2013Gohap430 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

△△ (65-years, women), operation of clothing stores

Residential Suwon City

Seoul basic domicile

Moved Decree (prosecutions) and private soldiers’ rights (public trial)

Attorney Lee Jae-su, Kim Jong-ho

March 25, 2014

The defendant shall be innocent.

1. Summary of the facts charged

On June 16, 2011, the Defendant: (a) around Suwon-si, Youngdong Home Pung-dong; (b) “The Defendant had no intent or ability to repay money from the victim, even if he/she borrowed money from the victim, due to extremely aggravated financial conditions, such as having a total of KRW 50 million to KRW 6-700,000,000, daily sales in the Dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-si

The Defendant, as such, by deceiving the victim, received KRW 400,000 from the victim on the same day, and thereafter, acquired all amounts of KRW 87770,000 from 199 times until February 13, 2013, as shown in the attached crime list, and acquired them by deception.

2. Summary of the defendant and his defense counsel's assertion

The victim began to pay money to the defendant for the fraud of the defendant, and voluntarily paid money to maintain the relationship after the defendant became an internal relationship with the defendant, and there is no money borrowed by deceiving the victim.

3. Determination

A. The crime of defraudation, which is a subjective constituent element of fraud, is committed unless the defendant makes a confession;

The judgment of conviction should be based on objective circumstances such as the Defendant’s financial history, environment, details and details of the crime, and the process of performing transactions before and after, and on the other hand, evidence of probative value, which makes the judge feel true to the extent that there is no reasonable doubt. Thus, if there is no such evidence, even if there is suspicion of guilt against the Defendant, the judgment should be based on the interests of the Defendant. This is likewise applicable to the recognition of the criminal intent, which is a subjective element of the crime of deception (see Supreme Court Decision 2010Do659, May 10, 2012, etc.).

B. In light of the following circumstances, it is doubtful that the Defendant had already borne large amounts of debt due to difficulties in the operation of clothing stores around June 201, in which the Defendant received money from the victim, namely, due to the difficulty in the operation of clothing stores around June 2011, the Defendant would have actively induced the Defendant to pay the borrowed money to the Defendant. The Defendant was deemed to have made a loan contract with the victim from November 201 to have borrowed money from the account under the name of the victim from time to time in light of the fact that the Defendant was deemed to have made a loan contract with the victim and deemed to have borrowed money contrary to the Defendant’s assertion, in view of the fact that: (a) the Defendant was unaware of the victim by deceiving him to receive money from the victim; and (b) the victim with the home was offered as security to the Defendant; and (c) the amount was transferred to the account under the name of the victim from November 2011.

C. However, according to the evidence duly examined by the court, the following circumstances are also acknowledged.

1) On June 16, 2011, the victim and the △△△△, the first victim transferred from this court to the account under the name of the defendant, stated that "the 400,000 won was the birth gift of the defendant-friendly job offering in △△△△, and at the time of the police substitution investigation between the defendant and the victim, the defendant stated that "the fact that the defendant had been involved in the transaction between this male and the victim was defective." The defendant could not receive "if you have access to the money," but he did not receive "if you would have access to the money." Accordingly, this relation started. The victim made a statement to this effect that "the victim was unable to do so on behalf of the defendant for the first time after the defendant's statement to this effect, and that the victim was able to refund money to the defendant, such as (the investigation record was stated to be "the defendant's first time to refund the money to the defendant, and the victim would have been able to do so on 300,000 won.

2) Of the facts charged in the instant case, if the Defendant stated that there is no evidence to acknowledge that the Defendant had made a false statement on the victim’s daily sales volume of KRW 10 million, and the victim stated in this court that there was a statement that the monthly sales amount from the Defendant would be KRW 10,000,000,000,000 per day, it is difficult to readily conclude that the Defendant had expressed an excessive statement on the part of the Defendant. Moreover, if the victim believed that the monthly sales amount of KRW 10,000 is KRW 10,000 and KRW 870,000,000 per day, it is difficult to view that the Defendant’s deception was the principal cause for the Defendant’s delivery of money to the Defendant.

3) Although the Defendant was well aware of the circumstance that the victim extended money to him/her in his/her name, he/she continued to lend money from the victim, the Defendant, on the other hand, “in the course of the Defendant’s belief”

If it is necessary to seek a loan, it is considered that he/she has no intention to seek money even if he/she does not want to obtain money from all the loans of bank rights. In full view of the victim's statement (Investigation Record 390 pages) and other objective circumstances, it is determined that the victim has contributed not only to the inducement of the defendant, but also to the act of giving money to the defendant, such as not to take reasonable measures to recover claims, but also to the extent that he/she does not have sufficient ability to repay because he/she is unable to obtain a loan due to credit problems.

4) Until February 13, 2013, nine days prior to filing a complaint against the Defendant, the victim transferred KRW 4 million to the Defendant even after the complaint, and continuously exchanged with the Defendant. After the complaint, the police listened to the word “arbitr from the Defendant,” and received money from some of the Defendant,” and submitted a written complaint to the other half of the victim. In light of the fact that “the victim made a statement to the Defendant,” it seems that the victim inevitably filed a criminal complaint by virtue of leakage or pressure rather than criminal punishment against the Defendant.

D. In full view of all the above circumstances, the above facts charged that the defendant had attempted to have the victim or had the victim lent money to the defendant by deceiving the victim with the intent to commit the crime of defraudation.

It is difficult to see that it was proven beyond an enemy suspicion, and there is no other evidence to prove it.

4. Conclusion

Thus, the facts charged of this case constitute a case where there is no proof of crime, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act

It is so decided as per Disposition for the above reasons.

Judge Lee Jae-young

Judges Kim Jae- Jae

Judges Lee Dong-ho