2014Gohap340, 548 (Joint, Separated), 1472 (Joint)

Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

1. A;

2. B

The Kim Sung-hun (Court of Justice), No. 1, No. 2, No. 2, No. 31, No. 31, No. 310

Attorney C (the national election for the defendant A)

Law Firm D (Defendant B)

Attorney E

October 14, 2016

Defendants shall be punished by imprisonment for ten months.

However, the execution of each of the above punishment against the Defendants is suspended for two years from the date this judgment became final and conclusive.

Criminal facts

On October 2012, F received the request from Defendant A to arrange for a loan of business funds from financial institutions, such as the Credit Guarantee Fund, from Defendant B, who was in a pro rata relationship with H of the Credit Guarantee Fund. Defendant B asked Defendant B to grant a loan to Defendant B, who was in a pro rata relationship with the Credit Guarantee Fund, “The cost of KRW 30 million was required to obtain a guarantee from the Credit Guarantee Fund,” and the F talks on this request to Defendant A. Defendant A at the office of the J (hereinafter “J”) operated by G (hereinafter “J”) in Seocho-si, Macheon-si, I located in early October 2012. Defendant A had a loan broker, who is well aware of the credit guarantee period H well-known, and if necessary, he would receive a loan from the Credit Guarantee Fund through that person. In order to obtain a loan, the expenses needed for the loan would be changed from time to time.”

Accordingly, G transferred KRW 5 million to the account in the name of K on October 27, 2012, KRW 30 million to the account in the name of Defendant B on November 9, 2012, KRW 30 million to the account in the name of Defendant B, and KRW 3 million to the account in the name of L on October 9, 2012, and Defendant A provided the J’s corporate card to F through Defendant A on November 9, 2012, and used KRW 19,673,119 as the above corporate card from time to December 20, 2012. Accordingly, in collusion with F, the Defendants received money and valuables equivalent to KRW 57,673,119 in total with respect to arranging matters belonging to the duties of officers and employees of financial institutions (However, with respect to Defendant B, only KRW 3 million is recognized as the transferred account in the name of the said Defendant).

Summary of Evidence

1. Defendant B’s partial statement

1. The entries of the Defendants and F in their respective statements in the sixth trial records;

1. Statement made by witnesses G in the third protocol of trial;

1. Each prosecutor's protocol of interrogation of the Defendants and F concerning the Defendants and F contains some statements

1. Each statement among the police interrogation protocol of Defendant A and F (including the part of the statement of each Defendant A and the part of the police interrogation protocol of each Defendant among the interrogation protocol of the police officers No. 2 and No. 3 as to F)

1. The police statement concerning G;

1. Copy of a complaint and a statement of account transactions;

1. A copy of the text (as to the defendant B);

Application of Statutes

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

Defendants: Article 7 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 30 of the Criminal Act (inclusive of Defendant A), and each choice of imprisonment.

1. Suspension of execution;

Defendants: Article 62(1) of the Criminal Act (Consideration of favorable circumstances, etc. among the reasons for sentencing)

Judgment on the Defendants and their defense counsel's arguments

1. Summary of the assertion

A. Defendant A

The defendant knew that he/she suffered difficulties in raising business funds, and he/she only introduced F to G in good faith, and there is no conspiracy in F lending brokerage activities.

B. Defendant B

The defendant has been involved in the preparation of a project plan to be submitted by the J Credit Guarantee Fund to M in order to obtain a loan from the Credit Guarantee Fund, and there is no contest in F's act of arranging a loan.

2. Determination

A. In relation to accomplices who are co-processed with two or more crimes, the conspiracy does not require any legal punishment, but is a combination of two or more persons to jointly process and realize a crime. Although there is no process of the whole conspiracy, if the combination of the intent is formed in order or implicitly through several persons, it is necessary to establish a conspiracy relationship. However, in a case where the defendant denies the conspiracy, which is a subjective element of the crime, it is inevitable to prove it by means of proving indirect facts or circumstantial facts that have considerable relevance to the nature of the crime, and in such a case, it is necessary to reasonably determine the link of the fact by using the strict observation or analysis power based on normal empirical rule (see, e.g., Supreme Court Decision 2011Do9721, Dec. 22, 2011).

In addition, a co-principal under Article 30 of the Criminal Act is a crime committed jointly by two or more persons, and is established upon meeting objective requirements, which is a crime committed through a functional control based on the intent of co-processing and the intent of co-processing. As such, even if some of the co-offenders do not directly share and implement part of the elements of a crime, if it is recognized that a functional control through an essential contribution to the crime exists in full view of the status, role, control over the progress of the crime, etc. as a whole, the criminal liability as a co-principal cannot be exempted (see, e.g., Supreme Court Decision 2010Do11030, Jan. 27, 201).

On the other hand, in cases where it is limited to introducing and arranging a person who acts as a broker, the crime of acceptance of good offices is not established. However, it is not established only when specifically specifying the counterpart to good offices and directly soliciting and arranging the other party under the pretext of acceptance of money and valuables, but also when accepting money and valuables, etc. under the pretext of giving and receiving solicitation and good offices through an intermediary who can exercise influence, as well as not specifically specifying the other party to good offices to make solicitation, the crime of acceptance of good offices may be established (see, e.g., Supreme Court Decision 2012Do534, Jun. 14, 2012).

B. As to Defendant A’s assertion

In full view of the following circumstances admitted as evidence of conviction, it is reasonable to view that the Defendant received money and valuables, etc. under the pretext of solicitation and good offices in collusion with F, rather than merely providing a third party with the Korea Credit Guarantee Fund H, and therefore, this part of the argument by the Defendant and the defense counsel cannot be accepted. ① G was an investigation agency and this court discussed to the purport that it is difficult for the Defendant to raise business funds due to the game depression, and the Defendant may receive a loan through F. F. It is possible for the Defendant to take out the loan only with the necessary expenses when the F and F request for the loan. The Defendant stated that “I will return the necessary expenses if we do not know the loan.” (Evidence record 2:3,4, 14, 15), and “At the time of the investigation by the Defendant to the effect that F and the Korea Credit Guarantee Fund will be linked with H (Evidence evidence No. 42).”

② In addition, G stated in this court that the Defendant would not simply introduce F, but also arrange the loan through the Credit Guarantee Fund (the witness G’s statement in the third protocol of the trial).

③ At an investigative agency, the F made a statement to the effect that “the Defendant is entitled to receive the guarantee of the Credit Guarantee Fund”, “F is about KRW 3.0 billion in the J’s sales, and that it is a company that is likely to receive approximately KRW 1.0 billion in the amount of money, and that the Defendant delivered the above contents to the Defendant.” Then, the Defendant stated that “I are able to receive the guarantee of the Credit Guarantee Fund” (No. 29,30 in the evidence record). (4) At the time of the investigation agency and this court, the Defendant also made a statement to the effect that “F is difficult to obtain the guarantee of the Credit Guarantee Fund if I want to talk about the fact that I would be able to obtain the guarantee of the Credit Guarantee Fund,” and that it is difficult for the Defendant to obtain the guarantee of the Credit Guarantee Fund under the name of 4th in the investigation agency and this court, and that it is difficult for the Korea Credit Guarantee Fund to obtain the guarantee of the Credit Guarantee Fund’s loans from 24th in the investigation.”

BE G did not know or contact with F in the course of remitting money to F or delivering a corporate card, there is no fact that the F had consulted with F in connection with the issuance of a letter of guarantee, and F did not request the Defendant to provide assistance as the cost of obtaining a guarantee from the Credit Guarantee Fund is required. When the Defendant communicates the above talk to G, the Defendant informed him of the account to remit money and its amount, and the corporate card was received from G and delivered by the Defendant to F. [the Defendant also stated in this Court that “G and F did not have any consultation on the day related to the issuance of a letter of guarantee, and that he sent it and processed the work in the middle.” (The Defendant’s statement in the sixth trial record)

6) Although the Defendant promised to receive or actually received the payment from G for loan mediation, it is not due to the fact that the Defendant did not merely intended to introduce a person to arrange for a loan from G, it seems that G was not due to the fact that G invested in the Defendant but did not have any other position to request the payment due to the fact that it was damaged (the Defendant’s prosecutor’s statement and evidence record 243 pages).

C. As to Defendant B’s assertion

In full view of the following circumstances admitted by the evidence admitted as evidence of guilt, the Defendant and the defense counsel’s allegation in this part is not accepted, since it is sufficiently recognized that there was collusion and functional control between the Defendant and F with respect to the crime of aiding and abetting KRW 30 million transferred to the Defendant’s account under the name of the Defendant.

① From an investigative agency to this court, F requested the Defendant to issue a certificate of guarantee from the Credit Guarantee Fund. The Defendant consistently stated to the effect that “F, at the time, requested the Defendant to deliver a certificate of guarantee from the Credit Guarantee Fund, the N is in the same and well-known name of the university, and there is a need for cost of KRW 30 million to prepare a business plan necessary for the issuance of a letter of guarantee by N to receive a certificate of guarantee from the Credit Guarantee Fund, and that “F sent KRW 30 million to G via A via the Defendant’s account.”

② There is a fact that “the Defendant said that it is necessary for the Korea Credit Guarantee Fund to obtain a guarantee from the Korea Credit Guarantee Fund” (Article 30 million won in the sixth trial record), and “F delivered KRW 30 million to the Defendant by stating that “the Defendant is expected to reduce the costs of persons concerned” (Article 1-24 pages of the evidence record) corresponds to A’s investigative agency and this court’s statement also conforms to F’s statement.

③ In this Court, the Defendant also proposed to the effect that “F would not know a large number of people,” and that “F would be able to have a sexual intercourse with a high person,” and that it would be able to obtain a certificate of guarantee because the Defendant would be a company that would fall short of the J (the Defendant’s legal statement) was true (the Defendant’s statement in the sixth trial record).

④ From the police investigation, the Defendant recognized that he received KRW 30,00,000 from the Korea Credit Guarantee Fund under the name of consulting such as the preparation of a business plan (Evidence No. 111, 112 pages). As to this, the Defendant only demanded F to provide KRW 10,000 as expenses for preparing a business plan, and there was no need to provide F with KRW 30,000,000 upon request of the account recipient, and issued F with the passbook and the Defendant’s seal, and the Defendant’s money slip prepared by the Defendant to F at the time when G deposits KRW 30,000,000 to the above account. According to the F’s business plan, it was difficult for the Defendant to receive KRW 10,000,000,000,000 from 0 to 30,0000,000,0000,000,000 won were 30,000,000,000 won.

Reasons for sentencing

1. Defendant A

(a) The scope of applicable sentences: Imprisonment for one month to five years; and

(b) Scope of recommendations based on the sentencing criteria;

[Determination of Punishment] Type 3 (not less than 50 million won, less than 100 million won) of the Act on the Mediation and Acceptance of Officers and Employees of Financial Institutions

[Special Contributors] Reduction element: Where the degree of participation and the actual amount of profit is extremely minor;

[Scope of Recommendation] One year to two years (Mitigation) shall be sentenced to imprisonment. Determination of sentence shall be made.

The Defendant, in collusion with F, received money and valuables worth KRW 57 million in total in return for arranging a loan through H, etc. The Defendant’s criminal act undermined fairness in the lending business of a financial institution, social trust thereon, and sound order in the financial market. Nevertheless, the Defendant only introduced F to G, but also denied the Defendant’s criminal act by asserting that there was no conspiracy with F with the instant criminal act. Comprehensively taking account of the aforementioned circumstances, the Defendant should be subject to strict punishment.

However, the crime of this case appears to have been led by the F, and the Defendant was able to obtain a certification from the Credit Guarantee Fund, and there are circumstances to consider the background and degree of participation in the crime of this case. In addition, the Defendant seems to have no benefit acquired by the crime of this case. Moreover, the Defendant did not have any history of punishment for the same crime, and G did not want to be punished by the Defendant.

In full view of all kinds of sentencing conditions shown in the arguments in the instant case, such as the Defendant’s age, character and conduct, environment, health conditions, circumstances after the commission of the crime, etc., such as the Defendant’s disadvantage or favorable circumstances, the Defendant may select a sentence lower than the lower limit of the recommended sentence according to the sentencing guidelines, and determine the sentence as the order and suspend the execution of the sentence only once.

2. Defendant B

(a) The scope of applicable sentences: Imprisonment for one month to five years; and

(b) Scope of recommendations based on the sentencing criteria;

[Determination of Punishment] Type 2 (not less than 30 million won, less than 50 million won) as a broker for the duties of executive officers and employees of a financial institution.

[Special Aggravation] None of the factors of aggravation and mitigation

[Extent of Recommendation] Imprisonment of 10 months to 1 year and 6 months (basic area). Determination of sentence is made.

The Defendant received money and valuables worth KRW 30 million in total from the Korea Credit Guarantee Fund H, in collusion with the F, in return for arranging a loan through the Korea Credit Guarantee Fund H. The instant crime is the case where the fairness of the loan business of a financial institution and its social trust is harmed, and the sound order in the financial market is harmed, and thus, the Defendant appears to have taken part in the F’s act of arranging a loan. Furthermore, the Defendant appears to have taken part in the F’s act of arranging a loan, such as preparing documents related to the lending of a financial market. Nevertheless, the Defendant did not appear to be against the law, such as asserting that the Defendant was only involved in delivering the F’s business plan to M in the preparation of the J’s business plan and denying the commission of the crime. Comprehensively taking account of the aforementioned circumstances, a serious punishment against the Defendant is necessary.

However, there is no record of punishment or punishment exceeding the fine for the same crime. Moreover, it seems that the defendant received 30 million won from the account under his name and returned to F, and there is no benefit of the defendant acquired from the crime of this case.

In full view of all kinds of sentencing conditions shown in the arguments of this case, such as the defendant's age, character and conduct, environment, health conditions, circumstances after the crime, etc., such as the defendant's age, character and conduct, and health conditions, the defendant shall be determined within the scope of the sentencing guidelines, and the execution of the sentence shall be suspended only once.

The not guilty part (Defendant B)

1. Summary of the facts charged in this case against the defendant

As stated in the facts charged, the Defendant, in collusion with F and A, received money and valuables or other benefits equivalent to KRW 57,673,119 in total (the amount of money and valuables transferred to the account in the name of the Defendant) in collusion with F and A about mediation of matters pertaining to the duties of officers and employees of financial institutions.

2. Determination

In light of the following circumstances acknowledged by the record, i.e., the Defendant: (a) received KRW 30 million from G through F for the expenses necessary for the issuance of the J's letter of guarantee from the K, i.e., the Defendant appears not to participate in the portion that the F received money through K and L account or used the corporate card; (b) the F sent money from the prosecutor's investigation to K and L account; and (c) the corporation card received was used individually (Evidence No. 16 of the prosecutor's list); (c) there is no evidence suggesting that the Defendant was aware or could have known of the fact that the F was transferred money to K and L account or used the corporate card; (d) the evidence submitted by the prosecutor alone constitutes a violation of the latter part of Article 27,673,119 won (=57,673,119 won) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter referred to as the "Act on the Aggravated Punishment, etc. of Specific Economic Crimes") and there is insufficient evidence to acknowledge the Defendant not guilty.

Judge Kim Jae-han

Judges, Assistants

Judge 00 Ba1