(영문) 서울고등법원 2015.11.4.선고 2015노1514 판결

However, with respect to Defendant B, the execution of the above punishment shall be suspended for two years from the date when this judgment became final and conclusive. An applicant for compensation shall be dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant A

(1) misunderstanding of facts

Defendant A introduced the victim E to Defendant B, the actual operator of the project for constructing the main complex building (hereinafter referred to as the “instant project”), and provided the victim’s obligation to pay according to the instant investment contract, and did not participate in G’s investment and fund management, etc. In addition, the victim was sufficiently able to invest KRW 500 million in the instant project, and the prospects of the instant project were revealed. Since the occurrence of an unexpected global financial crisis, the instant project was nonexistent.

Therefore, the defendant A could not be said to have obtained the above 500 million won by deceiving the victim, or there is a criminal intent to obtain the above 500 million won by deceiving the defendant A.

2) Unreasonable sentencing

The punishment sentenced by the court below to Defendant A (two years of imprisonment) is too unreasonable.

B. The Prosecutor (Defendant B)

Defendant B stated that he was responsible for the victim’s investment. Also, considering that Defendant B’s investment contract was prepared retroactively to the victim as of June 8, 2007, Defendant B was in charge of managing funds, including G, as the head of the management headquarters of G, Defendant B was in charge of managing funds, and it is difficult to deem that Defendant B did not consult on the victim’s investment as the type of Defendant A, and that part of the victim’s investment amount was used for the personal purpose of Defendant B, Defendant B can fully recognize the fact that Defendant B committed the instant crime in collusion with Defendant A.

Nevertheless, the court below found the defendant B not guilty on the ground that there is no causal relationship between the victim's remittance and the defendant B's deception, and there is an error of misunderstanding the facts or misunderstanding the legal principles.

2. In the case of fact-finding, the Defendants were prosecuted as a co-principal, and the facts related to the victim's investment in the project of this case are common among the Defendants. Thus, prior to the Defendant's assertion of mistake of facts and the prosecutor's assertion of mistake of facts and the prosecutor's assertion of misapprehension of legal principles, prior to the determination of facts, it is necessary to first examine the facts recognized as common to the Defendants. The following facts can be acknowledged according to

A. G, etc. and loans 1) Defendant A, along with A Q Q, who had performed as the president of the K Bank (hereinafter “K Bank”), established the F Co., Ltd. (hereinafter “F”) on February 24, 2006 for the purpose of running film production and media business. F was loaned 4.7 billion won from the K Bank on April 7, 2007.1) A Q substantially operated the F from the time of its establishment to the beginning of April 2006, while Defendant A Q took over management rights from the end of April 2006.

2) On March 24, 2006, in order to participate in the construction project of a new main complex building, etc., Defendant A, a representative director, established G and owned 90% of its shares. Defendant A, while taking charge of the external affairs of G, appointed Defendant B as the head of the management support headquarters, made Defendant B take charge of the company’s fund management, and participated in the company’s decision-making upon receiving a report on the main affairs from Defendant B and involved in the company’s decision-making.

3) Around June 2006, Defendant A requested the representative director of the K Bank to lend additional KRW 2 billion to F to the representative director of the K Bank, but there is a defect that M is not possible to make a loan in the name of F because the lending limit exceeds the lending limit of the same person; Defendant A requested to provide a loan to the same person in the name of G; and entered into a loan agreement with K Bank on July 5, 2006 with a loan of a lending limit of KRW 2 billion in the name of G, and received a loan of KRW 1.9 billion in the name of G from K bank.

4) Around that time, Defendant A requested M to provide additional loans in the name of G while making a lot of profits for the construction of a new main complex building in the Kazaktan, and M directed AS, a staff member in charge of loans from K Bank, to grant loans of KRW 7 billion in the name of G. However, Defendant A and M discussed the method of lending loans in the name of AT, a high-speed line of Defendant B, around July 10, 2006. Defendant A offered various entertainments in the name of Kazaktan, M, etc. as a local response letter, and M gave instructions from Kazaktan to execute loans in the name of AT in the name of 5.5 billion won in the name of AT.

5) Meanwhile, around August 11, 2006, Defendant A established H with the representative director for the purpose of performing the duties of interference and management of postponeds as the representative director. Defendant A managed G, F, H, etc. established as above, and Defendant B, as the head of the management support headquarters, took overall charge of the fund management of G, F, etc.

B. Progression of the instant project and financial status of G etc.

1) On September 19, 2006, Defendant B borrowed KRW 2 billion and purchased land equivalent to the square meters of square meters in the land necessary for the instant project in the name of G. Moreover, Defendant B concluded a sales contract with the land owner to purchase the land equivalent to the square meters of square meters for the instant project and paid the down payment for the instant project, but as the loan for this purpose did not proceed due to the internal situation of the K Bank, the above sales contract was reversed on October 19, 2006.

2) On the other hand, G entered into a business partnership agreement with the Kenya on October 25, 2006 for the raising of the PF funds and the interference with the construction of the project of this case. However, the project of this case was suspended after receiving a partial loan from the KR bank as above (in the business plan of this case, the total amount of KRW 3.0 billion is stated as necessary until 2008), and the Defendant used KRW 2 billion out of the amount borrowed from the KR bank for stock investment, and arbitrarily lent KRW 180,000,000 to H, etc.

3) Around November 2006, M is bound by the K Bank’s above loan, etc., and around March 2007, prosecution and the Financial Supervisory Service’s investigation on the defective loan, etc. of the K Bank was conducted, and the account of G and F was seized. Since then, the account was used in the name of Defendant B, N, AU,O, P, etc. to manage G and F, and the balance of the account was KRW 74,760 at the time the victim remitted KRW 500 million as follows: KRW 74,760; KRW 10,00; KRW 55; KRW 11,616,81; KRW 50,00; KRW 50,00; and the balance of the account in the name of the NU was 0,00 won.

1) AV (Defendant A’s wife), which had a usual friendship on June 2007, visited Defendant A’s F office located in Gangnam-gu Seoul Metropolitan Government, to listen to the talk about the instant business from Defendant A. The victim provided that Defendant A shall make an investment in the instant business with L, who is the husband of the instant case after hearing the explanation as above. The victim decided to provide a couple’s and couple’s meals together with Defendant A to hear specific explanation on the instant business.

2) 피해자 부부와 피고인 A 부부는 2007. 6. 초순경 서울 강남구 | 소재 'J' 식당에서 부부동반 식사를 하였고, 피고인 A은 그 자리에서 이 사건 사업에 관하여 "이 사건 사업을 위한 토지 매입이 거의 완료되었는데 마지막으로 매입할 토지가 있다. 5억 원을 투자하면 나머지 토지를 매입하고 공사를 착공하여 큰 수익을 낼 수 있다."라는 등의 이야기를 하였다.

3) The victim subsequently expressed the intent of investment to AV by telephone, and AV expressed the victim B.

On June 19, 2007, the victim informed the national bank account in the name of "AX" (which is the account provided for operating funds of this G, etc.) and transferred KRW 500 million to the above account on June 19, 2007. 4) After visiting the above remittance office located in Jung-gu Seoul Metropolitan Government, the victim visited Defendant B to hear explanation on the details of the project and its investment conditions, and made an investment contract including that "the victim shall invest KRW 500 million in the main complex land purchase cost and recover 30% of the amount of the investment at the time of completion of the project together with the principal at the time of completion of the project" (hereinafter referred to as "the first investment contract in this case"). The victim requested the Defendant B to provide joint and several surety by the Defendants and received an investment contract signed by the Defendants as joint and several surety (hereinafter referred to as "the second investment contract in this case").

(d) Use place where the victim remitted 500 million won;

1) Of the above KRW 500 million remitted by the victim on June 19, 2007, 200, the amount of KRW 200 million was transferred to the N on June 20, 2007, which was the date following the remittance. From the above NN account, the amount was transferred from June 20, 2007 to the name of Q, which was the female of Defendant B, KRW 1 million on June 20, 2007, and KRW 19 million on July 6, 2007. On June 26, 2007, the amount was transferred to the Defendant A’s credit card and mobile phone payment, and the amount was transferred to the Defendant’s account on June 29, 2007 through the account under the name of supervision on June 29, 2007, and the amount was transferred to the Defendant’s KRW 4 million on June 26, 2006 at the expense of Defendant A’s credit card and mobile phone payment.

2) Of the above KRW 500 million remitted by the victim, the Defendant B withdrawn and used KRW 2 million on June 19, 2007, which was on the date of remittance. KRW 57 million was transferred to the H’s account on June 20, 2007, and used for H’s public charges, etc. The KRW 27 million was transferred to the F’s account through the P’s account on June 20, 2007, and used for F’s benefits, etc. The KRW 50 million was transferred to the F’s account on June 20, 2007. The KRW 150 million was deposited to the account under the name of the P account on June 20, 2007, and was transferred to the F’s account in the name of 8.9 million out of the transfer to the said account.

3. As to Defendant A’s assertion of mistake of facts

A. The judgment of the court below

The defendant A introduced the victim to the defendant B at the court below, and argued to the effect that he was merely a joint and several surety of the obligation to pay according to the investment contract, and that he did not deceiving the victim.

In regard to this, the court below rejected Defendant A’s assertion on the ground that Defendant A was aware of the fact that Defendant A had received KRW 500 million by deceiving the victim even though he did not have the intent or ability to pay the victim the proceeds and the investment amount of KRW 650 million at the time of committing the instant crime, by taking into account the circumstances as stated in its reasoning in the item of the “judgment on the Defendant’s and

B. Judgment of the court below

In full view of the facts acknowledged above and the following circumstances admitted in accordance with the evidence duly adopted and examined by the court below and the court below, the defendant's allegation in this part is not acceptable, since the facts charged against the defendant A can be sufficiently recognized.

1) The Defendant, as a substantial operator of F and G, has been receiving a report on the overall operation of the company from Defendant B, and the said company suffered difficulties due to financial shortage, etc., and as above, around October 19, 2006, the sales and purchase contract for securing the instant project site was reversed, and around March 2007, the prosecution and the Governor of the Financial Supervisory Service conducted an investigation on the defective loans, etc. of K Bank, and the account such as G and F was seized and the use of the company’s operating funds became inevitable through the Defendant B, etc.’s account.

2) Even when considering the current status of the instant project at the time the victim remitted KRW 500 million, G did not secure the project site necessary for the PF loan and did not seem to have experienced difficulties in raising operating funds, and the Defendants did not fully prepare specific measures to resume the instant project.

3) Nevertheless, if Defendant A invested KRW 500 million to the injured couple as above, he purchased the remaining land and stated that it would soon start the construction work of the instant project. Defendant A used KRW 500 million transferred to the injured party for a purpose unrelated to the instant project, such as operating funds of the company run by Defendant A or personal expenses of the Defendants.

4) In addition, as seen below, the fact that Defendant A conspired with Defendant B to deception the victim and defrauded the above KRW 500 million.3)

4. On the grounds of appeal by the prosecutor (al ground of appeal Nos. 10 and 200)

A. The judgment of the court below

In regard to the facts charged that Defendant B conspired with Defendant A to deception the victim and defrauded the above KRW 500 million, the court below found the Defendant not guilty on the ground that each of the evidence submitted by the prosecutor alone is insufficient to recognize that the victim deposited KRW 500 million in the account in the name of the Defendant B due to the deception of Defendant A, and that the victim caused the mistake by the deception of Defendant B, thereby not being deemed to have remitted the said money, and that there is a causation between Defendant B’s deception and the victim’s property disposal act, and there is no other evidence to acknowledge

[1] Around June 8, 2007, around June 21, 2007, the victim sought explanation of the main complex building construction project from A to this court. A around that time, he decided to make an investment of KRW 500 million. A asked the reason for deposit into the Defendant’s account and asked all the names related to the business in the Defendant’s name. Since the payment of KRW 500 million was made on June 19, 2007, the victim contacted A around June 21, 2007, which was after June 19, 2007, and made an investment contract to the effect that “ADo joint and several sureties” was made to the effect that the investment contract, which was made under Defendant B’s name, was uneasy and uneasy and uneasy.

2) On this issue, Defendant B stated in this court that “E paid KRW 500 million after preparing an investment contract with the principal, and even before preparing an investment contract, Defendant B stated that “E explained to E on the construction of a complex building in the main text of Kazakhstan by telephone.” On the other hand, on June 8, 2007, E transferred KRW 500 million to Defendant B’s account in the name of Defendant B on June 19, 2007, it seems that it conforms to the foregoing argument by Defendant B.

However, Defendant B’s above statement is difficult to believe for the following reasons. In other words, Defendant B made a statement at the prosecutor’s office that “The date of preparation of an investment contract” was “the date of the first explanation from Defendant B was made retrospectively from Defendant B’s request.” ② Defendant B appears to have been unaware of the specific contents of the construction project of the main complex building in Kazakhstan. ③ Defendant B appears to have made a statement to the effect that Defendant B, despite having been in charge of fund raising by substantially operating G and operating Kakhstan, “the victim was enticed and he did not take part in A’s responsibility.” ④ Defendant B attempted to avoid liability in the course of investigation, such as the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) against A finalized on August 26, 2010.

B. Judgment of the court below

1) Relevant legal principles

In relation to accomplices who are co-processed with two or more persons in a crime, the conspiracy is not required under the law, but is limited to a combination of intent to jointly process and realize the crime. Although there is no process of the whole conspiracy, if the combination of intent is made in order or impliedly through several persons, even though there is no process of the whole conspiracy, a conspiracy is established. In addition, in a case where a criminal defendant denies a conspiracy, which is a subjective element of the crime, strict proof is required, it is inevitable to prove it by means of proving indirect facts or circumstantial facts that have considerable relevance to the nature of an object, and in such a case, what constitutes indirect facts having considerable relevance ought to be reasonably determined by the close observation or analysis power based on normal empirical rule (see, e.g., Supreme Court Decisions 98Do2654, Nov. 24, 1998; 201Do9721, Dec. 22, 2011).

In addition, the joint commission of a crime through a conspiracy is not premised on the fact that all accomplices realize the elements of a crime by themselves, and it is possible to cooperate with accomplices who conduct the realization of the crime to simplify the decision on the act. Whether it constitutes such a crime or not should be determined by comprehensively taking into account the degree of understanding the result of the act, the size of participation in the act, the intent to control the crime, etc. (see, e.g., Supreme Court Decision 2006Do1623, Dec. 22, 2006).

2) Determination

Examining the aforementioned facts and the evidence duly adopted and examined in light of the above legal principles, even if the victim invested KRW 500 million, Defendant B did not have the intent or ability to repay 300 million of the investment amount by adding it to the profits, it can be sufficiently recognized that the victim took part in the deception against the victim under the conspiracy with Defendant A and obtained KRW 500 million from the victim to the account in his own name for the purpose unrelated to the instant business and acquired it by using it for the purpose unrelated to the instant business. Nevertheless, the lower court found the Defendant not guilty on the ground that there was no proof of criminal facts as to this part, and thus, the prosecutor’s allegation pointing out the error of misunderstanding and misunderstanding of legal principles is with merit.

A) Defendant B operated a construction company from around 1995 to around 2002, and operated a golf course in Jeju-do from around 2004 to around 2006 (see, e.g., Investigation Record 151). Defendant B directly procured the land purchase price for the instant project, and Defendant B was the person related to AT, etc., the representative director AR of G and the above loan holders of the instant project. In addition, Defendant B, as the head of the Management Support Headquarters, took overall charge of the management of G’s funds operation, etc. (see, e.g., e., 0; 4) stated that all of the financial affairs of the Ydo Group were conducted in accordance with the direction of Defendant B (see, e.g., evidence submission Nos. 17 and 33). In other words, Defendant B and the person who actually controlled and operated the instant project.

B) Defendant B suffered difficulties due to financial shortage, etc., and as above, around October 19, 2006, the sales contract for securing the instant project site was reversed, and around March 2007, as the prosecution and the Governor of the Financial Supervisory Service conducted an investigation on the defective loan of the K Bank, etc., Defendant B was well aware of the circumstances where G and F accounts were seized. Accordingly, Defendant B provided the account in its name for the operation of G, etc.

C) According to the following circumstances, Defendant B, with the knowledge of the fact that the victim intended to invest KRW 500 million in the instant business under the prior communication with Defendant A, was involved in deception against the victim by directly explaining the instant business to the victim, etc.

① Since the investigation agency, the Defendants have made a statement to the effect that Defendant A received an investment after having discussed in advance with Defendant B with respect to the victim’s investment intent (see, e.g., 140, 641, 642 investigation records, and 746,1207, etc.). These statements made by the Defendants are reliable, such as the fact that Defendant B had overall control over the operation of the funds of the instant business and G, etc. In addition, the victim made a statement that “A would make a reply by asking to Defendant A (the victim as he was able to avoid investment intent)” at the court of the lower instance, “AV and witness (victim)” were written in question, and that it would not have been an investment because it was not possible to have been made because it had been discussed between the victim and the witness (see, e.g., e., Supreme Court records).

② Since the investigation agency, the Defendants have made a statement to the effect that Defendant B had explained the outline of the instant business by telephone to the victim after Defendant A received the victim’s investment intent (see, e.g., 140, 327 pages, and 1207 pages of the trial record). In addition, there is a high probability that Defendant A could have connected the instant business to Defendant B prior to the investment, on the part of the victim who sought to grasp the content of the instant business.

③ As seen earlier, at the time the victim remitted KRW 500 million, the balance of the account under the name of Defendant B was 74,760 won. Defendant B withdrawn and used KRW 2 million on June 19, 2007 on the day when the victim remitted KRW 500 million to the said account. Specifically, the above KRW 500 million was remitted on June 19, 2007, and immediately thereafter, KRW 17:16:25,17:28,17:28, 17:41 on the same day, and KRW 2 million was withdrawn from the account under the name of Defendant B over KRW 50 million (see, e.g., investigation record 206). Moreover, Defendant B was unable to withdraw or withdraw from the account transfer to the said account under the name of the victim, as seen earlier, from the date when the victim was transferred to the account transfer to the said account.

④ The above KRW 500 million remitted by the victim was immediately used for the personal purpose of the Defendants in addition to the operational fund of G, etc. In addition, after the victim remitted KRW 500 million to the Defendant, the instant primary investment contract was made in which the specific investment conditions, etc. are specified between the Defendant B and the victim as above, among the absence of the Defendant A. This is also a circumstance supporting the fact that the Defendant B was directly or indirectly involved in the victim’s investment, and that the prior communication between the Defendants on the use of KRW 500 million remitted by the victim was implied.

D) Even if the victim received KRW 500 million from the account in the name of Defendant B or transferred it to another account, it is a co-principal to recognize the functional control of Defendant B’s act as a co-principal with respect to the crime of fraud committed against the victim (as seen above, the defrauded money remitted to the account in the name of Defendant B was transferred to another account, and the Defendants were also used by the Defendants, and Defendant B stated that “the investigative agency is under the investigation of the reduction of the amount of money and was put in the name of the next person” (see, e.g., investigation record).

E) As such, Defendant B was faced with a situation where it is difficult to properly proceed with the instant project, and even if having received an investment in the instant project, it was well aware that it is difficult to fully repay the investment amount and earnings, Defendant A took part in the deception of Defendant A to receive the said investment amount, and Defendant A took part in the said deception to receive the said investment amount. Furthermore, Defendant A, etc. provided the account in one’s name as the remittance of the victim’s investment amount to the account, and used the said investment amount transferred to the said account for the purpose unrelated to the purpose of investment with Defendant A, etc., and used the said amount transferred to the said account for the purpose of use, which is irrelevant to the purpose of investment, and was unlikely to realize the victim.

F) Meanwhile, Defendant B made a false statement to the effect that all of the pertinent crimes were committed in the course of investigation, such as the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) against Defendant A, which became final and conclusive, with the intent to be punished on behalf of Defendant A (see, e.g., evidence submitted by Defendant A), and in this case, Defendant A and the investigative agency and the lower court stated to the effect that “Defendant B did not know the instant business and explain the instant business to the victim.” However, as seen earlier, Defendant A received a report on the instant business from Defendant B as the operator of G on the instant business, etc., and made the said deception to the victim. Defendant B was well aware of the present status of the instant business, and it is recognized that Defendant B was involved in the said deception. Even if Defendant B made the above false statement to protect Defendant A, there is no reason to deny Defendant B’s participation in the crime.

5. Conclusion

Therefore, the part of the judgment of the court below regarding Defendant A is recognized as a joint criminal act with Defendant A, not a single criminal act by Defendant A, and there is a ground for ex officio reversal, and the prosecutor's appeal against Defendant B among the judgment below is with merit. Thus, the judgment below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act and it is again decided as follows.

[Grounds for multi-use Judgment]

Criminal facts

On March 18, 2010, the Seoul High Court sentenced two years and six months to imprisonment for the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation), etc. on which the judgment became final and conclusive on August 26, 2010. Defendant A is responsible for overall management as the actual operator of H for the purpose of film production and media business, G for the purpose of the F, Kazakh real estate development business, etc., and H for the purpose of the overseas interference and management of postponed, and Defendant B was in charge of F and G funds as the head of G management headquarters.

Defendant A, around June 2007, at the J restaurant located in Gangnam-gu Seoul Metropolitan Government I, promoted the project of constructing a primary complex building from the present car rackstan to the victim E. The purchase of the land was almost completed, and there was land to be purchased last. The investment of KRW 500,000,000 was made by means of falsity.

In addition, the defendant B made a false statement that "if 500 million won is invested, the defendant B will pay 30% of 30% of 500 million won for the purchase cost of the land in Jung-gu Seoul and 202-3 at the G office in Jung-gu Seoul, Seoul and 2007."

However, the Defendants were not able to obtain particular profits while operating F, G, and H, while the Defendants, without any collateral from K Bank, bear excessive obligations such as KRW 5 billion around April 2006, KRW 2 billion around July 2006, KRW 6.5 billion around July 2007, and KRW 13.5 billion around KRW 6.5 billion around 2007, and the project funds were insufficient.

Accordingly, even if the above money was invested from the victim, the Defendants did not intend to use it as the cost of film production or the purchase of the land of Kazakhstan, and the new apartment construction project of Kazakhstan did not have any intent or ability to repay 30% of the investment amount by adding it to the profits of the above project because it was not possible for the Defendants to use it as the cost of purchasing the land of Kazakhstan.

The Defendants received KRW 500 million from the victim’s bank account in the name of Defendant B on June 19, 2007. In doing so, the Defendants conspired to receive property from the victim.

Summary of Evidence

1. Defendants’ partial statement in the original judgment

1. A witness E and L's written statement in each original judgment;

1. The original judgment of 0 witnesses and the legal statement of the party instance;

1. Each prosecutor's protocol of interrogation (including the E-statement) against the Defendants, and some police interrogation protocol against the Defendants (including the E-statement)

1. Each police statement of L/ E;

1. Report on investigation (the result of execution of a warrant of seizure, search and inspection);

1. Defendant B’s written statement

1. Copy of the protocol of examination of witness in relation to AU of the Seoul Central District Court 2009Gohap480;

1. AY copy of the statement;

1. Decision in the Seoul Central District Court Decision 2009Gohap480, the Seoul High Court Decision 2009No2777, the Supreme Court Decision 2010Do3909, the Supreme Court Decision 2010Do3909

1. The primary investment contract, the secondary investment contract, the certificate of real estate purchase CYR loan (2 billion won), the land sales contract, the certificate of land rights, the certificate of registration of land rights, the legal issues concerning the liquidation of loans and the settlement of loans due to the cancellation of the real estate contract, the work agreement between G-AD, the work agreement between G-AD, the business agreement between G-Inckines and the G business report related to the purchase of real estate;

1. Previous convictions of Defendant A: Criminal history records and other references (investigative records, 393 pages) and the application of each of the above judgment statutes;

1. Article applicable to criminal facts;

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347 (1) and Article 30 of the Criminal Act (However, the upper limit of the punishment shall be governed by the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010)

1. Handling concurrent crimes and legal mitigation (Defendant A);

The latter part of Article 37, Articles 39(1) and 55(1)3 of the Criminal Act

1. Discretionary mitigation (Defendant B);

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

1. Suspension of execution (Defendant B);

Article 62(1) of the Criminal Act (The following grounds for sentencing has been repeatedly taken into consideration for favorable circumstances)

1. Dismissal of application for compensation;

Articles 25(3)3, 32(2), and 32(1)3 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (the scope of liability for damages is not clear due to an agreement, etc., such as the statement of reasons for sentencing below).

1. Reasons for sentencing: Imprisonment with prison labor for a year and June 1 to June 7;

2. Application of the sentencing criteria;

[Determination of Punishment] The amount of not less than 50 million won by general fraud, and less than 5 billion won by fraud group (Type 3)

【Special Convicted Person】

[Scope of Recommendation] Three to Six years of imprisonment (Basic Area)

3. Determination of sentence: Defendant A’s imprisonment with labor for one year and six months, Defendant B’s imprisonment with labor for one year and one year and six months, and two years under a suspended sentence, the Defendants deceptioned the victim and acquired KRW 500 million, and most of them consumed funds for the operation of Defendant A, F, etc. and for personal purposes regardless of securing the site of the instant project, which is the purpose of the victim’s promise. Nevertheless, the Defendants took only an effective measure such as the preparation of the instant secondary investment contract, etc. for several years, and did not recover the victim’s damage. The victims were punished several times by the Defendants until reaching the agreement as set forth below. These points are disadvantageous to the Defendants.

However, the defendants did not have any idea to actually proceed with the business of this case, and the substantial part of the funds transferred by the victim seems to have been used as the operating fund of G, which is the execution company of the business of this case, and the defendants agreed to pay KRW 200 million to the victim in the trial. After that, the victim complained against the defendants, the crime of this case is to consider the balance between the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) and the crime of violation of the latter part of Article 37 of the Criminal Act in the judgment of the judgment, and the crime of this case in relation to the latter concurrent crimes of violation of the latter part of Article 37 of the Criminal Act. In the case of the defendant Eul, the defendants did not have led the victim to the external deception of the victim from the beginning, not to take part in the criminal act for the purpose of raising the funds of the company operated by the defendant A, and

In addition to these circumstances, the Defendants’ age, character and conduct, environment, motive and background of the crime, means and method of the crime, circumstances after the crime was committed, balance between the Defendants in sentencing, etc. shall be determined as ordered by taking full account of all the conditions of the punishment as shown in the records and arguments of this case.

Judges

The judge of the presiding judge;

Judges Lee Jong-chul

Judge Choi Hyun-sung

Note tin

1) Defendant A, on February 15, 2006, 2006, 2006, 2000,000 won in the name of Defendant A, for the F’s business.

A. A. The loan was made by setting up the limit, and Defendant A’s K Bank with a loan of KRW 4.7 billion in the name of F as above.

The loans have been repaid.

2) A local subsidiary established to obtain permission to construct the instant project under the Building Act of Kazakhstan.

3) On the other hand, the court below recognized the crime of this case as a single criminal act by Defendant A, which is ex officio against the judgment of the court below.

The reason for reversal is that it is the reason for reversal.

4) Even in accordance with the evidence No. 9-3 and No. 4 submitted by the Defendants, G’s fund-related business management support center

It is confirmed that Defendant B, the head, was dealt with by the discretionary decision (see, e.g., court records 946-951).

심급 사건

-서울중앙지방법원 2015.5.15.선고 2014고합695

서울고등법원 2015.11.4.선고 2015노1514

-대법원 2016.1.28.선고 2015도18100

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