2015No1304 A. Fraud

B. Violation of the River Act

(c) Preparation of false official documents;

(d) Exercising false official documents;

(e) Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes;

(f) Violation of the Road Traffic Act;

1.(a) A

2.(c)(d)(f) B;

Defendants and the Prosecutor (Defendant A)

Shoop, leoping, Hann (prosecution), Maternity (Public Trial)

AZ Law Firm

Attorney BA, BB, BC, BD, BE, BF (for Defendant A)

Law Firm BG

Attorney BH, BI, J, BK (Defendant B)

Changwon District Court Jinwon Branch Decision 2013Da1252, 2014 decided May 27, 2015

Provided, That this Court Decision 698(Joint), 2014Ma1034(Joint)

September 10, 2015

Of the judgment of the court below, the guilty portion against Defendant A shall be reversed. Defendant A shall be punished by imprisonment for one year with prison labor for the crime of Articles 1-A and 1-B as stated in the judgment of the court below, and imprisonment for six months for the crime of 1-B as stated in the judgment

All appeals against Defendant B’s appeal and the prosecutor’s appeal against Defendant A by the lower court are dismissed.

1. Summary of grounds for appeal;

A. Defendant A

1) misunderstanding of facts and misapprehension of legal principles

Defendant A asserts that, in full view of the following circumstances, the lower court erred by misapprehending the facts or by misapprehending the legal principles, thereby adversely affecting the conclusion of the judgment, although each crime of fraud against the victim F, E, E, and G and the violation of the River Act cannot be established.

① A victim F is an investment of KRW 20 million in Defendant A’s aggregate extraction project. At the time of investment, Defendant A’s financial standing and business plan, etc. was well known, and Defendant A could not be said to have taken the victim’s funds by deceiving the victim F, thereby deceiving the said KRW 20 million.

② Defendant A obtained permission to use and benefit from the name of N on M sales store due to lack of qualification to participate in the bid for the benefit of using and benefit from the M sales store. However, the other party to the permission to benefit and benefit from the use and benefit is only N who is the nominal owner, and the victim subordinate group is only paid the benefit and benefit fee from the above N. Therefore, Defendant A cannot be deemed as deceiving the victim subordinate group.

3) Since the subordinate group planned the construction of a warehouse of M store and newly constructed the said warehouse through the preparation of design drawings, the selection of a construction company, etc., Defendant A did not perform any act of constructing the said warehouse.

④ Under the premise that only the advance payment is possible when purchasing the paint equipment, the victim G himself/herself purchased the paint equipment and used it in the aggregate extraction business. As such, Defendant A could not be deemed to have enticed the victim G.

2) Unreasonable sentencing

Defendant A asserts that the punishment imposed by the court below (the punishment No. 1-A, C, and D: imprisonment of 8 months and imprisonment of 1-B: imprisonment of 4 months) is too unreasonable.

B. Defendant B

Defendant B asserts that the punishment sentenced by the lower court (two years of suspended sentence in August) is too unreasonable (the Defendant B withdrawn the existing assertion of mistake of facts from the defense counsel opinion of July 28, 2015).

C. Prosecutor (Defendant A)

1) In full view of the following circumstances, even if Defendant A’s fraud on March 5, 2012 against Defendant A’s victim F and the Defendant’s fraud on March 6, 2012 against the victim G were found guilty, the court below erred by misapprehending the facts and adversely affecting the conclusion of the judgment on the ground that the evidence submitted by the prosecutor alone is insufficient to recognize that the Defendant committed deception against the victims.

① The victim F consistently stated in the investigative agency and the court below’s decision that “The victim F borrowed KRW 30 million from the AI, the wife of the Defendant A, separate from the Defendant’s words, and stated to the effect that “the victim F borrowed KRW 30 million from the Defendant A.” The investigative agency and the court below stated to the effect that “the victim F was asked to receive sand purchase fund from the victim F.” As such, it is reasonable to deem that Defendant A deceiving the victim F in relation to KRW 30 million.

(2) From the investigative agency, the victim G consistently stated to the effect that “Defendant A would pay for dump trucks instead of the dump trucks in lieu of the dump trucks.” The victim G’s legal statement in the lower court is merely a fact stated with AJ at the time of purchasing dump trucks, and the above legal statement in the lower court alone does not make it difficult to believe the victim G’s statement in the investigative agency. Therefore, it is reasonable to deem that Defendant A deceiving the victim with regard to the purchase of dump trucks.

2) Unreasonable sentencing

The prosecutor asserts that the above sentence imposed by the court below against Defendant A is too uneasible and unfair.

2. Judgment on the misconception of facts and misapprehension of legal principles by Defendant A

A. This part of the facts charged

1. Fraud to the victim F (2013 highest 1252);

On December 20, 2011, the Defendant made a false statement that “The Defendant would return money within two months at the latest, as a bid bond, to the victim F with a site of 1,500 square meters owned by Hadong-dong-gun, Hadong-gun, J.” The Defendant would receive a successful bid on the said land. The Defendant would return money within two months at the latest as a bid bond.”

However, at the time of fact, the Defendant did not determine the customer of the sale of aggregate extracted in relation to the aggregate extraction business, and did not know whether or not to yield profits from the business normally due to the lack of initial funds, and did not have any specific property, contrary to the fact that the Defendant had been in a bad credit condition at the time and had a debt equivalent to approximately KRW 400 million (the Defendant’s building was owned by the Defendant, but it did not have any property value or value at a rate of KRW 356 million in total) within 2 months from the victim. The Defendant was remitted from the victim to the account in the name of the Defendant’s wifeK on the 26th of the same month.

Accordingly, the defendant was given property by deceiving the victim.

2. Fraud to the sub-group of a victim (2014 highest 698);

On March 18, 2010, the Defendant came to know of the fact that there was a public notice of permission for use and profit-making at Mpark sales facilities (hereinafter referred to as “M store”) located in the Hanam-gun L, Hanam-gun, by requesting the N, which was known to and known of the fact that N would use and profit from the above M store, and was asked to obtain permission for use and profit-making from the victim sub-Gun. On March 18, 2010, the Defendant: (a) instructed the person in charge of the affairs of permission for use and profit-making from N to file an application for permission for use and profit-making of the M store with N, if N would pay the use and profit-making fees at the time of using and profit-making of the M store; and (b) decided that the Defendant had N applied to the person in charge of the affairs of permission for use and profit-making from the M store.

However, the Defendant did not participate in the bid for permission for use of public property or become eligible for permission for use of public property since he did not pay national taxes equivalent to KRW 70 million from around 2009 to around that time.

The Defendant deceptioned P as such, caused P to proceed with the procedure of permission, and obtained permission for the use and profit-making of M points from the victim lower-dong group on the same day from March 18, 2010 to March 17, 2013, acquired property gains equivalent to KRW 64,756,230 in total of M store use and profit-making fees and interest.

3. A person who intends to newly construct or alter a structure in a river area (2014 highest 698) in violation of the River Act shall obtain permission from the river management agency.

As above, the Defendant filed a civil petition against the extension of store stores in the Hadong-gun, which operated N in the name of N, and as such, in the Hadong-gun, the Defendant planned to extend the building for warehouse (area 31.5 square meters) which is the structure of the Hagdong-gun’s Magdong-gun’s Magdong-gun’s Magdong-gun’s Magdong-gun’s Magdong-gun’s Magdong-gun’s Magdong-gun’s Magdong-gun’s Magdong-gun’s Magdong-gun’s Ma-dong

On March 17, 2012, the Defendant displayed a copy of the design drawing of the building for warehouse that was supplied as a copy of the first planned construction drawing from Hadong-gun Office in charge of the construction of the city and the construction of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the defendant, Q Q Q, who was in charge of the construction, at the time of the construction of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the defendant, and Q Q, who requested Q Q,

4. Fraud in relation to the victim G (2014 highest 698);

On January 12, 2012, the Defendant purchased as part of the PR office with a paint equipment necessary for sand gathering business from the victim G, and made a false statement to the effect that the Defendant would transfer the ownership of the equipment to the victim’s name upon the expiration of the installment period.

However, the defendant's aggregate business at the time did not confirm specific business plans, business partners, etc., and it was impossible to properly implement the business due to the lack of funds, and even if the victim purchases the aggregate in the face of the page because of the lack of specific assets such as the debt amounting to approximately KRW 400 million and national taxes, there was no intention or ability to pay the installments on time.

On January 1, 2012, 201, the Defendant, by deceiving the victim, had the victim purchase an advance of KRW 32,200,000 from the T office located in the Hadong-gun, Hadong-gun, Hadong-gun, and had the victim continue to work on the R sand, but did not pay the remainder of the installments at once, thereby acquiring the pecuniary profit equivalent to the use profit.

B. The judgment of the court below

Based on its stated reasoning, the lower court found the Defendant guilty of this part of the facts charged.

1) The part on fraud against the victim F

According to the evidence duly adopted and examined by the court below and the court below, since all of the circumstances stated by the court below are recognized, it is reasonable to view that Defendant A, even though there was no clear plan to return KRW 20 million to the victim F within two months, deceiving the victim F and defrauding KRW 20 million. Therefore, the court below's judgment that found Defendant A guilty of this part of the facts charged is justified, and thus, it is not acceptable to accept the allegation of misunderstanding of facts and misapprehension of legal principles in this part.

2) The part concerning the fraud against the Defendant-dong group

According to the evidence duly adopted and examined by the court below, the circumstances stated by the court below are all acknowledged. ① Whether local tax or national tax is delinquent is important in determining whether a person who has obtained permission to use and benefit from public property in the future should pay the use and benefit fee, etc. In addition, it is important material to determine whether the person who has obtained permission to use and benefit from public property in the future, and accordingly, the delinquent taxpayer of local tax at the time of the public announcement of permission to use and benefit from M store and the bid should not participate in the bidding and the bid should be invalidated in the case of violation of the qualification to participate in the bidding. Thus, the act of Defendant A without the qualification to participate in the bidding is assessed as a deceptive act against the victim's subordinate group. ② The name lender, the name lender, only lent the name of the defendant, but only lent the name of the defendant, and thus, he cannot pay the use and benefit fee of M store, and ③ the victim's act of not cancelling the permission to use and benefit from M market constitutes a fraudulent act under the name of the victim.

3) Part on violation of the River Act

According to the evidence duly adopted and examined by the court below and the court below, the circumstances revealed by the court below are all acknowledged. (1) In addition, even if Hadong-gun planned the construction of a new warehouse of Ma stores and subsequently conducted it, it is reasonable to view that Defendant A committed a violation of the River Act by arbitrarily demanding Q, a construction business operator, to install toilets and boiler inside the above warehouse at his own discretion, and Q, unlike the design of Hadong-gun, was fixed on the floor in the design of the toilet and boiler at the request of Defendant A. Thus, such act of Defendant A was judged as a "construction of a new structure", and ② the fact that the Hadong-gun continued to use and benefit from the Ma stores even if he knew that the warehouse of Ma stores was newly constructed differently from the existing design, the fact that the Hadong-gun continued to use and benefit from the Ma stores did not affect the establishment of a crime of violating the River Act. Accordingly, the judgment below convicting the facts charged as to this part of the judgment below is not justified.

4) The part concerning the fraud against the victim G

According to the evidence duly adopted and examined by the court below and the court below, since all of the circumstances implemented by the court below are recognized, it is reasonable to view that Defendant A, even though there was no obvious plan to pay the installment of the paint equipment purchased by the victim G, by deceiving the victim G and allowing the victim G to purchase the equipment, and then acquired pecuniary benefits equivalent to the profits from the use of the equipment using the defendant A's aggregate extraction business. Therefore, the court below that found Defendant A guilty of this part of the facts charged is justified, and thus, rejected Defendant A's assertion of misunderstanding of facts and misapprehension of legal principles

3. Judgment on the prosecutor's assertion of mistake of facts

A. This part of the facts charged

1. Defendant A made a false statement to the effect that, around March 5, 2012, Defendant A, at around KRW 30 million with the victim F (2014 high-ranking 698), Defendant A borrowed sand as collateral and borrowed money from the victim F through AI, a wife, in front of the 'R' office operated by Defendant A in the AI of Hadong-dong-dong, Hanam-dong-dong-gun, and around that time, Defendant A borrowed sand again to the victim for the purchase of sand. Accordingly, Defendant A also borrowed KRW 30 million with the victim, Defendant A would sell sand first borrowed 20 million if he/she borrowed sand from the victim.

However, at the time, Defendant A’s aggregate business plan, customer, etc. was not determined, and the project was not carried out properly due to the shortage of funds, and there was no intention or ability to repay the said amount even if he/she borrowed money from the victim due to the absence of any particular property, such as the debt was over KRW 400 million and national taxes were in arrears. The Defendant A received a remittance of KRW 30 million from the victim’s account in the name of the said AJ around March 7, 2012.

2. The part related to the fraud related to the purchase of dump truck to the victim G (2014 group 698) on March 6, 2012, Defendant A borrowed dump truck necessary for the victim G from Hyundai Capital to 20 million won in the name of the victim, and lent it to the victim G, Defendant A made a false statement to the effect that if the dump truck was purchased from Hyundai Capital to dump truck in the name of the victim, the purchase of the dump truck with the fund and payment of the installments at the time would not cause damage. However, Defendant A did not have an intent or ability to repay the funds even if the victim borrowed dump truck purchase funds from the victim. Defendant A had the victim take the funds borrowed from Hyundai Capital on the same day, obtained KRW 20 million from the victim, and had the victim pay KRW 15,100,000,000 from Hyundai Capital on the same day, and had the victim acquire the pecuniary benefit in subrogation.

B. The judgment of the court below

The lower court rendered a judgment not guilty of this part of the facts charged on the grounds stated in its reasoning.

1) Relevant legal principles

In a criminal trial, the burden of proving the facts constituting an offense charged is borne by a public prosecutor, and the finding of guilt ought to be based on strict evidence with probative value, which makes the judge feel true beyond a reasonable doubt. Therefore, if there is no such evidence, even if there is suspicion of guilt against the Defendant, the interest of the Defendant ought to be determined (see, e.g., Supreme Court Decision 2014Do3163, Jun. 12, 2014).

2) 30 million won fraud part against victim F

According to the evidence duly adopted and examined by the court below and the court below, the circumstances revealed by the court below are all acknowledged. ① Since a person who requested the victim F to purchase sand is AJ, Defendant A cannot be deemed as deceiving the victim F unless there is evidence that Defendant A conspired with AJ to receive the above sand purchase fund from the victim F, ② The victim F, the above guilty part, stated that Defendant A would pay the victim F the above 20 million won as a bid bond within 2 months, and thus, Defendant A could be recognized as a deception. On the other hand, with respect to this part of 30 million won, it is unclear whether Defendant A made a false statement with the victim F as stated in the facts charged, and thus, the prosecutor's assertion that the above part of the facts charged was not erroneous, and thus, the prosecutor's allegation that the defendant F, the above part of the charges was not guilty is not sufficient to accept. Accordingly, the prosecutor's argument that this part of the judgment below is justified.

3) The part related to fraud related to the purchase of dump trucks to victims G

According to the evidence duly adopted and examined by the court below and the court below, the circumstances presented by the court below are all acknowledged. ① In addition, the victim G stated in the court below that “AJ's installment payments are different from R, but we are not aware of whether the victim's installment payments, we are not in our name because of the defectiveness,” and the victim's dump truck's statements to the effect that “AJ is not true,” and unlike the dump truck, in the case of a dump truck, the victim G makes a statement to the effect that “AJ”, unlike the dump truck, the victim who requested the purchase of dump truck as stated in the facts charged, and the victim AJ made a request for the purchase of dump truck to the victim AJ, so long as there is no proof that Defendant A conspired with AJ and caused the victim to purchase dump truck, it is insufficient to recognize that Defendant A was guilty of this part of the facts charged. Therefore, the prosecutor's allegation of facts is not justified.

4. Defendant A and the prosecutor’s assertion of unfair sentencing on February 24, 201, after having been sentenced to ten months of imprisonment due to the violation of the Act on the Control of Narcotics, etc. on the Control of Narcotics, etc. on August 16, 2011, Defendant A and the prosecutor committed the instant crime except for the crime of fraud against the victim subordinate group, even though the period of repeated crime was completed on August 16, 2011, and only four months have passed since the release, and even though the amount acquired from the victim F and G is not a large amount of money, Defendant A did not submit any specific data on recovery of damage to the above victims until three years have passed since the date of the occurrence of the instant case; Defendant A wanted the above victims to commit severe punishment; Defendant A’s loss from the victim subordinate group to KRW 64 million; Defendant A’s obstruction of the execution of the past Act on the Control of Narcotics, etc., damage to public goods, general traffic, obstruction of mental order, obstruction of sexual intercourse, etc. Act, and various punishment charges of gambling, etc.

Although there is no record that Defendant A was punished for the same kind of crime in the past, and the crime of fraud against the victim's subordinate group is related to the concurrent crime under the latter part of Article 37 of the Criminal Act with the violation of the Act on the Control of Narcotics, etc. (fence) and the latter part of Article 37 of the Criminal Act, even if there is a need to consider equality with the case at the same time, each type of punishment that the

Therefore, the prosecutor's argument of unfair sentencing is reasonable, and the defendant A's argument of unfair sentencing is without merit.

5. Judgment on Defendant B’s assertion

It is recognized that Defendant B recognized his mistake and reflected his mistake, and that he agreed with the victim of the traffic accident.

However, Defendant B, in mind of providing convenience in the completion inspection of the warehouse building at M stores to Defendant B, was involved in the preparation of a false statement of business trip of completion inspection and a false statement of completion inspection and the event thereof, and thus, the liability for the crime is not less severe. Defendant B, even though he had been punished several times due to drinking driving in the past, and Defendant B, even though he had been punished several times due to a traffic accident while driving under the influence of alcohol, was engaged in driving under the influence of alcohol, Defendant B, without taking any relief measures, and escaped without taking any relief measures against the victim. Considering other circumstances, Defendant B’s age, character and behavior, environment, motive and circumstance of the crime, means and method of the crime, and the circumstances after the crime, etc., as well as various circumstances, which are the conditions for sentencing as indicated in the present argument and the record, it is not recognized that the sentence imposed by the court below is too unreasonable. Accordingly, Defendant B’

6. Conclusion

The appeal by Defendant B and the prosecutor against Defendant A is without merit, and all of them are dismissed pursuant to Article 364(4) of the Criminal Procedure Act, and the prosecutor’s allegation of unreasonable sentencing against Defendant A is with merit. Thus, pursuant to Article 364(6) of the Criminal Procedure Act, the guilty part against Defendant A among the judgment of the court below is reversed and the pleading is rendered as follows. (No appeal against Defendant A’s guilty part is reasonable, but the prosecutor’s appeal against the guilty part of the judgment of the court below is with merit, so long as the prosecutor reverses the guilty part against Defendant A of the judgment of the court below, this part of the appeal by Defendant

[Judgment of conviction against Defendant A]

The summary of facts constituting an offense and evidence. The facts constituting an offense recognized by this court and the summary of the evidence are as stated in the respective corresponding columns of the judgment below (Article 369 of the Criminal Procedure Act). Application of statutes

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

Article 347(1) of the Criminal Act (Fraud, Selection of Imprisonment), Article 95 subparag. 5 of the River Act, and Article 33(1)3 of the River Act (the construction of a structure within a river area and the choice of imprisonment)

2. Aggravation for repeated crimes;

Article 35 of the Criminal Act (With respect to each crime of fraud against Victim F and G, and a violation of the River Act)

3. Handling concurrent crimes; and

The latter part of Articles 37 and 39(1) of the Criminal Act (mutual between the crimes of violation of the Act on the Control of Narcotics, etc. (fence, etc.) in the judgment of the court below which became final and conclusive as to

4. Aggravation for concurrent crimes; and

The reasons for sentencing under the former part of Article 37, Article 38(1)2 and Article 50 of the Criminal Act are as follows: (a) the Defendant terminated the execution of the sentence and acquired pecuniary profits by deceiving the victim F and G without a clear plan on the business that he promoted in approximately 4 months in 4 months from the end of the sentence; (b) the sum of the money obtained by deceiving the victim F and G without a significant amount of money; (c) the Defendant, as a delinquent taxpayer of national tax, has no bid eligibility and has no intent and ability to prepare use and profit-making fees; (d) by deceiving the victim E-dong-gun in the absence of intent and ability to prepare use and profit-making fees; (e) the Defendant committed a violation of the River Act in the course of establishing the warehouse of M-store; (e) the Defendant acquired money from the victims and obtained pecuniary profits, and (e) has not been paid damages until at least 3 years have passed thereafter, it is inevitable to punish the Defendant with strict punishment in light of the following: (e) the Defendant has consistently been consistently with the Defendant’s defense that it could not obtain;

It is true that there is no criminal history of punishment against the defendant, and that there is a crime of fraud against the victim's subordinate group

The fact that the principle of equity in the case of concurrent crimes under the latter part of Article 37 of the Criminal Act shall be taken into consideration in the circumstances favorable to the defendant, and the punishment shall be determined as ordered in consideration of the age, character and conduct, environment, etc. of the defendant and various sentencing conditions specified in the records and arguments of this case.

The presiding judge, judge and assistant judge;

Judges Song Jong-soo

Judges Kim Gin-soo