Defendant

Defendant and Prosecutor

Red heading

Law Firm Jeong, Attorney Lee Na-young

Busan District Court Decision 2005Gohap525 Delivered on July 24, 2006

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for three years.

One hundred-two days of detention before the pronouncement of the judgment below shall be included in the above sentence.

Seized convertible bonds shall be confiscated with 540 copies (No. 1).

1. Summary of grounds for appeal;

A. Defendant

(1) misunderstanding of facts

The defendant, who has conducted research on the development of a non-powered device for several years, concluded a patent use agreement with Nonindicted Co. 6, Nonindicted Co. 2 (hereinafter referred to as “Nonindicted Co. 2”), Nonindicted Co. 7’s diesel clubs, and received investment money in the form of a patent use agreement, and did not have any relation with deceiving the victims of the instant case who are investors, and did not have any relation with raising investment money through the method of fund-raising. In addition, the court below found part of the facts charged in the instant case guilty is erroneous in the misapprehension of legal principles as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and the Act on the Regulation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and by misunderstanding the facts, thereby adversely affecting the conclusion of the judgment. Meanwhile, even though the defendant had already been subject to a non-suspect-8

(2) Unreasonable sentencing

The punishment sentenced by the court below to the defendant (three years of imprisonment) is too unreasonable.

(b) Prosecutors;

(1) misunderstanding of facts

According to the evidence submitted by the prosecutor, although the defendant established a non-indicted 2 corporation with the non-indicted 1 corporation and acquired 16,719,035,000 won as stock price from September 2004 to December 31, 2004, the court below recognized the fact that he acquired 1,671,903,50 won as stock price, and found the defendant not guilty on the grounds that there is no proof of crime.

(2) Unreasonable sentencing

The above-mentioned sentence imposed by the court below on the defendant is too uneasible and unfair.

2. Determination

A. Ex officio determination

Before determining the Defendant’s assertion, the Defendant conspired with Nonindicted 5, the representative director of Nonindicted Co. 6, who was the Defendant, in the first instance trial, and acquired the Defendant’s total sum of KRW 6,767,30,00 from April 2004 to September 15, 2004 as investment money. The Defendant applied for changes in the indictment with the content as seen below, and the subject of the judgment was changed by this court’s permission. As such, the lower court became unable to maintain the judgment.

B. As to the assertion of mistake of fact

The defendant and the prosecutor's argument about the part which has not been Amendments to Bill of Indictment is still subject to the trial of the court, and this is examined.

(1) Comprehensively taking into account the facts as the representative director of the non-indicted 9 corporation (hereinafter the non-indicted 2 corporation omitted), the defendant was not entitled to obtain permission from the non-indicted 2 corporation 5 to the non-indicted 400, and the defendant was not entitled to obtain permission from the non-indicted 2 corporation 5 to the non-indicted 200, the defendant was not entitled to obtain permission from the non-indicted 2 corporation 5 to the non-indicted 200, and the defendant was not entitled to obtain permission from the non-indicted 2 corporation 5 to the non-indicted 300, and the defendant was not entitled to obtain permission from the non-indicted 2 corporation 5 to the non-indicted 40, and the defendant was not entitled to obtain permission from the non-indicted 2 corporation 5 to the non-indicted 206, and the defendant was not entitled to obtain permission from the non-indicted 2 corporation 5 to the non-indicted 30, 2005, which was composed of the above "the non-indicted 204,".

(2) However, it is difficult to accept the fact-finding and judgment of the court below on the above paragraph (2) for the following reasons.

According to the evidence duly admitted by the court below, it is difficult for the defendant 2 to find out that he had been aware of the above amount of 10 billion won for the defendant's 60 billion won or less for the defendant's 10 billion won or less for the non-indicted 2's total amount of 00 billion won or less for the non-indicted 10 billion won to be distributed to the non-indicted 1 corporation and 200 billion won to the non-indicted 1 corporation and 40 billion won to be distributed to the non-indicted 1 corporation and 60 billion won to the non-indicted 1 corporation and 60 billion won to be distributed to the non-indicted 1 corporation and 60 billion won to the non-indicted 1 corporation and 60 billion won to be distributed to the non-indicted 1 corporation and the non-indicted 2 corporation's non-indicted 1 corporation's total amount of 60 billion won or less for the non-indicted 1 corporation to be distributed to the non-indicted 2 corporation.

3. Conclusion

Therefore, the judgment of the court below is reversed as well as the above grounds for ex officio reversal, and the defendant's appeal against the fraud of KRW 1,671,903,50 among the facts constituting the crime in the judgment of the court below is justified, and it is so decided as follows.

The summary of the facts of the crime acknowledged by the court and the evidence thereof are as follows. The part of the judgment below's crime 2-A (a) "in collusion with the non-indicted 5, the representative director of the non-indicted 6 corporation, who is the non-indicted 5, etc., who is the representative director of the non-indicted 6 corporation, in order to invite investment funds by means of an agreement to pay an amount exceeding the future investment amount," and the part of the judgment below's criminal facts 2-A (a) ".............., the non-indicted 5, etc., who is the representative director of the non-indicted 6 corporation, in the manner of mobilization of persons related to the above corporation, etc., and an agreement to pay an amount exceeding the future investment amount," and "....., the defendant was delivered KRW 1,100,000 from non-indicted 11 to April 2, 200, 2003; and (c) it was delivered KRW 3606,700.

1. Article applicable to criminal facts;

Fraud: Article 347(1) of the Criminal Act (Selection of Imprisonment)

Habitual Fraud: Article 3 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 351, Article 347 (1) and (2), and Article 30 (Selection of Imprisonment with Labor) of the Criminal Act, inclusive.

The point of performing fund-raising business without permission: Articles 6(1) and 3 of the Act on the Regulation of Conducting Fund-Raising Business without Permission, Article 30 of the Criminal Act (Selection of Imprisonment)

1. Aggravation for 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 the 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 (see, e.g., Articles 53 and 55(1)3)

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

Of the facts charged in this case, each habitual fraud is a concurrent crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) with each habitual fraud, such as the facts charged in Section 2.3(c) of the original judgment. However, in full view of the following facts: (a) as if the Defendant was aware of the development of a non-powered power device, the Defendant had the same intent to acquire money; (b) continuously and repeatedly committed the crimes in each paragraph; and (c) the timing and method of the crimes; and (d) the method and method of the crimes, each habitual fraud among the facts charged in this case, shall be deemed to constitute a crime of violation

Among the crimes of this case, the amount of damage caused by the crime of this case reaches at least 8.2 billion won. Among them, the amount that the defendant acquired by the defendant is up to 4.45 billion won (the amount of KRW 1.2 billion shall be returned to non-indicted 5), the victim's awareness about the damage by taking advantage of a relatively small amount of money from many victims and committing the crime of this case over several times for a long time by taking advantage of the victim's awareness about the damage, etc., the crime of this case is intelligent and planned, and domestic technology cannot verify its own invention, and there is no violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, etc. among the crimes of this case, the statutory punishment of the crime of this case of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes is imprisonment with prison labor for life or for more than five years, and the defendant's age, family environment, motive and means of the crime, the result of the crime, the result of the crime, etc. after the crime, shall be sentenced to the sentence of this case.

Of the facts charged in the instant case, the part that the Defendant received a total of KRW 16,719,035,000 from the victim non-indicted 12 to around September 22, 2004 as a share price, including the receipt of KRW 500,00 from the victim non-indicted 12 as a share price, and acquired by fraud shall be sentenced to not guilty on the ground that there is no proof of a crime due to the above reasons, but as long as the Defendant found the Defendant guilty of a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Fraud) related to a single comprehensive crime,

Judges Cho Jong-soo (Presiding Judge)