Defendant 1 and one other

Defendants

Lee Jae-deok

Law Firm Geumsung, Attorneys O Young-moo et al.

Seoul Northern District Court Decision 2009Dahap26, 250 (Consolidated) decided February 11, 2010, and application for compensation order 2009 early 965

The part of the judgment of the court below as to the crime Nos. 1 and 2 of the judgment of the court below, excluding the part on compensation order, and the part as to the defendant No. 2

Defendant 1 shall be punished by imprisonment with prison labor for three years, and by imprisonment with prison labor for two years and six months, respectively.

Defendant 1’s appeal against the crime Nos. 3 and 4 of the judgment of the court below is dismissed.

1. Summary of grounds for appeal;

A. Defendant 1

(1) misunderstanding of facts or misapprehension of legal principles

(A) As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against Non-Indicted 2 (hereinafter "Fraud").

피고인은 공소외 2가 공소외 5 주식회사를 운영하던 공소외 1과 폐·고철 수거 사업약정을 체결하고 10억 원을 건넸다는 2006. 9. 22.경 공소외 5 주식회사의 사무실에서, 5억 원을 건넸다는 2006. 9. 27.경 피고인의 사무실에서 공소외 2 일행을 만난 사실이 없을 뿐만 아니라, 공소외 1이나 상피고인 2와 공모하여 공소외 2에게 마치 폐·고철 수거 사업권을 줄 수 있는 것처럼 기망하여 금원을 편취한 사실이 없다.

The crime of this part of the crime committed by Nonindicted Co. 5 alone by forging relevant documents as if Nonindicted Co. 1 was entrusted with the collection of waste and scrap metal by Nonindicted Co. 4’s business team (hereinafter “business team”) or by the Defendant, and Nonindicted Co. 1 committed the crime of fraud against Nonindicted Co. 10 who is the representative director of Nonindicted Co. 9 or the representative director of Nonindicted Co. 6, who is the representative director of Nonindicted Co. 11, was committed solely by Nonindicted Co. 1. In collusion with Nonindicted Co. 1, etc.,

Therefore, since the Defendant filed a complaint against Nonindicted 10 and there was no reason to agree with the Defendant, it is difficult to readily conclude that the Defendant conspiredd with Nonindicted 10 million won in collusion with Nonindicted 2 on the part of the money that Nonindicted 1 acquired from Nonindicted 2 and Nonindicted 6. In addition, it is true that the Defendant paid KRW 100 million to Nonindicted 6 as part of the money that Nonindicted 1 acquired from Nonindicted 2. However, the Defendant was aware of the fact that “ Nonindicted 1 acquired the money under the name of granting Nonindicted 6 the right to carry out the business of collecting waste and scrap metal and contributed KRW 100 million to Nonindicted 12, the head of the △△△-gu Association, the head of the Gu- including the Defendant, and caused Nonindicted 1 to bring him to KRW 100 million and bring to KRW 6,000,000,000, and such fact is not sufficient to conclude that the Defendant acquired the money by deception from Nonindicted 1 and 2.

Meanwhile, the reason why the Defendant, around February 2007, ordered Nonindicted 2, including Nonindicted 13, etc. to have the right to carry out the business of collecting waste and scrap metal, is that he/she requested that he/she be aware that he/she would have obtained a large amount of money by deceiving him/her, and that he/she would only supply waste and scrap metal when the Jincheon Factory of Nonindicted 14, who had been making efforts to obtain a license for the waste disposal business plan, was engaged in handling waste and scrap metal upon obtaining the license. Therefore, it cannot be said that the Defendant conspired with Nonindicted 1.

Although the facts are the same, the court below found the defendant guilty of this part of the charges by reliance on only Nonindicted 2 or Nonindicted 6, etc. who did not have credibility due to contradictions or reversals with each other. The court below erred by misunderstanding of facts and misunderstanding of legal principles concerning joint principal offense, which affected the conclusion of the judgment.

(B) As to the forgery of private documents, the uttering of a private document, and the fraud against Nonindicted 6

In addition, there is no fact that the Defendant has forged the business entrustment agreement, and there is no fact that the Defendant delivered it to Nonindicted 6. In addition, the Defendant borrowed money from Nonindicted 6 because of the need for the facilities and operation of the Jincheon Factory, and there was no fact that the Defendant received advance payment by making a false statement as if he would transfer the Korean power to Nonindicted 6.

Nevertheless, the court below found the defendant guilty of this part of the charges by believing only the statements made by Non-Indicted 6 and Non-Indicted 15 without credibility, and there is an error of law that affected the conclusion of the judgment due to misunderstanding of facts.

(C) As to each fraud against Nonindicted 7 and 8

The defendant was invested by the defendant 2 in accordance with the joint agreement with the defendant 2, and there was no fact of deceiving the non-indicted 7 and 8 in collusion with the defendant 2 and deceiving the money.

Nevertheless, the court below found the defendant guilty of this part of the charges, and there is an error of law by misunderstanding of facts and misunderstanding of legal principles as to co-principals.

(2) Unreasonable sentencing

The punishment of the court below (4 years of imprisonment with prison labor for crimes Nos. 1 and 2 in the original judgment, and 3 and 4 in the decision of the court below) is too unreasonable.

B. Defendant 2

(1) misunderstanding of facts or misapprehension of legal principles

(A) As to the violation of the Special Economic Act (Fraud) against Nonindicted 2

In around 2005, the Defendant invested KRW 90 million to Nonindicted 1, and was unable to receive the refund thereof, the Defendant received a proposal from Nonindicted 1 that “I would not work for KRW 50 million in the annual salary from Nonindicted 5 Stock Company,” and worked as Vice-Chairperson from October 30, 2005 to Nonindicted 5 Stock Company, but did not actually participate in the management of the company, and did not receive a monthly salary, and was waiting only for the return of the investment amount while waiting for the return of the investment amount. In collusion with the Defendant 1 or Nonindicted 1, the Defendant did not have worked for Nonindicted 5 Stock Company in order to deceive others as if he could have had no intention or ability to collect the scrap and scrap metal in collusion with the Defendant 1 or Nonindicted 1.

Around September 22, 2006 and September 27, 2006, the Defendant was present at the office after attending the office, and there was no false statement as if he was able to bring money to Nonindicted 2 by participating in the process of concluding the contract between Nonindicted 1 and Nonindicted 2, to guide Nonindicted 1’s office, or to allow his right to collect waste or scrap metal in the process. Furthermore, the Defendant’s receipt of KRW 19 million from Nonindicted 1 around September 2006 is merely a part of the investment money loaned to Nonindicted 1 under the name of partial return.

Nevertheless, the lower court determined that the Defendant, in collusion with Nonindicted 1 and Defendant 1, acquired KRW 1.5 billion by deceiving Nonindicted 2, despite the lack of recognition that there was a conspiracy between the Defendant and Nonindicted 1 and Defendant 1, by reliance on only the statements made by Nonindicted 2, 3, 16, and 17, which are not reliable due to inconsistency or reversal. In addition, the lower court erred by misapprehending the legal doctrine as to the mistake of facts and joint principal offense, thereby adversely affecting the conclusion of the judgment.

(B) As to each fraud against Nonindicted 7 and 8

The fact that the Defendant was paid to Nonindicted 7 and 8 for the payment of the deposit was not a permit for the disposal of waste of the Jincheon Factory, and even if the supply contract was not concluded with the Korea Electric Power, he was unaware of the fact that he did not permit the completion of the contract and that he did not enter into the supply contract. Rather, he was well aware of the fact that he did not permit and did not enter into the supply contract. Furthermore, the Defendant was aware of the fact that Nonindicted 14 Company, he acquired by Defendant 1, owned the patent technology related to the disposal of the waste pressure and actually carried out the examination, and the procedures for obtaining the license for the waste disposal business plan are being carried out, and it was believed that the permission was concluded with Nonindicted 7 and 8, and that he would not receive the deposit, but did not have concluded the contract and received the deposit from the Defendant. This is not the fact that the time Jincheon Factory did not obtain the permission due to the erroneous interpretation of the Farmland Act of the administrative agency, in light of the fact that it was not obtained after the permission.

Nevertheless, the judgment of the court below which found the defendant guilty of this part of the facts charged on the ground that the defendant has the intention of defraudation, is erroneous in the misapprehension of legal principles and thereby affecting the conclusion

(2) Unreasonable sentencing

The punishment of the court below (three years of imprisonment) is too unreasonable.

2. Determination on the grounds for appeal

A. Determination of the defendants' assertion of mistake of facts

(1) As to the Defendants’ violation of special law (Fraud) against Nonindicted 2

(A) As to the credibility of the statement

The victim non-indicted 2 or 3 appeared to have been reversed by the non-indicted 1 at the office of the non-indicted 5, which was the non-indicted 2's statement. The non-indicted 1 and the non-indicted 2 stated that the non-indicted 1 and the non-indicted 1 and the non-indicted 1 and the non-indicted 2 stated that the non-indicted 1 and the non-indicted 1 and the non-indicted 13 stated that the non-indicted 2 and the non-indicted 1 and the non-indicted 2 stated that the non-indicted 6 and the non-indicted 1 and the non-indicted 2 stated that the non-indicted 1 and the non-indicted 2 stated that the non-indicted 3 and the non-indicted 1 and the non-indicted 2 stated that the non-indicted 1 and the non-indicted 2 stated that the non-indicted 1 and the non-indicted 2 stated that the non-indicted 1 and the non-indicted 2 stated that the non-indicted 1 and the non-indicted 2 stated that the defendant 1 and the non-indicted 1 and the defendant 2 stated.

On the contrary, the statements made by Nonindicted 13, 19, 20, 21, etc. to the effect that “Defendant 1 had no record in the office of Nonindicted 5 Co. 5 on September 22, 2006” are not reliable in light of the following: (a) he was employed in Nonindicted 5 Co. 5, together with Nonindicted 1 and Defendant 2, or made the victim Nonindicted 2 or Nonindicted 6 make an investment in Nonindicted Co. 5; (b) thereby, he was accused of the victim as an accomplice in fraud; and (c) Defendant 1 and the collection and supply of scrap metals together with the Defendant 1 are the same economic interest.

Meanwhile, the Defendants made a false statement in this case to the investigative agency that “Non-Indicted 1 became aware of at the first time on January 2007, which was after the escape, even though they had already known to each other in relation to the agreement on the business of collecting waste and scrap metal between Non-Indicted 5 and Non-Indicted 6 before delivering the instant money to Non-Indicted 1, as well as the Defendants made a false statement to the investigation agency that “Non-Indicted 1 became aware of at any time on January 2007, which was after the escape,” and it is difficult to credibility such statement by making a false statement about various objective facts acknowledged under (b) as

(B) According to the evidence duly adopted and examined by the lower court and the first instance court, including the statements of Nonindicted 2, 3, 16, and 17, the following facts are recognized.

1) On July 2005, Defendant 1 conspired with Nonindicted Co. 1 and 22, in collusion with Nonindicted Co. 1 and 22, thereby deceiving Nonindicted Co. 10 who had operated Nonindicted Co. 9, as if he had no intention or ability to engage in the business of collecting waste and scrap metal, thereby deceiving Nonindicted Co. 10 billion won as if he had such intention or capacity. Defendant 1 used KRW 110 million through money laundering in the process.

2) Accordingly, around March 2006, Nonindicted 10 filed a complaint on the grounds that Defendant 1, Nonindicted 1, and Nonindicted 22 conspired with each other, thereby deceiving himself and deceiving him. Defendant 1 denied his criminal act during the investigation process.

3) On May 2006, Nonindicted 1 and Nonindicted 6, who operated Nonindicted Co. 11 through Nonindicted 19, who had worked as the head of planning office of Nonindicted Co. 5 and had been on duty, Nonindicted 1, the non-indicted 6, who had been in charge of the business of collecting scrap metal, can have the right to carry out the business of collecting scrap metal and scrap metal because Nonindicted 5, who was entrusted by Defendant 1 with the business of collecting waste and scrap metal of Korean power or Korean communications from Defendant 1,” and he concluded an agreement with Nonindicted 6 on the entrustment of the business of collecting waste and scrap metal and received KRW 960 million in total from that time until August 25, 2006. In that process, Defendant 1 received KRW 110 million from Nonindicted 6 on June 9, 2006 to the non-indicted 1,100,000 won received from Nonindicted 6, and paid it as support payment to Nonindicted 12, the △△△ Association.

4) On July 18, 2006, Defendant 2: (a) heard Nonindicted 6 and 15 from Nonindicted 19 to “if Nonindicted 300 million won, the goods may be immediately deducted”; (b) took Nonindicted 1 to Defendant 1’s office; and (c) demanded Nonindicted 6 to prepare additional KRW 100 million; (d) said Nonindicted 6 to withdraw KRW 100 million as a check; and (e) said Defendant 1 did not reach an agreement with Nonindicted 1, as well as Nonindicted 6 and 15; (b) Defendant 2 did not supply Nonindicted 6 and 15 with Nonindicted 1 to Nonindicted 60 million to Nonindicted 26 billion won at the time of borrowing the loan; and (c) Defendant 2 promised to deliver Nonindicted 16 billion won as part of the loan certificate to Nonindicted 16 billion won; and (d) Defendant 2 provided Nonindicted 60 billion won to Nonindicted 36 billion won at the time of borrowing the loan.”

5) 피고인 1은 2006. 9. 20. 서울중앙지방검찰청에서 위 공소외 10의 고소 사건으로 피의자신문을 받으면서 공소외 1, 22와의 공모관계를 부인하였으면서도, 2006. 9. 22. 공소외 1이 운영하는 공소외 5 주식회사에서 공소외 2를 만나 “이 사업은 괜찮은 사업이니 젊은 사람들끼리 잘해 보라”고 한 후 자리를 떴다. 피고인 2도 공소외 1이나 피고인 1이 공소외 6에게 약속한 폐·고철을 공급해 주지 못하고 있고 공소외 10으로부터 고소를 당한 사실을 잘 알고 있음에도 불구하고 공소외 1이 공소외 2 등을 기망하여 ‘ 공소외 5 주식회사가 공소외 2 등이 운영하는 공소외 23 주식회사로부터 15억 원을 지급받고 고철 및 비철 수거 판매 업무를 1년간 위탁한다.’는 취지의 사업약정서를 작성한 후 10억 원을 건네받는 것을 지켜만 보았다가, 그 직후 공소외 1로부터 그 중 2억 원을 건네받아 공소외 10의 아들인 공소외 24를 만나 그에게 이를 건네주었고, 공소외 24는 공소외 10을 대리하여 ‘ 공소외 1 외 2인이 공소외 10의 위 고소사건에 관하여 합의하였다’는 취지의 합의서와 고소취하서를 작성해 주었다.

6) At the office of Nonindicted Co. 5 on September 27, 2006, Nonindicted Co. 2, etc. (hereinafter “Nonindicted Co. 5”) told Nonindicted Co. 2, etc. of KRW 500 million to the office of Nonindicted Co. 5, which read, “it was possible to receive the goods even before it was opened,” and Nonindicted Co. 1 asked Defendant 1, who was in turn on the phone, to read, “at hand,” and let Defendant 2 inform Defendant 1 as Defendant 1’s office. Defendant 2, who was in turn on the spot, told Defendant 1 to the office of Nonindicted Co. 2, etc., and thereafter, directed Nonindicted Co. 1, etc. to the office of Nonindicted Co. 2, etc., that “if Nonindicted Co. 1 had been going to the Korean power or Korean communications before it was opened, it was difficult to do so before it was made, but it could not be supplied after it was closed.”

7) 피고인 1은 공소외 1로부터 공소외 2가 공소외 1에게 건넨 15억 원 중 6,844만 원권 자기앞수표와 7,756만 원권 자기앞수표를 건네받아 이를 공소외 25(피고인 소유 건물의 임차인이다)에게 건네 100만 원권 자기앞수표 146장으로 교환한 후 2006. 12. 14. 투자금의 반환을 요구하는 공소외 6에게 9,000만 원을 건넸고, 나머지는 아들인 공소외 26, 처인 공소외 27, 지인인 공소외 28 등에게 건넸으며, 이와는 별도로 1,000만 원권 자기앞수표 3장을 공소외 28의 계좌로 송금받았고, 1,000만 원권 자기앞수표 4장을 건네받아 자신의 채권자인 공소외 29에게 채무변제조로 지급하였다. 피고인 2도 공소외 1로부터 그 중 1,900만 원을 교부받는 등 그 무렵 1억 원을 지급받았다( 피고인 2는 공소외 1로부터 1,900만 원을 받았을 뿐이라고 주장하나, 계좌 추적 결과에 따르더라도 피고인 2는 1,900만 원 외에도 공소외 30에게 200만 원, 공소외 31에게 1,400만 원을 각 교부하여 사용한 것으로 보이고, 경찰 제1회 피의자신문 당시 “2006. 10.경 1억 원을 돌려받았다.”고 진술하였을 뿐만 아니라, 원심에서도 변호인을 통해 동일한 주장을 하였다).

8) Meanwhile, Defendant 1 was prosecuted with Nonindicted Party 1 on September 28, 2006 due to the crime of fraud committed against Nonindicted Party 10 on the part of Nonindicted Party 1. In the trial process, there was no dispute between Nonindicted Party 1 and 22 and Nonindicted Party 10 on the charge of deception, but Defendant 1 was sentenced to a suspended execution of three years in January 26, 2007 due to the full charge of Nonindicted Party 1’s suspicion (the Seoul High Court, the appellate court, rejected the Defendant’s assertion of mistake on October 4, 2007, and sentenced the same sentence as the first instance court on the ground of changes in the indictment, and the appeal was dismissed, and the judgment became final and conclusive on December 27, 2007). Meanwhile, Nonindicted Party 1 was prosecuted with Defendant 1 and was tried at the first instance court, and was tried on January 19, 2007 after the closing of argument.

9) On January 30, 2007, Defendant 1, who was aware that Nonindicted 1 escaped as his office, found Nonindicted 2, etc., on the ground that there were no difficulties in business for the reason that the Korean power and Korean communications had occurred, and thereafter there is no problem, Defendant 1 entered into a prior contract with Nonindicted 18, who is the head of the business group, and Defendant 13 handed over the non-indicted 13 to the head of the business group, and Nonindicted 18 transferred the whole amount of the non-indicted 23 corporation to the head of the business group, and Non-indicted 18 prepared the contract as of February 1, 2007 at the request of Nonindicted 2, etc., and prepared the contract as “each wife” and returned it again under the name of Defendant 2, who refused to return it.

10) Meanwhile, Defendant 1 and Nonindicted 18 knew of the existence of the documents prepared in the name of the head of the business group on February 5, 2006 (see, e.g., record 352). However, Nonindicted 1 et al. did not file a complaint against Nonindicted 1 et al. for suspicion of forging private documents, etc. (see, e.g., record 352). Defendant 1 filed a complaint against Nonindicted 1 for suspicion of forging private documents, etc. only when Nonindicted 1 escaped to China on February 5, 20

(C) The above facts and the following facts revealed by the Defendants, namely, ① deceiving Nonindicted Party 2 and deceiving Nonindicted Party 1, and deceiving Nonindicted Party 10 as if Defendant 1 could have the right to carry out the business of removing the scrap metal, and Defendant 1 was committed as if Defendant 1 could have the right to carry out the business of removing the scrap metal. ② Defendant 1 was accused of the charge on the ground that he conspired with Nonindicted Party 10, and there was no contestation with Nonindicted Party 1 in the process of the investigation, so it would be common to find that it was necessary to keep Nonindicted Party 1 in mind that the Defendants were aware of the fact that Nonindicted Party 1 and Nonindicted Party 2 did not have the right to engage in the business of collecting the scrap metal, and that Nonindicted Party 1 and Nonindicted Party 2 were not aware of the fact that Nonindicted Party 1 had the right to engage in the business of collecting the scrap metal in the process of deceiving Nonindicted Party 1 and Nonindicted Party 2, as well as that Nonindicted Party 1 had the right to participate in the business of collecting the scrap metal from Defendant 1 and Defendant 2.

(2) As to Defendant 1’s fabrication of private documents, uttering of a falsified document, and fraud against Nonindicted 6

As to this part of the facts charged, Nonindicted Party 1 and Nonindicted Party 15 wished to reverse Nonindicted Party 6’s statement to the effect that Nonindicted Party 1 and Nonindicted Party 6 had no choice but to know that Nonindicted Party 1 had no choice but to know that Nonindicted Party 1 had no choice but to know that Nonindicted Party 6 had no choice but to know that Nonindicted Party 1 had no choice but to know that Nonindicted Party 1 had been able to collect and supply the scrap metal from Korea and to request the victim to make a favorable statement, and that Nonindicted Party 1 had no choice but to know that Nonindicted Party 6 had no choice but to know that Nonindicted Party 1 had no choice but to know that Nonindicted Party 6 had no choice but to know that Nonindicted Party 1 had no choice but to know that Nonindicted Party 6 had no choice but to know that Nonindicted Party 1 had been subject to the Defendant’s consent to use Nonindicted Party 6’s 1 and that Nonindicted Party 1 had no choice but to know that Nonindicted Party 6 had no choice but to know that it had been subject to the Defendant’s withdrawal of this case.

(3) As to the Defendants’ fraud against Nonindicted 7 and 8

앞서 본 바와 같이 피고인들이 2006년부터 계속하여 많은 사람들에게 한국전력 등으로부터 폐·고철을 수거하여 공급해 줄 수 있는 것처럼 기망하여 왔던 점에다가, 원심 및 당심이 적법하게 채택·조사한 증거들에 의하여 인정되는 다음과 같은 여러 사정, 즉 ① 그럼에도 불구하고 피고인 1은 피고인 2와 2007. 3.경 또다시 정부 및 정부투자기관으로부터 수거한 폐변압기, 폐전선, 고철, 비철 등 불용품의 처리 및 판매를 목적으로 하는 공동사업을 하기로 약정하였는바, 피고인 1로서는 피고인 2가 별다른 경제적 능력이 없다는 것을 잘 알고 있었으므로 피고인 2가 마치 공소외 14 주식회사 진천공장에서 한국전력 등으로부터 위와 같은 불용품을 수거하여 이를 처리한 후 폐·고철을 공급해 줄 수 있는 능력이 있는 것처럼 하여 다수의 투자자들로부터 금원을 투자받을 것이라는 것을 충분히 예상할 수 있었던 점, ② 피고인 1이 운영하던 공소외 14 주식회사 진천공장의 경우 폐변압기 처리에 대한 시험가동허가만을 받았을 뿐이고 더 나아가 폐기물처리시설로서 허가를 받을 수 있을지 여부는 매우 불투명한 상황이었음에도 불구하고 피고인들은 2007. 3.경부터 가까운 시일 내에 폐기물처리시설 허가가 날 것처럼 행세하여 온 점, ③ 피고인 2가 피해자 공소외 7이나 공소외 8과 체결한 계약서에 따르면 ‘ 공소외 34 주식회사가 △△△사업단 대표로부터 취득한 한국전력 불용품을 매도’하는 것으로 되어 있는 점에 비추어, 피해자 공소외 7, 8도 피고인 2가 한국전력 등으로부터 위와 같은 불용품을 수거하기로 되어 있고 진천공장에 대한 폐기물처리시설 허가도 곧 날 것으로 믿었기 때문에 피고인 2에게 금원을 송금한 것으로 보이는 점, ④ 피고인 2가 2008. 5. 6. 공소외 7로부터 1억 5,000만 원을 송금받을 당시의 피고인들의 자금 능력이나 공소외 14 주식회사 진천공장에 대한 폐기물처리시설 허가 절차의 진행 정도에 비추어 피고인들이 공소외 7로부터 1억 5,000만 원을 빌리더라도 3일 내에 갚기에는 불가능한 상황임에도 피고인 2는 공소외 7에게 3일 내에 이를 갚겠다고 진술한 점, ⑤ 피고인 2는 공소외 8로부터 5,000만 원을 투자받기 이전인 2008. 4. 29. 금강유역환경청에서 공소외 14 주식회사에 ‘폐기물처리사업계획의 적정성 여부를 떠나 환경문제에 대한 인근 주민들과의 갈등으로 사업 추진이 어려울 것으로 예상되므로 종합적인 민원방지대책을 수립하여 제출하라’는 취지의 폐기물처리사업계획서 보완 요청을 받았다는 사실을 잘 알고 있었고 이를 해결하기 위해 공소외 7로부터 금원을 교부받아 피고인 1에게 건넸으면서도 그 처리 결과(2008. 5. 16. 금강환경유역청으로부터 폐기물처리사업계획 부적합통보를 받았다)를 확인하지도 않은 채 또다시 가까운 시일 내에 그 허가가 날 것처럼 하여 공소외 8과 위 ③에서 본 바와 같은 계약을 체결하고 그로부터 금원을 교부받은 점, ⑥ 피고인 1은 피고인 2로부터 투자금을 송금받음에 있어서도 지인인 공소외 28의 계좌를 통해 받은 점 등을 추가하여 종합하여 보면, 피고인들이 공모하여 피해자 공소외 7, 8을 기망하여 금원을 편취하였음을 넉넉히 인정할 수 있으므로, 피고인들의 이 부분 사실오인 및 법리오해 주장도 이유 없다.

B. Determination on the Defendants’ assertion of unfair sentencing

(1) Defendant 1

(A) The part as to the first and second crimes in the holding of the court below

In light of the fact that the defendant conspired with the non-indicted 1, etc. to collect and supply the waste and scrap metal generated from the Korean power, etc., the crime of this part is committed by deceiving the victim non-indicted 2 and the victim non-indicted 6 in sum 1.71 billion won, and the amount of the damage is not only the maximum amount, but also the victim non-indicted 6 in the process of forging the document and allowing the victim to withdraw the complaint against himself/herself, etc., the crime of this case is highly poor and its nature and criminal intent are very poor; the defendant committed each of the crimes of this case in this case even though he/she was under investigation by committing the crime of the same kind; and the defendant did not reach an agreement with the non-indicted 2 and the victim; considering the fact that the defendant did not know about the fact that he/she was under investigation with the same type of fraud;

However, the crime of fraud against the victim non-indicted 2 is deemed to have been committed by the non-indicted 1, not only by the defendant but also by the victim non-indicted 1, and most of the fraud money seems to have been used by the victim non-indicted 1. The defendant paid the full amount of the fraud money to the victim non-indicted 6 and agreed so smoothly. The defendant deposited KRW 140 million for the non-indicted 2 of the victim since he was not able to do so, although he was not able to control the amount he used, the defendant deposited this part of the crime in the first instance court. The defendant's crime of this part is related to the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) which was decided on December 27, 2007 and the latter concurrent crimes of Article 37 of the Criminal Act, which became final and conclusive, and the defendant's health is not good as the senior wounded soldier, and all of the sentencing conditions in this case, such as the defendant's age, character and environment, relationship with the victim, circumstance, means and result after the crime.

(B) As to the third and fourth crimes in the holding of the court below

Although the defendant is recognized to have agreed with the victims that the defendant voluntarily withdrawn the complaint against the defendant, the defendant did not know about the fact that the defendant committed an offense in this part without being aware of the fact that the defendant was under suspension of execution due to the same type of fraud, and the total amount of the damage amount reaches KRW 297 million and the fact that the crime is not sufficient to commit the crime, and in full view of all the sentencing conditions specified in the arguments of this case, including the defendant's age, character and behavior, environment, relationship with the victim, circumstances of the crime, means and consequence of the crime, circumstances after the crime, etc., it is not recognized that the court below's punishment against the crime Nos. 3 and 4 of the defendant's decision of the court below is too unreasonable. Thus, the defendant'

(2) Defendant 2

The crime of this case is committed by deceiving the victim Nonindicted 2, 7, and 8 in collusion with the victim Nonindicted 1 et al., by deceiving the victim Nonindicted 2, 7, and 8, and taking account of the fact that the crime of this case is very poor in light of the nature and circumstances of the crime, and that the defendant did not reach a smooth agreement with the victim Nonindicted 2, it is inevitable to sentence of punishment on the defendant.

However, as seen earlier, the crime of fraud against the victim non-indicted 2 seems to have been committed by the non-indicted 1 as well as the most of the money obtained through the fraud, the degree of participation of the defendant in the process is relatively minor and the amount of profit actually acquired by the defendant is not much reasonable, the defendant agreed with the victim non-indicted 7 and 8, the defendant deposited the amount of 19 million won for the victim non-indicted 2, the defendant has no record of crime exceeding the fine, the defendant has no record of crime beyond the fine, the health of the defendant is not good, and all the sentencing conditions specified in the argument of this case, such as the defendant's age, character, character, environment, relationship with the victim, the circumstances of the crime, means and result, the circumstances after the crime, etc., are considered to be somewhat unreasonable. Thus, the defendant's assertion of unfair sentencing is justified.

3. Conclusion

Therefore, since the appeal by Defendant 1 and the appeal by Defendant 2 against the crime Nos. 1 and 2 in the judgment of the court below is well-grounded, pursuant to Article 364(6) of the Criminal Procedure Act, the part concerning the crime Nos. 1 and 2 in the judgment of the court below excluding the part concerning each compensation order among the judgment below excluding the part concerning each compensation order among the judgment below excluding the part concerning Defendant Nos. 1 and 2 in the judgment of the court below, and the part concerning Defendant Nos. 3 and 4 in the judgment of the court below are reversed, and it is so decided as follows.

Article 369 of the Criminal Procedure Act provides that criminal facts against the Defendants recognized by this court and the summary of the evidence thereof are identical to each of the corresponding columns of the judgment below, and such facts are cited as they are.

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

A. Defendant 1

Article 3(1)2 and (2) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 3(1)2 and (2), 347(1), and 30 of the Criminal Act (the fraud against the victim non-indicted 2), Article 231 of the Criminal Act (the crime of aiding and abetting private documents, the choice of imprisonment), Articles 234 and 231 of the Criminal Act (the fact of exercising the falsified investigative documents, the choice of imprisonment), Article 347(1) of the Criminal Act (the fraud against the victim non-indicted 6, the choice of imprisonment

B. Defendant 2

Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347(1), Article 30 of the Criminal Act (the fraud of Nonindicted 2 against the victim), Article 347(1), and Article 30 of the Criminal Act (the fraud of Nonindicted 7 and 8 of the victim, and the choice of imprisonment)

1. Handling concurrent crimes (Defendant 1);

The latter part of Article 37 and Article 39 (1) of the Criminal Act [Mutual Punishment, etc. of Specific Economic Crimes (Fraud)]

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of each Criminal Code [Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) with the largest punishment]

1. Discretionary mitigation (Defendant 2);

Articles 53 and 55 (1) 3 of the Criminal Act. Article 55(1)3

Judges Lee Sung-ho (Presiding Judge)