Defendant 1 shall be punished by imprisonment with prison labor for up to five years and six months, and by imprisonment for up to five years.

Of the facts charged against Defendant 1, the prosecution against Nonindicted 5, 6, and 7 on the violation of the Labor Standards Act is dismissed, respectively.

The prosecutor's appeal against Defendant 1 and Defendant 2 among the judgment of the court of first instance is dismissed, respectively.

The first instance court's judgment dismissed the prosecution against Defendant 1's violation of the respective Labor Standards Act against Defendant 8, 9, and 10 among the facts charged against Defendant 1, and sentenced Defendant 1 to the verdict of conviction as to the part of the remaining facts charged against Defendant 1, with the exception of the innocence and part of the part concerning Defendant 1. Of the first instance judgment, the prosecutor filed each appeal against Defendant 1 and the part concerning Defendant 1's acquittal, but the prosecutor did not appeal against Defendant 1 with respect to the part concerning the dismissal of prosecution against Defendant 1. As such, the part concerning the dismissal of prosecution against Defendant 1 in the first instance judgment as to Defendant 1 was not appealed by both parties, and thus,

2. Summary of grounds for appeal;

A. As to the judgment of the first instance court

1) Defendant 1

A) misunderstanding of legal principles as to the violation of the Labor Standards Act

In relation to the violation of the Labor Standards Act as stated in the judgment of the court below, although Nonindicted 5, 6, and 11 among the workers had withdrawn their wish to punish Defendant 1 before the court of first instance rendered the judgment, the court below erred by misapprehending the legal principles, thereby finding the Defendant guilty.

B) The assertion of unreasonable sentencing

The punishment sentenced by the court below to Defendant 1 (five years of imprisonment) is too unreasonable.

2) Defendant 3

A) misunderstanding of legal principles

The act of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of trust) stated in the judgment of the court below in Article 1-A of the facts constituting the crime in the judgment of the court below causes property risk to the non-indicted 4 corporation by issuing a promissory note in the name of the non-indicted 4 corporation (defendant 6 corporation in the judgment of the court of first instance) as a joint guarantor or by issuing the non-indicted 4 corporation with a promissory note in the name of the non-indicted 4 corporation to bear a debt equivalent to the same amount. Thus, the act of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) stated in paragraph (2) of the facts constituting the crime in the judgment of the

Therefore, although the act of violation (Embezzlement) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) stated in paragraph (2) of the crime of the first instance as stated in the judgment of the court below does not constitute a separate crime as an act ex post facto ex post facto facto act of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) stated in paragraph (1) of the crime of the first instance as stated in

B) The assertion of unreasonable sentencing

The punishment sentenced by the court below to Defendant 3 (five years of imprisonment) is too unreasonable.

(iii)the prosecutor;

A) misunderstanding of facts as to Defendant 1’s fraud among the facts charged against Defendant 1

Although Defendant 1 cannot be deemed to have engaged in deception by directly contact with the victim Nonindicted 12, it may be deemed that Defendant 1 indirectly deceiving the above victim by mediating Nonindicted 13. Nevertheless, the lower court erred by misapprehending the legal doctrine on this part of the facts charged concerning Defendant 1 on the ground that it is insufficient to recognize that Defendant 1 deceiving the above victim.

B) Defendant 2's charge (the charge of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) is erroneous as to the facts charged

According to Defendant 1’s investigation agency and the court below’s statement, Defendant 2, as a working-level person with respect to the operation of Nonindicted Co. 4 and the overall execution of funds, is acknowledged to have conspired with Defendant 1 and 3 with regard to the crime of accounting of Nonindicted Co. 4, as if Defendant 1 and Defendant 3 paid the purchase price in full, as if Defendant 1 and Defendant 3 paid the purchase price in the process of purchasing the stocks of Nonindicted Co. 14, Nonindicted Co. 15, and Nonindicted Co. 16. Nevertheless, Defendant 1’s statement alone is insufficient to recognize that Defendant 2 participated in the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) by Defendant 1 and 3. Thus, the court below acquitted Defendant

B. As to the second judgment of the court below

1) Defendant 3

A) The assertion of misapprehension of legal principles as to occupational embezzlement

Although the above part of Defendant 3’s act should be deemed as an occupational embezzlement, not an occupational embezzlement, but an occupational breach of trust, the lower court erred by misapprehending the legal doctrine.

B) The assertion of unreasonable sentencing

The punishment sentenced by the court below to Defendant 3 (two years of imprisonment) is too unreasonable.

2) Defendant 1

A) misunderstanding of facts and misapprehension of legal principles

(1) As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

Defendant 1, while Nonindicted Co. 17 had temporarily experienced financial difficulties at the time of leasing the third floor of ○○ building to Nonindicted Co. 1, Nonindicted Co. 1, Nonindicted Co. 1, but there was no problem in returning the lease deposit to Nonindicted Co. 1. In addition, Defendant 1 concluded a lease agreement by deeming that there was no problem in recovering the lease deposit from Nonindicted Co. 1’s side, and Defendant 1 did not have a position to participate in the above crime. However, Defendant 1 was the majority shareholder of Nonindicted Co. 17 and was not in a position to participate in the above crime, the lower judgment convicting Defendant 1 of this part of

(2) As to occupational embezzlement

(A) misunderstanding of legal principles

In collusion with Defendant 1, this part of the act committed by Defendant 3 should be deemed as an occupational embezzlement, not an occupational embezzlement, but an occupational breach of trust, but the judgment of the court below which punished Defendant 3 as an occupational embezzlement is erroneous in

(B) misunderstanding of facts

Defendant 1 borrowed the above money for the purpose of investment in the small film business of Nonindicted Co. 18, a subsidiary of Nonindicted Co. 1, and did not borrow it for personal purposes. Thus, the above Defendant did not have the intent to obtain unlawful acquisition. Even though Defendant 3 borrowed the money of Nonindicted Co. 1, it did not have the intention to obtain unlawful acquisition, Defendant 1 did not have the intention to obtain unlawful acquisition.

Nevertheless, the judgment of the court below which found Defendant 1 guilty of this part of the facts charged is erroneous in misconception of facts.

(3) As to fraud

Nonindicted Co. 4 issued the instant convertible bonds in accordance with ordinary business process and procedure, and the victim Nonindicted Co. 2 did not participate in this case’s convertible bonds. Moreover, the victim was aware of the fact that he could receive notice of refusal of opinion as a result of the accounting audit of Nonindicted Co. 4, and the victim was well aware of the financial difficulties of Nonindicted Co. 4, and thus, it cannot be deemed that Defendant 1 had committed the said deception against the victim. However, the lower court erred by misapprehending the legal principles regarding Defendant 1’s deception.

Even if it is recognized that Defendant 1 deceivings the above victim, the amount actually received by Nonindicted Co. 4 from the above victim is KRW 370 million ( KRW 495 million - KRW 125 million). Thus, the amount acquired by the above victim should be limited to the above amount.

B) The assertion of unreasonable sentencing

The punishment sentenced by the court below to Defendant 1 (three years of imprisonment) is too unreasonable.

3) Defendant 1’s assertion of misconception of facts and misapprehension of legal principles concerning the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

Defendant 1’s deception of the victim Nonindicted 2 and its deceiving from the victim Nonindicted 2 to the corporate account of Nonindicted Co. 4 on March 20, 2009, as long as Defendant 1 received KRW 990 million from the victim Nonindicted Co. 4 on March 20, 2009, the crime of fraud is established against the whole amount. The above Defendant returned KRW 495 million to the victim pursuant to the agreement, even if the above Defendant returned the above victim’s KRW 495

Nevertheless, the court below erred by misapprehending the facts or by misapprehending the legal principles as to the amount of profit as prescribed by the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, etc., in determining that Defendant 1 acquired the amount by fraud as KRW 495 million.

3. Ex officio determination

(a) Alteration of indictment;

In the trial of the prosecution, the prosecutor changed the name of the crime against Defendant 1 and 3 in relation to the occupational embezzlement of Nonindicted Co. 1 and Nonindicted Co. 3 as “occupational Embezzlement” from “occupational Embezzlement”; the applicable provisions of the law to “Articles 356, 355(1), and 30 of the Criminal Act” to “Articles 356, 355(2), and 30 of the Criminal Act”; and the written indictment to change the facts charged as stated in the revised indictment.

By permitting this Court, the judgment of the second instance is not maintained as it is because the subject of the adjudication is changed.

B. Consolidation of cases

The first instance court sentenced Defendant 1 to the Seoul Central District Court Decision 2009Da1553, 2010Kahap34, 2010 Gohap62 (Joint), and 2010 Gohap62 (Joint), and the second instance court decided to jointly examine the two appeals after completing a separate hearing on the guilty part, respectively. The second instance court sentenced Defendant 1 to the five-year imprisonment with prison labor and five-year imprisonment with prison labor, and the second instance court sentenced Defendant 3 to the two-year imprisonment with prison labor and three-year imprisonment with prison labor, respectively. Defendant 1 and 3 appealed and the second instance court decided to jointly examine the two appeals.

Of the judgment of the court of first instance, the guilty part against Defendant 1 and each of the offenses in the judgment of the court of second instance against Defendant 3 and each of the offenses in the judgment of the court of second instance are concurrent offenses under the former part of Article 37 of the Criminal Act, and shall be sentenced to a single sentence within the scope of the term of punishment for concurrent offenses under Article 38(1) of the Criminal Act. In this regard, the conviction part against Defendant 1, the part against Defendant 3, and the judgment of the court of first instance cannot be maintained as they are.

However, despite the above reasons for ex officio destruction, Defendant 1 and 3 as to the guilty portion of the judgment of the court of first instance, Defendant 1 as to the acquittal portion of the judgment of the court of first instance, Defendant 2 as to the prosecutor's mistake of facts, Defendant 1 as to the second judgment of the court of second instance, mistake of facts and misapprehension of legal principles as to the acquittal portion of the prosecutor's reasons are still subject to this court'

4. Determination on the grounds for appeal

A. As to the judgment of the first instance court

1) As to Defendant 1’s assertion of misapprehension of the legal principle on Defendant 1’s violation of the Labor Standards Act

A) Summary of the facts charged

Defendant 1 was an employer who employs 40 full-time workers at Nonindicted Co. 4 located on the third floor of the Dongdaemun-gu Seoul Metropolitan Government (number 1 omitted) ○○○○ Building and operates software development and sales business, and on October 25, 2008, Defendant 1 did not pay wages of KRW 2,193,538 to Nonindicted 5 retired from the above company within 14 days from the date of retirement from that time until December 31, 2008, as indicated in the sequence 4,12, and 16 in the annexed Table 1 of the judgment of the court below until December 31, 2008, including that he did not pay KRW 31,57,020 to employees, including wages, retirement allowances, annual allowances, etc., within 14 days from the date of retirement of each employee without an agreement on extension of the due date.

B) Determination

According to the records, Nonindicted 5, 6, and 11 can be acknowledged on April 21, 2010, which was prior to the pronouncement of the first instance judgment, as the prosecution of this case, and on April 21, 2010, which was prior to the pronouncement of the first instance judgment.

The crime of violating the Labor Standards Act due to unpaid money or goods cannot be prosecuted against the victim’s express intent under Article 109(2) of the Labor Standards Act. Thus, the court below erred by misapprehending the legal principles on the crime of non-performance of opinion, although the public prosecution should be dismissed under Article 327 subparag. 6 of the Criminal Procedure Act.

Therefore, Defendant 1’s above assertion is with merit.

2) As to Defendant 3’s assertion of misapprehension of the legal principle as to Defendant 3’s occupational embezzlement

According to the evidence duly adopted and examined by the court below, (i) if the defendant 3 conspired with the non-indicted 1 corporation to pay the personal debt of the non-indicted 3 to the non-indicted 4 corporation, and (ii) if the non-indicted 4 corporation used the non-indicted 4 corporation's personal debt amounting to KRW 19 billion to jointly issue promissory notes amounting to KRW 42.75 billion for the non-indicted 3, and (iii) the non-indicted 4 corporation's joint and several debt amount was not likely to incur losses to the non-indicted 4 corporation by causing the non-indicted 4 corporation's joint and several debt amount to be paid to the non-indicted 4 corporation, and (iv) the non-indicted 4 corporation's personal debt amount to be paid to the non-indicted 1 corporation was not the non-indicted 4 corporation's joint and several debt amount to be paid to the non-indicted 4 corporation, and thus, it is not entirely likely that the damage was actually incurred to the non-indicted 4 corporation's joint and several debt amount.

Therefore, Defendant 3’s above assertion is rejected.

3) As to the prosecutor's assertion of mistake

A) As to the fraud among the facts charged against Defendant 1

(1) Summary of the facts charged

Defendant 1 is the chairperson of the construction event, who is a non-indicted 19 corporation located in Seongdong-gu Seoul Metropolitan Government (number 2 omitted), and is practically operating the said company.

At the end of November 2006, Defendant 1 introduced Defendant 1 to Nonindicted 13, “Along with Nonindicted 19 Co., Ltd., which has been awarded a successful bid, a lot of profits have occurred in order to obtain a successful bid, and Defendant 1 demanded to raise funds by stating, “The bid bond is to prepare and change money which is less than KRW 150 million.” Accordingly, Nonindicted 13 requested Nonindicted 12 to the victim Nonindicted 12 in early December 12 of the same year, who was first of the same year, to the effect that “I may receive considerable profits if I invest money in the company where there is an insolvent apartment among the construction works in the old region,” and that “I am the chairperson of the company to invest in the old apartment that was the end of this month, and if I make an investment in the construction cost as soon as I said, I believe all the above investments to the victim.”

However, at the time, Nonindicted Co. 19 did not properly proceed with the construction project of main apartment complex in Gangdong-gu Seoul Metropolitan Government due to unsold housing units and lack of funds, and even if the company did not receive money from the above victim, it did not have any circumstances to properly implement the project and reduce the profit by receiving money from the above victim.

Defendant 1 received KRW 70 million from the said victim’s bank account on December 14, 196.

Accordingly, Defendant 1 received property by deceiving the above victim.

(2) The judgment of the court below

The court below acknowledged the following circumstances based on evidence duly adopted and investigated: (i) upon the request of Defendant 1 to find out a person who is likely to make an investment because the successful bid price falls short of the bid price from Defendant 1 in the court of the court below; (ii) upon Nonindicted 12’s request, Nonindicted 12 made an investment in the amount of KRW 150 million; and (iii) Nonindicted 12 made a statement to the effect that Defendant 1 and Nonindicted 12 did not talk about the investment of this case at the same time; and (iv) Nonindicted 12 made a statement to the effect that Defendant 1 and Nonindicted 12 did not know about the investment of this case at the court of the court of the court of the court of the court below, it was difficult to find Defendant 1 and Nonindicted 13 not guilty on the ground that Nonindicted 13 introduced Defendant 1 to himself, and Defendant 13 did not have made a statement to the court of the court of the court below on the ground that it was not sufficient to find Defendant 13’s statement to Defendant 13.

(3) Judgment of the court below

원심에서 적법하게 채택하여 조사한 증거들에 의하면, ① 피고인 1은 공소외 19 주식회사가 용인시 고림동에 있는, 부도로 인하여 공사가 중단된, ▼▼▼ 아파트를 경락받으려고 하는데 입찰보증금 6억 원 중 1억 5,000만 원이 부족하다며 공소외 13에게 이 금액 상당의 투자를 권유하였으나 공소외 13은 자신에게 돈이 없다며 위 권유에 응하지 아니하고, 평소 잘 알고 있는 피해자 공소외 12에게 피고인 1로부터 들은 내용과 ▼▼▼ 아파트를 경락받는데 돈을 투자하면 상당한 이익을 받을 수 있다는 내용의 이야기를 하여 위 피해자는 공소외 13을 믿고 아파트 한 채 정도를 받을 것으로 기대하면서 공소외 13 명의 계좌로 2006. 12. 14. 7,000만 원을 송금한 사실, ② 피고인 1은 2006. 12. 20. 공소외 20 주식회사(대표이사 공소외 21)와 사이에 공소외 19 주식회사가 ▼▼▼ 아파트 사업을 인수하는데 필요한 업무를 공소외 20 주식회사에게 용역을 주는 계약을 체결하면서 용역대금의 일부로 3억 원을 지급하였고, 공소외 19 주식회사가 2007. 1. 18. 경락보증금 626,434,400원을 납부하고 ▼▼▼ 아파트에 대한 최고가매각허가결정을 받았는바, 공소외 19 주식회사는 위 피해자가 송금한 위 7,000만 원을 ▼▼▼ 아파트를 경락받기 위한 과정에서 비용으로 사용한 사실, ③ 그러나 2007. 6. 5. 경매법원이 직권으로 ▼▼▼ 아파트에 대한 매각불허가결정을 내림에 따라 공소외 19 주식회사는 2007. 6. 22. 납부한 위 경락보증금을 반환받은 후 이를 사채 변제에 사용한 사실, ④ 위 피해자가 공소외 19 주식회사가 위 경락보증금을 반환받은 것을 알고 공소외 19 주식회사에게 자신이 투자한 돈을 돌려달라고 요구하자 공소외 19 주식회사는 2007. 8. 17. 위 7,000만 원을 2007. 10. 30. 변제하기로 하는 차용증서를 작성해 준 사실을 인정할 수 있다.

위 인정사실에 의하면, 피고인 1이 공소외 13을 통하여 ▼▼▼ 아파트를 경락받는데 필요한 자금으로 위 피해자로부터 7,000만 원을 투자받아 이를 ▼▼▼ 아파트를 경락받는데 사용하였으나 공소외 19 주식회사의 귀책사유 없이 법원에서 매각불허가결정이 내려짐에 따라 위 ▼▼▼ 아파트 사업이 중단된 사정이 인정될 뿐, 피고인 1이 위 피해자로부터 위 7,000만 원을 지급받을 당시 ▼▼▼ 아파트 경매가 제대로 진행되지 아니하리라는 점을 알았다는 사정을 인정할 만한 증거가 없다. 또한 앞서 본 바와 같은 위 피해자가 금원을 투자한 경위에 비추어 공소외 19 주식회사가 위 피해자로부터 7,000만 원을 투자받을 당시 공소외 19 주식회사의 자금사정이 어려웠다는 사정만으로 피고인 1에게 편취 범의가 있었다고 보기 어렵고, 달리 피고인 1에게 편취 범의가 있었음을 인정할 만한 증거도 없다.

Therefore, the judgment of the court below which acquitted the defendant on this part of the facts charged is somewhat insufficient but justified in its reasoning, and thus the prosecutor's above assertion is not accepted.

B) As to Defendant 2’s violation of the Act on the Punishment, etc. of Specific Economic Crimes (Embezzlement)

(1) Summary of the facts charged

Defendant 2 had Nonindicted Co. 4 purchase price of Nonindicted Co. 4, Nonindicted Co. 4, Nonindicted Co. 2, Nonindicted Co. 1, 300 million won; Defendant 2 conspired with Nonindicted Co. 1, 300 million won to use the purchase price for Defendant 1’s personal debt repayment; Nonindicted Co. 2, 400 million won; Nonindicted Co. 1, 400 million won; Nonindicted Co. 4; Nonindicted Co. 2, 400 million won to use Nonindicted Co. 50 million won for Nonindicted Co. 1, 400; Nonindicted Co. 2, 400 million won to use Nonindicted Co. 1, 500; Nonindicted Co. 2, 400,000 won to sell shares to Nonindicted Co. 4; Nonindicted Co. 50 billion won to Nonindicted Co. 2; and 300,000 won to sell shares to Nonindicted Co. 1, 400 million won to Nonindicted Co. 2; and Defendant 2,300 million won.

(2) The judgment of the court below

(A) Defendant 2, from the investigative agency to the court of the lower court, proceed with the preparation procedures by requesting an accounting corporation to assess Nonindicted Co. 14, 15, and 16 Co. 1 (hereinafter “Nonindicted Co. 14”) and prepared documents, etc. necessary for acquiring the company. Although the fact that Nonindicted Co. 4, as a fund manager of Nonindicted Co. 4, was recognized that the acquisition price was actually executed, Defendant 2 denied the fact of conspiracy by asserting that the above acquisition price was actually executed, and that there was no participation in the embezzlement of the acquisition price.

(B) The court below, based on the evidence duly adopted and examined, stated that ① Nonindicted 22 was listed in the process of acquiring Nonindicted 14 and Nonindicted 15 Co. 2, and that there was no consultation or consultation with Defendant 2 (the investigative record 1767 pages), and Nonindicted 23 merely stated that there was no consultation with Defendant 1 or Nonindicted 27 directors and the sales of Nonindicted 16 Co. 4 (the investigative record 1785 pages), and ② Nonindicted 22 received a proposal to sell Nonindicted Co. 14 and Nonindicted 15 Co. 4 from around December 207 to obtain the sales proceeds from Nonindicted Co. 15, and prepared a false receipt to the effect that Defendant 1 did not receive the sales proceeds from Nonindicted Co. 4’s request, and that there was no other evidence for Defendant 1’s new embezzlement and acquisition of Nonindicted Co. 4’s stocks (the investigative record 808).

(3) Judgment of the court below

The circumstances acknowledged by the court below are as follows. ① Defendant 1 stated that Defendant 2 conspireds to embezzled the acquisition price of Defendant 1, 3, and Nonindicted Co. 14, etc.; but Defendant 2 did not make a proper statement as to the embezzlement of the acquisition price; ② Defendant 3 who conspireds with Defendant 1 to embezzled the acquisition price of Nonindicted Co. 14, etc. with Defendant 2; ② Defendant 3 did not make a statement to the effect that Defendant 2 participated in embezzlement of the acquisition price of the above acquisition price; on the basis of Defendant 1’s statement related thereto, it is insufficient to recognize that Defendant 2 conspired to embezzled the acquisition price of Defendant 1, 3, and Nonindicted Co. 14, etc.; and there is no other evidence to support this, the judgment of the court below on this part of the facts charged is just, and there is no error in the misapprehension of facts alleged by the prosecutor.

Therefore, the prosecutor's above assertion is not accepted.

B. As to the second judgment of the court below

1) As to Defendant 1’s assertion of mistake of facts

A) As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

In light of the following circumstances acknowledged by the evidence of ○○○○○ building, Defendant 3 had been unable to use the above ○○○○○ building upon the expiration of the term of lease to the above ○○○○○○○○ building’s office, and the size of the leased property was increased and the intention of Nonindicted Company 1 was not paid monthly. However, even if there were some aspects for Nonindicted Company 1, it was difficult for Nonindicted Company 1 to use the leased property at the time of the above ○○○○○ building’s auction procedure to secure the above ○○○○○○○ building’s interest on the leased property, and it was difficult for Nonindicted Company 1 to use the leased property at the time of the above ○○○○○ building’s initial auction procedure. On the other hand, it was difficult for Nonindicted Company 1 to use the leased property at the time of the above ○○○ building’s initial auction procedure to the extent that it would have been difficult for Nonindicted Company 1 to use the leased property at the end of 7 billion won.

Examining the relevant evidence in light of the records, the judgment of the court below on this issue is just, and there is no error of mistake of facts alleged by Defendant 1.

B) As to fraud

(1) 원심은, 적법하게 채택하여 조사한 증거에 의하여 인정되는 다음과 같은 사정, 즉 ① 피고인 1은 2007. 12. 14. 사채로 차용한 190억 원으로 공소외 4 주식회사의 주식 및 경영권을 인수하고 대표이사로 취임하였는데, 2007. 12. 17. 자신의 위 190억 원 상당의 개인적인 채무에 대하여 공소외 4 주식회사를 연대보증인으로 추가하고, 같은 달 26. 사채업자에게 공소외 4 주식회사 발행의 액면금 427억 원의 약속어음을 교부하였으며, 2008. 3. 26. 공소외 4 주식회사 명의로 사채를 사용하여 개인적인 채무변제용으로 사용하는 등 배임, 횡령행위로 인하여 공소외 4 주식회사의 자금운용이 불투명하고 각종 우발부채가 발생하였던 점, ② 또한 공소외 4 주식회사는 2008년경에 급격한 매출감소로 인하여 영업손실 및 당기순손실이 발생하였고, 2008. 9.경부터는 근로자의 급여 및 퇴직금 등도 제대로 지급하지 못하는 등 자금사정이 악화되었으며, 2009. 1.경에는 상당수 근로자들이 퇴사하기도 하여 정상적으로 운영되지 못하였던 점, ③ ◇◇회계법인은 2008. 11.경부터 공소외 4 주식회사의 2008년도 회계감사를 위한 중간감사를 하면서 공소외 4 주식회사에게 정기회계감사에 필요한 자료준비를 요청한 바 있고, 그 후에도 회계감사기간을 협의하면서도 자료를 요청하였으나, 2009. 2. 27.경까지 계정과목별 잔액에 대한 증빙자료 등이 제출되지 않거나 불비되어 있어서 회계감사를 종료하지 못하였던 점, ④ 그 후 공소외 4 주식회사는 ◇◇회계법인의 수차례에 걸친 자료 보완 요청에도 불구하고 2009. 3. 중순경 회계감사를 종결할 때까지 감사의견의 형성에 필요한 자료를 보완하지 않았을 뿐 아니라 주식회사의 외부감사에 관한 법률에 의한 내부회계관리제도에 관한 운영실태보고서 등도 제출하지 아니하였으며, 위와 같은 회계감사에 필요한 자료를 제공하지 않을 경우 회계감사에 관한 의견의 형성이 어려울 수 있었던 점, ⑤ 그 결과 공소외 4 주식회사는 2009. 3. 23. ◇◇회계법인으로부터 회사의 회계기록 불비 및 내부 통제제도의 부실로 인한 회사의 재무제표에 대한 회계감사절차에서 요구하는 감사절차의 수행 불능, 급격한 매출 감소 등으로 인한 영업손실, 당기순손실 발생 및 유동부채의 유동자산 초과, 압류와 진행 중인 소송사건 등 우발부채 가능성으로 인한 존속능력 의문 등을 이유로 상장폐지의 사유인 의견거절 통지를 받았고, 이로 인하여 2009. 3. 24. 증권거래소에서 거래정지되고, 같은 해 4. 29. 상장폐지된 점, ⑥ 피고인 1은 공소외 4 주식회사의 대표이사로서, 수시로 회사의 운영상황을 보고받고 중요사안에 대한 결재를 하는 등 위 회사를 실질적으로 운영하여 왔으므로, 전환사채 발행 당시의 공소외 4 주식회사의 재정상황이나 회계감사 진행상황 등을 잘 알고 있었을 뿐 아니라 보고를 받았고, 회계감사과정에서의 요구자료 미제출, 자료 불비 등으로 인하여 감사결과 의견거절의 통지를 받을 수도 있다는 사정을 충분히 예상할 수 있었음에도 불구하고, 피해자 공소외 2에게 그러한 상황을 설명하거나 알리지 않은 채 위 회사가 정상적으로 운영되고 있다는 취지로 말하면서 전환사채를 인수하도록 권유한 점, ⑦ 한편, 공소외 4 주식회사는 2009. 3. 16.자로 ‘매출액 또는 손익구조 30% 이상 변동’에 관한 공시를 하면서 공소외 4 주식회사의 자산현황을 “자산총계 460억 원, 부채총계 154억 원, 자본금 128억 원, 자본총계 306억 원” 등으로 공시하였고, 피해자 공소외 2는 위와 같은 공시 내용을 고려하여 전환사채의 인수 여부 및 인수대금 등을 결정하였으나, ◇◇회계법인의 2009. 3. 23.자 감사보고서에 의하면 공소외 4 주식회사의 2008. 12. 31. 당시 자산현황은 “자산총계 307억 원, 부채총계 144억 원, 자본금 128억 원, 자본총계 163억 원”으로 평가되어 있어서, 위 2009. 3. 16.자 공시 내용과도 현저한 차이가 발생하는데, 공소외 4 주식회사의 2009. 3. 16.자 공시 내용이 회계감사가 종료되기 직전에 회사에서 자체적으로 공시한 것으로서, 최종적인 회계감사 결과에 따라 변동이 될 수 있음을 고려하더라도 위 회사의 자산현황을 제대로 반영하고 있다고 보기 어려울 뿐 아니라, 그 적정성을 확인할 만한 근거나 자료도 없는 점, ⑧ 피해자 공소외 2는 공소외 4 주식회사의 전환사채 인수 당시 공소외 4 주식회사의 자산현황 등을 제대로 파악하지 못하고, 회계감사에서의 의견거절 등을 예상하지 못한 상태에서, 공소외 4 주식회사의 2009. 3. 16.자 공시 내용을 상당 부분 신뢰하여 전환사채를 인수하기로 하였을 것이나, 위 공시 내용이 위 회사의 현황을 전혀 반영하지 못하고 있고 회계감사과정에서 회계법인의 자료 제출 요구에 응하지 않고 있는 등의 사정을 알았더라면 위 전환사채를 인수하지 않거나 적어도 동일한 조건으로는 이를 인수하지는 않았을 것으로 보이는 점을 종합하여, 피고인 1이 피해자 공소외 2를 기망하여 위 전환사채 인수대금 명목의 금원을 건네받았음을 인정하였다.

Examining the relevant evidence in light of the records, the judgment of the court below on this issue is just, and there is no error of mistake of facts alleged by Defendant 1.

(2) In fraud involving the taking-off of property, if there is a delivery of property by deception, thereby infringing the victim's property by itself, and even if there was no considerable price or damage to the victim's entire property, it does not affect the establishment of fraud, and in the case of fraud, even if part of the price is paid, the amount of the taking-off is not the difference between the value of the property given from the victim and the amount of the property received (see Supreme Court Decision 2006Do7470, Jan. 25, 2007). The judgment below affirming the victim's investment and receiving KRW 125 million in return for the taking-over of the convertible bonds of the non-indicted 4 corporation with the investment money, even though the victim's 200 million won was received in return for the taking-over of the convertible bonds of the non-indicted 2 corporation with the investment money, and therefore, it cannot be deducted from the amount of the taking-over of the non-indicted 4 corporation, and therefore it is justified in the judgment below.

2) As to Defendant 1’s assertion of mistake of facts and misapprehension of legal principles concerning the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

A) Summary of the facts charged

피고인 1은 공소외 4 주식회사 대표이사로 재직하던 2009. 3. 13.경 서울 서초구 서초2동 소재 ◆◆증권 강남역지점에서 당시 공소외 4 주식회사가 전환사채를 발행하더라도 그 정상적인 상환 또는 주식으로의 전환 가능 여부가 불분명한데도 이러한 상황에 관하여 피해자 공소외 2를 기망하여 이에 속은 피해자 공소외 2로부터 2009. 3. 20. 9억 9,000만 원을 공소외 4 주식회사가 발행한 전환사채 인수대금 명목으로 교부받아 이를 편취하였다.

B) The judgment of the court below

The court below determined that even if Defendant 1 received part of the subscription price of the above convertible bonds as the corporate account of Nonindicted Co. 4, and returned it under the prior agreement with Nonindicted Co. 2, it is difficult to recognize that there was a lack of evidence to acknowledge that Defendant 1 received part of the subscription price of the above convertible bonds from Nonindicted Co. 4, in light of the following: (a) it was returned to investors through Nonindicted Co. 2 immediately after the deposit under the prior agreement; (b) the victim Non-Indicted. 2 or investors did not separately specify the subscription price of the convertible bonds returned; and (c) the “amount of profit” in Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes means the substantial amount of profit in light of its legislative intent; and (d) it was difficult to recognize that there was a lack of evidence to acknowledge that Defendant 1 received part of the subscription price of the above convertible bonds from Nonindicted Co. 4, 950 million won under the pretext of acquiring the above convertible bonds, or that there was no other intent to obtain KRW 995 billion.5 billion.

C) Determination of the immediate deliberation

According to the evidence duly adopted and examined by the court below, it is acknowledged that the defendant 1 agreed to acquire the above convertible bonds on March 20, 2009 with the non-indicted 28 who introduced the victim non-indicted 2 and from March 13, 2009 to March 20, 2009, the principal of the subscription bond issued by the non-indicted 4 corporation shall be KRW 990 million, but the investment principal shall be KRW 495 million, which is KRW 50 million, which is KRW 50 million, and the non-indicted 29 and the victim non-indicted 2, who was represented by the defendant 1, agreed to receive the above convertible bonds on March 20, 209, and immediately returned KRW 500,000,000,000 from March 20, 209.

In light of the terms and conditions agreed with Defendant 1 while acquiring the convertible bonds of Nonindicted Co. 4 and the payment process of the subscription price for the convertible bonds, it is reasonable to view the amount that Defendant 1 attempted to acquire as the price for acquiring the convertible bonds of Nonindicted Co. 4 by deceiving the victim Nonindicted Co. 2 as the price for acquiring the convertible bonds of Nonindicted Co. 4 by deceiving the victim Nonindicted Co. 1 as the price for acquiring the convertible bonds of Nonindicted Co. 1, excluding the amount of KRW 990 million, which is the price for acquiring the agreed convertible bonds, KRW 495 million,00,000,000, which is the price for acquiring the convertible bonds of Nonindicted Co. 1, 200,000, which is the price for acquiring the convertible bonds of Nonindicted Co. 2, nor can Defendant 1 obtain the profit by deceiving the victim Nonindicted Co. 2 from the victim to

Therefore, the judgment of the court below on this issue is just, and it is not accepted by the prosecutor since there is no error of mistake or misunderstanding of legal principles as asserted by the prosecutor.

5. Conclusion

Therefore, among the judgment of the court of first instance, the guilty part against Defendant 1 and the part against Defendant 3, and the judgment of the court of second instance on the ground of the legal principles as to the violation of the Labor Standards Act among the facts charged against Defendant 1, as the above grounds for ex officio destruction, including the grounds for appeal on the ground of the misapprehension of legal principles as to the violation of the Labor Standards Act, are well-grounded. Accordingly, the judgment of the court below is reversed in accordance with Articles 364(2) and 364(6) of the Criminal Procedure Act without any judgment on the assertion of unfair sentencing by Defendant 1 and 3 and the prosecutor's assertion of unfair sentencing against the above Defendants, and it is again decided as follows after the pleading. The prosecutor's appeal against Defendant 1 and the prosecutor's appeal against Defendant 2 is without merit, and it is so dismissed in accordance with Article

A. Defendant 1: Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes; Articles 356, 35(2), and 30 of the Criminal Act [the point of occupational breach of trust against Non-Indicted 4; the choice of a limited term of imprisonment; Article 1(1)5 of the former Criminal Act (wholly amended by Act No. 10259 of April 15; Article 10; Article 3(1)2 of the former Criminal Act; Article 355(2) and Article 30 of the former Criminal Act; Article 50 of the former Criminal Act (wholly amended by Act No. 1065 of April 3, 201); Article 10 of the former Criminal Act (wholly amended by Act No. 1065 of Apr. 15, 201); Article 30 of the former Criminal Act (wholly amended by Act No. 10650, Apr. 15, 201); Article 25 of the former Criminal Act)

B. Defendant 3: Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356, 355(2), and 30 of the Criminal Act [the fact of occupational breach of trust against Nonindicted Co. 4 related to Nonindicted Co. 3, the choice of imprisonment, and the maximum statutory penalty shall be 15 years of imprisonment as prescribed by the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259 of Apr. 15, 201), Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356 and 30 of the Criminal Act [the fact that each embezzlement against Nonindicted Co. 4, and the maximum statutory penalty shall be 50 million won], Article 20 of the former Criminal Act (amended by Act No. 10650, Apr. 15, 201; Article 201 of the former Criminal Act)

1. Aggravation for concurrent crimes;

A. Defendant 1: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act [Article 50 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes against Non-Indicted 3-Related Non-Indicted 4]

(b) Defendant 3: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act [in case of a non-indicted 4 corporation with the largest punishment, punishment shall be imposed concurrently for the punishment prescribed for the violation of the Act on the Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust)];

In lending corporate funds to another person, if a director, etc. of a company knew that it would cause damage to the company if he/she had already lost his/her ability to repay his/her debt and lent funds to him/her, or if he/she has lent funds only without taking reasonable measures to recover claims such as receiving sufficient collateral, such loans constitute a breach of trust against the company, which causes damage to the company (see Supreme Court Decision 2009Do1149, Oct. 28, 2010).

In light of the above legal principles and evidence duly adopted and examined by the court below, ① Defendant 1 was under pressure by using short-term bonds at high interest around January 207, 207, demanded or instructed Defendant 3 to lend KRW 350 million in the name of Nonindicted 31, and Defendant 3 decided to lend KRW 350 million with the funds of Nonindicted 1, but Defendant 1 did not receive the above KRW 70 million with the funds of Nonindicted 1, 2007, and Defendant 1 did not appear to have been subject to the above order of Defendant 1 and its management, and Defendant 1 did not appear to have been subject to the above order of Defendant 1 to lend the funds of Nonindicted 3, 2006 to Defendant 1 without any internal procedure such as holding the board of directors or going through a resolution of Nonindicted 1, 300 million. However, Defendant 1 was sufficiently aware of the above order of Defendant 1 to lend the funds to Nonindicted 1, 2006 to Defendant 1,300 won.

The crime of this case by Defendant 1 committed the crime of this case with Defendant 3, who used the bonds without a special fund-raising plan with Defendant 1, taken over the office of representative director, and jointly issues promissory notes worth KRW 42.75 billion in the name of Nonindicted Co. 4 as security for the bonds, and embezzlement of KRW 21.1 billion in total to repay the bonds, and embezzlement of KRW 8 billion in the amount of the funds of Nonindicted Co. 4 to pay the bonds, with Defendant 3, who is the representative director of Nonindicted Co. 1, as well as KRW 1.355 million, which caused the damage to Nonindicted Co. 1, as well as KRW 1.45 million, in light of the fact that the victim’s deceptiond Nonindicted Co. 2, thereby acquiring KRW 495 million, which caused the damage to Nonindicted Co. 1’s employees to obtain KRW 49,500,000 due to the violation of the Commercial Act due to payment of the stock price twice, false entry in the original copy of notarial deed, and the unlawful exercise of the money, thereby violating the Labor Standards Act.

Meanwhile, Defendant 1’s breach of trust, which jointly issued a promissory note amounting to KRW 42.75 billion in the name of Nonindicted Co. 4, did not cause serious damage to Nonindicted Co. 4 because the risk of damage therefrom is not realized; Defendant 1 did not have any criminal record exceeding the fine prior to the instant crime; Defendant 1’s career, and the business contents of Nonindicted Co. 4 were deemed to have led by Defendant 3; Defendant 1 appears to have taken over Nonindicted Co. 4 with trust of Defendant 3, and was likely to have taken over Nonindicted Co. 4; Defendant 1 actually owned KRW 7.4% of the shares of Nonindicted Co. 4; Defendant 1 agreed with shareholders who amount to KRW 54.7% of the shares issued by Nonindicted Co. 4 until the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the court of first instance, and Defendant 1 paid additional KRW 1.3 billion to Defendant 1,000,000 for further KRW 1.3 billion to Defendant 1.

In all the above circumstances, the punishment as ordered shall be determined by comprehensively taking into account the various sentencing conditions shown in the argument of this case, such as Defendant 1’s age, character and conduct, environment, relationship with victims, etc.

2. Defendant 3

Defendant 3’s crime of this case was committed with Defendant 1 without any specific fund-raising plan, and Defendant 1 took office as representative director and jointly issues promissory notes amounting to KRW 42.75 billion in the name of Nonindicted Co. 4’s name as security, and embezzlement of KRW 19 billion in order to repay the bonds, and embezzlement of KRW 8 billion in the name of Nonindicted Co. 4’s funds to Defendant 1’s representative director with KRW 1.35 billion in punishment against Nonindicted Co. 1, 200, and Defendant 3’s criminal act was committed against Defendant 1’s crime of breach of trust. In light of the fact that the crime of this case was committed against Nonindicted Co. 4, 200, which was punished on two occasions by imprisonment with prison labor, and was sentenced to punishment for violation of the Commercial Act, entry in the original copy of notarial deed, and false entry into the original copy of notarial deed, and thus, Defendant 3’s representative director was more likely to incur considerable damages to Defendant 4 and its shareholders.

Meanwhile, Defendant 3’s breach of trust, which jointly issued a promissory note worth KRW 42.75 billion in the name of Nonindicted Co. 4, did not bring about serious damages to Nonindicted Co. 4 because the risk of damages therefrom is not realized. Defendant 3 agreed to pay KRW 100 million to Nonindicted Co. 1 and pay KRW 2.350 million in installments over three years, and that Nonindicted Co. 1’s withdrawal of a complaint against Defendant 3, etc. is favorable to Defendant 3.

In all the above circumstances, the punishment like the order shall be determined by comprehensively taking into account the following factors: Defendant 3’s age, character and conduct, environment, relationship with the victim, equity in punishment with Defendant 1, and various sentencing conditions as shown in the argument in this case.

Judges Kim Sang-chul (Presiding Judge)