2016No2187, 2017No525 (Consolidation) Fraud

1. A;

2. B

Defendants

Rabal police officer, senior citizens (prosecutions), and transfer (public trial)

Attorney C (for Defendant A)

Attorney D (Korean National Assembly for Defendant B)

1. Ulsan District Court Decision 2016Gohap196, 2016 Decided November 30, 2016;

Article 3154 (Judgment of Consolidation)

2. Ulsan District Court Decision 2017Ma310, 2017Ma709 decided April 20, 2017 (Sick)

ix) Judgment

July 7, 2017

The judgment of the court of first instance and the judgment of the court of second instance against the defendant A are all reversed.

Defendant A’s crime of fraud on June 16, 2014 against the victim 00,00,000,000,000

On April 27, 2016, for six months, imprisonment for fraud against the victim Han-so, as stated in the judgment:

Imprisonment with prison labor for the remaining crimes shall be punished by three years.

Defendant B’s appeal is dismissed.

1. Summary of the Defendants’ grounds for appeal

A. Defendant A

The lower court's punishment against Defendant A (the first instance court's judgment: the first instance court's judgment on June 16, 2014 against Defendant A, with respect to fraud and fraud against Defendant A on April 27, 2016 against Defendant A on June 16, 2014 against Defendant A, six months of imprisonment, the remainder of the above victims, and each of the crimes against Defendant AA, AB, Eb, Eb, ○○, and ○○○: the second instance court's punishment against Defendant A; and the second instance court's punishment against Defendant A; and the second instance court's imprisonment with prison labor for three months against Defendant A; and for each of the crimes against Defendant AA, AB, Eb, and ○○○) is too unreasonable.

B. Defendant B

The lower court’s punishment against Defendant B (eight months of imprisonment) is too unreasonable.

2. Ex officio determination as to Defendant A

On the other hand, this Court tried to consolidate each appeal case against Defendant A with respect to Defendant A, and, on the other hand, on June 16, 2014 against Defendant 00 among each of the crimes of the judgment below, the crime of fraud against Defendant 00 on June 16, 2014 against Defendant 00 among the crimes of the judgment below, the crime of fraud against victim 00 on April 27, 2016 as stated in the judgment, and the crime of fraud against victim 100 on April 27, 2016 against the victim 0 on the one hand is in a concurrent crime under the former part of Article 37 of the Criminal Act, and shall be sentenced to a single sentence within the scope of the term of punishment for each concurrent crime under Article 38(1) of the Criminal Act. Since each of the above crimes except for each of the above crimes is in a concurrent crime under the former part of Article 37 of the Criminal Act, each of the judgment below is no longer maintained.

3. Judgment on Defendant B’s assertion

Defendant B is the first offender, Defendant B is the first offender, and Defendant B reflects in depth the wrong while committing the crime, and the partial recovery of the damage caused by each of the crimes is favorable to Defendant B.

Meanwhile, Defendant B, as the representative of the planning real estate business entity, performed a significant role in the whole process of the instant crime, including directly concluding a sales contract for some forests and fields, and partly acquired criminal proceeds, etc. In light of the nature and circumstances of the instant crime, etc., Defendant B was under unfavorable circumstances with the Defendant B, including the fact that the crime and the criminal facts have not been mitigated. In addition, comprehensively taking account of all the sentencing conditions and the scope of recommended sentences as indicated in the instant argument, such as equity in punishment with the accomplices, Defendant B’s age, character and conduct, environment, motive for the crime, circumstances after the crime, etc., the lower court’s punishment appears to be reasonable and appropriate, and cannot be deemed unreasonable.

Therefore, Defendant B’s assertion is without merit.

4. Conclusion

Therefore, Defendant B’s appeal is dismissed pursuant to Article 364(4) of the Criminal Procedure Act on the ground that there is no ground for appeal by Defendant B, and the judgment of the court below is dismissed pursuant to Articles 364(4) and 364(2) of the Criminal Procedure Act on the ground that there is an ex officio reversal ground as above, the judgment of the court below as to Defendant A’s allegation of unfair sentencing is reversed and the judgment of the court below as to Defendant A

[Grounds for a new judgment against Defendant A]

Criminal facts and summary of evidence

The summary of the facts constituting the crime recognized by this court and the summary of the evidence are the same as the corresponding columns of each judgment of the court below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Relevant Article of the Criminal Act and the selection of punishment for the crime;

Articles 347(1) and 30 of the Criminal Code (the point of fraud against AA and AB) of each Criminal Code, and each Criminal Code

347(1)(the rest of each fraud), each choice of imprisonment

1. Handling concurrent crimes;

The latter part of Article 37 of the Criminal Code and Article 39(1) of the Criminal Code (a) (a crime of fraud against a victim 00 ○○○ on June 16, 2014)

Along on April 27, 2016 to Ma○○, excluding fraud against Ma○○, the victim of the crime of fraud.

Other crimes and frauds, etc. between the judgments which have become final and conclusive)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38(1)2, and Article 50 (Case No. 16, June 16, 2014 for Victim 00○○.

Aggravated Punishment Act, 2016 on April 27, 2016 against the victim's ○○○, one another's fraud, and another's intent against the victim's ○○.

A concurrent punishment provided for in the crime of fraud against ○○○○ with the largest amount of crime committed.

Of the criminal proceeds, each of the other crimes except each of the above crimes, with the largest penalty, ○○.

(2) If the penalty provided for in the crime of fraud is concurrent crimes

Reasons for sentencing

On the other hand, the defendant, as representative or employee of the planning real estate company, acquired a large number of victims from real estate sales proceeds or borrowed money, and led the crime in the process. In light of the method of the crime, period of the crime, scale of the crime, criminal proceeds, etc., the nature and circumstances of the crime are not considerably good, and some of the crimes committed during the suspended execution period is disadvantageous to the victim.

Meanwhile, the Defendant reflects the Defendant’s mistake in depth while committing the instant crime; the total amount of KRW 250 million out of the total amount of damage incurred by each of the instant crimes was recovered; the victim ○○ seeks the wife against the Defendant by mutual consent at the lower court; the victim 00 wanted to be placed in the Defendant; the victim 000 OO, AA, AB, and Ma○○ and the Defendant wanted to be placed in the Defendant’s wife by mutual consent with the victim 00, AB; the victim 00 on June 16, 2014 regarding the victim 00; the victim 200,000 won; the victim 20,000 won out of the total amount of damage incurred by each of the instant crimes; and the victim ○○ was punished on April 27, 2016; the Defendant’s punishment and punishment should be determined at the same time by taking into account the following circumstances: (i) whether the Defendant was subject to suspended sentence and punishment; (ii) whether the Defendant’s penal guidelines have become more favorable to the Defendant’s punishment;

Judges Lee Dong-sik

Judges Kim Jong-soo

Judges Whitek