Defendant

Kim full-time (prosecution) and Kim public trial (trial)

Attorney So-young in charge of the Law Firm So-called

A defendant shall be punished by imprisonment for three years.

1. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes;

On February 2, 2002, the Defendant: (a) purchased by the victim pursuant to an agreement with the victim non-indicted 5 pursuant to the title trust agreement; (b) 1,931 square meters prior to the Namyang-si, Chungcheongnam-si (number 1 omitted); (c) 30 square meters prior to the same Ri (number 2 omitted); (d) 9 square meters prior to the same Ri (number 8 omitted); (b) 2,001 square meters prior to the same Ri (number 9 omitted); (c) 2,195 square meters prior to the same Ri (number 3 omitted); (d) 317 square meters prior to the same Ri (number 4 omitted); (f) 1,676 square meters prior to the same Ri (number 6 omitted); and (f) 196 square meters prior to the same Ri (number 2 omitted); and (f) registered the ownership transfer of the farmland in the name of the victim with respect to each of the instant farmland owned by the non-indicted 196 square meters prior to the same year.

The value of each of the above real estates, as above, at the time the defendant completed the registration of the establishment of a mortgage on each of the above real estates, was KRW 101,956,80,000, the land at the above (number 1 omitted), KRW 82,170,00, the land at the same Ri (number 2 omitted), KRW 11,385,00, the land at the same Ri (number 8 omitted), KRW 126,463,20, the land at the same Ri (number 9 omitted), KRW 135,870,50, the land at the same Ri (number 3 omitted), KRW 135,870,50, KRW 400, KRW 16,737,60, KRW 500, KRW 16,737,000, KRW 108, KRW 16,810, KRW 816,008, KRW 1637,6081.

Accordingly, the Defendant embezzled each of the above real estate amounting to KRW 710,317,110, which was kept for the victim by obtaining registration title trust from the victim.

2. Embezzlement;

On February 2002, the Defendant: (a) concluded a title trust agreement with the victim Nonindicted 5 to make a registration of ownership transfer with respect to the amount of 3,170 square meters in the name of the Defendant on the Namyang-si, Seoyang-do; and (b) embezzled the above land equivalent to KRW 236,79,000 on August 29, 2008 at the Namyang-dong, Namyang-dong, by taking documents necessary for the registration of ownership transfer under the name of the Defendant; and (c) embezzled the above land by taking the registration of ownership transfer with respect to the above land at the market price of KRW 236,79,00 according to the officially announced land price at his discretion without obtaining consent from the victim; and (d) by taking the registration of ownership transfer with the mortgagee and the father agricultural cooperative.

3. Fraud;

Around July 2008, the Defendant, at the victim Nonindicted 5’s house located in the Hannam-si (Land Number 11 omitted), concluded a false statement to the effect that “The Defendant had obtained permission from the Plaintiff on the ground of the Dogro (Land Number 9 omitted) of Seoyang-si, Namyang-si, Seoul-si, where the Defendant constructed and used in the house,” and that “The Defendant did not have any intent or ability to obtain permission from the Defendant on the part of the Plaintiff on the ground that the Plaintiff would have obtained permission on the unauthorized Building. If it is possible to obtain permission, ten administrative officials in charge should supply the total of KRW 50,000,000 to KRW 10,000,000,0000 for each of the 50,000,000 won for fines and other administrative expenses.” However, the Defendant did not have any intent or ability to obtain permission on the said building by

As above, the Defendant, by deceiving the victim, received KRW 79 million from the victim for the purpose of obtaining permission for the unauthorized building from the victim, and acquired it by fraud.

1. Partial statement of the defendant;

1. Each legal statement of the witness, Nonindicted 5, Nonindicted 6, and Nonindicted 1

1. Report on the computation of real estate price at the time of establishment of mortgage;

1. A copy of a real estate sales contract, a copy of each record, a copy of each contract, a copy of confirmation of details of each financial transaction, each copy of the register, each land cadastre, and each general building register (187 pages of investigation records);

1. Response to a request for appraisal (written appraisal, 298 pages of the investigation records);

1. Copy of the confirmation of fact (403 pages of investigation record), check number and copy of number of publication (408 pages of investigation record), copy of the title trust document recognized by the defendant (defendant), copy of each officially announced data (409 pages of investigation record), copy of each official land price (441 pages of investigation record), each field photograph (457 pages of investigation record), copy of each cadastral map (460 pages of investigation record), copy of each cashier's check payment (467 pages of investigation record), copy of each statement of contract (467 pages of investigation record), copy of the confirmation of the contents of contract (474 pages of investigation record), copy of the certificate of contract (475 pages of investigation record), copy of the official gazette (516 pages of investigation record), Korea Land and Housing Corporation (520 pages of investigation record)

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 355 (1) of the Criminal Act [The maximum of the limited imprisonment shall be governed by the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259 of Apr. 15, 2010), Article 355 (1) of the Criminal Act (amended by Act No. 10259 of Apr. 15, 201), Article 357 (1) of the Criminal Act (amended by Act No. 10259 of Apr. 15, 201)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes with punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) with the largest punishment]

1. Summary of the assertion

The defendant and his defense counsel asserted that the establishment registration of a neighboring land (hereinafter "each land of this case") and a detached house (hereinafter "each real estate of this case") as stated in paragraphs (1) and (2) of the facts constituting a crime in the judgment of the defendant was completed. However, since each real estate of this case was registered for the transfer of ownership under the defendant's name by accepting a donation not by the defendant but by completing the registration of the transfer of ownership under the defendant's name, it is not established as embezzlement.

2. Determination

A. The key issue of the instant case is whether each registration of ownership transfer made under the name of the Defendant with respect to each of the instant real estate was made pursuant to the title trust agreement between the Defendant and the victim, or whether the victim donated to the Defendant.

B. The following facts are acknowledged according to each of the above evidence.

1) The Defendant is a pastor, and the victim became aware of Nonindicted 7’s high-ranking person, who was the Defendant’s wife, through Nonindicted 7.

2) On June 11, 2001, through Nonindicted 2, 2001, the victim came to know in the course of the introduction of the defendant, the victim entered into a sales contract with Nonindicted 1 (the owner in the register was Nonindicted 3, but the actual owner was Nonindicted 1), 40 million won on the date of the contract, and 5 billion won on May 3, 2002, on land (number 4 omitted), (number 3 omitted), (number 4 omitted), (number 5 omitted), (number 5 omitted), (number 6 omitted), (number 6 omitted), (number 7 omitted), and (number 7 omitted), on land (number 2 omitted), each of which was divided into the same Ri number 17, 2002, (number 2 omitted), (number 8 omitted), (number 9 omitted), and (number 9 omitted). The victim shall purchase the land at KRW 630 million on the date of the contract, and shall pay the remainder of 300 million on May 30, 20000.

3) According to the instant sales contract, the victim paid the above purchase price to Nonindicted Party 1 in full, and immediately after the said sales contract, the victim newly constructed a single house for the purpose of using it as a welfare facility by inserting approximately KRW 220 million to the victim’s expenses on the ground of the Gero (number 2 omitted) land (the registration of preservation of ownership on a single house was made on October 15, 2002 in the name of Nonindicted Party 3, which was the registered titleholder of the said land), and thereafter on November 26, 2002, each of the above land (excluding the land number 7 omitted) and the ownership transfer registration on the above detached house was made in the name of the Defendant.

4) Meanwhile, around February 30, 2002, the Defendant and the victim drafted a “contract” as to each of the above land. The content thereof is that “(i) the contractor (Defendant) shall use the building constructed on each of the above land at KRW 3,811 and Dogro (number 2 omitted) without any condition, and the period of use shall be four years from July 1, 2002 to June 30, 2006 (which appears to be a clerical error, but is written in writing). ② From June 30, 2006, the Defendant and the victim shall waive all the powers pertaining to each of the above land and the use of the building and shall transfer it to the actual owner (victim) without any condition. ③ The extension of the contract term or the renewal contract shall not be permitted. ④ The additional matters to be modified during the contract term shall be rejected each other and shall be faithful to this contract (hereinafter “instant contract”).

5) In addition to the land purchased through the instant sales contract, the victim purchased the land in addition to the land purchased from Nonindicted 4 at that time, and the said land was also purchased in the name of the Defendant on December 11, 2002.

6) On June 10, 2005, without the consent of the victim, the Defendant registered the establishment of a mortgage on each of the instant lands (excluding the land parcel number 7 omitted) with the maximum debt amount of KRW 266 million, and the establishment of a mortgage on each of the instant lands (excluding the land parcel number 7 omitted) with the mortgagee and the agricultural cooperative association with the mortgagee, and on August 29, 2008, the Defendant completed the registration of the establishment of a mortgage on each of the instant lands (excluding the land parcel number 7 omitted) with the maximum debt amount of KRW 84.5 million, and on each of the instant lands by the mortgagee and the agricultural cooperative

7) The victim had been operating the “△△△△△△△△”, a protection facility for the disabled, since 2001, and the Defendant has been operating from 2002 to 2002 in each of the instant land and detached houses that the victim purchased and newly built. The victim requested the Defendant to return each of the instant real estate from 2006 to 2007. The victim requested the Defendant to return the instant real estate from 2007. On May 26, 2010, the Defendant strongly demanded the Defendant to return each of the instant real estate since the cost of the move-up in the Hanam-si where the “△△△△△△△△△△△△△△△△△△△△” was designated as the Bogeumjari Housing District. However, the Defendant refused

C. In addition to the above facts admitted, each of the following circumstances are recognized according to each of the above facts.

1) With respect to the instant case, the victim did not have donated each of the instant real estate to the defendant, but was in physical coloring another place because the victim could no longer operate welfare facilities for the disabled operated by the victim in Songpa-gu Seoul at the time of 2001. The defendant, who was unable to live as a pastor, was merely an opportunity for the victim to purchase each of the instant land and construct the housing on the ground and use it as welfare facilities by considering his friendship with the victim, and thus, the victim and the defendant made a contract with the defendant to use each of the instant real estate for four years on or around February 2002 and return it after the expiration of the period, and the land transaction permission area stated that "the registration of ownership transfer was made in the name of the defendant by meeting the terms of residence on behalf of the victim who operated welfare facilities in other places." The victim's statement is inconsistent with the victim's statement, and most of each of the instant land was made by the victim, and thus, it was not inconsistent with the victim's credibility at the time of the sale of each of the instant land.

2) On May 26, 2010, the cost of the move of the facility for protecting the disabled where the “△△△△△△△△△△△” is located, which was designated as the Bogeumjari Housing District, the victim demanded the Defendant to return each of the instant land and the detached housing around that time (as seen earlier, the victim demanded the Defendant to return each of the instant real estate in accordance with the terms and conditions of the instant contract even around 2006 or around 2007, which was the previous owner). However, the Defendant refused to return the instant real estate because the ownership transfer registration registered in his own name by the victim constitutes a title trust. As such, the Defendant did not assert that the instant real estate was donated by the victim until the victim was charged for embezzlement, etc.

3) The Defendant was aware of the victim through Nonindicted 7, who was the wife, and was not directly related to the victim. The Defendant did not directly related to the victim. It is difficult to view that the Defendant donated each of the instant real estate, which was prepared by the victim to the Defendant without any condition, to purchase each of the instant real estate with large amount of money (the insurance held by the Defendant was terminated and the secured money was newly constructed on the ground, continuously invested expenses for each of the instant real estate, and the principal and interest on the loan was repaid up until now) (in addition, the Defendant seems to have never invested his own funds or expenses on each of the instant real estate). Rather, the Defendant prepared the instant contract with the Defendant on February 1, 2002 (4 years from July 1, 2002 to June 30, 2006) and prepared it for a certain period of time (4 years from the purchase of each of the instant real estate) and allowed the Defendant to use each of the instant real estate without compensation, and the Defendant appears to have agreed to the effect that the Defendant returned each of the instant real estate to the Defendant without any condition or consent.

4) Nonindicted 2 and Nonindicted 8 made a statement to the effect that the victim expressed his intent to donate each of the instant lands to the Defendant at the time of 2001 when the purchase was made. However, it is difficult to recognize each of the instant criminal facts in the instant case where: (a) Nonindicted 2 and Nonindicted 8 made a final statement to the effect that the victim would donate each of the instant lands to the Defendant at the time when it was over 10 years since the conclusion of the instant sales contract was not a third party; (b) they made a statement to the effect that, upon hearing the said remarks, Nonindicted 1, a seller of each of the instant lands, stated that there was a title trust as to whether there was a gift between the Defendant and the victim; (c) however, in full view of the fact that the victim consistently stated that there was no donation to the Defendant, but only a title trust was made; and (d) the credibility of such statement is sufficiently acknowledged, each of these criminal facts of each of the instant case’s embezzlement is difficult to be acknowledged.

D. In full view of the above facts and circumstances, the Defendant, as alleged above, did not donate each of the instant real estate from the victim, but merely recognized that the Defendant was entrusted with only the registered title under the title trust agreement and completed the registration of ownership transfer for each of the instant real estate on or around February 2002. As such, the truster entered into a title trust agreement with the trustee and entered into a sales contract with the seller as the party to the sales contract, but if the title trustee disposes of the real estate at his own discretion in the so-called middle omission-registered title trust or third party-registered title trust relationship, which directly transfers the seller’s registration from the seller to the trustee, then the crime of embezzlement is established (see Supreme Court Decision 2001Do6209, Feb. 22, 2002, etc.). Accordingly, the Defendant’s act of arbitrarily disposing of the real estate without the consent of the victim after completing the registration of ownership transfer for each of the instant real estate purchased from Nonindicted 1 and newly constructed by the victim, constitutes embezzlement and the defense counsel’s assertion is without merit.

1. Scope of punishment by law: Imprisonment with prison labor for not less than three years but not more than two years and not more than six months;

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

(a) Basic crime: Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement);

[Determination of Punishment] Crimes of Embezzlement and Breach of Trust, Type 3 (not less than KRW 500 million but less than KRW 5 billion)

[Special Aggravations] Reductions and No Aggravations

[Scope of Recommendation] Basic Field, Imprisonment with prison labor for not less than two years, but not more than five years (General Heavy Elements - Embezzlements)

(b) Class 1 concurrent crime: embezzlement; and

[Determination of Punishment] Crimes of Embezzlement and Breach of Trust, Type 2 (not less than KRW 100 million but less than KRW 500,000)

[Special Aggravations] Reductions and No Aggravations

[Scope of Recommendation] Basic Field, Imprisonment with prison labor for not less than one year, but not more than three years (General Heavy Elements - Embezzlements)

(c) Concurrent crimes: Fraud;

[Determination of Punishment] Fraudulent Crime Group, General Fraud, Type 1 (less than KRW 100 million)

[Special Aggravations] Reductions and No Aggravations

[Scope of Recommendation] Basic Field, Imprisonment with prison labor for not less than six months, but not more than one year and six months (general key factors - the use of personal trust relationship)

(d) Scope of revised recommendation: Imprisonment with prison labor for not less than three years but not more than seven years (the scope of recommendation according to the guidelines for the management of multiple offenses is in accordance with the minimum limit of the applicable sentencing in law, as the range of recommendation according to the guidelines for the management of multiple offenses is in conflict with the minimum limit of the applicable sentencing in law, for two years, which is the lowest limit of the applicable sentencing range, and for five years, which is the minimum limit of the applicable sentencing range, and for five years, which is the maximum limit of the applicable sentencing range, and for six years, which is 1/2, and 1/3, which is the maximum of the applicable sentencing range in the first and second concurrent crimes) or for six years, which is the minimum of the applicable sentencing range in law;

3. Determination of sentence: Three years of imprisonment; and

The crime of this case is not limited to embezzlement of real estate exceeding KRW 710,000,000,000,000,000,000 in the officially announced land price without the consent of the victim, while the defendant was in custody for the victim of each of the real estate of this case that the victim directly purchased from the seller in accordance with the title trust agreement entered into with the victim while the defendant was in office as a pastor, and he was in possession of each of the real estate of this case. The crime of this case was committed by embezzlement of real estate exceeding KRW 239,00,000,00 in the officially announced land price in the same manner. The crime of this case was committed by deceiving the victim and receiving KRW 79,00,00,00 in the cost of permission for unauthorized Building from the victim. Thus, even if the defendant recognizes the facts as a substitute, the defendant denies the crime of this case while he was donated from the victim, and there was no agreement with the victim, and there is no inevitable effort to recover damage. The victim continues to do so up to this court.

However, considering the favorable circumstances, such as the fact that the defendant had previously been sentenced to a fine not only twice before and after the previous punishment of this case, and the fact that there was no past record of criminal punishment, the punishment as ordered shall be determined by taking into account the following circumstances: (a) the details and motive leading to the instant crime; (b) the defendant’s age, character and conduct, family relationship, environment

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

Judges Ansan-jin Kim Dong-dong (Presiding Judge)