2014Gohap24 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), Fraud

A

Escopic type, open-up type, and open-up;

Law Firm B (Attorney in charge)

June 27, 2014

The punishment of the accused shall be three years of imprisonment.

Criminal History Office

1. Fraud;

A. A. Around August 8, 2008, the Defendant stated to the effect that “If the Defendant loans KRW 20 million to the victim E from the Defendant’s house located in Yeongdeungpo-gu D apartment 603 502 Dong-gu, Young-gu to the victim, the Defendant shall pay the interest calculated at the interest rate of 2% per month until he/she has paid the full payment, and he/she shall repay the borrowed money to the victim.”

However, at the time of fact, the Defendant entered a multi-level company and the monthly income was less than KRW 2 million. On the other hand, around 2006, the Defendant was faced with pressure to repay obligations, such as paying KRW 500,000 as the principal and interest every month to relative relatives, etc. who invested in the Internet casino company located in the Philippines with a strong prospect for the amount of KRW 600,000,000. For this purpose, the Defendant did not have any intent or ability to repay the said money within a short period of time, on the ground that there was no economic difficulty, such as borrowing the interest calculated at the rate of 5% per month

Nevertheless, the Defendant received KRW 20 million from the victim to the Agricultural Cooperative Account in the name of the Defendant for the same day as the loan money.

B. On August 18, 2008, the Defendant stated to the effect that “G” pharmacy of the victim’s operation in Ansan-si, the Defendant: “B has one parcel of real estate in Chungcheongnam-gu, Chungcheongnam-do, and the husband also did not know about the guarantee. The Defendant would have to pay the interest calculated at the interest rate of 2% per month until he/she has paid the full payment.”

However, in fact, the defendant continued to be in an economic situation such as paragraph (1)(A) and there was no intention to have the defendant's husband guarantee the above obligation.

Nevertheless, around August 19, 2008, the Defendant received KRW 50 million from the victim to the Agricultural Cooperative Account in the name of the Defendant for the purpose of borrowing money.

C. On September 22, 2008, the Defendant stated to the effect that “Around September 22, 2008, the Defendant loaned money to the victim with interest to pay.” The Defendant stated to the effect that “A husband shall give a guarantee, and the sum of money borrowed before the husband’s loan is given shall be repaid by the end of January 2009, and the interest calculated at the rate of 2% per month shall be paid until the full payment is made.”

However, in fact, the defendant continued to be in an economic situation such as paragraph (1)(A) and there was no intention to have the defendant's husband guarantee the above obligation.

Nevertheless, around September 23, 2008, the Defendant received KRW 130 million from the victim to the new bank account under the name of the Defendant for the purpose of borrowing money.

2. Violation of the Act on the Aggravated Punishment of Specific Economic Crimes;

A. The Defendant, around October 2008, at the above pharmacy, contributed to the interest of KRW 100 million in the amount of KRW 500 million to the victim’s game industry. The Defendant stated that “if the Plaintiff loans money to the said company, which is expected to be paid, the Plaintiff would make an investment to repay the principal and interest without representation.” However, the Defendant refused the payment by her husband’s consent, and the Defendant would be responsible for and repaid all the money including the money that he/she lent to the her husband before January 14, 2009. The husband was punished by KRW 30 million or KRW 40 million in the month in which her dentist was a dentist, and thus, the interest would be higher than the transfer.”

However, the defendant did not have any intention or ability to pay the above money within a short time because the economic situation, such as the first-A, continues to exist, and the husband of the defendant did not have to pay the money on behalf of the defendant.

Nevertheless, around November 6, 2008, the Defendant received KRW 500,000 from the victim as a new bank account in the name of the Defendant for a loan.

B. On July 20, 2009, the Defendant: (a) at the above pharmacy around July 20, 2009, issued a passbook to the victim with the effect that “if there exists a balance certificate of KRW 500 million, the Defendant may obtain a benefit by bringing the amount of KRW 700 million or KRW 800 million to the victim; (b) the balance certificate is different; and (c) the payment of KRW 500 million or more of the proceeds received from the above pharmacy was changed; (d) the Defendant suspended payment of a new bank account in the name of the victim, which was deposited in KRW 500 million; and (e) the Defendant was paid KRW 50 million to the victim by returning the said passbook, stating that “the victim was not treated well.” After a week, the Defendant returned the passbook, and paid KRW 500,000 to the victim KRW 50 million.

Since then, around August 20, 2009, the Defendant did not keep the victim again at the next coffee shop of the above pharmacy, but did not properly process the amount of KRW 500 million. The money in the absolute passbook is not found, but is deposited into the passbook in the name of the head of the Tong, not in the four name. Accordingly, the Defendant made a request for deposit of KRW 500 million into the passbook in the name of the head of the Tong, not in the four name. Accordingly, the Defendant would make the larger profit that was promised before and after the day.”

However, the defendant was thought to withdraw 500 million won when transferred from the victim in cash.

Nevertheless, on August 21, 2009, the Defendant received KRW 500 million from the victim to the Defendant’s bank account under the name of so-called “pro-called balance certificate”.

Summary of Evidence

【Paragraph 1 of this Article】

1. Defendant's legal statement;

1. Statement of witness E;

1. Statement of the fifth photograph and photograph of the defendant by the prosecution;

1. Documents attached to the defendant, among the suspect interrogation protocol of the police on June 13, 2012, such as a receipt;

1. Attachment, such as recording records;

[Attachment 2-A]

1. Statement of witness E;

1. The third and fourth suspect examination protocol of each prosecutor's office against the accused;

1. Documents attached to the accused, such as specification of transactions, among the police interrogation protocol dated May 12, 2012;

1. The police statement of H;

1. The statement and accompanying documents of the defendant;

1. Written complaints and accompanying documents of E;

[Article 2-2(b) of the Fair Trade Commission]

1. Statement of witness E;

1. The third protocol of examination of the accused by prosecution;

1. Documents attached to the accused, such as specification of transactions, among the police interrogation protocol dated May 12, 2012;

1. Written complaints and accompanying documents of E;

1. Attachment, such as recording records;

Application of Statutes

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

Article 347 (1) of each Criminal Code (the fraud described in paragraph (1) and the choice of imprisonment), Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347 (1) of the Criminal Code [the main sentence of Article 42 of the former Criminal Code (amended by Act No. 10259, Apr. 15, 2010)]

1. Aggravation of concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes with punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) on August 21, 2009 with the largest penalty and penalty)]

Judgment on the argument of the defendant and defense counsel

1. Determination as to the assertion on Paragraph 1 of the judgment

The defendant and his defense counsel asserted that they had the intent and ability to repay money to the defendant at the time of borrowing money from the victim each time stated in paragraph (1) above. Thus, according to evidence duly adopted and examined by this court, the defendant was punished for the amount of KRW 200,000 per month at the time of the instant case, and the purchase and sale of the apartment was 80,000,000 won and had been residing in the company. However, according to the above evidence, the above apartment was already established with the maximum debt amount of KRW 35,00,00,000,000, the maximum debt amount of the above land was 280,000,000 won, the maximum debt amount of KRW 3,50,000,000,000, and the interest rate of KRW 500,000,000,000,000,000,000 won, and the defendant paid the above money to the company for the purpose of purchasing the above land.

2. Determination as to the assertion on the part A, as set forth in Paragraph 2 of the judgment

The Defendant and the defense counsel asserted that the borrower was not the Defendant but H, and even if the Defendant borrowed, the Defendant had the intent and ability to repay at the time. As seen earlier, it is reasonable to view that the Defendant had the ability to repay to the Defendant at the time, and according to the following circumstances acknowledged by the evidence duly adopted and investigated by the court, the Defendant was released from the victim as stated in the facts charged and received KRW 500 million from the victim (after that, even if the victim converted the Defendant’s loan to the amount of investment, there is no influence on the crime of fraud already established), and the above argument is not accepted.

A. The victim consistently and consistently transferred money from the police to the court from December 2008 to the defendant from his/her own account to H through his/her own account. However, on November 6, 2008, the victim stated that the amount of KRW 500 million remitted to the defendant is the amount loaned to the defendant after hearing the statements from the defendant as stated in the facts charged.

B. H made a statement at the police station to the effect that the victim borrowed money from the victim through the defendant because the police did not believe himself/herself, and consistent with the above statement of the victim. The defendant explained his/her business to the victim in the prosecutor's office that he/she would explain his/her own business and return his/her money to the victim that he/she would be responsible for and responsible for the victim, so he/she would be lent money for three months to the victim, and the victim made a statement to the effect that he/she trusted himself/herself and remitted KRW 500 million to the victim

C. In addition, on November 18, 2008, the Defendant remitted only KRW 385 million out of KRW 500 million from the victim to the H’s account on November 6, 2008, to several accounts in the name of personal debt repayment, etc. On the other hand, the Defendant remitted money from the victim to the H’s account on the same day. In light of this, the money transferred to the Defendant on November 6, 2008 and the money transferred from December 22, 2008 to the Defendant from December 22, 2008 seems to be different in the nature of the money transferred to the Defendant from December 22, 2008.

D. The Defendant did not recover the loan certificate of KRW 500 million, which was drawn up on October 14, 2008, from the victim.

3. Determination as to the assertion as to the part as to Paragraph 2(b) of the judgment

A. Summary of the assertion

The defendant paid money to the victim with money and received money by mutual agreement with the victim and withdrawn KRW 500 million with the victim's permission. Since then, the defendant paid the above money to M et al. as gold and purchase money, but only did not receive money from M et al. until now.

B. Determination

The following circumstances acknowledged by the evidence duly adopted and examined by the court: (i) the defendant tried to run a gold-related business only with a passbook of KRW 500 million deposited in around July 2009 only; and (ii) the defendant decided to purchase a gold with KRW 500 million around August 2009; and (iii) the defendant provided the victim with a remittance of KRW 500 million from the victim to his account so that he could not withdraw the money; (iv) the defendant continued to suspend payment without suspending payment (referring to the records of the record); (iii) if the defendant agreed with the victim as alleged by the defendant, it would be deemed that the remitted KRW 500 million would only be the purchase price, and thus, it would be unnecessary to separately permit the issuance of the check; and (iv) the victim transferred to the defendant would not be accepted from his account because the defendant was aware that he was using the victim for the purpose of paying the purchase price for the end of the month; and (v) the defendant was not aware that he was aware of the victim’s money purchase from his account.

Reasons for sentencing

1. Scope of recommended sentences according to the sentencing criteria;

A. General fraud, Type 3 (at least 500 million won, less than 5 billion won), and basic area (at least 3 years to 6 years of imprisonment) of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes on November 6, 2008

(b) A violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) on August 21, 2009;

(i) Scope of recommendations: General fraud, Type 3 (at least KRW 500,000, but less than KRW 5 billion), area of mitigation (at least one year and six months to four years of imprisonment);

(ii) Special mitigation: Where the victim is fully responsible for the occurrence of a crime or the expansion of damage;

C. General fraud, Type 2 (at least KRW 100,000, less than KRW 500,000), basic area (at least one year to four years) of fraud on September 23, 208;

(d) Application of standards for handling multiple crimes: Imprisonment with prison labor for a period of three years to nine years.

2. Determination of sentence;

There are circumstances that are favorable to the defendant, such as the fact that there was no history of punishment imposed by the defendant in excess of fine, the attitude of the victim to easily make monetary profits was the cause of damage, the defendant transferred the stocks of the Philippines company to repay the borrowed amount of KRW 200 million as stated in Paragraph (1) of the judgment of the victim around May 2009, and the fact that KRW 500 million as stated in Paragraph (1) of the judgment is deemed to have been converted into the money invested in the Philippines company by the victim.

However, it is difficult to see that the damage amount to each of the crimes of this case was not a significant amount of damage, and the clause 2-b (b) of the judgment of the court below, first of all, the trust that a large amount of profit would be paid by paying the profit of five million won is planned, and then the method is planned. The defendant also has returned the investment money to the investors who invested in the Philippines company through himself and has not been paid the profit of the investment money. Thus, even though he was well aware of the fact that the outlook of the Philippines company was not clear, it was concluded with the victim with a business explanation, etc., and therefore, it is difficult to see that the damage under Paragraph 1 and Paragraph 2-b (b) of the judgment of the court below was fully recovered, and the damage under Paragraph 2-b (b) of the judgment of the court below was not completely recovered, etc., which is disadvantageous to the

The punishment shall be determined in consideration of all the circumstances shown in the pleadings of this case, such as the age, character and conduct, environment, means and result of the crime, and the circumstances after the crime.

The transfer of judge and judge

Judges Kim Dong-dong

Judges Guide-in