(영문) 서울고등법원 2018. 2. 12. 선고 2017노1950 판결

Although Non-Indicted 1 was aware of the existence of alcohol, it did not lack intellectual ability or lack sufficient ability to maintain a normal social life. Nevertheless, the judgment of the court below which judged it as a fact is erroneous in the misunderstanding of facts.

Defendant 1 did not intend to obtain the injury insurance money that Nonindicted Party 1 was the insured, and there is no fact that Defendant 1 used the injury insurance money deposited in the name of Nonindicted Party 1.

B) Abandonment (Death by mistake or misunderstanding of legal principles)

Defendant 1 reported the marriage as a means of deceiving the victim Nonindicted 1’s death benefit, and the marriage between Defendant 1 and the victim is null and void since there is no agreement between the actual intention of marriage, and Defendant 1 cannot be recognized as the legal status of the victim’s spouse. Therefore, Defendant 1 cannot be the subject of the crime of abandonment against the victim, even though Defendant 1 did not have the duty to protect the victim as a husband.

C. Fraud by loan of money prior to the lease (de facto mistake)

Defendant 1 did not have been involved in the crime in Nos. 1, 3, and 5 of the list of crimes in the attached Table 3 of the judgment below of the court below concerning loan fraud.

2) Defendant 2

A) Fraud of injury insurance money (in fact mistake)

Defendant 2 received, at the request of Defendant 1, a subscriber confirmation call (pact call) from an insurance company several times on behalf of Nonindicted 1.

There is no fact that Defendant 2 has conspiredd to acquire the injury insurance money with Defendant 1, and there is no fact that he has used the accident insurance money deposited in the name of Nonindicted Party 1.

B. Fraud by loan of money prior to the lease (de facto mistake)

Defendant 2 only carried out a computer game in Defendant 1’s office, or carried out or dried with Defendant 1, and did not participate in Defendant 2’s act of fraud of lending money.

3) Unreasonable sentencing

The sentence of the lower court against the Defendants (Defendant 1: 17 years of imprisonment, Defendant 2: 4 years of imprisonment) is too unreasonable.

(b) Prosecutors;

1) Defendant 2’s fraudulent act of committing the death insurance money (a factual mistake)

Defendant 2, in collusion with Defendant 1, participated in the overall fraud of the instant death insurance proceeds caused by “the purchase of death insurance with Nonparty 1 as the insured, the report of marriage between Defendant 1 and Nonindicted 1, and the change of Defendant 1’s beneficiary.”

2) Defendants (unjustifiable punishment)

The sentence of the lower court against the Defendants is too uneased and unreasonable.

2. Determination

A. Ex officio determination on changes in indictment to Defendant 1

Before the judgment on the grounds for appeal by Defendant 1, the prosecutor examined the following facts ex officio, and the prosecutor applied for permission to amend the indictment in addition to the annexed facts as the selective applicable provisions of the Criminal Act, with regard to Defendant 1’s abandonment resulting in death in Defendant 1 in the trial, as selective applicable provisions of the Criminal Act, and the application for permission to amend the indictment in addition to the annexed facts as the selective charge. This court permitted this (as seen in the court below’s decision, this court recognized Defendant 1 as guilty of the charge of abandonment resulting in death as in the future, and thus, does not judge the charges of murder added selectively). However, the court below found Defendant 1 guilty of all the charges of abandonment resulting in death in Defendant 1 and recognized Defendant 1 as guilty, and sentenced Defendant 1 as concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, the entire part of the judgment of the court below as to Defendant 1 cannot be maintained.

However, despite the above reasons for ex officio destruction, ① assertion of mistake of facts as to the fraud of the injury insurance money by the Defendants, ② assertion of mistake as to the prosecutor’s fraud of the death insurance money, ③ assertion of mistake as to the Defendants’ fraud of the former loan money, ④ assertion of mistake as to the Defendants’ fraud of the former loan money, ④ assertion of unreasonable sentencing between the prosecutor and Defendant 2 is still subject to the judgment

B. Determination of misconception of facts as to the Defendants’ fraud of the injury insurance money

1) Summary of this part of the facts charged

On March 209, the Defendants discovered Nonindicted Party 1, whose intellectual level is elementary school 2 and 3 years and alcohol addiction status, and subscribed to the insurance in the name of Nonindicted Party 1, who is not capable of being insured by themselves, for the following reasons: (a) the Defendants could not recognize the meaning and necessity of the insurance; (b) could not recognize the meaning of the insurance and the ability to pay insurance premiums and prepare insurance contracts; and (c) could not receive personal verification calls from the insurance company with little words and horses; and (d) could not receive them.

Since then, the Defendants opened a bank account in the name of Non-Indicted 1 using the personal information of Non-Indicted 1 and the identification card of Non-Indicted 1, prepared an application for purchase of insurance, and submitted it to the insurance company. After Defendant 2, upon the occurrence of a personal confirmation phone from the insurance company, knew that Non-Indicted 1 had the ability to maintain it by deceiving the insurance company as if he had the ability to buy a normal insurance and receive a telephone from Non-Indicted 1, and paid an insurance premium of about 500,000 won per month from August 18, 2009 to September 16, 2010.

On October 15, 2009, the Defendants were hospitalized in the △△△ Hospital located in Ansan-gu, Masan-si, Masan-si, Ma○○○, which was located in the △△△△△△△ Hospital on December 17, 2009, after Non-Indicted 1 was charged with injuries, such as the toilet door, from the toilet door at the home of ○○○○, and was charged with the injury of the ○○○○, etc., on the 17th day of the same month, after which he was charged with the injury, and filed a claim for an accident insurance money with the victim Non-Indicted 2 on November 25, 2009, and received KRW 1,280,000 from November 24, 2009 to August 9, 2010, and received the Defendant’s insurance money in collusion with the victim’s account in the name of the victim under the name of 47,315,190 won.

2) The judgment of this Court

The court below rejected the Defendants’ assertion under the title “determination on the Defendant and his defense counsel’s assertion” as stated in the judgment of the court below on the same ground as the reasons for appeal in this part. The court below rejected the Defendants’ assertion (Article 2(a) and (2)(b)1 of the corresponding part of the judgment of the court below]. The judgment of the court below is just and it is reasonable in comparison with the above judgment of the court below, and it is not erroneous in the misapprehension of the facts or the legal principles on deceit in fraud as alleged by the Defendants, thereby affecting the conclusion of the judgment. Thus, this part of the Defendants’ assertion is without merit ( insofar as the Defendants made the victims to subscribe to the accident insurance by themselves as the Defendant had the victim deposited the accident insurance money in the account under the name of Non-Indicted 1, claiming for the accident insurance money, and the victim did not have any intellectual or economic ability to subscribe to the accident insurance at the time of concluding the accident insurance contract, or found that part of the insurance money was damaged to the account, even if the Defendants did not have any error in the crime.

C. Determination of misconception of facts as to the prosecutor's fraud of death insurance proceeds

1) Summary of this part of the facts charged

In addition, the Defendants conspired to divide the death benefit amount in cases where Nonindicted Party 1 died due to alcohol addiction, etc., and Defendant 1 had already been in a relationship with Defendant 2. As such, even if there was no intent to maintain a normal matrimonial relationship, the Defendants reported the marriage with Nonindicted Party 1 on August 19, 2010, and based on this, reported the nine insurance company subscribed under Nonindicted Party 1 from September 2010 to Nonindicted Party 1 as if Nonindicted Party 1 applied for the change of the beneficiary of the death benefit, and the beneficiary was changed to Defendant 1, the husband of the law.

At around 16:00 on January 29, 201, the Defendants: (a) died at the members of Ansan-si ( Address 1 omitted); and (b) ○○○○○’s home on or around April 14, 2011; (c) claimed death insurance money to the victim Nonindicted Incorporated Company 2; and (d) deposited KRW 10,00,000 in Defendant 1’s account on or around April 18, 201; and (b) from that time to June 13 of the same year, the Defendants were not suspected of refusing to pay KRW 319,00,000 in total nine times from the nine damaged insurers as shown in the attached Table 2 of the lower judgment until June 13 of the same year to the day on which the Defendants received KRW 319,00,000 as the death insurance money from Defendant 1’s account as the death insurance money; and (d) on or around April 26, 2011, the Defendants rejected the above Defendants’ death insurance money as the victim Nonindicted Incorporated.

Accordingly, the Defendants conspired to take property by deceiving the victim companies listed in No. 2 No. 1 or No. 9 of the list of crimes attached to the court below and attempted to take property by deceiving the victim non-indicted 3 corporation.

2) Issues

Defendant 1 recognized all of the crime of fraud of death insurance, while Defendant 2 denies all of them. Therefore, this part of the issue is whether Defendant 2 conspiredd with Defendant 1 to commit the crime of fraud of death insurance and participated in the crime of fraud of death insurance by Defendant 1.

3) Relevant legal principles

In the conclusion of a life insurance contract which covers the death of another person as an insured event, even if the validity requirement is not satisfied because a third party makes a misrepresentation as if the insured was the insured, the act of concluding a defective insurance contract does not constitute a commencement of the execution of deception by the intent to acquire the insurance money even if it does not do so, unless there are special circumstances that can be deemed that the act of entering into such contract would impair the nature of the insurance, such as the occurrence of the insured event, in spite of the occurrence of the insured event, or the intent to anticipate the specific possibility of the occurrence of the insured accident, or intentionally cause the occurrence of the insured accident (see Supreme Court Decision 2010Do6910, Nov. 15, 2012).

(iv) the facts of recognition

According to the evidence duly admitted and examined by the court below, the following facts are recognized:

① From August 2009 to October 2009, Defendants subscribed to the 1 to 7 accident insurance and death insurance in the name of Nonindicted Party 1 (beneficiary of death insurance: State 2) No. 2) No. 1 to 7 accident insurance and death insurance in the table of crime (hereinafter “the table of crime committed in the original attached Form 2”) attached to the lower judgment.

② From November 2009 to August 201, 2010, the Defendants acquired the accident insurance amount of KRW 47,315,190 in total based on the No. 1 to 7 accident insurance.

③ On August 1, 2010, the Defendants subscribed to the 8 accident insurance and death insurance No. 8, and the 10 accident insurance and death insurance No. 5, August 5, 2010, respectively, in the name of Nonindicted Party 1 (beneficiary of death insurance: statutory heir).

④ On August 19, 2010, Defendant 1 reported the marriage with Nonindicted Party 1.

⑤ Defendant 1 subscribed to an accident insurance and death insurance No. 9 on September 16, 2010 under the name of Nonindicted Party 1 (beneficiary of death insurance: Defendant 1).

④ Defendant 1 changed the beneficiary of the death insurance Nos. 1 through 7 of September 2010 to Defendant 1.

④ Nonindicted 1 died on January 29, 2011.

④ From April 14, 2011 to June 3, 2011, Defendant 1 filed a claim for the death benefit Nos. 1 through 10 from April 14, 2011 with the victim insurance company, and received KRW 319,00,000 in total of the death benefit.

5) The judgment of the court below

With respect to Nos. 1 through 7 accident insurance and death insurance, the lower court determined that the evidence submitted by the Prosecutor alone is insufficient to recognize this part of the charges, in light of the following: (a) the time when the Defendants concluded the above insurance contract under the name of Nonindicted 1 was one year prior to the change of the beneficiary of the marriage report and the death insurance; (b) Defendant 2 was likely to have conspired to acquire only the Defendant 1 and the bodily injury insurance at the time of entering into the above insurance contract; (c) there is no evidence supporting that the health condition of Nonindicted 1 was inferior at the time of entering into the above insurance contract; (iv) the act of receiving the death insurance money after abandoning the insured; and (v) there is no record stating that Defendant 2 did not prepare a written claim for payment of the death insurance money pursuant to the above insurance contract; and (vi) there is no evidence supporting that Defendant 2 was involved

With respect to the Nos. 8 and 10 accident insurance and death insurance, the lower court determined that this part of the facts charged is not acceptable solely on the basis of the evidence submitted by the prosecutor, in light of the following: (a) although Defendant 2 concluded the above insurance contract by carrying out 14 to 18 days prior to the date of the marriage report by Defendant 1 and Nonindicted 1; (b) at the time, the marriage report was made; (c) the above insurance contract was not a security for only a death accident due to a security insurance; (d) there was a possibility that Defendant 2 thought that he purchased the above accident insurance; (e) there was no details on preparing a written claim for the payment of death insurance benefit based on the above insurance contract; and (v) there was no evidence to prove that Defendant 2 was involved in the process of changing the beneficiary of the death insurance money of the above insurance contract to Defendant 1.

With respect to the No. 9 accident insurance and death insurance (the insurance contract concluded after the marriage report between Defendant 1 and Nonindicted 1 was filed) the lower court determined that this part of the facts charged was not acceptable on the sole basis of the evidence submitted by the prosecutor, in light of the following: (a) the above insurance contract is not opened by telephone unlike other insurance contracts; (b) there is no evidence to prove that Defendant 2 participated in the process of claiming the payment of the death benefit based on the above insurance contract; and (c) there is no evidence to prove that Defendant 2

6) The judgment of this Court

In light of the above legal principles, if the above judgment of the court below is examined closely by comparing the above facts and records, the judgment of the court below is just and acceptable, and there is no error of law that affected the conclusion of the judgment by misunderstanding the facts as alleged by the prosecutor. Thus, this part of the prosecutor

D. Judgment of misconception of facts or misapprehension of legal principles as to Defendant 1’s abandonment death

1) Summary of this part of the facts charged

Defendant 1 is the husband of the law who reported the marriage with the victim Nonindicted Party 1 (A woman, 43 years old) around August 19, 2010.

The victim was hospitalized in the hospital in the area of the real estate in which the victim reported the marriage with Defendant 1, from October 11, 201 to the 13th day of the same month, and was hospitalized in the hospital in the area of the real estate in which the victim was in need of continuous medical treatment and care, such as the high growth rate, the defeatitis from November 8 to the 18th day of the same year, and the defeatitis from November 1 of the same year to the 18th day of the same month, and the hospital in the area of the real estate in which the victim was in need of continuous medical treatment and care.

In this situation, if the mental capacity of the victim who cannot have a hospital alone is merely the second and third grade of elementary school, the disease was aggravated and there was a possibility of death. In addition, the victim was suffering from alcohol addiction so that the victim could no longer drink, so if the victim could no longer drink, there was a possibility that the above disease might have been aggravated due to alcohol.

Nevertheless, Defendant 1 did not look at the victims who need assistance due to disease and alcohol addiction, and did so separately from the police officer around October 2010, and even when visiting the house of the victims to do so, Defendant 1 did so. Even on January 28, 2011, Defendant 1 left the victim by leaving the victim as it was, despite Defendant 1’s crypted that “I would be hospitalized, even if I would be hospitalized,” Defendant 1 left the victim by leaving the victim as it was, and eventually, Defendant 1 left the victim by leaving the victim as it was. On January 29, 2011, Defendant 1 left the victim by leaving the victim as it was. In addition, around 16:00 on January 29, 201, Defendant 1 left the victim, such as the victim, and caused death (to be presumed to be alcohol, alcohol, malmatitis, salmatitis, and salmatitis) at his own house of Ansan ○○○.

2) Defendant 1’s assertion

Defendant 1 asserted that until the judgment of the court below, Defendant 1 was the husband and wife legally effective with the victim, but this Court reported the marriage with the victim for the purpose of acquiring the death insurance money, and thus there was no agreement between the victim and the victim. Therefore, Defendant 1 asserts that the marriage with the victim was null and void by law, and he did not bear the duty of assistance as husband at the time of death of the victim.

3) Relevant legal principles

Legal marriage means a case where there exists no agreement between the parties to a marriage and a report of marriage under the Act on the Registration, etc. of Family Relationship (Article 815 subparag. 1 and Article 812(1) of the Civil Act). Article 815 subparag. 1 of the Civil Act provides that “when there is no agreement between the parties to a marriage,” “when there is no agreement between the parties to a marriage” means a case where there is no agreement between the parties to make a mental or physical combination recognized as a couple under the social concept (see, e.g., Supreme Court Decision 96Do2049, Nov. 22, 1996). Accordingly, marriage is a case where only a certain purpose is reported as a means to pretend it to be a couple only on the family relations register, and that marriage is naturally null and void unless it is reported as an intention to make a mental or physical combination.

On the other hand, the Civil Act provides for the following as a typical element or result of marriage: (a) the mutual exclusive and exclusive sexual intercourse between men and women, living together, community of livelihood, child’s childbirth and joint rearing, and the formation of relationship by marriage (Articles 826, 833, 840 subparag. 1, 874(1), and 909, etc. of the Civil Act); (b) however, there is no specific and detailed content thereof. The specific form of marriage must be continuously and autonomously formed by the parties to the marriage relationship; (c) it cannot be deemed marriage even where the above elements or results are entirely lacking; (d) it is possible to lead to a marital life, living together, living, or childbirth of a child; and (e) its limit should be determined by the social concept for marriage.

However, in light of the social concept, “an intention to create a mental or physical combination recognized as a father” is not necessarily premised on the actual feasibility of the combination. Therefore, even if physical combination is impossible due to such circumstances as the family physical disease or disability, if the parties give the other party a duty to support and cooperate between husband and wife during the marriage period and are in a marital relationship with the intent to be bound by the said intent, such a marriage shall not be deemed null and void. Therefore, solely on the ground that the marital relationship has ceased to exist in a short period due to the death of one of the parties, it cannot be readily concluded that the intention of the parties was merely a temporary marital intention, and even if the parties have predicted that the marital relationship will be terminated due to the death of one of the parties, or that there was no genuine marital intention immediately after the report of marriage was completed with actively accepting such circumstances.

In addition, it is not pursuing only mental and physical combination including the typical elements as seen earlier, and therefore, the purpose of social and economic situation improvement and legal inheritance at the time of the death of one of the parties in the future may be an important reason. Therefore, even if there exists a separate purpose, other than the original intention of marriage, unless it is in conflict with the original intention of marriage and denies the existence of the original intention of marriage or the objective of marriage, it may be a single proviso to deem that there is no original intention of marriage.

4) The judgment of this Court

In light of the above legal principles and considerations regarding the agreement of marriage, it is not deemed that the instant case had been continuously living like normal husband and wife or that a de facto marital relationship has been achieved. In addition, Defendant 1 appears to have reported a marriage when predicting the fact that at the time of the report of marriage of this case, the victim could die because the health of the victim is not good at the time of the report of marriage of this case, and the victim actually died about eight months only after the report of marriage of this case, and Defendant 1 could have been able to receive the death benefit of the victim solely as the husband or beneficiary of the death benefit as the victim’s legal father or beneficiary of the death benefit without running a special marital life.

However, in light of the following circumstances acknowledged by the evidence duly admitted and investigated by the court below, i.e., the victim's identity card was stolen and reported to the victim's death. However, there was no evidence to acknowledge that the marriage was null and void by the victim's report, and the above assertion is consistent with the court below's consistent statement that the victim could not live together without the marriage report, and that it would be inconsistent with the victim's statements. ii) Defendant 1 appeared to have been hospitalized in the investigative agency at the time of the death of the victim, i.e., the victim's first time after the victim's death, i., the victim's first time after the victim's death, i.e., the victim's first time after the victim's death, i., the victim's first time after the victim's death, i.e., the victim's first time after the victim's death, and the victim's first time after the victim's death did not appear to have been able to receive the victim's death.

Therefore, this part of Defendant 1’s assertion premised on this premise is without merit (as long as Defendant 1 acknowledges the part of the crime of fraud of the death insurance proceeds in the instant facts charged that “I report a marriage even though I did not intend to maintain a normal matrimonial relationship,” the part of “her husband” in the part of the crime of fraud of the death insurance proceeds should be pronounced not guilty. However, the expression “I do not intend to maintain a normal matrimonial relationship” in the part of the crime of fraud of death insurance proceeds is obvious that “I do not have an intention to maintain a normal matrimonial relationship,” and it cannot be deemed as incompatible with “legal husband” in the part of the crime of fraud of death insurance proceeds by using the above expression “legal wife” as the insured, and thus, Defendant 1 cannot be deemed null and void solely on the ground that there was no intention to maintain a matrimonial relationship in light of the legal principles as seen earlier.”

E. Judgment on the misunderstanding of facts as to the Defendants’ fraudulent loan fraud

1) Summary of this part of the facts charged

In order to stabilize the housing of homeless workers, the Ministry of Land, Infrastructure and Transport operates a housing lease loan system with the National Housing Fund as a source of funds to lend the employee deposit funds at a rate lower than the market interest rate without securing the said funds.

The crime of fraud of lending the fund for the fund for the fund for the fund for the fund for the loan of false workers is based on the circumstances such as the loan broker’s total responsibilities, the loan broker’s loan-related documents and the loan broker’s loan-related business related to the fund for the loan of workers to the financial institution entrusted with the business of lending the fund for the loan of the fund for the loan of workers, and the submission of the loan broker’s loan-related documents and the loan broker’s loan broker’s loan-related business can easily obtain the loan through formal review. The loan broker’s loan broker’s loan-related business is to recruit the house owner who will play a false broker’s role under the direction of the loan broker’s comprehensive broker’s loan broker’s loan, and to make false employment-related documents such as employment certificate, payment statement, income tax withholding certificate, etc. as if the loan is actually concluded.

On March 2013, the Defendants conspiredd with Nonindicted 4, Nonindicted 5, Nonindicted 6, Nonindicted 7, etc., and Nonindicted 5, Nonindicted 6, and Nonindicted 7, to recruit the lessor and lessee to conclude a false lease contract; the Defendants’ role of preparing false documents, such as a certificate of employment necessary for the loan of housing lease; and Nonindicted 4-7) in order to invite the title holder to conduct business registration necessary to prove false employment and to respond to the confirmation of the financial institution.

According to the above public offering, the Defendants and the above accomplices recruited Nonindicted 8, a false lessor, and Nonindicted 9, a false lessee, respectively, around July 24, 2014, and prepared a false employment certificate, health insurance qualification confirmation, income tax withholding certificate, etc. as if Nonindicted 9 had been paid, and then delivered it to Nonindicted 9, as if Nonindicted 9 had been paid the lease deposit amount of KRW 120 million to Nonindicted 8, a real estate agent in the office of Eunpyeong-gu Seoul Metropolitan Government, the mother of Nonindicted 8, a non-indicted 10,00,000, at the office of the real estate agent in the Eunpyeong-gu, Seoul ( Address 5 omitted) around July 24, 2014.

그 후 공소외 9는 2014. 8. 4.경 서울 은평구 ◎◎1동에 있는 피해자 ◁◁은행 ◎◎동지점에서 성명을 알 수 없는 대출 담당 직원에게 8,000만 원의 전세자금 대출을 신청하면서 위와 같이 허위로 작성된 다가구주택전세계약서, 재직증명서, 건강보험자격득실확인서, 소득세원천징수확인서 등을 함께 교부하였다.

However, in fact, Nonindicted 9 did not have any idea to reside in the leased leased object. The aforementioned “detailed” was a business operator who lent Nonindicted 4’s name to Nonindicted 11 and was registered as a business operator, and Nonindicted 9 did not have worked or received any benefits at that place. Upon receiving a loan from a lease on a deposit basis, Nonindicted 9 was thought to use the loan as a lease deposit, and there was no intention to use it as a lease deposit.

이로써 피고인들은 공소외 4, 공소외 5, 공소외 6, 공소외 7 등과 공모하여 위와 같이 피해자를 기망하고 이에 속은 피해자로부터 2014. 8. 8.경 공소외 10 명의의 ◁◁은행 계좌로 근로자 주택전세자금 대출 명목으로 8,000만 원을 교부받은 것을 비롯하여 2013. 5. 3.경부터 2014. 11. 28.경까지 원심별지 범죄일람표 3에 기재된 것과 같이 위와 같은 방법으로 총 8회에 걸쳐 피해자들로부터 합계 5억 2,500만 원 상당의 근로자 주택전세자금을 교부받았다.

2) The judgment of this Court

With the defendants' defense counsel's assertion identical to this part of the grounds for appeal, the court below rejected the above assertion under the title "as to the defendant's and defense counsel's assertion" in the judgment of the court below, with a detailed statement about its assertion and its judgment (as to the corresponding part of the grounds for appeal of the court below, 2. A. 3 and 2. b. 2. b. 2). The judgment of the court below is just and it is not erroneous in the judgment of the court below, and there is no error of law by misunderstanding facts or misunderstanding the legal principles of fraud in fraud as alleged by the defendants, which affected the conclusion of the judgment. Thus, the defendants' assertion in this part of

F. Determination on the assertion of unfair sentencing on Defendant 2 and Defendant 2 by the Prosecutor

In a case where there is no change in the conditions of sentencing compared to the lower court, and the lower court’s sentencing does not deviate from the reasonable scope of discretion, it is reasonable to respect such a case (see Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015, etc.).

Based on the above legal principles, there is no change in the sentencing conditions compared with the original court because new sentencing data about Defendant 2 was not submitted in the trial. In full view of the sentencing grounds revealed in the oral proceedings of this case, it does not seem that the sentencing of the lower court is too heavy or it exceeded the reasonable scope of discretion because it was too low.

Therefore, Defendant 2 and the Prosecutor’s grounds for appeal on unfair sentencing are not accepted.

3. Conclusion

Therefore, since the part of the judgment of the court below against Defendant 1 on the ground of ex officio reversal as seen earlier, the judgment of the court below on the allegation of unfair sentencing by Defendant 1 is reversed pursuant to Article 364(2) of the Criminal Procedure Act, and the judgment below on this part is reversed, and the appeal by Defendant 2 and the prosecutor against Defendant 2 is all dismissed, and it is so decided as per Disposition.

Criminal facts and summary of evidence

The summary of the facts charged and the evidence admitted by this court against Defendant 1 is the same as the corresponding column of the judgment of the court below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

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

Article 347 of the Criminal Code (Fraud; Fraud related to bodily injury insurance money is added to Article 30 of the Criminal Code; Fraud of bodily injury insurance money is referred to as "criminal choice," each insurance company; Article 352, Article 347 of the Criminal Code (Attempted Fraud; Selection of Imprisonment); the latter part of Article 275(1) of the Criminal Code; Article 271(1) of the Criminal Code (Death or Injury caused by Abandonment)

1. Aggravation for concurrent crimes;

Article 37 (Aggravation of Concurrent Crimes concerning Death by Aggravation of Punishment)

Reasons for sentencing

1. Scope of applicable sentences under law: Three to forty-five years;

2. Scope of recommendations according to the sentencing criteria: At least three years.

(a) Death insurance money fraud;

[Extent of Recommendation] General Fraud> Type 2 (at least KRW 100,000, less than KRW 500,000) Special Leave Area (at least two years to nine years)

[Special Person] Where a crime has been committed repeatedly for a considerable period, and the method of crime is very poor.

(b) Abandonment;

[Extent of Recommendation] Where the result of the death of abandonment or abuse â…………………………………………………………………………………………………………………

[Special Person] The motive for committing a crime to be criticized

[Scope of Recommendation] Type 3 (at least KRW 500 million, less than KRW 500 billion) Special Heavy Area (at least 3 years to June 13)

* descriptive criteria: 2-stage increase in type as a result of adding up the same competition;

[Special Persons] Where a person led or led to the commission of fraud, and has committed repeatedly over a considerable period of time.

D. The scope of final sentence due to the aggravation of multiple offenses

The crime of attempted fraud for which the sentencing criteria are not set, and the crime of concurrent crimes under the former part of Article 37 of the Criminal Act, are subject to the lower limit of the range of sentencing criteria.

3. Determination of sentence: 12 years of imprisonment;

【Unfavorable Circumstances】

The crime of fraud and death by abandonment of each insurance money is extremely disadvantageous to Defendant 1’s use of Nonindicted 1 with low mental capacity for the purpose of deceiving insurance money from the victim’s insurance company and abandonment of Nonindicted 1 of the victim’s death. In addition, insurance fraud is a highly harmful crime that undermines the purpose of the insurance system, i.e., reasonable diversification of risks, and leads to the burden on the large number of subscribers. The amount of the insurance money acquired through the above crime reaches the total cost of KRW 350 million. Defendant 1 did not make any effort to reach an agreement with the victim Nonindicted 1’s bereaved family or the victim’s insurance company or to pay for damage. Defendant 1 has a history of being sentenced to punishment for fraud by using a credit card in the name of the victim with intellectual disability and the elderly’s name.

The crime of lending money under the lease has been committed by acquiring loans, which are public funds, in a planned and organized manner, by taking advantage of the hub of the housing lease loan system implemented by the State to stabilize the housing of homeless workers. Defendant 1 led the overall crime by producing false documents and ordering the accomplices to commit the crime as a total liability for the above crime. The amount of damage incurred by the above crime reaches KRW 525 million in total. Defendant 1 did not agree with the financial institutions or endeavor to pay for damage. Defendant 1 did not cooperate with the investigative agencies and tried to conceal the crime. Defendant 1 tried to avoid the crime. Defendant 1 was sentenced to imprisonment with prison labor by the same type and method as the above crime.

【Free Circumstances】

The victim non-indicted 1 was at least 15 years of contact with his family members prior to marriage with Defendant 1, and her family members were slicked without any person living together or care, and had not been healthy due to alcohol addiction, etc. As such, marriage with Defendant 1 does not seem to have been more or worse. There is no evidence to acknowledge that Defendant 1 committed assault or abuse against the victim non-indicted 1 by the time of the crime of abandonment in this case after marriage. The victim non-indicted 1 was frequently ill even after marriage with Defendant 1, and Defendant 1 seems to have made efforts to treat and protect the victim non-indicted 1 before the crime of abandonment in this case. Defendant 1 led Defendant 1 to the confession of the crime of fraud in the trial and to reflect this.

In addition, Defendant 1’s age, character and conduct, career, family relationship, environment, motive, means and result of the crime, circumstances after the crime, criminal records, and all the sentencing circumstances shown in the records and arguments of this case shall be determined by comprehensively taking into account.

Judges Park Jae-young (Presiding Judge)

(1) Defendant 1 only committed the crimes listed in Nos. 1, 3, and 5 of the list of crimes attached to the judgment below. Defendant 2 denies all the crimes on the same list of crimes.

State 2) The mother and son were the mother of Nonindicted Party 1.

3) On the 11st trial of the lower court, Defendant 1 stated to the effect that “Defendant 1 and the victim had a bad mind and married, and was living well in fakes, so far as they did not do so. The victim had to go to the hospital as a guardian, provided nursing each time and had the victim go to the hospital to undergo medical treatment.” The defense counsel of the lower court stated to the effect that “The defendant 1 and the victim reported the marriage in the course of coming to meet with each other, and later lived into a marital relationship, and it is inevitable for the victim to die within eight months after having reported the marriage, and had alcohol addiction symptoms. Defendant 1 faithfully fulfilled his duty as a spouse, such as having the victim hospitalized at the hospital and receiving medical treatment.”

Note 4) Evidence 350 pages, 358 pages

Note 5) Evidence 349 pages, etc.

Note 6) Evidence No. 357, 380, 458 pages of trial records, etc.

Note 7) Defendant 2’s omission

8) Of the accomplices, Nonindicted 4 was deemed to have conspiredd with the Defendants, etc. to commit all the crimes listed in the attached Table 3 of the judgment below, three years of imprisonment was finalized. Nonindicted 6 was deemed to have conspired with the Defendants, etc. to commit each of the crimes listed in Nos. 3 through 8 of the list of crimes listed in the attached Table 3 of the judgment below.

심급 사건

-서울남부지방법원 2017.6.15.선고 2016고합501, 2017고합8(병합)

서울고등법원 2018.2.12.선고 2017노1950

-대법원 2018.5.11.선고 2018도4018

원심판결

-서울남부지방법원 2017. 6. 15. 선고 2016고합501, 2017고합8(병합) 판결

본문참조판례

-대법원 1996. 11. 22. 선고 96도2049 판결

-대법원 2012. 11. 15. 선고 2010도6910 판결

-대법원 2015. 7. 23. 선고 2015도3260 전원합의체 판결

본문참조조문

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