Defendant

Defendant

Stick-type vessels

Attorney Noh Jeong-dong et al.

Busan District Court Decision 2010Gohap5750 Decided February 18, 2011

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

(i) Violation of the Financial Investment Services and Capital Markets Act;

㈎ 공소외 19 주식회사 발행 약속어음 관련

① Promissory notes as indicated in the [Attachment 1] List of Crimes (hereinafter, 125.-152. from 125. to 152., and 1.-3., and 20.-48. are issued after January 14, 2009, for which the Defendant resigned from the representative director of Nonindicted Company 19, and there was no fact that the Defendant was involved in the issuance and sale of each of the said notes.

② In addition, with respect to the part of the facts charged that the Defendant was guilty, the “merchant Banks Act” which was in force at the time of resignation, rather than the “Financial Investment Services and Capital Markets Act” which was enforced after the resignation of the representative director of Nonindicted Company 19.

㈏ 공소외 20 주식회사 발행 약속어음 관련

Each promissory note written on 3. and 4. The list of crimes is issued after April 21, 2009, on which the defendant resigned from the office of representative director of the non-indicted 20 corporation (non-indicted 21 corporation) and there was no fact that the defendant was involved in the issuance and sale of each of the said notes.

Shebin frauds

Each breabbbing note, which was the means of fraud, was issued after the Defendant was released from the office of Nonindicted Co. 19 and the representative director of Nonindicted Co. 20, and there was no fact that the Defendant was involved in the issuance and sale of each of the bills, and therefore there was no fact that the Defendant participated in the fraud

In addition, there is no fact that the last holder of the bill is deprived of money or exempted from liability by deceiving him.

B. Unreasonable sentencing

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

2. Ex officio determination

Before the judgment on the grounds for appeal by the defendant, in the first instance court, the prosecutor applied for the amendment of the indictment with the contents of the attached Form 2-A of the facts charged in the instant case as stated in the judgment of the court below prior to the judgment on the grounds for appeal by the defendant. The prosecutor applied for the amendment of the indictment with the content of the amendment to the indictment as stated in the attached Form 2-A of the facts charged in the instant case. The above facts charged and the remaining facts charged which the court below found guilty are concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, the judgment of the court below cannot be maintained any longer.

However, the remaining arguments except the defendant's assertion that there was no exemption from debt with respect to fraud among the defendant's assertion of mistake of facts and misapprehension of legal principles are still subject to the judgment of this court, and this is examined.

3. Judgment on the mistake of facts and misapprehension of legal principles by the defendant

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

⑴ 원심 및 당심에서 적법하게 채택하여 조사한 증거들에 의하면, ① 피고인은 2008. 9. 18.부터 2009. 1. 14.까지 공소외 19 주식회사의 대표이사로, 2009. 2. 3.부터 2009. 4. 21.까지 공소외 20 주식회사의 대표이사로 각 법인등기부에 등재되어 있었던 사실, ② 범죄일람표 1. 기재 각 어음들은 피고인이 공소외 19 주식회사의 대표이사 명의로 공소외 44 은행 반여2지점에 사업실적 등 각종 자료를 제공하여 위 은행으로부터 확보한 어음용지를 이용하여 발행된 사실, ③ 피고인이 공소외 19 주식회사의 대표이사직을 사임하면서도 그 명판을 그대로 위 회사에 두고 나왔고, 이로 인하여 피고인의 사임 이후에도 피고인을 대표이사로 하여 공소외 19 주식회사 발행의 딱지어음이 다수 발행된 사실, ④ 피고인이 공소외 1이 실질적으로 운영하던 공소외 19 주식회사의 대표이사직을 사임한 이후 불과 20일 만에 역시 공소외 1이 운영하는 공소외 20 주식회사의 대표이사로 취임한 사실, ⑤ 피고인이 공소외 19 주식회사의 대표이사 자격으로 범죄일람표 2. 기재 딱지어음들의 발행을 위한 ◁◁ 대신동 지점의 당좌계정을 개설한 사실, ⑥ 피고인이 2009. 3. 23. 공소외 20 주식회사의 대표이사 자격으로 범죄일람표 3. 기재 딱지어음들의 발행을 위한 공소외 45 은행 동래지점(나중에 해운대지점으로 이관됨)의 당좌계정을 개설한 사실, ⑦ 피고인이 공소외 19 주식회사의 대표이사를 사임한 이후인 2009. 1. 15.부터 2009. 3. 26.까지 사이에 공소외 19 주식회사로부터 합계 4,300만 원을, 공소외 20 주식회사의 대표이사를 사임한 이후인 2009. 5. 11.부터 2009. 11. 27.까지 사이에 공소외 20 주식회사로부터 합계 7,650만 원을 각 송금받은 사실, ⑧ 피고인이 2009. 10. 30.경 공소외 20 주식회사의 공소외 45 은행 해운대지점에 대한 신용도 제고를 위해 자신이 발행한 지급지 공소외 44 은행, 액면금 500만 원으로 된 가계수표 6장 합계 3,000만 원 상당을 공소외 20 주식회사에 제공한 사실이 각 인정되고, 위 각 인정사실에다가 공소외 5, 8, 9, 13 등이 수사기관에서 공소외 20 주식회사 발행의 이 사건 딱지어음을 장당 250만 원 내지 360만 원에 매수하였다고 진술하고 있는 점을 보태어 보면, 피고인이 공소외 1 등과 속칭 딱지어음을 발행하여 1장당 300여만 원에 유통하기로 공모 또는 순차 공모한 사실을 충분히 인정할 수 있으며, 피고인의 주장과 같이 공소외 20 주식회사의 딱지어음 발행을 위한 수협 연산지점의 당좌계좌가 피고인이 공소외 20 주식회사의 대표이사직을 사임한 이후에 개설되었다고 하여 달리 볼 것은 아니다.

In addition, when one of the competitors has left from the public contest relationship before the execution of the act, he shall not be held liable as a co-principal with respect to the act of the other competitors thereafter. However, in the public contest relationship, it is necessary to resolve functional control over the defendant's functional act by the public contest. As such, as the defendant and representative director, the defendant cannot be deemed to have left the public contest relationship unless he removes the influence on the execution, such as the defendant's own representative director, actively endeavoring to prevent the crime of the other competitors (see Supreme Court Decision 2008Do1274, Apr. 10, 2008), since the defendant resigned from the office of representative director, and the bill was continuously issued due to the defendant's efforts at the time of his employment and the bill secured in the future, even if the bill was continuously issued due to the fact that the defendant did not make any effort to block the issuance of the bill, the defendant's assertion that the above issuance of the bill was not reasonable.

D. Accordingly, the Defendant’s assertion of the misapprehension of the legal principles also has no merit, since the Defendant’s crime was committed on or after February 4, 2009, which was enforced on or after the enforcement of the Financial Investment Services and Capital Markets Act. This constitutes a single and continuous criminal offense, which continuously infringes on the same legal interest as the fairness and reliability of the capital market for a certain period following the end of the charge.

B. Fraud

In relation to co-offenders who are co-processed with two or more persons in a crime, a conspiracy is not required under the law, but only a combination of intent to commit a crime through the joint processing of two or more persons. Although there is no process of the whole conspiracy, if there is a combination of intent to realize a crime through the joint processing of the crime, it shall be established in order or impliedly through several persons, and even if there is no direct involvement in the execution, even if there is a person who did not participate in the act of the commission, he/she shall be held criminal liability as a co-principal for the other co-offenders. Therefore, even if the so-called Dobbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb

However, according to the evidence duly examined and adopted by the court below and the court below, it is sufficiently recognized that the defendant, in collusion with the non-indicted 1 et al., received the discount amount of the bill from the victims or obtained property benefits from the delay of payment of the obligation. In addition, since the defendant participated in the issuance of the bill for the issuance of the bill scheduled to be defaulted, such as securing a majority of the paper for the issuance of the bill for the purpose of default and providing the coefficient table, as long as the bill for the issuance of the bill for the purpose of this, it can be sufficiently anticipated that the bill might occur due to the issued bill for the purpose of the violation of the Act on the Punishment, etc. of Specific Crimes and that the defendant could have sufficiently predicted that the damage caused to the fraud can be caused by the bill for the purpose of receiving the money or

4. Conclusion

Therefore, the judgment of the court below is reversed without examining the defendant's assertion of unfair sentencing, and it is again decided as follows through pleading.

The summary of the facts constituting the crime and the evidence acknowledged by this court is as shown in each corresponding column of the judgment below, except for the fact that the fraud listed in paragraph (2) is among the criminal facts column of the judgment below as stated in attached Form 2.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 44 subparag. 22, 360(1) of the Financial Investment Services and Capital Markets Act, Article 30 of the Criminal Act (in all cases, referring to the fact that an unregistered short-term financial business is run), Articles 347(1) and 30 (Fraud) of the Criminal Act, and selection of each imprisonment sentence.

1. Aggravation of concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

The Defendant’s crime of this case is likely to undermine the fairness and reliability of the capital market, and the total face value of the bill issued and distributed reaches 21.9 billion won, etc., and there are many circumstances unfavorable to the Defendant, such as the damage caused by the fraudulent damage caused by the bill, etc., and the Defendant actively participated in the issuance and sale of the bill, but there are no circumstances favorable to the Defendant, such as the fact that the issuance and sale of the bill does not appear to have led to the issuance and sale of the bill, which is favorable to the Defendant. Therefore, the punishment shall be determined as per the order, taking into account various circumstances, such as the background, means, and consequence of the crime of this case, and the circumstances after the crime, etc.

[Attachment Form 5]

Judges Lee Jong-il (Presiding Judge)