In a case where the Defendant, a fund broker, was indicted for violating the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) by borrowing money from a bond broker as if he/she received a request for a loan exceeding the delegated scope even though he/she received a request for lending a certain amount from the lender Gap, the case affirming the judgment below that recognized the entire money received from the Defendant, as the amount of defraudation.

Article 347(1) of the Criminal Act; Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 11304, Feb. 10, 2012)

Defendant

Defendant

Law Firm LLC (Law Firm LLC, Attorneys Woo-gn et al., Counsel for defendant-appellant)

Seoul High Court Decision 2011No1272 decided December 15, 2011

The appeal is dismissed.

The grounds of appeal are examined.

1. A violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against the victim's Lee Chang-chul;

In full view of the results of the first instance court’s examination and the results of additional examination of the witness against the above victim and non-indicted 1, the court below determined that the defendant was credibility in the statement made by the victim that he concluded a share acquisition agreement with the defendant and paid the price in full, and that the defendant did not have the intent or ability to transfer stocks even if he received the share transfer price from the victim, and that the court below reversed the judgment of the first instance which acquitted the defendant, and found the defendant guilty on this part of the crime.

Examining the evidence legitimately admitted by the court below in light of the reasoning of the judgment below, the above judgment of the court below is just and acceptable, and there is no violation of the law of logic and experience and the principle of free evaluation of evidence, which affected the conclusion of the judgment, as otherwise alleged in the ground of appeal.

2. The victim non-indicted 2's violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

In a case where the Defendant, who is a fund broker, was issued documents such as blank bills, receipts, etc. with the request to loan KRW 500 million from the lending client, which are in blank, to repay personal debts, he/she received KRW 80 million after deducting interest from the victim as if he/she received a request for a loan of KRW 1 billion in excess of the delegation scope. In the process, if the Defendant, without authority, stated that the amount of the receipt amount in the name of the lending client was KRW 1 billion and forged in the process, he/she should be deemed to be the amount of fraud fraud fraud or the amount of the money received from the victim as the amount of profit under Article 3 (1) of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes, and only the amount exceeding the delegated scope shall not be deemed to be the amount obtained by fraud or the amount of profit (see, e.g., Supreme Court Decision 98Do248, Apr. 24, 198).

Examining the reasoning of the judgment of the court below in light of the above legal principles and records, it is just that the court below maintained the judgment of the court of first instance which recognized the defendant as the amount obtained by acquiring all of KRW 880,000,000 from the victim as the amount obtained by deceit based on the circumstances as stated in its reasoning. In this regard, it cannot be said that there is an error of law such as misunderstanding of legal principles as to the recognition of the amount of fraud fraud (the Supreme Court Decisions 2000Do137 delivered on April 25, 2000 and Supreme Court Decision 2005Do3516 delivered on March 24, 2006, which are cited by defense counsel, are different from the case of this case, and it is not appropriate to

3. Accordingly, the appeal shall be dismissed by the assent of all participating Justices. It is so decided as per Disposition.

Justices Ahn Dai-hee (Presiding Justice)