(영문) 서울중앙지방법원 2018.10.5. 선고 2018고합577 판결

Those remaining after being used for the appraisal of seized philophone inhalers (Evidence 3), 1 (Evidence 4), 1 (Evidence 5), 16,8g of philophones (Evidence 6) shall be confiscated, respectively.

Reasons

Criminal facts

In fact, “B” (hereinafter referred to as “B”) is an overseas site that trades kind of derivatives investment by forecasting the increase or decrease of virtual currency or foreign stocks, and exchange rates. Generally, in a case where a customer purchases goods, etc. from a franchise store and makes payments by using a e-mail card, the franchise store shall transmit the approval transfer slip to a financial institution by computer, and in a financial institution, it shall transfer the amount of approval deposit from the customer’s account to a financial institution. If the customer cancels the above payment, the franchise store shall transmit the approval transfer slip to the financial institution by computer and then shall refund money received from the customer’s account to the financial institution to the customer’s account. On the other hand, the franchise store shall not prepare and transmit the sales transfer slip and the sales cancellation slip separately from the transfer of the approval and cancellation slip to an automated financial institution, such as computer, etc.

However, in the case of the above 'B', in contrast to the above ordinary settlement procedure, if the customer pays the deposited money to purchase derivatives with a e-mail card and cancels it, the customer will electronically transmit the e-mailed pre-approval slip and the pre-approval cancellation slip to the financial institution as above, and then prepare a separate pre-approval slip and sales cancellation slip after about 3 to 4 days from the business day, send the pre-sale slip to the financial institution, and then send the pre-sale slip to the financial institution after several hours from then, the financial institution would then refund the money to the customer's account on the basis of the above 'B', even if the sales had already been cancelled and the pre-sale slip was sent to the customer's account, and if the pre-sale slip was sent after several hours, then the transaction was made again by the method of withdrawing the money to the customer's account.

【Criminal Facts】

1. Habitual computer, etc. fraud; and

In order to purchase derivatives in B as above, the Defendant: (a) settled the deposited money with a physical card in order to purchase derivatives; and (b) when the Defendant cancels the payment, he was aware that the money equivalent to the amount that was cancelled after about 3 to 4 days was refunded to the account; and (c) subsequently, he was aware that the said money was withdrawn from the financial institution after a few hours, and was able to obtain the amount from the financial institution

On November 22, 2017, in order to deposit USD 8,000 (Korean KRW 8,966,326) deposited on the settlement screen by accessing 'B' through Nopt North Korea to 'B' at the C coffee shop located in Yeonsu-gu Incheon, Yeonsu-gu, and then immediately cancel the above amount after entering 16 pages of the card number on the front of the e-mail card linked to the company bank F account in the name of women E-gu, and the effective period of the card, 16 pages of the card number, English name, and cVC three back of the card, and then immediately cancel the payment.

As above, the Defendant received refund of KRW 16,578,396 in total from the victims of the Bank of Korea until January 2, 2018, by repeating the above procedure eight times, such as immediately withdrawing and defrauding KRW 8,966,326 to the above account in the name of E, based on the pre-sale table that the Bank of Korea received from “B,” even though there was no money to be refunded from KRW 16,578,396 in total from the victims of the Bank of Korea from around 27th of the same month, and received a refund of KRW 296,053,619 in total from the victim bank H account in the name of “B,” by means of the foregoing method.

In addition, with the knowledge that the defendant can easily punish money by using the above method, he had the mind to continue to commit the crime by soliciting a large number of persons in the name of the bank and using the so-called 30% of the amount obtained by using the so-called i, J, K, L, L, M, M, N, N, and 0 to commit the crime by using the so-called 30% of the amount obtained by the victim G bank company and the Industrial Bank of Korea, and the defendant had the amount equivalent to the above I, J, K, K, L, M, N,O and the e-mail card holders recruited by them.

From December 2, 2017 to January 6, 2018, the Defendant: (a) entered I, J, K, L, M, M, R, T, U, V, W, X, Y, AA, AA, AB, AC, AE, AE, AF, AF, AH, AH, AJ, IK, and AL (hereinafter referred to as "I, etc.") in the victim G Bank Co., Ltd and Industrial Bank of Korea of the Bank of Korea; (b) the effective period of the card; (c) the English name in English; (d) the CVC 3 forms of the CV card back of the CV card; and (e) subsequently revoked the payment; and (e) subsequently, then acquired 1,092,90,215, 215, 197, and (e) received economic benefits from the victim bank Co., Ltd.; and (b) subsequently, (c) subsequently returned 16,781,715 and other financial benefits from the Defendant.

The defendant is not a person handling narcotics.

(a) Purchasing philophones;

On April 2018, the Defendant decided to contact the sales book of Metepopty, a non-psychotropic drug known through the Internet, to purchase Mepopon, and purchased Mepopon by using 400,000 won for AMtelN and sales book of Mepopon (at least 15.76 g or more).

(b) Handphone medication;

On May 14, 2018, the Defendant administered a philophone in a AMytelN site in AMytel, or an AMyopon site in an AMyopon site in a way that added the bottom thereof to a hyopter and added it to a hyopon.

Summary of Evidence

【Criminal Facts of Paragraph 1 at the Time of Sales】

1. Defendant's legal statement;

1. Statement made by the prosecution against AO;

1. Each police suspect interrogation protocol on L, as regards AE, S, R, E, J, AP, AP, Q, AR, AH, U, T,S, I, AS, AJ, AF, X, X, AU, and L;

1. The police statement of AO and AW;

1. Written statements and confirmations of AE, J, E,P, and I, and AO;

1. The list of revocation of purchase of overseas business approval, account holders, account number, list of cancellation amounts of purchase, list of crimes, list of withdrawals of amount of damage, video, etc., details of transfer of amount of damage, etc., details of each account, details of accounts transactions in G Bank, details of accounts transactions in G Bank, and each investigation report (Evidence List Nos. 22, 46, 49, 50, 58, 82, 88, 97);

1. Habituality: A person who is recognized as a habitive wall in light of the fact that the crime under the same method was committed in a systematic and organized manner (2,028 times in total) and that the defendant seems to have practically directed the above planned systematic crime;

【Criminal Facts of Paragraph 2 at the Time of Sales】

1. Defendant's legal statement;

1. A list of seized articles, police records, and a list of seized articles;

1. Application of the Acts and subordinate statutes to the investigation report (suspect Aphilopic response test), the results and time letters of simple reagents test, the investigation report (on the seizure site of a philopphone), photographs attached thereto, the investigation report (the arrest of a suspect), the investigation report (the oral reply requested to give an appraisal of a philopphone), and the written appraisal of narcotics;

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

Articles 351, 347-2, and 30 of the Criminal Act (the fact of fraud by use of habitual computers, etc., inclusive, imprisonment choice), Articles 60(1)2, 4(1), and 2 subparag. 3(b) (the purchase of phiphonephones and the administration thereof, and the choice of each imprisonment) of the Act on the Control of Narcotics, Etc.

1. Aggravation for concurrent crimes;

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

1. Confiscation;

The main sentence of Article 67 of the Narcotics Control Act [Judgment on Collection]

The prosecutor seems to have collected the amount of 650 million won (2489 pages of investigation records) stated in the investigative agency as the share acquired by the defendant, except that the defendant distributed to other accomplices among property profits acquired by committing the crimes listed in the criminal facts of paragraph (1) of the same Article in the judgment of the defendant.

On the other hand, the additional collection under Article 48(1) of the Criminal Act is not only a voluntary additional collection, but also a 650 million won which the defendant recognized as having acquired by the defendant, as well as a 650 million won which is acquired from the victim due to a criminal act of the crime of the crime of the property, or the property acquired by the possession and disposal of the property, which is not the original subject of confiscation, but also a case where the requisites for confiscation are not satisfied. Thus, the additional collection for the

Reasons for sentencing

1. The scope of punishment by law;

Imprisonment with prison labor for not less than one month but not more than 22 years and six months;

2. Scope of recommended sentences according to the sentencing criteria;

(a) Crimes of habitual computer, etc. fraud;

[Determination of Punishment] Type 3 (at least 500 million won, less than 5 billion won)

[Special Convicted Persons] In the case of planning or leading the implementation of the commission of fraud (including the elements of aggravation), self-denunciation, internal corruption accusation, or complete and voluntary initiation of the conspiracy of the commission of fraud (requirements of mitigation)

【Scope of Recommendation】

Imprisonment with prison labor for not less than four years nor more than seven years (basic areas);

(b) Crimes of violation of the Act on the Control of Narcotics, etc. (flavoon) by medication of phiphones;

[Determination of Types 3 (Determination of Types 7(b) and (c))] Medication, Simple Possession, etc.

【Special Convicted Person】

【Scope of Recommendation】

Imprisonment with prison labor for not less than 10 months but not more than 2 years (basic areas);

[Determination of Types 2] Types 2, such as assistance in the trade of narcotics crimes, etc. (mariju, native (b) and (c).)

[Special Convicts] Purchasing or receiving for medication, simple possession, etc.

【Scope of Recommendation】

Imprisonment with prison labor for not less than 8 months but not more than 1 year and 6 months ( mitigated areas);

(d) Scope of recommendations according to the standards for handling multiple crimes;

3. Determination of sentence: Imprisonment with prison labor for not less than 4 years but not more than 8 years and not more than 6 months (=7 years + (2 years + 1/2) + (1/3 June X 1/3): 5 years and forfeiture.

The crime of this case was committed by the Defendant by paying the deposit with the physical card and immediately cancelling the deposit, by entering an unlawful order in a planned and organized manner using the diversative point of temporary refund of money equivalent to the amount cancelled after about 3 to 4 days, thereby obtaining the pecuniary benefits of the amount equivalent to the refund money for cancellation of the settlement from the victims of financial institutions, and purchasing and administering the penphones.

The total amount of damage caused by the instant crime is a large amount of KRW 2.1 billion, and most of the damage amount was not recovered. The Defendant, as a leading factor, took overall control of each of the instant crimes, such as soliciting a number of physical cards and bank accounts to be used for the commission of the crime from I, etc., and the method of the commission of the crime was planned and organized, and a large portion of the gains from the property acquired by the commission of the crime appears to have been used in personal amnesty. The Defendant is considerably large in the transfer of phiphonephone purchased. In light of the above amount of damage, the Defendant’s crime of this case is very poor in view of the circumstances before and after the commission of the crime, method of the crime, etc.

However, the fact that the defendant recognized the entire crime of this case, the fact that he was present at the investigative agency and voluntarily surrenders to him, about about 20 to 30% of the amount of damage, the fact that the defendant seems to have actually acquired only about 20 to 30% of the amount of damage, the fact that the lack of the system related to the cancellation and refund of the check card by the financial institution seems to have contributed to a certain degree of the occurrence of the crime of this case

In addition to the above circumstances, all the sentencing conditions specified in the records and arguments of this case, including the defendant's age, character and conduct, environment, family relationship, motive for the crime, circumstances after the crime, etc., shall be determined as ordered.

Judges

The senior judge of the presiding judge;

Judge Lee Sang-hoon

Judges Park Il-young

Note tin

1) The name of "IBK Enterprise Bank Co., Ltd., Ltd., written in the indictment was modified into "The Bank, a trade name in the corporate registry," and the same is the same.