2017Gohap86 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

A

Voluntary examination, transfer and acceptance of a case;

Law Firm B, Attorney C

August 18, 2017

A defendant shall be punished by imprisonment for not less than one year and six months.

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

Criminal facts

【Basic Facts】

D Co., Ltd. (hereinafter referred to as the "E") is a corporation established for the purpose of investing in founders under the Support for Small and Medium Enterprise Establishment Act, the establishment of a business start-up investment association, and the performance of its duties.

F Fishery Food Investment Association 1(hereinafter referred to as "G") is an association established by E, a limited partner, H, and a special partner, respectively, with 2 billion won, 6 billion won, 8 billion won, and 8 billion won.

In order to achieve the purpose of the distribution, processing, sale, purchase, etc. of fishery products through G, E, a general partner, has established K K corporation (hereinafter referred to as "L") which is a special purpose corporation (SPC) as the representative of the representative director.

Accordingly, on December 24, 2014, G invested KRW 3.1 billion in L in order to distribute the seals of Bosong-gun and Gosong-gun, and L entered into an investment contract with the content that the period of the project ends on March 31, 2015.

On the other hand, the defendant, as a partner in the business related to the above project, has been in charge of inspecting fishery products in distribution transactions at the site.

【Criminal Facts】

Although the Defendant did not secure the tag quantity with respect to the distribution of the project above, the Defendant attempted to obtain the purchase price from L by means of preparing a false goods supply contract, pretending that he/she has secured the quantity.

On January 2015, the Defendant requested Q Q, as a fishing village fraternity member of PP fishing village fraternity located in PJ 0 in PP, who is delegated with the right to contract, etc. from the members of the fraternity, to "if only a contract for the supply of goods is made, it is possible to proceed with the business of fishery products" and requested Q to manage the account of the passbook for which the advance payment is to be made, and request Q Q to pay the advance payment by submitting a sales plan and a written request for payment through M.

However, there was a situation in which the P fishing village fraternity gate was rarely closed and could not secure the normal supply volume. While the Defendant was aware of this fact, he did not have the intent or ability to distribute the pre-paid money deposited by L for other purposes than the new supply, and deposit the sales price into L. 3) As such, the Defendant by deceiving L’s representative director J and let Q pay the pre-paid money to Q in order to ensure smooth securing of the gate on February 2, 2015, and Q exclusively supplies the gate generated from Q to L, and the pre-paid money to be carried out in order to offset the purchase price by the pre-paid money. On the same day, the Defendant acquired the 500 million won from L to Q’s account in the name of Q.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of the witness Q, T and J;

1. Each prosecutor's protocol of statement against the accused (including the cross-examination);

1. Examination protocol of suspect against J by prosecution;

1. Each prosecutor's protocol of statement of U and Q (including the cross-examination part);

1. Book of corporate register, business registration certificate, project investment contract (Evidence No. 9), bank transaction details (Evidence No. 11), transitional report on projects for distributing fishery products, report on the progress of projects for distributing fishery products, report on the actual inspection of investment funds to K (State), K cash fow, L transfer deposit account in Q Q’s name (V), Q Q Q’s account transaction, Q Q Q’s account transaction, W purchase/supply contract, and minutes of the total representatives of fishing village fraternities;

1. Each investigation report (to attach copies of guide books for agricultural policy, insurance, and finance companies, and agricultural, fisheries, and food investment associations, to submit and attach trade name cards related to K);

Application of Statutes

1. Article applicable to criminal facts;

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347 (1) of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following grounds for sentencing has been repeatedly taken into consideration for favorable circumstances)

Judgment on the Issues

1. Summary of the defendant and defense counsel;

The Defendant did not specifically participate in the process of concluding a contract for the purchase/supply of the seals (hereinafter referred to as “instant supply contract”) and did not know the details thereof, and did not induce a P fishing village fraternity to enter into the instant supply contract even though the volume is not secured. Since the above 500 million won management and the supply manager is Q who is a party to the instant supply contract, the Defendant deceiving the J and defrauded KRW 500 million as stated in the facts charged.

2. Relevant legal principles

The deception as a requirement for fraud refers to all affirmative and passive acts that have to observe each other in a widely related property transaction, and such passive acts refer to the deception by omission that a person subject to legal duty of disclosure does not know that the other party was involved in a mistake in a certain fact. If it is evident that the other party would not have been aware of such fact, in light of the empirical rule of general transactions, if it is evident that the other party would not have been aware of such fact, the other party is legally obligated to notify that fact in light of the good faith principle (see, e.g., Supreme Court Decision 98Do3263, Dec. 8, 1998).

3. Whether a deception is recognized or not;

A. Comprehensively taking account of the evidence duly adopted and examined by this Court, the following facts or circumstances can be acknowledged.

1) Around the end of 2014, the Defendant, as L’s on-site inspector, was aware of the local status, such as the opening price, and received instructions from J to interview the interested parties, and was given instructions to interview with T in the local fishery products distribution business, and the Defendant was introduced Q of P fishing Village Credit Union while carrying a variety of fishing grounds in Bosung-gun and Gosong-gun, which are used to carry on the local fishery products distribution business.

2) At the time, the PP fishing village fraternity form was able not to secure the quantities under the instant supply contract because a large number of pages was closed, and Q was able to secure the quantities under the instant supply contract. In this regard, even though the Defendant stated that Q was unable to secure the quantities due to the closure of a new tag, the remainder of the goods supply contract was prepared in the form, and it was asked to prepare and request a false tag supply contract while entering into the business. We also stated that Q was directly witnessing the above conversation between the Defendant and Q.

3) The J selected M as an entrusted operator with the authority to conclude the instant supply contract through the Defendant. According to the completion report of the fishery products distribution project prepared by E, K exclusively depends on the capacity of the entrusted operator, but M is analysis that it lacks the capacity to operate fishery products as a small-scale enterprise (Evidence Record 145 pages), Q states that there was no representative of M in the process of concluding the instant supply contract, and that there was no representative of M in the process of concluding the instant supply contract, and that Q met mainly with the Defendant.

4) Before entering into the instant supply contract, the Defendant received instructions from J to the purchaser and the consigned operator to prepare for the e-mail, and reported the minutes of the total P fishing village fraternity, which are documents necessary to conclude the contract, and the marine drawings secured by the P fishing village fraternity, etc. to the J.

5) According to the instant license supply contract, Q pays the pre-stage KRW 500 million to Q, Q exclusively supplies the tag emitted from P fishing village fraternity, offset the pre-stage by the price for the tag purchased by L, and M bears the responsibility for the supply and sale of pre-stage and leas paid to Q as the entrusted operating company of L.

6) L remitted the amount of KRW 500 million prior to February 2, 2015 to Q’s account, and the Defendant was issued a passbook and cash card from Q. As to the circumstances, Q demanded the Defendant to remit the amount of money to Q’s account whenever it is necessary for his business and stated that Q would have used the passbook and card while identifying the Defendant.

7) Under the instant supply contract, KRW 500 million is to be used only as the purchase price for the tag emitted from the P fishing Village fraternity, but LA deposit was remitted to the Mariner and used for other purposes as follows.

A) From February 4, 2015 to February 5, 2015, KRW 100 million was remitted to X. In this regard, the Defendant sent a proposal to engage in the business again with the shellfish in M and stated that the Defendant paid KRW 100 million.

B) On February 5, 2015, KRW 100 million was remitted to Y. This seems to have been paid by the Defendant on January 2, 2015, with experience in the Zitling transaction with Y already operated.

C) On February 16, 2015, the KRW 200 million was remitted to AA. This is stated that T used the above KRW 200 million to purchase a new signal instead of there was no string volume, although T asked the Defendant to purchase a tag.

D) The Defendant stated that the Defendant used KRW 73,90,000 out of the advance payment from March 5, 2015 to April 6, 2015 at the operating expenses (e.g. salary, meal, exit equipment, rent, etc.) of AB corporation established while participating in K. Meanwhile, the J separately paid to the Defendant the amount of KRW 500,000 to be used for other expenses, such as exit equipment, etc. to promote the distribution of fishery products (Evidence Record 1309, 1316 pages).

B. In light of the content of the instant supply contract, E and L’s business nature, etc. as indicated in the above facts, it is apparent that L would have not concluded the instant supply contract with the P fishing Village fraternity if it was known that L had not secured the above quantities, and the Defendant would be formally aware that L would have been engaged in the conclusion and implementation of the instant supply contract, even though L would be an on-site inspector employed by L, the Defendant could be sufficiently recognized that the P fishing Village fraternity could not secure the quantities of the P fishing Village fraternity while engaging in the conclusion and implementation of the instant supply contract, in fact, in the status of the entrusted operator, at least dolusent recognition of the fact that the P fishing Village fraternity did not secure

Reasons for sentencing

1. Scope of applicable sentences under Acts: Imprisonment for one year and six months to fifteen years; and

2. Scope of recommendations according to the sentencing criteria;

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

[Special Dog-styles] In cases of intentional deception, or where the degree of deception is weak.

[Scope of Recommendation] Imprisonment of 1 year and 6 months to 4 years (Mitigation)

3. Determination of sentence;

The instant crime was committed by the Defendant, who participated in the fishery products distribution project in which the government funds, etc. are invested, without securing the volume to the fishing village fraternity, which is the purchasing entity, to enter into a supply contract, thereby obtaining KRW 500 million from the investment fund. Damage recovered by the victim L, such as the balance of the deposit amount, shall be limited to KRW 257 million, and considerable damage remains.

However, the Defendant did not play a leading role in the process of concluding the instant supply contract with L’s representative, and did not distribute other fishery products not subject to the above supply contract, and paid the sales proceeds to L, etc. Furthermore, the Defendant appears to have used a considerable amount of KRW 500 million for L. Furthermore, there is room to view that the relevant parties, such as Q and T, other than the Defendant, are also responsible for the occurrence and expansion of damages.

In addition to these various circumstances, in consideration of the defendant's age, character and environment, relationship with victim L, motive and consequence of the crime, circumstances revealed at the time of and after the crime, etc., the punishment shall be determined within the recommended range of punishment according to the sentencing guidelines, and the execution thereof shall be suspended.

The presiding judge and judges;

Judges Sung Jae-in

Judges' Index

1) An association established by the Ministry of Agriculture, Food and Rural Affairs and the Korea Fisheries Department (the Korea Agricultural Policy and Insurance Institute, which is a specialized investment management institution, manages the Fund) with funds invested in agricultural policy funds to promote investments in the agricultural, fisheries and food industry and lay the foundation for the sound growth of agricultural, fisheries and food enterprises.

2) The ratio of investment shall be 12.5%, 37.5%, and 50%, and the shares of R Co., Ltd. shall be transferred to E in fact and invested in E and 1:1%.

3) To the extent that the identity of basic factual relations is recognized, the content and form of deception is partially different from the facts charged.