Defendant 1 and five others

Defendants

Kim Yong-Un

Law Firm Law Firm, Attorneys Park Jong-soo et al.

1. Seoul Central District Court Decision 2005Da4554 decided Oct. 27, 2005 (Separation) / 2. Seoul Central District Court Decision 2005Da4554-1 (Separation), 5854 (Consolidated) decided Nov. 17, 2005 / 3. Seoul Central District Court Decision 2005Da6586 decided Feb. 16, 2006

All judgment of the court below shall be reversed.

Defendant 1 is punished by imprisonment for two years, by imprisonment for one year and six months, by imprisonment for defendant 2, by imprisonment for three years, by imprisonment for three years, by imprisonment for four years and by imprisonment for six months, respectively.

The 123-day detention days prior to the pronouncement of the judgment below shall be included in the above sentence against Defendant 1; the 124-day imprisonment against Defendant 2; the above sentence against Defendant 3; the 102-day imprisonment against Defendant 3; and the 2-day imprisonment against Defendant 6, respectively.

However, the execution of each of the above punishments shall be suspended for three years for Defendant 2, for two years for Defendant 5, and for Defendant 4, and for one year for Defendant 6.

Defendant 5, Defendant 4, and Defendant 6 shall order each community service for 80 hours.

The identification card (proof No. 1) of the Korean Unauthorized General Federation, the Korea Fisheries Preservation Association of the 21st century, the environmental patrol certificate (proof No. 2), and the environmental police newspaper certificate (proof No. 3) shall be confiscated from the defendant 2.

1. Summary of grounds for appeal;

A. Defendant 1

(1) misunderstanding of facts

The Defendant, as he belongs to Nonindicted 1, who was a director of an international financial organization, did not know Nonindicted 1’s belief in carrying out the State-owned business in fact and did not intend to obtain money by deception, and the lower court did not have conspired with Co-Defendant 2, Defendant 3, and Defendant 6, thereby misleading the fact that the lower court found the Defendant guilty.

(2) The assertion of unreasonable sentencing

Considering the fact that the defendant was ordered by Nonindicted Party 1 to take part in the instant crime and that it is difficult to view that the defendant was comprehensively led to the instant crime, the sentence of the lower court that sentenced two years and six months to imprisonment is too unreasonable.

B. Defendants 2, 3, 4, 5, and 6

In light of all the circumstances revealed in the record, the sentence of the court below is too unreasonable.

2. Determination

A. Defendant 1

(1) Determination of misunderstanding of facts

However, according to the evidence duly examined and adopted by the court below, the defendant was committed as the outside director of the so-called International Financial Organization, and was employed by Nonindicted 2, the head of the branch office of the Agricultural Cooperative Association sericultural branch office of the Agricultural Cooperative, and was sent to Nonindicted 2, who was misrepresentation of the NIS staff. The defendant informed Nonindicted 3, the personnel number to deposit money, and urged him to commit the crime. The defendant was discovered prior to the crime of this case, and the crime of this case was committed under several laws, such as the crime of this case, and reported on broadcasting. According to the above facts, the defendant attempted to acquire money by misrepresenting the government agency in the way of so-called "resource of resources transfer," with the knowledge that he did not want to use money for national business by real name, and in the case of co-principals or co-principals, the defendant did not gather at a certain place and did not directly engage in the act of this case, but did not have any awareness of the defendant's comprehensive communication with 1 or 2, and the defendant did not directly participate in the act of this case of this case.

(2) Determination on the assertion of unreasonable sentencing

However, the crime of this case may not be deemed to have been committed by the defendant under the pretext of the state-owned business, but the crime of this case is not likely to be committed by deceiving a large amount of money. However, there is no substantial damage because the defendant failed to withdraw the money deposited or failed to commit the crime of this case, there is no profit acquired by the defendant through the crime of this case, and the defendant seems to have committed the crime of this case under the direction of Non-Indicted 1, who is committed as a director at the executive organ of an international financial organization, taking into account the various circumstances, including the defendant's age, character, character, intelligence and environment, motive, means and consequence of the crime of this case, etc., the punishment of the court below is somewhat inappropriate, and this part of the defendant's assertion is with merit.

B. Defendant 2

In light of the following circumstances: (a) the Defendant appears to play a significant role in the instant crime as an assistant role of Defendant 5; (b) the Defendant did not incur substantial damage because the instant fraud crime was committed in an attempted attempt or did not withdraw the deposited money; (c) there was no benefit acquired by the Defendant through the instant crime; and (d) the Defendant led to the confession of the instant crime and his depth; and and (c) the Defendant is chilling in depth; and (d) the Defendant’s age, character and conduct, intelligence and environment; (d) motive, means and consequence of the instant crime; and (e) the circumstances after the crime were committed, etc., which are the conditions for sentencing as indicated in the instant case, the sentence of the lower judgment

C. Defendant 3

It is clear that the above defendant's grounds for appeal were examined ex officio prior to the judgment on the grounds for appeal of the above defendant, and 2005No3699 and 2006No623 cases due to the defendant's appeal against the judgment of the court of first instance against the defendant's appeal against the judgment of the court of first instance were consolidated in the oral proceedings. Each of the crimes of this case is concurrent crimes under the former part of Article 37 of the Criminal Act, and one punishment should be rendered at the same time pursuant to Article 38 of the Criminal Act. Thus, each of the judgment of the court below is no longer maintained. Further, the prosecutor of this case violated the Punishment of Violences, etc. Act (at night, joint residence intrusion) as the violation of the Punishment of Violences, etc. Act (amended by Act No. 7891 of Mar. 24, 2006), and the applicable provisions of this case are no longer permitted as a member of the court, and Article 38 (1) and (3) of the Punishment of Violences, etc. Act (amended by Act) as the Criminal Act.

D. Defendants 4, 5, and 6

Before the judgment on the grounds for appeal by the Defendants, the prosecutor examined the defendants ex officio, and the prosecutor applied for the revision of the indictment to change the name of the crime from "violation of the Punishment of Violences, etc. Act (at night, joint residence intrusion)" to "Violation of the Punishment of Violences, etc. Act (joint residence intrusion)" (Article 2 (2) and (1) of the Punishment of Violences, etc. Act (amended by Act No. 7891 of March 24, 2006), and Article 319 (1) of the Criminal Act (Article 2 (2) and (1) of the Punishment of Violences, etc. Act, and Article 319 (1) of the Criminal Act as "Article 2 (1) 1 and Article 319 (1) of the Punishment of Violences, etc. Act (amended by Act No. 7891 of March 24, 2006)" as to the part of the facts charged in this case's case

3. Conclusion

Therefore, pursuant to Article 364(6) of the Criminal Procedure Act with respect to Defendant 1 and Defendant 2, as to Defendant 3, Defendant 4, Defendant 5, and Defendant 6, the lower judgment is all reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and the judgment is rendered following the pleadings.

The summary of the facts constituting an offense and the evidence recognized by this court is identical to the combination of the items stated in the corresponding column of the first, second, and third original judgment, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

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

Defendant 1: Articles 352, 347(1), 30 (Attempted Crime), 347-2, and 30 (Fraud by Use of Computer, etc.) of the Criminal Act, and choice of imprisonment, respectively.

Defendant 2: Articles 352, 347(1), 30 (Attempted Fraud), 347-2, and 30 (Fraud by Use of Computer, etc.) of the Criminal Act, Article 231 of the Criminal Act (Article 231 of the Criminal Act) and choice of imprisonment, respectively.

Defendant 3: Articles 352, 347(1), 30 (Attempted Fraud), 347-2, and 30 (Fraud by Use of Computer, etc.) of the Criminal Act, Article 2(2) and 2(1)1 of the Punishment of Violences, etc. Act, Article 319(1) of the Criminal Act, and each choice of imprisonment, respectively.

Defendant 4: Articles 347-2 and 30 (Fraud by Use of Computer, etc.) of the Criminal Act, Article 2(2) and 2(1)1 of the Punishment of Violences, etc. Act, Article 319(1) of the Criminal Act (the point of intrusion upon residence), and each choice of imprisonment with prison labor.

Defendant 5: Articles 347-2 and 30 (Fraud by Use of Computer, etc.) of the Criminal Act, Article 2(2) and 2(1)1 of the Punishment of Violences, etc. Act, Article 319(1) of the Criminal Act (the point of intrusion upon residence), and each choice of imprisonment with prison labor.

Defendant 6: Articles 347-2 and 30 (Fraud by Use of Computer, etc.) of the Criminal Act, Article 2(2) and 2(1)1 of the Punishment of Violences, etc. Act, Article 319(1) of the Criminal Act (the point of intrusion upon residence), and each choice of imprisonment with prison labor.

1. Aggravation for repeated crimes;

Defendant 3: Article 35 of the Criminal Act

1. Handling concurrent crimes;

Defendant 4 and Defendant 5: The latter part of Article 37 and Article 39(1) of the Criminal Act

1. Aggravation for concurrent crimes;

Defendants: former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act

1. Inclusion of days of detention in detention;

Defendant 1, 2, 3, and 6: Article 57 of the Criminal Act

1. Suspension of execution;

Defendant 2, Defendant 4, Defendant 5, and Defendant 6: Article 62(1) of the Criminal Act

1. Confiscation;

Defendant 2: Article 48(1)1 of the Criminal Act

1. Social service order;

Defendant 4, Defendant 5, and Defendant 6: Article 62-2 of the Criminal Act

In order to overcome the economic difficult situation, the Defendants took part in the crime of this case; the Defendants did not suffer substantial damage because they failed to withdraw the money deposited or failed to commit the crime of this case; the Defendants committed the crime of this case without any profits acquired through the crime of this case; Defendants 5 and 4 were sentenced to imprisonment with prison labor for one year and six months, suspension of execution two years, and eight hours of social service in the second judgment; the above judgment became final and conclusive as the above Defendants did not appeal; Defendant 6 did not receive the same sentence; Defendant 5 did not receive the same sentence; Defendant 5 did not receive the same sentence; Defendant 5 did not receive the same kind of punishment; Defendant 5 did not take into account the motive and circumstances leading up to the crime of this case; the circumstances after the crime of this case; Defendant’s age, character, conduct, environment, etc.; Defendant 5 and Defendant 4 were serving social service as the condition for sentencing specified in this case.

Judges Kim Jong-dae (Presiding Judge)