnam-si, AJ, and falsely stated that “AJ would send fack Seoul by sending the facul by getting the victim AK ack to 11 p.m. from school to 11 p.m. after school without a leave of absence, and the end of the week to 30 p.m. for 48 hours.”

However, there was no fact that the defendant graduated from the Seoul AL Department or worked as an instructor of a private teaching institute.

As such, the Defendant, by deceiving the victim, received the victim from July 2016 to November 2016 the sum of KRW 25 million per month from July 2016 to KRW 5 million per month under the pretext of overtime for five months.

2. On September 8, 2016, the Defendant made a false statement to the victim AK to the effect that the Defendant would return money at the beginning of November, 2016, with the Defendant’s request for Kakakao Stockholm. There is a good example to invest in stocks for operation, and the amount is insufficient, and the Defendant would return money at the latest.

However, even if the defendant received money from the victim, he did not have any intention or ability to make profits by investing in the actual stocks of operation.

On September 9, 2016, the Defendant, by deceiving the victim as above, received from the victim the remittance of KRW 25 million from the bank account in the name of the Defendant to the bank account in the name of AM designated under the name of the Defendant for investment funds in the operations.

3. On September 23, 2016, the Defendant made a false statement to the victim AK that “in the Republic of Korea, it is the actual operator of the game merchant chain business, and the branch AO is the representative of the business. The Defendant made a false statement to the effect that the Defendant would refund within 30 days when the principal was requested to return the investment profits every month.”

However, the game member shop operated by the defendant was at the stage of establishment as an adult PC game franchise company, and was not at the place where profit was guaranteed as if the victim talked with it, and the defendant did not have the intent or ability to repay it within 30 days even if the victim requested to do so because there was no particular profit or asset other than the above business at the time

As above, the Defendant, by deceiving the victim, received from the victim, KRW 45 million on October 4, 2016 from the victim, KRW 40 million on June 4, 10 of the same year, and KRW 95 million on July 1, 10 of the same year, and acquired it by deceiving the victim through the bank account in the name of AO designated by the Defendant as a loan.

"2017 Highly 896"

1. Fraud against the victim M;

On September 30, 2015, the Defendant made a false statement to the victim M in the E office operated by the Defendant that “the employee of the Defendant would repay the money without money due to the shortage of the company’s operating funds.” However, the Defendant did not have embezzled the funds, but did not have any intent or ability to repay the money as promised to the victim even if he/she borrowed money from the victim because there was no financial difficulties from the employee of the Defendant Company, and there was no intention or ability to repay the money.

As such, the Defendant, by deceiving the victim, received 17 million won from the victim as the borrowed money on the same day and acquired it by deceiving the victim.

2. Fraud against AP;

On August 4, 2015, the Defendant borrowed a credit card to the victim AP because it is necessary for the AP member management at the above E office. The Defendant concluded that he/she would pay and return the credit card necessary for member management. However, the Defendant received a credit card loan from the victim and planned to use it for the Defendant’s personal living expenses, etc. However, even if he/she received a credit card from the victim, the Defendant did not have any intent or ability to make a settlement necessary for the AP member management as agreed by the victim.

As such, the Defendant, including deceiving the victim and using the credit card in the name of the victim on the same day from AR to settle and use the credit card amount of KRW 45,050 from November 13, 2015, had the victim settle a total of KRW 19,842,039, totaling 73 times from around that time to November 13, 2015, thereby having the victim pay the said card amount, thereby having the victim obtain economic benefits equivalent to the said amount.

Summary of Evidence

"2017 Gohap627"

1. Defendant's legal statement;

1. Each police statement about V,S, and AT;

1. The evidence list of the development agreement (hereinafter referred to as the "net") Nos. 24, the content certificate (Notice of Termination of the Standard Contract for Private Construction Works), the contract [No. 36] under the development of real estate [No. 36], the certificate [No. 45], the certificate [No. 46], the name tag [No. 130], the name tag [No. 130], and the contract pursuant to the development of real estate [No. 131]

1. A summary of the registered matters, a summary of the entire registered matters, a certificate of the full registered matters, a summary of the major registered matters, a summary of the registered matters, a summary of the major registered matters, a certificate of the full registered matters (AE), a certificate of the registration matters (AF), and a certificate of the full registered matters (AG);

1. A, a copy of each transaction sheet (A, Suhyup AU), a specification of transactions (V, AV), a bank transaction statement (V, a single bank), E, a check issuance statement, a passbook copy (E, AW of a single bank), a receipt certificate, a copy of a prior sheet, and a written confirmation of the details of transactions of exchange;

1. Investigation report (the complainant, the calculation report on the amount of acquiring the right to collateral security), investigation report (the document submitted by the complainant), and written statement, the written statement, the written statement, each of the matters to be registered, the full certificate of all the matters to be registered, the investigation report (Submission of the details of deposits by the complainant), the confirmation of transaction statement, the confirmation of transaction statement (Submission of the passbook) and passbook, the investigation report (the AX currency), the investigation report (the AY currency), the investigation report (the AZ currency of the reference witness), the investigation report (the BA currency of the reference witness), the investigation report (the BB currency of the reference witness), the investigation report (the BC call of the reference witness), the investigation report (the

"2017 Highly 719"

1. Defendant's legal statement;

1. Each prosecutor's protocol of examination of the accused (including a substitute part withO and BD);

1. Statement made by the police about 0;

1. The general list of investment funds, cashier's checks, each remittance statement, the general list of over-the-counter transfers, the company's checks, the name photograph, box photograph, the letter of undertaking, the contents of each Kakakao Stockholm, the mail, the investment contract, the loan certificate, the loan certificate, and the business registration certificate attached to a complaint filed by the AK; and

1. Attached data (Evidence List Nos. 36 through 54), such as a report on investigation (to telephone conversations with a complainant), a report on investigation (to telephone conversations with a suspect) and text contents, a report on investigation (to analyze the details of account tracking), and a certificate of deposit transaction performance (Evidence List Nos. 36 through 54), and a report on investigation (to listen to the statements of reference

"2017 Highly 896"

1. Defendant's legal statement;

1. Each police suspect interrogation protocol concerning BF;

1. Each police protocol of statement of M&P;

1. A criminal investigation report (Submission of financial transaction data), copy of passbook of M and data on financial transactions, data on AP financial transaction, replys related to the lawsuit against unpaid amount of cards and a statement of card use;

【Prior Trial Records】

1. Criminal records, investigation reports (verification of details of criminal punishment, such as like crimes A of a suspect), court rulings (or Suwon District Court's Ansan Branch Court's Ansan Branch Court's Ansan Branch) and court rulings (or Suwon District Court's Suwon Branch's District Court's 2013-3355);

Application of Statutes

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

Article 347(2) and (1) of the Criminal Act [Article 347(2) and (1) of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 13719, Jan. 6, 2016); Article 347(1) of the Criminal Act [the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 13719, Jan. 6, 2016]; Article 347(2) and (1) of the Criminal Act [the Act on the AB]; Article 347(1) of the Criminal Act (the Act on the AB of Specific Economic Crimes (amended by Act No. 13719, Jan. 6, 2016); each fraud committed against AK; each fraud committed against the victim; the defendant and his defense counsel asserted that the amount acquired through deception should be limited to the actual secured debt amount of the right to collateral security, not the maximum debt amount of each mortgage.

However, as in the instant case, if a third party had the right to collateral security established in the name of the third party on real estate owned by the third party by deceiving the third party for the purpose of financing money from the third party, the pecuniary profit acquired therefrom is the profit which the third party can use the real estate owned by the third party as collateral for the transaction with the third party, and the value is equivalent to the maximum debt amount within the market value of the real estate (see, e.g., Supreme Court Decision 2000Do137, Apr. 25, 2000).

1. Aggravation for repeated crimes;

Articles 35 and proviso of Article 42 of the Criminal Act

1. Aggravation for concurrent crimes;

Article 37 (Aggravation of Concurrent Punishment, etc. of Specific Economic Crimes (Fraud) provided for in the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

Reasons for sentencing

1. The scope of punishment;

Imprisonment with prison labor for not less than 0 but not more than 50 years;

2. Scope of recommending types according to the sentencing criteria; and

(i) Determinations of types: Type 3 (not less than KRW 500,000, not more than five billion), general fraud;

(b) Special-sponsed persons: Cumulative offenses of the same kind;

(iii) Scope of recommendations: Penalty area (limited to imprisonment of not less than four years but not more than seven years); and

3. Determination of sentence;

The following circumstances and the Defendant’s age, character and conduct, environment, motive and background of the crime, means and consequence of the crime, etc., and all of the sentencing factors shown in the trial process of this case, including the circumstances after the crime, shall be determined as ordered.

○ Unfavorable Circumstances: Each of the instant crimes is a case in which a large amount of money from a majority of the victims is obtained through a variety of several methods within a relatively short period of time, including a short period of one year and six months, and the nature of the crime is not very good. Meanwhile, each of the instant crimes against AK is a case in which each of the instant crimes is committed by deceiving the victim’s children by taking advantage of the victim’s personal relationship after the victim’s provokingds that he would cause the victim’s children to overscept, and the victim was informed of the method of lending the defect that the victim did not have any money and obtained the loan, and the crime is not more appropriate. In addition, the damage suffered by the victims other than M is rarely recovered. The Defendant was sentenced to imprisonment with prison labor for the same kind of crime before each of the instant crimes was committed and each of the instant crimes was committed during the repeated crime period after the victim went back

In the case of each fraud committed against the victim V and AB, the actual amount of damage is less than the maximum amount of the mortgage creation registration for the AA and the actual amount of the secured debt that was created and borrowed under the name of AA and AH due to the relevant crime, which was KRW 215 million for the AA, and KRW 417 million for the AH. In addition, in relation to each damage amount, the Defendant paid the victim V the victimV the amount of damage, as the down payment, KRW 25 million for the down payment, and KRW 5 million for the proceeds of the AK, and paid part of the money under the initial contract. Meanwhile, in the case of the fraud committed against the victim M, the Defendant recovered the damage of the victim, and the victim does not want to be punished for the victim. The Defendant recognized both the crime in this court and divided his mistake.

Judges

The presiding judge, judges, and judges;

Judges Man-ho

Judges Han Han-chul

Note tin

1) Each of the instant offenses must apply the sentencing criteria based on the amount of profit calculated by adding together the amounts of profit with the relationship of concurrent crimes.