(영문) 서울중앙지방법원 2018.8.31. 선고 2017고합1222 판결

The defendant is the representative director of the corporation C (hereinafter referred to as the "C") established for the purpose of the development, manufacture, production, distribution, consultation, service business, etc. of software in the 13th floor of Jongno-gu Seoul Metropolitan Government, and the actual operator of the corporation E (hereinafter referred to as the "E") located in Yeongdeungpo-gu Seoul Metropolitan Government. [2]

On November 25, 2016, at the office of Jongno-gu Seoul Metropolitan Government, the Defendant: (a) supplied the software related to improving the performance of K (Local Tax Management Program) to G and H, a staff member of the Victim F (hereinafter “victim F”) who is a software seller, at the office of Jongno-gu Seoul Metropolitan Government (hereinafter “C”); (b) and (c) supplied the software related to improving the performance of K (Local Tax Management Program). For this purpose, C must purchase the software from L Co., Ltd. (hereinafter “L”); (c) there is insufficient funds to purchase the software; (d) there is insufficient way to enable C to preferentially supply the software with the relevant software purchase fund. Accordingly, C will not receive the supply price from I; (c) opened the joint account between C and the victim F; and (d) opened the joint account between C and the relevant bank into the relevant bank account; and (c) made a request for payment from the victim to the effect that C would not arbitrarily receive the payment from the victim. Therefore, C cannot withdraw the money from the victim’s account without consent.

However, even if the victim F transfers the software purchase price to L, the Defendant was trying to use the money again from L’s subordinate distributors, and did not have any idea to request C and F to deposit the price of supplied goods into the joint account between C and the victim F. In addition, as C had already become a sales growth price since the end of 2015, and the profit and loss structure has deteriorated, and there was about KRW 10 billion at the time of the deterioration of the profit and loss structure, and some employees were in arrears. In particular, the Defendant had been urged to pay the price of the goods to be promptly repaid to other trading companies than the victim F. The Defendant did not have any intent or ability to pay the price according to the victim F’s promise.

The Defendant had the victim F transfer KRW 994,50,000 from the L name account (the victim F to L, Inc. (hereinafter referred to as “M”), E, and C) to the L name account. [2018 Gohap238]

The defendant is the C representative director in Sungnam-gu N, Sungnam-si, who is engaged in software development business using 170 full-time workers.

1. Violation of the Labor Standards Act

When a worker retires, the employer shall pay the wages, compensations, and other money or valuables within 14 days after the cause for such payment occurred.

Nevertheless, the Defendant, who retired from C’s workplace from office from June 1, 2015 to January 14, 2017, did not pay a total of KRW 799,928,754 in arrears, as shown in the attached crime list, as well as KRW 4,416,667 in May 2016, within 14 days from the date of retirement, without any agreement on the extension of payment period between the parties concerned.

2. An employer who violates the Guarantee of Workers' Retirement Benefits Act shall, in case where a worker retires, pay the retirement allowance within fourteen days after the cause for such payment occurred; and

Nevertheless, the Defendant, at C’s workplace from June 1, 2015 to January 14, 2017, did not pay KRW 7,043,255 as well as KRW 757,687,58, as shown in the list of crimes in the attached Table, to the total amount of KRW 77,687,558, as well as KRW 757,68, as described in the list of crimes in the attached Table.

[2018Gohap300]

The defendant had the victim P Co., Ltd. (hereinafter referred to as "victim P") enter into a prior purchase contract for mobile security software, such as Q, developed in C, and received the purchase price in advance and received it from the victim P.

1. Fraud related to the contract on February 2, 2016

In fact, around January 2015, the Defendant established, and actually operated, E in the name of the Defendant’s wife, and sold and distributed the software. Since, around January 2016, E did not have received orders from the Korea National Tourism Organization or the Supreme Prosecutors’ Office to purchase mobile security S/W supply, the said software was supplied to the Korea National Tourism Organization or the Supreme Prosecutors’ Office through E through the Korea National Tourism Organization through the Korea National Tourism Organization or the Supreme Prosecutors’ Office through the Korea National Assembly, and there was no other transaction party to purchase the said software, and there was no intention or ability for the victim P to purchase the said software again. The Defendant was uncertain plans to receive mobile security projects, etc. from the Ministry of National Defense and Seoul Metropolitan Government, etc. under which the Defendant was given money from the victim P, and it was appropriated for the payment of funds from the victim P, personal card payment, loan, interest repayment, etc., and thus, the Defendant did not have any intent or ability to pay the profits therefrom, even if concluding the prior purchase contract with the victim.

Nevertheless, the Defendant, at around February 2016, at the 14th floor office of the Jongno-gu Seoul S Building, to T and U working in the victim P Public Service Headquarters, “The software amounting to KRW 330,000,000,000,000,000,000,000, which was first purchased around July 30, 2015 from the victim P, received mobile securityS/W projects from the E Korea National Tourism Corporation and the Supreme Prosecutors’ Office, and was supplied through the above shareholders, and then would be paid the price after issuing sales tax invoices and processing them. In addition, if the Defendant entered into a contract for prior purchase of software amounting to KRW 5,50,000,00,00,000, the Defendant would receive mobile security solution project from the Ministry of National Defense and the Seoul Metropolitan Government.” On the other hand, the Defendant concluded a contract with the victim P on February 25, 2016 by means of falsity to the effect that “If the software purchased is supplied in C and received the price from the victim P.”

On February 15, 2016, the defendant acquired 550 million won from the victim P to the corporate bank account (Account Number V) in the name of the C on February 15, 2016.

2. Fraud related to the former contract on August 31, 2016

In fact, around March 2016, the Defendant did not supply the said software to Seoul Special Metropolitan City or the Ministry of National Defense through E, because there was no receipt of orders from the Ministry of National Defense for the cases of the Seoul Special Metropolitan City Water and Wastewater Facility Security S/W supply system and waterworks website, around May 2016, the Defendant did not supply the said software to the Seoul Special Metropolitan City or the Ministry of National Defense through E. However, even if the Defendant concluded a prior purchase contract with the Ministry of National Defense on February 2, 2016, the Defendant did not supply the said software to the victim P was not capable of purchasing the said software again because it was not supplied to the Korea National Tourism Corporation or the Supreme Prosecutors' Office as it was in inventory and did not recover the funds again. Accordingly, even if the Defendant did not pay the funds to the Defendant for the mobile credit card purchase from the Korea National Park Management Corporation or the Korea National Park Agency, the Defendant did not offer the funds to the victim to pay the funds to the Defendant as interest accrued from the mobile credit card purchase.

Nevertheless, the Defendant, at around August 2016, at the 14th floor office of Jongno-gu Seoul Sbuilding 2016, to T and U working at the victim P Public Service Headquarters, “A software amounting to KRW 550 million,000,000,000,000,000,000,000, which was first purchased around February 2, 2016 from the victim P, shall be awarded for both the Seoul Water Supply and Waterworks System and the waterworks security S/W supply system, and the supply of the mobile operation system to the Ministry of National Defense around May 2016, respectively, and shall be paid later, if the Defendant received each order from E and processed the sales tax invoice, respectively. In addition, when concluding a contract for prior purchase of the software amounting to KRW 550,000,00,00,000,00,000,000,000,00,000,00,000,00,00.

On September 13, 2016, the defendant acquired 550 million won from the victim P to the corporate bank account (Account Number V) in the name of C on September 13, 2016 and acquired it by fraud.

3. Forgery of private documents;

In December 2016, the Defendant: (a) entered the X project project from the above U in the office in the above C office in order to obtain any question of the scheduled termination point; (b) entered the results of the examination of the project in order to forge the existing "Y" project; (c) the date of preparation of the examination report using the computer; (d) the project name as "Z"; (c) the ordering agency as "2018 PyeongChang Winter Winter Winter Winter and Disabled Olympic Winter Games and the Organizing Committee for Disabled Persons"; and (d) entered the official post office as "AAA Co., Ltd. on December 12, 2016"; and (e) entered the date of the confirmation column of the inspection and operation as "the head of the team, AB, AC, AD, AE, AE, AE, team leader, team leader, team leader, and AG"; and (e) signed the name next to each of them, respectively.

Accordingly, for the purpose of exercising, the Defendant forged the examination results of the above AB and five persons, which are private documents related to the certification of facts.

4. Uttering a falsified investigation document;

On December 13, 2016, at the same place as Paragraph 3, the Defendant sent and presented the forged results of the examination to the above U as if they were genuinely formed.

Summary of Evidence

[2017Gohap122]

1. Partial statement of the defendant;

1. Statement made by a witness AH in the third protocol of trial;

1. The statement made by AI during the police interrogation protocol for the accused;

1. Each prosecutor's statement of the AJ, H and AI;

1. Each police statement to AI and AJ;

1. The head of a complaint, goods supply contract, written estimate, additional contract agreement (L), passbook, deposit certificate, certificate of deposit, goods receipt, statement of the progress of the case, investigation report (application for rehabilitation), AK order and deposit details, order for commencement of rehabilitation procedures, rehabilitation counsel, rehabilitation creditors, fine, list of shareholders and equity right holders, etc., investigation report (report on the side telephone statement of an investor), investigation report (report on the first telephone statement of an investor), investigation report (report on the first telephone), investigation report (Attachment of I disbursement document), report on commencement of rehabilitation procedures (report on the progress of the case and accompanying report), witness H mail sent by FH to CJ, e-mail, electronic tax invoices, general taxable person return, list of total sales, list of total purchase, statement of purchase, list of transaction records, list of copy, etc. attached to AM-related national data, e-mail submission statement, copy of AH statement, e-mail submission statement, e-mail submission statement, e-mail submission statement, e-mail submission statement, copy of AH statement, 1 copy of passbook, data attached to A2.

1. Defendant's legal statement;

1. Each police statement of the AT, AU, and AV;

1. A petition, a petitioner's statement, a statement of reference, a statement of fact such as telephone, a written statement, a written statement of confirmation of unpaid retirement benefits (issuance by Company), a written statement, a written statement of calculation of retirement benefits, a written statement (representative of the petitioner and the petitioner), a written statement (representative of the petitioner), an average wage and retirement allowance calculation statement, a written statement (Correction - a written statement), an average wage and retirement allowance calculation statement, a written statement (Correction - a written statement), a statement of payment (Correction from May 7, 2017), a statement of bank accounts in receipt of wages, a written statement of payment confirmation of retirement pension charges, a written statement of overdue money and other valuables, a business registration certificate, a certified copy of corporate register, a written

1. Partial statement of the defendant;

1. The legal statement of the witness T, U andW, and part of the witness AX;

1. An interrogation protocol of R by the prosecution;

1. Each prosecutor's protocol against T or U;

1. Each police statement made to AW, U, and T;

1. A family relation certificate, removed copy, investigation report (in the course of examination accompanied by the original copy), investigation report, investigation report (in the form of attachment and arrangement of account transaction), investigation report, estimate, etc., complaint sheet, electronic tax invoice, etc., order sheet and estimate, total amount of registration, document related to payment, written demand for attempted bond, document related to demand for delivery of suspect A, document sent and mail of suspect, report, trademark register, examination of representative director, business plan of mobile security solution, total printing contract, recording document, transcript, full certificate, statement of registered amount of registration, statement of deposit account transaction of damaged source, document of submission of document to the complainant, document of tax base report, document of credit rating, credit rating, standard purchase contract, notice of purchase to the Supreme Prosecutors' Office, document of notification of purchase of services, document of notice of tender to the suspect and the Korea National Park Management Corporation, general service contract between the suspect and the Korea National Park Corporation;

Application of Statutes

1. Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347 (1) and (2) of the Criminal Act (the fraud against the victim's F), Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347 (1) of the Criminal Act (the fraud against the victim's P), Articles 109 (1) and 36 of the Criminal Act, Articles 109 (1) and 36 of the Labor Standards Act, Articles 44 subparagraph 1 and 9 of the Guarantee of Workers' Retirement Benefits Act, Article 231 of the Criminal Act, Articles 234 and 231 of the Criminal Act (the use of a fraudulent document)

1. Commercial competition;

Articles 40 and 50 of the Criminal Code (for each worker who has not paid both wages and retirement allowances upon retirement, the violation of the Labor Standards Act due to the payment of wages for each worker, the violation of the Guarantee of Workers' Retirement Benefits Act, the punishment prescribed for a crime with a larger amount of delay in payment, each of the crimes of forging each private document, and the crimes of uttering of each private document) and each of the crimes is heavier AB.

Punishment specified in the crime of forging a private document in the name and the crime of uttering of a private document in the name

1. Selection of punishment;

In regard to the violation of each Labor Standards Act, the violation of each Act on the Guarantee of Workers' Retirement Benefits, the Forgery of Private Document, and the use of a falsified document, each sentence of imprisonment

1. Aggravation for concurrent crimes;

Judgment on the assertion of the defendant and his/her defense counsel regarding the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against the victim F with the largest penalty provided for in the former part of Article 37, Article 38 (1) 2, Article 50, and Article 50 of the Criminal Act

1. Summary of the assertion

(a) 2017Gohap122;

1) Transactions between L and the victim F, victim F and C are false transactions to raise sales performance, and both of them are null and void as a conspiracy. C merely received software from another company in relation to the I business and did not receive goods from L or F, and therefore does not constitute a crime of fraud, since there is no obligation to pay the price for goods to the victim F.

2) The fact that the victim F paid L is derived from L’s extension of credit and the active solicitation of AH, and it cannot be deemed that there was a deception by the Defendant. Even if there was a deception by the Defendant, the victim F is not a transaction with C with the belief that the joint account would be registered on the joint account, but a transaction with the belief and belief of adequate L’s credit, and thus, there is no causal relationship between the deception and the victim F’s disposal.

3) When the Defendant makes a request for the payment of the price for supply to I, the Defendant intended to register the joint account at the time, but it was limited to the process of dealing with various problems that occurred at the time, and was paid to AK (hereinafter referred to as "AK"), which is a real transaction party, by taking advantage of the fact that the amount was paid more than four to five days by the time limit for payment to the victim F. Therefore, the Defendant has no intention to commit fraud.

(b) 2018Gohap300 [Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)]

1) The prior purchase contract between C and the victim P is completed by the victim P to pay the price of the goods and by transferring the software right to the price to C, and whether to conclude such contract is determined by the victim P, so there is no deceptive act of the defendant or there is no causal relation between the act of disposal by the victim P and the deceptive act.

2) Since the above prior purchase contract is guaranteed the return of goods, it is possible for the victim P to return the purchased software and receive a refund of the goods without being supplied with the software, so there is no intention to commit fraud against the Defendant.

2. Relevant legal principles

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 that the deception does not necessarily require false indication as to the important part of a juristic act, and it is a basis for judgment for an actor to make a disposition of property which the actor wishes by omitting the other party into mistake (see, e.g., Supreme Court Decision 2003Do7828, Apr. 9, 2004);

B. Whether a certain act constitutes a deception that causes mistake to another person, and whether there exists a causal relationship between such deception and property disposal should be determined objectively in light of the transactional situation, the other party’s knowledge, character, experience, occupation, and other specific circumstances at the time of the act (see, e.g., Supreme Court Decisions 87Do1872, Mar. 8, 198; 201Do8829, Oct. 13, 2011).

C. The intent of the crime of defraudation, which is a constituent element of the crime of fraud, shall be determined by comprehensively taking into account the objective circumstances such as the Defendant’s financial history, environment, details of the crime, and the process of performing the transaction before and after the crime unless the Defendant confessions (see, e.g., Supreme Court Decision 2003Do5382, Sept. 15, 2005)

3. Determination as to 2017 Highis122

(a) Facts of recognition;

1) On November 18, 2016, C entered into a contract for supply of goods with AY, which is the ordering entity of the above project, with 315,700,000 won, and on November 23, 2016, C entered into a contract for supply of goods with 773,240,000 won with ASI. On December 1, 2016, C entered into a contract for supply of goods with AY, which is the ordering entity of the above project, with AY, to pay the total amount of money to CF to the said account without the consent of the victim to pay the money to CF as the total amount of money to be paid to the said account by the victim under the joint name of 30,000,000 won. On the other hand, C, which is a joint account holder, separately from the data to pay the money to the said account under the joint name of the victim to CF, separately from the data to be paid to the said account holder under the joint name of CF.

3) Pursuant to the instant contract, C and the Victim F opened a joint account (Account Number: BB, and the said account are formally used by C and C and the victim F’s seal impressions in order to use the account. hereinafter “instant joint account”) under the instant contract.

4) From around 16:45, the Victim F remitted KRW 994,50,00 to the L’s account in the name of KRW 17:16 on the same day, L transferred KRW 974,100,000 to the account in the name of M; KRW 958,80,000 to the account in the name of E around 17:57 on the same day; KRW 958,80,000 to the account in the name of E; and KRW 958,80,000 to the account in the name of C around 18:00 on the same day; ultimately, C transferred KRW 958,80,000 among the money remitted by the Victim F, and used it as the employee’s wage, company operation fund, etc.

5) On December 1, 2016, C entered into a supply contract with other companies, such as victim F or L, Company BC (hereinafter “BC”) with respect to the necessary software in connection with the instant software purchase business, and supplied the software to I on December 2, 2016, and received the supply inspection from the I prosecutor on December 21, 2016.

6) However, on November 23, 2016 and December 1, 2016, C submitted to I a separate account, other than the instant joint account, and registered as the settlement account in the computer. On December 22, 2016, C submitted C’s separate bank account (Account Number BE) to I at the time of filing a claim for the purchase price of the instant software, and received KRW 1,088,940,000 from I on December 26, 2016.

7) On December 26, 2016, C paid KRW 1,200,00,000 to K in total with the money received from I and the money kept in the said account.

8) On March 6, 2017, C filed an application for a commencement order of rehabilitation procedures with Seoul Rehabilitation Court 2017 Gohap10052.

B. Judgment on the assertion that fraud is not established as a false declaration of conspiracy

1) Fraud is established by the Defendant’s deception, in which the victim was involved in an act of disposal of property, and the property interest which is the object of fraud does not necessarily mean only the economic benefits protected under private law, and even if the victim’s disposal act is null and void legal act, if the benefits paid by the victim’s disposal act fall under the economic interests which are the object of fraud, then fraud is established (see Supreme Court Decision 2001Do2991, Oct. 23, 2001). Even if the provider is unable to exercise the right to claim the return of the beneficiary against the beneficiary because it constitutes illegal consideration under Article 746 of the Civil Act, if the beneficiary provided the provider with the property falling under illegal consideration through deception, then the crime of fraud is established (see Supreme Court Decision 2006Do6795, Nov. 23, 2006).

2) Based on these legal principles, in light of the content and transaction structure of the software purchase business of this case, recognized by the evidence submitted to this court, and the process of conclusion of the contract of this case between C and the victim F, the victim F, rather than the contract under which the victim F, who actually supplies the software to C, appears to be a kind of fund support contract in which the victim F, paid the price for the purchase of the software to purchase and deliver the software to C, and later, paid the price for the supply to the victim F. However, as seen below, the victim F, upon the defendant's explanation, concluded the contract of this case and paid the price for the purchase of the software to be supplied to the software purchase business of this case to C in accordance with the contract of this case, thereby doing property disposal act and thereby, it constitutes fraud. Accordingly, the defendant and the defense counsel cannot be accepted.

C. Determination on deception and causation

1) The Defendant: (a) registered the instant joint name account with the victim FF employees as the settlement account; (b) paid the price for supply to the victim F by receiving the instant joint name account as the settlement account; and (c) concluded a contract with C with the victim F; and (b) thereafter, the Defendant registered another account that is not the instant joint name account as the settlement account and received the price into the said account; and (c) thereby constitutes deception. Meanwhile, as alleged by the Defendant, even if the instant contract was concluded at the request of LH, a third party employee, as alleged by the Defendant, it does not affect the nature of fraud insofar as the Defendant deceivings the victim F as seen above in the process of concluding the contract.

2) The reason why the victim F paid L without taking a measure to secure a claim, such as obtaining real estate and movable property security from C or being issued a performance guarantee insurance policy, is because, barring any particular circumstance, it was evident that C would receive the price of supply from I, and if I registered the settlement account for the payment of the price of supply from I as the instant joint name account, C could not withdraw it without the consent of the victim F, and thus, C could receive the payment clearly with the money in the said account. Therefore, if the Defendant did not agree to register the instant joint name account as the settlement account with I, the victim F would have concluded the instant contract and did not pay the purchase price in L, and thus, there is a causal relationship between the said Defendant’s deception and the victim F’s disposal.

3) The Defendant and the defense counsel asserted that the victim F employees were aware of the fact that the instant joint name account could not be registered in I because the nominal owner of the instant joint name account and the contracting owner of the instant software purchase business could not coincide. However, according to the aforementioned evidence, C and the victim F may not accept the aforementioned assertion by the Defendant and the defense counsel, which differs from the foregoing premise, on the ground that, at the time of the preparation of the additional supply contract, C and the victim F, the employees of the management support division C agree to the contractual name and the name of the account in order to register the account as the settlement account in I, and therefore, the joint account is opened in the form of “I, but the name of the account is bound to be C.”

D. Determination on the criminal intent of defraudation

In light of the following circumstances acknowledged by the evidence duly adopted and investigated by this Court, the above assertion by the defendant and the defense counsel is not accepted, since it can sufficiently be recognized that the defendant has a criminal intent to acquire by deceit.

1) First, as to the process of the registration of the instant joint name account, since the victim F did not take measures for securing credit, it was necessary to have the instant joint name account registered as the I's account for settlement of accounts in order to receive the price from C properly. Therefore, the victim F emphasized the importance of the joint name account in the process of concluding the instant contract, and puts emphasis on the establishment of the joint name account into the I's account and transfers materials proving the importance of the joint name account to the victim F. Nevertheless, the Defendant submitted C's separate account to I on November 23, 2016 and December 1, 2016, and registered it in the electronic account with C's account. On December 22, 2016, the Defendant submitted to I for the settlement account and received the price by submitting the said separate account to C's separate account to C's account as the sole account.

The victim FF employee sent e-mail to the AS CJ (the defendant's company division) that was the head of the IS C's computer registration account, with the content that "I opened the I's joint account in connection with I's account. I's request for I's registration to the I's joint account created, and to close the registered screen and send it to the I's response. I't have to prove this request. I's response to H's receipt of document as off-line, and I's response to it is difficult for H to send documentary evidence such as the closure of the I's name to the I's account, and thereafter, I's response to the purport that I's submission of the I's joint account to the I's account to the effect that it would not have been known that the I's account could not be registered with the I's own account because it could not be registered with the I's own account, and the defendant could not be registered with the I's own account because it could not be registered with the I's own account.

2) Next, in light of the circumstances after C received the price of supply from I, the Defendant continued to receive the payment after receiving the payment from I on December 26, 2016. In other words, in the case of gold business on January 5, 2017 to the victim F, the Defendant was issued an invoice on December 29, 2016 after the completion of all inspections on December 26, 2016, but the K Emergency Inspection was completed as a whole on January 3, 2017, and the execution was postponed on January 25, 2017. The Defendant was notified of the e-mail deposit amount from the Government on the payment schedule to the KRW 200,000,000,000 to KRW 175,000,000,000,000,000.

3) In addition, C’s financial situation, etc. as of March 24, 2017, the total assets as of March 24, 2017 were 1,038,315,00 won in total assets, 23,55,179,000 won in total assets, and -22,216,864,00 won in net assets in total assets. Moreover, most of the public sector SI (SI) in which C participated in a large scale of large-scale business, and the deficit took place with loans from financial institutions, and the risk factors arising from the operation of the internal business that could not be properly reduced after the date, the management status becomes worse due to the non-effective operation of the internal business that could not be properly reduced. C appears to have been engaged in a business by borrowing funds from L et al. due to a lack of regular funds and receiving goods after the supply of goods from L et al. In such process, C’s profitability appears to have been more likely to have been paid for the business.

In this regard, the defendant also stated that "C's profit structure has disappeareded." Although C received projects such as 'BF' and 'BG' from government agencies' system operation and maintenance projects as its main flag, due to the characteristics of the industry, such as extension of the project period, etc., a large scale of hostiles have occurred due to the extension of the project period, etc., and offset the hostiles by the delayed payment of loan and credit purchase amount (Evidence No. 358 of the evidence record). C was supplied with software related to the software purchase business of this case from various other companies such as BC, etc., and the above goods price claim was reported as rehabilitation claim in the rehabilitation procedure against C.

4) Meanwhile, the Defendant and the defense counsel asserted that C received the payment earlier than the scheduled amount from I on December 26, 2016, and paid it to AK first by using the remainder of the due date for the victim F, and thereafter, C received an investment from AL to February 10, 2017, and tried to pay the victim F with the said money, but failed to receive an investment.

① However, [The supply price received from the joint account of this case] was to be paid to the victim F. ② The victim F. The due date for payment to the victim F. The rehabilitation claim of AK as reported in the rehabilitation case of C is about 82,567,200 won due to the above repayment. ④ AK issued a tax invoice with the "BH" related server and network supply price of 2,161,50,000 won to the defendant for the first time, and it is difficult to find out that the defendant would have paid the above amount of interest and delay damages to AK 1,50,000 won (which would have been paid to the defendant 2,50,000,000 won) since it was not paid to the defendant 2,50,000 won due to the above loan increase of 1,50,000 won (which would have been paid to the defendant 16,000,000 won).

4. Determination as to 2018Gohap300

A. Determination on deception and causation

In light of the following circumstances acknowledged by the evidence duly examined by this court, the defendant entered into a prior purchase contract with the victim P by notifying that the inventory software of the existing prior purchase contract was not supplied but the delivery was completed, thereby making the victim P enter into an error. This constitutes a deception, and the causal relationship between such deception and the disposal of the victim P is recognized. Accordingly, the above assertion by the defendant and the defense counsel is rejected.

1) The structure of the instant prior purchase agreement and the important matters thereof are not the victim P to purchase the software from the victim P, but C to use the product price in advance and to supply the software directly to the supplier after using the product price in advance, a financial support agreement is a form of the victim P to receive the price and return the product price plus 15% profit to the victim P (if the victim P directly operates the product to supply the software to the supplier, it is determined that the victim P would receive a profit equivalent to 20% of the product price, and the victim P would not actually operate the business directly to the supplier.)

C After entering into a prior purchase agreement, the purpose of this agreement was to secure the price of goods paid in advance by the victim P, and C was to provide the software and pay the price of goods to the victim P by finding the delivery place in accordance with the prior purchase agreement (the fourth prior purchase agreement was made in the form of a general sales agreement with the victim P to have the total right to purchase the software, such as the victim PC Q, and the substantial content of the above agreement was to adjust the software sold thereafter with C with the total sales right equivalent to the price of the goods paid in advance by the victim P, and it is virtually the same as the previous prior prior purchase agreement).

The victim P, even though the inventory of the existing pre-purchase contract was not so serious but continued to conclude the pre-purchase contract, the amount to be attempted would increase. Therefore, the issue of whether the pre-purchase contract has been stocked or not became an important standard for determining whether the victim P would enter into the next pre-purchase contract.

2) Conclusion and implementation process of the instant prior purchase contract

A) On February 2, 2016, the victim P related to the prior purchase agreement entered into a contract for prior purchase of software equivalent to KRW 300 million from C (hereinafter referred to as “the first prior purchase agreement”) from C on December 22, 2014. On January 2 and March 2015 of the same year, C supplied the software of the first prior purchase agreement to BI and BJ mobile security software projects and paid the price for the goods to the victim P. The first prior purchase agreement was fully implemented.

On July 30, 2015, the victim P was entered into a contract to purchase the software equivalent to KRW 30 million from C (hereinafter referred to as the "second prior purchase contract"). However, during January 2016, the defendant suggested the victim P/U to enter into an additional prior purchase contract with the victim P/U while the software for the second prior purchase contract was not supplied. T, because U did not bring a stock of the defendant's prior purchase contract with the defendant's second prior purchase contract, it is difficult to accept the defendant's second prior purchase contract, and the defendant did not enter into an order to supply the second prior purchase contract to T and U through the C AX team and the Supreme Prosecutors' Office (hereinafter referred to as the "2 prior purchase contract") with the 1.6th National Tourism Organization, which did not issue the second prior purchase order to the 1.6th Central Prosecutors' Office (hereinafter referred to as "the 1.6th Central Prosecutors' Office"). It was also difficult for the defendant to enter into an order to send the second prior purchase order to the 1.6th new purchase order.

On February 2, 2016, P trusted the above fact, and entered into a contract to purchase software equivalent to KRW 550 million from C in advance (hereinafter referred to as "third prior purchase contract"), and paid all the aforementioned prior purchase price.

B) As to the prior purchase contract dated August 31, 2016

On the other hand, with regard to the implementation of the said third-party purchase contract, E sent an order for the supply of some of the software of the third-party purchase contract to the Seoul Water Supply and Waterworks Management System and the Water Supply and Waterworks Security Software Business on March 31, 2016 to the victim P, and the victim P issued sales tax invoices in accordance with the above order on the same day. Thereafter, on May 31, 2016, E sent an order for the supply of the remaining software of the first-party purchase contract to the Ministry of National Defense for the mobile soft construction project to the victim P, and the victim P issued sales tax invoices in accordance with the above order on the same day. However, the supply contract for the Ministry of National Defense and the Ministry of National Defense, which is the premise for the issuance of the above order, was not actually concluded.

On July 31, 2016, the Defendant proposed an additional pre-purchase agreement to U and T while the inventory of the third pre-purchase agreement was satisfyed. On August 31, 2016, P believed the above fact and entered into a contract to pre-purchase software amounting to KRW 50 million from C (hereinafter referred to as “fourth pre-purchase agreement”) and paid the above pre-purchase price in full.

3) Mistake and causation of victim PP

As seen above, the first prior purchase contract was normally supplied and executed according to the terms and conditions of the contract, and the second prior purchase contract was not actually supplied to the Korea National Tourism Organization, the Seoul Special Metropolitan City of the third prior purchase contract, and the Ministry of National Defense to the Supreme Prosecutors' Office, and the Ministry of National Defense. However, the defendant sent to the victim P all the supply under the previous prior prior prior prior purchase contract to the victim P and sent a false order to the victim P, thereby allowing the victim P to enter into the third and fourth prior purchase contract by making it erroneous that the inventory of the second and third prior purchase contract was all caused by mistake. Whether there was any inventory of the existing prior prior prior purchase contract or not is a conclusion of the contract by the victim P.

If the defendant did not conclude that the inventory of the existing pre-purchase contract was raised as above, it seems that the victim P did not conclude the three and the fourth pre-purchase contract (C's AX also stated that it is an example to purchase a stock additionally because the inventory of the existing pre-purchase contract was not raised, as a general rule).

4) As to this, the Defendant and the defense counsel asserted that the victim P entered into a prior purchase contract under their own judgment in order to raise sales performance and obtain profits. However, T. U.S. has a position to be liable for the failure to receive the pre-paid goods payment to C or to issue false sales tax invoices is discovered to the company, but it does not seem that the pre-paid sales contract continued with C even though the stock of the pre-paid sales contract was not raised until at risk (in fact, U.S. and T are liable for the instant case and also withdrawn from P). Accordingly, the above assertion by the Defendant and the defense counsel cannot be accepted.

B. Determination on the criminal intent of defraudation

In light of the following circumstances recognized by the evidence duly investigated by this court, the above assertion by the accused and the defense counsel is not accepted, since it can be sufficiently recognized that the accused has a criminal intent to obtain fraud.

① From around 2010, C had continued to occur by the enemy and had a considerable amount of debt, etc. The Defendant used most of the funds for the operation of the company, personal card payment, loan, interest repayment, etc. immediately after receiving the price of the goods under a prior purchase contract from the victim P. The Defendant appears to have been aware of the fact that C had not returned the price of the goods already received, even if the victim P had cancelled the prior purchase contract and demanded the return of the goods.

② The Defendant supplied all inventory of prior purchase contracts to the victim PP, T, U, etc. On the other hand, the Defendant was unaware of the demand for payment of the purchase price, on the ground that the demand for payment was delayed by the supplier, and thus, the Defendant was not able to pay the purchase price.

③ The victim P did not directly conclude a contract with the Korea National Tourism Organization, the Supreme Prosecutors’ Office, the Seoul Metropolitan City, the Ministry of National Defense, etc., and thus, it was difficult to directly verify the conclusion of the supply contract to the above supplier. In addition, since the Defendant had concluded a supply contract, the Defendant did not have any reason to request the return of goods.

④ As seen above, inasmuch as the Defendant made a prior purchase contract by deceiving the Victim P that the inventory of the existing prior purchase contract was not softened even though the Defendant was not softened, the Defendant’s criminal intent is recognized as the perpetrator of the fraud, and the Defendant is able to return the inventory of the prior purchase contract, the criminal intent of defraudation cannot be denied.

Reasons for sentencing

1. The scope of punishment by law;

Imprisonment with prison labor for not less than three years but not more than 45 years;

2. Scope of recommending types according to the sentencing criteria; and

(a) A primary crime (Fraud);

[Extent of Recommendation] General Fraud Type 3 (at least KRW 500 million, less than KRW 5 billion), Basic Field (3~6 years) 3

【Special Convicted Person】

(b) Second crime (Forgery of private documents and uttering of private documents);

【Scope of Recommendation】

Type 1 (Counterfeit, Alteration, etc. of Private Documents) Basic Area (6 months to 2 years)

[Special Convicts]

[Extent of Recommendation] Type 3 (at least KRW 100 million) Basic Area (6 months to 6 months)

* descriptive criteria: 1-stage increase in type as a result of adding up the same competition;

【Special Convicted Person】

(d) The scope of final sentence due to the aggravation of multiple offenses: Imprisonment with prison labor for not less than three years nor more than seven years and not more than six months;

3. Determination of sentence;

The following circumstances and the Defendant’s age, character and conduct, environment, motive and background of the crime, means and consequence of the crime, etc., and all of the sentencing factors shown in the trial process of this case, including the circumstances after the crime, shall be determined as ordered.

o. Unfavorable circumstances: The instant fraud crime was committed by the Defendant by deceiving the Defendant F to register the instant joint name account with the victim F as the settlement account, and by receiving the payment of the price in the said account, by deceiving the Defendant, and by deceiving the victim P as if the inventory software of the existing prior purchase contract was sold, and by deceiving the Defendant P, thereby deceiving the amount equivalent to KRW 1.1 billion.1 billion. In light of the above deception method, damage amount, etc., the crime of violation of the Labor Standards Act and the Act on Guarantee of Workers’ Retirement Benefits is not good. The Defendant did not pay wages and retirement allowances up to 117 employees of the company run by the Defendant to 117 employees of the company run by the Defendant. In addition, the Defendant forged the result of the examination of the victim’s P business progress, and did not recover damage to the victim’s employees and the Defendant’s employees. In addition, the crime of violation of the Labor Standards Act and the Act on Guarantee of Workers’ Retirement Benefits was more than 1.5 billion won in light of the number of victims and the amount of damage, etc.

○ favorable circumstances: The Defendant recognized and misled the Defendant to commit the crime against the violation of the Labor Standards Act, the violation of the Guarantee of Workers’ Retirement Benefits Act, private documents, forgery, and the crime of uttering. The instant fraud does not take money from the victim F and P by carrying out a business without any substance, but partly deceiving the Defendant in the process of concluding a contract related to the business that was actually promoted.

In addition, the Defendant does not seem to have been in arrears with wages and retirement allowances for the employees of the company in a planned or malicious manner. C has a claim equivalent to one billion won against the victim P, and thus, the damage may be partly resolved or resolved by means of offsetting, etc. In addition, the Defendant has no record of being punished for the same kind of crime of fraud.

Judges

The presiding judge, judge and presiding judge;

Judges Lee Jong-soo

Judge Kang Han-soo

Note tin

1) If there are more than one person in writing, two or more persons in whose name each person in whose name the document is to be drawn up; and

When a document in a nominal name has been forged, several crimes of forging documents are committed according to the number of persons preparing the document, and joint signature documents shall be committed.

Forgery is a natural observation or a single act under social norms, and thus the crime of forging several documents is committed.

It is deemed that Article 40 of the Act constitutes a commercial concurrent crime (Supreme Court Decision 87Do564 Decided July 21, 1987).

see, e.g., Supreme Court Decision

2) Violation of partial Labor Standards Act and violation of the Guarantee of Workers' Retirement Benefits Act, fabrication of private documents, and uttering of private documents, respectively.

Sentencing is not applied as it is because of the commercial competition relationship, but the decision to apply the following sentencing criteria:

reference is to determine the sentence of section B.

(iii) determine the type and the recommended area on the basis of the sum of the amounts acquired through deception, as it is a single concurrent crime;

(iv) determine the type and the recommended sector on the basis of the aggregate amount of unpaid amounts, because of the same class of concurrent crimes, provided that the amount not paid is aggregated;

As a result, 1/3 of the lowest limit of sentence is reduced because the most serious type of crime increases in one step.

shall be sentenced to imprisonment with prison labor for six months, which is the lowest limit of sentence of Type 2 (not less than KRW 50 million, less than KRW 100 million), the most severe single crime.

to the extent of this section.