Defendant

Both parties

Kim Delay, the highest decoration, the confinement of the public (prosecutions), and the Kim Jong-chul (Trial)

Attorneys Kim Tae-tae (Korean)

Suwon District Court Decision 2014Gohap693 Decided February 16, 2016

The guilty part of the judgment of the court below and the part of the acquittal on the fraud against Nonindicted 7 shall be reversed.

A defendant shall be punished by imprisonment for three years.

The prosecutor's appeal on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) of December 3, 2010 and the fraud of December 29, 2010 is dismissed.

1. Summary of grounds for appeal;

A. Defendant

The sentence of the court below (two years and six months of imprisonment) is too unreasonable.

(b) Prosecutors;

1) misunderstanding of facts and misapprehension of legal principles

A) Regarding the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) of December 3, 2010 and the fraud of December 29, 2010

(1) The victim Nonindicted 2 and Nonindicted 4 offered a proposal to purchase land from Nonindicted 1 and the Defendant, etc. under the condition that they are engaged in a lifelong agriculture for the aged aged 70 years and lack knowledge of mortgage, superficies, etc. at the time, and created a mortgage or superficies with the intent to dispose of the land. Therefore, it should be deemed that there was an intention of the victims to dispose of the right to collateral security or superficies.

(2) Nevertheless, the court below found the victim non-indicted 2 and non-indicted 4 guilty on the ground that there is a lack of evidence to find that the victim's intent to dispose of the right to collateral security or superficies was to create a right to collateral security or superficies, or erred by misapprehending the legal principles.

B) As to the fraud against the victim Nonindicted 7

(1) The victim Nonindicted 7 had the intent to set up a right to collateral security necessary to borrow down the down payment of KRW 30 million, which belongs to the Defendant and Nonindicted 6, and in general, the right to collateral security was set up at a level equivalent to 120% of the amount of loan. Therefore, the victim Nonindicted 7 could have anticipated that the right to collateral security should be set up over the amount of loan. Nevertheless, if the victim Nonindicted 7 signed and sealed the documents for collateral security establishment without directly reviewing the relevant documents necessary for collateral security, if the victim Nonindicted 7 signed and sealed the documents for collateral security establishment, the victim Nonindicted 7 had the intention to explicitly set up the right

(2) Nevertheless, the court below erred by misapprehending the legal principles that the defendant and the non-indicted 6 obtained a loan of KRW 70 million from the defendant and the non-indicted 7 had no intention to take a disposition against the victim of the right to collateral security established.

2) Unreasonable sentencing

The sentence of the court below is unfair because it is too unhued.

2. Alteration of indictment by the public prosecutor, and matters to be tried by the court;

A. Of the facts charged in the instant case, the lower court acquitted the victim Nonindicted 2 of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against the victim Nonindicted 2 on December 3, 2010, ② fraud against the victim Nonindicted 2 and Nonindicted 4 on December 29, 2010, ③ acquitted the victim Nonindicted 7 on the fraud against the victim Nonindicted 7 on April 7, 201 (hereinafter only referred to as “the fraud committed on December 3, 2010”)

B. The prosecutor filed a motion to amend the Bill of Amendment to Bill of Indictment, which added the ancillary facts charged, with each of the facts charged by the court below, which found the Defendant not guilty, as the primary facts charged.

1) On December 3, 2010, with regard to fraud, Nonindicted 3, 1, 2010, Nonindicted 1, Nonindicted 10, Nonindicted 11, Nonindicted 12, and Nonindicted 13, who lent the money to Nonindicted 3, Nonindicted 10, Nonindicted 12, and Nonindicted 13, added “the facts charged regarding the forgery of private documents, the use of a falsified investigation document, the use of a falsified private electronic document, and the use of a false recorded electronic record.”

2) On December 29, 2010, with regard to fraud, the victim was changed to Nonindicted 5 who lent the money to Nonindicted 1, first and second, with regard to “a person who believed that the right to collateral security established on Nonindicted 2 and Nonindicted 4 was genuine,” and the facts charged regarding the forgery of private documents, the use of a falsified investigation document, the use of a public electronic record, and the use of a false and public electronic record.”

3) On April 7, 2011, with regard to fraud, the victim was changed to Nonindicted 9 who lent the money, as a preparatory basis, with the belief that the right to collateral security established on Nonindicted 7’s land was genuine.

C. On the fourth day of the trial of the trial, the court accepted the motion for “the change of the victim” in the conjunctive of the prosecutor’s amendment of the indictment as above. However, the court dismissed all the motion for “the fabrication of private documents, the use of a falsified investigation document, the use of public electronic records, and the addition of facts charged as to the use of false, false, and electronic records.”

D. As above, although this court added the object of the judgment by permitting a partial amendment of a bill of amendment, the prosecutor's assertion of misunderstanding of facts and misapprehension of legal principles as to the portion not guilty (which is the main charge due to the prosecutor's amendment of a bill of amendment to indictment) is still subject to the judgment of this court as the grounds for appeal. Thus, this court examines the main charge

E. In conclusion, the lower court rendered a not-guilty verdict, as follows: ① the fraud committed on December 3, 2010 and ② the primary facts charged and the ancillary facts charged on the fraud committed on December 29, 2010 are not constituted, or all the charges are not proven to have been acquitted. On the other hand, the primary facts charged regarding the fraud committed on April 7, 201 are not constituted, but the ancillary facts charged are found guilty on the proof of the crime.

3. Judgment on the misconception of facts and misapprehension of legal principles by the prosecutor on the primary facts charged

A. As to the fraud of December 3, 2010 and the fraud of December 29, 2010

(i) the basic facts

The following facts are acknowledged according to the evidence duly admitted and adopted by the court below.

A) Non-Indicted 2 owns five parcels of land (hereinafter collectively referred to as “non-indicted 2’s land”), including the area of 1,577 square meters prior to the wife population ( Address 1 omitted), the area of 869 square meters prior to ( Address 2 omitted), the area of 869 square meters prior to ( Address 3 omitted), the area of 1,370 square meters ( Address 4 omitted), the area of 12,812 square meters of forest land ( Address 5 omitted), and the area of 12,812 square meters (hereinafter referred to as “non-indicted 4”). Non-Indicted 4 owns land of 4,288 square meters of forest land ( Address 6 omitted) adjacent to the said land (hereinafter referred to as “non-indicted 4”).

B) As to each of the above lands of Nonindicted 2 and Nonindicted 4, the following mortgage or superficies was established (hereinafter “mortgage”) (where it is not necessary to distinguish the right to collateral security and superficies from the right to collateral security, etc., only “mortgage-backed mortgage, etc.

Details of the registration of the attached real estate contained in the main text, including the right holder of the right to the registration and other non-indicted 2’s land; the contract establishing the right to the mortgage as of December 3, 2010; the debtor; the non-indicted 300 million won of the maximum debt amount as of December 3, 2010; the debtor; the debtor; the non-indicted 10 million won of the maximum debt amount as of December 3, 2010; the debtor; the debtor; the non-indicted 11, and the non-indicted 12 (Joint Security; the non-indicted 200 million won of the maximum debt amount as of December 3, 2010; the contract establishing the right to the mortgage as of December 3, 2010 to the non-indicted 1,500,000 won of the maximum debt amount as of December 3, 201; and the term of the non-indicted 1,300,000 won of the land; and

2) Summary of this part of the facts charged

The representative director of Nonindicted Co. 17, the managing director, Nonindicted 14, Nonindicted 15, and Nonindicted 15, the managing director, and Nonindicted 1 et al., who had no occupation, are in progress, and the Defendant, etc., who had no intention or ability to purchase the land, purchased the land and developed the land as the site of electric source after obtaining permission or capacity to conduct land transaction permission, development permission, and division procedures, without any intention or capacity to purchase the land, and after obtaining a seller’s consent or capacity to do so, the victims’ land was purchased. The victims’ land was purchased after deceiving the victims who had no knowledge of business such as the provision of collateral and permission for land transaction, etc. by deceiving them as necessary documents for the land transaction permission, etc., and made them sign the documents, etc. for the establishment of a collateral security on the land by using the collateral security, and the Defendant

A) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) in December 3, 2010

On November 2010, Nonindicted 1, 14, and 15 proposed that the victim Nonindicted 2 purchase the land owned by the victim under the condition that the victim would pay the purchase price of KRW 2 billion, the down payment of KRW 300 million, and the remainder within four months after the completion of the civil engineering work, and received the consent of the victim.

On November 29, 2010, the aforementioned Nonindicted Party 1, etc., at the “○○ wave” office operated by Nonindicted Party 16, a credit business operator located in Seocho-gu Seoul Metropolitan Government, around November 29, 2010, and the victim Nonindicted Party 2 applied for a loan to Nonindicted Party 16, even though the above Nonindicted Party 1, etc. knew that it did not have any intent or ability to conduct land transaction permission, development permission and division procedures, etc., in order to develop the above land into a electric source house, the above land of approximately 5,906 square meters in the name of several persons, which is about 90 square meters, shall be subject to permission, and the purchase price may be paid after commencing the civil construction work. The aforementioned procedures shall be prepared for land transaction permission, development permission and division procedures, etc., and the fact that the Defendant received a request from Nonindicted Party 1, who was known in the ordinary sense, was aware that the above Nonindicted Party 1, etc. had no intention or ability to proceed with land transaction permission, development permission and division procedures.

On December 3, 2010, the Defendant and the aforementioned Nonindicted Party 1, etc. deceiving the victim as such, presented the right to collateral security and the right to collateral security that the victim prepared in advance to the victim at the △△ Man-dong located in the wife Kim Jong-dong on December 3, 2010, and explained that it is necessary for the land transaction permission, etc. explained by the said Nonindicted Party 1, etc., and received the signature from the victim who caused mistake on the right to collateral security and the right to collateral security contract, and received the certificate of seal impression and seal impression together with the certificate of seal impression, and borrowed KRW 70 million from the above Nonindicted Party 16.

Accordingly, in collusion with the above non-indicted 1, 14, and 15, the Defendant acquired property benefits equivalent to KRW 700 million from the victim.

B) Fraud on December 29, 2010

On December 29, 2010, Nonindicted 1: (a) explained the same purport as the above paragraph (1) to the victim Nonindicted 4; and (b) required the victim Nonindicted 2 to prepare for a certificate of seal imprint and a certificate of personal seal impression; (c) falsely speaks that Nonindicted 4’s land is possible to obtain land transaction permission and permission for development of Nonindicted 4’s land only with Nonindicted 2’s consent to the use of the land, as the franchise; (d) presented in advance a written agreement on the borrowed land that was prepared for the victims; and (e) deceiving the victims by deceiving the victims, such as having them sign the written agreement, having them sign the seal imprint and receive the certificate of personal seal imprint and the certificate of personal seal impression; and (e) the Defendant applied for a loan to Nonindicted 16, as

However, the defendant and the above non-indicted 1 et al. did not have the intent or ability to conduct the procedure of land transaction permission and development permission in order to purchase the land from the victim, and the documents signed by the victims were not documents necessary for land transaction permission, but the loan repayment agreement, etc. serving as the basis for establishing the right to collateral security.

The Defendant and the above Nonindicted Party 1, etc., by deceiving the victims as such, voluntarily signed on the loan repayment agreement by the victims, and obtained each seal imprint certificate and a certificate of the personal seal impression, set up a collateral on the same day with the maximum debt amount of KRW 180 million as joint collateral, and borrowed KRW 120 million from the above Nonindicted Party 16.

Accordingly, the Defendant, in collusion with the above Nonindicted 1, 14, and 15, acquired pecuniary benefits equivalent to KRW 120 million from the victims.

3) The judgment of the court below

In light of the circumstances revealed based on the evidence duly adopted and examined, the lower court determined that there was no evidence of criminal facts on this part of the facts charged on the ground that it was insufficient to recognize that Nonindicted 2 and Nonindicted 4 did not have disposal of Nonindicted 2 and Nonindicted 4 regarding the establishment of the right to collateral security, etc. on the ground that the evidence submitted by the prosecutor alone was insufficient to recognize that Nonindicted 2 and Nonindicted 4 had prepared a mortgage and a superficies contract with the intent to establish the right to collateral security and superficies on their land and forest land.

4) Determination of the immediate deliberation

A) Facts of recognition

The following facts are acknowledged according to the evidence duly admitted and examined by the court below.

① Around October 2010, Nonindicted Party 2 requested the purchase and sale of the land owned by the Nonindicted Party 2 to the △△ Real Estate located in Chungcheongnam-si. Nonindicted Party 1 found Nonindicted Party 2 around November 2010, and he suggested that he would purchase the said land as the owner of the housing site, who was the representative of Nonindicted Company 17.

② At the time, Nonindicted Party 1, in order to develop Nonindicted Party 2’s land located within the land transaction permission zone, is difficult to obtain land transaction permission. In order to develop it into a electric source housing zone, Nonindicted Party 1, in several names, obtained permission for development by dividing the amount into 900s. In addition, Nonindicted Party 1, who started the civil construction work and paid the purchase price, prepared a certificate of personal seal impression necessary for land transaction permission, permission for development, procedures for division, etc., and asked Nonindicted Party 2 to cooperate in preparing the documents necessary for

③ After consultation on the terms of sale as above, Nonindicted Party 1: (a) took Nonindicted Party 2 into consideration around November 29, 2010 to Nonindicted Party 16’s office, who is running a credit business in the name of “○○ wave” from Seoul Bungdong; (b) entered into a sales contract with the content that the said land was purchased at KRW 2 billion, and paid KRW 300 million as down payment at the time of entering into the contract. The said sales contract is a special agreement; and (c) the balance shall be paid within four months after the completion of the civil works. The seller provided a written consent to land use and a security necessary for the establishment of the land use by parcel three times at the time of the buyer’s request. The seller provided all necessary documents at the time of the construction permission and registration to the purchaser and the purchaser, and provided cooperation to the greatest extent possible. Meanwhile, Nonindicted Party 1 did not have Nonindicted Party 2 prepared a down payment with his signature and seal affixed to Nonindicted Party 2 as necessary documents for land transaction permission, etc., and did not receive the down payment.

④ Around December 3, 2010, Nonindicted 2 did not issue a certificate of the personal seal impression; Nonindicted 1, a certified judicial scrivener’s staff Nonindicted 1, and Nonindicted 2 had Nonindicted 2 move back to the △△ branch located in the Shindong-dong-dong-dong-dong-si-si-si, which was waiting for Nonindicted 16 and Nonindicted 18, etc. In that place, Nonindicted 1 entered into a sales contract to reduce the down payment to KRW 200 million with Nonindicted 2; and Nonindicted 2, a document that was prepared by Nonindicted 16 and Nonindicted 18, etc. as a document necessary for the application, etc. for land transaction permission, submitted various documents prepared by Nonindicted 16 and Nonindicted 18, etc.; and made Nonindicted 2 sign the said document at the location where Nonindicted 2 directed. Upon the preparation of these documents, Nonindicted 1 remitted KRW 200 million to the account of Nonindicted 2’s 19. After receiving the down payment in KRW 200 million, Nonindicted 2 gave a certificate of the personal seal impression to Nonindicted 1.

⑤ Meanwhile, Nonindicted Party 1 entered into a sales contract as above with Nonindicted Party 2 and asked Nonindicted Party 2 to introduce a person who would sell real estate in the vicinity. In response, Nonindicted Party 4 introduced Nonindicted Party 4’s land in contact with Nonindicted Party 2’s land as a franchise, and suggested Nonindicted Party 4 to purchase Nonindicted Party 4’s land as a site for electric source housing. Accordingly, Nonindicted Party 4 entered into a sales contract with Nonindicted Party 1 and Nonindicted Party 4 around December 24, 2010, selling its own land at KRW 165 million as a down payment, and selling its land at KRW 20 million as a down payment at the time of entering into the contract. The said sales contract is a special agreement, and the remaining money is paid within four months after the completion of the civil works, and the seller provides the buyer with a written consent and establishment of the land necessary for the use of the land on three occasions as to the said land at the time of the buyer’s request. The seller enters into a sale contract with the buyer and the purchaser’s land transaction permission and establishment as much as possible.

④ Nonindicted 1 also demanded Nonindicted 4 to provide the same explanation as indicated in the foregoing paragraph (2) and to prepare the seal imprint and a certificate of personal seal impression, and Nonindicted 2 also demanded Nonindicted 2 to prepare again a certificate of personal seal impression by stating that “it is possible to grant land transaction permission and permission for development of Nonindicted 4’s land use consent, etc. with Nonindicted 4’s land use consent, as the land was blind.” Accordingly, Nonindicted 2 and Nonindicted 4 prepared a certificate of personal seal impression and a certificate of personal seal impression on December 29, 2010, and provided the documents presented by Nonindicted 1, 16, and 18 with the knowledge of the documents necessary for land transaction permission, etc., and either sign the certificate of personal seal impression or deliver the certificate of personal seal impression and certificate of personal seal impression.

7) Nonindicted 1, 16, and 18 prepared the documents relating to the application for registration of collateral security, etc. by using the documents prepared by Nonindicted 2 and Nonindicted 4, or the seal imprint and certificate of personal seal impression issued by Nonindicted 2 and Nonindicted 4, and set up

④ After the end of January, 2011, Nonindicted Party 2 heard that the right to collateral security, etc. was established on Nonindicted Party 2’s land from a real estate agent in an unsound name, and confirmed a certified copy of the register, and became aware of the fact that the right to collateral security, etc. was established in the aggregate of the maximum debt amount of KRW 1.23 billion.

9) Accordingly, Nonindicted 2 immediately contacted Nonindicted 1, and around March 25, 2011, Nonindicted 2 and Nonindicted 1 drafted a new sales contract with the content that, as long as the said land was rescinded in the land transaction permission zone, it is necessary to revise the said sales contract as the said land is subject to a land transaction permission zone, and that, once the said land was rescinded, the said contract should be null and void, and that the said contract should be again concluded, the sales contract shall be set up at KRW 2 billion; however, the sales price shall be the same as an intermediate payment of KRW 1 billion until May 15, 201, and the remainder of KRW 80 million until June 15, 201.

(10) On the same day, Nonindicted Party 1, upon entering into a sale contract on November 29, 2010 as a premise for a land transaction permit, permission for development, consent to land use, and registration on division of land, was required by Nonindicted Party 1, while demanding the seller’s receipt of Nonindicted Party 2’s certificate of personal seal impression and seal impression in an unlawful procedure, affixed his seal impression on the contract and power of delegation on the mortgage contract and power of delegation. Nonindicted Party 2, by having Nonindicted Party 2 affix a seal impression to the land owned by Nonindicted Party 2 as the debtor, and made Nonindicted Party 3, etc. prepare the registration for establishment of a mortgage and a promissorysory note in this case’s total maximum debt amount of KRW 1.23 billion on the ground of each of the collateral security holders of Nonindicted Party 3, etc., and completed the registration for establishment of a mortgage and the registration for establishment of a mortgage in which Nonindicted Party 2 and Nonindicted Party 11 were to be revoked immediately in relation to the execution of the permission (the above written confirmation and confirmation of establishment of superficies).

⑪ 근저당권 등에 각 채무자로 등기된 피고인은, 2012. 7. 30.경 공소외 2, 공소외 4에게 ‘공소외 1은 공소외 2 토지를 담보로 대부업자 공소외 16에게 얼마를 대출받을 수 있는지 확인하고, 공소외 16이 7억 2,000만 원을 대여할 수 있다고 하자 공소외 1이 땅 주인을 데려올테니 아무 말 하지 말고 그냥 도장과 서류만 받아라. 땅 주인에게 우리가 다 설명해 놨고, 시골 노인네라 아무것도 모르니 그냥 빨리 도장을 달라고 하여 찍고 이름은 직접 쓰게 하라. 그러면 나머지는 다 알아서 처리할테니 말을 많이 하지 마라. 공소외 18에게도 아무 말 말고 그냥 시키는 대로 도장하고 서류만 받아라고 했다. 공소외 16과 공소외 18은 땅 주인에게 근저당권 설정 서류라는 것을 말하지 않았고 인감도장을 달라고 하여 찍었다. 땅 주인이 쉽게 속는 것을 확인하고 더 살 땅이 있느냐고 했는데 공소외 4의 땅이 있어 공소외 16에게 이를 담보로 추가로 돈을 빌렸고, 토지거래허가구역이고 맹지라 서류가 더 필요하다고 하여 인감도장과 인감증명서를 받았다’는 내용이 기재된 진술서(수사기록 1권 제635쪽)를 작성, 인증하여 교부하였다. 또한 피고인은 공소외 1로부터 2010. 10.경 1,000만 원을 차용한 적이 있어 그 변제 독촉에 시달려 오다가 공소외 1의 부탁으로 대출 관련 채무자의 명의를 빌려 준 것이라고 진술하고 있다.

① Nonindicted 2 and Nonindicted 4 asserted that Nonindicted 16, Nonindicted 16, Nonindicted 1, and Defendant, etc. were the documents necessary for land transaction permission and land division, and that they created the right to collateral security as above by using them. Nonindicted 16, Nonindicted 1, and Nonindicted 3, Nonindicted 10, Nonindicted 12, Nonindicted 13, and Nonindicted 5 were criminal charges against the persons holding the right to collateral security, including Nonindicted 3, Nonindicted 10, Nonindicted 11, Nonindicted 12, and Nonindicted 13, and Nonindicted 5 (Seoul Central District Court 201Ga107295). However, the lower court dismissed Nonindicted 1’s request on November 23, 2012, Nonindicted 10, Nonindicted 3, Nonindicted 10, Nonindicted 2, and Nonindicted 4, Nonindicted 10, and Nonindicted 10, Nonindicted 2, and Nonindicted 3, Nonindicted 10, and Nonindicted 3, on the grounds that they were not aware of their respective land transaction permission and the establishment of a sale agreement.

B) Determination

(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 act of dispositive act here means property dispositive act, and it requires that the defrauded, subjectively, recognizes the consequences of the dispositive act, namely, the consequences of the dispositive act, and there is an act that is objectively controlled by such intent (see Supreme Court Decision 87Do1042, Oct. 26, 1987, etc.).

(2) Even based on the facts charged in this part of the primary charges, since Nonindicted 1 and Nonindicted 4 had Nonindicted 2 and Nonindicted 4 establish a collateral on their own land as if they were subject to a land transaction permit, it is evident that Nonindicted 2 and Nonindicted 4 did not intend to conclude a contract to establish a collateral security, etc. on their own land. Moreover, in full view of the aforementioned facts recognized as well, Nonindicted 2 and Nonindicted 4 appears to have no reason to provide them with their own land as a collateral for the loans worth KRW 70 million and KRW 120 million as a security, the evidence submitted by the prosecutor alone cannot be deemed to have prepared a collateral security and a superficies creation contract with their own land and forests, and eventually, Nonindicted 2 and Nonindicted 4 did not intend to conclude a collateral security contract, etc. on their own land.

C) Therefore, with respect to the right to collateral security, etc. established on each land owned by Nonindicted 2 and Nonindicted 4, it cannot be deemed that there was a property disposal act of Nonindicted 2 and Nonindicted 4 in fraud, and thus, the Defendant’s act of creating a right to collateral security, etc. on each land owned by Nonindicted 2 and Nonindicted 4 does not constitute fraud. Thus, the primary facts charged in the instant case shall be deemed not guilty pursuant to the former part of Article 325 of the Criminal Procedure Act (see Supreme Court Decision 87Do1042, supra, regarding the fact that the victim’s disposal act is not recognized, the crime of fraud is not established in the event that the victim’s disposal act is not established). However, the lower court’s judgment not guilty under the latter part of Article 325 of the Criminal Procedure Act because there is no proof of a crime against the facts charged in this part of fraud, but it does not affect the original judgment

B. As to the fraud on April 7, 201 (victim Nonindicted 7)

(i) the basic facts

The following facts are acknowledged according to the evidence duly admitted and examined by the court below.

A) Nonindicted 7 owned a forest land of 635 square meters (hereinafter “Nonindicted 7”) with the wife population ( Address 7 omitted) in Chungcheongnam-si (hereinafter “Nonindicted 7”).

B) As to Nonindicted 7’s land, the following mortgage was established.

The details of the registration of the attached real estate contained in the main text and other matters shall be KRW 30 million,00,000,000,000,000,000 from April 7, 201, the maximum debt amount of the contract concluded on April 7, 201, the debtor, the defendant, the mortgagee of the right to collateral security, the debtor, the defendant, and the mortgagee of the right to collateral security, as well as the non-indicted 9.

2) Summary of this part of the facts charged

Defendant and Nonindicted 6: (a) had the victim Nonindicted 7 (years 62) borrow money as collateral; (b) had the victim Nonindicted 7 use the above land as collateral to pay the down payment; and (c) had the proxy letter received the other proxy letter, and had the victim Nonindicted 7 know about the right to receive the loan; and (d) had the victim Nonindicted 7 aware of the fact that the victim Nonindicted 6 would receive the loan, and had the victim gather the name necessary for the contract.

On April 5, 2011, the defendant and non-indicted 6 made a false statement to the victim non-indicted 7 that "on the security of the real estate in question, if the real estate was sold at KRW 300 million, it would be lent to use it, and the remainder KRW 270 million will be paid by June 15, 201." However, the defendant and non-indicted 6 did not intend to purchase the real estate of the victim non-indicted 7.

Defendant and Nonindicted 6, as such, by deceiving Nonindicted 7 of the victim Nonindicted 7 and deceiving the victim, took over documents on the said land from Nonindicted 7 on April 7, 201, and took out loans KRW 100 million from the bondholder, after setting up the right to collateral security on the said land.

As a result, the Defendant and Nonindicted 6 conspiredd with the above KRW 100 million, and acquired the remainder of KRW 70 million, excluding KRW 30 million, which was delivered to Nonindicted 7.

3) The judgment of the court below

In light of the circumstances revealed by the evidence duly admitted and examined, the lower court determined that there was no proof of criminal facts on this part of the facts charged on the ground that it is difficult to find that Nonindicted 7’s disposal act was committed on the ground that the evidence submitted by the prosecutor was insufficient to recognize that Nonindicted 7 had prepared an application for registration of the establishment of the right to collateral security with the intent to additionally establish the right to collateral security other than the right to collateral security established by the Defendant

4) Determination of the immediate deliberation

A) Facts of recognition

According to the above evidence, the following facts are acknowledged.

① Nonindicted 7 requested Nonindicted 20 who had been engaged in real estate brokerage to sell his own land, and Nonindicted 6 asked Nonindicted 21 to find out the land that he would purchase to Nonindicted 21. Nonindicted 21 asked Nonindicted 20. Nonindicted 20 asked Nonindicted 20, and Nonindicted 20 introduced Nonindicted 7 land to the Defendant and Nonindicted 6 through Nonindicted 21.

② The Defendant and Nonindicted 6 collected the remaining money excluding the down payment of KRW 30 million as security after borrowing KRW 100 million from the instant land.

③ On April 4, 2011, Nonindicted 6 asked Nonindicted 8 to “whether or not the Defendant may lend money as security to the Defendant’s construction.” Nonindicted 8, along with the Defendant and Nonindicted 6, set up the land of Nonindicted 7, and Nonindicted 8 and Nonindicted 9 decided to lend KRW 100 million in total to the Defendant as security each of Nonindicted 7’s land.

④ On April 5, 2011, the Defendant and Nonindicted 6 met with Nonindicted 7 and Nonindicted 20, and Nonindicted 6 proposed that Nonindicted 7 sell Nonindicted 7’s land in KRW 300 million, and that Nonindicted 6 tried to build a new construction project on Nonindicted 7’s land. There is a separate person who invests the construction cost, and that the sales contract and the documents establishing a right to collateral security are required to receive down payment, and Nonindicted 7 received them.

⑤ On April 7, 2011, the Defendant and Nonindicted 6 met with Nonindicted 7 and Nonindicted 20, etc., and the Defendant concluded a sales contract with Nonindicted 7 to purchase Nonindicted 7’s land at KRW 300 million (contract amounting to KRW 30 million and remainder KRW 270 million).

(6) On the other hand, upon Nonindicted 8’s request, Nonindicted 22, an employee of the certified judicial scrivener office, prepared in advance an application for the establishment of a collateral security with the maximum debt amount of Nonindicted 7’s land, which is KRW 30 million, the debtor, and Nonindicted 8, the debtor, and the mortgagee of the right to collateral security, the maximum debt amount of KRW 120 million, the debtor, the defendant, and Nonindicted 9, and entered into the contract for the establishment of a collateral security with the intent to conclude the said transaction. In preparation for each of the above documents, Nonindicted 8 and Nonindicted 9, on behalf of Nonindicted 7, set up a collateral security on behalf of Nonindicted 7.

7) After that, Nonindicted 8 remitted KRW 30 million to Nonindicted 7 in the name of Nonindicted 34, and Nonindicted 8 paid the Defendant a provisional amount of KRW 60 million with the exception of prior interest and the cost of establishing the right to collateral security.

B) Determination

(1) In the facts charged, as the Defendant and Nonindicted 6 set up a mortgage of KRW 30 million on the land owned by Nonindicted 7 as if they set up a mortgage of KRW 100 million in itself, and received a loan of KRW 100 million as security. Thus, it is evident that Nonindicted 7 did not intend to establish a mortgage of KRW 100 million on the land owned by it, and that Nonindicted 7 did not have an intention to conclude a mortgage contract of KRW 100 million on the land owned by him even in light of the above facts.

(2) If so, it cannot be said that there was a property disposal act of Nonindicted 7 regarding the right to collateral security established on the land owned by Nonindicted 7, and thus, the act of Defendant and Nonindicted 6’s establishment of collateral security on the land owned by Nonindicted 7 does not constitute fraud. Thus, the primary facts charged of this case are not guilty in accordance with the former part of Article 325 of the Criminal Procedure Act. Nevertheless, the lower court’s judgment not guilty under the latter part of Article 325 of the Criminal Procedure Act on the ground that there was no proof of a crime of fraud in this part of the facts charged of fraud does not affect the conclusion, but it does not affect the conclusion. Accordingly, the Prosecutor’

C. Sub-decision

In the end, the prosecutor's assertion of misunderstanding of facts and misunderstanding of legal principles about the acquittal portion in the original trial is without merit.

4. As to the ancillary charges added at the trial of the political party

A. As to the fraud of December 3, 2010 and December 29, 2010

1) Summary of the facts charged in this part of the preliminary charges

Nonindicted 1, Nonindicted 14, the representative director of Nonindicted Company 17, Nonindicted 15, the managing director, Nonindicted 15, and Nonindicted 1, the Defendant, etc., who had no certain occupation, purchased the land, obtained land transaction permission, obtained permission for development activities, and accessed the seller to develop it as the site of electric power. After deceiving the seller who has no knowledge of business, such as the provision of collateral and permission for land transaction, etc., by engaging in daily and daily agriculture, as if he were necessary documents for land transaction permission, etc., the seller should sign the documents, etc. on the establishment of a right to collateral security on the land. Using these documents, the Defendant borrowed funds from the victims who are the bonds company, borrowed funds from the

A) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) in December 3, 2010

On November 2010, Nonindicted 1, 14, and 15 entered into a sales contract with Nonindicted 2 on the condition that the said Nonindicted 2’s land would be purchased within four months after the completion of the civil engineering work, on condition that the purchase price is KRW 2 billion, the down payment is KRW 300 million, and the remainder would be paid within four months after the completion of the civil engineering work.

On November 29, 2010, Nonindicted Party 1 and Nonindicted Party 16, the credit service provider, etc., obtained a certificate of personal seal impression and a certificate of personal seal impression from Nonindicted Party 2 at the △△○○○-dong located in the Seocho-gu Seoul Metropolitan Area, and from Nonindicted Party 2, Nonindicted Party 2 received a certificate of personal seal impression and a certificate of personal seal impression from Nonindicted Party 2, as it is necessary documents for the land transaction permission, development permission and division procedure, etc., as if the land transaction permission, development permission and division procedure were completed, in order to develop the above land into a unit of house in the location within the zone of land transaction permission.

On the same day, when the Defendant applied for a loan to the victims who are the bond company through Nonindicted 16, the Defendant submitted the above mortgage contract, power of attorney, confirmation document, etc. as if he obtained the consent from the above Nonindicted 2 in connection with the loan, and received the said Nonindicted 2’s land as collateral from the victim Nonindicted 3, KRW 30 million from the victim Nonindicted 10, KRW 11, and KRW 100 million from the victim Nonindicted 12, KRW 100,000 from the victim Nonindicted 11, and KRW 100,000 from the victim Nonindicted 13.

Accordingly, the Defendant, in collusion with Nonindicted 1, 14, 15, and 16, received property from the victims by deceiving the victims.

B) Fraud on December 29, 2010

On December 2010, Non-Indicted 1 entered into a sales contract with Non-Indicted 4 to purchase the above Non-Indicted 4’s land at KRW 165 million and down payment KRW 20 million with Non-Indicted 4.

On December 29, 2010, Nonindicted 1 and Nonindicted 16: (a) around December 29, 2010, Nonindicted 4 entered Nonindicted 4’s signature in a mortgage contract, a proxy form necessary for filing an application for land transaction permission, permission for development activities, and a written confirmation; and (b) Nonindicted 2 stated that “it is possible to grant land transaction permission and permission for development activities on Nonindicted 4’s land with a written consent to the use of the land owned by Nonindicted 4, as if the land owned by Nonindicted 4 was written by Nonindicted 2, and obtained a seal imprint and a certificate of seal impression from Nonindicted 4 and Nonindicted 2, as if the land was necessary for the written consent to the use of the land.” (c) Nonindicted 4 obtained a signature from Nonindicted 4 and Nonindicted 2 as if the land was written consent to the use of the land.

On the same day, the Defendant filed an application for a loan with the victim Nonindicted 5, who was a bonds company via Nonindicted 16, and submitted as if the above written contract to establish collateral security was approved by Nonindicted 4 and Nonindicted 2 regarding the loan, and received KRW 120 million from the victim’s land as collateral and received KRW 120 million from the victim’s agricultural bank account in the name of the Defendant as loan.

Accordingly, the Defendant, in collusion with Nonindicted 1, 14, 15, and 16, received property from the victim by deceiving the victim.

2) Determination

A) In a criminal trial, the conviction of guilt ought to be based on evidence of probative value, which leads a judge to have a conviction that is beyond a reasonable doubt, to such a degree that the facts charged are true. Therefore, in a case where the prosecutor’s proof fails to sufficiently reach the degree that such conviction would lead to a conviction, the determination ought to be based on the defendant’s benefit even if there is suspicion of guilt (see Supreme Court Decision 201Do15767, Feb. 13, 2014, etc.).

B) In collusion with Nonindicted 1, Nonindicted 14, Nonindicted 15, and Nonindicted 16, the ancillary charge of this part of the preliminary charge is that the Defendant submitted to Nonindicted 3, Nonindicted 10, Nonindicted 11, Nonindicted 12, and Nonindicted 13 the “through Nonparty 16”, who is a corporate bond business operator, as if he obtained Nonindicted 2’s consent, and submitted the collateral-related documents, such as a written mortgage contract, power of attorney, and confirmation document prepared by Nonindicted 2, as if he had been subject to Nonindicted 2’s consent. The said Nonindicted 2 acquired the total amount of KRW 70 million as collateral, and ② submitted to Nonindicted 5, who is the corporate bond business operator, the document related to the security, such as the mortgage contract, written by Nonindicted 2 and Nonindicted 4, as he obtained the consent of Nonindicted 4 and Nonindicted 2, and acquired the said Nonindicted 4 and Nonindicted 2’s land as collateral in the amount of KRW 120 million from

C) As to the right to collateral security established on Nonindicted 2 and Nonindicted 4’s land, it is doubtful that Nonindicted 16 did not know that the aforementioned loan documents prepared by Nonindicted 2 and Nonindicted 4, including the right to collateral security, the power of attorney, and written confirmation, were necessary documents for land transaction permission or land division, etc. Furthermore, considering the aforementioned facts and the degree and developments of Nonindicted 16’s participation in the establishment of each right to collateral security, etc., in which Nonindicted 16 was prepared at the initiative of Nonindicted 16, the relationship between Nonindicted 16 and Nonindicted 16, and Nonindicted 16 and Nonindicted 3, and the outcome of the relevant civil litigation on each right to collateral security, etc., it is difficult to conclude that Nonindicted 16 did not have known that the aforementioned loan documents prepared by Nonindicted 2 and Nonindicted 4 were not prepared by their genuine intent. Furthermore, in light of the evidence as seen earlier, Nonindicted 16, Nonindicted 14, and Nonindicted 15, and Nonindicted 1315 were not prepared in collusion with the public prosecutor, Nonindicted 15, and the victim.

① In spite of the fact-finding process, the prosecutor does not submit as evidence the statements of Nonindicted 3, Nonindicted 10, Nonindicted 11, Nonindicted 12, Nonindicted 13, and Nonindicted 5, the victims of the injury as indicated in this part of the facts charged. In this regard, the prosecutor’s proof on this part is insufficient.

② Nonindicted 2 and Nonindicted 4 loaned money to Nonindicted 16, Nonindicted 10, Nonindicted 10, Nonindicted 12, Nonindicted 13, and Nonindicted 5, as well as Nonindicted 10, Nonindicted 2, Nonindicted 10, Nonindicted 2, Nonindicted 10, Nonindicted 10, Nonindicted 2, and Nonindicted 5, who were the right to collateral security (hereinafter “Nonindicted 1, Nonindicted 2, Nonindicted 16, Nonindicted 2, and Nonindicted 2, who were the right to collateral security (hereinafter “the right to collateral security”) to Nonindicted 10, Nonindicted 2, Nonindicted 16, Nonindicted 10, Nonindicted 2, and Nonindicted 5, who were the right to collateral security (hereinafter “Nonindicted 2, Nonindicted 16, Nonindicted 16, Nonindicted 16, who was the right to collateral security (hereinafter “the right to collateral security”), and Nonindicted 16, who was the right to collateral security (hereinafter “the right to collateral security”) was established and deposited to Nonindicted 16, 2016, Nonindicted 16.

③ Nonindicted 16 stated that Nonindicted 3, Nonindicted 24, Nonindicted 25, and Nonindicted 26, etc., who traded money with Nonindicted 16, also made a statement consistent with the above Nonindicted 3, Nonindicted 12, and Nonindicted 5, who stated that they lent money to Nonindicted 3, Nonindicted 16, and Nonindicted 26. In other words, Nonindicted 24 made a statement that “ Nonindicted 16, while engaging in credit business, the bank would give more interest than 16, and would make a collateral security for it.” Nonindicted 25 also lent money to Nonindicted 3, Nonindicted 16, Nonindicted 16, Nonindicted 26, Nonindicted 16, Nonindicted 26, Nonindicted 16, Nonindicted 16, Nonindicted 26, Nonindicted 3, Nonindicted 16, Nonindicted 16, Nonindicted 26, Nonindicted 16, Nonindicted 26, Nonindicted 16, Nonindicted 3, and Nonindicted 26, Nonindicted 16, Nonindicted 3, and Nonindicted 16, Nonindicted 3, and Nonindicted 16, Nonindicted.

④ There is no fact that Nonindicted 3, 10, 11, 12, 13, and 5, etc. directly negotiated with Nonindicted 2 and Nonindicted 4 at the time of establishing each right to collateral security, etc. on the land between Nonindicted 2 and Nonindicted 4, and there was no fact that they had negotiated or met with the Defendant even at the time of lending the money to the Defendant as collateral. The work related thereto was entirely led by Nonindicted 16.

⑤ On the other hand, with respect to the operation method of the ○○○ wave, Nonindicted 16 stated that: (a) the creditor and the debtor were introduced; and (b) Nonindicted 16 received fees from both parties; (c) and (d) Nonindicted 27, who introduced Nonindicted 3, etc. to Nonindicted 16, stated that “ Nonindicted 16 received 10% of the total amount of the loan; (d) 5% of the fee; (e) 3% of the fee; and (e) 2% of the fee; and (e) 3% of the fee; and (e) 2% of the fee; and (e) the creditor who granted the loan to Nonindicted 16, who granted the loan to Nonindicted 3, etc., managed the loan relationship by himself, such as direct payment of interest, etc. from the debtor while operating the ○○ wave” (Article 1690 of the Investigation Record). Meanwhile, Nonindicted 16 stated to the effect that “Nonindicted 16 was managed by himself.”

(6) The facts charged are premised on the fact that the victims have lent money to the defendant. However, in light of the above three or five points, it is difficult to confirm whether the victims have invested or lent funds to the non-indicted 16, who is engaged in the bond business, or not, unless otherwise, lent money to the defendant through the mediation of the non-indicted 16.

7) In addition, in any of the above cases, the victims may be aware that they were prior to a continuous transaction with Nonindicted 16, or that they were parties to the transaction of loan brokerage. It is difficult to find reasons to easily understand why Nonindicted 16 attempted to obtain the money from the victims in such relationship. Nonindicted 16 appears to have been a witness for the victims in the relevant civil litigation, and consistently asserted that the right to collateral security, etc. established on Nonindicted 2 and Nonindicted 4 was genuine. In this regard, it cannot be readily concluded that Nonindicted 16 acquired the money from the victims in collusion with the Defendant solely on the basis that it was doubtful that Nonindicted 16 was not aware that the documents related to the loan, such as the mortgage contract, prepared by Nonindicted 2 and Nonindicted 4, submitted by Nonindicted 16, including Nonindicted 1, etc., and Nonindicted 4, were not attributable to the genuine intent of Nonindicted 2 and Nonindicted 4.

7. In addition, it is natural that the ancillary charge cannot be viewed as unconditional because it is not recognized as the primary charge.

D) If so, the evidence of the submission of the prosecutor alone cannot be deemed to have been proven beyond a reasonable doubt as to this part of the facts charged.

B. As to fraud on April 7, 201

1) Summary of the conjunctive charge

Defendant and Nonindicted 6, who did not intend to purchase the land owned by Nonindicted 7, committed as if they would purchase the land owned by Nonindicted 7 in KRW 300 million, prepared a sales contract, and paid the down payment by lending Nonindicted 7’s money to Nonindicted 7 as security, and received a seal imprint certificate from him, and forged documents such as power of attorney for additional security in addition to the security documents for the down payment. However, Nonindicted 6 was willing to take charge of the contract with Nonindicted 7 and the Defendant provided the name necessary for the contract.

On April 5, 2011, the Defendant and Nonindicted 6, as well as Nonindicted 7, prepared a sales contract on Nonindicted 7’s land at the mutually influent restaurant located in the wife population, and between Nonindicted 6 and Nonindicted 7, suggested that Nonindicted 7 “The creation of a right to collateral security on KRW 30 million has been required, so that the forest of the Party would be offered as security.” On April 7, 2011, at the public service center of the △△△△ City located in the wife population, Nonindicted 6 received his seal impression from Nonindicted 7 to Nonindicted 22, who had the employees of the certified judicial scrivener office, affix the down payment to Nonindicted 30 million won and the maximum debt amount of KRW 120 million to obtain additional loans, and presented it to Nonindicted 8 as collateral for the construction of the forest and forest as security.”

However, in fact, the defendant and the non-indicted 6 obtained the consent of the non-indicted 7 to offer the above land as security for the down payment of KRW 30 million and did not receive any consent of the offer of security for borrowing additional money.

Accordingly, the Defendant and Nonindicted 6 conspiredd with Nonindicted 7, thereby deceiving Nonindicted 9 of the victim through Nonindicted 8 by forging or exercising the documents related to the creation of the right to collateral security with Nonindicted 7, as seen above, and obtained KRW 80 million from the victim as the loan money on the same day and acquired it by deception.

2) Determination

A) 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 is sufficient to say that it does not necessarily require false indication as to the important part of a juristic act, and it is the basis of judgment for an actor to make a disposition of property which the other party wishes by omitting the other party. Therefore, in a case where it is recognized that the other party to the transaction would not have been engaged in the transaction in question if he was notified of certain circumstances, he/she has a duty to notify the other party of such circumstances in advance in accordance with the principle of trust and good faith. Nevertheless, the failure to notify the other party of the fact that it would have been notified, thereby deceiving the other party, thereby constituting fraud. In addition, fraud is a crime established by deceiving the other party to acquire property or pecuniary benefits from the defective intent resulting therefrom, and its essence is the acquisition of property or pecuniary benefits from deception, and it does not require real damage to the other party (see, e.g., Supreme Court Decision 2004Do7838, Apr. 29, 2004).

B) Examining the instant case in light of the aforementioned legal principles, there is evidence of crime as to this part of the facts charged, since there is evidence of reinforcement of the Defendant’s confession, such as the relationship between the Defendant and Nonindicted 6’s testimony, etc. in the lower court’s witness.

5. Conclusion

A. Accordingly, the lower court acquitted the Defendant on the following facts: (a) the Defendants’ primary charges pertaining to the fraud committed on December 3, 2010 and the fraud committed on December 29, 2010 did not constitute a crime; and (b) the ancillary charges pertaining to the fraud did not constitute a crime; and (c) the primary charges pertaining to the fraud committed on April 7, 201 do not constitute a crime; (b) however, the primary charges pertaining to the fraud committed on December 7, 201 do not constitute a crime; (c) the ancillary charges are found guilty on the proof

B. Ultimately, the lower court’s decision that acquitted each of the primary charges is justifiable, and there is no error of misunderstanding of facts or misunderstanding of legal principles alleged by the prosecutor in the grounds for appeal: Provided, That the primary charges with respect to the fraud of April 7, 2011 are reasonable, and the primary charges with respect to the same body are the ancillary charges, and this part shall be sentenced to a single sentence in relation to the remaining criminal facts and concurrent crimes under the former part of Article 37 of the Criminal Act, which the lower court found guilty. Therefore, the part of the lower judgment that acquitted the primary charges of April 7, 2011 cannot be maintained.

C. Therefore, the judgment of the court below is reversed, and the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act, and the prosecutor's appeal concerning the remaining primary facts cannot be accepted, and the appeal by the prosecutor is dismissed pursuant to Article 364(4) of the Criminal Procedure Act, since there are grounds for reversal of the aforementioned part of the judgment of the court below as to the acquittal of primary facts as to April 7, 201.

The reasons for this part are as follows, except for adding the following criminal facts against the victim non-indicted 9 recognized in the above 4-B, and therefore, this part of the judgment of the court below is identical to the corresponding part of the judgment below. Thus, it is accepted by Article 369 of the Criminal Procedure Act

【Additional Crime】

Defendant and Nonindicted 6, despite Nonindicted 7’s intention to purchase a forest land of KRW 635 m2,00,00 for the disposal of the said land to Nonindicted 7 without any intention to purchase the forest land of KRW 305 m2,00,000, was prepared as if they were to purchase the said land to Nonindicted 7, and the sales contract was made, and the said land was leased the said land as security and paid the down payment by forging documents, such as a letter of delegation for additional security, other than the security documents for the loan of the down payment, and Nonindicted 6, who was in charge of the contract with Nonindicted 7 and the Defendant conspired to provide the name necessary for the contract

On April 5, 2011, the Defendant and Nonindicted 6, as well as Nonindicted 7, prepared a sales contract on the said land at a mutually influent restaurant located in the wife population, and between Nonindicted 6 and Nonindicted 7, the Defendant proposed to Nonindicted 7 that “The creation of a right to collateral security on KRW 30 million has been required, so that the forest of the Party may be offered as security.” On April 7, 2011, at the public service center of the △△△△ City located in the wife population in Yongsan-si. Nonindicted 6 received his seal impression from Nonindicted 7 to Nonindicted 22, who had the staff of the certified judicial scrivener office receive his seal impression from Nonindicted 6, and had him affix his seal on the security document to obtain a down payment of KRW 30 million and the maximum debt amount of KRW 120 million to obtain additional loans, and presented it to Nonindicted 8, a corporate bonds business operator, and lent it to Nonindicted 6 as security.”

However, in fact, the defendant and the non-indicted 6 obtained the consent of the non-indicted 7 to offer the above forest as security for the down payment of KRW 30 million and did not receive any consent of the offer of security for borrowing additional money.

Accordingly, the Defendant and Nonindicted 6 conspiredd with Nonindicted 7, thereby deceiving Nonindicted 9 of the victim through Nonindicted 8 by forging or exercising the documents related to the creation of the right to collateral security with Nonindicted 7, as seen above, and obtained KRW 80 million from the victim as the loan money on the same day and acquired it by deception.

In this part, the reasoning for this Court is as follows, except for adding the following evidence as evidence of the crime against the victim non-indicted 9, which was additionally recognized as evidence for the crime of the victim non-indicted 9, and therefore, this part of the judgment below is identical to the corresponding part of the Criminal Procedure Act.

【Abstract of Additional Evidence】

1. The defendant's oral statement in court;

1. Part of the legal statement of Nonindicted 6

1. Some statements among the suspect interrogation protocol on Nonindicted 6 by the prosecution

1. Each police interrogation protocol against Nonindicted 22 (including the statements made by Nonindicted 7, Nonindicted 8, and Nonindicted 20)

1. Each police protocol on Nonindicted 7, Nonindicted 21, and Nonindicted 8

1. A certified copy of the real estate register, special agreement made pursuant to a real estate sales contract, application for registration of establishment of neighboring mortgage, each receipt and promissory note, and each loan agreement

1. Each investigation report (the sequence 4 through 7, 32 of the evidence list Nos. 2015, 57);

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

Articles 347(1) and 30(2) of the Criminal Act, Articles 328(1), 229, 228(1), and 30(2) of the Criminal Act, Article 31 of the Criminal Act, Article 231 and Article 30(a) of the Criminal Act, Article 234, Articles 231 and 30(a) of the Criminal Act, Article 234, 231, and 30(a) of the Criminal Act, Article 228(1), and 30(a) of the Criminal Act, Article 229, Article 228(1), and 30(a) of the Criminal Act, Article 347(1)(a) of the Criminal Act, Article 347(2) of the Criminal Act (a) of the Criminal Act, Article 35(1)(b) of the Criminal Act, Article 35(1) of the Criminal Act, Article 35(2) of the Criminal Act’s selection of punishment.

1. Aggravation for concurrent crimes;

Article 37 former part of Article 37, Article 38 (1) 2, and Article 50 (Aggravation of Concurrent Crimes with Punishment and Punishment provided for in Fraud against Non-Indicted 31 who is the most severe victim)

1. The scope of applicable sentences: Imprisonment for one month to 15 years;

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

(a) Note 5) Fraud

[Determination of Punishment] Form 1 (less than KRW 100,00) of the Organizational Fraud Act>

【Special Convicted Person】

[Decision of Recommendation] Basic Field

[Scope of Recommendation] Imprisonment of 1 year and 6 months to 3 years

(b) Crimes of forging private documents and uttering of falsified private documents;

[Determination of Punishment] Forgery, Alteration, etc. of Private Document Crime Group :

【Special Convicted Person】

【Determination of Recommendation Area】 Basic Area

[Scope of Recommendation] Six months to two years of imprisonment

(c) Crimes of false entry into public electronic records, etc. and uttering of false entry into public electronic records;

[Determination of Punishment] Type 1 (Non-business, Non-Organization) of the Act on the Forgery, Alteration, etc. of Official Document Crime Group :

【Special Convicted Person】

【Determination of Recommendation Area】 Basic Area

[Scope of Recommendation] Imprisonment from 8 months to 2 years

(d) Embezzlement;

[Determination of Punishment] Type 1 (less than KRW 100 million) for Embezzlement/Misappropriation Crime Group 1

【Special Convicted Persons】 Members not subject to punishment

[Determination of the Recommendation Area] Reduction Area

[Scope of Recommendation] Imprisonment from one month to ten months

3. Determination of sentence;

The Defendant, along with Nonindicted 1, by deceiving the victim Nonindicted 28, provided the victim Nonindicted 28 and Nonindicted 29’s land as security by taking money from the bonds company. The Defendant forged the power of attorney with Nonindicted 6 to set up a false mortgage on the land of Nonindicted 7, thereby deceiving the victim Nonindicted 9, thereby deceiving the victim Nonindicted 30, thereby inducing the joint and several sureties by taking money from the bonds company. The Defendant, by taking money from the bonds company, got the victim Nonindicted 31 to provide the victim’s land as security. In addition, the Defendant stolen KRW 40 million from the victim Nonindicted 32, and embezzled the sales proceeds of Nonindicted 33.

Although the Defendant had been convicted of a similar crime due to a crime committed several times, the Defendant committed each of the instant crimes even during the period of probation, and committed a similar crime against the other victims even while receiving an accusation from the victim Nonindicted 30, etc. In addition, each of the instant crimes committed by the Defendant is very planned and secret, and the amount of damage is also reasonable. In light of the above, the Defendant needs to be punished corresponding thereto.

However, the circumstances favorable to the Defendant may be considered as follows: (a) the Defendant led to the confession of most of the instant crimes; (b) there was an agreement with some victims, such as the victim Nonindicted 31, Nonindicted 33, and the smooth agreement with Nonindicted 33, etc.; and (c) there was an agreement with the victims.

In addition to the above circumstances, the defendant's age and character, motive of the crime, circumstances after the crime, and the scope of the recommended sentencing guidelines set by the Supreme Court's sentencing guidelines shall be determined as ordered by taking into account all the circumstances.

The summary of the facts charged as to the fraud against the victim non-indicted 7 is the same as the above 3-B(2). This part of the facts charged constitutes a crime as seen earlier, and thus, the innocence should be pronounced pursuant to the former part of Article 325 of the Criminal Procedure Act. However, as long as the defendant is found guilty of fraud against the victim non-indicted 9, who is the ancillary facts charged, the judgment of innocence shall not be rendered

It is so decided as per Disposition for the above reasons.

Judges Kim Jong-si (Presiding Judge)

Note 1) As to the fact that the change of the victim in a crime of fraud is permitted within the scope that is recognized as identical to the facts charged, see Supreme Court Decision 87Do2168 delivered on December 22, 1987, etc.

Note 2) The date for the preparation of a sales contract is “No. 29, 2010.” or “No. 2, 2010.” However, since the date for the conclusion of a sales contract is written on November 29, 2010 as the date for the conclusion of a sales contract (No. 1st Investigation Record No. 769) is written on November 29, 2010, it is deemed that the date for the conclusion of a sales contract was written on November 29, 2010.

3) The judgment of the court which acquitted the defendant under the latter part of Article 325 of the Criminal Procedure Act despite the existence of the grounds for innocence under the former part of Article 325 of the Criminal Procedure Act is erroneous in the application of the Act, but it does not affect the conclusion, see Supreme Court Decision 87Do1042, supra

(4) If the first instance court rendered a judgment of innocence as to the facts charged, the prosecutor appealed and added the facts charged in the appellate court. If the appellate court rendered a judgment of innocence as to the ancillary facts charged, it is sufficient to maintain the first instance court's judgment that acquitted the primary facts charged in relation to the same body as the ancillary facts charged, and there is no need to render a separate verdict of innocence as to the ancillary facts (see, e.g., Supreme Court Decision 84Do3068, Feb. 8, 1985). The prosecutor's appeal as to this part is dismissed.

5) The crime of fraud against the victim Nonindicted 31 constitutes a mitigation area and the scope of recommending punishment is “one year to two years of imprisonment.”