(영문) 서울중앙지방법원 2014.4.3. 선고 2013고합1294 판결

The Defendant is a person who served as a former shareholder, C is a person who served as a 'preter' against the Defendant under D’s instructions and actually acted, such as selling stocks, and D is a person who resides in the Philippines as well as giving various instructions to C, etc. while living in the Philippines as a designated receipt of orders, and E is a bond business operator who has lent money by receiving stocks from the Defendant, C, etc. as security.

In collusion with C and D, the Defendant did not keep the share certificates as a collateral and did not dispose of them in the stock market as a collateral, and acquired profits corresponding to the difference between the principal and interest of the loan. On July 2012, 2012, the Defendant: (a) on the behalf of C and D, under the name of “F”, the Defendant agreed to engage in a bond business operator who borrowed money as collateral; (b) upon receiving various instructions from D to enter into a contract between D and the Defendant, victims, or E; and (c) upon receiving various instructions from D, D gave instructions to the Defendant and C and pay the consideration in accordance with such instructions.

1. Fraud with respect to 150,000 shares of H owned by the victim G;

On July 13, 2012, the Defendant: (a) provided the Defendant with a share certificate of KRW 838,500,000 (hereinafter “H”) of H Co., Ltd. (hereinafter “H”)’s market price as security at the coffee shop where the trade name on the first floor of the J Co., Ltd.’s K branch building located in Gangnam-gu Seoul, Seoul; (b) around July 13, 2012, the Defendant entered into a share agreement with E with a security loan agreement with the content that the Defendant would sell and dispose of the said share certificate after immediately entering the company’s K branch building.

After the conclusion of the aforementioned share loan agreement, the defendant was carried out at the K branch office of the J company located on the sixth floor of the above building on the same day as the bond company, and C was engaged in the business of the defendant under the name of "F", and the defendant agreed to lend 550 million won monthly interest to the victim G as 2% of the monthly interest and the agreed period of one month. The victim provided the defendant with the share certificates of 150,000 won of H stocks as security, but the defendant did not keep the share certificates in the actual account and not enter them into the actual account. However, if the total market price of the above 150,000 week is less than 110% (4,033 won per share price) of the above loan, the victim provided additional security to the defendant and the defendant can dispose of the share certificates at his own discretion if the victim did not provide additional security.

However, even though the Defendant and C entered into a stock loan agreement that can be sold and disposed of immediately after having suffered share certificates as above, they did not notify the victims of such fact at all. On July 16, 2012, according to the share loan agreement entered into between the Defendant and the victim and the victim, the Defendant and C could not demand additional security or sell the share certificates received as security. The Defendant and C provided them as security to E even if they received the above share certificates from the victim, and did not have any intent or ability to use the share certificates as security pursuant to the money loan agreement with the victim.

Nevertheless, the Defendant and C concealed the fact that they concluded the aforementioned agreement with E, and immediately after receiving 150,000 shares of 150,000 shares from the victim, sent the share certificates to E, and made E enter the securities account in the name of L and M, and sold them to all from July 16, 2012 to July 17, 2012, thereby allowing E to meet the loans of KRW 550,000 won. The remaining share certificates of 50,000 of the shares were returned from E to be returned to N account on July 18, 2012, and sold all of them on the day after entering into the N account in the name of M.

Accordingly, the defendant, in collusion with C and D, acquired the victim's share certificates of KRW 150,000 worth of KRW 838,500,000 owned by the victim.

2. Fraud on the victim P-owned Q 1.3 million shares

around July 17, 2012, the Defendant: “Around July 17, 2012, the Defendant opened a loan interest rate of 130,000 won at C with a pressure suspension point of S, and only if S met with S. as S. s. s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s 1.8% of the monthly interest rate of 2.5 billion won for the Defendant’s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s ss s s s s s ss s s s.).

On July 18, 2012, after concluding a share loan agreement with the victim as above, the defendant, along with the above name S, entered into a share loan agreement with E to the effect that: (a) at the W hotel coffee shop located near the bank pressure stop point in Gangnam-gu Seoul, Seoul, the defendant offered the victim a share certificate of Q 1,300,000 won of the shares received from the victim; and (b) E, as the share price of the share certificates offered as security falls below 2.6 billion won and the total market price falls below 150% (3,000 won per share price) per share; and (c) upon the debtor's request, the defendant, who is the debtor, entered into a share loan agreement with E to the effect that the share certificates provided as security may be sold and disposed of immediately.

However, the Defendant and C concluded the said monetary loan agreement with the victim with hiding the fact that they would enter into the said stock loan agreement as above, and around July 18, 2012, the market price of Q stocks was KRW 2,905 per share based on the closing price, and thus, the said agreement had already been disposed of immediately as it is lower than KRW 3,00 per share price of KRW 150 per share, which is the collateral ratio of KRW 150 per share, and thus, the Defendant and C had no intent or ability to use the share certificate as security under the monetary loan agreement with the victim even if they received the said share certificate from the victim.

Nevertheless, the Defendant, in collusion with C, received 1.3 million shares of 1.3 million shares from the victim while hiding the fact that the Defendant would conclude the above agreement with E, and immediately thereafter, made E enter 1.2 million shares of 1.2 million shares from July 25, 2012 to July 30, 2012, C and D disposed of all the above 1.2 million shares from July 30, 2012, and disposed of them by entering into the securities account in the name of the Defendant, and selling orders, etc., by selling them from July 25, 2012 to July 30, 2012. The Defendant disposed of all the above 1.2 million shares, which were not entered into the account, and disposed of by entering them into the securities account in the name of X around July 30, 2012.

Accordingly, the defendant, in collusion with C, D, one name S, obtained 1.3 million shares of Q 1.3 million won at the market price owned by the victim, in collusion with C, D, and one name S.

Summary of Evidence

1. Partial statement of the defendant;

1. Entry of the accused in part C and E in each interrogation protocol of the prosecution against the accused;

1. Each prosecutor's protocol of statement of G,Y, Z, Z, N, AA, X, and L (in the case of G, and in the case of 2, each substitute part shall be included);

1. Each investigation report (Attachment to the current status of share price, submission of suspect A and future investigation plans, verification of details of H, Q stocks storage, D, AB distribution meetings, details of entry and departure, etc. attached thereto, filing of details of account transactions in the name of A, and verification of record of orders for selling Q stocks);

1. Responses to requests for financial transaction information, copies of each cashier's check, certificates of personal seal impression, H share certificates, certificates of stock transaction, Q Q stock certificates, current status of stock security loans and loan agreements, copies of Q stock certificates, copies of cashier's checks, and written confirmations;

Application of Statutes

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

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

1. Aggravation for concurrent crimes;

Articles 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes with the punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against Victims, Stock Companies, the more severe

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

Reasons for sentencing

1. Scope of applicable sentences under Acts: Imprisonment for one year and six months to twenty-two years; and

2. Application of the sentencing criteria;

[Determination of Punishment] The organized fraud group is not less than five hundred million won, and less than five billion won (Type 3) 1

[Special Convicts] Mitigations: Simple participation

[Scope of Recommendation] Two to Five years (Discretionary) imprisonment

3. Determination of sentence: Imprisonment for 2 years; and

The crime of this case requires strict punishment of the defendant in light of the following: (a) the defendant involved in the systematic fraud crime of C and D, which is the principal offender, provided the victims with share certificates as collateral, and thereafter, (b) borrowed money from the victims as collateral, and then immediately disposed of the share certificates, unlike the loan agreement, without keeping the share certificates as collateral; and (c) the nature and circumstances of the crime of up to 1.465 billion won and more severe damage amount; and (d) the victim did not make any effort to recover from the damage; and (e) the defendant did not make an agreement with the victims or make any other effort to recover the damage.

However, the defendant is deemed to have been led or led to the crime of this case, and the defendant simply shared the act of execution according to the direction of other accomplices, not by leading or leading the crime of this case. The profits acquired by the crime of this case are relatively low compared to other accomplices, the defendant has no record of being punished for the same crime, and there is no record of being punished exceeding the fine, and the defendant has no record of being punished for the crime of this case, and all the sentencing conditions specified in the arguments of this case, such as the defendant's age, character and behavior, environment, motive, means and consequence of the crime of this case, etc., shall be determined