2016Do17367 Fraudulent

A

Defendant

Law Firm BE

Attorney BF, BG

Suwon District Court Decision 2016No1687 Decided April 10, 2016

January 12, 2017

Of the judgment of the court of first instance, the part on the crime No. 4 and 5 of the judgment of the court of first instance is reversed, and this part of the case is

shall be remanded to the Manner.

The remaining appeals are dismissed.

The grounds of appeal are examined.

1. As to the fourth and fifth parts of the judgment of the first instance

A. Of the facts charged in the instant case, the summary of the fraud part against the victim AB is the facts of the Defendant.

The AB shall not be entitled to sell or purchase real property because the owner has not been delegated by the owner.

Even if he/she receives the investment money from the seller of securities, he/she does not have the intent or ability to complete the investment, and ① October 4, 2007

The victim AB is in charge of selling commercial buildings and unsold apartments in the sales company, and selling them in lots.

When investing funds necessary for the office, the profit shall be 40% of the principal and sales amount after three months;

false statement that it will be paid as 10 million won for the purpose of investment from the above victim.

(2) On October 16, 2007, the victim AB made a false statement and the damage caused by the false statement.

(iii) on June 30, 2008, 2008, 200,000 won has been remitted from the victim as investment money.

When preparing investment funds for multi-party sales projects, the establishment of a mortgage on real estate owned by the victim shall be established.

of the State, the State shall pay its previous investment funds and profits, and terminate the registration of the establishment of a new mortgage as soon as practicable.

the maximum amount of debt on the property owned by the victim, making a false statement to the extent that such statement may be made;

20,000 won in total and the maximum debt amount of KRW 20,000,000,000 by requiring the registration of creation of a neighboring mortgage.

It is the acquisition of property profits equivalent to the right to collateral security.

B. The lower court: (a) held this part of the facts charged as an inclusive crime and held that the statute of limitations has not yet expired;

Based on its stated reasoning, the above facts charged were found guilty.

C. However, we cannot accept the above determination by the court below for the following reasons.

1) Money by deception on several occasions against the same victim in fraud

If the criminal intent is a single crime and the method of crime is the same, it shall be subject to fraud.

Only an inclusive crime is established, but the unity and continuity of the crime is not recognized, or the method of crime is not recognized.

Unless the same is the same, each crime constitutes concurrent crimes (Supreme Court Decision 2007 July 26, 2007).

207Do3966, supra.

2) Even according to the reasoning of the lower judgment, the last and the immediately preceding crimes among the facts charged in this part of the facts charged.

The interval between the time is about 8 months between October 16, 2007 and June 30, 2008, and the interval is about 8 months between time and time.

In addition, according to evidence, the defendant on October 16, 207 and October 16, 2007

AB selling BB commercial buildings in Seoul Special Metropolitan City, Nowon-gu and selling them to the victim and making investments and profits with its profits;

On the other hand, on June 30, 2008, the above victim is in the Hongcheon-gun of Gangwon-do.

A false statement that the sale of BC apartment and the payment of the investment and profit will be made for the profit;

The project by deceiving the prospect of the sale agency business on October 4, 2007 and October 16, 2007 by the defendant.

On the other hand, on June 30, 2008, the real estate owned by the victim AB is acquired through deception of money in the name of the fund.

The circumstances suggesting that even if a right to collateral security is created, it may be terminated in the near future.

In addition, it is also known that he/she has acquired a considerable amount of financial gains from the right to collateral security by fraud.

In light of the time interval and means of such crime, the singleness and guidance of the criminal intent to the defendant

It is difficult to see that the nature is not recognized, and the method of committing the crime is not identical. Thus, October 4, 2007.

The fraud and the fraud committed on October 16, 2007 constituted an inclusive crime, but the fraud committed on June 30, 2008.

The points of this are substantive concurrent crimes.

3) However, the defendant's act of fraud on October 4, 2007 and the legal point of fraud on October 16, 2007

Punishment is imprisonment for not more than 10 years or a fine not exceeding 20 million won, and the statute of limitations is the former Criminal Procedure Act.

Article 249 (1) 3 of the Act before it was amended by Act No. 8730 of Dec. 21, 2007)

Along with the 7th anniversary of October 16, 2007, which was the last day of the criminal act, the public prosecution was instituted on October 10, 29

Therefore, this part of the facts charged has already been completed.

Therefore, the lower court ex officio reverses the part of the first instance judgment and Article 326 of the Criminal Procedure Act.

Pursuant to subparagraph 3 of section 3, the fraud of the victim AB on October 4, 2007 among the facts charged in the instant case

In addition, the judgment of acquittal should have been rendered on October 16, 2007 on the fraud, but the above judgment should have been pronounced.

We examined the substance of the facts charged and sentenced the defendant guilty.

The court below erred by misapprehending the legal principles regarding the inclusive crime in fraud and the statute of limitations.

D. Of the lower judgment, the Defendant’s fraud on October 4, 2007 against the Victim AB and the Plaintiff’s death on October 16, 2007

The judgment of the court of first instance should be reversed for the above reasons. However, the judgment of the court of first instance No. 4 against the defendant is reversed.

The fifth conviction in the judgment of the court of first instance is one of the concurrent crimes under the former part of Article 37 of the Criminal Act.

In fact, the court below rendered a single sentence on this part. Accordingly, the judgment of the court below No. 4 of the judgment of the court below

All parts of the offense shall be reversed.

2. As to the part concerning the 1, 2, 3, and 6 of the first instance judgment

The defendant appealed against the crimes No. 1, 2, 3, and 6 of the judgment of the court of first instance, but the petition of appeal was filed.

There is no indication of the reasons or the statement of reasons for objection in the statement of reasons for appeal.

(c)

3. Conclusion

Therefore, the part concerning the crime No. 4 and 5 of the judgment of the court of first instance is reversed, and this part of the case is reversed.

B. The appeal is remanded to the lower court for further proceedings consistent with this Opinion. The remainder of the appeal is dismissed. It is so decided as per Disposition.

It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Dong-won

Justices Kim Yong-deok

Justices Kim In-bok, Counsel for defendant

Justices Kim Gin-young