(영문) 서울중앙지방법원 2014.1.8.선고 2013고단838 판결

A person shall be punished by imprisonment with prison labor for one year, with prison labor for a crime of No. 1-B of the holding, and a crime of No. 3 of the holding, with prison labor for a crime of No. 1 of the holding.

The defendant shall pay 21.2 million won to C who is an applicant for compensation.

The above compensation order may be provisionally executed.

Reasons

Criminal facts

【Criminal Power】

On September 30, 2008, the Defendant was sentenced to eight months of imprisonment for fraud at the Seoul Central District Court, which became final and conclusive on January 30, 2009, and completed the execution of the sentence on April 6, 2009. On February 1, 2013, the Seoul Central District Court sentenced one year and six months of imprisonment for fraud and the violation of the Attorney-at-Law Act at the Seoul Central District Court, and became final and conclusive on February 9, 2013.

1. Highest 2013 highest 838;

(a) Fraud against victim D;

1) On June 2009, the Defendant made a false statement to the victim D, at a teahousehouse of the first floor in the Korean bank located near Gangnam-gu Seoul, Seoul on the date of June 2009, stating that “The Defendant exercised pressure on the head of Seocheon-gun, Seocheon-gun, Seocheon-gun, Seocheon-gun, Seocheon-do, and the members of the E President and F, and the members of the G Council, who are aware of the fact in the Chungcheong Cheongdo, are transferred to their own direct post, and thus, the Defendant paid the expenses for the implementation of the test project to select and reduce the amount of 420,000,00 forest land No. 144, Seocheon-gun, Seocheon-do, by exercising pressure on the Defendant.

However, the defendant did not have the ability or intention to receive earth and sand delivery rights in the Saemangeum Reclaimed Land, rather than the President's private villages.

The Defendant, as above, by deceiving the victim, was given KRW 20 million over several times from June 2009 to December 2009.

2) On March 2010, the Defendant made a false statement to the victim D on March 2010, stating that “The Non-Real Name Fund deposited in the name account at H president is 2 trillion won.” As the Real Name Financial System has been implemented, the Defendant first borrowed money and then paid 2.68 billion won equivalent to 1% of the total amount deposited. On the other hand, in order to recover money in the name account, the Defendant also required fees and paid 2.68 billion won to the victim D with the need to bear necessary expenses, such as entertainment expenses, to proceed with the work.”

However, in fact, the defendant did not have two trillion won deposits in the borrowed name account, and even if he was paid money to the victim with the security name, such as entertainment expenses, he did not have the ability or intent to divide part of the deposited amount.

The Defendant, as such, by deceiving the victim and receiving KRW 300,000 from the restaurant located in the movie-dong, from the victim who was affiliated therewith, was delivered KRW 32,80,000 over 85 times as shown in the attached crime list (1).

B. Fraud against the victim C

On February 2, 2007, the Defendant knew that the victim C was claiming another occupation because of the absence of university professors' retirement, and, with the knowledge of the fact that the victim C was claiming another occupation, the Defendant had the victim received money from the victim for expenses such as entertainment expenses, and had the victim take the money by fraud.

On February 2, 2007, the Defendant: (a) was the person in charge of the victim’s 1st 6th Y, the first 6th Y, the sports area election campaign, and the president of the Korea Housing Corporation; and (b) requested several people to be a public corporation executive officer in the first king of Gangnam-gu, Seoul. Since the U.S. University’s management doctorate degree holder is qualified as a public corporation executive officer, the Defendant would make it possible for the public corporation executive officer in the first 2nd 4th YY to transfer the expenses, etc. to the public corporation. First, the Defendant stated that “B is a person responsible for the overall management of the E President candidate and the Korean Housing Corporation, and the sports area election campaign.”

However, in fact, the Defendant was not a person in charge of the election campaign in Gyeonggi-gu area, but was not a person in charge of the president’s election campaign, and was not a person in charge of the president’s election campaign, and even if the Defendant received expenses, etc. from the victim, there was no intention or ability to prepare a position of executive officer of a public corporation. The Defendant by deceiving the victim as such and deceiving him/her from the victim on February 7, 2007.

A total of KRW 21,200,000 was received from a new bank account in the name of 200,000 as shown in the attached Table (2) as well as from February 7, 2007 to December 3, 2007, and received KRW 21,20,000 in total from February 7 to December 3, 2007.

2. Highest 2013 highest 2554

The Defendant was prosecuted with D on February 25, 2013 and is currently under trial at the Seoul Central District Court at the above court at the present time due to the criminal facts obtained approximately KRW 50 million from D around February 25, 201. The fact is that: (a) the Defendant, from June 2009 to February 2, 201, by deceiving D by means of inducing D while the Defendant, as the president was in a relationship with D; (b) and (c) by taking approximately KRW 50 million from the said person, by inducing D to carry out the construction of Chungcheong west in the manner that the Defendant would have a relationship with D; and (d) notwithstanding the fact that D received approximately KRW 50 million from said person on or around February 2011, 200, to file complaints against the accusation of the Defendant against the said criminal facts

On September 2012, 2012, a complaint was filed by D with false facts, even though D did not receive money from D in the Seoul Police House, and around the 17th day of the same month, it was received by the Seoul Central Public Prosecutor's Office in the Seoul Central Public Prosecutor's Office located in Seocho-gu Seoul, Seoul, and on December 6, 2012, it was prepared a supplementary statement to the same purport in the Seoul Public Prosecutor's Office and submitted it to the Seoul Gangnam Police Station. Accordingly, the Defendant filed a false complaint against D and filed a false complaint

3. Highest 2013 highest 5429;

The Defendant managed the funds of the former president by means of a borrowed-name account, etc., and tried to obtain money by speaking that money is necessary in order to collect the borrowed-name account.

In accordance with the above plan on February 28, 2008, the defendant made a false statement to the victim N by referring to "K, located in the Gangnam-gu Seoul Metropolitan Government J, as the part of the former president, to the title "B", which is the part of the L former president, and "B manages the amount of the non-financial expense of L former president". The documents in which the passbook is integrated and the passbook is within the inside may be returned. The documents to provide documents to set up the combined passbook are 50 million won as the case law."

However, the Defendant was not a friendship with M, and did not manage the funds of the former president, and since there was no borrowed account available for the Defendant, there was no document that can release the borrowed account. Therefore, even if the Defendant received money from the victim, there was no intention or ability to pay part of the deposited amount to the victim as an honorarium.

As such, the Defendant was issued one cashier’s checks (ba.e., 02370791) issued 50 million won to the NAF by deceiving the victim and deceiving the victim.

Summary of Evidence

[2013 Highest 838]

1. Partial statement of the defendant;

1. Each legal statement of witness D, C,O, P, and Q (R after opening) 1. Each written statement, written certification, each transaction statement of each passbook (Evidence No. 11, No. 31, and No. 42), a copy of each passbook (Evidence List No. 11, No. 31, and No. 42), a business agreement, a detailed statement, a written statement of transactions (Evidence List No. 43), and a written statement of fulfillment of the agreement (Evidence No. 2554);

1. Partial statement of the defendant;

1. Each legal statement of witness P and Q in each court;

1. Statements made by witnesses D in the second protocol of the trial;

1. Statement of a witness 0 in the fourth trial record;

1. A supplementary statement to the chief of a complaint and a complaint;

1. Each letter, certificate (Evidence No. 42), details of transactions in each passbook (Evidence No. 45, 63), name cards, business agreement, and details of transactions (Evidence No. 45, 63), respectively;

1. Partial statement of the defendant;

1. Some police officers and the suspect interrogation protocol of the accused;

1. Each legal statement of the witness N and S;

1. Copies of cashier's checks, and borrowing certificates;

1. Report on investigation (Attachment of a certified copy of the removal), investigation report (the result of execution of a warrant of search, seizure and verification);

【Criminal Power at the Time of Sales】

1. Defendant's legal statement;

1. Criminal records;

1. Reporting on investigation (verification of suspect confinement records);

1. Application of Acts and subordinate statutes (Seoul Central District Court 2012 High Court 2012 High Court 1074, Supreme Court 2008Do11462, Seoul Central District Court 2008 High Court 4238);

1. Article applicable to criminal facts;

Article 347(1) of the Criminal Code, Article 156 of the Criminal Code

1. Selection of punishment;

imprisonment.

1. Aggravation for repeated crimes;

Article 35 (Case No. 1 of the Criminal Act, Case No. 2 of the Judgment)

1. Handling concurrent crimes;

The latter part of Articles 37 and 39(1) of the Criminal Act [the former part of Article 37, Article 39(1) [the former part of Article 39(1) of the Criminal Act] [the former part of Article 37, Article 39(1) [the former part of paragraph (1) of the judgment, each fraud against the victim N of paragraph (1) of the judgment, fraud against which the judgment of the court

1. Aggravation of concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2 and Article 50 (1) 2 of the Criminal Act, Article 50 (1) 1 of the Criminal Act, Article 2 of the judgment, Article 1-2 of the Criminal Act, Article 3 of the judgment)

1. Orders for compensation and sentence of provisional execution;

Article 25(1)1 and Article 31 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings;

A. Summary of the assertion

The defendant asserts to the effect that he did not misrepresent himself as a relative relationship with the E President, did not receive any money from the victim D, and therefore, he did not mislead himself as a fraud due to false facts.

The following facts are acknowledged based on the aforementioned evidence. The defendant prepared a document that allowed the victim D to take the delivery of earth and sand in relation to the Saemangeum reclaimed land's business several times (Evidence No. 4, 9). The defendant prepared a letter (Evidence No. 5 pages) that the victim would pay 2 million won to the victim around December 29, 2009. (Evidence No. 5 pages) On September 18, 2010, the defendant made a statement to the effect that 2.68,60,000 won amount of the deposit passbook should be paid to D. (Evidence No. 8) The defendant made a statement to the effect that it is difficult for the victim to accept 2.6 billion won since the defendant appeared in this court and made a statement to the effect that it is difficult for the victim to take the defendant's first statement to believe that the defendant would have been forced to pay 00,000 won to the victim's own money after considering that it is hard for the victim's direct deposit.

2. Regarding fraud against the victim C

In light of the following circumstances acknowledged by the aforementioned evidence, the victim C is guilty of fraud against the victim C, in full view of the following circumstances: (a) the victim stated in the investigative agency that the Defendant had consistently maintained the relationship of relatives with the E President and prepared and executed a public corporation executive position several times; (b) the details of the financial transaction of the victim C and the letter messagess with the Defendant are supporting the victim C’s above statement; and (c) the above statement is more reliable.

3. Regarding fraud against the victim N

In light of the following circumstances, the Defendant received 50 million won from the victim N through S, namely, the following facts acknowledged by the aforementioned evidence. At the time, the Defendant did not seek money from S, but did not first use the money at the expense and did not commit deception to the victim (2013 high 5429 evidence records, 23 pages). However, S stated that documents are necessary to collect money from the borrowed name account in the name of the Defendant and received 50 million won from the victim and delivered money from the victim. Since it is difficult to believe that S first provided money from the victim for expenses, there is no credibility to deem that the Defendant did not directly receive money from the victim’s name (240 million won records) and that the Defendant did not receive money from the victim’s account in the name of the Defendant and did not return the money from the original account (250 million won records). However, the Defendant did not appear to have been aware that the Defendant did not receive money from the Defendant’s account in the name of the Defendant, i.e., the Defendant did not receive money from the original account (2400.).

Although the facts of the crime in the judgment prior to sentencing are all found guilty, the defendant still has the same record of punishment, such as not recognizing his mistake, and the defendant has been sentenced several times of punishment for the same crime, and in particular, without being aware of the fact that even though the period of repeated crime was in existence, the victims were induced by deception similar to the previous crime, and the victim D who filed a complaint for the crime of fraud was accused of fraud, and the victim's damage has not been completely recovered. In full view of the fact that the crime in the judgment prior to sentencing was committed, the defendant should be punished strictly. However, the defendant shall be punished as the disposition in consideration of favorable circumstances, such as the fact that the defendant is aged and is not adequate in health status, and the balance between punishment and the case where the first criminal facts in the judgment has become final and conclusive at the same time.

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