2015 Highly 92 Credit Damages

A

A new type of prosecution (prosecution) and Kim Jong-dae (Trial)

Attorney B

July 28, 2016

Defendant shall be punished by a fine of KRW 3,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

Criminal facts

On December 207, 2007, the Defendant, as the representative director of C, entrusted the K non-Real Estate Trust Co., Ltd. with D and 12 lots (hereinafter referred to as “instant land”) outside the Jung-gu D and the housing construction project in the instant land. However, on October 2010, the Defendant suspended the said project due to the shortage of funds.

After that, on March 27, 2012, the victim E purchased from K non-Real Estate Trust Co., Ltd. D and five parcels, from the K non-Real Estate Trust Co., Ltd. through a public sale procedure, and on February 27, 2014, the victim F purchased from K non-Real Estate Trust Co., Ltd. and purchased from the K non-Real Estate Trust Co., Ltd., the victim E, F and the victim E’s part H agreed to promote the typ construction project in the instant land and applied for a loan to the I branch of the foreign exchange bank.

On April 8, 2014, at around 10:00, the Defendant sought I points of the foreign exchange bank located in Jongno-gu Seoul Jongno-gu Seoul High Court, and the K Deputy Director of the staff in charge of loans working there are unfair loans to the employees of the foreign exchange bank. Thus, “I would withdraw the unfair loans, and otherwise file a complaint with the director of the foreign exchange bank audit team, etc.”, “H, E, and F is a change of fraud”, “I would like to cut off the land of the person who is not a person operating a company normally but has a legitimate right to do so and engage in funeral services.” This is also an unfair loan, and this is also an unfair loan, and this person is a person who will inflict damage on the bank by paying interest for one to two months, and this person also speaks to L of the branch office of the foreign exchange bank to the same purport.

Then, on April 10, 2014, the Defendant sent a content-certified mail stating that “(loan Process) issues are not corrected and, if there is no change in circumstances, it will immediately file a civil petition with the Financial Supervisory Service, the Korea Exchange Bank’s headquarters audit and distribution, the pertinent appraisal corporation, the Korea Appraisal Association, etc.” at the I branch of the Korea Exchange Bank.

Accordingly, the defendant damaged the victims' credit by fraudulent means.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of the witness K, H and F;

1. Each statement of H and F among the suspect interrogation records of the police against the accused (the second, the second, and the comparison);

1. Each prosecutor's office and police's statement of H (including the part of each F's statement recorded);

1. Recording record preparation report;

1. Full certificates of each registered matter;

1. Content certification sent to the I branch of a foreign exchange bank (Evidence No. 18);

Application of Statutes

1. Article applicable to criminal facts;

Article 313 of the Criminal Act

1. Commercial competition;

Articles 40 and 50 of the Criminal Act

1. Selection of punishment;

Selection of Fines

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

Around April 8, 2014, the Defendant: (a) found an I branch of a foreign exchange bank and pointed out that it was unreasonable to grant a loan; and (b) did not make a statement to K as stated in its reasoning; (c) even if not, it cannot be deemed that the Defendant’s act was likely to damage the credibility of the victims.

2. Determination

A. Relevant legal principles

The crime of undermining credit under Article 313 of the Criminal Act is established when a situation where there is a possibility of undermining the credibility of people by spreading false facts or by other fraudulent means. Here, the term "seseminating false facts" means spreading the past or present facts which do not conform with the truth objectively to the truth, and the term "defensive means" means causing mistake, mistake, or land to the other party in order to achieve the purpose of the act of the actor, and using them. In addition, the criminal intent in the crime of undermining credit does not necessarily require a conclusive intention, but it is sufficient with doluence as to the fact that there is a situation where there is a concern that undermining the credibility of others (see, e.g., Supreme Court Decision 2006Do3400, Dec. 7, 2006).

In addition, in order to establish a crime of damaging credit, the consequence of the damage of credit does not actually need to occur, and the risk of causing the result of the damage of credit arises (see, e.g., Supreme Court Decision 2013Do8654, Oct. 17, 2013).

B. Determination

The contents of the statement by K are consistent and concrete, as well as consistent and detailed, and it is difficult to find any motive to make a false statement as a third party who has no interest with the defendant and the victims, taking charge of punishment for perjury. Therefore, the defendant's legal statement by K is high in its credibility. Therefore, it can be sufficiently recognized that the defendant made a statement to K as stated in its reasoning.

Furthermore, it is reasonable to view that the economic credit assessment of victims may be an important factor in the bank transaction, in full view of the following factors: (a) the victims were plans to implement housing construction projects requiring large-scale funds on the land of this case; and (b) the victims were also engaged in each petroleum distribution business, etc.; (c) the bank transaction was inevitable for the smooth progress of the business, such as securing operating funds; (d) the victims F was able to obtain loans equivalent to KRW 3.5 billion from the branch of the foreign exchange bank; (e) the victims were engaged in the foreign exchange bank transaction with the foreign exchange bank at the time of such transaction; and (e) the economic credit assessment of victims may be an important factor in the bank transaction; and (e) the risk of disadvantage, such as early repayment of existing loans and refusal of additional loans, may be anticipated.

3. Conclusion

Therefore, the above assertion by the Defendants and the defense counsel is rejected.

Judges Equitable