(영문) 서울중앙지방법원 2014.4.18. 선고 2013고합298 판결

A person shall be punished by imprisonment with prison labor for three years for each of the crimes listed in the holding Nos. 1 and 2 with prison labor for eight months for each of the crimes listed in the holding, and by imprisonment with prison labor for six months for each of the crimes listed in the holding

The Defendant paid KRW 1,400,000 to E who applied for compensation, KRW 2,950,000,000 to E who applied for compensation, and KRW 355,00,00 to G who applied for compensation.

The above compensation order may be provisionally executed.

Reasons

Criminal facts

On February 20, 2002, the Defendant was released on January 29, 2005 on paroled on February 5, 2005, when he was sentenced to imprisonment with prison labor for the crime of forging official documents at the Seoul Central District Court on February 20, 2002, and on December 4, 2002 at the Jung-gu District Court on February 29, 2005, and the remaining term of imprisonment has expired on August 20, 2009. On August 12, 2009, the said judgment became final and conclusive on February 20, 200 (one year and six months of imprisonment for the crime of forging private documents, and six months for the remaining crime of forging private documents, etc.) by the Seoul High Court on February 2, 2012.

[2013Gohap298]

1. Fraud in the construction of a new Htel in Gyeyang-gu, Manyang-si;

The defendant is a person who actually operates the company (hereinafter referred to as the "State") and the J (hereinafter referred to as the "J") corporation, and around October 207, the defendant transferred money from the main office of the K building B to the victim E and F, in the case of the M and N two lots in front of the "M" L, but there is no land to be used as an officetel site in addition to the land. The location is so short that money can be collected from the land only, and the office can be sold in lots by building an officetel at the highest level. In short, the defendant and the owner of the land were stated to the effect that two lots are already invested in the capital of at least three billion won. The defendant and the owner of the land will make investments in the capital of at least three billion won. The defendant and the owner of the land will deposit money in the name of the P and Q.13 billion won.

However, even if the defendant received money from the above victims, the defendant did not have the intention or ability to use it for M, N land purchase or officetel construction, so there was no intention or ability to create profits therefrom, and there was no fact that the copy of the bank passbook in the name of the above state of J was made by the defendant by fraudulent means, and there was no fact that the defendant remitted 2 billion won to P Co., Ltd. which owns land.

Nevertheless, on November 13, 2007, the Defendant, by deceiving the above victims, deposited KRW 300 million from the victim F with the bank account (Account Number: R) in the name of the Defendant on November 13, 2007, and deposited KRW 250 million with the bank account (Account Number: S) in the name of the Defendant on December 5, 2007, and received KRW 1.4 billion from the victim E on November 15, 2007, and acquired KRW 550 million in total from the victim FO, and acquired KRW 1.4 billion in total from the victim E.

2. Fraudulent of building a commercial building in Vietnam;

Around January 2008, the Defendant sought three new construction projects of building 7-8 stories in the area of 7-8 stories in the area of 7-7-8 stories in Vietnam at the (a) J Office located in Yongsan-gu Telecommunication 903, Yongsan-gu, Chungcheongnam-gu, Chungcheongnam-gu, Seoul. Around January 2008, the Defendant made a false statement to the effect that, “The construction amount is anticipated to be 7-8 billion won in the area of 7-8 stories in the area of 7-8 stories in Vietnam.” However, if 4.9 billion won has already been invested in the area of 2-3 billion won, the interest calculated at the interest rate of 9% per annum shall be paid on the first day of each month, and the principal shall be repaid

However, the defendant did not receive an investment of KRW 4.9 billion from other persons, and even if he received money from the victims, there was no intention or ability to pay the principal on the 1st day of each month, or there was no intention or ability to pay the principal ten months after the 10th day of each month, and there was no intention or ability to normally continue the new commercial building in Vietnam.

Nevertheless, the Defendant, as above, by deceiving the above victim, received 2.4 billion won from the victim F to the bank account (U) in the name of the J on February 1, 2008.

【2013 Gohap463】

3. 피해자 G에 대한 사기(주)은 주식회사 두산중공업과 함께 2008. 5.경부터 베트남 하노이에서 주상복합건물인 V건물 개발 및 분양사업을 진행하고, (주)은 2008. 8. 27.경 W 운영의 X와 베트남 하이퐁에서 Y 아파트를 건축, 분양하는 사업을 진행하였다.

However, (State) around October 2008, the KJ has caused exchange loss equivalent to KRW 10 billion due to the increase in the exchange rate of USD 50 billion from our bank. (State) since it did not interfere with the financing of construction costs, which is a business condition, it had been suspended from the construction of the above Y apartment from April 1, 2009. In addition, the Defendant, who was urged to continue to procure construction costs from W, expressed his intent to waive the above Y apartment project to W around October 30, 2009.

Therefore, even if the Defendant borrowed money from the victim G but did not have the intent or ability to repay it within a short period, the Defendant received from the victim G the amount of KRW 100 million from the victim to the head of the Tong, 150 million in the same manner, around September 4, 2009, the Defendant received from the victim at the J Office No. 2, 903 (State Branch Office) of Goyang-si, that “G building and Y apartment buildings are constructed and sold in Vietnam, and if the construction cost falls short of the construction cost, he would be repaid within three months from the interest rate of 30% per month.” The Defendant received from the victim to the head of the Tong (State), and received from the said victim the amount of KRW 150 million in the same manner, around the 10th day of the same month, around the 25th day of the same month, KRW 350 million in the same month, and around April 4, 2012.

Accordingly, the defendant deceivings the victim G and acquired 350 million won by receiving 355 million won as the borrowed money on four occasions.

【2013Gohap1439】

4. A perjury;

In fact, on August 2010, the Defendant: (a) made a statement to the effect that “(0) 50 million won is the money of Z and 50 million won is the money of Z and 50 million won is not being urged to return money from the Z; and (b) made a statement to the Z to the effect that “The ZJ office was found during August 2010, the Z, the Z, the Z’s mother, and the Z’s mother made a statement to the Z to the effect that the above 50 million won documents were sent out; (c) made a written promise to the Z from the Z office on August 20, 2010 to the Z; and (d) made a copy of the said statement to the Z to the effect that the Z will be paid up to 00 million won from the Z office to 00 million won and to 00 million won from the above Z; and (d) made a statement to the Z by 2000 million won to the Z.

At around 14:00 on November 13, 2012, the Defendant appeared and taken an oath in the Seoul Southern District Court No. 315, the Seoul Southern District Court No. 315, which was located in Yangcheon-gu Seoul, Yangcheon-gu, Seoul, as a witness of the loan claim lawsuit filed by the Plaintiff Z against the Defendant ○○.

It is essential that the defendant 0,00,000 won should be paid to the plaintiff(s) at the hearing of the above case. The defendant 0's attorney's testimony at the hearing of the first citizen(s) at the above court. The defendant 0's attorney's testimony at the hearing of the above case is prepared to the plaintiff(s) at the request of the 40,000 won or more to the plaintiff(s). The defendant's testimony at the hearing of the plaintiff(s) is not prepared to be presented to the mother of the plaintiff(s). The defendant's testimony at the hearing of the plaintiff(s) at the request of the 1st citizen(s) at the above court. The above attorney's testimony at the hearing of the plaintiff(s) at the request of the 40,000,000 won should be paid to the plaintiff(s). The witness's testimony at the hearing of the plaintiff(s) at the time of the examination of the plaintiff(s) at the hearing of the plaintiff(s) at the time of the first hearing.

Accordingly, the defendant made a false statement contrary to his memory and raised perjury.

Summary of Evidence

[Each fact of paragraphs 1 and 2 at the Time of Sales]

1. The defendant's partial statement in the second protocol of trial;

1. Statements made by witnesses E in the fourth trial records;

1. Partial statements of each prosecutor's office and police interrogation protocol of the accused;

1. Statement E in the police interrogation protocol (2 times, 2 times, and 2 times) of the accused;

1. Each statement made by the police in relation to E;

1. A copy of each specification of transactions in a deposit passbook, each specification of transactions in a deposit passbook, each copy of alteration-a copy of each specification of transactions in a deposit passbook, a copy of the alteration of the loan passbook, a copy of the first instance judgment (defendant A), a second instance judgment (defendant A), a deposit certificate of each deposit passbook, and a written request for deposit;

【Fact 3 at the Time of Sales】

1. The defendant's partial statement in the third protocol of trial;

1. Statement made by a witness AB in the fourth trial record;

1. Statement made by a witness AC in the nine-time trial records;

1. The statement of the accused in part of the third protocol of trial in the Seoul Central District Court 2013 High Court Decision 4630 (2012 High Court Decision 2220) case;

1. Each statement of witness G, AD and W in the fifth trial records of the case;

1. The description of the witness AE's partial statement in the sixth trial records of the case in question;

1. Partial statements of each prosecutor's office and police interrogation protocol of the accused;

1. Statement AB made on the accused in the suspect examination protocol (one to five times) of the prosecution;

1. Statement G in the suspect examination protocol of the accused by the prosecution;

1. Each statement made by the prosecution against AB, W, and G;

1. Statement made by the police officer in G; and

1. Partial statement of the police statement made to AD;

1. Each loan certificate, apartment sale agreement, deposit certificate, deposit-free deposit certificate, each transaction statement, withdrawal slip, each transaction statement, each passbook, copies of passbook, cashier's checks, joint business contract, X-invested document, document letter, e-mail output, high-level 197 (16), and judgment of Seoul High Court 2012373;

1. Each report on investigation;

【Fact 4 at the Time of Sales】

1. Defendant's legal statement;

1. Each statement of the accused in the suspect examination protocol of the prosecution, Z and AF;

1. A copy of an application for payment order, a copy of the statement of performance, a copy of the preparatory document, each copy of the protocol of pleading and protocol of examination of witness, each copy of protocol of pleading and protocol of examination of witness (AF), each copy of real estate sales contract, copy of notarial deed (money loan contract), copy of the protocol of examination of witness (0), copy of the protocol of examination of witness, copy of each protocol of decision (Z,O), copy of each deposit passbook, details of transactions, copy of each certificate of deposit transaction, copy of the certificate of deposit transaction

【Prior Records at the Time of Sales】

1. The current status of personal identification and confinement (A), resident inquiry, inquiry into criminal records and criminal investigation records, and copies of each written judgment;

Application of Statutes

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

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347 (1) of the Criminal Act

[Defendant E and F: Provided, That the upper limit of punishment shall be governed by the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010; hereinafter the same shall apply); Article 347(1) of the Criminal Act (amended by Act No. 10259, Apr. 15, 2010; hereinafter the same shall apply); Article 347(1) of the Criminal Act; Article 152(

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act, the proviso of Article 42 of the former Criminal Act (as to the crime of forging an official document, there is a criminal record, such as the crime of forging an official document),

1. Statutory mitigation;

Articles 153 and 55 (1) 3 of the Criminal Act (i.e., the crime of No. 4 as stated in its judgment)

1. Handling concurrent crimes;

The latter part of Articles 37 and the main sentence of Article 39(1) of the Criminal Act (trade between the crimes of subparagraphs 1 and 2 at the market and perjury for which judgment has become final, and the crimes of forging private documents for which judgment has become final and conclusive)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (Aggravated Punishment, etc. of Specific Economic Crimes (Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) [Aggravation of concurrent Crimes within the proviso of Article 42 of the former Criminal Act)] of the Criminal Act

1. Orders for compensation;

Articles 25(1), 31(1), and 31(2) of the Act on Special Cases concerning Expedition, etc. of Legal Proceedings

1. Declaration of provisional execution;

Article 31(3) of the Act on Special Cases concerning Expedition, etc. of Legal Proceedings

Judgment on the argument of the defendant and defense counsel

1. Judgment on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against the victim E or F (Article 1)

The defendant and the defense counsel asserted that the F received KRW 550 million from the F without an interest agreement as a short-term loan, and that the amount of KRW 1.4 billion received from E is merely a commercial building investment loan, and Htel project has not been feased, and there has not been no copy of the corporate passbook in the Bank of Bankruptcy and the Co., Ltd.

However, according to the following circumstances, i.e., the victims' statements at the request of the above victims, i.e., the victim's newly constructed officetel Nos. 1 and 100 million won were transferred to P as of November 1, 2007. The above copy of the passbook Nos. 1 and 2 billion won was revealed to be forged, and the defendant was not transferred to P at the same date. 2012373, the defendant's testimony was no more than 10 billion won, i.e., the victim's testimony at the Seoul High Court's 200 million won, i.e., the victim's 200, the victim's 200, and the victim's 100,0000 won was later later later later later, and the victim's testimony was no more than 30,000,0000 won.

2. Determination as to the victim F's violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

(Crime of No. 2 at Market)

The defendant and his defense counsel asserted that, in relation to the business of Vietnam, the F was merely invested in KRW 2.4 billion from F, and there was no deception by stating that there was a lot of investment from other investors, etc., and that the said money was not borrowed with interest agreement of 9% per annum.

However, according to the following circumstances, i.e., the defendant's intent to borrow funds from the victim F, i.e., the amount of 20 billion won: F with the loan interest rate of 9% per annum; payment of interest rate of 1% per month; and payment of interest period: February 1, 2008. The date of preparation is February 1, 2008. The victim F with the interest rate of 240 billion won sent to the JJ is also consistent with the above loan statement; (ii) the defendant had not received the above amount of 2.4 billion won from the victim's bank from the victim's 200 billion won per annum; and (iii) the defendant had not received the above amount of money from the victim's 4 billion won per annum from the victim's 200 billion won per annum, and thus, the defendant had not received the above amount of money from the victim's 10 billion won per annum before the transfer of this money from the victim's 200 billion won per annum.

3. Determination on fraud against victim G

The defendant and his defense counsel merely borrowed KRW 350 million from G with respect to Vietnam's business under the same conditions as the facts charged in this case, and even if they borrowed snow, at the time, the defendant claimed that he had the intent and ability to repay the above amount, since there was a claim to receive a return of KRW 16 billion, out of KRW 80 billion, which he received from our bank as a PF loan with respect to the V building business, and there was an amount of KRW 851 million with respect to the Y apartment, even with regard to the Y apartment, the defendant and his defense counsel claimed that he had the intent and ability to repay the amount.

However, in full view of each of the evidence in its holding, the following circumstances are stated as follows: ① the Defendant was unable to raise funds for about 50 billion won from the investigative agency on October 28, 2008 due to exchange loss at the investigative agency for about 50 billion won due to the lack of project cost; ② the Defendant stated to the effect that he had been suffering from serious financial difficulties at the time of borrowing money from G; ② under the V building project and the loan agreement related to the 80 billion won loan agreement, it is stated that the amount of the permitted debt occurred to the borrower in relation to the 5th project, and that the Defendant could not be seen as having been aware of the amount of the above 4th project cost due to the Defendant’s failure to raise funds from the lender or the payment guarantee for the apartment after the loan to the extent that the Defendant could not be seen as having been aware of the amount of the Defendant’s investment at the time of the above 50 billion won project. Accordingly, it is difficult to view that the Defendant could be aware of the amount of the Defendant’s investment revenue at the time of the apartment project.

Reasons for sentencing

1. The scope of punishment;

(a) Crimes falling under subparagraphs 1 and 2: Imprisonment with prison labor for not less than three years, but not more than 25 years;

(b) Crimes No. 3: Imprisonment with prison labor for not more than 10 years: Imprisonment for not more than 2 years and not more than 6 months;

2. Scope1 of the recommended types according to the sentencing criteria (in the case of a violation of paragraph (4) at the time of sale);

【Determination of Punishment】 Perjury

[Special Sentencings] Reductions: Confessions of Self-denunciation

[Recommendation scope] From 1 month to 10 months (Reduction Area)

3. Determination of sentence;

이 사건 범행은, 피고인이 별다른 재산 없이 투자금에만 의존하여 무리하게 베트남 하노이 V건물 신축사업과 하이퐁 Y 아파트 신축사업을 추진하면서 피해자들에게 자신과 이 사건 사업을 추진하고 있는 (주)J, (주)의 자력, 기존에 다른 투자자들로부터 투자받은 상황, 위 사업의 규모 및 진행 상태 등을 제대로 알려주지 않거나 허위로 알려주었고, 그 과정에서 법인 통장 사본을 위조하여 피해자들에게 제시하는 방법 등을 사용한 점에 비추어 볼 때 그 죄질이 좋지 아니하다. 게다가 피고인은 위 사업과 관련하여 민·형사소송에 직면하게 되자, 자신이 구속되면 투자금을 돌려받지 못할 것이라며 관련자들에게 자신에 관하여 유리한 증언을 해 줄 것을 요구하고, 자신 또한 법정에서 허위의 증언을 하여 법원으로 하여금 실체진실의 발견을 어렵게 하였으며, 피해자 E, F에 대한 범행은 누범기간에 이루어졌고, 피해 금액이 결코 적지 아니하며, 피해가 회복되지 않은 점 등에 비추어 보면, 피고인에 대하여는 엄중한 처벌이 불가피하다.

However, considering the circumstances favorable to the defendant, such as the following facts: (a) the defendant committed the crime of this case in a multi-level manner at the location where it is urgently required to lend funds in connection with the projects being promoted at the time; (b) there is somewhat little consideration of the motive and background of the crime; (c) the confession in the case of perjury; (d) the crime of perjury Nos. 1 and 2 as indicated in the judgment and the crime of the latter part of Article 37 of the Criminal Act, which became final and conclusive as stated in the criminal records in the judgment, need to be considered at the same time in relation to concurrent crimes; and (e) other circumstances, such as the defendant’s age, character and behavior, environment, background of the crime, and circumstances after the crime, etc.,

Judges

The presiding judge, the senior judge;

Judges Yang Sung-tae

Judges

Note tin

1) Crimes Nos. 1 and 2 of the holding shall apply to perjury for which the judgment becomes final and conclusive, and crimes No. 3 of the holding, since the judgment is in a concurrent relationship between the crime of forging private documents, etc. for which the judgment becomes final and conclusive,