2013No1766 A. Fraud

2013No2243(combined). Violation of the Game Industry Promotion Act

1.(a) A

2.(a) B

3.(a) C.

Defendants

Profit-making tools, Kim Young-M (prosecutions), and the highest prize (public trial)

Attorneys Y (Korean National Assembly for the benefit of all defendants)

1. Gwangju District Court Decision 2013Dadan2032 Decided July 25, 2013

2. Gwangju District Court Decision 2013Kadan3975 Decided October 10, 2013

November 20, 2013

1. Defendant A

All of the judgment of the court of first instance on the defendant and the second judgment on the defendant shall be reversed.

A defendant shall be punished by imprisonment for two years.

2. Defendant B

The part of the first judgment on the defendant shall be reversed.

A defendant shall be punished by imprisonment for not less than eight months.

3. Defendant C.

The part of the first judgment on the defendant shall be reversed.

A defendant shall be punished by imprisonment for four months.

1. Summary of grounds for appeal;

Each sentence of the lower court (Defendant A: Imprisonment of 10 months and 2. Imprisonment of 1 year and 6 months with prison labor of the lower court; Defendant B; Defendant C: Imprisonment of 10 months with prison labor of the lower court; Defendant C: imprisonment of 6 months with prison labor of the lower court) is too unreasonable.

2. Determination

A. Ex officio judgment (the part against Defendant A)

Prior to the judgment on the grounds for appeal by the defendant, the court of original judgment was examined ex officio before the judgment on the grounds for appeal by the defendant, and each of the above judgments was sentenced to the defendant, and the defendant filed an appeal against each of the above judgments and decided to hold a joint hearing by this court. Each of the offenses against the defendant in the judgment of the court below is a concurrent offense relationship under the former part of Article 37 of the Criminal Act, and a single sentence shall be sentenced pursuant to Article 38 (1) of the Criminal Act. Accordingly, the judgment of the court

B. Determination on Defendant B and C’s assertion of unreasonable sentencing

The crime of insurance fraud, such as the instant case, in which the Defendants participated, requires strict punishment due to severe social harm, such as the transfer of economic damage to a large number of general subscribers, and the victims are not agreed to this court. At the time of the instant crime, Defendant B was sentenced to a violation of the Game Industry Promotion Act, etc. and was in the repeated crime period. Defendant C was sentenced to a suspended sentence due to a violation of the Act on Special Cases concerning Regulation and Punishment of Speculative Acts, etc., and was in the probation period.

However, the Defendants recognized their mistake. Defendant B's each punishment of the lower court against the Defendants is somewhat unreasonable, taking into account the following circumstances: (a) Defendant B, for the Korea-Japan Loss Insurance Co., Ltd., Defendant C deposited KRW 3 million for the Victim KK Mutual Aid Association; (b) the degree of the Defendants' participation in the crime is less and less than H et al., the principal offender; and (c) the profits acquired from the crime appears to have not been much significant; (d) the Defendants did not have the same criminal record; and (e) other various sentencing conditions specified in the argument of this case, including the circumstances leading to the crime of this case; (b) the circumstances after the crime of this case; (c) the Defendants' age, character and conduct; and (d) the Defendants' respective punishment against

3. Conclusion

Therefore, the part against Defendant A and the second judgment of the court of first instance on the grounds of the above ex officio reversal. Thus, under Article 364(2) of the Criminal Procedure Act without examining the Defendant’s assertion of unfair sentencing, the part against Defendant B and C among the first judgment of the court of first instance on the grounds of appeal by Defendant B and C is reversed under Article 364(6) of the Criminal Procedure Act and they are again decided as follows.

Criminal facts and summary of evidence

The summary of the facts constituting an offense and evidence recognized by this court is as follows, except for the alteration of "one year of imprisonment with labor for a part of the facts constituting an offense in the judgment of the second instance" to "one year of imprisonment and six months of imprisonment with labor", and therefore, it is identical to the corresponding columns of the judgment of the court below. Therefore, it is cited as it is in accordance

Application of Statutes

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

(a) Defendant A: Articles 347(1) and 30 of the Criminal Act, Article 45 Subparag. 4, and Article 32(1)2 of the Promotion of respective Game Industry Act (the point of providing game products that are different from the classification, the point of providing labor), Articles 44(1)2 and 32(1)7 of the Game Industry Promotion Act (the point of prior exchange and the choice of imprisonment);

(b) Defendant B and C: Articles 347(1) and 30 of the Criminal Act (Optional to Imprisonment)

1. Aggravation for repeated crimes;

Defendant A and B: Article 35 of the Criminal Act

1. Aggravation for concurrent crimes;

Defendant A: former part of Article 37, Articles 38(1)2 and 50 of the Criminal Act

Reasons for sentencing (Defendant A)

It is more favorable that the defendant's mistake is recognized, and that the degree of participation in the fraud crime is relatively not much severe, and that the defendant is not able to hold profits from the crime.

On the other hand, the defendant committed each of the crimes of this case during the repeated crime period after being sentenced to punishment due to a violation of the Game Industry Promotion Act, ② With respect to the fraud crime of this case, strict punishment is required, as seen earlier, as well as the fact that the defendant did not recover from the victim's agreement or damage until this court, ③ has the record of being punished twice by a fine for the same crime, ③ in relation to the crime of violation of the Game Industry Promotion Act, the defendant operated a game room in the name of the president who was intended to be exempted from punishment, and it is not good that the crime is committed, and considering the business period and size, etc., the defendant is more serious, and the defendant has a same criminal record in addition to the above repeated crime.

In addition, comprehensively taking into account the circumstances of each of the crimes in this case, circumstances after the crime was committed, age, character and conduct, environment, etc. of the defendant, various sentencing conditions shown in the arguments in this case shall be determined the same as the order.

Presiding Judge and senior containers

Judges Park Sang-soo

Judges Jeong-jin