(영문) 서울중앙지방법원 2018.10.5. 선고 2018고합802 판결

In June 2014, the defendant made a false statement to the victim C and the victim B using the Internet message "D," which is an Internet message, that "the victim C and the victim B had been exposed to the ES goods, and returned the principal and interest 12% when paying six weeks."

However, in fact, there was no ESS products such as the defendant's oral statement, and even if the defendant received money from the victims, he was thought to use it for the defendant's personal debt repayment, so there was no intention or ability to return the principal and interest of 12% to the victim.

Around August 29, 2014 from the victim C to the Defendant’s F Bank account (G) around August 29, 2014, the Defendant, as such, received KRW 8 million from the victim C, and received KRW 10 million from the victim B to the said F Bank account on the same day from the victim B, respectively, and acquired KRW 1,343,040,000 from August 29, 2014 to May 11, 2017, respectively, over a total of 61 occasions, from August 29, 2014 to December 12, 2017.

Summary of Evidence

1. Defendant's legal statement;

1. Each police statement concerning C and B;

1. Each complaint filed in C and B;

1. Written complaints in C and B;

1. Application of Acts and subordinate statutes to the contents of an investigation report (a supplementary note to the grounds of a complaint), investigation report (a supplementary note to the C voluntarily submitted data), investigation report (a supplementary statement, etc. attached to the complainant B), 1. Each peculiar ES data, each account details, and each E document closure, screen pictures, details of inquiries about the details of transactions, loan certificates, H dialogues, details of H conversationss and Handphones;

1. Article applicable to criminal facts;

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

Article 37 (Aggravation of Concurrent Punishment of Specific Economic Crimes (Fraud) of the Criminal Act, Articles 38 (1) 2 and 50 (Aggravation of Concurrent Punishment of Specific Economic Crimes (Fraud) with respect to Victims C with heavier Crimes)

1. Dismissal of application for compensation;

Articles 32(1)3 and 25(3)3 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (the scope of liability for damages is not clear)

Reasons for sentencing

1. The scope of punishment by law;

Imprisonment with prison labor for not less than three years but not more than 45 years;

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

(a) Violation of each Act on the Aggravated Punishment, etc. of Specific Economic Crimes;

[Extent of Recommendation] General Fraud: Type 3 (at least KRW 500 million, less than KRW 5 billion), Basic Area (at least 3 years to 6 years)

[Special Mitigation]

(b) The scope of final sentence due to the aggravation of multiple offenses: Imprisonment for 3 years to 9 years; and

3. Determination of sentence;

The following circumstances and the Defendant’s age, character and conduct, environment, motive and background of the crime, means and consequence of the crime, etc., and all of the sentencing factors shown in the trial process of this case, including the circumstances after the crime, shall be determined as ordered.

○ Unfavorable Circumstances: The Defendant, through a long-term period, abused a large amount of money that leads to approximately KRW 1.9 billion in total by deceiving the victims of sexual intercourse with investment in goods without any substance. In light of the content and method of deception, the period of crime, and the amount of damage, etc., the crime is considerably poor. The Defendant still fails to pay damages to the victims properly, and the victims want to be punished by the Defendant.

The circumstances favorable to ○: (a) the Defendant, from the investigative agency to the present court, recognized the Defendant’s mistake; (b) the Defendant was not guilty of having been punished for the same kind of crime; (c) the Defendant paid a certain amount of money to the victims as interest during the commission of the crime, and the actual amount of damage appears to be less than the amount of damage recognized in the facts of the crime. In addition, the Defendant made efforts to recover damage by transferring the right to purchase an apartment under