2011Gohap655 Ga. Violation of the Financial Investment Services and Capital Markets Act

(b) Violation of the Act on the Aggravated Punishment of Specific Economic Crimes;

2011Gohap677(combined) c. fraud

1.(a)(c) sexualO;

2. A. AnchorO;

3. A.O.O.

Private Armed Forces

December 30, 2011

Defendant ○○ shall be punished by imprisonment for four years, by imprisonment for one year and six months, respectively: Provided, That with respect to Defendant Park ○○, the execution of the above sentence shall be suspended for three years from the date this judgment became final and conclusive.

Criminal facts

On November 18, 2008, Defendant ○○ was sentenced to imprisonment for fraud at the Seoul Western District Court for a period of one year and four months, and the execution of the sentence was completed on June 2, 2009.

[201; 2000, Co., Ltd., Ltd. with no business performance for the purpose of punishing money by selling 000,000, which is a pre-saleed bill / [201 high / 655] Under the name of the above company’s representative director / 00 / 00, in order to secure the face value of a bill, after deducting the amount of the face value of the bill which is not recovered from the bank’s monthly average consumption for the last three months, and then taking advantage of the standard for delivering the face value of the bank’s / 00 / 00 / 00 / 00 / 00 / 0 / 00 / 00 / 00 / 00 / 00 / 00 / 00 / 00 / 00 / 00 / 00 / 00 / 00 / 00 / 00 / 000 / / 000 / / / 000.

1. Any person who intends to engage in the business of discounting, trading, brokerage, acceptance and guarantee of bills with their maturity within a period prescribed by Presidential Decree not exceeding one year, which is prescribed by the Financial Investment Services and Capital Markets Act (hereinafter referred to as "short-term financial business"), and other business incidental thereto, shall obtain authorization from the Financial Services Commission;

Nevertheless, on November 10, 2009 to December 2009, the Defendant and ○○○○○○○○○ and Gab○○○○○○ received approximately 90 copies of a promissory note from an O bank account, which was established at a 0000 unit of an O bank from around November 10, 2009, and subsequently, around January 8, 2010, he issued 130,000 won for the above company’s promissory note at any coffee shop located at the Busan Dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-si and sold ○○○○○ and Dob○○○○ and Dob○○○○, ○○ and Dob○○ and 200,000 won for sale and 130,000,000 won for a short-term of 40,000 won.

2. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes and fraud;

On March 5, 2010, the Defendant issued one promissory note with the issuer's "stock company", "47,053,31 won at par value", "000 21", and "payment date", and sold 1,500,000 won at 1,000 won at ○○○, in collusion with ○○○, G○○○, L○○, and ○○○○, and the Defendant issued one promissory note with the issuer's "stock company", "47,053,311 won at face value", and sold it at 1,50,000 won at ○○, and Kim○ was around that time at any restaurant located in Goyang-si, Goyang-si, ○○, as if the said promissory note was a normal true bill. However, it was anticipated that the said promissory note will be due on the payment date of the premium as a pre-paid bill.

As a result, the defendant et al. deceiving the victim's O fire marine insurance through public offering with Kim○-○ or through public offering, and it was provided with aviation insurance services equivalent to the total amount of KRW 47,053,311, such as gaseous insurance from the victim.

In addition, the Defendant, as described in the attached Table 2, by deceiving two victims, such as in the attached Table 2, by deceiving them and acquiring a total of KRW 57,053,311 from the victims, by gathering property benefits equivalent to KRW 57,053,311 from the victims.

[2011Gohap677]

3. Violation of the Financial Investment Services and Capital Markets Act;

A. The above Defendants, ○○, and ○○○, established a legal entity that does not actually engage in the business by using funds, and subsequently, secured the bill site and issued and distributed the bill bill that is expected to be defaulted on the date of payment, under the presumption of normal business performance by opening the current account and pretending to have a normal business performance.

On January 6, 2010, the above Defendants, on the ground that ○○○ was the president (the president of the sub-committee) in the name of the president, established the (ju),000, a company issuing the ○○○ Bill, and opened the current account at the ○○○○○ Branch around January 6, 2010.

From December 2010 to March 201, the Defendants issued (based on an in-depth bill) KRW 9,333,340,000, total face value of KRW 43,000 (based on an in-depth bill) as indicated in the attached Table 3, including the face value and time of payment as shown in the attached Table 3, from around December 201 to March 201, and Defendant U20 distributed the said bill as listed in the above Section 11, out of the 201-20-20-20-20-33,340,000. Accordingly, the Defendants conducted short-term financial business without obtaining authorization from the Financial Services Commission in collusion with U20-2

B. Defendant 00 is a person who, after paying a certain amount of money from a company operator, etc. who does not actually conduct business, has secured a large quantity of breabbbing bills that are expected to be defaulted on the date of payment and discount the distribution thereof during the time.

Defendant Park Il-○ and Sung-○, as described in the above A. A., established the ○○○○○○○ as described in the above paragraph, and opened a political account at the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○. around January, 201, Defendant U.S. proposed that “○○○○ may impose a large amount of money on Defendant Sung-○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ upon endorsement in the name of the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, with KRW 30 million out of KRW 300,000,000, KRW 111 in total, KRW 30,30304,35,3636.

Summary of Evidence

[2011Gohap655]

1. The defendant's oral statement 00

1. A copy of each protocol of examination of the suspect and protocol of examination of the suspect against Defendant ○○ and Lee○, ○○, ○○, and Kim○;

1. A copy of each prosecutor’s statement and statement made by the prosecutor with respect to ○○○○, ○○, ○○○, ○○○○, and ○○○○○, and a copy of each prosecutor’s protocol;

1. Summary related to the company, a detailed statement of current account transactions, data on the issuance of bills, data on the adjustment of defaulted bills, and the manual for the business of current account of banks [201Gohap67];

1. In the first trial records of the Busan District Court case 201 Highest 4539, Highest 2011 Highest 4727 (Consolidation), some statements made by the defendant 00, stuffs and oil in each of the trial records before the consolidation;

1. Each part of the statements made by the Busan District Court 201 High Court 4539, High Court 201 High Court 201 High Court 4727 (Consolidated) and the witness 10, High Court 201 High Court 3rd trial records;

1. Each protocol of examination of suspect and copy (each part) of each protocol of examination of suspect as to the defendant 0, ○○, ○○, ○○, and ○○;

1. Copy of the written statement by the prosecution concerning ○○○;

1. A copy of each prosecutor's investigation report and investigation report (report on hearing the counter party statement of the employee of a bank, confirmation report, such as ○○○○ insolvent date, and reporting on the result of execution of a warrant of search

1. A certified copy of business registration, certified copy of corporate register, copy of a defaulted bill, and a copy of a confirmation document of default on payments; and

1. Criminal records, investigation reports by the prosecution (verification of the date of final release of a suspect), and copies of each written judgment;

Application of Statutes

1. Article applicable to criminal facts;

A. Defendant 00

Comprehensively, Articles 44 subparag. 22 and 360(1) of the Financial Investment Services and Capital Markets Act, Article 30 of the Criminal Act (the fact that each unmanned is engaged in a short-term financing business, choice of each imprisonment), Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 347(1) and 30 of the Criminal Act (the fact that the victim ○○ Fire Marine Insurance was committed at the time of the market, the maximum statutory penalty shall be 15 years prescribed by Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010); Articles 347(1) and 30 of the Criminal Act (the fact that each unmanned is engaged in a short-term financing business, and the choice of imprisonment)

B. Defendant GamO or UO: Each of them covers Articles 444 subparag. 22 and 360(1) of the Financial Investment Services and Capital Markets Act, Article 30 of the Criminal Act (a)

Article 35 of the Criminal Act

1. Aggravation of concurrent crimes (as against the defendant Sexual 00);

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) of the Criminal Act)

1. Suspension of execution (as to the defendant's gambling ○)

Judgment on the assertion of Defendant Park 00, 000, which is favorable in the grounds for sentencing under Article 62(1) of the Criminal Act

1. Details of the assertion;

Defendant Park 00, ○○○, under Article 360(1) of the Financial Investment Services and Capital Markets Act and Article 348(1) of the Enforcement Decree of the same Act, the short-term financing business is engaged in the business of buying and selling, buying and selling, and guaranteeing bills whose maturity comes within one year. Thus, in order for the Defendants to engage in such short-term financing business without obtaining authorization from the Financial Investment Services and Capital Markets Act, it should be specified that the issue date and payment date of each bill stated in the facts charged that the Defendants issued and distributed are specified in the facts charged that each of the above short-term financing business is "bill with maturity within one year". Since the facts charged in this case do not specify the issue date and payment date of each bill, and thus, it does not fall under the category of bill with a maturity of one year or less, and thus, the prosecution of this case against the Defendants is null and void in violation of the provisions of the Act, and thus, the judgment should be dismissed, and even if the issue date and payment date of each bill do not arrive at all, it is not.

2. Determination

A. First, with respect to the assertion that the facts charged in this case was not specified on the grounds as alleged by the Defendants, the facts charged as stated in the indictment must be specified. However, with respect to a single comprehensive crime, even if it is not specified specifically for each act constituting part of the crime, if the whole period and completion period of the crime, method of the crime, frequency of the crime, or aggregate of transaction amount, and the other party to the transaction are specified, the facts charged are specified (see, e.g., Supreme Court Decisions 97Do1706, Sept. 12, 1997; 97Do508, Jun. 27, 1996; 97Do508, Jun. 27, 1996). However, in cases of the crime of violation of the Financial Investment Services and Capital Markets Act in which short-term financial business without the authorization of the Financial Services Commission, it should be specified whether the bill arrives within one year, and whether the bill is subject to the application of the Financial Investment Services and Capital Markets Act (see Supreme Court Decision 97Do106828, Sept. 268, 28, 28, 298.

Based on the above legal principles, since the issue date is not explicitly indicated in each item of the B/L, the actual issue date of each item of the B/L can be seen as the issue date of each item of the B/L, if the actual issue date of each item of the B/L itself is specified. The above facts charged are specified as around December 2010 as around March 201, and according to each item of Table 3 of the B/L, the actual issue date of each item of the B/L of this case (each item of the B/L as indicated in Table 3 of the B/L), which was issued by Defendant Sung○○ and Parkb○○, is also specified as the issue date of each item of the B/L of this case, and according to each item of Table 3 of the B/L of the above facts charged, it is clear that the date of each item of the B/L of this case is within one year from the actual issue date of each item of the B/L of the B/L, and thus, it cannot be seen as not impeding the Defendants’ defense right to defense.

B. Next, as to the assertion that each of the B/L of this case does not constitute a “bill of which maturity comes within 1 year” under Article 360(1) of the Financial Investment Services and Capital Markets Act and Article 348(1) of the Enforcement Decree of the same Act since each of the B/L of this case was issued and distributed in a blank bill without the date of issuance, face value, and date of payment, etc., of which the respective evidence mentioned above are comprehensively admitted.

In other words, the following circumstances, i.e., (i) the issue date, face value, and due date of the instant bill, as well as most cases where the bill is issued and distributed in blank; (ii) the person who issues and distributes the instant bill, without any exception, plans to make payment within several months from the date of actual issuance (within one year from the date of original issuance); and (iii) the fact that each of the instant bill, including the instant bill, was issued and distributed within six (1) years from the date of actual issuance, should be considered to be within the expiration date of six (1) years from the date of original issuance; and (4) the fact that each of the instant bill, including the bill, was presented within six (1) years from the expiration date of 2010 to the date of original issuance (4) years from the expiration date of 1) and the fact that each of the instant bill, including the bill, must be considered to have been presented within 7 (1) years from the expiration date of 1).

Reasons for sentencing

1. Defendant sexual intercourse ○○

(a) The scope of punishment;

From 3 years to 22 years of imprisonment;

(b) Scope of recommendations on the sentencing criteria;

(1) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

[Types of Crimes] Systemal Fraud, 500 million or more, 5 billion or less, 2 categories

[Special Aggravationd Persons] Reductions and Aggravations: None

[Scope of Recommendation] Basic Area ( Imprisonment of 4-7 years)

[General Sentencing] Reduction element: Serious reflect

Aggravations: None

(2) Fraud

[Types of Crimes] Systemal Fraud, Less than KRW 100 million, Type 1

[Special Aggravationd Persons] Reductions and Aggravations: None

[Scope of Recommendation] Basic Area ( Imprisonment with prison labor and June - 3 years)

[General Sentencing] Reduction element: Serious reflect

Aggravations: None

(3) There is no sentencing guidelines for the violation of the Financial Investment Services and Capital Markets Act.

(4) Handling of multiple crimes

It shall be not less than four years of imprisonment (based on the criteria for dealing with multiple crimes on the sentencing criteria).

The crime of this case committed by the defendant is very serious because it damages the fairness and reliability of the capital market by distributing false means of payment without possibility of settlement and distorted the fund market. The defendant committed each crime of this case by closely planning and preparing the so-called so-called "the president of the branch" and sharing roles among accomplices in advance. The defendant's role and participation in each crime of this case are significant. The amount of the bill issued and distributed by the defendant is more than 2.3 billion won, and the sum of the face value of the bill issued and distributed by the defendant reaches 2.5 billion won, and it is inevitable to sentence the defendant as to the crime of this case in light of the fact that the defendant did not reach an agreement or complete recovery of damage, considering that the defendant's motive to commit the crime of this case including the motive to commit the crime of this case and the manufacturing of the bill, the punishment of the defendant should be imposed as to the defendant, including the motive to commit the crime of this case.

2. The crime of this case committed by Defendant Park ○: The crime of this case is very serious because it damages the fairness and reliability of the capital market by distributing false means of payment without possibility of settlement and distorted the fund market. In addition, the amount of the bill issued and distributed by the Defendant is considerable to 9.3 billion won in total, and the amount of the face value of the bill issued and distributed by the Defendant is considerable to 9.3 billion won in total, and the crime of this case committed by the Defendant is likely to cause a large number of damages due to commercial transactions. However, it is necessary to strictly punish the Defendant. However, the degree of the Defendant's participation in the crime of this case is not relatively more relative to other Defendants and related accomplices, the Defendant is the primary offender, and the Defendant is the primary offender, and all kinds of sentencing conditions shown in the argument of this case, including age, character and conduct, intelligence, environment, motive, means and consequence of the crime, etc., shall be ordered to suspend the execution of imprisonment with prison labor for 1 and 6 years.

3. Defendant U20: The crime of this case committed by the Defendant is very serious because it damages the fairness and reliability of the capital market by distributing false means of payment without possibility of settlement and distort the fund market. In addition, the amount of the bill issued by the Defendant does not exceed a large amount of 7.8 billion won, and the sum of the face value of the bill issued by the non-performingbbbbbbbbbbbbbbbbbbbbbbbbbbbbing the Defendant distributed, and it seems that a large number of transaction damages may occur due to the crime of this case. Although the Defendant had already been punished due to the crime of this case prior to the crime of this case, even though he had already been punished due to fraud, illegal Check Control Act, and the crime of forging private documents, etc., it is inevitable to sentence the Defendant to the crime of this case, taking into account the role and degree of the Defendant’s participation in the crime of this case, the Defendant’s age, character and behavior, Defendant’s age, motive and motive of the crime of this case, etc.

The presiding judge, the senior judge;

Judges Senior Byung-in

Judges Kim Gin-ju