(b) Property in breach of trust;

2016Gohap60(combined).Occupational breach of trust

2.2.B

Attorney D, E

Law Firm F (for Defendant A)

Attorney G

Law Firm H (for Defendant B)

Attorney I

However, with respect to Defendant B, the execution of the above sentence shall be suspended for two years from the date this judgment becomes final and conclusive.

A 80 million won shall be additionally collected from Defendant A.

Of the facts charged in the instant case, each of the Defendants A’ occupational breach of trust on February 1, 2012 shall be acquitted.

[2015 1 1895]

1. Property in breach of trust by Defendant A;

From May 6, 2011 to May 4, 2012, the Defendant served as the representative director of K Co., Ltd. (hereinafter referred to as "K, regardless of whether it was before or after the change; hereinafter referred to as "K"), which is a postnatal care center operating company in Gangnam-gu Seoul, Gangnam-gu, Seoul, and was in charge of the selection of K's indoor construction enterprise, payment of prices to such enterprise, and supervision of construction.

On June 22, 2011, the Defendant selected M Co., Ltd. (hereinafter referred to as "M") as K interior contractor, entered into a contract with B and indoor interior interior interior interior interior interior decoration contract (hereinafter referred to as "the instant interior decoration contract"), which is the actual operator of M on the same day, and entered into the instant interior interior decoration contract (hereinafter referred to as "the instant interior decoration contract"), and the instant interior decoration work began around that time.

At around July 8, 2011, the Defendant received cash worth KRW 15 million from around 201 to November 30, 201, in total six times, as shown in the separate sheet of crime, from B, to the following: (a) the Defendant received an implied illegal solicitation from B to the effect that “I am appointed as a contractor; (b) I am am son, I am am am son, and I am am am son, and the additional construction works are given in the future; and (c) in the process of supervision of the construction.”

As a result, the defendant acquired money and valuables in return for illegal solicitation as to his duties as a person who administers another's business.

2. The defendant B’s misappropriation of trust

From December 24, 2009 to December 24, 2009, the Defendant actually operates construction business M, such as indoor construction, in the second floor of the Gangnam-gu Seoul Nbuilding.

On June 22, 2011, the Defendant contracted for K’s instant interior works from the above A, and subsequently, the Defendant continued the construction work from around that time.

On July 8, 2011, the Defendant issued a total of KRW 80 million over six occasions from that time to November 30, 201, as indicated in the annexed Table of Crimes, to the effect that “A is selected as a construction company, and will be entrusted to M, the additional construction will be given in the future, and the construction cost will be paid in time, and the convenience is given in the process of construction supervision,” and that the Defendant issued cash of KRW 15 million at least six times from that time to that of November 30, 201.

Accordingly, the defendant made an illegal solicitation and provided money and valuables to the person who administers another's business.

【2016Gohap60】

3. Defendant A’s occupational breach of trust

The Defendant is K’s representative director, who is a postnatal care center operating company, and this is the person who exercised the actual authority of K’s representative director on behalf of the Defendant from January 2012 to February 2013.

Around June 6, 2011, the Defendant and P, Q, R, S, T, U, and V entered into an implementation agreement as a partner of the Dong business. The content of the agreement was that the said parties borrowed the expenses incurred in the establishment of K’s business and the installation of all facilities from K to K and that the said parties set their share ratio of shares issued by K in accordance with the respective ratio of the total amount of the loan, including the total amount following the completion of all the expenses incurred thereafter.

After that, on December 24, 2011, K was based on the above implementing arrangements, but K was assigned 50,000 shares issued on the basis of those who actually contributed funds and their contributions, and prepared a register of shareholders on this basis.

As such, since those who contributed funds to K acquire the status of shareholders by being allocated shares in proportion to their contributions, K did not have any obligation to return the investment funds to those who contributed to K or those who acquired the shares.

The Defendant allocated approximately KRW 200,00,000 shares of K with respect to the amount of KRW 200,000 that he invested in K, and therefore, on April 5, 2013, the Defendant filed a lawsuit against K to the Seoul Southern District Court for the claim of return of the borrowed amount, despite having no obligation to return the invested amount to the Defendant, and on April 5, 2013, K did not dispute this. Accordingly, the judgment became final and conclusive on July 13, 2013, Seoul Southern District Court 2013Gahap6170 as to the Defendant’s KRW 195,039,00 and its related amount were 5% per annum from January 1, 2013 to April 17, 2013, and 200% per annum from the next day to the day of full payment.

Accordingly, the Defendant, as the representative director of the Victim K, violated the occupational duty that shall not cause property damage to K, thereby acquiring 5% per annum from January 1, 2013 to April 17, 2013, and 20% per annum from the next day to the day of full payment, and suffered property damage equivalent to the same amount as the victim’s property damage.

Summary of Evidence

【Evidences 1 and 2 in each case (Evidences : 2015 Highis895)

1. Defendants’ respective legal statements

1. Each legal statement of the witness P, R, W, andO (i) The part of the witness P’s statement is not to prove the authenticity of the statement made by U to the witness P, ② the part of the statement made by W andO, but to the extent that U to the effect that U used it as evidence only to prove that U had made such a statement; hereinafter the same shall apply)

1. Each legal statement of witness B and U (the statement of witness B shall be limited to the defendant A) ;

1. Protocol of examination of the witness with respect to 0 [the order of examination of the witness list (hereinafter referred to as the "order of examination evidence list 7];

1. Each prosecutor's protocol of interrogation of the Defendants and U as to each prosecutor's office (including the whole part and attached materials)

1. Each protocol of suspect interrogation of the police against the Defendants (not including the first protocol of suspect interrogation of the Defendants B)

1. Some statements in the police interrogation protocol of U (including the statements in zero);

1. Each police statement made to R andO;

1. Each investigation report (number 23,27,28,29);

1. A certified copy of the register (No. 2), a fact certificate (No. 3), a register of shareholders (No. 4), a certificate of acceptance of stocks (No. 8), a copy of the passbook (No. 15), a copy of the passbook (No. 16), a fund investment contract (No. 17), an indoor construction plan contract (No. 17), each passbook transaction (No. 18,19), a record (No. 22), a recording CD (No. 30), and data related to X loans (No. 31);

1. The chief of the complaint;

[Evidence No. 3 (Evidence: Evidence of 2016Gohap60)

1. The defendant A's partial statement

1. Each legal statement of P, R, W,O, Y, and T;

1. Partial statement of U witness;

1. Each prosecutor's protocol of examination of the suspect against Defendant A, which contains part of the statement (including a substitute part);

1. Each prosecutor's protocol of examination of P orO (No. 86, 99);

1. Partial descriptions of the Defendant A’s statement (No. 53)

1. Each investigation report and accompanying documents (number 22 through 28, 76 through 80);

1. The execution agreement No. 2, No. 1, 2012 A. 4, 93614 (C. 4), 1, 201, 29, 30, 41, 29, 15, 30, 144, 29, 29, 36, 14, 36, 46, 29, 14, 36, 36, 47, 29, 36, 47, 36, 147, 36, 47, 146, 36, 45, 36, 194, 36, 196, 45, 194, 194, 194, 194, 194, 194, 194, 196, 194, 194, 194, 194, 194.

1. The chief of the complaint (No. 106), each complainant's written opinion (No. 45, 100, 115), reference materials (written opinion) (No. 77), supplementary statement of complaint (No. 111), each complainant's written opinion (No. 13,87,97), each appellant's written opinion (No. 114), the petition (No. 114), the statement of reasons for the complaint (No. 13), the summary of the reasons for the complaint (No. 5), each appellant's written opinion (No. 7,8) and each appellant's written opinion (No. 103) (No. 103).

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

A. Defendant A: Article 357(1) of the former Criminal Act (amended by Act No. 14178, May 29, 2016; hereinafter the same shall apply), Article 356 and Article 355(2) of the Criminal Act (amended by Act No. 14178, May 29, 201); Articles 356 and 355(2) of the Criminal Act;

B. Defendant B: Article 357(2) and (1) of the former Criminal Act and the choice of imprisonment

1. Aggravation for concurrent crimes;

Defendant A: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes with punishment for an occupational breach of trust heavier than punishment)

1. Suspension of execution;

Defendant B: Article 62(1) of the Criminal Act (General Considerations favorable to the reasons for sentencing below)

1. Additional collection:

Defendant A: the latter part of Article 357(3) of the former Criminal Act

Judgment on Defendants and their defense counsel’s assertion - Parts of 2015 Highis895

1. Summary of the assertion

A. Defendant A

Although there is a fact that 70 million won has been received from B, it is not received as compensation for illegal solicitation, but it is received as investment funds for the skin management business related to the postnatal care center conducted by AB (hereinafter referred to as "AB").

B. Defendant B

Although there is a fact that A has provided KRW 80 million to A, it is not paid for illegal solicitation, but it is equivalent to the investment in the skin management business related to the postnatal care center conducted by AB.

2. Amount of money received by Defendant A from Defendant B

Comprehensively taking account of the following circumstances admitted by the evidence presented as evidence of guilt, Defendant A’s receipt of a total of KRW 80 million from July 8, 201 to November 30, 201 by Defendant B on six occasions. Accordingly, this part of the allegation by Defendant A and his defense counsel is rejected.

① Defendant B, at the prosecutor’s office, specified the date, time, place, amount, etc. of the passbook to Defendant A by verifying the transaction details of the passbook and providing money to Defendant A; KRW 15 million around July 8, 201; KRW 16.5 million around July 12, 201; KRW 20 million around September 6, 201; KRW 12.9 million around November 9, 201; KRW 11.6 million around November 24, 201; and KRW 4 million around November 30, 201; and each written statement to Defendant A around 30,000 won around November 30, 201; and thereafter, Defendant A consistently stated that he/she provided Defendant A with KRW 80 million over a total of six times, as stated in the attached list of crimes (Evidence 2015; hereinafter referred to as “Evidence 5.5 million evidence”).

Defendant B’s account at least KRW 80,000 (Evidence No. 196 through 225) that was deposited in cash around the time when the list of crimes was entered in the above list of crimes was consistent with Defendant B’s statement, and Defendant B deposited money equivalent to the money that Defendant B provided to Defendant B at the time when Defendant B delivered money to Defendant A (Evidence No. 323 through 328).

③ In the investment contract signed by the Defendants on September 3, 2011, M states that the amount to be invested in AB would be KRW 80 million, and M and AB’s corporate seal is affixed (Evidence Records 226, 227 pages).

④ Defendant A vindicates that the money received from Defendant B was KRW 70,000,000 on the short-term loan items for each president of the accounts included in the AB settlement statement from 2011 to 2014, on the ground that the said items were indicated as “AC (B) 70,000,000 won.” However, at the time of the second examination of the police officer, Defendant A stated that the money received from Defendant B was about KRW 40,00-5,000 (Evidence No. 164 of the record) and was examined by the prosecution (Evidence No. 164 of the record), and it is difficult to accept the said items on July 10, 201 through 344,70,000 won in cash from the K-site coffee shop, steve work site invested by Defendant B, etc., and that it was difficult to accept the said amount of money received from Defendant B without any specific statement as to the said amount of money received from each of the said parties.

3. Whether the money received by Defendant A from Defendant B constitutes an illegal solicitation

A. Relevant legal principles

"Unlawful solicitation" under Article 357 (1) of the Criminal Act does not necessarily require the degree of occupational breach of trust. It is sufficient if it is contrary to social rules or the principle of good faith. Determination is made by comprehensively considering the contents of solicitation, the amount of consideration related thereto, the form, and the integrity of the business administrator, who is the legal interest protected by the law, etc. The solicitation is not necessarily required to be explicitly made, and it is impermissible even if it is implicitly made (see, e.g., Supreme Court Decisions 2009Do10681, Sept. 9, 2010; 2012Do1259, May 16, 2014).

B. Determination

Comprehensively taking account of the following circumstances admitted by the evidence presented as evidence of guilt, Defendant A’s acceptance of KRW 80 million in return for the illegal solicitation, such as the written judgment, at least implicitly from Defendant B, can be sufficiently recognized. Accordingly, the Defendants and the defense counsel’ assertion on this part cannot be accepted.

① From around 2006, the Defendants came to know in the course of performing the interior works of the AF Postnatal Care Center run by Defendant B, a prior to the conclusion of the instant interior works (Defendant B’s legal statement).

② Defendant A was one of the shareholders of K and was in the position of the representative director. Defendant A actively recommended Ma as the contractor in relation to K’s interior works, and concluded the instant interior works contract. In addition, in the process of concluding the additional construction contract, Defendant A actively participated in the process of obtaining the consent of shareholders or obtaining the consent of shareholders. Defendant A performed the supervisory work of the instant interior works, and paid the price of the instant interior works to M while managing K’s funds.

③ Defendant B, a representative in the name of M and a husband of AG and a person who actually operates the said company, had a significant interest in obtaining a contract for the interior works of K as well as in concluding an additional construction contract and determining the price thereof, payment of the interior works of this case, convenience in the process of supervision of construction works, etc., even after the conclusion of the interior works contract.

④ When Defendant A pays the price for construction to M with the money paid by the shareholders of K, Defendant B paid part of the price for construction in cash immediately thereafter, and Defendant A paid the price for construction directly to Defendant A. Defendant A deposited the said money into his personal account, not the corporate account of AB (hereinafter referred to as “the steam record” in the instant case No. 196 to 225, 323 through 328, 467, 574).

In addition, Defendant A received KRW 15 million from Defendant B, around July 8, 2011, and deposited KRW 14.75 million among them into his account on July 12, 2011, and transferred KRW 19 million to X, the wife of U on July 12, 201, and immediately after U on July 12, 201, U paid KRW 19 million out of his own investment to K around 14:24 and around 15:33 on the same day (attached Form 1; evidence record 23, 323, 367).

In addition, around July 12, 201, KRW 19 million was received from 16,50,000 won to its account, and deposited KRW 20,000,000,000 including the above money (attached Table 2; 223,323 of the evidence record). In addition, around September 6, 201, Defendant A deposited KRW 20,000 in its account at KRW 3050,000,000 (Attached Table 3; 2.19,224,326 of the evidence records); around 201; 2.16,000,000 won was deposited in its account at KRW 2.50,000 on the same day (attached Table 2.16,000,000 won was deposited in its account at KRW 2.165,000,000 on the same day (attached Table 2.166,000,000).

As such, Defendant A only remitted only part of the money received from Defendant B to AB, and the remainder was consumed for personal purposes, such as remitting U’s wife X or paying it with his own investment.

(2) In addition, Defendant A received 80 million won from Defendant B in cash and did not prepare objective evidence, such as receipt of the said money (Evidence No. 503,505,506). Defendant B stated that there was no receipt from Defendant A at the time of the initial investigation into the prosecution (Evidence No. 503,505,506) and stated that the receipt was lost. However, Defendant A consistently stated that there was no receipt from Defendant A (Evidence No. 566, 568 of the Evidence No. 568, Defendant A’s legal statement), in light of the fact that Defendant B did not acquire shares or equity shares of Party B (Evidence No. 562 of the Defendant’s legal statement, evidence No. 562 of the evidence No. 505), and Defendant B did not pay the above money to Defendant B until the time of the investigation into the instant case, or did not take any measures of Party B’s investment evidence No. 505 (Evidence No. 565 of the principal or equity investment evidence). 505).

⑤ From the investigative agency to this court, Defendant A consistently stated that “I would receive KRW 300 million from Defendant B of M, who was ordered to undertake the instant interior works, and that I would have paid KRW 100 million to her own capital by receiving KRW 88 million from Defendant A, and Defendant A would have paid the remainder of KRW 200 million from Defendant B.”

As to this, U recognized that “I had talked about 0,00 and W at the beginning of August 2014, and there was a talking about rebates, W, and Y rebates in the AI postnatal care center operated by R around August 13, 2014.” However, “facts were not paid money from Defendant A, but were paid back to 0, and the Defendant had a bad appraisal as a failure of K’s business, and the Defendant made a false statement to receive money from Defendant A. In view of the fact that I received 88,00,000 won from Suwon to receive 4,00,000 won and 2,000,000 won borrowed from Defendant X’s name from Defendant, and that there was no evidence from Defendant 1 to 31, 2016, the statement was made from Defendant 1 to 31, 2016.”

Rather, as seen earlier, around July 8, 2011, Defendant A received KRW 15 million from Defendant B and deposited KRW 14.75 million in his account, and deposited KRW 19 million in U’s wife X around July 12, 201, and U paid KRW 19 million out of his own investment around July 12, 201. In light of the fact that U paid KRW 19 million to K, it appears that it conforms to the fact that “A grants part of the money for which Defendant A received rebates from Defendant B, to himself, and paid the money as its investment.”

7) The Defendants vindicateed that Defendant B’s money paid to Defendant A was an investment amount in AB engaged in the secondary management business related to the postnatal care center, and the Defendants drafted the investment contract on September 3, 201, stating that M makes an investment of KRW 80 million in AB (Evidence Records 226, 227), and that “AB’s short-term loan items included in the tax adjustment statement from 2011 to 2014, among the short-term loan items in the account books included in the tax adjustment statement submitted by Defendant A’s defense counsel, are “AC (B) 70,000,000 won.”

그러나 ① 피고인 A은 피고인 B으로부터 받은 돈을 AB의 계좌에 입금하지 않고 자신의 계좌에 입금했을 뿐만 아니라 자신의 계좌에 입금한 돈 중에서도 일부에 불과한 약 1,000만 원만을 AB에 입금했을 뿐이고, 그 외에는 U의 처인 X에게 송금하거나, 'AH조리원'의 보증금을 지급하거나, 피고인 A의 K에 대한 출자금으로 납입하는 등 개인적으로 사용한 점(증거기록 323 내지 328, 465 내지 467면), Q AB의 2011년도 세무조정계산서는 2012. 3. 31.경 신고되었는데, 이은 경찰에서부터 이 법정에 이르기까지 일관되게 그 무렵인 2011. 12. 말경 또는 2012. 1.경에도 3차례에 걸쳐 U으로부터 '피고인 A이 피고인 B으로부터 리베이트를 받았다'는 취지의 말을 들었는데, 피고인 A이 함께 있는 자리에서 그와 같은 말을 들은 적도 있다."는 취지로 진술하였고(증인 0의 법정진술, 증거기록 141 내지 143, 483 내지 486면)2), 피고인 A도 경찰 조사 당시 "2012. 1.경 0과 이 산후조리원 공사 현장에 찾아와서 공사대금이 얼마 들어갔냐고 저에게 물었는데 제가 12억 5,000만 원이 들어갔다고 하니까 이은 공사비가 그렇게 들어갔을 리가 없다며 공사비의 일부가 샌 것 같다고 이야기하며 저에게 '너네가 M에 공사를 주기 위해 모종의 관계가 있는 것 아니냐. 통상적으로 이런 공사를 할 때 리베이트를 받는데 너가 받은게 아니냐'라고 물은 적이 있다."라고 진술한 점(증거기록 152, 153면) 등에 비추어 볼 때, 피고인 A이 피고인 B으로부터 받은 리베이트가 문제될 소지가 있다고 생각하여 세무조정계산서에 허위의 기재를 해 두었을 가능성도 많다고 보이는 점, Ⓒ 피고인 A은 위 투자계약서에 기재된 작성일자인 2011, 9. 3. 이전부터 피고인 B으로부터 이미 돈을 받고 있었던 점[증거기록 223, 323면; 피고인 A은 투자계약서를 작성하기 전인 2011. 7. 8.경 및 2011. 7. 12.경에 피고인 B으로부터 받은 돈도 AB에 대한 투자금이라고 진술하였으나(증거기록 566면), 투자계약시를 작성하기 전부터 투자금을 교부받는다는 것은 거래의 관행상 이례적이어서 선뜻 믿기 어렵다], 위 2011년도 세무조정계산서의 계정별 원장에는 피고인 B이 준 돈이 투자금이 아닌 단기 차입금 7,000만 원으로 기재되어 있으나, 2011. 9. 3.자 투자계약서에는 M이 AB에 8,000만 원을 투자하는 것으로 되어 있어, 그 돈의 금액과 용도가 서로 다를 뿐만 아니라 피고인들은 이 법정에서 피고인 B이 피고인 A에게 준 돈의 액수에 관하여도 서로 다르게 진술하고 있는 점, ① 위 각 세무조정계산서의 계정별 원장에는 피고인 B이 준 돈이 단기차입금으로 기재되어 있음에도 2011년도부터 2014년도까지 4년 이상 이자 또는 투자수익이나 원본 또는 투자원금의 일부도 변제된 적이 없는 점(같은 기간 동안 피고인 A은 자신의 어머니인 AK로부터 빌린 단기차입금을 모두 변제하였고, 자신이 AB에 대여한 단기차입금도 상당 부분 변제받았다), 9 피고인 B은 경찰 조사 당시 '이 사건 인테리어 공사 대금으로 받은 돈이 아니었다면 AB에 투자를 적게 하였을 것이다'는 취지로 진술하였고(증거기록 160, 161면), 이 사건 인테리어 공사의 공사대금이 원활하게 지급되지 않아 공사가 지체되고 있는 상황에서 피고인 B이 부족한 공사대금을 AB에 투자하는 데 사용했다는 변명은 납득하기 어려운 점, 이 앞서 본 바와 같이 피고인 B은 피고인 A에게 위 돈을 현금으로 주었고, 영수증 등 이를 증명할 자료도 없으며, 피고인 B이 AB의 주식이나 지분을 취득한 적도 없는 점, ⑥ 피고인 B은 위 투자계약서에 투자금액이 기재되어 있어 투자계약서를 작성한 이후에는 별도로 영수증을 받을 필요가 없었다고 변소하나, 위 투자계약서에는 '2011. 11. 30.까지 8,000만 원을 지급한다'는 취지만 기재되어 있을 뿐, 8,000만 원을 지급하고 지급받았다는 취지는 전혀 기재되어 있지 않아, 위 투자계약서 작성 이후에는 영수증을 받을 필요가 없었다는 피고인 B의 변소는 납득하기 어려운 점 등에 비추어 보면, 위 2011. 9. 3.자 투자계약서 및 AB의 각 세무조정계약서의 기재 내용은 모두 선뜻 믿기 어렵다.

Judgment on Defendant A and his/her defense counsel’s assertion - The part of the case 2016Gohap60

1. Summary of the assertion

The Defendant’s filing of a lawsuit against K for the claim for the repayment of the borrowed amount is conducted to set up against it in a situation where the illegal seizure of K’s corporeal movables is underway. As such, it cannot be deemed that there was a risk of causing damage to the principal to the same extent as the damage was inflicted on the principal from an economic point of view, as it was based on a business judgment.

2. Determination

A. Whether the defendant had an intention to commit occupational breach of trust

1) In order to establish the crime of occupational breach of trust, the perception and consequence of the occupational breach of trust is a subjective element, namely, awareness that one’s own or a third party acquires the benefit and causes damage to the principal. Such recognition is sufficient with dolusent perception. In a case where the Defendant denies the criminal intent of the crime of occupational breach of trust, the facts constituting a subjective element of the crime of breach of trust due to the nature of an object should be proven by the method of proving indirect facts having considerable relation with the intention, and in such a case, what constitutes indirect facts having considerable relation should be reasonably determined based on the normal empirical rule (see, e.g., Supreme Court Decision 2010Do9652, Jul. 28, 2011).

On the other hand, whether the intent of breach of trust can be recognized on the ground of business judgment should be determined individually depending on whether it is an intentional act with the awareness that one or a third party obtained property benefits and that it is an intentional act with the awareness that it would inflict loss on the principal in light of all the circumstances, such as the developments and motive leading up to the business judgment in question, the contents of the business subject to the determination, the economic situation faced by the company, and the probability of incurring loss and acquiring profit (see, e.g., Supreme Court Decision 2009Do1149, Oct. 28, 2010

2) In full view of the following circumstances acknowledged by the evidence presented as evidence of guilt, the Defendant appears to have known, at the time of the crime of this case, that he was aware of, or could sufficiently have known, that the money invested was not the money borrowed, but the money was not the money borrowed, and thus, he could not be returned. However, it is reasonable to deem that the Defendant had the intention of breach of trust, at least, by receiving a judgment in favor of a non-contentious pleading, instead of taking measures such as filing a lawsuit for a claim for refund of the borrowed money, and not having the auditor who has the authority to file a lawsuit, or having the auditor who has the authority to file

① During this court’s understanding of the situation as the representative director, the Defendant stated that “I think that I would not know why I would have claimed as a borrowed money (the other shareholders demanded the return of the amount invested to K) and that it would not be possible to establish a postnatal care center with the amount of KRW 50,000,000 for companies to select as well as the amount of investment, and that I would like to think that I would like to think that I would like to discuss even if I had filed a lawsuit for the return of the borrowed money, and that I would like to think that I would like to think that I would be an investment amount from the beginning.”

② On November 6, 2012, prior to the filing of a lawsuit claiming the return of the borrowed amount against K ( April 5, 2013), the Defendant filed a lawsuit claiming the return of the borrowed amount (Seoul Central District Court 2012Gahap93614, Seoul Central District Court 201) by asserting that the legal nature of the borrowed amount that K’s other shareholders invested in K is the borrowed amount (Seoul Central District Court 2012Gahap93614, May 20, 2013). The Defendant asserted that, as the representative director of K, the Defendant did not have a duty to return the borrowed amount since the borrowed amount was not the borrowed amount, but the invested amount was not the borrowed amount. As the Defendant’s claim on September 3, 2013, the said invested amount was an investment amount, and therefore, K is not obligated to return it to K).

[Attachment 43 to 46, 394 through 444, 53, 554, 894 through 900, 1,881 through 1,886] evidence records of the case No. 2016, 2016.

③ The Defendant received advice from the law firm as to whether the money invested in the company has been invested or borrowed during that period after receiving legal advice to the law firm, and the Defendant agreed to invalidate the validity of a notarial deed of a monetary loan agreement made between P, AL and K as the obligor on April 16, 2013 (Evidence No. 1, No. 2077 of the evidence record), and in fact, the Defendant had been aware of the fact that, around March 29, 2013, there was an agreement to invalidate the validity of a notarial deed, etc. from around March 29, 2013 (Evidence No. 1, No. 212-2, No. 215 of the record), and the Defendant had been aware of the fact that, around April 5, 2013, 2013, the Defendant had already known that it was not a shareholder’s investment but an investment in the claim for the return of the borrowed money.

(4) When a director of a stock company files a lawsuit against the company, he shall indicate as his representative an auditor who has the authority to represent the company in connection with such lawsuit, and the director shall serve it on the auditor.

Although the Defendant submitted to the court a complaint indicating the auditor T in filing a lawsuit for the return of the borrowed amount against K (the Defendant’s legal statement, evidence record No. 398) but before the Defendant brought the lawsuit as above, T had already given up the shareholder status after receiving return of the money he/she invested in K on August 15, 201 (the evidence record No. 1,842; the record No. 1,842; the record No. 1,842 of the evidence was actually submitted by the Defendant; and the shareholder registry of December 14, 2011, which was not written as the shareholder (Evidence No. 1, No. 2,122 of the evidence record) and demanded the Defendant to cancel the entry into the register as the auditor. Even after that, there was no record that he/she had performed his/her duties as the auditor because he/she did not work as the auditor or not receive any wage (the witness’s legal statement)

Nevertheless, at the time of filing a lawsuit as above, the Defendant did not inform the attorney-at-law, who is an attorney, of the fact that he/she was registered as an auditor for donation, such as T, but he/she did not give up his/her status as a shareholder, received contributions, and did not participate in the company's work at all. Only when he/she files a lawsuit against the company, he/she was unable to perform the audit and inspection duties, and he/she could not actually perform the audit and inspection duties, and filed a lawsuit against T who did not think that he/she would represent K (the Defendant's court statement).

In addition, the warden of the lawsuit brought by the defendant was served to K, which is not the domicile of T (the defendant's court statement) (the execution agreement dated June 6, 2011 stated the address of T in the audit agreement, but entered the location of K at the place where the complaint is to be served (Evidence No. 1: 21, 398)). While the defendant did not deliver it to T, T was unaware of the fact that the defendant filed a lawsuit for the claim for the return of the borrowed amount against K by not delivering it to T (the witness's court statement).

The Defendant, as K’s representative director, delivered a copy of the complaint served as the receiver of the company’s audit to T, or proceeded with the appointment procedure of another auditor who can properly represent the company’s interests, or requested a court to appoint an acting auditor, so that he can decide whether to comply with the Defendant’s loan seeking payment, and whether K is obligated to return it. However, the Defendant did not make all efforts to prevent such company’s damages, and thus, the judgment of non-competing confession became final and conclusive, as it did not withdraw the lawsuit by himself.

⑤ As above, the Defendant brought a lawsuit seeking the return of K’s corporeal movables against it in the process of unfair seizure. However, the Defendant stated in the written statement submitted to an investigative agency that “The Defendant determined that it is necessary to prepare measures to recover the amount invested in a short-term loan from an individual investor, and that the Defendant would return the amount appropriated in the suspect’s short-term loan at the time of April 5, 2013 due to such deferred payment.” (Evidence No. 1 No. 2095 of the record) The Prosecutor stated that “it would be legally problematic to take measures to preserve the amount invested in the individual as other investors.” (Evidence No. 1 of the record No. 2, 320 of the record No. 1, No. 320 of the record). However, in light of the fact that it is difficult to view that the Defendant’s judgment against the Defendant’s participation in the above final judgment that it would be difficult to prevent the Defendant from taking measures to preserve the amount invested in the company as other investors.”

B. Whether property damage was inflicted on the victim K

1) The crime of breach of trust is established when a person who administers another’s business obtains pecuniary advantage or has a third party obtain it by doing so through an act in violation of his/her duty, and includes not only cases where a real loss is inflicted, but also cases where a risk of actual loss of property has been inflicted on the principal. The determination of whether or not property damage exists shall be based on legal judgment in relation to the former state of the principal’s property. Thus, even if the act of breach of trust is null and void by a legal judgment, where a person who administers another’s business causes a real loss to the principal or a risk of actual loss of property, it constitutes a crime of breach of trust as it constitutes an act of breach of trust, even if the act of first breach of trust is null and void from a legal point of view, where a person who administers another’s business continuously engages in the act of breach of trust and causes a real loss to the principal (see, e.g., Supreme Court Decision 2012Do15890, Apr. 11, 2013).

2) In full view of the following circumstances admitted by the evidence admitted as evidence of guilt as evidence, it is reasonable to view that the Defendant committed this part of the crime by the Defendant to have a title to the money invested by the Defendant against K, thereby causing the risk of actual damage to K’s property. Accordingly, the Defendant and the defense counsel’s assertion on this part cannot be accepted.

(1) Where executive titles are final and conclusive, the grounds for objection that occurred prior to the conclusion of pleadings in the final and conclusive judgment may not be asserted as an objection because of res judicata effect of the judgment even if the obligor, even though he/she did not know the occurrence of such final and conclusive judgment because he/she was unable to assert it in the final and conclusive judgment procedure (see, e.g., Article 44(2) of the Civil Execution Act, Supreme Court Decision 2005Da12728, May 27, 2005). As long as the Defendant filed a lawsuit against K for the claim of return of the borrowed amount against K and received a final and conclusive judgment in favor of the pleadings, K bears the obligation to repay the amount equivalent to the final and conclusive judgment, and if the Defendant commences compulsory execution against K based on the above final judgment,

② In fact, the Defendant participated in compulsory execution (Seoul Central District Court AM) against K’s property with the final judgment as executive title, and prepared a distribution schedule around April 25, 2014 (Evidence 382, 2, 166, 2,167).

Reasons for sentencing

1. The scope of punishment;

(a) Defendant A: Imprisonment for one month to 15 years;

B. Defendant B: Imprisonment of one month to two years;

2. Scope of recommended sentences according to the sentencing criteria;

A. Defendant A

○ Basic Crime: Misappropriation

[Determination of Punishment] Type 3 (not less than 50 million won, less than 100 million won) of Acceptance of Misappropriation

[Special Aggravation] None of the elements of aggravation and mitigation

[Scope of Recommendation] Imprisonment from one year to two years (Basic Area)

○ Concurrent Crimes: Occupational Breach of Trust

[Determination of Punishment] Type 2 (at least KRW 100,000, less than KRW 500,000) for Embezzlement and Breach of Trust

[Special Escopics] Reductions: Where the risk of damage has not been substantially realized;

[Scope of Recommendation] Imprisonment from six months to two years (Mitigations)

○ The standards for handling multiple crimes: One year to three years (one year, which is the lowest limit of the basic crime; two years and six months, which is the upper limit of the basic crime; the upper limit shall be included in two years and six months, which is the upper limit of the scope of the punishment of the basic crime; one-half of the upper limit of the scope of the punishment of the concurrent crime).

B. Defendant B

[Determination of Punishment] Type 2 (not less than 50 million won, less than 100 million won) of the misappropriation

[Special Aggravation] None of the elements of aggravation and mitigation

[Scope of Recommendation] Six months to one year (Basic Area) of imprisonment

3. Determination of sentence;

A. Defendant A

The Defendant, who is in the position of the representative director of K, entrusted the additional construction work of K Integian Corporation to the representative of K, and received a large amount of KRW 80 million in return for the receipt of unjust solicitation, such as giving convenience in the process of supervision over construction. Furthermore, the Defendant asserted that he/she was a borrowed money to K and brought a lawsuit against the foregoing company that he/she is the representative director, and did not take measures to prevent loss of the company due to the judgment against him/her, such as delivering the copy of the complaint delivered to K, to the auditor entitled to represent the company in the above lawsuit, and subsequently, did not take measures to prevent loss of the company due to the judgment against him/her, and subsequently, participated in the execution procedure of the company's property and the participation. In light of the circumstance of each of the above crimes, the Defendant’s crime of this case is very heavy, but the Defendant did not have any attitude to deny his/her mistake until the crime was committed in this court. In full view of these circumstances equivalent to the Defendant’s liability.

However, in relation to the crime of taking property in breach of trust, it does not seem that the Defendant actively demanded and received money from B in advance. Moreover, the Defendant did not actually receive the dividend amount in relation to the crime of taking property in breach of trust. Meanwhile, the Defendant did not have any criminal record exceeding the fine, and the Defendant did not have any criminal record of taking property in breach of trust or of

In full view of all kinds of sentencing conditions shown in the arguments of this case, such as the defendant's age, character and conduct, environment, motive, means and consequence of the crime, etc., which are disadvantageous or favorable to the defendant, the punishment shall be determined as ordered within the scope of recommended sentencing criteria.

B. Defendant B

The Defendant, who is in the actual status of the representative of Inteina Construction Business, ordered K’s representative director to perform additional construction works, made illegal solicitation, such as giving convenience in the process of supervision over construction works, and delivered a large amount of KRW 80 million in return. In light of the criminal history and the amount of evidence, the Defendant’s crime of this case is heavy. Nevertheless, the Defendant did not appear to be against his mistake by denying the crime up to this court. In full view of these circumstances, the Defendant should be punished strictly.

However, there is no evidence to support that the defendant actively proposed the provision of money and valuables to A in advance. In addition, the defendant has no criminal record other than the fine sentenced to the violation of the Framework Act on the Construction Industry.

In full view of all kinds of sentencing conditions shown in the arguments of this case, such as the defendant's age, character and conduct, environment, motive, means and consequence of the crime, etc., such as the defendant's age, character and conduct, environment, motive and consequence of the crime, the circumstances after the crime, etc., the sentence shall be determined as ordered within the scope of recommended sentencing criteria and the execution of the sentence shall

The non-guilty part (Defendant A - Part of the facts charged in the case of Gohap60)

1. Summary of the facts charged

The Defendant is K’s representative director, who is a postnatal care center operating company, and this is the person who exercised the actual authority of K’s representative director on behalf of the Defendant from January 2012 to February 2013.

Around June 6, 2011, the Defendant and P, Q, R, S, T, U, and V entered into an implementation agreement as a partner of the partnership company. The content of the agreement was that the said parties borrowed the expenses incurred in the establishment of K’s start-up and the installation of all facilities from the company and that the said parties set their share ratio of shares issued by the company in accordance with the ratio of each loan to the total amount by summing up the total amount following the completion of all the expenses incurred thereafter.

After that, on December 24, 2011, K was based on the above implementing arrangements, but K was assigned 50,000 shares issued on the basis of those who actually contributed funds and their contributions, and prepared a register of shareholders on this basis.

As such, since a person who contributed funds to the above company acquired the status of a shareholder by being allocated shares in proportion to the contribution amount, the above company is not obligated to return the investment amount to the contributor or the transferee of the shares.

0 In order to raise funds necessary for the completion of the remaining construction of a postnatal care center, around January 2012, P (around 200 million won was contributed to the above company, 5,000 shares of the above company were allocated) and Q (around 7,500 shares of the above company were assigned to the above company). However, P and Q demanded authentication of money loan contract for existing investment and its interest under the premise of additional investment, upon consultation with the defendant, P and Q request for authentication of money loan contract for the above company, and P and P as the above company as the debtor, were issued 30 billion won as the above company's signature and seal to the above notarial deed. Accordingly, P & P around February 1, 2012, 2000, 1000 won as the creditor of the above notarial deed and 200 million won as the creditor of the above notarial deed, 200 million won as the creditor of the above notarial deed and 100 million won as the creditor of the above company.

As a result, the Defendant, in collusion with P and P, did not commit any act causing property damage to the above company as the representative director of the victim K, thereby in violation of the occupational duty that should not cause property damage to the above company, thereby having P obtain property profit equivalent to the equivalent amount of KRW 214 million and the equivalent amount of interest of KRW 24% per annum for that, causing property damage to the victim, in collusion with P, P, and Q, causing property damage equivalent to the same amount to the victim, and in violation of the occupational duty that should not cause property damage to the above company as the representative director of the victim K, and thereby having Q obtain property profit equivalent to the equivalent amount of KRW 390 million and the equivalent amount of interest of KRW 24% per annum for it, and caused property damage equivalent to the same amount to the victim.

2. Determination

A. According to the evidence duly adopted and examined by the court, the facts that the defendant prepared each of the instant notarial deeds to P and Q. with theO, R as other shareholders of K, and R as a lawsuit of the claim for the return of the borrowed amount filed by K against K, and R as a lawsuit of the claim for the return of the borrowed amount filed by K to K, the amount invested by K to K is not the borrowed amount, but the borrowed amount. It can be acknowledged that the judgment dismissing the plaintiffs' claim becomes final and conclusive.

B. However, in light of the following circumstances acknowledged by the record, it is difficult to see that there is no reasonable doubt as to the Defendant’s intentional breach of trust to inflict damages on the company by being aware of the fact that, at the time of preparing each of the instant notarial deeds to P and Q, the Defendant was aware that the amount paid to K was not borrowed and that there was no obligation to return it because it was an investment loan not borrowed, or that K was not obligated to return it. However, it is difficult to recognize that there was an intentional breach of trust to inflict damages on the company by being aware of the fact that the interest amount of 24% per annum would be added without any specific basis on each of the instant notarial deeds. In full view of the evidence submitted by the external prosecutor, it is insufficient to

① The performance agreement dated June 6, 201 stated that the shareholders of K, including the Defendant, shall borrow expenses to be used for the establishment of a new business and the interior of human rights, L, AL, S, T, P, and V, from the location of each shareholder, to borrow from K for the purpose of the construction of all other facilities, including U, R, Q's husband, S, P, P, and V, and the amount is stated as the amount to be received in the column of the borrowed amount in the name of each shareholder, and the loan cost of each borrower shall be determined by the ratio of the total amount to the shareholders of K in comparison with the total amount after the total amount of all the expenses incurred in borrowing and then completed."

[No. 2016 Gohap60 (hereinafter referred to as "Evidence Records") No. 1st 21 of the evidence records in the case of No. 2016

In addition, the income statement included in the tax settlement statement of K in the year 201, the short-term loan account of the president of the account, including P212 million won, Q250 million won, and the shareholders of K borrowed approximately KRW 1.9 billion in total to K as short-term loans (Evidence No. 1, 434, 439 pages).

② In this Court, P, L and the Defendant stated in this Court that “The content of the above execution agreement is to borrow the expenses to be incurred in the establishment of a company and the installation of all facilities of K, and it is to set the ratio of shares issued by K in accordance with the ratio of each loan to the total amount plus the total amount after the completion of all the expenses thereafter.” “The shareholders knew that the amount exceeding the par value of the shares was known to K from among the total amount paid to K, and that it is not a loan only after the judgment was rendered that it is not recognized as a loan at the later time (including the time of preparation of the execution agreement).” In this Court, I knew that at the same time, I would like to know that the loan is not a loan only after the decision was made to the effect that it is not a loan. This would have been made by the first investor at the expense of the investor (the first investor).

In addition, R, the shareholders of K on November 6, 2012, L, and L, the shareholders of K, filed a lawsuit against K seeking the return of the borrowed amount, claiming that they are the legal nature of the amount invested in K as the borrowed amount (R's fraud, and as the other shareholders of K, the defendant was the representative director before he/she returned to the representative director, from March 5, 2013) (Evidence record 1: 22 to 28, 1,81 to 1,886), AA, and V, and the provisional attachment of the borrowed amount was executed as a preservative measure for the repayment of the borrowed amount (the defendant's statement at the court).

As such, at the time when the Defendant drafted each of the instant notarial deeds to P and Q, K’s shareholders, including the Defendant, were aware of the invested money as the borrowed money, or were unaware of whether the invested money is an investment or a borrowed money.

③ Around the time when the Defendant prepared each of the instant notarial deeds to P and Q (as of February 1, 2012, 201), the Defendant did not assert that R had the legal nature of the said notarial deeds and sought the return of the said amount of loan by asserting that R was the legal nature of the said notarial deeds and did not claim that the said money was invested (as seen earlier, submission of legal brief was around May 20, 2013 when, in a lawsuit for the return of loan borrowed by R as the representative director of K, the Defendant did not have the obligation to return the said money as it was not the loan but the investment money, and even at the time when the Defendant clearly became aware of the fact that the amount of investment was made by the shareholders, it appears that R was given legal advice from the law firm around March 4, 2013).

④ As to the preparation process of each of the notarial deeds in this case, P and L made a statement to the effect that “P and AL will prepare each of the notarial deeds in this case,” and that “the content of interest, etc. will have been written at will.” In particular, P stated in this court that “P, at the time, only the Defendant had a seal imprint in the Seocho Station at the time, and did not express any word as to each of the notarial deeds in this case at the time when the seal imprint was drawn up.” At the time when each of the notarial deeds in this case was drawn up, the Defendant stated to the effect that “P did not give any instruction to the office of the law clerk, which prepared each of the notarial deeds in this case, and prepared all of the notarial deeds.”

0 Unlike the above statement in P and AL in this court, the Defendant was the representative director only in the name of the Defendant, and the Defendant was the actual representative director of K. P and Q demanded that each of the of the of the of the instant notarial deeds may be issued to K only by preparing a notarial deed and requesting that the Defendant and the Defendant make additional investments. At the time of the preparation of each of the instant notarial deeds, he stated to the effect that he did not appear in the law leisure office, but arbitrarily stated the content of interest, etc.

On the other hand, the text of each of the notarial deeds of this case clearly revealed that P was prepared on behalf of the debtor (Evidence No. 1, No. 60, No. 72).

In light of these circumstances, it is difficult to readily conclude that the Defendant was well aware of the fact that the amount of interest at 24% per annum is added to each of the instant notarial deeds without any specific grounds.

4. Conclusion

Therefore, among the facts charged in the instant case, each of the occupational breach of trust committed by Defendant A on February 1, 2012 falls under a case where there is no proof of crime, and thus, a judgment of innocence is rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act, but the Defendant does not consent to a judgment of innocence, and thus, the purport of the public notice of acquittal is not to be pronounced pursuant to the proviso of

Judges, Assistants

Judge 00 Ba1

2) 뿐만 아니라 K의 다른 주주인 R, V, W, Y, S은 2012. 2. 2.경 서울 강서경찰서에 피고인들을 건설산업기본법위반 및 특정경제범죄가중처벌등에관한법률위반(사기) 혐의로 고소하면서 'K 공사를 하기 전부터 그들(피고인들)은 이미 친분이 있었던 터라 K의 공사입찰을 함에 있어 A이 M을 입찰시키도록 합니다', 'A은 애초부터 M과 아는 관계라서 자신이 대표이사로 있음을 기화로 업체 선정과정에서 전혀 믿음이 가지 않는 M에 프레젠테이션을 한 번 더 할 기회를 주고 다른 업체보다 가격을 조금더 낮추고 디자인을 AI로부터 사는 것을 조건으로 결국 M을 선정시킵니다. (K의) 주주들은 A과 과거 주주였던 이 이 사건으로 큰 이익을 보았다고 판단하고 있습니다. 즉 다른 것은 차치하더라도 그들의 투자자금의 출처가 매우 의심스러운바, A과이 출자한 시점에 그 재원마련은 대출을 받았는지 차용하였는지 등 그 출처를 명확히 밝혀주시길 바랍니다. 고소인들 입장에서는 A파 M이 준공이 불가능한 공사를 밀어붙인 점을 볼 떄 애초부터 그들의 계획대로라면 K의 오픈은 불가능한 것이었기에 투자받은 돈은 A과 M이 나눠 가졌을 것으로 보입니다.'라고 기재하여 피고인들의 배임수증재 혐의에 관한 의혹을 제기하던 상황이었다(2016고합60호 사건의 증거기록 1권 805 내지 817면).

3) Of the instant lawsuit, the part raised by the Plaintiff as the Plaintiff was concluded on August 12, 2013 as the withdrawal order (Evidence Records 1,882 pages),