A defendant shall be punished by imprisonment for not less than three years and six months.

Of the facts charged in the instant case, the charge of violating the Illegal Check Control Act is acquitted.

A. misunderstanding of facts or misapprehension of legal principles

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

A) The agreement between Nonindicted Co. 1 and Nonindicted Co. 2 on the execution of the joint project in connection with the construction and sale business of △△ Office and commercial buildings, etc. (hereinafter “instant project”), in which the Defendant’s representative director is the representative director, is not a business agreement, and there is no fact that Nonindicted Co. 1 and Nonindicted Co. 2 constituted an association. Therefore, the value-added tax refund received from Nonindicted Co. 1 in relation to the instant project from Nonindicted Co. 3, 4, 5, 6, 7, and 8 (hereinafter “instant buyers”) and the tax office, rent received from Nonindicted Co. 9, rent received from Nonindicted Co. 10, and rent received from Nonindicted Co. 10 is not the sole ownership of Nonindicted Co. 1 and the joint ownership of Nonindicted Co. 1 and Nonindicted Co. 2, and even if Nonindicted Co. 1 used the said money at will without permission, this does not constitute embezzlement.

B) In addition, even if it is assumed that Nonindicted Co. 1 and Nonindicted Co. 2 concluded a partnership with respect to the instant business, it is assumed that Nonindicted Co. 1 borrowed money from the buyers of the instant case, and that the money received from them is not the sales price related to the instant business, and it is not the property of the association. Moreover, value-added tax refunded to Nonindicted Co. 1 is merely the sole ownership of Nonindicted Co. 1, a business operator who paid value-added tax, and is not the property of the association.

C) In addition, Nonindicted Co. 1 received KRW 20 million from Nonindicted Co. 3, KRW 2220 million from Nonindicted 4 (the appellate brief and KRW 2220 million from the summary of the pleading as of December 29, 2010). However, in the defense counsel’s opinion as of October 19, 2010, KRW 221.5 million, KRW 312 billion from Nonindicted 5, KRW 314 billion from Nonindicted 6, and KRW 50 million from Nonindicted 7, and KRW 230 million from Nonindicted 3 as stated in the facts charged, KRW 220 million from Nonindicted 4,50 million, and KRW 49,50 million from Nonindicted 50 million from Nonindicted 3, as of October 19, 2010.

(2) In the appellate brief, the Defendant alleged that the amount received from the above non-indicted 3, etc. was different from the facts charged, but did not explicitly state it as the grounds for appeal. However, since the Defendant clearly contests it through the summary of oral argument in the subsequent trial process, it is reasonable to deem that the above point is also included in the grounds for appeal.

D) Furthermore, even if the instant money is a union property, the purpose of the instant money is not to be strictly determined, and the Defendant did not deposit the instant money into the joint management account of Nonindicted Co. 1 and Nonindicted Co. 2 for the instant business, and used it for the instant business, so the Defendant did not have any intent to acquire unlawful profits from the Defendant.

E) Nevertheless, Nonindicted Co. 1 and Nonindicted Co. 2 constituted a partnership by entering into a partnership agreement in relation to the instant business. Nonindicted Co. 1’s money received from the buyers of this case belongs to the partnership’s property as sales price, value-added tax refunded to Nonindicted Co. 1 belongs to the partnership’s property, and it is recognized that the Defendant intended to obtain unlawful profits from the Defendant in using the instant money without depositing it in the joint operation account under the above Joint Business Implementation Convention. In so doing, the lower court convicted the Defendant of all of the facts charged in the instant case against the Defendant by misapprehending the facts or by misapprehending the legal doctrine as to the crime of embezzlement.

2) As to the violation of the Illegal Check Control Act

A) Nonindicted Co. 1 and Nonindicted Co. 11 entered into a sales agreement on the sports facilities of △△ commercial building, and thereafter, they delivered to Nonindicted Co. 2 a check number with the blank of the date of issuance in order to secure the payment of the sale price. Since Nonindicted Co. 2 transferred the status of the seller of the sports facilities to Nonindicted Co. 2 according to the above agreement with Nonindicted Co. 2, the said sales agreement was lawfully terminated upon the notice of termination of the sales agreement. Accordingly, Nonindicted Co. 2’s use to supplement the date of issuance of the above check number after the notice of termination was without the authority to supplement the date of issuance of the above check number constitutes the securities Article, and thus, it is not falsely reported that Nonindicted Co. 2 submitted a check accident report to the effect that it was forged by supplementing the date of issuance of the above check number without the authority to do so.

B) In addition, even if Nonindicted Co. 2 did not succeed to the status of the seller and thus, the notice of termination of the sales contract is not legitimate, the Defendant did not recognize that the report of the check accident was false on the ground that Nonindicted Co. 2 actually exercised the authority related to the sale of the sports facilities, and that Nonindicted Co. 2 was thought to succeed to the status of the seller under the above agreement.

C) Nevertheless, the judgment of the court below which found the defendant guilty of violating the Illegal Check Control Act among the facts charged in the instant case by finding that the defendant reported a false check accident and that the defendant was aware of its falsity, is erroneous in the misunderstanding of facts or in the misunderstanding of legal principles as to the false report in the Illegal Check Control Act, which affected the conclusion

B. Unreasonable sentencing

The punishment sentenced by the court below (four years of imprisonment) is too unreasonable.

2. Determination on the grounds for appeal

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

1) Facts of recognition

According to the evidence duly adopted and examined by the court below and the court below, the following facts can be acknowledged.

A) Conclusion of all agreements related to the instant business

(1) Conclusion of a joint project implementation agreement

On June 4, 2003, Nonindicted Co. 1 and Nonindicted Co. 2 concluded a joint project implementation agreement (hereinafter “instant joint project implementation agreement”) with the main contents of the following as to the implementation of the instant project on the ground and eight parcels outside Gangnam-gu Seoul (hereinafter omitted).

Article 2 Business scale and Method

(1) Location: Gangnam-gu Seoul (hereinafter referred to as "1 omitted) and eight parcels.

(2) Scale: 41.5 billion won (land: 1,319.3 square meters, unit price: approximately 31,456,00 won/pact) for land.

(3) Methods: Joint development projects.

Article 4 Scope of Business

In the table division included in the main text, Nonindicted 1 Company 1 Company 2 Company 2 Company 1 Company 2 Company 2 Company , and joint business management by construction design, supervision design, construction design, supervision, interior design, supervision, and supervision of M/H M/H M/H lease/H lease, construction, operation, joint management, advertisement/public relations/public relations/management of civil petition funds management and financial rights, real estate trust and agency affairs for civil petition construction, supervision of cooperation in the execution of joint sales affairs

Article 5 Purchase of Land

① The purchase of a project site is to perform contractual affairs by using the cooperation system between Nonindicted Co. 1 and Nonindicted Co. 2, and the consultation and purchase-related business with the landowner is managed by Nonindicted Co. 1, and the buyer of the contract is the joint name of Nonindicted Co. 1 and Nonindicted Co. 2, and the transfer of ownership is to be handled in the name of Nonindicted Co. 1.

② Nonindicted Co. 2 shall lend the down payment at the time of the purchase of the site, and pay the balance through profining with the financial right by the date of the remainder payment within two months after the contract.

③ Nonindicted Co. 1 shall submit the documents guaranteeing the payment of the remainder within the deadline of financial rights (domestic bank, insurance company, guarantee insurance, etc.) to Nonindicted Co. 1 within 10 days from the date of conclusion of the contract.

Provided, That when Nonindicted Co. 1 makes a request, Nonindicted Co. 2 will provide documents guaranteeing payment for the balance payment.

Article 6 Business Planning and Design Affairs

Business planning, architectural design, and interior design for the project shall be jointly and jointly carried out in cooperation with Nonindicted Co. 1 and Nonindicted Co. 2, and supervision shall have the responsibility and authority of Nonindicted Co. 1.

Article 7 Affairs concerning Authorization and Permission for Rental

① All rental business affairs, including business affairs concerning the merger and division of parcels in connection with the application of commercial areas, shall be responsible and carried out by Nonindicted Co. 1, and Nonindicted Co. 2 shall actively cooperate in and support such business affairs.

② In a case where the business is suspended due to the problem of authorization or permission for the rent, all of the liabilities for it shall be held by Nonindicted Co. 1, and the investment expenses of Nonindicted Co. 2, which was put up until then, shall be settled and compensated by Nonindicted Co. 1

Article 8 Sales of Goods

① Model House lease, construction, operation, and management of a site shall have the responsibility and authority jointly with Nonindicted Co. 1 and Nonindicted Co. 2.

② Advertisement, publicity, and sale are jointly managed through consultation between Nonindicted Co. 1 and Nonindicted Co. 2.

Article IXConstruction Works

① Construction shall be executed in accordance with the terms and conditions of the contract, and all responsibilities and authority shall be executed in accordance with the separate contract for construction with Nonindicted Co. 1 Company as “execution company” and Nonindicted Co. 2 Company as “contractor.”

Article XOperation and Management of Funds

Nonindicted Co. 1 and Nonindicted Co. 2 shall enter into a loan agreement with a financial institution at the time of real estate operations and shall immediately establish a real estate trust at the time of transfer of the ownership, and shall manage the funds through a separate proxy office contract with a separate agency.

Article 11 Distribution of Business Profits

At the time of completion of the project at the success rate, the distribution of profits of the project is 55% for Nonindicted Co. 1 and 45% for Nonindicted Co. 2.

Provided, That the operating expenses of the non-indicted 1 corporation shall be the next consultation key.

(2) Conclusion of construction contract

When entering into the instant joint project implementation agreement on June 4, 2003, Nonindicted Co. 1 and Nonindicted Co. 2 concluded a construction contract with Nonindicted Co. 1 as the contractor and Nonindicted Co. 2 as the contractor, separately from the instant project, for which the contract amount is KRW 80.3 billion (including value added tax).

(3) Conclusion of project financing business agreement

On July 30, 2003, ○○ Bank, Nonindicted Co. 1, and Nonindicted Co. 2 concluded a business agreement with the following main contents for P/F loans and joint management of project costs (hereinafter “instant P/F business agreement”).

Article 2-1 Loans to Nonindicted Co. 1

① In relation to the acquisition of a business site, ○○ Bank shall lend KRW 00 billion as loan agreement to Nonindicted Co. 1 Company for the purpose of the intermediate payment and/or the payment of any balance pursuant to a real estate sales contract, and for other purposes. Contracting parties to the said loan shall be in accordance with the terms and conditions of the loan agreement, such as interest payment, principal repayment, default, and other specific matters relating to the loan.

§ 2-2. Registration of a management and disposal trust with “○ Bank” as a trustee

① Nonindicted Co. 1 shall enter into a disposal trust agreement with ○ Bank on the project site as an object of trust, make a loan agreement pursuant to the relevant disposal trust agreement, and simultaneously make a management and disposal trust registration with ○ Bank on the project site as a trustee, designating ○ Bank as an object of trust.

Article 3-1 Sales Affairs

① Nonindicted Co. 1 shall carry out sales of the objects of sale after the conclusion of this Agreement, and submit a report on sales once a month to ○○ Bank: Provided, That in the case of selecting a sales agent, Nonindicted Co. 1 and Nonindicted Co. 2 shall be decided through consultation between Nonindicted Co. 1 and 2, and shall be notified to ○ Bank

② Nonindicted Co. 1 shall consult with Nonindicted Co. 2 and notify ○ Bank of the details of the decision of the sale price and the preparation of the sales contract.

③ In selling in lots by Nonindicted Co. 1 or an agent for parcelling-out, all other cash receipts, including the receipt of down payment, shall be deposited in the operation account, and the contracting parties shall recognize only the parcelling-out to the applicants for parcelling-out deposited in the operation account as parcelling-out

Article 3-2. Disposition of "property to be sold" in the event of default

① In the event a cause for nonperformance of a non-indicted 1 corporation occurs or there is the principal and interest of a ○ bank remaining until the completion of a building, the non-indicted 1 corporation shall grant to ○○ Bank the authority of representation or agency for the sale, lease and other disposal of the object which has not yet been sold until then, and notwithstanding the provisions of other agreements, the proceeds from disposal shall be used first priority in the repayment of the principal and interest of ○ Bank. ○ Bank may delegate its authority under this Article to a third party.

Article 4-1 (Operation of Operation Account)

① All revenues related to the instant project, such as funds raised by Nonindicted Co. 1, sales proceeds paid by buyers, overdue charges of buyers, interest income of financial institutions, and refund of value-added tax, shall be deposited into the “Operation Account”.

2. The term “○○ Bank”, which is a financial institution that opens an “Operation Account”, shall make electronic data and take other measures so that deposit money of “Operation Account” can be withdrawn only when a request for funds execution is submitted in accordance with the details and form prescribed in attached Form 2 with the seal of Nonindicted Co. 1 and Nonindicted Co. 2 and the confirmation of the head of ○○ Bank Real Estate Finance Team, when issuing a passbook “Operation Account”. The contracting parties agree thereto.

3. The parties to a contract shall specify the provisions of paragraph (1) of this Article in a contract for sale and purchase, stating that “the deposit and payment in any form which is not deposited into the same deposit account shall not be recognized as legitimate payment.”

Article 4-2 Execution Method of Project Costs

(1) In principle, contracting parties shall execute funds in the following order: Provided, That when it is necessary for the execution of senior funds in managing the funds of the “main project,” the execution of senior funds may be deferred, and where it is anticipated that it is difficult to execute the execution of the execution item of senior funds which comes later at the date of payment when the funds are executed for the execution item of subordinated funds for which the date of payment comes earlier, ○ bank may execute funds after the execution item of senior funds which comes later. The change in the execution order mentioned in this paragraph is possible only under the agreement of Nonindicted Co. 1, Nonindicted Co. 2, and ○○ Bank.

1. Loan-related fees, taxes, public imposts, contributions, registration fees, design and supervision expenses, authorization and permission expenses, and other expenses for administrative affairs which require urgent payment;

2. Interest on loans to ○○ Bank of Nonindicted Co. 1 (including interest on arrears)

3. Principal of the loan to Nonindicted Co. 1

4. Construction cost of Nonindicted Co. 2

5. Other expenses.

§ 5-1. Establishment of pledge rights to “Operation Account”

① In order to secure the repayment of the principal and interest of loans as stipulated in this Agreement and the “Loan Agreement” from ○○ Bank, Nonindicted Co. 1 and Nonindicted Co. 2 shall enter into a “contract to establish a pledge of deposit claims,” which is subject to the “Operation Account” deposit claims according to the contents and form prescribed in attached Form 3. In order to secure the repayment of the principal and interest of loans as well as all other obligations (hereinafter “security obligations”), from the standpoint of ○○ Bank, the “Contract to establish a pledge of deposit claims,” and the “party to the contract” agrees thereto.

(2) Notwithstanding the preceding paragraph, the term "operating account" shall be governed by Chapter IV before the occurrence of "reasons for default."

Article 5-3 Assumption of “Security Debt” by Non-Indicted 2 Company

① In a case where (1) a cause for the loss of benefit or the nonperformance of obligation occurs to Nonindicted Co. 1, or (2) the completion of the authorization and permission of the project and the sale rate of apartments and officetels by the end of April 2004 is not achieved, Nonindicted Co. 2 shall immediately take over the entire obligation jointly.

Article 6-4 (Transfer, etc. of Right to Enforcement of the “Main Project” by Non-Indicted 1 Company

① In the event of Nonindicted Co. 1’s “non-performance of obligations” and “financial contract”, or any other cause for identical recognition, Nonindicted Co. 1 shall transfer the right to implement the project (including any right that Nonindicted Co. 1 has in relation to the “main project”) to the Si Corporation (Nonindicted Co. 2), and the Si Corporation shall not refuse such transfer.

(4) Conclusion, etc. of a written agreement on March 23, 2005

Since then, Nonindicted Co. 1 and Nonindicted Co. 2 generated a cause for loss of profits from P/F loans due to the aggravation of the sales rate of officetels and the financial standing of Nonindicted Co. 1. On March 23, 2005, they drafted an agreement containing the content that Nonindicted Co. 1 and Nonindicted Co. 2 are responsible for sales and change the name of the joint management account into Nonindicted Co. 2. On June 23, 2006, the agreement was re-established between Nonindicted Co. 1 and Nonindicted Co. 2, which included the content that Nonindicted Co. 1 would entrust the sales of commercial and officetels to Nonindicted Co. 2. After that, according to the agreement on the alteration of the insurance agreement on Oct. 9, 2006, Nonindicted Co. 1 and Nonindicted Co. 2 would re-consign the sales price from Nonindicted Co. 3’s business under the condition that sales facilities should be completed by the end of Oct. 23, 2006.

B) Purchase of land, etc.

around June 203, pursuant to the instant joint project implementation agreement, Nonindicted Co. 1 and Nonindicted Co. 2 purchased from the previous owners of Gangnam-gu Seoul Metropolitan Government (hereinafter omitted) and eight parcels of land and eight parcels of land, the buyer prepared a real estate sales contract under the joint names of Nonindicted Co. 2 and Nonindicted Co. 1, and the registration of transfer of ownership on the said real estate was completed in the sole name of Nonindicted Co. 1 pursuant to the instant joint project implementation agreement. At the time of the purchase of the said real estate, Nonindicted Co. 2 lent the down payment of KRW 3 billion to Nonindicted Co. 1, and the balance of KRW 38.5 billion was paid as the P/F loans under the instant joint project implementation agreement.

C) the operation, etc. of the Clean/F Team

Pursuant to the instant joint project implementation agreement, between August 6, 2003 and August 2009, Nonindicted Co. 2 and Nonindicted Co. 1 made up of the employees of Nonindicted Co. 1 and Nonindicted Co. 2 Co., Ltd. to jointly carry out the business planning, distribution management, publicity, construction, and interior, etc., and the payment to the employees of T/F team was spent from the joint management account of Nonindicted Co. 2 and Nonindicted Co. 1. In addition, the sales contract form was signed jointly with the seller’s column. In addition, the sales contract form was signed jointly by Nonindicted Co. 1 and Nonindicted Co. 2, the contractor, and the contractor, to the seller’s column.

(d) acceptance of project financing loans;

Nonindicted Co. 2 acquired all of the obligations of Nonindicted Co. 1, the borrower, in accordance with the instant P/F business agreement due to non-payment of the P/F loans by Nonindicted Co. 1, and repaid all of the P/F loans KRW 120 billion on October 22, 2008.

E) Receipt and use of money from the buyer of this case

During the period from July 22, 2003 to June 18, 2006, Nonindicted Co. 1 received money from the buyers of this case, and did not deposit the said money in the joint operation account or the sale price account under an agreement with Nonindicted Co. 2 Co. 1 without permission of Nonindicted Co. 2.

F) Receipt and use of refund money of value-added tax

Nonindicted Co. 1 paid value-added tax on the joint operation account with Nonindicted Co. 2 on August 23, 2006 in its sole name with respect to the sale of the above △ Group Officetel. On August 23, 2006, Nonindicted Co. 1 received 106,870,620 won for the value-added tax refund for the first period of August 23, 2006 from Samsung Tax Office, 1,372,880,960 won for the second period of February 23, 2007, and 2,957,574,020 won for the first period of August 23, 2007, and 319,462,640 won for the second period of February 25, 2008, and without permission for the joint operation account of Nonindicted Co. 2, without permission.

g)receiving and using rent, etc.;

On June 25, 2008, Nonindicted Co. 1, 2008, he temporarily lent part of the building of the said YU to Nonindicted Co. 9 and received KRW 24 million as rent. On the 27th of the same month, he temporarily lent part of the building of the said YUU to Nonindicted Co. 10, and received KRW 44 million as rent, and did not deposit it into the joint operation account, but used at his own discretion without the permission of Nonindicted Co. 2.

2) Whether Nonindicted Co. 1 and Nonindicted Co. 2 constituted an association

A) The Civil Act is a contract under which two or more persons agree to jointly operate a business by jointly investing money, other property, or labor (Article 703 of the Civil Act). It is limited to the agreement under which a specific business is jointly operated (see Supreme Court Decision 2005Da5140, Jun. 14, 2007, etc.). In addition, as seen above, as to the instant business, it is recognized that a construction contract has been concluded between Nonindicted Co. 1 and Nonindicted Co. 2 in relation to the instant business, but it shall be determined in accordance with the specific contents of the agreement concluded between Nonindicted Co. 1 and Nonindicted Co. 2 in relation to the instant business.

B) However, the above facts are as follows. ① The first agreement on the execution of the joint project between Nonindicted Co. 1 and Nonindicted Co. 2 regarding the instant business was made with respect to Nonindicted Co. 1, and the scope of business of Nonindicted Co. 1 and Nonindicted Co. 2 is clearly defined. ② The instant agreement on the execution of the joint project was made to purchase the instant land jointly with Nonindicted Co. 1 and Nonindicted Co. 2, and the instant project was carried out in full scale by allowing Nonindicted Co. 1 to trust the site of the instant business and not arbitrarily dispose of the instant land, it is reasonable to view that Nonindicted Co. 1 and Nonindicted Co. 2 agreed not only to have a right to own ownership or disposal of the instant land on behalf of Nonindicted Co. 1, 200, but also to have been carried out by Nonindicted Co. 1 and Co. 2 separately from the instant agreement on the execution of the joint project. ③ Nonindicted Co. 1 and Co. 2, the most important business related to the sale of the instant land in the form of the instant agreement on the execution of the joint project.

C) Therefore, since Nonindicted Co. 1 and Nonindicted Co. 2 were in a partnership business relationship for the purpose of jointly carrying out the instant business, the above profits accrued from the partnership business relationship constitutes a partnership business property belonging to Nonindicted Co. 1 and Nonindicted Co. 2, and the judgment of the court below that determined that the non-indicted Co. 1 was in a position of a custodian for Nonindicted Co. 2, who is a partner of the partnership business, is just and acceptable, and there is no error of law by misunderstanding facts or by misunderstanding legal principles. Thus, this part of the Defendant’s assertion is not acceptable

3) As to the amount received from the buyer by Nonindicted Co. 1

A) As to Nonindicted 3

(1) According to the third prosecutor examination protocol, each cash custody certificate (Evidence No. 493, 494 pages), deposit slip (Evidence No. 492 pages), and sales contract (Evidence No. 866 pages) against the defendant, the defendant prepared a cash custody certificate of KRW 200 million in the name of the non-indicted 1 corporation on July 22, 2003; ② on May 24, 2004, the defendant prepared a sales contract with the non-indicted 3 with the non-indicted 1,52,00,000 won with the non-indicted 3, and again prepared a cash custody certificate of KRW 200,000,000,000,000 won with the non-indicted 3, 300,000 won with the non-indicted 3's cash custody certificate and deposit certificate of KRW 30,000,000,000 from the prosecutor's office. ③ The defendant was investigated by the non-indicted 3.

(2) However, the following circumstances acknowledged by the evidence duly adopted and investigated by the court of the first instance, i.e., ① Nonindicted 3 received a cash storage certificate from the Defendant on May 24, 2004 and a deposit order of KRW 30 million from Nonindicted 30 million from the Defendant on July 22, 2003, when paying KRW 200 million to the Defendant, it is difficult to view that the Defendant did not actually receive a cash storage certificate from the Defendant on July 22, 2003, and that he did not receive a deposit order of KRW 30 million from the said Nonindicted 31 corporation under the name of Nonindicted 1 corporation (hereinafter “Nonindicted 30 million”). In light of the fact that the above deposit order of KRW 30 million was issued to the Defendant on May 24, 200, the Defendant did not receive a deposit order of KRW 200 million from the said Nonindicted 3 corporation under the name of Nonindicted 1 corporation (hereinafter “Nonindicted 300 million”).

(3) As stated in the facts charged above, it is difficult to believe that Nonindicted Co. 1’s statement at the prosecution and the Defendant’s statement at the above deposit slip and the Defendant’s office, which seem to be consistent with Nonindicted Co. 3’s receipt of KRW 30 million from May 24, 2004, as stated in the facts charged, are insufficient to accept it, and there is no other evidence to acknowledge it otherwise.

(4) Nevertheless, the judgment of the court below that recognized the fact that Nonindicted Co. 1 received KRW 30 million from Nonindicted Co. 3 on May 24, 2004 was erroneous in the misapprehension of law that affected the conclusion of the judgment, and thus, this part of the Defendant’s assertion is with merit.

B) As to Nonindicted 4

According to each statement of each passbook receipt (Evidence No. 504 pages, 505 pages) and each written contract for sale in lots (Evidence No. 871 pages), the Defendant prepared a sales contract with Non-Indicted 4 with Non-Indicted 4 on June 1, 2005 with the sales price of KRW 1.49 billion in the name of the non-Indicted 1 corporation as of June 1, 2005, with the sale price of KRW 1.49 billion in the name of the non-Indicted 1 corporation. On June 9, 2005, it can be sufficiently recognized that the Defendant received KRW 2.1.5 million in total from Non-Indicted 4 on June 9, 2005. Accordingly, this part

C) As to Nonindicted 5 and 6

(1) According to the third protocol of examination of the defendant, each receipt (Evidence 506, 507, 509, and 510 pages) and each contract for sale in lots (Evidence 870, 872 pages) against the defendant, the defendant, as of July 6, 2005, prepared a written contract with the non-indicted 5 with the non-indicted 1,560,000 won for sale in the name of the non-indicted 1, and entered the receipts of KRW 312,00,00 won in the name of the non-indicted 1, 50,000 won in the non-indicted 1, 50,000 won in the non-indicted 1, 50,000 won in the name of the non-indicted 1, 506, 500,000 won in the non-indicted 1, 200,000 won in the name of the non-indicted 1, 205.

(2) However, according to each statement in the passbook (Evidence No. 1180) and reply (Evidence No. 141), Nonindicted Co. 5 deposited KRW 300 million in the account under the name of Nonindicted Co. 1 on July 8, 2005 four times in the name of Nonindicted Co. 1; ② Nonindicted Co. 2 paid KRW 140 million to Nonindicted Co. 1’s cashier’s checks on the same day; ③ Nonindicted Co. 2 filed a lawsuit seeking the payment of the sale price against Nonindicted Co. 5 and 6; Nonindicted Co. 5 received KRW 300,000 from Nonindicted Co. 1, 2005; Nonindicted Co. 5 received KRW 80,000,000 from Nonindicted Co. 1, 200, KRW 180,000,000,000 from Nonindicted Co. 1, 205; and Nonindicted Co. 1,480,000,000 won.

(3) As described in the facts charged as above, Nonindicted Co. 1 was additionally paid KRW 187 million to Nonindicted Co. 5 on July 8, 2005, as well as KRW 312 million recognized by the Defendant. Nonindicted Co. 6 appears to have received additional KRW 1888,40 million from Nonindicted Co. 6, in addition to KRW 314 million recognized by the Defendant, each of the above receipts and the Defendant’s statements at the prosecutor’s office are difficult to believe them, and the other evidence submitted by the prosecutor alone is insufficient to recognize them, and there is no other evidence to acknowledge them.

(4) Nevertheless, on July 8, 2005, Nonindicted Co. 1 received additional KRW 187 million in addition to KRW 312 million from Nonindicted Co. 5 on July 8, 2005, and recognized the fact that Nonindicted Co. 1 received additional KRW 188,40 million from Nonindicted Co. 6 in addition to KRW 314,00,000,000 from Nonindicted Co. 6, thereby affecting the conclusion of the judgment. Accordingly, this part of the Defendant’s assertion is with merit.

D) As to Nonindicted 7

(1) According to the third prosecutorial protocol of examination of the defendant, each receipt (Evidence No. 512 pages), and each contract for sale in lots (Evidence No. 864 pages, 865 pages) against the defendant, the defendant, as of January 9, 2006, stated that the sale price for the above YUtel No. 1504 in the name of the non-indicted 1 corporation as of January 9, 2006 is KRW 1.466 billion, and the sale price for the above YUtel No. 1505 was KRW 1.53 billion, respectively, and that the defendant prepared a sales contract with the non-indicted 7 with the non-indicted 1 corporation in the name of the non-indicted 7 corporation. < Amended by Presidential Decree No. 15980, Feb. 3, 2006; Presidential Decree No. 19550, Jan. 9, 2006>

(2) However, in full view of the following facts: (a) when considering the witness’s statement at the court of the first instance and the statement in the above reply, the possibility that the Defendant entered the amount of the receipt, including the discounted amount of money equivalent to the interest, in granting the receipt by receiving advance payment from the buyer of the above Dog University Office in return for the purchase price from the buyer of the above Dog University Office; and (b) the Defendant did not confirm the amount actually received from Nonindicted 7; and (c) the possibility that he reported only the receipt that he prepared to Nonindicted 7 in the name of Nonindicted 1 Company and made the above statement cannot be ruled out, it is difficult to believe the above receipt and the above statement at the prosecutor’s office of the Defendant.

(3) As stated in the facts charged above, it is difficult to believe that the above receipts and the Defendant’s statements made at the prosecutor’s office, other than KRW 58 million recognized by Nonindicted Co. 1 on January 9, 2006 by Nonindicted Co. 7, as well as KRW 50 million recognized by the Defendant, are in accord with the above receipts and the Defendant’s statements made at the prosecutor’s office, and there is no other evidence to acknowledge them.

(4) Nevertheless, the judgment of the court below that recognized the fact that Nonindicted Co. 1 received additional KRW 98 million from Nonindicted Co. 7 on January 9, 2006, in addition to KRW 50 million, is erroneous in the misapprehension of facts, which affected the conclusion of the judgment, and the defendant's allegation in this part is with merit.

4) Whether Nonindicted Co. 1’s money received from the buyers of this case constitutes sales price

A) The Defendant changed to the purport that Nonindicted Co. 1 received money from the instant buyers, not from the instant buyers, but from the funds for the operation of Nonindicted Co. 1, the Defendant borrowed money from the instant buyers, and that Nonindicted Co. 1 would have paid the total amount of the borrowed money received from the instant buyers, on behalf of them, by means of paying the sales price of the said △△ Officetel.

In addition, according to the evidence duly adopted and examined by the court below, ① the fact that the number of buyers of this case paid the account or cash of Nonindicted Co. 1 and Nonindicted Co. 2, other than the account agreed to deposit the sales price, ② around March 2004, Nonindicted Co. 1 and Nonindicted Co. 2 started the sale of the above △ Group Officetel, and Nonindicted Co. 3 paid KRW 200 million to Nonindicted Co. 1 on July 222, 2003, which is the previous transfer; ③ Nonindicted Co. 8 paid KRW 38 million to Nonindicted Co. 1 on June 18, 2006, and the sales contract (Evidence No. 863 pages) between Nonindicted Co. 8 and Nonindicted Co. 1 was prepared on January 3, 207, ④ Nonindicted Co. 4 and Nonindicted Co. 2 were submitted to the investigation agency on each of the above facts that each of them paid to Nonindicted Co. 3 and Nonindicted Co. 24, respectively (Evidence evidence).

나) 그러나 원심과 당심에서 적법하게 채택하여 조사한 증거들에 의하여 인정되는 다음과 같은 사정들 즉, ① 위 사실확인서가 수사기관에 제출된 직후인 2009. 3. 18. 검찰수사관과의 통화에서, ㉠ 공소외 3은 ‘ 공소외 1 주식회사에서 사실확인서를 보여주면서 어차피 분양을 받은 후에 소유권을 이전받은 상황에서 특별한 문제가 없을 것이라고 하여 도장을 날인한 것으로서, 분명하게 분양잔금을 미리 납부하여 달라는 공소외 1 주식회사의 요청으로 납부를 한 것이다’라는 취지로, ㉡ 공소외 4는 ‘자신은 사실확인서를 작성해 주지 않았고, 중도금으로 납부한 것이다’라는 취지로 각 진술하였는바, 공소외 3과 공소외 4의 위와 같은 진술로 미루어 볼 때, 위 각 사실확인서의 기재는 믿기 어려운 점, ② 증인 공소외 3이 당심 법정에서 ‘피고인의 처인 공소외 12가 미리 분양대금을 납부하면 위 오피스텔의 좋은 층을 싸게 해 주겠다고 하여, 2003. 7. 22. 공소외 1 주식회사에 분양대금으로 2억 원을 지급한 것이다’는 취지로 명확히 진술하고 있는 점, ③ 공소외 6의 아버지인 공소외 13 역시 2009. 3. 18. 검찰수사관과의 통화에서 ‘피고인을 알지 못하고 분양잔금으로 납부한 것이다’라고 진술하고 있는 점, ④ 공소외 8도 2009. 3. 27. 검찰수사관과의 통화에서 ‘피고인이나 위 공소외 12는 전혀 모르는 사람이고, 공인중개사 사무실을 통하여 오피스텔을 매입하게 된 것이다’라는 취지로 진술하고 있는 점, ⑤ 공소외 7이 2009. 2. 25.경 공소외 2 주식회사에 자신은 분양대금은 모두 납부하였다는 취지의 통고서(증거기록 1303쪽)를 보낸 점, ⑥ 공소외 5도 2009. 2. 9.경 공소외 2 주식회사에 자신은 분양대금을 모두 납부하였다는 취지의 내용증명(증거기록 1308쪽)을 보낸 점, ⑦ 공소외 2 주식회사가 공소외 5, 6을 상대로 분양대금의 청구를 구하는 소송을 제기하였고, 위 소송과정에서 공소외 5, 6은 공소외 1 주식회사에 분양대금으로 3억 1,200만 원과 3억 1,400만 원을 각 지급하였다는 내용의 답변서를 제출하였는바, 위 답변서에는 공소외 5, 6은 실제로 1억 8,700만 원과 1억 8,840만 원을 공소외 1 주식회사에 지급하지는 않았다는 그들에게 불리한 내용도 포함되어 있어, 위 답변서의 기재는 신빙성이 있는 점, ⑧ 공소외 3이 비록 분양이 시작되기 전에 금원을 지급하였으나, 분양이 개시된 직후인 2004. 5. 24. 공소외 1 주식회사와 공소외 3 사이의 분양계약서가 작성되었을 뿐만 아니라, 공소외 1 주식회사는 같은 날 공소외 3에게 새로이 현금보관증을 작성해 주었는바, 이는 공소외 3이 공소외 1 주식회사에 분양계약과 관련하여 금원을 지급하였음을 명확히 하기 위한 것으로 보이는 점, ⑨ 공소외 3 뿐만 아니라, 공소외 4, 5, 6, 7, 8과 공소외 1 주식회사 사이에 모두 호수와 분양대금을 특정한 분양계약서가 작성된 점, ⑩ 공소외 3 등과 공소외 1 주식회사 사이에 작성된 분양계약서의 제1조에 의하면, 수분양자는 중도금 및 잔금을 공소외 1 주식회사와 공소외 2 주식회사가 분양대금을 받기로 약정한 ○○은행 을지로 기업금융 지점의 계좌( 계좌번호 생략)로 납부하는 것으로 되어 있으나, 한편 위 분양계약서 제6조 제1항에 의하면, 중도금 잔금의 납부장소는 공소외 1 주식회사가 지정, 통보하는 은행으로 하여야 하므로, 분양대행사가 아닌 분양자인 공소외 1 주식회사와 직접 분양계약을 체결한 이 사건 수분양자들이 공소외 1 주식회사의 요구에 따라 위 ○○은행 계좌로 금원을 입금하지 않았다 하더라도, 이 사건 수분양자들이 공소외 1 주식회사에 지급한 위 금원을 분양대금이 아닌 대여금으로 보기 어려운 점, ⑪ 피고인이 공소외 1 주식회사의 대표이사로서 공소외 4, 5, 6, 7, 8에게 영수증을 작성하여 교부하면서, 각 영수증에 그들로부터 받은 금원이 분양대금 선수금임을 명시한 점, ⑫ 이 사건 수분양자들이 공소외 1 주식회사에 지급한 금원이 대여금이고, 단지 변제의 방법으로 공소외 1 주식회사가 분양대금을 이 사건 수분양자들을 대신하여 납부하기로 한 것이라면, 공소외 1 주식회사와 이 사건 수분양자들 사이에 분양계약서 뿐만이 아니라, 대여원금과 이자, 변제기 등을 명시한 차용증이 작성되는 것이 일반적이라고 할 것인데, 공소외 1 주식회사와 이 사건 수분양자들 사이에 차용증이 작성되지도 않았을 뿐만 아니라, 변제기나 이자 등에 대해서도 따로 약정을 하지 않은 것으로 보이는 점, ⑬ 이 사건 수분양자들이 공소외 1 주식회사에 지급한 금원이 대여금이라고 한다면, 이 사건 수분양자들은 이후 공소외 1 주식회사가 실제로 분양대금을 납부하지 않았을 때의 위험에 대비하여 담보나 다른 변제방법을 강구하였을 것인데, 이 사건 수분양자들이 공소외 1 주식회사의 변제를 담보하기 위한 어떠한 조치도 취하지 않은 것으로 보이는 점 등을 종합해 보면, 공소외 1 주식회사에게 공소외 3이 2003. 7. 22. 지급한 2억 원, 공소외 4가 2005. 6. 9.에 지급한 2억 2,150만 원, 공소외 5가 2005. 7. 8.에 지급한 3억 1,200만 원, 공소외 6이 2005. 7. 8.에 지급한 3억 1,400만 원, 공소외 7이 2006. 1. 9. 지급한 5억 원, 공소외 8이 2006. 6. 18.에 지급한 3억 800만 원은 각 대여금이 아니라, 위 □□□ 오피스텔의 분양대금이라고 봄이 상당하다.

C) Therefore, the judgment of the court below that recognized the fact that the money paid by Nonindicted 3 et al. to Nonindicted Company 1 as above is the sale price of the above Doe Doe Officetel as a result of the instant project, is just and acceptable, and there is no error of law that affected the conclusion of the judgment by misunderstanding the facts. Thus, this part of the defendant's assertion is not acceptable.

5) Whether the refund of value-added tax is a partnership property

In light of the above facts and the evidence duly adopted and examined by the court below, the value-added tax was paid under the name of the non-indicted 1 corporation and the non-indicted 2 corporation in relation to the instant business, as seen above, since the non-indicted 1 corporation and the non-indicted 2 corporation jointly organized and operated the association, the amount of value-added tax was paid jointly with the non-indicted 1 corporation and the non-indicted 2 corporation, and since the non-indicted 1 corporation paid value-added tax in the joint operation account with the non-indicted 2 corporation, the amount of the refund should be deposited again into the joint operation account, and the non-indicted 1 corporation and the non-indicted 2 corporation clearly stipulate that the value-added tax refund amount under Article 4-1 of the instant P/F business agreement should be deposited into the joint operation account as revenue related to the instant business, it is reasonable to deem that the non-indicted 1 corporation and the non-indicted 2 corporation should be deposited in the joint operation account.

Therefore, the judgment of the court below that recognized the above value-added tax refund was the partnership property of the non-indicted 1 corporation and the non-indicted 2 corporation, i.e., partnership property, is just and acceptable, and there is no error of law that affected the conclusion of the judgment by misunderstanding the facts. Thus, this part

6) Whether the Defendant had an intent to obtain unlawful orders

A) (1) The intent of unlawful acquisition in the crime of embezzlement refers to the intent of a custodian of another’s property to dispose of it by himself/herself without authority contrary to the purport of the entrustment. Thus, in cases where the custodian disposes of it for the benefit of the owner, not for his/her own or a third party’s interest, the custodian cannot be recognized unless there are special circumstances (see, e.g., Supreme Court Decision 2009Do495, Apr. 23, 2009).

(2) However, the act of using funds entrusted by others for purposes other than the limited purpose is attributable to not only the personal purpose but also the act of using funds as a result, even if the entrusted person acts for the entrusted person, thereby realizing the intent of unlawful acquisition (see, e.g., Supreme Court Decision 2005Do3929, Sept. 28, 2005). In addition, in a case where the settlement of profit and loss distribution between partners was not made, if a partner did not have the right to dispose of the business property belonging to the partnership of the partners at his own discretion, the partner is not entitled to dispose of the business property belonging to the partnership of the partners. Thus, if a partner arbitrarily embezzled the business property during the custody of the same business property, the partner is liable for the crime of embezzlement against the whole amount embezzled at his own discretion regardless of his share ratio (see, e.g., Supreme Court Decision 200Do3013, Nov. 10, 200).

B) The judgment of the court below

위 인정사실에 본 바와 같이, ① 이 사건 공동사업이행협약 및 P/F 사업약정에서 공소외 1 주식회사가 조달한 납입자금, 분양계약자들이 납입하는 분양대금, 수분양자의 연체료, 금융기관의 이자수입, 부가가치세 환급금 등 이 사건 사업과 관련한 일체의 수입금을 운영계정에 입금하여 관리하도록 하고, 운영자금은 공소외 1 주식회사와 공소외 2 주식회사, ○○은행 3자의 확인이 있어야 인출될 수 있도록 하는 등 이 사건 금원의 관리방법 및 사용절차를 명시하고 있는 점, ② 사업비의 용도에 관하여서도 공소외 1 주식회사와 공소외 2 주식회사, ○○은행 3자의 합의에 의한 변경이 없는 한, ㉠ 이 사건 사업과 관련한 대출금 관련 수수료, 조세, 공과금, 분담금, 등기비용, 설계, 감리 비용, 인허가비용 및 기타 지급이 시급한 사무처리비용, ㉡ 공소외 1 주식회사의 ○○은행에 대한 대출금 관련 이자(지연이자 포함), ㉢ 공소외 1 주식회사에 대한 대출원금, ㉣ 시공사의 공사비, ㉤ 기타 비용의 순으로 자금을 집행하도록 하여 금원의 목적과 용도를 명시하고 있는 점 등을 알 수 있다.

In light of these circumstances, when considering the fact that the instant money received in relation to the business of Nonindicted Co. 2 and Nonindicted Co. 1 in the partnership business relations, it is agreed that the instant money should be strictly restricted and used among its partners. However, Nonindicted Co. 1’s arbitrary use of the instant money with the operating funds of Nonindicted Co. 1 in violation of the method of, procedure for, and purpose of use of, the said money, constitutes embezzlement, as it constitutes an act of realizing the intent of unlawful acquisition, and even if there was an agreement between Nonindicted Co. 1 and Nonindicted Co. 2 on the part of the operating expenses of Nonindicted Co. 1 and the profits of Nonindicted Co. 1 or on the settlement cycle after consultation between Nonindicted Co. 1 and Nonindicted Co. 2, the entire crime of embezzlement, as long as the Defendant, who is a partner, arbitrarily used the instant money without the permission of Nonindicted Co. 2 Co. 1’s business without such settlement of profits and losses, is liable for the entire amount of the instant money.

In addition, it cannot be deemed that the defendant did not have any intention to acquire unlawful profits solely on the ground that the defendant paid expenses directly or indirectly related to the business of this case, such as operating expenses of the non-indicted 1 corporation, instead of paying the funds in personal interest.

C) Determination of the immediate deliberation

In light of the above legal principles, the above judgment of the court below is just and acceptable, and there is no error of law by misunderstanding facts or misunderstanding the legal principles as to embezzlement, which affected the conclusion of the judgment. Thus, this part of the defendant's assertion is not acceptable.

B. As to the violation of the Illegal Check Control Act

1) Summary of this part of the facts charged

On April 14, 2008, the Defendant: (a) at the office of Nonindicted Co. 1 in Gangnam-gu Seoul (hereinafter referred to as “2 omitted); (b) at the office of Gangnam-gu (hereinafter referred to as “Seoul”); (c) at the office of Nonindicted Co. 1 in order to receive the sports facilities of the 4-6th and upper floors of the above △△ Group 11 in the name of the representative director of Nonindicted Co. 11, the KRW 15 billion out of the sale price of KRW 24 billion until May 15, 2008; and (d) up to June 30, 2008, the amount of KRW 9 billion shall be paid until June 30, 2008; and (c) at the face value (24,00,000,000 won) “in order to secure the obligation to pay the sale price,” the issuer “Nonindicted Co. 1, the representative director of Nonindicted Co. 14, the representative director of Nonindicted Co. 1114;

However, on September 22, 2008, Nonindicted Co. 2 failed to pay the sale price by the agreed date, and on September 22, 2008, Nonindicted Co. 2 notified Nonindicted Co. 1 to pay the loan amount of KRW 120 billion to Nonindicted Co. 2, the guarantor, Nonindicted Co. 2, and the date of issuance of the check was supplemented to “ September 26, 2008,” and presented the payment to Samsungdong Branch of △△ Bank.

On September 26, 2008, the Defendant submitted a false check accident report to the financial institution with the purport of avoiding the payment of the check amount, stating that “The check was issued on a voluntary basis by a person who is not authorized to issue the check,” at the point of Samsungdong, Gangnam-gu, Seoul, Samsung-dong, Samsung-dong, Samsung-dong, Inc.

(ii) the facts of recognition

According to the evidence duly admitted and examined by the court below, the following facts can be acknowledged.

A) According to the above agreement between Nonindicted Co. 1 and Nonindicted Co. 2 on March 23, 2005 and the agreement on June 23, 2006, the entire right to sell the instant business was transferred from Nonindicted Co. 1 to Nonindicted Co. 2, Ltd., and according to the agreement on the change of the business agreement on October 9, 2006, Nonindicted Co. 1 changed the sales contract from Nonindicted Co. 2 to Nonindicted Co. 1, 2006 on the condition that the sales contract should be concluded at a price exceeding 30 billion won by the end of October 2006.

B) On October 27, 2006, Nonindicted Co. 1 and 15 entered into a sales contract for sports facilities with Nonindicted Co. 1’s seller and Nonindicted Co. 15’s buyer for the sale price at KRW 30 billion (excluding value added tax). In this case, Nonindicted Co. 1, 2, and 15 agreed that “If Nonindicted Co. 2 or a third party succeeds to all the rights and obligations of Nonindicted Co. 1’s company due to any objective cause difficult to implement with respect to the above supply contract, Nonindicted Co. 15 entered into an agreement as stipulated in Article 15(3) of the sales contract, Nonindicted Co. 15 agreed that “If the said sales contract was changed from Nonindicted Co. 15 to Nonindicted Co. 11, 207, and the sales contract changed from the sales contract to the former.”

C) On April 30, 2007, Nonindicted Co. 11 received a guarantee from Nonindicted Co. 2, and paid the first intermediate payment. In this case, Nonindicted Co. 1, Nonindicted Co. 2, and △△ Bank concluded a business agreement. Article 4(1) of the Act provides that “In relation to the part payment loan of △△ Bank to Nonindicted Co. 11, a reason for loss of profit set forth in the terms and conditions of △△ Bank’s loan transaction, or the part payment loan to Nonindicted Co. 11 was claimed against Nonindicted Co. 11 upon the expiration of the loan maturity, but the repayment was delayed, when Nonindicted Co. 11 and Nonindicted Co. 2 made a repayment due, within three months from the date on which △△ Bank received notice from Nonindicted Co. 11 for the recovery of the claim, and the sales contract was cancelled with △△ Bank’s bonds, and the payment period for repayment was extended to Nonindicted Co. 11, 2014, which was set again on Nonindicted Co. 14, Ltd. 27.

D) Nonindicted Co. 11 received the sales price of at least 10 billion won from members by selling membership rights of the said sports facilities after the date, but failed to pay the total of the intermediate payments and remainders after the two times.

E) On April 14, 2008, upon demand for the payment of intermediate payments and remainder of Nonindicted Co. 2, Nonindicted Co. 14, the representative director of Nonindicted Co. 1, Nonindicted Co. 11, Nonindicted Co. 2, Defendant and Nonindicted Co. 11, entered into an agreement with the following contents.

1. Nonindicted Co. 1 and Nonindicted Co. 11 shall deposit KRW 15,00,000,000 as the sale price for sports facilities to Nonindicted Co. 2 on May 15, 2008, and KRW 9,000,000 until June 30, 2008, and each party’s shares and bills are submitted to Nonindicted Co. 2 in order to secure this, and immediately after the conclusion of this agreement, they shall be notarized including the acceptance of compulsory execution.

2. Nonindicted Co. 11 is jointly and severally liable for the joint and several liability of Nonindicted Co. 1 and Nonindicted Co. 11 for all of the obligations of the said check and bill when the check and bill of shares issued by Nonindicted Co. 11 are defaulted, refused to pay, or other problems arise.

3. The defendant who is the representative director of the non-indicted 1 corporation and the non-indicted 11 corporation, and the non-indicted 14 shall be individually and severally admitted to the above number of units and the bill bills.

4. After the conclusion of this Agreement, all funds management, such as the deposit and withdrawal of funds for the membership payments accounts related to Nonindicted Co. 11 shall be jointly conducted by Nonindicted Co. 11 and Nonindicted Co. 2, and Nonindicted Co. 11 shall submit the details of funds management (including passbook copies) to Nonindicted Co. 2 from the date of this Agreement to 09 every day.

5. If the above number of shares and the due date of bills are not specified, the non-indicted 1 corporation shall issue to the non-indicted 2 corporation a power of attorney to supplement the blank in relation thereto.

6. If Nonindicted Co. 11 did not comply with the above paragraphs 1 and 4, Nonindicted Co. 2, which was issued by Nonindicted Co. 1, proposed that the said shares and bills of exchange be paid to the said payment place immediately.

F) Pursuant to the above agreement on the same day, Nonindicted Co. 1 and Nonindicted Co. 11 were to prepare a bill of exchange and a check of 24 billion won in a notarial deed and a check of the number of shares in which the debtor and the issuer are to be Nonindicted Co. 1 and the creditor and the payee to be Nonindicted Co. 2, and the date of issuance to be blank. Nonindicted Co. 1 and Nonindicted Co. 11 issued a bill of exchange and a check of the number of shares to Nonindicted Co. 2. In addition to the note of the above number of shares, “the above number of shares are issued in order to secure all debts, or to be, they are currently borne or to be borne in the future by ear Co. 2.” In the event of failure to repay debts between the principal and ear, ear Co. 2 prepared a certificate of granting a right to supplement a blank bill (the statement of the number of shares) stating that “

G) Nonindicted Co. 11 did not pay the sales price by the agreed date under the above agreement, and did not perform the obligation to notify the details of the management of funds under the above agreement. On September 4, 2008, Nonindicted Co. 2 Co. 1 sent a public notice to Nonindicted Co. 1 on September 4, 2008, stating that “In addition, Nonindicted Co. 2 confirmed that all the powers of the remaining sales/lease to Nonindicted Co. 1 Co. 1 on several occasions were in us are in us, and that the period of the remaining sales/lease was right to wait for the actual operation of the business, such as the prompt payment of the balance, etc. In addition, Nonindicted Co. 11’s remaining sales after the date of the gold, Nonindicted Co. 2 Co. 2 would have agreed on and present at the meeting, and that the fixed period of the distribution/lease of sports facilities and other leading execution of Nonindicted Co. 1’s company will end on September 3, 2009.”

H) On September 22, 2008, Nonindicted Co. 2 was notified by Nonindicted Co. 2, 2008, Nonindicted Co. 2, a company assets management company, and △△△ Bank, a credit extension bank, that lost profits due to nonperformance, and thus, Nonindicted Co. 1, a guarantor, was notified that Nonindicted Co. 2, a guarantor, would repay the obligations of KRW 120 billion. On the same day, Nonindicted Co. 2, a guarantor, notified that the sales contract is terminated due to Nonindicted Co. 11’s notification of loss of profits due to nonperformance of the obligation to pay part payments and remainder payments of Nonindicted Co. 11

I) After sending the notice of termination of the sales contract as above, Nonindicted Co. 2 was given legal advice from the attorney to the effect that the sales contract cannot be terminated as a contractor. Accordingly, on September 26, 2008, Nonindicted Co. 2 sent to Nonindicted Co. 11 by content-certified mail the document stating that “I will confirm that the notice of termination of the transfer of Nonindicted Co. 2 was prior to the acquisition of the right to terminate, and that I will withdraw the said notice of termination,” which read “I will not accept the notice of termination,” which read “I will withdraw the notice of termination of the sales contract.” In addition, Nonindicted Co. 2 sent to Nonindicted Co. 2, on the same day, written the issue date of the above number as “ September 26, 2008,” and presented a payment proposal to Samsung Dong branch of △ Bank on September 26, 2008.

(j) On September 26, 2008, the Defendant submitted a check accident report stating that “The check was forged or altered by a person who is not authorized to issue the check at his own discretion,” at the △△△ branch of Samsung Bank.

(m) On October 8, 2008, Nonindicted Co. 2 sent to Nonindicted Co. 11, 2008 a letter to the effect that “ Nonindicted Co. 2 is a creditor who has a claim for reimbursement against Nonindicted Co. 1 Company, and in subrogation of Nonindicted Co. 1 Company, the debtor, the non-indicted Co. 1 Company, exercise the right to terminate the above sales contract, which it has against Nonindicted Co. 11.”

3) The judgment of the court below

As seen above, as seen in the above facts, upon the amendment agreement on the business agreement on October 9, 2006, Nonindicted Co. 1 recovered the right to sell the sports facilities in a hostile relationship with Nonindicted Co. 2 Co., Ltd. Accordingly, Nonindicted Co. 1 entered into a sales contract on March 29, 2007 with Nonindicted Co. 11 in its own name as a seller, and thus, it cannot be deemed that Nonindicted Co. 2, who is not the title holder of the above sales contract, has the right to notify the Nonindicted Co. 11 on its own termination. The above agreement on Apr. 14, 2008, is merely an agreement to pay the sales price to Nonindicted Co. 1 and Nonindicted Co. 11 to Nonindicted Co. 2, and cannot be deemed to have granted the right to directly cancel the above sales contract to Nonindicted Co. 2.

Therefore, the above notice of termination on September 22, 2008 does not affect the obligation to pay the sale price to Nonindicted Co. 1 Co. 2. Thus, it cannot be deemed that the above notice of termination has expired the claims against Nonindicted Co. 2 Co. 1 and the right to supplement the number of blank units against Nonindicted Co. 2 Co. 2’s bonds and the right to supplement the number of blank units. Thus, it is lawful to exercise and present the right to supplement blank units of Nonindicted Co. 2 Co. 2’s above September 26, 2008.

Therefore, the submission of the check accident report with the same contents as the above fact of recognition by Nonindicted Co. 1 constitutes a false report.

In addition, the Defendant, as an operator of Nonindicted Co. 1, directly as the operator of the said Nonindicted Co. 1, was aware of the relationship between Nonindicted Co. 1 and Nonindicted Co. 11, and Nonindicted Co. 2, at the time of submission of the said report, on October 9, 2006, on October 27, 2006, on the sales contract in March 29, 2007, on the sales contract in March 14, 2008, and on April 14, 2008.

4) Determination of the immediate deliberation

A) Whether a false report is filed

As seen above in the facts of recognition, the above blank number of units was issued in order to secure the payment of 24 billion won for the above sports facility sales price to Nonindicted Co. 1 and Nonindicted Co. 2 Co. 11 on April 14, 2008. The seller of the sales contract dated October 27, 2006 and the sales contract dated March 29, 2007, which formed the basis of the above agreement, are not Nonindicted Co. 1 and Nonindicted Co. 2, and the seller of the sales contract dated March 29, 2007 is not Nonindicted Co. 2, barring any special circumstance. Thus, Nonindicted Co. 2 does not have the authority to cancel the sales contract as of March 29, 2007 without subrogation of Nonindicted Co. 1.

Therefore, the above notification of termination on September 22, 2008 by Nonindicted Co. 2 was effective because it is a person without authority, and thus, Nonindicted Co. 2 still holds the authority to supplement the date of issue of the above number of units and present it to pay it. The report to the effect that Nonindicted Co. 1 made up for the issue of the above number of units without authority by Nonindicted Co. 2 constitutes a false report.

B) Whether the Defendant was aware of the false report

(1) According to the evidence duly adopted and examined by the court below, the defendant is found to have been directly involved in the conclusion of each of the above agreements related to the sale of sports facilities at the time of operating the non-indicted 1 corporation and the non-indicted 11 corporation. In light of the defendant's career, status, etc., the defendant is aware that the above non-indicted 2 corporation's termination notification as of September 22, 2008 is inappropriate and the non-indicted 2 corporation still has the authority to supplement the issue date of the above shares. However, it is doubtful that the defendant did not make a false accident report to the effect that the non-indicted 2 corporation made a supplementary payment without authority to do so.

(2) However, the court below found that the above non-indicted 2 corporation was legally authorized to cancel the sales contract, namely, ① the non-indicted 1 corporation and the non-indicted 2 corporation. When the non-indicted 2 corporation did not perform its obligations under the instant P/F contract, the non-indicted 1 corporation was obligated to transfer all rights related to the instant business to the non-indicted 2 corporation, including the power to sell, and the above sales contract was also allowed to transfer the contractual status of the non-indicted 1 corporation to the non-indicted 2 corporation, and ② the non-indicted 2 corporation was aware that the above non-indicted 1 corporation lost its rights due to the non-indicted 2's default. The non-indicted 2 corporation's right to cancel the sales contract was not known to the non-indicted 2 corporation before the above non-indicted 1 corporation terminated the sales contract, and it was difficult to interpret the above non-indicted 2 corporation's right to cancel the sales contract as stated in Article 6-4 (1) of the P/F agreement.

C) Sub-determination

Therefore, the evidence presented by the prosecutor alone is insufficient to recognize the defendant as having reported a false check accident as stated in the facts charged while recognizing that the defendant was false, and there is no other evidence to acknowledge it otherwise.

Nevertheless, the judgment of the court below that recognized the fact that the defendant reported a false check accident as stated in the facts charged and found the defendant guilty of this part of the facts charged is erroneous in the misapprehension of the judgment, thereby affecting the conclusion of the judgment. Therefore, this part of the

3. Conclusion

Therefore, since the defendant's appeal is well-grounded, the judgment of the court below shall be reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the following judgment shall be rendered again after

1. Each legal statement of the defendant in the original judgment and the trial court;

1. The witness Nonindicted 3’s statement at the trial court

1. The court below's oral statement by Non-Indicted 16 of the witness

1. Each prosecutor's protocol of interrogation of the defendant (including the part of Non-Indicted 16, 1666, 116509 among Non-Indicted 16, 17 among the first interrogation protocol of suspect interrogation of the defendant, Non-Indicted 18, 16, and 16 among the second interrogation protocol of suspect interrogation of the defendant, Non-Indicted 16 among the third interrogation protocol of suspect interrogation of the defendant, Non-Indicted 16 of Non-Indicted 209, No. 22171 and No. 1 and No. 2 of the third interrogation protocol of suspect interrogation of the defendant)

1. Each statement made by each prosecutor on Nonindicted 19, 20, and 16

1. Each entry in Nonindicted 21’s written statements

1. Each entry in the investigation report (report on the confirmation of the receipt of the sale price of YUteltel, report on the confirmation related to the red control project of the non-indicted 1 corporation, report on the contents of the currency in the non-indicted 22, 3, and 8 currency related to the establishment of the sale price of YUteltel, attachment of the written contract for the construction to be submitted by the complainant, and filing of a copy of

1. The case of the joint project implementation agreement, the request for the transfer of ownership by the occupant of each officetel, each confirmation letter, each letter of confirmation, cash storage, each receipt, each case related to the return of the project operation of Cheongdam Building, the case of the execution of the joint project implementation agreement, the case of the additional payment of the rent for the project of Cheongdamdong Complex Building, the case of the advance payment of the rent for the project of △△△△△△ Complex Building, the case of the advance payment of the purchase price for the △△ Group Office in the name of ○○○ Bank (joint project account), the rental contract, the contract document, the current status of the contract cost attempted, the lease contract, the contract document, the housing lease and management contract, the letter of request for the transfer of ownership by the occupant, the letter of request for the payment of the loan, the letter of request for the change of the contract for the sale of real estate, the letter of request for the payment of each contract for the joint project execution, the letter of request for each change in the business execution agreement, the letter of payment of the office 20.

[209Gohap1503]

1. The defendant's oral statement in court;

1. Statement of the police suspect interrogation protocol against the accused;

1. Each statement made by the police on Nonindicted 23

1. Each statement of Nonindicted 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, and 37

Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356 and 355(1) of the Criminal Act [Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 356 and Article 355(1) of the Criminal Act [Article 42 of the former Criminal Act (wholly amended by Act No. 10259 of Apr. 15, 2010), the maximum of statutory penalty shall be 15 years of imprisonment prescribed by the main sentence of Article 42 of the Criminal Act (wholly amended by Act No. 10259 of Apr. 15, 201)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes with punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) with the largest punishment];

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following circumstances considered in favor of the accused among the reasons for sentencing)

On the other hand, the Defendant’s crime of this case is embezzlement of money in custody of Nonindicted Co. 1 and Nonindicted Co. 2’s subsidiaries, and the actual amount of damages can be determined only when the settlement of accounts between Nonindicted Co. 1 and Nonindicted Co. 2 should be completed. In light of the fact that Nonindicted Co. 1 would have been distributed 5% of profits in the agreement on the execution of joint business in this case, the entire amount of the embezzlement stated in the judgment cannot be considered as actual amount of damages, the Defendant is only a person before the suspension of execution on one occasion due to the violation of the Foreign Exchange Control Act in 1997, and there is no previous error, and there is no previous error, and the Defendant appears to have failed to actually retain profits from the crime of this case due to the failure of the business in this case and the dishonor of Nonindicted Co. 1 and Nonindicted Co. 11.

In addition to the above circumstances, the sentencing conditions shown in the argument of this case, such as the defendant's age, character, conduct and family relation, are considered and the defendant is sentenced to the same sentence as the disposition.

Of the facts charged in the instant case’s occupational embezzlement against the Defendant, the summary of the part other than the part found guilty as above is as follows: “ Nonindicted Co. 1 and Nonindicted Co. 2 had the status of promoting the business through mutual cooperation as joint business operators of the instant business, and the Defendant, as the representative director of the said Nonindicted Co. 1, has a duty to deposit and manage various incomes, such as the sale price, acquired from the instant business, which is a joint business business, into the joint business account. However, the Defendant did not arbitrarily receive 30 million won from Nonindicted 3 on May 24, 2004, from Nonindicted Co. 5 on July 8, 2005, KRW 187.2 million from Nonindicted Co. 5 on July 8, 2005, and KRW 1884 million from Nonindicted Co. 6 on July 8, 2005, and KRW 98 million from Jan. 7, 2006 to the joint business account and did not deposit it into the said joint business account.”

However, as seen in Section A.3 of the above Reasons for Appeal, it is difficult to believe that each of the third prosecutor's protocol of interrogation, deposit statement (Evidence No. 492 pages), and each receipt (Evidence No. 507 pages, 510 pages, 512 pages) against the defendant as shown by the defendant that he was received from Nonindicted 3, 5, 6, and 7 on the above sum, and the evidence submitted by the prosecutor alone is insufficient to recognize it. Since there is no other evidence to acknowledge it, this part of the facts charged falls under the case where there is no evidence of crime, and thus, is not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as the defendant found the defendant guilty of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) in relation to the crime of comprehensive crimes, the judgment of innocence shall not be rendered separately.

2. Violation of the Control of Illegal Check Control Act; and

The summary of violation of the Illegal Check Control Act among the facts charged in this case against the defendant is as stated in Section 2.1 (b) of the above grounds for appeal. As seen in Section 2.4 (b) of the above grounds for appeal, the evidence alone submitted by the prosecutor is insufficient to recognize the fact that the defendant submitted a check accident report as stated in the facts charged, and there is no other evidence to acknowledge it. Thus, this part of the facts charged constitutes a case where there is no evidence to prove the facts charged, and thus, it is not guilty under the latter part of Article 325

[Attachment]

Judges Kim Sang-chul (Presiding Judge)