2017Gohap132 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

1. A;

2. B

Freeboard oil (prosecution) and stuffs (public trial)

Law Firm C (For the defendant)

Attorney D

Law Firm E (For the defendant)

[Defendant-Appellee]

July 13, 2017

Defendants are not guilty.

1. Summary of the facts charged

Defendant A is the actual operator of G Co., Ltd. (hereinafter referred to as “G”), and Defendant B is the president of G.

After making a deposit by using high interest short-term bonds, the Defendants planned to acquire the Busan H building (hereinafter referred to as the “instant building”) in writing by financing the money immediately after making a deposit, and then planned to take over the instant building (hereinafter referred to as the “instant building”), the first down payment of KRW 7.5 billion, and the interest cost necessary to borrow KRW 7.5 billion from the victim was invested.

The Defendants conspired to use the difference for other purposes, when the interest cost that the victim was lower than the actual interest cost is needed.

around March 2014, at the G office located in Gangnam-gu Seoul Metropolitan Government J. 430, the Defendants conspired to the effect that “the instant building located in Busan-do is well-grounded and well-known and may be given a big benefit if it is properly sold in lots.” The instant building is intended to take over KRW 7.5 billion, and only KRW 7.5 billion may be loaned if the down payment is procured. KRW 7.5 billion is necessary to procure the down payment from private financing, and a financial cost of KRW 1 billion is required to be used only for financial costs if the investment is made.”

However, in fact, if the defendants raise 7.5 billion won as down payment for the takeover of the building of this case through private financing, the interest is merely about KRW 200 million, and even if the defendants receive an investment of KRW 1 billion from the victim, they used only part of them as financial costs and used the remainder as personal usage.

From March 18, 2014, the Defendants deceptioned the victim as above and acquired KRW 1 billion from the victim as financial expenses for the down payment of the instant building.

2. Facts of recognition;

The following facts are acknowledged according to the evidence duly adopted and investigated by this Court.

A. On April 2002, K purchased the land of Busan Jin-gu L, Busan as an implementer, and newly constructed the building of this case with the six underground floors and the 16th floor above the ground as the contractor of the construction project. However, on July 17, 2006, K failed to pay the construction cost to M, the ownership of the building of this case was ultimately transferred to M.

B. K again intended to acquire and sell the instant building from M, and it was necessary to procure 7.5 billion won of the down payment in order to acquire the instant building.

C. Around March 5, 2014, the victim became aware of Defendant A with the intermediation of short-term loans necessary for the business, and around March 6, 2014, the victim received investment in the business of acquiring and selling the instant building from Defendant A.

D. On March 12, 2014, the victim received N from the Defendants, and N was performing the acquisition and sale business of the instant building with K’s delegation at the time. On the same day, the victim, while establishing a corporation for the acquisition of the instant building, was obligated to deposit down payment amounting to 7.5 billion won, the victim, while establishing the corporation for the acquisition of the instant building, was issued with N, and N was issued a letter of loan guarantee concerning the remainder from the financial institution in the event that the down payment is deposited, and the victim and N were obligated to secure and submit a written consent on the waiver of the lawsuit by the buyer and the acquiring corporation with the content of 6:4 shares.

E. On March 13, 2014, the victim established a stock company to acquire the instant building in accordance with the foregoing agreement.

F. On March 17, 2014, the victim deposited KRW 7.5 billion on the instant building deposit in M., and the victim paid KRW 1 billion to G with financial costs, and entered into a loan agreement with G to the effect that he/she acquires half of the shares of the acquired corporation established by G (hereinafter “the instant loan agreement”).

G. On March 18, 2014, the victim delivered KRW 1 billion to the Defendants as a check.

H. Around April 2014, K came to the front of the instant building acquisition and sale business on behalf of N, and Defendant B was omitted from the acquisition and sale business of the instant building, and the victim continued to conduct the business with Defendant A, K, and the victim continued to conduct the business with Defendant A, and the victim entered into an agreement on the acquisition and sale business of the instant building on July 11, 2014 on four occasions (the closing date is August 12, 2014) with Defendant A and K on four occasions (the closing date is August 12, 2014), the main content of the agreement was that Defendant A and the victim are liable to pay deposit as investors, and K bears the obligation to submit a written promise of the financial institution concerning the outstanding loan and submit a written consent on the waiver of the lawsuit by the buyer, and in the case of the remainder loan from the financial institution, Defendant A and the victim is paid KRW 20 billion, excluding the repayment of the down payment.

I. Since August 2014, the victim came to fall into the acquisition of the building of this case and the sale of the building in this case. Defendant A received KRW 200 million on January 28, 2015, KRW 100 million on December 27, 2015, KRW 200 million on January 29, 2016, and KRW 500 million on January 29, 2016 from Defendant B, and received KRW 130 million on February 4, 2016 from Defendant B.

3. Determination

In light of the following facts and circumstances acknowledged by the evidence duly adopted and examined by the court, the evidence submitted by the prosecutor alone cannot be deemed to have been proven beyond a reasonable doubt, and there is no other evidence to acknowledge this.

A. In full view of the following circumstances, it is reasonable to view that the victim’s payment to the Defendants is an investment amount of KRW 1 billion.

① The victim himself/herself does not receive a fixed interest income in return for the payment of the above KRW 1 billion to the Defendants, but rather recognized that the part of the corporation established for the acquisition of the instant building was divided into the Defendants, thereby gaining substantial profits through the acquisition and sale of the instant building.

② Even under a business agreement concluded between the victim and N, and the instant loan agreement concluded between the victim and the Defendants, the victim does not merely play a role of lending the money necessary for raising down payment to the Defendants, but is specified as the subject of raising down payment for the acquisition of the instant building directly.

③ At the first time, the prosecutor determined that the above KRW 1 billion was a loan borrowed by the victim to the defendant for a fixed period of time per month, and prosecuted, but the above money was an investment deposit during the pleading and changed the indictment.

B. The victim stated that he would only use the down payment of KRW 7.5 billion necessary for the acquisition of the building of this case as financial expenses for raising the down payment of KRW 7.5 billion from private financing. Article 3(2)6 of the loan agreement of this case made between the victim and the Defendants states that he would pay KRW 1.0 billion as financial expenses. However, in full view of the following circumstances, it is difficult to conclude that the Defendants deceiving the victim about the financial expenses necessary for raising the down payment of the building of this case, or that the use of the said KRW 1.0 billion was specified as financial expenses.

① The prosecutor presumed that the interest necessary to procure down payment of KRW 7.5 billion as short-term bonds is merely about KRW 200 million. This is based on the interest necessary to procure down payment of KRW 7.5 billion as short-term bonds (3% per month) and seems to be premised on the acquisition contract of the instant building, in particular, the acquisition contract of the instant building, and the remainder loan by the financial institution, within one month after raising down down payment.

However, the victim is an expert in the field of finance who has worked for 6 years as the representative of the foreign bank's corporate finance, and the opportunity for the defendant A to know also arranged for a short-term loan necessary for the victim's business. In light of the victim's occupation and experience, the victim could have been aware of what much interest is necessary for the defendants to procure 7.5 billion won from the former owner as short-term bonds. Nevertheless, it is reasonable to view that the victim paid to the defendants about KRW 1 billion which is much more than KRW 2.5 billion, which is the monthly interest of KRW 7.5 billion in down payment, to raise 7.5 billion in down payment from private financing, rather than paying to the defendants the interest necessary for raising 7.5 billion in down payment, and it is reasonable to view that the victim who has participated in the acquisition of the building of this case and the sale of the building of this case as the ordering person paid 3.0 billion won in addition to the price that the victim acquired by the victim.

② In addition, since the completion of the building of this case, the sale price of the building of this case was lower than the actual value of the building and the acquisition and sale of the building after the completion of the building could obtain larger profits. On the other hand, due to the possibility of additional legal disputes, there was a high risk of delaying or failure to delay the acquisition and sale of the building of this case. Even if the victim's statement was made, the victim had experience in carrying out the business related to the implementation of real estate and had already been aware that the building of this case was subject to a long legal dispute. Thus, it is difficult to view that the victim was merely aware of the fact that the acquisition process of the building of this case and the acquisition process of the building of this case, in particular, the financial institution's balance loans, were to be carried out within one month after the down payment of the down payment.

③ The victim received a business plan concerning the acquisition and sale of the instant building from the Defendants before and after the payment of KRW 1 billion to the Defendants, and examined profitability for the acquisition and sale of the instant building, such as visiting Busan, and opening the instant building. Even after Defendant B was omitted from the acquisition and sale of the instant building, he/she entered into a new investment agreement with K and Defendant A, and instead participated in the instant building, such as establishing a new corporation to take charge of the business around July 11, 2016.

④ The evidence presented by the prosecutor alone revealed that the Defendants used KRW 1 billion for personal purposes from the victim. Rather, according to the above provision, the Defendants borrowed KRW 7.5 billion from Qu on March 21, 2014 and deposited KRW 7.5 billion in R Co., Ltd.’s affiliated company for one month, and paid KRW 200 million (the victim alleged that this part of the money was irrelevant to this business, but it appears that the money deposited in the above account was KRW 7.5 billion, the deposit amount of KRW 7.5 billion in M Co., Ltd., which was planned to deposit the down payment for the acquisition of the building of this case, and KRW 1.5 billion in interest amount of KRW 7.5 billion in interest amount of KRW 7.5 billion in interest amount of KRW 8 billion in interest amount of KRW 7.5 billion in interest amount of KRW 2.5 billion in interest amount of KRW 8 billion in interest amount of the instant building to the investigation agency for the acquisition of the building of this case.

On April 14, 2014, with the consent of the victim, the Defendants invested KRW 200 million in the implementation project of the building construction project of the building of this case in Gangnam-gu Seoul, Seoul, but failed to implement the project and returned KRW 200 million. On April 24, 2014, the Defendants asserted that the victim used KRW 500 million in the capital of the corporation T and returned it. Even according to the victim’s statement, the victim introduced the head of the new bank, who is a branch for the above reverse housing construction project of this case, to Defendant B, and had the victim establish a branch of the above reverse housing construction project of this case to U.S. located in the location of the corporation, and as seen above, the possibility that the Defendant was aware of the details of the use and return of the fund claimed by the Defendants. In addition, the victim was also paid KRW 300 million to the Defendants for the personal purpose of 300 million on March 24, 2014.

6) Although the acquisition and implementation project of the building of this case has yet to proceed properly, K has made efforts for the acquisition and implementation project of the building of this case, such as obtaining written consent on the waiver of lawsuit from most buyers prior to the involvement of victims, and Mez comprehensive financial securities, Mesz comprehensive financial securities, Meszable securities, new banks, KTB investment securities, etc., which are approximately KRW 80 billion from KRW 80 billion to KRW 100 billion to KRW 100 billion to KRW 100,000,000 in terms of balance and expenses for arranging civil petitions. The victim's project seems to have been made.

After the participation, K drafted a financial advisory contract on the financing of KRW 120 billion with the immediate investment securities, and even after the victim fell from the acquisition and execution business of the building of this case, K also prepared a financial loan brokerage contract on the financing of KRW 110 billion with the SK Securities. The Defendant also made efforts to ensure the smooth progress of the acquisition and execution business of the building of this case by depositing down payment or by raising funds in order to receive a letter of intent to borrow a loan for the balance from a financial institution as seen in the above paragraph.

4. Conclusion

Thus, since the facts charged in this case constitute a case where there is no proof of crime, each of the defendants is acquitted under the latter part of Article 325 of the Criminal Procedure Act. However, since the defendants did not consent to the public notice of the verdict of innocence, the summary of the judgment of innocence is not publicly notified under the proviso of Article 58 (2) of

The presiding judge; and

Judges in the order of precedence

Judge Kang Dong-hun