2016 initially 5408 Application for a compensation order

2. B

Attorney D

Law Firm E (Defendant A)

[Defendant-Appellee]

Attorney G (Defendant B)

J, K, L

The summary of this decision shall be published.

An application filed by an applicant for compensation shall be dismissed.

From March 30, 2016 to October 31, 2016, Defendants worked in M&A Co., Ltd. (hereinafter referred to as “instant company”), which is a KOSDAQ-listed company, and Defendant A took overall control of the fund execution, etc. of the said company as the chief executive officer, and Defendant B was the auditor.

During the process of performing the duties of the above company, the Defendants came to know that the victim H(39 years of age), the representative director of the above company, embezzled the company funds. Accordingly, around September 2016, Defendant A submitted a petition to the Seoul Southern District Prosecutors' Office to the effect that he would investigate the victim’s embezzlement charge. After that, the Defendants came to know of the above petition, the victim’s location was weak, and the investment inducement plan of KRW 10 billion, which had been progress with the victim, was decided to retire from the above company. On October 27, 2016, the Defendants offered 1000 won overseas and 10000 won to the prosecutor’s office to the effect that the victim would have received interest from the investors, and submitted 200 billion won to the prosecutor’s office for the convenience of 10 billion won and 100 billion won to the victim’s 200,000 won.

However, on October 24, 2016, the victim first asked the defendants to cancel the above petition. However, when the defendants demanded the defendants to give money first and the victim was unable to receive KRW 2 billion from the victim, the defendants first asked the victim to find out the data arranged by 1.6 billion in cash by the telephone and mobile phone text message, and then asked 1.6 billion in cash to the Korea Exchange without promptly preparing the data prepared by us to the effect that "I will immediately get off the company of this case 1.6 billion won," and the victim would not respond to this, and the victim would not respond to this, and then sent a cell phone text message to the victim. On the following day, the defendant A requested the Korea Exchange to find the victim contact with the victim and submitted a copy of the report to the Seoul Southern District Prosecutors' Office to the Seoul Southern District Prosecutors' Office.

On October 25, 2016, the Korea Exchange received the aforementioned report from the Defendants, and demanded the instant company to inquire about the factual facts and specific contents of the embezzlement theory and the fictitious payment theory of the current representative director. As a result, the stock price of the said company has fallen by 29.98% compared to the preceding day, and the victim received a claim from the shareholders, the said company promised the Defendants to take drinking fright to incur additional damages due to the Defendants at the time of the closure of the said technical presentation meeting, and to give KRW 1.6 billion to the Defendants.

Accordingly, at around 22:21 October 25, 2016, the Defendants agreed to revoke the above authenticity submitted to the victim to the Seoul Southern District Prosecutors' Office at the first floor of the hotel "R" in Seoul Jung-gu Q, Seoul, and received a total of 1.6 billion won of the 16 billion won cashier's checks issued by the victim at the IBK Bank's face value (S, T-U).

As a result, the Defendants conspired in collusion to receive property by causing the victim.

2. Summary of the Defendants and the defense counsel’s assertion

A. The defendants received the money from the victim as retirement allowance or consolation money, and the defendants did not have committed an unlawful act against the victim or threatened the victim to interfere with the technological demonstration, and there is no fact that the defendants demanded the money in return for the withdrawal of the petition.

B. Even if the defendants received the above money in return for the withdrawal of the petition related to the victim and the company of this case, there was no mentioning at all about the technical demonstration during the negotiation process related to the payment of money. Thus, as stated in the facts charged, if the victim thought that the defendants would interfere with the technological demonstration and paid the above money, it cannot be deemed that there was a causal relationship between the defendants' intimidation and the payment of the money by the victim's appearance.

3. Determination

(a) Relevant legal principles;

Intimidation as a means of the crime of threat refers to the threat of harm and injury that is likely to be hot enough to restrict the freedom of decision-making or interfere with the freedom of decision-making. A threat of harm and injury is sufficient if it does not necessarily require the method of specification, and it is sufficient to have the other party recognize that it would cause harm and injury to the other party by language or dynamic. Even though such a threat is used as a means of the realization of legitimate right, if the method of the realization of right exceeds the permissible extent and permissible by social norms even if it is used as a means of the realization of legitimate right, it shall be deemed that the implementation of the crime of threat is commenced. Whether an act specifically exceeds the permissible extent and permissible by social norms should be determined by comprehensively taking into account the subjective and objective aspects of the act, namely, the purpose and selected means (see, e.g., Supreme Court Decision 94Do2422, Mar. 10, 195);

B. In the instant case

1) According to each evidence duly adopted and investigated by this Court, the following circumstances are recognized.

① From March 30, 2016 to October 26, 2016, Defendant A worked as the chief executive officer of the instant company’s overall management of the company’s funds. From March 30, 2016 to July 6, 2016, Defendant B served as the auditor of the instant company; and from July 6, 2016 to October 26, 2016, the Defendants were in a position to specifically understand the actual status of operation and funding of the instant company.

② In light of the fact that there is a draft agreement drawn up by the Defendant and the injured party, and the text of the agreement was amended at the victim’s request, it is difficult to deem that the agreement was written only at the unilateral request of either the Defendants or the injured party, and it is reasonable to deem that it was written by the agreement. Indeed, Defendant B is reasonable to deem that it was written by the agreement to be written by one of the parties. In fact, Defendant B divided conversations on the amount and timing of payment with the injured party through text messages on the amount and timing of payment of the amount of money to be paid to the Defendants through text messages, and “the victim would not be paid or would not have caused any refusal to do so.”

③ The facts charged of the instant case is based on the premise that “the Defendants: (a) aware of the fact that the victim would have received interest from investors by holding a technology demonstration meeting on October 27, 2016, thereby raising the share price of the said company; and (b) provided that if the victim’s suspicion of embezzlement, the victim would have conspired to take money out from the victim by using the victim’s reliance on the difficulty,” but there is no evidence to support the fact that the Defendants, while demanding money from the victim, had a direct statement to the effect that the Defendants would interfere with the said technology demonstration meeting.

However, it can be seen that the above payment is related to the successful holding of the technology presentation conference because the victim's statement that "the victim is going to prevent the company's external failure in the process of paying the amount to the defendants." However, in light of the overall progress of the payment of money and the conclusion of the agreement, it is merely merely included in the agreement at the victim's unilateral request, and it is difficult to see that the defendants received the above money in return for guaranteeing the successful holding of the technology presentation conference.

4 If the Defendants comprehensively consider the contents of conversation and text messages divided with the victims in relation to the payment of the instant money, it appears that the victim first intended to pay KRW 1.1 billion for each of the Defendant, but again changed to 1.1 billion for each of the Defendant, and that each of the Defendant was demanded to conclude 800 million won after the lapse of October 24, 2016, which was the initial payment date, which was the initial payment date. As the victim did not pay the said payment date originally promised, the Defendants submitted data related to the petition to the Korea Exchange. As the victim did not pay the said payment date, the Defendants submitted the documents related to the complaint to the Korea Exchange, and the Defendant A, who was the victim to pay the money again, could not receive the money related to the agreement because the victim had already delivered the materials related to the petition, which was the case that the victim first received to the prosecution.

In the end, the Defendants were to receive money from the victim. As such, it is reasonable to view that the amount, timing, etc. of the above money appears to have been determined by the victim’s intent in reflecting the victim’s demands, and the Defendants merely demanded the victim to pay retirement allowances and consolation money according to the terms of the initial agreement.

⑤ The Defendants, at the Seoul Southern District Prosecutors’ Office and the Korea Exchange with respect to the victims and the instant company, are actually prosecuted and tried by the victims (Seoul Southern District Court 2017Dahap39), and there was no development of satellite Internet communications technology and products that could enable the victims to actually use the network up to V. However, even though the Defendants did not have the same technology as above, they did so, while pursuing the business of supplying the said technology and products in Korea and abroad, such as South and North East East East Asia, and Asia, with the same appearance as being promoting the business of supplying the said technology and products, and with the intent of attracting investments, they did not raise funds by raising the prices of the instant company and embezzled the company funds for personal purposes for personal purposes.”

(6) The facts charged of the instant case is premised on the fact that the Defendants submitted data related to the petition to the Korea Exchange to the victim to the effect that they would delisting the instant company. However, as seen earlier, when the Defendants received KRW 1.6 billion from the victim, according to the logic premised on the aforementioned facts charged after the Defendants already submitted the authenticity data to the Korea Exchange, it is difficult to readily obtain the motive that the Defendants would have received money from the victim in light of the empirical rule, since the Defendants had already provided the victim with the means of threatening the victim, despite the occurrence of the consequence of the Defendants’ act of inducing the victim’s intimidation.

7) The amount that the Defendants received from the victim is considerably large when compared with the amount that the Defendants received from the company at the time of the instant case. However, as premised on the facts charged in the instant case, the Defendants promoted the management right acquisition agreement with W in order to attract funds of ten billion won to the company, as the contract was concluded with W in order to retire from the company of this case. If the contract was concluded normally, it is difficult to view that the Defendants exceeded the reasonable scope excessively excessive calculation, and it is reasonable to view that the above amount was derived from the smooth process of agreement between the Defendants and the victim. Moreover, as seen earlier, it is difficult for the victim to first pay the amount to the victim, not the company of this case, in full or in full, because it is difficult for the victim to do so, and the contract was concluded with W in a separate manner.

(8) While the Defendants were moving to the Korea Exchange on October 24, 2016, the Defendants were deemed to have sent text messages demanding the payment of money to the victims on several occasions to the Korea Exchange and submitted data related to the petition to the Korea Exchange. However, this appears to have continuously refused the payment of money when requesting the withdrawal of the petition prior to the payment of money, unlike the first agreed on October 24, 2016, where the victims promised to pay the money first, and the method of sending text messages on several occasions is difficult to view that the Defendants threatened the victims.

9) Furthermore, Defendant A had been working for a bank for about 10 years after graduating from the Seoul National University Department of Law, and had been working for real estate implementation projects. Defendant B acquired the U.S. Certified public accountant qualification after graduating from the Korea Naval Academy, and had been in charge of business administration, planning, and financial affairs at various companies for about 10 years or more, appears to have been able to sufficiently recognize that the Defendants’ act of threatening the victim and receiving money can constitute a crime of robbery. Nevertheless, the Defendants demanded the victim to pay money by using the method of data, such as telephone conversations and text messages, and received the above money as a tracking check for the payment and use of money, and the Defendants would not be able to secure the contents of this case’s text messages from the victim’s first time to the effect that the Defendants would not be able to carry out an investigation into the victim’s first time to the end of this case’s order, even if the Defendants did not know the victim’s first time to the end of this case’s order.

2) In light of the aforementioned circumstances and the legal principles as seen earlier, demanding payment of money to the victim by telephone conversations, text message, etc. is a legitimate exercise of the right to receive retirement allowances and consolation money to be paid pursuant to an agreement with the victim. Even if the Defendants were to make a speech or sent text message that contains somewhat threatening contents while exercising such legitimate right, it is difficult to view that the Defendants’ demand to pay money constitutes intimidation to the extent acceptable by social norms, which is the means of the crime of conflict.

3) Furthermore, the victim made a written agreement while paying KRW 1.6 billion to the Defendants. As seen earlier, the content of the said agreement was amended by inserting the phrase that the Defendants and the victims wished to do so while amending the draft written by the Defendants and the victims. In full view of the fact that part of the content is entirely reflected in the requirements of the victims, and that the Defendants are not required to engage in any conduct contrary to the interests of the company in the future, the victim made the said agreement while paying money by intimidation to the Defendants.

It is difficult to see it.

Rather, the victim demanded the defendants to initialize Handphones, and the defendants' handphones were all initial in response to the defendants' request. On the contrary, the victim voluntarily recorded conversations between the defendants Eul and the defendant Eul on October 21, 2016 when negotiating related to the payment of the money of this case and then sent the above recording file to the Stenographic Office on October 24, 2016, before paying the amount to the defendants. After the victim's progress in this case, this case was followed by the victim's statement that "X was suffering from the victim's wrong," and this case's progress in this case's progress and this case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's defendant's case's case's case's case's case's case's case's case's company operation.

4) Ultimately, it is reasonable to deem that the victim paid the above money to the Defendants at a arbitrary option, and the evidence submitted by the prosecutor alone cannot be deemed to have received the money by threatening the victims, and there is no other evidence to acknowledge it.

4. Conclusion

Thus, since all of the facts charged in this case constitute a case where there is no proof of crime, the judgment of innocence is rendered under the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment of innocence is announced under Article 58 (2) of the Criminal Act, and the application for compensation by the applicant for compensation is dismissed under Article 32 (1) 2 of the Act on Special Cases Concerning Promotion, etc. of

Judges Shin Sung-sung

Judges Kim Gin-ho