Defendant

Defendant

Lee Jin-jin

Law Firm Sejong, Attorneys Yellow-ho et al.

Seoul Central District Court Decision 2004Gohap1260 Delivered on September 23, 2005

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

However, the execution of the above punishment shall be suspended for three years from the date this judgment became final and conclusive.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

The judgment of the court below is erroneous in the misapprehension of legal principles as follows, which affected the conclusion of the judgment.

(1) Fraud

(A) At the time of the conclusion of the instant investment contract, the Defendant stated that Nonindicted 4 and 5, the executive officers of Bluter Korea Co., Ltd., were registered in the name of Korea Real Estate Management Co., Ltd. (hereinafter “Korea Real Estate Management”), but the provisional registration and principal registration have been made in the name of Korea Real Estate Management Co., Ltd. (hereinafter “Korea Real Estate Management”) on the site of the 1439-3 Ground Office of the Round-dong-dong, Busan (hereinafter “the instant

(B) In addition, the victim company, as an affiliate of the database specialized in fund-raising activities, had the investment team directly install the instant officetel, the 4th underground and the 15th ground floor of which were completed, etc. before entering into the investment contract of this case, and made a detailed investigation into its business performance and profitability through the on-site inspection, etc., and made a decision of investment under the condition that it is well aware of the above provisional registration fees by reading the copy of the register of the instant officetel site.

(C) After the conclusion of the instant investment contract, the instant officetel sales business was delayed due to the delay in the procedure for cancelling the registration in the name of Korea’s real estate management, due to the occurrence of a dispute between the executives of the Dongdong Co., Ltd. (hereinafter “Ydong”) following the conclusion of the instant investment contract, which could not be anticipated at the time of

(D) Although the period of recovery of the investment amount was set at three months due to the victim company's active request, the defendant did not contain any charge that could recover the investment amount if three months have elapsed, and the victim company may also be difficult to recover the investment amount and the dividend within three months.

(E) As a result, there is no causal link between the Defendant’s act and the mistake of the victim since the Defendant did not deceiving the victim company, and the victim company did not conclude an investment contract with trust and trust, but rather made an investment decision through its own due diligence.

(2) Forgery of private documents and the uttering of a falsified private document

(A) On May 24, 2001, in order to collect the claim through the sale of the instant instant officetel building and site owned by the Blue House, the Clue House was a company operated by Nonindicted 6 of the Clue House. On October 23, 2001, the Clue House acquired the Blue House Construction Co., Ltd. (hereinafter “Tlue River Integrated Construction”), which was engaged in the management of the instant officetel and the instant officetel by the method of stock acquisition (hereinafter “Tlue House Construction”). On October 23, 2001, Nonindicted 2 was appointed as the Clue House representative, but the Clue House was merely a representative, and in fact, the Clue House’s secretary was merely a representative, who was the registration director of the Clue House and the representative director of the Clue House, and was in possession of the representative director’s official seal with the comprehensive delegation.

(B) At the time, Nonindicted Party 1 issued a false receipt and tax invoice upon the Defendant’s request to determine that it was impossible to collect collection due to the impossibility of receiving an intermediate payment and any balance from the sales price of an officetel when the Defendant is detained, because the dispute related to the instant officetel site was in progress and the number of recommendations and criminal disputes involving the instant officetel site was impossible for any purchaser other than the Defendant, and thus, Nonindicted Party 1 did not constitute the crime of forging private documents merely because the person with authority to prepare a false document was not prepared, since it does not deviate from the scope of the authority delegated by the claim group as an act for recovery of claims against

(C) In addition, when acquiring the construction of Song River General, the said credit group changed its trade name to veel construction (hereinafter “veel construction”) by having the representative director resign and appoint Nonindicted 1 as the representative director. However, Nonindicted 1 used the official seal of the existing representative director without making the official seal of the representative director even after the appointment of the representative director. Since the receipt and tax invoice in the name of Song River General Construction was prepared by Nonindicted 1 using the official seal of the former representative director as the legitimate representative director, in this case, the document forgery of private document is not established since the person who is authorized to prepare the document is merely preparing a false document.

B. Unreasonable sentencing

A provisional registration made with respect to the instant officetel and this registration are invalid registration that was made by assaulting and threatening Nonindicted 7, the representative director of the board of directors of the Republic of Korea. On August 12, 2003, the judgment of the court below became final and conclusive, which became final and conclusive, that Nonindicted 8, registered as the representative director of the board of directors of the Republic of Korea, withdraws the revocation lawsuit filed against the Republic of Korea’s real estate operation, and thus, the officetel sales project was not promoted as scheduled. The Defendant’s most of the investments was made in real estate sales amount (40 million won), repayment of investment amount (50 million won for Nonindicted 50 million won, 4 million won for Nonindicted 4 million won for Nonindicted 9, 100 and 11), and the court below’s decision that it was impossible to collect the above provisional registration from Nonindicted 3, 400 million won for the purpose of selling the real estate in the name of Nonindicted 4, 200 million won for the purpose of selling the real estate in the name of the Defendant.

2. Determination

A. Ex officio determination

Before the judgment on the grounds for appeal is examined ex officio prior to the judgment on the grounds for appeal, the prosecutor applied for the permission to modify the indictment of this case as follows, and the court permitted it. As such, the judgment of the court below on this part was no longer maintained as it is due to the change in the subject of the judgment. As such, the judgment of the court below on this part should be reversed in its entirety by treating each of the above facts as concurrent crimes under the former part of Article 37 of the Criminal Act, and each of the above mentioned in the judgment of the court below.

(1) On August 105, 200 million won, the above 200 million won was 50 million won in total with the victim's 200 million won in the above 100 million won in the company's account, and the victim's 200 million won in Busan 200 million won in total with the 50 billion won in the name of the defendant's 200 million won in the above 10-year office, and the defendant's 200 million won in Busan 200 million won in total with the 50-year office office's 50 billion won in the above 20-year office's investment. The defendant's 200 million won in Busan 200 million won in total with the 50-year office's 50 billion won in the above 20-year office's investment, and the defendant's 100 million won in Busan 200 million won in total with the defendant's 20-year company's investment account.

(2) On September 8, 2003, the charges stated in the indictment were 2.C. (2.B. of the original facts in the indictment) to be investigated as a suspect by Nonindicted 11, etc. at the Gangnam Police Station located in Gangnam-gu, Seoul and submitted to the investigating police officers each falsified receipt and tax invoice forged under the above paragraph (a) (b) as if they were duly constituted with a criminal complaint from Nonindicted 11, etc. around September 8, 2003, and each of the above receipts and tax invoices were submitted to the said investigating police officers as if they were duly constituted with a criminal complaint from Nonindicted 11, etc. at the Gangnam-gu Seoul Police Station located in Gangnam-gu, Seoul, as seen above, in order to conceal the use of the purchase funds of the above officetels building, and to submit the receipts and receipts under the name of Nonindicted 2, 201, which were forged and sent to the said investigating police officers on December 17, 2001, and the representative director of Song River Construction Co. 3, 2003 receipts.

B. Judgment on misconception of facts and misapprehension of legal principles

Although the above amendment of indictment was made, the argument of misunderstanding of facts or misunderstanding of legal principles is still subject to the judgment of the court, and this is examined.

(1) As to fraud

원심이 적법하게 조사, 채택한 증거들을 검토해 보면, ① 2001. 5. 이후 화동은 모기업인 부산종금의 부도로 인하여 모기업의 채권단이 실질적으로 운영하고 있었는데, 채권단이 화동을 인수할 당시 이 사건 오피스텔은 16층 중 14층까지 마무리가 되어 전체공정의 28% 정도 진행된 상태였던 사실, ② 2000. 9. 21. 이 사건 오피스텔에 관한 코리아부동산운용 명의의 소유권이전청구권가등기가 마쳐졌고, 2001. 11. 13. 위 가등기에 기한 본등기가 경료된 사실, ③ 공소외 5 등 피해자 회사 투자팀은 피고인과 이 사건 투자계약을 체결할 무렵 이 사건 오피스텔 부지의 등기부등본을 발급받아 열람해 보았으며, 또한 이 사건 오피스텔 현장을 찾아가 공사현황, 입지조건 및 수익성 등을 조사하기도 하였는데, 당시 시공업체의 부도로 1년 정도 공사가 중단된 상태였지만 충분한 투자가치가 있다고 판단했고, 서울 사무실에 올라와 피해자 회사의 투자자들에게 이 사건 오피스텔의 공사 현황 등에 대하여 설명해 주었던 사실, ④ 한편 피고인은 이 사건 투자계약 전에 공소외 4, 5 등 피해자 회사의 임원들에게 위 가등기와 본등기는 원인무효이므로 말소소송 등을 밟아 법적인 문제만 해결하면 바로 분양을 할 수 있고 상당한 시세차익을 얻을 수 있다고 말하였을 뿐만 아니라 투자계약일로부터 3개월 후에 이 사건 오피스텔과 울산 울주군 삼남면 교동리 145 지상 아파트(이하 ‘언양 아파트’라고 한다)를 분양하여 원금과 이자를 주되 만약 분양이 되지 않을 경우에도 피고인이 영위하는 다른 사업을 통해 원금과 이자를 확실히 주겠다고 장담한 사실, ⑤ 이에 피해자 회사의 임원들은 이 사건 투자계약 당시 3개월 내에 이 사건 오피스텔의 분양을 통해서 투자금을 회수하는 것이 어려울 수도 있다고 생각하였으나 피고인이 다른 사업 등을 통해 투자원금과 이자를 보장한다고 장담하여 이 사건 투자계약을 체결하게 된 사실, ⑥ 또한 이 사건 투자계약 당시 투자금의 사용용도는 주로 이 사건 오피스텔의 분양사업이었지만 반드시 이에 한정되어 있지는 않았던 사실, ⑦ 피고인은 이 사건 투자계약 체결 후인 2001. 12. 5. 부산 소재 첼로 커피숍에서 화동으로부터 이 사건 오피스텔 매각권한을 위임받은 신탁주주 공소외 13과의 사이에, 피고인이 이 사건 오피스텔을 25억 2,000만 원에 매수하기로 하는 매매계약을 체결하였는데, 위 매매계약 체결 당시 이 사건 오피스텔 부지의 소유자 명의가 코리아부동산운용 앞으로 되어 있었던 사실을 피고인도 알고 있었던 사실, ⑧ 화동은 2001. 12. 12. 코리아부동산운용을 상대로 위 가등기 및 본등기의 말소를 구하는 소송을 제기하였고, 그로부터 10개월 이상이 지난 2002. 10. 25. 화동이 승소하는 내용의 1심판결이 선고되자 이에 코리아부동산운용이 항소를 제기함으로써 2002. 말까지도 피고인은 이 사건 오피스텔의 분양조차 개시하지 못한 사실, ⑨ 한편, 피고인은 경찰에서 자신의 재산관계에 관하여 진술함에 있어 200억원 이상의 재력을 보유한 것처럼 진술하고, 또 검찰 제1회 피의자 신문시에도 마치 300억원 이상의 재력을 보유한 것처럼 진술하였다가, 검찰 제2회 피의자 신문시 위 진술을 번복하여 이전에 진술한 재산 내역의 상당 부분이 거짓임을 인정한 사실을 알 수 있고, 이러한 사실관계 등을 종합하여 알 수 있는 다음과 같은 사정, 즉 피해자 회사는 이 사건 투자계약 체결 전에 이 사건 오피스텔 부지의 등기부등본을 열람해 보고 위 가등기 및 본등기의 경료사실을 알고 있었으며, 또한 이 사건 오피스텔에 대한 현장실사 등을 통해 그 사업성과 수익성에 관하여 조사하였던 점, 위 조사 후 피해자 회사가 위 등기관계 때문에 선뜻 투자결정을 내리지 못하자 피고인은 피해자 회사의 임원들에게 위 가등기와 본등기는 원인무효이므로 말소소송 등을 통해 정리하면 바로 분양이 가능하다고 말하였을 뿐만 아니라 3개월 후에 이 사건 오피스텔과 언양 아파트가 분양이 되지 않을 경우에는 피고인이 영위하는 다른 사업을 통해 원금과 이자를 확실히 주겠다고 장담하였고, 이에 피해자 회사가 피고인에게 투자하기로 결정을 내린 점, 그런데 이 사건 투자계약 당시 피고인은 이 사건 오피스텔 및 그 부지에 관한 아무런 권리도 확보하지 못한 상태에 있었을 뿐만 아니라 피고인에게는 이 사건 오피스텔을 분양하여 얻게 될 수입 외에 달리 약속한 투자원리금을 반환할 수 있는 자력도 없었던 점, 또한 피고인은 투자원리금 반환기일인 2002. 2. 25.까지 이 사건 오피스텔 및 그 부지에 관한 권리를 취득하여 이 사건 오피스텔의 분양을 완료하고 나아가 그 분양대금을 수령하기란 현실적으로 어려웠고 피고인 역시 이러한 사정을 충분히 인식하였을 것으로 보이는 점 등에 비추어 보면, 피고인이 이 사건 투자계약 당시 3개월 내에 수익을 낼 만한 별다른 사업을 영위하고 있지도 않았고, 또한 이 사건 오피스텔의 부지와 건물에 대한 아무런 권리도 취득하지 못하였을 뿐만 아니라 위 가등기 및 본등기에 관한 소송절차가 개시되지도 않은 상태에서 3개월 후 약정기일까지 등기관계를 법적으로 모두 해결하여 분양을 성사시키는 것은 물론 만일 분양을 하지 못하더라도 투자원리금을 반드시 지급할 것처럼 장담한 행위는 명백한 기망행위에 해당하고, 이와 같은 기망행위로 인하여 피해자 회사가 착오에 빠져 투자를 결정하고 투자금 20억 원을 피고인에게 지급한 점이 넉넉히 인정되므로, 위 주장은 이유 없다.

(2) As to the forgery of private documents and the uttering of private documents

In full view of the evidence duly examined and adopted by the court below, each of the receipts and tax invoices of this case were false facts revealed that the defendant, who was under investigation due to fraud, requested the non-indicted 1, who was under custody of the seals of the representative director of the Seodong and Song River Construction, to prepare each of the receipts and tax invoices of this case in the name of the non-indicted 2 and the non-indicted 3 representative director of the Seodong and Song River Construction with the intent to escape from punishment, and that the non-indicted 1 prepared them without the consent of the non-indicted 2 and the non-indicted 3's preparation of each of the receipts and tax invoices of this case. At the time of the preparation of each of the receipts and tax invoices of this case, the non-indicted 1 was the director of the Busan Geum River Construction Co., Ltd., Ltd., and the non-indicted 1 was under the authority of the defendant to receive and collect the taxes of this case without the authority of the representative director, even though the defendant was not under the authority of the defendant to receive and receive the taxes of this case.

3. Conclusion

Therefore, the judgment of the court below cannot be maintained as it is due to the amendment to the indictment above in the trial. Thus, the judgment of the court below shall be reversed pursuant to Article 364 (2) and (6) of the Criminal Procedure Act without examining the above assertion of unfair sentencing, and the judgment below shall be reversed and it shall be decided again

Defendant,

1. The facts are as follows: (a) the Defendant received 10 billion won in the above 200 million won in the above 200 million won in the above 200 million won in the above 200 million won in the above 200 million won in the above 200 million won in the cash account after the hotel in Gangnam-gu, Seoul; (b) the Defendant received 100 million won in the above 200 million won in the above 200 million won in the above 200 million won in the above 200 million won in the above 300 million won in the above 200 million won in the above 200 million won in the above 400 million won in the above 2000 million won in the above 200 million won in the above 2000 million won in the above 200 million won in the name of the defendant's company's investment; and (c) the above 200 billion won in the above 3000 million won in the above 4 and 50000 billion won in the above 2.

2. Having used 2 billion won, which was received from the victim company as investment money, to make false data as if it were used for the sales price and construction price of the above 2 billion won, even though it was used for other purposes for the above 2 billion won, using 2 billion won as the sales price of the officetel building and the sales price of the above 2 billion won.

(a) As if the defendant paid 230,000,000 won to the 200,000,000 won of the above 40,000,000 won for the purpose of exercising at the 40,000 US on August 203, 200, Non-Indicted 1,000,000 won for the above 10,000,000 won for construction of the above 20,000,000,000 won for the sale and purchase of the real estate, Non-Indicted 2,00,000,000 won for each of the 20,00,000,000,000,000 won for the 10,000,000,000,000,000 won for each of the 20,000,000,000,000 won for the 20,000,000,00.

B. Around September 8, 2003, the Gangnam-gu Seoul Police station received a criminal complaint from Nonindicted 11, etc. from the Gangnam Police station located in Gangnam-gu and investigated as a suspect, and submitted to the investigating police officer the receipts of December 17, 2001, the receipts of January 15, 2002, the receipts of Nonindicted 3, the receipts of January 15, 2002, the receipts of January 28, 2002, the number of Nonindicted 2, the representative director of the Seodong-dong, Co., Ltd., Ltd., and the receipts of January 28, 2002, respectively, as if they were investigated as a suspect on September 22, 2003, and submitted them to the investigation officer as if they were forged, and submitted them to the investigation officer on September 22, 2003, and submitted them to the Seoul Central Police Office as if they were found to have been established.

The summary of the evidence of the defendant's criminal facts acknowledged by this court is as shown in the corresponding column of the judgment of the court below except for adding "the partial statement in the trial court of the defendant 1.1 and the statement in the investment contract (the trial record 402 pages)" to the summary of the evidence of the judgment of the court below. Thus, it is cited as it is in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347 (1) (Fraud) of the Criminal Act, Article 231 of the Criminal Act, Article 234 of the Criminal Act, Articles 234 and 231 of each Criminal Act (the use of fraudulent document)

1. Commercial competition;

Punishment provided for in Articles 40 and 50 of the Criminal Act for the crime of uttering of each falsified investigation document – Punishment provided for the crime of uttering of a receipt dated January 28, 2002 with the largest criminal situation; and punishment provided for the crime of uttering of each falsified investigation document on September 22, 2003, with the largest criminal circumstance on January 28, 2002)

1. Selection of punishment;

Selection of imprisonment with prison labor for each crime of forging each private document and the uttering of each private document;

1. Aggravation of concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes with punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, which is the largest penalty]

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (in the case of the trial, the Defendant and the actual victim were reached an agreement between Nonindicted 11, 14, 15, 16, 17, 18, 19, 20, 21, and 22, which are the Defendant and the actual victim; the Defendant did not have any particular criminal record other than the punishment imposed once on the violation of the Attorney-at-Law Act; the instant fraud crime is deemed to have contributed not only to Nonindicted 4 and 5 of Bluter Korea, Co., Ltd., Ltd., a formal victim, but also to a certain portion of the wrong decision made by the general investors, such as Nonindicted 11, the actual victim, etc.)

1. Suspension of execution;

Article 62 (Consideration of Criminal Act)

It is so decided as per Disposition for the above reasons.

Judges Don Man (Presiding Judge) and Dok Kim Yong-han