The case denying the establishment of a crime of fraud on the grounds that, in light of various circumstances, it is difficult to view that the defendant, an importer, was issued a letter of credit by the bank in importing the transit for automobiles, but failed to pay the import price, was charged with the monetary interest equivalent to the purchase price, and the above bank was required to open a letter of credit without intent or ability to pay the letter of credit, or that the above bank issued a letter of credit by deceiving the defendant about the financial situation of the defendant, it is difficult to view that the above bank was issued a letter of credit without intent or ability, or that the above bank was issued a letter of credit by deceiving the

The case denying the establishment of a crime of fraud on the grounds that, in light of various circumstances, it is difficult to say that the defendant, an importer, was issued a letter of credit by the bank in importing the transit for automobiles, but failed to pay the import price, caused the above bank to bear the monetary interest equivalent to the purchase price, and the defendant was required to open a letter of credit without intent or ability to pay the letter of credit, or that the above bank issued a letter of credit by deceiving the defendant about the financial situation of the defendant, it is difficult to say that the above bank issued a letter of credit without intent or ability, or that the above bank issued a letter of credit by deceiving the defendant

Article 347(1) of the Criminal Act

Defendant

Defendant

Ethicals

Attorney Yoon So-young

Seoul Central District Court Decision 2003Gohap1291 Delivered on August 27, 2004

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

Although the defendant had the intent and ability to pay for the letter of credit at the time of issuance of each letter of credit from the national bank around November 5, 2002 and around the 11th of the same month, the court below erred by misapprehending the legal principles, thereby making it difficult for the defendant to pay for the letter of credit even if he was issued a letter of credit from the victim's national bank due to the lack of the financial standing of the defendant's representative director, and thereby, it was difficult for the defendant to pay for the letter of credit, even if he was issued from the victim's national bank, the court below erred in finding that the defendant obtained the above letter of credit from the national bank with the above 3.74 million U.S. dollars (the 4.587 million U.S. dollars) by imposing the payment for the letter of credit.

B. Unreasonable sentencing

In light of the various sentencing conditions of this case, in light of the following: (a) the Defendant paid the amount up to 42 times in credit transactions with the National Bank; (b) the Defendant failed to pay the amount up to 43,44 times only; (c) the Defendant imported light oil equivalent to 50.2 billion won and paid the letter of credit amount of credit amount of KRW 46.7 billion; (d) the transit payment of this case was not privately useful and invested in the construction of oil storage facilities; (e) the Defendant paid KRW 1 billion to the National Bank; (e) the primary offender was the first offender; and (e) the Defendant’s error was divided and is against the depth, the sentence imposed by the lower court is too unreasonable.

2. Determination:

A. Facts charged and the defendant's indictment

(1) Facts charged

The defendant around November 5, 2002, when he imports automobile transit from the NT OTR COPEY LTD located in Hong Kong (GNT OTR COPY LTD) at the Escopic corporate financial branch located in Jung-gu, Seoul, Jung-gu, Seoul. Around November 5, 2002, the defendant was unable to pay the import price even if he was issued by the L/C from the Escopic Bank due to the lack of financial resources for the Escopic oil at the time, but it was stated that the Escopic amounting to KRW 2.957 billion was stated in the facts charged, and KRW 3.57 billion was stated in the facts charged, but it appears that the defendant obtained the L/C amounting to KRW 3.57 billion from the Kscopic Bank in the amount of KRW 3.7 billion in the total amount of KRW 3.84 billion in the amount of the credit (3.7 billion in the amount of the loan).

(2) The defendant's lawsuit

During the period from November 1, 2002 to December 22, 2002, when the defendant requested a Korean bank to open the documentary credit of this case, the defendant paid 4.59 billion won to the Korean bank, 3.481 billion won to the Korean bank, 2.67 billion won to the foreign exchange bank, and 10.67 billion won to the Korean bank. The defendant could dispose of the revenue of this case and pay the proceeds of the credit of this case to the Korean bank. At the same time, the defendant was able to establish the highest infrastructure as a petroleum importer holding a domestic maximum oil storage facility, and the investment proposal was presented to the Korean company, but the above investment proposal was eventually made, and the defendant could not pay for the letter of credit of this case because the ability of the credit of this case was aggravated due to the withdrawal, discount sale among large enterprises, etc., so the defendant could not pay for the letter of credit of this case at the time of the credit of this case.

(b) recognised facts;

According to the evidence duly adopted and examined by the court below, the following facts can be acknowledged according to each of the defendant and the witness's completion and the best interference in the trial.

(1) After the Defendant was appointed as the representative director of the Tracular oil around June 2001, from February 2002 to December 12, 2002, the Defendant entered into a contract to construct each oil tank within 75,00 Dup 16,50 Dup Dup Dup 16,500 inside the Hack-gun Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil Oil, and received a proposal from the above Company to invest in the Track oil oil by providing the land, facilities, etc. located in Chungcheongnam-gun and Chungcheongnam-gun as collateral for the issuance of credit.

(2) On April 11, 2002, the Track's name entered into an agreement for the issuance of credit, which is 1.6 billion US dollars and 1.6 billion US dollars on July 10 of the same year as the expiration date of the credit period, with the security of 1.3 billion US dollars of time deposit deposit in the Track's Sung-dong Financial Branch of the National Bank. At the time, Article 3 (Security) of the Foreign Exchange Transaction Agreement between the defendant and the National Bank provided that "the Track's name is transferred to the National Bank as security for payment of the obligation owed by the National Bank in connection with the relevant transaction, and the interest, discount, fees, damages for delay, and other incidental expenses incidental thereto, which are accompanied by the issuance of the credit for import transaction.

(3) Then, by using the above L/C opened, it imported transit, etc. from GNT OOL COPEY LTD from the Hong Kong exporters, and even thereafter, it entered into an agreement to issue the L/C between the national bank and USD 1,350,000,000,000,000 and USD 2.5 billion,000,000,000,000,000 won (i.e., the credit limit amount at that time, USD 1.6,000,000,000,000,000,000,0000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,00.

(4) On April 11, 202, the credit issued by the de facto shipping company for the export of the de facto goods from the Export Bank of Korea to the National Bank of Korea until October of the same year after it was opened a credit, may also be accepted as the receipt of two copies of the original bill of lading and one original bill of lading in lieu of three original bills of lading. If the tradition of the original bill of lading (FUL ST) is unable to present for the payment of the goods, it would be possible to make payment with the commercial invoice and the damaged cargo indemnity (this may also be repaired). The English terms and conditions as follows are as follows: ESULD ESESOE ESESESESALALALALALALALALALALNESALALALALALNESALALALALALALALALNALALALALALALALNALALALALALNALALALONALALNALALALNALALALALNALALALALALALNONALALALALALALNALALALONALALONALALALONALALALALALALALALALALALALAL.

In addition, while doing the L/C transaction up to 42 times, the Track's Track's L/C's L/C's L/C's L/C's L/C's L/C's L/C's L/C's L/C's L/C's L/C's L/C's L/C's L/C's L/C's L/C's L/C's L/C's L/C's L/C's L/C's L/C's L/C's L/C's L/C's L/C's L/C's L/C's L/C

(5) On October 30, 2002, the credit period for the above L/C transaction was extended to October 31, 2003 by the National Bank Employees Lee Jong-dae et al. visiting the Defendant. At the same time, the security offered from the bits only for a term of KRW 5.63 billion. Thus, the security offered from the bits merely for a term of KRW 5.63 billion is likely to be difficult to pay due to the shortage of security if the cargo was delivered without delivery of the bill of lading as a result of the opening and payment of the L/C under the same condition as the transaction until the transfer. Since the time limit for the issuance of the L/C (USNCE; the L/C issuing bank settlement of the import price and interest on behalf of the importer after a certain period of time after paying the import price to the importer, the Defendant intended to provide real estate as security by drawing several real estate owners, but the National Bank offered the real estate as security to secure the value of the real estate to be offered as security, it proposed to remove the sale price from the original L/L.

(6) After that, on November 5, 2002, the Defendant requested the National Bank to issue an irrevocable credit of 2.9 million US dollars (the equivalent of US$ 3.57 million US dollars) on or around 43 occasions as required by the National Bank, and the National Bank also accepted a master/ownership receipt that received two copies of the original bill of lading and one copy of the original bill of lading in lieu of three copies of the original bill of lading, which had been previously traded until the previous transaction. If the original tradition of the bill of lading (FUL ST) is unable to present for the payment of the goods, the payment will be made with the presentation of commercial invoice and damaged cargo compensation book (the bill of lading will also be acceptable for the goods damaged by telesch Rexroth and telesch Rexroth). On November 44, 2004, each of the above terms and conditions were deleted, and the National Bank issued a letter of credit of 84.3 billion US dollars (the above terms and conditions were deleted).

(7) On the Hong Kong export-related Hong Kong, Skyman transported Jindo as to the above 43th L/C, and the above 44th L/C, using Thoho Shipping as to the said 44th L/C, transit for automobiles. Each of the cargo was unloaded and unloaded on November 10 and on November 20, 2002, entered respectively into the warehouse of Hos Toldo-HE Co., Ltd., a bonded warehouse operator on the 20th day of the same month.

(8) Meanwhile, on October 1, 2002 through November 1, 2002, 300, 400 million won and 4.7 billion won and 5 billion won and 4.7 billion won and 5 billion won and 4.7 billion won and 4.7 billion won and 5 billion won and 4.7 billion won and 4.4 billion won and 5 billion won and 4.4 billion won and 5 billion won and 4.4 billion won and 5 billion won and 4.4 billion won and 4.4 billion won and 5 billion won and 4.4 billion won and 4.4 billion won and 5 billion won and 4.4 billion won and 4.4 billion won and 5 billion won and 4.4 billion won and 5 billion won and 4.4 billion won and 6.4 billion won and 5 billion won and 4.4 billion won and 6.4 billion won and 6.4 billion won and 6.4 billion won and 6.4 billion won and 4 billion won and 26.4.4 billion won and 24.

(9) On November 27, 2002 with respect to the above 43-time L/C, Pos Bank, a bank for the Hong Kong export, sent to a national bank documents such as the original bill of lading (B/L) and the original bill of lading (B/L) on which the consignee did not enter in the 44th L/C, and the national bank, which received each of the above 43-time L/L original bill of lading (B/L) upon receipt of the instructions from the national bank, demanded that the national bank pay the above 44th L/C import payment.

(10) However, the Defendant used the above sales proceeds as the construction cost of oil storage facilities, which had been constructed from February 2002, and failed to pay the revenue proceeds from transit to the National Bank. Accordingly, the National Bank paid the above amount of USD 3,740,00 (the equivalent of USD 4,587,000,000) to the National Bank around December 4 of the same year and around the 11th of the same month, and then, the National Bank paid the above amount of the import proceeds from transit to the above amount of USD 3,740,00 (the corresponding amount to KRW 4.587

(11) From April 11, 202 to November 1, 200 of the same year, it entered into a credit transaction equivalent to US$4,182,00 (Korean US$50.2 billion) on a total of 44 occasions, and paid 46.7 billion won to a national bank for the amount of credit up to 42 times, whichever was later (However, on December 2002, part of the above 42 L/C payment was paid by offsetting 5.63 billion won as security against the national bank). In particular, from November 1, 2002 to November 22, 2002, it was paid 42 billion won in total to the national bank prior to the issuance of the instant L/C and only 4.63 billion won in total, and it did not pay 4.5 billion won in total to the national bank prior to the issuance of the instant L/C.42 times.

(12) By November 2002, the Track oil had a domestic maximum oil storage facility to the extent that it can reserve about 2 million 1/3 of the consumption of 1/3 of the 1st day in Korea, called the oil storage tank total 106,500 (670,000).

(13) In addition, on April 15, 2003, the Defendant sold a leisure and oil reservoir facility to another, and repaid one billion won to the National Bank out of the amount equivalent to the letter of credit on the forty-three and forty-four occasions of the instant case.

C. Determination of evidence that corresponds to the facts charged

As evidence consistent with the facts charged in the instant case, creative use, Lee Jong-dae's police and prosecutor's statement, Jeongcheon's legal statement in the lower court, court's statement in full, copy of credit transaction agreement, copy of foreign exchange transaction agreement, additional transaction agreement, copy of commercial invoice, etc.

(1) First of all, the police officers and prosecutor's statements, which are employees of the national bank of Hong Kong, are: when the defendant received a bill of lading from the national bank and submitted it to Hanjin Shipping, etc.; when Hanjin Shipping, etc. issued a delivery order to a bonded warehouse operator, a bonded warehouse operator, after confirmation by the national bank, it is difficult to view that the defendant did not have the ability to receive the amount of the export price to receive, load, unload, remove, or transport the cargo after receiving the cargo from the national bank, which is the bank of the issuing bank of the letter of credit; and when the shipping documents such as bill of lading, etc. arrive later than the import price, it is difficult to view that the defendant had the ability to receive the cargo from the export merchant of Hong Kong without permission at the time of the opening of the bill of lading bill of lading.

(2) Meanwhile, the court below's legal statement or the court's statement on the completion of directors of the above company, which is the representative director of the World Cup, alleged that the defendant would have been invested, shall not be able to make any investment, nor shall the defendant make any decision on November 2002 that the defendant would not make an investment in the Track oil and investment, and shall not be able to make any investment, nor shall it be known that the defendant would not make an investment in the Track oil before November 2002, and that the defendant did not have the ability to make an investment in the Track oil and notified it to the Track oil, in light of the fact that the defendant did not have the ability to make an investment through 42 times in the credit transaction with the National Bank regardless of whether it has been invested, and that the defendant did not have the ability to make an investment in the credit, or that the defendant did not make a request for the completion of each of the credit or the payment by the defendant, at least because of the failure to make an investment.

(3) In addition, it is not sufficient to recognize the criminal intent of defraudation by the defendant only with the entries such as a copy of the credit transaction agreement bound in the investigation records, a copy of the foreign exchange transaction agreement, a supplementary agreement of transaction, a copy of the commercial invoice, etc.

(4) 오히려 앞서 인정한 사실과 같이 피고인이 대표이사로 있던 오랙스정유가 2002. 4. 11.부터 같은 해 11. 11.까지 국민은행과의 사이에 총 44회의 신용장거래를 하면서 그 중 42회까지 467억 원에 이르는 대부분의 신용장대금을 정상적으로 결제하거나 담보로 제공한 정기예금을 상계 처리하는 방식으로 지급한 점, 국민은행도 같은 해 7. 오랙스정유의 타 은행 거래실적, 상반기 결산재무제표 등에 근거하여 신용등급을 BB+로 함으로써 외환거래 우수회사로 평가하고 같은 해 8. 22. 미화 278만 달러로 신용장발행한도를 증액하는 여신거래 추가약정을 체결하여 당시까지 신용장 발행한도는 도합 828만 달러(한화 100억 원)에 이르렀으며, 그 때까지 오랙스정유가 제공한 정기예금 담보액도 위 신용장 발행한도액의 56.3%에 이르는 56억 3,000만 원이나 되었던 점, 오랙스정유는 이 사건 43회 및 44회 차 신용장개설을 전후한 같은 해 11. 1.부터 같은 달 22.까지 사이에도 국민은행에 42회 차 이전의 신용장대금으로 45억 9,166만 원을 결제한 점, 피고인이 국민은행으로부터 이 사건으로 고소를 당한 이후인 2003. 4. 15.에도 위 43회 및 44회 차 신용장대금으로 10억 원을 결제한 점, 2002. 11. 초경 오랙스정유에 대한 월드종합라이센스 등의 투자가 실패할 것이 확실시되긴 하였으나 이 사건 43, 44회차 신용장에 기초한 수입경유를 판매한 대금을 위 오랙스정유의 운영자금으로 사용하기 이전까지 피고인은 위 월드종합라이센스 등으로부터 투자를 유치하기 위해 노력하여 위 월드종합라이센스 등으로부터 투자를 하겠다는 제안까지 받았던 점, 2002. 11. 당시 오랙스정유는 총 약67만 배럴(106,500㎘)이라는 대단히 큰 규모의 저유시설을 보유하고 있었던 점, 당시 오랙스정유와 신용장거래 한도 약정을 체결한 국민은행의 주무과장인 이근택도 검찰에서, 이 사건 신용장 개설당시 피고인의 자금사정이 특별히 어렵다는 객관적 사정이 있었다면 국민은행이 신용장을 발급하여 수입대금 지급을 보증해 줄 리 없었으며, 유류수입회사는 기본적으로 저유시설의 확보가 중요한 데 오랙스정유도 당시 저유시설을 확보하려고 노력하고 있는 것을 국민은행측도 알고 있었다고 진술하고 있어 국민은행이 이 사건 신용장을 개설해 줄 때는 자체 내부규정에 따라 개설의뢰인인 오랙스정유의 재무구조, 신용상태, 거래실적, 담보 등을 고려하였을 것으로 보여지는 점, 이 사건 수입경유를 처분하면 그 대금만으로도 그에 관련된 신용장대금을 충분히 변제할 수 있다고 보여지는 점, 신용장개설은행은 앞서 본 규정에 따라 개설의뢰인의 신용상태, 재무구조, 거래실적을 고려하고 필요에 따라서는 추가 담보를 요구 확보하거나 피고인 등 회사 임원진의 지급보증을 요구하는 등 실사와 심사를 거쳐 전문금융기관으로서 자신의 재량에 따라 신용장 개설 여부를 결정하는 것이고, 여기에는 당연히 은행경영적 차원에서 수수료 수입도 고려되어 있는 점 등에 비추어 볼 때 피고인이 신용장대금을 결제할 의사나 능력 없이 이 사건 각 신용장을 개설하여 달라고 요구하였다거나 국민은행이 피고인의 자금사정에 관해 피고인으로부터 기망을 당하여 이 사건 신용장을 개설해 주었다고 보기 어렵고, 따라서 월드종합라이센스의 오랙스정유에 대한 투자계획의 철회, 대기업간의 출혈 경쟁으로 인한 수입경유의 할인판매 등으로 자금사정이 악화되어 이 사건 신용장대금을 결제하지 못한 것일 뿐 처음부터 그 신용장대금을 결제할 의사와 능력도 없이 신용장을 개설 받은 것은 아니라는 피고인의 변소가 더 설득력이 있다고 하겠다[국민은행도 피고인을 수입품인 이 사건 경유를 횡령한 것으로 고소하였을 뿐 오랙스정유의 자금사정이 어려워 신용장을 발급받더라도 그 수입대금을 지급하기 어려운 형편이었음에도 그렇지 않은 것처럼 국민은행을 기망하여 신용장대금 상당의 보증채무를 부담하게 함으로써 그 금액 상당의 재산상 이익을 편취하였다고 고소한 것은 아니며, 검사도 처음에 피고인에 대해 횡령혐의로 공소를 제기하였다가 원심에서 2004. 2. 4. 사기혐의로 공소장을 변경한 바 있다. 그리고 오랙스정유와 국민은행 사이에 작성된 외국환거래약정서 제3조에 의해 그 수입경유에 관해 국민은행이 양도담보권을 취득하였다고 볼 여지가 있다 할지라도, 국민은행이 홍콩의 수출상인 지엔티 오일 컴퍼니사로부터 선하증권을 송부받은 2002. 11. 27.(제43회 차 신용장관련 수입의 경우) 또는 같은 해 12. 4.(제44회 차 신용장관련 수입의 경우) 이전인 같은 해 11. 13.부터 같은 달 19.까지 사이(위 제43회 차 신용장관련 수입의 경우) 또는 같은 달 22.부터 같은 달 26.까지 사이에(위 제44회차 신용장관련 수입의 경우) 피고인이 수입경유를 각 처분하였으므로, 그 당시 국민은행이 위 수입경유에 소유권 내지 양도담보권을 취득하였다고 보기 어려우며, 또한 이 사건 수입경유를 운송한 선박회사인 한진해운이나 삼호해운이 아닌 피고인이 위 수입경유를 타인을 위해 보관하는 지위에 있었던 것도 아니므로 피고인이 위 선박회사들과 상호 통모하여 위 각 수입경유를 횡령하였다는 점이 밝혀지지 않은 이상 피고인에 대하여 이 사건 처분행위를 횡령으로 의율하기도 어렵다. 또한 피고인이 국민은행과의 사이에 있었던 이 사건 43회 차 및 44회 차 신용장 개설에 따른 Letter of Indemnity 조건의 삭제, 즉 이제는 신용장 매입시 선하증권의 제시가 조건으로 되어서 화물의 인도와 선하증권의 제시교부가 상환으로 이루어져야 함을 위 각 선박회사에 고지하지 아니하여 이로 말미암아 선박회사들이 기망당하여 위 수입경유를 오랙스정유에 인도함으로써, 그 수입경유의 인도에 있어 위 선박회사들에 대한 사기가 되는지 여부에 관하여도 조사가 이루어진 바 없다].

(d) Conclusion

Thus, although the facts charged in this case should be pronounced not guilty because they are without proof of crime, the court below erred by misunderstanding facts or misunderstanding legal principles, thereby affecting the conclusion of the judgment. Therefore, the defendant's assertion on this point is with merit.

3. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts charged of this case against the defendant is as seen earlier, and as seen in the determination of the grounds for appeal, the facts charged of this case constitutes a case where there is no proof of crime, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act

Judges Lee Jae-ki (Presiding Judge)