Do 2016 Do 15084 A. Violation of the Act on Punishment, etc. of Specific Economic Crimes (Fraud)

(b) Fraud;

1. A;

2. B

3. C.

4. D;

Prosecutor (as to Defendant B)

Law firm E (for Defendant A)

Attorney F, G, and H in charge

Corporation (Limited LLC) I (for Defendant B, C, and D)

Attorney J, K, L in charge

Seoul High Court Decision 2016Do356 decided September 8, 2016

October 4, 2018

Of the judgment of the original court, the part of the fraud related to the receipt of deposit for lease shall be reversed, and this part of the case shall be remanded to the Seoul High Court.

The remaining appeals by a public prosecutor shall be dismissed.

The grounds of appeal are determined.

1. The lower court rendered a judgment of not guilty on the ground that there was no proof of a crime against the facts of the changed public prosecution for the same reason as indicated in its holding. Examining the reasoning of the original judgment in light of the record, the lower court’s aforementioned determination is justifiable. In so doing, the lower court did not err by exceeding the bounds of the due diligence due to free evaluation against the logical and empirical rules, such as the allegation of the grounds for appeal, or by misapprehending the legal doctrine on fraud.

2. Fraudulent parts related to the receipt of deposit for lease;

A. At least two co-offenders who jointly process a crime through this conspiracy do not require any type of punishment under the law, but are sufficient to communicate directly or indirectly with other accomplices who have intent to jointly commit a crime, and can be recognized by circumstantial facts and experience rules, even if there is no direct evidence. The joint execution of a crime by conspiracy is not based on the premise that all co-offenders realize the constituent elements of the crime, but can cooperate with each other to strengthen the decision on the act. Whether it falls under this should be determined by comprehensively taking into account the degree of understanding of each co-offender, the size of their participation, and intent to control the crime (see Supreme Court Decision 2006Da2448, Dec. 2, 2006).

22. See Supreme Court Decision 2006Do1623 Decided 206

Inasmuch as deception, which is a requirement for the formation of fraud, refers to a good faith and active or passive act that is to be widely observed in a transactional relationship, and that is not necessarily required to be a false indication as to the important part of the legal act, it is sufficient to say that it is the basis of a judgment that makes a perpetrator engage in an act of disposal of the property desired by mistake of the other party. Therefore, in a case where it is recognized that the relationship between the other party to the transaction would have not been engaged in the relevant transaction if he/she was notified of the specific circumstances, the other party to the transaction should have been informed of such circumstances in advance, under the principle of good faith. Nevertheless, the failure to notify the other party of such circumstances at the time of the transaction should have to be determined by deceiving the other party of such circumstances, such as whether the other party would have been aware of such circumstances, and whether the other party would be aware of such an act of fraud (see, e.g., Supreme Court Decision 200Da78480, Apr. 28, 2008).

B. The lower court rendered a judgment of not guilty of the changed facts of the instant public prosecution on the following grounds, etc.

(1) In entering into each of the instant lease contracts, it is difficult to view that the act of the lessor, while entering into each of the instant lease contracts, of selling at discount each of the instant lease objects to the lessee, and the act of not notifying the amount indicated in the column for “the transaction value of the certified copy of the relevant real estate registry” constitutes deception as referred to in the crime of fraud, rather than the actual transaction value.

(2) Of the real estate brokers who arranged for each of the instant lease contracts, there may be room to view that the act of soliciting the lessee to enter into a contract without notifying the aforementioned circumstances, such as M, constitutes the act of deceiving the lessee as referred to in the crime of fraud. However, if the duty to notify the lessor itself under the good faith principle is not acknowledged, it may be said that the lessor and the lessee did not engage in deception as referred to in the crime of fraud. (3) Even if the act of deceiving M, etc. constitutes deception, the evidence alone submitted by the prosecutor is insufficient to recognize the fact that the Defendant participated in the deception, such as M, and there is no other evidence to prove otherwise.

C. According to the evidence duly adopted by the court below, the following facts and circumstances were known. (1) Each of the lease contracts of this case was concluded under the direction of the real estate brokers, including Defendant A or real estate brokers, with the active involvement of each of the real estate brokers, including M.). (2) Defendant M, etc. was sold at a discounted price by 30% from the original purchase price of each of the lease contracts of this case. Nevertheless, the certified copy of each of the real estate registry was stated in the original sale price of this case, not from the discounted purchase price, but from the actual sale price of this case. Since each of the lease contracts of this case was established with the value of each of the lease contracts of this case, the maximum amount of each of the lease contracts of this case was not determined at the time of the lease contracts of this case, as well as with the fact that each of the lease contracts of this case was established with the owner of the real estate at the time of the purchase and sale price of each of the lease contracts of this case.

(4) Most of the instant lessors were at a discount of each leased object of this case, and did not actually pay the sales price with their own funds, and were aware that the sales price of the sales contract and the transaction price of the real estate registry were entered in this false statement. Of the remainder of the sales price, the portion that is not appropriated from the financial institution’s loans out of the remainder of the sales price was paid as the lease deposit received by each leased object of this case on the premise that the lease contract was concluded and the lease amount received for each leased object of this case was paid.

(5) Defendant A paid interest on loans of collateral security obligations established on the leased object until the time of entering into the lease agreement to hear some of the leased objects of this case. In addition, Defendant A was fully aware of the circumstances that it would be impossible for the lessor to maintain the loan interest under each lease agreement of this case in the event that the lessor could not pay the loan interest properly, and that the lessee who is the victim may not collect the loan deposit properly. Nevertheless, Defendant A and the lessor were in charge of public auction procedures on each leased object of this case by suspending payment of interest within a short time after entering into each lease agreement of this case, and Defendant A and the lessor were in charge of managing the leased object of this case’s sales at all times at the public prosecutor’s office, Defendant D’s office, the representative director of NN (hereinafter “N”), and Defendant D’s office, the director of this case, were in charge of managing the leased object of this case’s sales at discount.

On the other hand, Defendant A stated at the prosecution that Defendant C was engaged in the business similar to that of Defendant A while serving in the sales office. (7) Defendant B knew at the prosecution that the aforementioned discount sale as seen above and that the transaction value was recorded in the real estate registry, and that the sale of discount units and the conclusion of each lease contract of this case were conducted by Defendant A and Defendant C, and that several buyers were allowed to enter into a lease contract at a discount, and that the sale of apartment units at a discount was made by the tenant, and that the sale of the units was made by adding money to KRW 100,000,000,000 to KRW 20,000,000,000 to KRW 10,000,000,0000 to KRW 10,000,000,000.

(9) In the process of entering into a lease contract, RR personnel, including S, visited M et al. several times, and when the deposit is received, RR personnel participated and directly received the deposit from the lessee. Some victims stated in the prosecution that RR personnel S recommended the lease by entering into the apartment building to be leased.

D. Examining the aforementioned factual relationship and circumstances in light of the legal principles as seen earlier, it is sufficient to recognize that the Defendants did not notify at a discount to the lessees, such as the lessor and the real estate broker M, etc. of whether the lease of this case was sold in lots and the actual sale price, etc., constitutes an act of deception in fraud. Furthermore, the Defendants, as well as the Defendants, through direct and indirect communication with the instant lessors and the real estate broker M, etc., on the part of the Defendants, through the direct and indirect communication with the instant lessors and the real estate broker M, etc., as indicated in the revised indictment.

E. Nevertheless, the lower court rendered a not-guilty verdict on the revised facts of the public prosecution by the director. Such determination by the lower court is erroneous in its judgment by exceeding the limit of the free fluence of the due diligence against logical and empirical rules, or by failing to exhaust all necessary deliberations by misunderstanding the legal doctrine on the crime of conspiracy and conspiracy, thereby adversely affecting the conclusion of the judgment. The grounds for appeal by the prosecutor pointed out this are with merit.

3. Conclusion

Therefore, among the judgment of the original court, the part related to the fraud related to the receipt of the lease deposit shall be reversed, and this part of the case shall be remanded to the court of original instance in order to re-examine and determine it, and the remaining appeal by the prosecutor shall be dismissed, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jung-hwa

Justices Kwon Soon-il

Justices Lee Ki-taik

Justices Kim Jong-soo