Defendant 1 and 2 shall be punished by imprisonment with prison labor for a year and two months, by imprisonment for a period of eight months, by imprisonment for a period of four and five years; by imprisonment for a period of one year; by imprisonment for a period of one year and six months; and by a fine of five million won.

When Defendant 7 fails to pay the above fine, the above Defendant shall be confined in a workhouse for the period calculated by converting 50,000 won into one day.

The number of detention days prior to the pronouncement of the judgment of the court below shall be 44 days for the defendant 1 and 2, and 71 days for the defendant 6 shall be included in the above punishment.

However, the execution of each of the above punishments shall be suspended for two years for Defendant 1, 2, 3, 4, and 5 from the date this judgment became final and conclusive, and for three years for Defendant 6, respectively.

A. misunderstanding of facts or misunderstanding of legal principles

(1) Defendants

In relation to the criminal facts of the judgment below, △△ Appraisal Corporation's Gyeonggi Branch or the sports branch office of Nonindicted Co. 1, a certified public appraiser with the main axis of the Defendants, was established jointly with the Defendants, and each of the above certified public appraiser's headquarters was registered as a separate business operator and operated as so-called independent accounting system by separately managing its business and profits. Thus, the funds of each of the above sports branch's above to the Defendants cannot be the other' property, which is the object of embezzlement, and thus, the crime of embezzlement is not established. However, the court below erred by misapprehending the legal principles, thereby affecting the conclusion of the judgment.

(2) Defendant 2, 4, 5

In relation to the criminal facts of the judgment below, the defendants did not constitute embezzlement because they accumulated funds with the consent of the victim corporation, and the defendants' above raising of funds constitutes legitimate acts as acts that do not go against social norms.

(3) Defendant 6

With regard to subparagraph 1-Ra and paragraph 5 of the criminal facts stated in the judgment below, it is nothing more than that Nonindicted 2 purchased the real estate listed in subparagraph 1-Ra of the criminal facts stated in the judgment below and borrowed the proceeds of purchase because it is necessary to pay interest, and it is not an actual purchaser. In relation to the real estate listed in subparagraph 1-Ma of the criminal facts stated in the judgment below, if a profit accrues from the sale of the real estate listed in the above paragraph, it is limited to a part of the profit, and even if it is not an actual purchaser, the court below erred in finding that it was guilty of this part of the facts charged by misunderstanding the facts of title trust.

B. Sentencing

In light of the various sentencing conditions of the instant case, the sentence of the lower judgment (one year and six years of imprisonment for each of the Defendants 1, 2, and 6, three years of suspended execution, three years of suspended execution, Defendant 3 and 7, two years of suspended execution, two years of suspended execution, one year of imprisonment for each of the Defendants 4 and 5, one year of suspended execution, two years of suspended execution) is too unreasonable.

2. Determination

A. Ex officio determination

Before determining on the grounds for appeal by the Defendants, we examine ex officio prior to the determination on the grounds for appeal by the Defendants. On the other hand, the Prosecutor filed an application for the amendment of a bill of amendment with the content that changes one-half of shares in the facts charged in relation to paragraph (d) of Article 1 of the judgment of the court below as stated in the judgment of the court below into one-third of shares, and one-half of shares in the facts charged in relation to paragraph (e) of Article 1 of the judgment of the court below as stated in the judgment of the court below, and the Defendants filed an application for the amendment of a bill of amendment with the content that changes as stated in paragraph (2) of the facts charged in the judgment of the court below as stated in the judgment of the court below into one-fourth of shares in the facts charged in relation to paragraph (2) of Article 37 of the Criminal Act. On the other hand, the changed part and the remaining parts of the Defendants (excluding Defendant 7) among the judgment of the court below

On the other hand, although there are grounds for reversal in the judgment of the court below, the defendants' assertion of misunderstanding of facts or misunderstanding of legal principles is still subject to the judgment of the court of this case (the defendants still assert the same purport as the grounds for appeal in regard to the modified portion of the indictment) and the following are examined.

B. The Defendants’ assertion of misunderstanding of facts or misapprehension of legal principles as to occupational embezzlement, and Defendant 2, 4, and 5’s assertion of misunderstanding of legal principles

According to the evidence duly examined and adopted by the court below, the defendants (However, until May 2004, the defendant 7 worked for the branch offices of the non-indicted corporation 1) shall conduct the business of the unlimited partnership company by investing the same amount in the sports branch offices of the non-indicted 1 corporation, and thereafter, by investing the same amount in the same shares. According to the guidelines of the Ministry of Construction and Transportation at the time of the above non-indicted 1 corporation, the defendants are allowed to conduct public appraisal, such as official land values, only to a large appraisal corporation composed of not less than 50 appraisers according to the above non-indicted 1 corporation's guidelines. Under the regulations on the operation of the branch offices of the above corporation, the defendants shall be responsible for the management of the branch offices of the non-indicted 1 corporation, and the defendants shall jointly and severally submit the accounting records of the corporation's business to the company, and shall jointly report the remaining amount of the company's business revenue with the public land values, and shall be distributed to the public corporation's company's funds and branch offices's funds.

On the other hand, a partnership agreement with the parties to jointly establish and operate a stock company with cash and land, and with the parties to jointly manage the company based on the share ratio. It is premised on the joint business between the parties in the name of the joint corporation and the external relationship and internal relations in accordance with the legal principles of the joint stock company. Thus, the legal relations related thereto shall not be achieved in accordance with the provisions of the Commercial Act, etc. as to the legal relations of the corporation. (See Supreme Court Decisions 2003Do773 delivered on April 15, 2005, Supreme Court Decisions 2003Da2248 delivered on March 26, 2004, Supreme Court Decisions 2001Da84381 delivered on October 11, 202, etc.). The same applies to a partnership company. Thus, the defendants cannot be deemed to have used the above economic share of the company's funds from the point of view of the economic share distribution as well as the economic share of the company's funds.

Furthermore, according to the evidence mentioned above, the defendants raised funds by means of excessive appropriation of benefits or withdrawal equipment, etc. for the purpose of promoting their own interest, not for the interests of each of the above corporations. The defendants did not properly provide the aforementioned funds to Defendant 1 and 5's personal account passbook and separate account books or evidential documents to confirm the place of use for managing non-funds, and at that time, used money for illegal land purchase, loan interest payment, incentives to some appraisers, incentives to some appraisers, and entertainment expenses which are difficult to handle as a normal account in relation to the order of appraisal services (the fact that a partial appraiser takes place a delivery of money to a public official in the above non-funds, but most of the details of the payment are stated on the basis of the creation are omitted). In light of the purpose of raising funds, developments leading up to the creation of funds, the use of funds actually used after that, and the actual status of management of funds for non-funds, the defendants' objective intent to acquire funds at the time of the acquisition of unlawful funds by the defendants.

In addition, in light of the above circumstances, it cannot be said that the consent of the corporation on the raising and use of the defendants' non-financing is not established, and it cannot be said that it constitutes a justifiable act that does not go against the social norms.

Therefore, the above assertion by the Defendants and the above assertion by Defendants 2, 4, and 5 are without merit.

C. Judgment on Defendant 6’s assertion of mistake of fact

Defendant (referring to Defendant 6 in this paragraph) initially denied the fact of title trust on the five real estate listed in paragraph (1) of the facts constituting the crime as indicated in the judgment below at the prosecutor's office, and all the facts of title trust have been led to the entire fact of title trust from the date when the defense counsel and the person who made his decision. In light of the circumstances of confession, it is difficult to view that the Defendant made a false confession, and Nonindicted 2, who is an accomplice, also made a statement corresponding to the confession by the prosecutor's office that recognized the fact of title trust of the Defendant at the prosecutor's office. (Additionally, Nonindicted 2 made an investment as the Defendant around May 2005, and it was not leased the down payment from the Defendant, and it was made more time after September 2004, which is the time of purchasing the real estate listed in paragraph (1) above, and it is not equivalent to the shares of the real estate mentioned in paragraph (5) of the above paragraph to secure the obligation to return the Defendant's assertion related to the real estate mentioned in paragraph (d).

On the other hand, the defendant reversed his confession by denying the title trust of the real estate listed in subparagraph 1-D and paragraph (e) of the crime of the court below as stated in the judgment of the court below. However, in light of the fact that the defendant's ownership of the above real estate as the actual right holder and stated the content that the defendant should distribute the net investment profits according to his share of the real estate as the actual right holder, and according to the content certification of the defendant sent the defendant to non-indicted 3, 2007, he calculates his damage related to the real estate listed in subparagraph d and paragraph (e), it cannot be deemed as a mere monetary lending relationship, as alleged by the defendant, and it is recognized that the fact of title trust is recognized.

Therefore, Defendant 6’s above assertion is without merit.

4. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act, and the decision of the court below is delivered again as follows.

1. D. Defendant 6 in collusion with the above non-indicted 2:

around May 2005, Defendant 6 had a 715.6 square meters of the Suwon-si (hereinafter omitted) site 715.6 square meters, and purchased KRW 2.5 billion and completed the registration of ownership transfer in the name of Nonindicted 4 in accordance with a title trust agreement with Nonindicted 4, a mother of Nonindicted 2, pursuant to a title trust agreement with Nonindicted 4, who is the mother of Nonindicted 2;

E. Defendant 6:

On September 7, 2004, at a place not commercial place, Defendant 6 had 130/1,986 square meters ( approximately KRW 128.9 square meters in size) out of 1,970 square meters of the site in front of the Suwon District Court, which is located in Suwon-si (hereinafter referred to as “2 omitted) in the development area of the Suwon-si City, Suwon-si (hereinafter referred to as “Seoul-si”), and purchased KRW 200 million through a voluntary auction, and completed the registration of ownership transfer in the name of Nonindicted Party 2 pursuant to the trust agreement between Defendant 6 and Nonindicted Party 2.

2. Defendants’ occupational embezzlement

Defendant 1 worked as a certified public appraiser and the head of a branch office of Nonindicted Incorporated Corporation 1 from around 1996 to July 2006 (△△ Corporation from around May 2004). From around July 2006 to around July 2006, Defendant 2, 3, 4, 6, and 5 worked as a certified public appraiser belonging to the sports branch of Nonindicted Incorporated Corporation 1 from around 1996 to around April 2003, respectively. From around July 2006 to around July 2006, Defendant 7 worked as a certified public appraiser belonging to the sports branch of Nonindicted Incorporated Corporation 1 (△△ Corporation from around 1996 to around May 2004). Defendant 2, from around 2004 to around July 206, Defendant 7, as a certified public appraiser belonging to ○○ Corporation, the certified public appraiser belonging to Nonindicted Incorporated Corporation 1 as a certified public appraiser belonging to the sports branch of Korea from around 206 to July 206.

The Defendants listed Non-Indicted 5 (Defendant 1’s wife), Non-Indicted 6 (Defendant 3’s wife), and Non-Indicted 4 (Defendant 3’s mother), who is the relative of a certified public appraiser who does not work in the non-Indicted 1’s company for the purpose of promoting the Defendants’ own interest, as if they were to account as if they would pay wages to these false employees, then deducted the above amount of the wages, or deducted the difference by appropriating the wages paid to Non-Indicted 7 (Defendant 2’s husband) and Non-Indicted 8 more than the actual amount of the wages paid to the non-Indicted 8, and then deducted the difference, and then withdrawn the funds from the funds deposited in the above account through deposit to the borrowed account managed by Defendant 2, and then arbitrarily divided them into purchase funds, loan interest, incentives for the illegal joint purchase of real estate, entertainment expenses difficult to treat them into normal accounts (the purchase funds are actually used in collusion with the purchase funds in accordance with the attached Table 2, 195, 549, 360).

(1) On May 15, 2003, the Defendants, except Defendant 7, embezzled the amount in custody of the △△ Appraisal Corporation by creating KRW 169,263,97 as shown in the attached Table 1-1, by creating the aggregate of the non-funds, as shown in the attached Table 1-1, from May 15, 2003 to May 31, 2004, by making the amount of KRW 169,263,97, which is created by the △△△△ Appraisal Corporation’s business office located in Suwon-si (hereinafter 3 omitted) by paying wages, bonuses, etc. to false employees.

(2) On June 15, 2004, the Defendants embezzled KRW 8,945,410 of the funds raised by paying wages and bonuses to false employees at the Gyeonggi branch office of Nonindicted Incorporated Company 1, located above (hereinafter the above (hereinafter the above 3 omitted), as described in the attached Table 1-2, from June 15, 2004 to July 6, 2006, such as deposit of KRW 8,945,410 to Defendant 1’s borrowed account under Defendant 2’s management, etc., by using the borrowed account in the name of Defendant 1,5 to raise the sum of KRW 302,063,876, which was kept for Nonindicted Company 1, unlike other Defendants, from around September 20, 2004 to around July 16, 2006, in collusion with the above Defendants for the purpose of embezzlement as stated in the attached Table 1-2. < Amended by Presidential Decree No. 18530, Mar. 16, 2004>

(a) Defendant 1, 2, 3, 4, 5, and 6: Articles 7(1)1 and 3(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, and Article 30 of the Criminal Act (each title trust point, each choice of imprisonment with labor)

B. Defendants: Articles 356, 355(1), and 30 of the Criminal Act (the point of each occupational embezzlement, Defendant 1, 2, 3, 4, 5, and 6 of the Criminal Act, the choice of imprisonment with labor, and the choice of fines against Defendant 7)

1. Aggravation of concurrent crimes (the Defendants except Defendant 7)

Article 37 former part of Article 37, Article 38(1)2, and Article 50 of each Criminal Act (Aggravation of concurrent Crimes with Punishment and Punishment provided for in the Act on the Punishment of Occupational Offense against Non-Indicted 1 Stock Companies with heavy punishment)

1. Detention in a workhouse (Defendant 7);

Articles 70 and 69(2) of the Criminal Act

1. To be included in the number of days pending trial (defendant 1, 2, and 6);

Article 57 of the Criminal Code

1. Suspension of execution (Defendant 1, 2, 3, 4, 5, 6);

Article 62 (1) of the Criminal Code (As mentioned above, considering the above circumstances)

Although Defendant 1 is the head of the above corporation's branch, Defendant 2 was in charge of the crime of this case as a financial officer, and is related to real estate speculation while engaging in the occupation that requires high morality, Defendant 2 is likely to be subject to criticism. However, each of the above sports branch offices is deemed to have worked as the head of the branch office or the financial officer in accordance with the practice that plays the role of the head of the branch office or the financial officer while returning to each other. The above Defendants are against the first offender, and all of the above Defendants are against the first offender, and there is no profit gained by paying taxes such as capital gains tax, etc., and there is no substantial amount of punishment for embezzlement, in light of the various sentencing conditions stipulated in Article 51 of the Criminal Act, such as the fact that the punishment of the judgment below is somewhat heavy, and thus, the sentence of

2. As to Defendant 7

In light of the various sentencing conditions stipulated in Article 51 of the Criminal Act, such as the primary crime, the punishment for embezzlement is not significant, and the degree of participation is minor compared to other Defendants, etc., the punishment of the lower judgment seems to be too heavy and the punishment of the lower court is to be sentenced to a fine.

3. As to the defendant 3, 4, 5, and 6

Although the above Defendants were first offenders and are against the duty to pay capital gains tax in the case of Defendants 4 and 5, in light of the various sentencing conditions stipulated in Article 51 of the Criminal Act, such as the degree of participation by the above Defendants in each of the crimes in this case, the contents of the crimes in this case, and the status requiring high morality, even if they were aware of the fact and were involved in the crimes related to real estate speculation, the punishment imposed by the court below is appropriate and appropriate, and thus, the same sentence as the disposition is sentenced.

It is so decided as per Disposition for the above reasons.

【Crime Disturbing Table】

Judges Choi Sung-sung (Presiding Judge)