Defendant 1 and three others

Jeong Jin et al.

Law Firm Chang-ro et al., Counsel for the defendant-appellant

Defendant 1 shall be punished by imprisonment for three years, by imprisonment for two years, and by imprisonment for one year and six months.

The number of detention days prior to the pronouncement of this judgment shall be one day, and each sentence shall be included in the above sentence.

However, the execution of each of the above punishments shall be suspended for five years for Defendant 1, and for three years for Defendant 2 and 3 from the date this judgment became final and conclusive.

Defendant 1 is the actual operator of Nonindicted Incorporated Co. 2 (hereinafter “the publishing company”) established for the purpose of publishing books, manufacturing books, and selling wholesale and retail sales business, and Defendant 2 is the person who has been in charge of accounting, such as tax payment, etc. by the book manager (mutually omitted) published companies, and Defendant 3 is the person who is in charge of personnel affairs, general affairs, and accounting affairs as the publishing company’s management director;

On April 25, 200, the publishing company entered into a publication contract (hereinafter “the publication contract of this case”) with the victim non-indicted 1, who is a cartoon author, to "(title omitted) novel" (hereinafter “the cartoon of this case”) on the publication contract (hereinafter “the publication contract of this case”), and the payment of seal shall be 7% of the total fixed price by the number of publication shall be the total amount of royalties whenever publication of this publication is made, and 1/3 of the total amount shall be paid within one month after publication and the balance shall be paid in accordance with mutual agreement." Since publication of this case, since publication of the cartoon of this case, the defendants conspired (However, defendant 2 and 3 shall be limited to the portion No. 8 of the attached Form No. 1) with the victim in writing, and the defendants conspired (the defendants 2 and 8 of the attached Form No. 1).

In the office of the publishing company (mutually omitted) located in Jongno-gu Seoul Metropolitan Government (hereinafter omitted) from July 2001 to January 2004, the actual publication number of the cartoons of this case has reached 10,146,086. Thus, even though the actual publication number of the cartoons of this case has paid 6,036,921,170 won to victims as seal, although the total price of the cartoons of this case is equivalent to 7% due to the above publication number, the cartoons of this case has increased rapidly in the delivery quantity of the cartoons of this case and the victim has agreed not to affix the seal of approval, it shall prepare a list of delivery status indicating the number of copies of publication using the fact that approximately 3.6 million copies have been published for the above period, and only KRW 2,19,302,290, and KRW 300,000,000 won are paid for the difference between the actual publication number of copies and the total amount of KRW 318,197,3981,2

1. Defendants’ respective legal statements

1. Each legal statement of Nonindicted 1, 4, 5, and 7 of the witness and part of Nonindicted 3’s legal statement

1. The defendants and non-indicted 3 written statements in each prosecutor's protocol of interrogation of each prosecutor's suspect

1. Each statement made by the prosecution against Nonindicted 5 at each prosecutor’s office

1. Each written statement made by the prosecutor against Nonindicted 3 and Defendant 2

1. Each statement of Nonindicted 5, 8, 7, 9, and Defendant 3’s written statements (except the written statements dated January 21, 2005, compiled on the trial records)

1. Each entry in the records of seizure by the prosecution;

1. Some of the written judgments bound in the records of public trial;

1. A copy of the publishing contract (45 pages of investigation records), a copy of the detailed statement of deposit transactions (investigative records, 70 through 86 pages), newspaper articles (investigative records, 87 through 89 pages), a copy of the deposit passbook (investigative records, 247 through 258 pages), a copy of the publishing company's deposit passbook (investigative records, 4-1, 1) and a copy of the book (investigative records, 4-1, 1 of reference materials); and

1. Each description of the material description (investigative records, 355 through 359, pages 360 through 363), the monthly withdrawal and receipt status (investigative records, 360 through 363, pages 364 through 367); and some of the specifications of storage (investigative records), respectively;

1. Article applicable to criminal facts;

Defendants: Comprehensively, Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347(1) and Article 30 of the Criminal Act

1. Discretionary mitigation;

Defendant 2 and Defendant 3: Articles 53 and 55(1)3 of each Criminal Act (The following favorable circumstances specified in the reasons for sentencing)

1. Calculation of days of detention;

Defendants: Article 57 of the Criminal Act

1. Suspension of execution;

Defendants: each of the favorable circumstances described in the reasons for sentencing under Article 62(1) of the Criminal Act

1. Summary of the assertion

A. Defendant 1

Defendant 1 did not directly participate at the time of entering into the instant publication contract, and did not know about the implementation process, so there was no conspiracy to commit the instant crime.

B. Defendant 2

Defendant 2 did not participate in the conclusion of the instant publishing contract or the omission of affixing stamps, but merely dealt with the affairs related to the payment of figures according to the method in which the full-time officer was under the instruction of his superior from May 2002, and did not have the status to make a decision. As such, there was no conspiracy with Defendant 1 and 3 to commit the instant crime.

C. Defendant 3

Defendant 3 entered the publishing company (trade name omitted) on January 1, 2003, and received the transfer of accounting-related affairs from around May 2003, and only dealt with the affairs of payment of royalties according to past practices, and there was no participation in the process of determining the affairs of payment of royalties. Thus, there was no conspiracy to commit the instant crime.

D. Defendants

(1) The Defendants paid only 1/3 of the total figures by the number of copies sold first in accordance with the agreement on the payment of royalties under the instant publication contract. After completing the cartoon or the publication contract of this case was concluded, the Defendants were merely intended to settle the remaining figures that were not paid to the victims at a certain point, and they did not intend to acquire them by fraud without paying it.

(2) The ex-factory list that the Defendants notified the victim is sent to the victim as data for the preferential payment of 1/3 of the total discount tax by the number of copies sold in accordance with the agreement on the payment of royalties under the instant publishing contract. As long as the victim was aware of this, there was no fact that the Defendants deceiving the victim, or the victim caused a mistake by deception of the Defendants.

(3) There is no act of disposal of the victim, which is a requirement for fraud, since the victim finally and conclusively exempted the Defendants from the obligation to pay unpaid taxes for the cartoons of this case or waived the obligation to pay unpaid taxes, and thus, the Defendants cannot be held liable for the crime of fraud.

(4) The non-payment of the cartoons of this case shall take place only when the cartoons of this case were completed or when the period of the publication contract of this case expires after a certain period of time, and thus, the settlement and payment shall not take place. Thus, the defendants shall not be held liable for the crime of fraud.

2. Determination

A. Determination as to the Defendants’ assertion that there was no conspiracy

(1) In relation to co-offenders who jointly process two or more persons in a crime, the conspiracy does not require any legal punishment, but is only a combination of intent to realize the crime by combining two or more persons in a crime. Even if there was no process of conspiracy, if there was a combination of intent to conduct the crime in order or impliedly, the conspiracy is established between several persons, and even if there was no direct participation in the conduct, even if there was no direct participation in the conduct, the conspiracy is held liable for criminal liability as a co-principal against the other person's conduct. Such conspiracy may be acknowledged in accordance with the circumstantial facts and empirical rules without direct evidence (see Supreme Court Decisions 2004Do482, Apr. 27, 2004; 2001Do606, Dec. 12, 2003, etc.).

(2) Determination as to Defendant 1

(5) According to the above evidence, Defendant 1, as the de facto operator of the cartoon of this case, was aware of the fact that he agreed to 7% of the fixed price according to the total number of copies published after the execution of the cartoon of this case. The above Defendant supplied the cartoon of this case to the publishing company (mutually omitted) and the paper necessary for the publication of the cartoon of this case. The Defendant received almost daily reports on the present status of the work related to the publication of the cartoon of this case, such as the entry and release of the cartoon of this case, and confirmed that the Defendant 1 would not be able to easily understand the amount of the Plaintiff’s duty to pay according to the publication of the cartoon of this case. However, Defendant 1 would not be able to obtain the direction of the publishing company of this case from 0, Defendant 2, who was in charge of the issuance of the cartoon of this case, and Defendant 1 would not be able to obtain the direction of the publishing company of this case from 0, Defendant 2, who was in charge of the issuance of the cartoon of this case.

(2) Judgment on Defendant 2

The following circumstances acknowledged by the evidence, i.e., (i) from around January 202, Defendant 2 received Defendant 1’s new shares, and (ii) from around January 2002 to work as a general manager, and (iii) from around that time, Defendant 2 took charge of accounting affairs, such as the funds and accounts of the publishing company. (iii) Defendant 2 obtained approval of the above documents from Defendant 3 and 1; (iv) Defendant 2 appears to have been able to easily calculate the amount of royalties to be paid to the victim as well as Defendant 2, since the sale of the cartoons of this case accounts for about 95% of the total cartoons published at the publishing company (trade name omitted); and (v) Defendant 2 did not perform the work of creating funds by omitting the sales performance from around 200 to the publishing company; and (v) Defendant 2 did not perform the work of distributing them to the victim’s share of this case after obtaining approval of the victim’s personal status from around 30, 2002.

(3) Judgment on Defendant 3

In light of the following circumstances acknowledged by the evidence, i.e., (mutually omitted) from January 202 to (mutually omitted) publishing companies, despite Defendant 1’s request, Defendant 3 took part in the overall management and inspection of the publishing companies; (ii) confirmed daily fund reports, replacement slips, and specifications of bills; and (iii) reported to Defendant 1 by Defendant 2’s superior with the post-approval of the work of Defendant 2; (iv) transferred personal data to Defendant 3 with the management and the victim’s personal data from around 202 to Defendant 1; and (iii) it appears that Defendant 3 did not have been able to have been aware of the fact that the victim’s previous work was not carried out by Defendant 1; and (iv) it appears that the victim’s payment was more easily carried out than that of Defendant 2, including the number of copies of the cartoons in question and the amount of payment of the cartoons in question.

B. Determination as to the assertion that the Defendants did not intend to acquire the personal seal

(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 of the crime, and the process of transaction before and after the crime, unless the defendant makes a confession (see Supreme Court Decision 97Do2630 delivered on January 20, 1998, etc.).

(2) In light of the following circumstances acknowledged by the aforementioned evidence, ① the total amount of 7% of the total prices of publication by the number of copies of the cartoons issued at each time the cartoons were published, and the balance shall be paid within one month after the publication (hereinafter “the provision on taxation”). However, as the number of copies is continuously increased after the publication of the cartoons, there were no problems such as the number of copies issued or the number of copies issued or the number of copies issued or the number of copies issued or the number of copies issued or the number of copies issued or the number of copies issued or the number of copies issued or the number of copies issued or the number of copies issued or the number of copies issued or the number of copies issued or the number of copies issued or the number of copies issued or the number of copies issued or the number of copies issued or the number of copies issued or the number of copies issued or the number of copies issued or the number of copies issued or the number of copies issued or the number of copies issued or the number of copies issued or the number of copies issued or the number of copies issued or the number of copies issued or the number of copies issued or copies shall be notified.

C. Determination as to the assertion that there was no mistake in the Defendants’ deception or the victim’s mistake

(1) The deception as a requirement for fraud refers to all affirmative and passive acts that have a good faith and sincerity to comply with each other in property transaction. It does not necessarily require false indication as to the important part of a juristic act, and it is sufficient to say that it is the basis of judgment for an actor to make a disposition of property which the actor wishes by omitting the other party into mistake (see Supreme Court Decision 2003Do7828, Apr. 9, 2004, etc.).

(2) In light of the above facts that the Defendants were exposed to the victim and the victim was unaware of the number of the cartoons issued by the Defendant, and the victim’s statement in the investigation agency and this court consistent with the facts that they were mistaken for the above Defendants, are specific and consistent (the witness’s opinion regarding the reduction of the number of cartoons was somewhat reversed). However, when Nonindicted 5 made the first instance prosecutor’s statement, it appears that the Defendants were unable to accurately state their opinions on the reduction of the number of cartoons issued by the Defendant, including Nonindicted 10 and Nonindicted 3, and that the victim was unaware of the number of cartoons issued by Nonindicted 5, the number of cartoons issued by the Defendants, and that the victim did not appear to have been aware of the number of cartoons issued by the Defendant, and that the victim did not appear to have been able to doubt the authenticity of the statements issued by the Defendant for the crime of this case. In addition, the victim did not appear to have been able to present the number of cartoons issued by the Defendant 1 and to have been paid for the following reasons.

D. Determination as to the assertion that fraud is not established due to the victim's dispositive act

(1) Fraud is established by deceiving another person to omit it in mistake and inducing such dispositive act to gain property and financial gains. Thus, the term "dispositive act" here means property dispositive act, and it requires subjectively that the defrauded has to recognize dispositive intent, namely, the consequences of the disposition, and objectively be controlled by such intent (see, e.g., Supreme Court Decisions 9Do1326, Jul. 9, 199; 87Do1042, Oct. 26, 1987; 87Do1042, Oct. 26, 1987). Meanwhile, in fraud as to financial gains, it constitutes an act of acquiring pecuniary advantage as well as an omission that does not exercise the right to claim as well as an act such as conclusion of a contract, provision of labor, and expression of intent to exempt debts. Therefore, it can be said that it is a dispositive act where the defrauded did not demand or demand the performance of a lump sum obligation as a result of mistake, but it does not have knowledge of the fact itself.

(2) In the instant case:

According to the evidence as seen earlier, ① the victim, under the agreement with the publishing company on the total amount of 7% of the fixed price by the number of copies published (trade name omitted) and entered into the publication contract of this case with the publishing company, and accordingly, the plaintiff of the cartoons of this case was written to publish them (trade name omitted). However, it was difficult to carry out the work of attaching revenue stamps rapidly increased, but the victim agreed to omit affixing revenue stamps upon the request of the publishing company (trade name omitted). ② Under the agreement with the publishing company not to affix revenue stamps, the victim could not accurately calculate the number of copies of the cartoons of this case and the number of copies of the cartoons of this case as stated in the delivery status table sent by the defendants by manipulating the number of copies published and sending them to the publishing company, and the defendants were arrested to have published the cartoons of this case as stated in the actual number of copies published, and the defendants were forced to receive the cartoons of this case for three years without being aware of the fact that the defendants were to receive the cartoons of this case.

According to the above facts, even though the victim did not explicitly waive the right to claim for the payment of royalties or exempt the defendants from his liability, the victim was in a situation where the victim was unable to exercise his right due to the mistake that the defendant did not know the existence of the right to claim for the payment of royalties. This constitutes a disposition of disposal by omission. Thus, the defendants and their defense counsel's assertion on this part shall not be accepted.

E. Determination as to the assertion that there is no property damage to the victim since the settlement period has not yet arrived

(1) The crime of fraud is established by deceiving another person to acquire property or pecuniary benefits based on the defective intent resulting from deception. The essence of fraud is the acquisition of property or pecuniary benefits by deception, and it does not require that the other party actually suffers property damage (see Supreme Court Decision 2003Do7828, Apr. 9, 2004, etc.).

(2) As seen earlier, as long as the Defendants deceptioned the actual number of publication copies of the cartoons of this case, and caused the victims to receive the total number of figures to be paid by the victims, and prevented the Defendants from claiming the remaining difference, thereby making the Defendants not paying the difference, the Defendants would be deemed to have already become guilty of fraud by acquiring property benefits equivalent to the said difference, and thus, the Defendants and their defense counsels’ assertion on this part is rejected.

1. Summary of this part of the facts charged (Defendant 1)

Defendant 1 paid KRW 112,410,00 to the victim at the office of the publishing company located in Jongno-gu Seoul Metropolitan Government (detailed omitted) from November 200 to June 2001. Since the actual number of publication copies of the cartoons of this case has reached KRW 760,00 as shown in the [Attachment 1] list, Defendant 1 obtained property benefits equivalent to the amount of KRW 112,410,00 by paying only KRW 339,790,000 by distributing the cartoons of this case without the victim’s seal of approval, by failing to pay KRW 339,790,000,000, which is the difference between the taxes to be paid according to the actual number of publication copies and the total number of those actually paid.

2. Determination

A. Among the evidence that correspond to the above facts charged, the following facts are admissible: (a) the details of the master's writing (the details of the publication and the amount of fraud, the amount of investigation records 1986 to 2030 pages) and each letter of delivery (the current status of acquisition of stamp books) bound on the public trial records are not consented to being admitted as evidence by Defendant 1; and (b) the authenticity of its establishment is not proven by the testimony of the maker, and all of them are inadmissible

B. Meanwhile, according to the entries and existing descriptions of (title omitted) Nos. 388 (No. 12), 2 books (title omitted), 65 books (title omitted), 58 books (title omitted), and 58 books (title No. 13), which are deemed as cartoons, were printed at least 26,05 of the instant cartoons for a period from November 200 to June 2001, and at least 26,005 of the entry was actually entered in the publication company, and (title omitted), and (3) the publication price of the instant cartoons was not set as 10 days prior to the publication of the instant cartoons, without considering that some of the publication was published as of the date prior to the publication of the instant cartoons.

However, under the following circumstances, ① before an agreement to omit stamp attachment was reached, the cartoons of this case printed and stored in the publishing company's warehouse prior to the conclusion of the agreement, or the cartoons of this case printed and printed in the printing office prior to the above agreement could have been distributed in the city without affixing stamp; ② No stamp is affixed on the original copy of the document which was given free of charge by the public prosecutor (name deemed as cartoons) 2 (No stamp No. 11) (No stamp is attached to the back of the book which was submitted by the public prosecutor (name deemed as cartoons) 2 (No stamp No. 11), the stamp is actually attached. ③ In light of the fact that the above facts charged cannot be ruled out solely on the ground that there was lack of evidence to acknowledge the possibility that the cartoons of this case, other than the 11st printing team continuously changed due to the negligence of work by the working personnel at the time, were published.

C. Therefore, as to this part of the facts charged in relation to Defendant 1, a not-guilty verdict should be made pursuant to the latter part of Article 325 of the Criminal Procedure Act because there is no proof of crime. However, as long as it is found guilty of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (

The crime of this case was committed by the Defendants by deceiving the number of copies actually published by sending the list of the delivery status which contains only one-third of the number of copies actually published to the victims, and by failing to pay taxes equivalent to the number of copies listed in the above list of delivery status to the victims (However, Defendant 2 and Defendant 3 participated only in approximately KRW 3.1 billion), the nature and circumstances of the crime are very serious, and there was no agreement with the victims. In particular, Defendant 1, as a major shareholder, at the same time as the actual operator of the publishing company, did not actually acquire profits from the crime of this case, but at the same time, was trying to conceal the crime of this case by transferring his liability to other employees or destroying related materials. Thus, it is inevitable to punish the Defendants accordingly.

However, Defendant 2 is the primary offender, Defendant 3 did not have any previous conviction other than the fine, Defendant 1 did not have any previous conviction, Defendant 3 deposited 3.7 billion won for the victim, in particular, Defendant 2 and Defendant 3 did not participate in the crime of this case in addition to monthly pay, and there is no particular benefit acquired from the crime of this case in addition to monthly pay, and the victim does not have any punishment for the above Defendants, and the punishment for the Defendants shall be determined by taking into account all the circumstances, such as the age, academic background, career, family environment, etc. of the above Defendants, and the execution of the punishment shall be suspended at once.

[Attachment Form 5]

Judges Lee Hyun-soo (Presiding Judge)