(영문) 의정부지방법원 2016.8.9.선고 2016노720 판결

According to the evidence duly adopted and investigated by the court below, it is fully recognized that the defendant deceivings the victims to obtain USD 494,990.

2. Determination

A. Summary of the facts charged in this case

On August 2010, the Defendant, at the home of the Defendant located at ○○○○○○, sent the order and the photographs of the above machinery to the victim B, who was requested to purchase the installed machinery on behalf of the Defendant, at approximately 10,000 U.S. dollars per 1 (PICNOL GTM -S “S” (hereinafter “Pcar play equipment”). The Defendant sent the order and the photographs of the above machinery to the victim as if he sold the above machinery.

However, in fact, the defendant did not have the intention or ability to sell the above machinery, and after receiving the purchase money from the victim, he thought that he could see a middle and high exchange letter called 'the ‘so-called 'studio' which is only the market price of US$ 400 to 500.

On September 8, 2010, the Defendant received US$ 8,400 from the victim to the foreign exchange bank account under the name of 'Maachine International' (in exchange conversion amount: USD 9,357,600, USD 114) operated by the Defendant on September 8, 2010.

From that time until December 11, 2010, the Defendant received, in the same manner as indicated in the attached list of crimes, USD 494,90 in total, from the victims (the conversion amount: KRW 551, 418, 600 in Korean currency: KRW 551, 418, 600 in total) by deceiving the victim C, and 22 times.

Accordingly, the defendant, by deceiving victims, acquired financial benefits.

B. The judgment of the court below

The lower court found the Defendant not guilty on the grounds that: (a) the statement of each police officer in B, C, and D; (b) the part of the Defendant’s statement in the third police investigation protocol; (c) each facsimile statement in B, C, and C; and (b) each facsimile statement in relation to the Defendant’s ○○○○○; (d) the written statement in relation to ○○○○○○; (e-mail) the witness E’s testimony; (c) the content of the above victims and ○○○ in relation to the witness E’s testimony; and (d) each investigation report on the contents of the above victims, ○○○; and (e) the content of the said statement made by the investigative agency on the victim, ○○; and (e) the remaining evidence submitted by the prosecutor alone are inadmissible without any reasonable doubt; and there is no other evidence to acknowledge this.

C. Judgment of the court below

1) The intent of the crime of defraudation, which is a subjective constituent element of the crime of fraud, shall be determined by comprehensively taking into account the objective circumstances, such as the Defendant’s financial history, environment, details and details of the crime before and after the crime, and the process of performing transactions, insofar as the Defendant does not make a confession. Meanwhile, the conviction should be based on evidence with probative value so that the judge may not have any reasonable doubt that the facts charged are true, so long as there is no such evidence, even if there is no doubt as to the Defendant’s guilt, it is inevitable to determine the Defendant’s benefit. The same applies to the recognition of the criminal intent, which is a subjective constituent element of the crime of fraud (see, e.g., Supreme Court Decisions 2012Do6011, Aug. 23, 2013; 2015Do255, Jul. 23, 2015).

2) The Defendant promised the victims to be 828,40 U.S. dollars 828,400 as indicated below, and there is no dispute as to the fact that the victims received USD 494,90 from the victims.

A person shall be appointed.

On the other hand, the defendant argued that "the victims did not have any intention to commit fraud," because he was aware that he had 494 and 990 dollars on the part of the victims and received 494 and 990 dollars.

4) According to the following facts and circumstances acknowledged by the lower court and the evidence duly admitted and investigated by the trial court, it is sufficiently recognized that the Defendant had the intent to obtain USD 494, 990 from the victims.

A) At the time of the police investigation, the Defendant stated that USD 220,00 among USD 494, USD 990 received from the victims was sent to ○○○ in the United States (see, e.g., the investigation record No. 429), and there is no objective basis to acknowledge the fact that the Defendant sent money to ○○○ in addition to remitting USD 129,217 as listed below, as stated in the following table. 2)

A person shall be appointed.

B) The Defendant’s statement on the amount sent to ○○ is lacking consistency.

(1) On February 8, 201, at the time of the police investigation, the Defendant, at the time of the police investigation, 220,000 USD 220,00. Of them, USD 10,50,00 was paid in cash to the person who was the State of Ansan in Korea, and USD 20,000 was paid in cash to ○○○○ in the United States, and the remainder was paid in cash.

Statement was made (see, e.g., 429 pages, 430).

(2) However, the Defendant failed to submit all objective evidentiary materials to recognize the payment of the money to ○○ in addition to the payment of USD 129, 217 and USD 15,00 to ○○.

(3) On April 26, 2011, at the time of the police investigation, the Defendant paid 200,000 dollars to ○○○○ at the time of the police investigation. The Defendant stated that there is no means to prove it (see e.g., 692 of the investigation record).

(4) However, on December 6, 2011, the Defendant made a statement that is entirely different from the previous one by stating that ○○ gave 420,000 dollars to ○○ upon the prosecutor’s investigation. Of these, 2.60,000 dollars was paid in cash, and 70,000 dollars was paid in three times, 90,000 dollars, and 10,000 dollars was paid in installments. (See the investigation record No. 754 pages).

C) The Defendant asserts that ○○○ is “to send money to ○○○ by asserting that it is possible for ○○○ to seek USD 3,000 per 1 heavy knive machines (see, e.g., Investigation Records No. 429).”

However, (1) The first instance court witness Kim ○, who has served as a director at F Co., Ltd. for not less than 13 years, stated that the first instance court witness Kim ○ was about KRW 15 million from KRW 13,000,000, and currently (2016) exceeded KRW 6,000,000 from KRW 3,00 per 1,000,000,000,000, it was impossible to seek about USD 3,000 per 1,00,000,000,000 per 1,000,000,000,000,000 per 10,000,000,000,000,000 per 10,000,000,000,000,000,000.

D) The Defendant sent 494, 990 dollars received from the victims to ○○. Despite the fact that the victims failed to comply with their commitments, the Defendant did not return the remaining money to the victims after making payment to ○○.

D. Therefore, prosecutor's above assertion is with merit.

3. Conclusion

Since the prosecutor's appeal is well-grounded, the judgment below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act.

and after the pleading, the following judgments shall be held as follows:

Criminal facts

On August 2010, the Defendant, at the home of the Defendant located at ○○○○○○, sold the instant machinery at USD 10,000 per 1 unit of “PICNOL GTM - AS” room machinery (hereinafter “S”) to the victim B, who was requested to purchase the machinery by proxy from the Defendant’s office at around 0,010. The Defendant sent the text and the photographs of the said machinery as if the said machinery were sold, to this day.

Accordingly, the defendant, by deceiving victims, acquired financial benefits.

Summary of Evidence

1. The legal statement of the party trial witness Kim ○, Park ○-○, and Park ○○

1. Partial entry of the suspect interrogation protocol against the defendant by the prosecution;

1. Some of the protocol of interrogation of the police officer against the accused (the first, fourth, and fourth)

1. Statement of police statement to E;

1. Investigation report (documents evidencing fraudulent cases);

1. A report on investigation (a criminal investigation of a suspect committed);

1. Investigation report (this investigation is conducted to confirm sale and purchase of F.C. play equipment);

1. An investigation report (to obtain documents submitted by a suspect);

1. A criminal investigation report (a criminal investigation on documents submitted by a suspect);

Application of Statutes

1. Application of Acts to crimes and selection of punishments;

Article 347 (1) of the Criminal Code, Selection of Imprisonment

1. Aggravation of concurrent crimes;

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

Reasons for sentencing

[Scope of Recommendation Form]

General Fraud Type 3 (not less than KRW 500, less than KRW 5000, less than KRW 5000), the weighting area (from August to 7 years)

* Form 1 rise as a result of adding up the same kind of competition

[Person under Special Leave]

shall not cause serious damage to the victim;

【Determination of Sentence】

Although there is no previous conviction for the defendant, the crime of this case is recognized as having a high trade dependence on the national trust of the Republic of Korea, and thus, it is necessary to strictly deal with it. The defendant denies and not reflects the crime, the amount of damage exceeds 500 million won, the victims did not agree with the victims, the victims did not completely recover from damage, and the victims were ordered by the clients, so it could be sufficiently anticipated that the victims are forced to suffer serious damage due to the crime of this case. 5) Other various circumstances, including the defendant's age, circumstances of the crime, and the circumstances after the crime, etc., which are the conditions for sentencing specified in the argument of this case, shall be determined as ordered by the disposition.

Judges

Judges Sung-ho et al.

Judges Kang Jong-chul

Judges Hak-chan

Note tin

1) The investigation was committed to B for 38 vehicles, 19 vehicles, and 18 vehicles to D (see e.g., 6 pages, 140 pages, 222 of the investigation records).

The 66th page of the record is written as if the number of machinery promised to provide a life cycle to B is 36, but it is also written in the △△ Development Report.

Due to the number of the door-to-door machines not less than 4 but not more than 6, the correct number of machines is 38,00. Investigation records No. 99, 108.

2) The Defendant stated that he remitted USD 50,00 through USD 60,000 to a telegraphic exchange, but objective grounds to acknowledge this.

(See Article 430 of the Investigation Records). However, US$ 15,000 paid to ○○ is paid to ○○○.

There may be room to regard (see, e.g., e., 568 pages, 570 pages, 591). In such a case, the amount paid by the defendant to ○○○.

US$ 144,217.

3) The average price per unit shall be USD 11,045,000 ($100).

4) As seen earlier, the Defendant changed his statement that ○○ gave USD 220,00 to USD 420,00 but gave USD 420,00.

(2).

5) Reference to the investigation record No. 647 to the effect that victims suffered serious injury

심급 사건

-의정부지방법원 2016.3.11.선고 2014고단4587

의정부지방법원 2016.8.9.선고 2016노720

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