2013Gohap152 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

A

The current status of prosecution (prosecution), semi-scars (public trial)

Law Firm B (Attorney in charge)

Attorney D

March 21, 2014

A defendant shall be punished by imprisonment for four years.

Criminal facts

around December 2010, the defendant operated the "V" restaurant in Gangnam-gu Seoul, Seoul, "F", "F" to the victim E, and is a company with a low value exceeding three billion won and is currently proceeding with the success of the current over-the-counter distribution business. The defendant tried to proceed with the "Chile Import Business". The defendant paid a total of 5.2 billion won on January 12, 201 and around 31, 201, and around March 31, 2012, and paid a total of 2.2 billion won on March 31, 2012, and paid a total of 5.2 billion won on March 31, 201, thereby guaranteeing the investment principal and raising profits."

In fact, F had no particular property at the time and did not generate profits from excessive distribution business, and the Defendant was also in bad credit standing up to 212 million won without any particular property or profits. In addition, since it was unclear whether the Defendant was able to create high income within a short period, and there was no other reliable profit business, the Defendant did not have an intent or ability to pay 5.2 billion won in total the investment principal and profits until the agreed date even if 2.6 billion won was invested by the victim.

Nevertheless, the Defendant, by deceiving the victim as above, received money from the victim to the national bank account in the name of F from the victim, which was transferred from December 22, 2010 to the national bank account in the name of F, KRW 1.83 billion, KRW 270 million around April 29, 201, and KRW 2.1 billion in total as investment money.

Summary of Evidence

1. Partial statement of the defendant;

1. Statements made by witnesses G, H (first time), and E (third time) in the protocol of the trial;

1. Each letter of certification, each written investment agreement, each notarial deed, each content certification, each content certification, each company investigation report and personal investigation report, each certified copy of each register, each e-mail, each letter of business suspension, each power of attorney, each payment certificate, each payment ledger, each benefit ledger, each benefit ledger, multiple design registration certificate, each newspaper engineer, each game products classification certificate, each business registration certificate, each certificate, each money borrowed certificate, each register of shareholders, each passbook transaction statement, each passbook transaction statement, text message statement, confirmation certificate, characters-based book, copyright registration certificate, discontinuation certificate, business closure certificate, name, list of imported pre-importing enterprises, Internet screen printing out, each recording, each record of budget execution, each statement of profit using each fund, calculation of the rate of return, financial transaction, value-added tax base certification, tax certification, income certificate, each certificate, each stock investment amount, and an interview publication statement in an pen shopping mall;

1. Burial photographs, cell phone cases photographs, and game photographs;

Application of Statutes

1. Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 11304, Feb. 10, 2012) and Article 347(1) of the Criminal Act comprehensively covering the relevant criminal facts

Judgment on the argument of the defendant and defense counsel

1. As to the assertion that there is no causal relationship between the deception itself and the deception and the disposal act

A. Summary of the argument

The Defendant did not say that the value of the F’s asset was 3 billion won for the victim, and even if the Defendant stated that the victim was the victim, the victim had already decided to invest 2.6 billion won by G’s invitation before hearing the said horses from the Defendant. Therefore, there is no causal link between the Defendant’s deception and the victim’s remittance of investment funds.

(b) judgment;

However, comprehensively taking account of the following circumstances revealed through the evidence duly adopted and examined by this court (hereinafter referred to as "each evidence of this case"), F is a juristic person that has no particular asset at the time, and even if F is a juristic person with no particular asset, it can be sufficiently recognized that the Defendant deceivings the victim with the value of the F's asset at the time, and that the Defendant received 2.1 billion won in total from the victim for investment money and acquired it by transfer from the victim, and that it is insufficient to reverse the above judgment just because the Defendant was internal tax. Therefore, this part of the argument is not acceptable.

1) First of all, the victim stated in this court that "I am asked that "I am aware of the investment principal is guaranteed to G known to the general public and that I am aware of the investment source that can raise the profits of the principal two times the principal," and that "I am informed of the fact that I am informed of the investment source by G, I am introduced F from G, while I am informed of the defendant and the defendant's assets from G, etc. on December 2010, because the amount of the F's assets from the defendant is 3 billion won from G, etc., it is sufficiently possible to guarantee the principal due to loans secured by the defendant, etc., and it is possible to directly say that "I am capable of securing the principal, and deliver it to the large shopping mall such as mate, etc." through the person working at the Embassy of Chile in Korea, the above statement has very specific, objective and rationality, and is consistent with the circumstances why the victim invested in the defendant or F.

2) In addition, the witness G’s statement that the Defendant directly stated that the victim’s asset value is equivalent to three billion won, and that the forecast for the return-import business of Chile was very good is also consistent with the victim’s above statement, and thus, the credibility of the victim’s statement is displayed.

3) Furthermore, on January 12, 2010, the victim and F entered into an investment agreement with the content that the victim will invest 2.6 billion won in F (hereinafter referred to as the “investment agreement”). Article 5(1) of the Investment Agreement (hereinafter referred to as the “Investment Agreement”) at the time stated that “A (F) shall take the lead in the lending of financial rights in order to guarantee the investment principal in order to protect the trust of the victim (victim).” On the same day, the Investment Agreement was written in a notarial deed stating that “F shall take the initiative in the lending of financial rights in order to secure the investment principal in the case of business variables, such as natural disasters, etc., and on the same day, in addition to the Investment Agreement in this case, the victim appears to have entered into the investment agreement in this case on the core condition that the principal of investment is guaranteed from the defendant at the time, and in this situation, it is difficult to view that the victim did not hear the principal of the investment principal from the defendant as the principal of the investment in this case.

4) Furthermore, the victim’s statement to the effect that the victim first met the Defendant around December 2010, immediately before preparing the instant investment agreement with F, was a relationship with F, and that the victim did not confirm the financial status of F, etc. from the Defendant, the actual operator of F, which entered into an investment agreement with him/her, and that the victim made a final investment decision, rather than the Defendant’s assertion that the victim invested 2.1 billion won in aggregate on the basis of information only from G, rather than the Defendant’s assertion that the victim directly heard and believed the Defendant’s explanation of the F’s asset value, etc. from the Defendant on the face of the contact, and that the victim made a final investment decision is more reasonable and natural.

5) In regard to this, the Defendant, along with the victim, prepared the investment agreement of this case and attached it to the F’s corporate register at the time of being notarized. Since the above corporate register clearly states that F’s capital amount is five million won, the victim had already been aware that F’s asset value is not three billion won, it is argued that the “total amount of capital” was stated in F’s corporate register attached as one of the notarized documents at the time of the completion of the investment agreement of this case. However, the amount of the capital cannot be assessed solely on the basis of the amount of capital, because it is sufficiently different from the other company taking into account the capital amount of the total amount of the stocks issued by the stock company, the appraised value of the assets owned by the company, and the asset value and future feasibility, etc., which are the appraised value of the assets owned by the company. Even if the corporate register was attached as one of the notarized documents, it is difficult to view that the victim decided to invest in F’s assets with the explanation of the Defendant, and the victim did not know that F’s capital amount was more than the victim’s statement at the time.

6) Furthermore, it is sufficient to view that the victim decided to make an investment 2.6 billion won in total to the Defendant and remitted 2.1 billion won in total to the Defendant, on the following grounds: (a) the victim entered into the instant investment agreement after directly considering the fact that the value of the F reaches three billion won; (b) and (c) the victim did not obtain specific and reasonable alternative measures to guarantee the investment principal in addition to F’s assets if the victim did not hear the said horses from the Defendant; and (c) it is difficult for the victim to remit 2.1 billion won in accordance with the instant investment agreement; and (d) it is sufficient to view that the victim’s act of remitting 2.6 billion won in total to the Defendant, and 2.1 billion won in transfer was caused by the Defendant’s deception regarding the F’s asset value, possibility of future circulation and return

2. As to the assertion that there is no intent to obtain unlawful acquisition

A. Summary of the argument

The Defendant spent most of the 2.1 billion won invested by the victim as expenses required for the progress of the business under the instant investment agreement. Although the Defendant used part of the above investment for stock investment, the Defendant also made an inevitable choice for raising an unofficial benefit, etc. to be paid to the victim under the circumstance that the remainder of 2.6 billion won is not paid, among the 2.6 billion won that the Defendant agreed to receive an investment from the victim under the instant investment agreement, and thus, there was no intention to acquire the above 2.1 billion won from the Defendant.

B. Determination

However, in full view of the following circumstances confirmed by the facts found by each of the evidence of this case, it is reasonable to view that the defendant had an intent to acquire 2.1 billion won from the victim by deceiving the victim about the profitability of the business that the defendant or F intends to proceed in the future without the intent or ability to pay the principal of the investment and the proceeds therefrom to the victim. Accordingly, this part of the allegation is rejected.

1) First, as to the Defendant’s ability to repay the principal of investment and pay profits, the Defendant had been in bad credit standing status, including around 212 million won, at the time of receiving investment 2.1 billion won from the victim. The Defendant had been in a state of debt owed to financial institutions, etc. from July 1, 2010 to December 31, 2010, and F also had approximately approximately KRW 30 million sales from around 30 million. According to the F’s statement of financial position, according to the F’s statement of financial position, the total capital as of December 31, 201 exceeds KRW 13 million (the total capital total amount as of December 31, 201 is equivalent to KRW 60 million), and F had the ability to repay the principal of investment or pay the principal amount to the Defendant or the victim as the party to the investment at the time of the conclusion of the instant investment agreement.

2) Next, in the case of the Chile re-import business in which the Defendant presented to the victim, the Defendant did not have any experience in importing fishery products or any other business similar thereto before receiving an investment of 2.1 billion won from the victim, and the domestic re-import price has decreased around that time, while the price of the re-delivery in Chile has risen, the Defendant immediately renounced the above business and failed to import the re-import in entirety. This is not a thorough analysis based on objective data in advance on the feasibility of the re-import business, but it appears that the Defendant presented the victim the re-import business as one of the profit-making businesses based on a remote plan, and whether the Defendant could generate the profit twice of the investment amount within the short period of time (the Defendant, on the other hand, was engaged in the development of smartphone games, the production of yellow-lomon seal, etc. after the waiver of the aforementioned re-import business, but failed to pay the profit to the victim entirely).

3) Furthermore, the Defendant deposited KRW 823,953,883 out of KRW 2.1 billion invested by the victim from March 2, 201 to March 23, 201, into the HTS account via H’s National Bank account. Even according to the Defendant’s assertion, the Defendant incurred losses of approximately KRW 460,000,000 from using the amount of KRW 480,000,000 in actual stock investment, but did not have any prior notice or post-report thereon to the victim. The Defendant’s act of stock investment is inconsistent with the method of running the instant investment agreement with the content that the Defendant would generate profits through the establishment of a new corporation, and in light of the time and amount of the Defendant’s commencement of stock investment, it is a circumstance that it was extremely against the outlook for a series of projects promoted by the Defendant.

4) Meanwhile, the defendant vindicates that he was planning to repay the investment principal to the victim by obtaining a loan from the victim as collateral with the assets of 1.5 billion won among the funds invested by the victim. However, according to the income and loss statement, the sales from January 7, 201 to December 31, 201 are merely about 18 million won, while the net loss for the same period reaches the amount equivalent to 390 million won. As the defendant's assertion, it is extremely doubtful whether a loan could actually occur to repay the investment principal by securing I's feasibility or assets as collateral, and it is difficult to accept the defendant's above assertion in light of the fact that the defendant did not take any measures to implement the above loan up to now.

5) In addition, even though the Defendant agreed to receive an investment 2.6 billion won in total from the victim pursuant to the instant investment agreement, the Defendant asserts that the Defendant was unable to repay the investment principal to the victim, as it did not receive the remainder of 2.1 billion won and did not receive the remainder of 50 million won.

However, while G intended to make an investment of 2.6 billion won in total, the remainder of 2.6 billion won in total, but G failed to pay it. Nevertheless, G made a false statement that the victim transferred 500 million won to F on the beginning of the beginning of 2011, G, the Defendant agreed to make a false statement as above, and concluded that the victim received 500 million won from G from the victim. As seen above, the Defendant deposited an amount of 823 million won out of the investment for stock investment into a securities account on March 201, and used 480 million won out of it for stock investment. If the business fund falls short, the Defendant did not take such measures despite having withdrawn the aforementioned stock investment fund and used it as a shortage of business fund, and the Defendant could not have received 500 million won in total from G on the ground that the victim first notified the victim of 50 million won in advance pursuant to the investment agreement, and the Defendant could not accept the remainder of 2.15 billion won in total from the victim on April 219, 2019.

Reasons for sentencing

1. The scope of punishment by sentence: Imprisonment for not less than three years but not more than 30 years;

2. Application of the sentencing criteria;

[Determination of Punishment] Fraudulent Crime, General Fraud, or Type 3 (if the amount of profit is at least five hundred million won but less than five billion won),

[Special Aggravationd Persons] Mitigations: None of the factors of mitigation, and where the factors of aggravation cause serious damage to the victim;

[Determinations and Recommendations and Measures of Recommendation] Aggravation ( Imprisonment with prison labor for not less than four years but not more than seven years)

3. Determination of sentence: Four years of imprisonment; and

In light of the circumstances favorable to or outright to the defendant, there is no criminal history that the defendant has been subject to any criminal punishment, some of the investment funds obtained by the victim from smartphone game development or the use of it as expenses for the production of yellow-lomon painting, etc., there are some rush aspects of efforts to create profits, such as making efforts to make profits in the name of the victim, such as determining and implementing large investment, making and executing a large amount of investment in the case of the victim, and trusting only the horses of the defendant or G in the course of making and executing a large investment, and working as a factor for the expansion of damage to G, the unclear attitude of G, the defendant has to support the children who were 9 years after the divorce, and there is a place where the defendant has to support the children who were leeped in May of the same year.

However, on the other hand, even though there was no detailed review and plan on the experience and profitability of the business that the Defendant possessed or attempted to carry out a particular property at the beginning, he deceiving the victim by the method of exaggerationing the value of assets or business prospects of his company, and obtained a large amount of 2.1 billion won, whichever is less than 48 million won among them, and used it for investment of stocks without any relation to the business progress, up to now, the victim did not have any damage recovery measures, and it is not possible to find out any trace that the Defendant has tried separately. Nevertheless, the Defendant was rapidly oriented to rationalize his criminal conduct by the unconcepted defense until this court, and the victim who had been engaged in a time celebbrative celebrative celebrative celebling, caused a serious mental suffering, and the victim did not have any significant mental suffering to the Defendant, and the Defendant did not have been punished too much disadvantageously.

However, in determining specific punishment, in addition to the above major circumstances favorable or unfavorable to the defendant, various conditions of sentencing revealed in the trial process of this case, such as the age, character and conduct, environment, means and result of the crime, and the circumstances after the crime, and the above sentencing guidelines were taken into account.

It is so decided as per Disposition for the above reasons.

The assistant judge of the presiding judge;

Judges Yang Young-young

Judges Park Jae-min