(영문) 서울중앙지방법원 2014.5.9. 선고 2013고합557 판결

beta

특정경제범죄가중처벌등에관한법률위반(횡령)

Cases

2013Gohap557 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

Defendant

Prosecutor

Main commercial (prosecutions) and Kim Jong-Hun (Trial)

Defense Counsel

Attorney B,C

Imposition of Judgment

May 9, 2014

Text

A defendant shall be punished by imprisonment for two years.

Reasons

Criminal History Office

around January 20, 2010, the Defendant entered the E Co., Ltd. (hereinafter referred to as the “E”) located in Geumcheon-gu Seoul Metropolitan Government, and worked as the head of the model project team from December 1, 201 to December 201, and took overall charge of the duties of the model project team.

1. Occupational embezzlements in relation to the F's false tax invoice;

On February 2, 2012, the Defendant obtained permission from G operator of “F”, a business partner of “F,” who is the business partner of “F,” and tried to prepare for expenses for activities and operating expenses in cash of the CRC. This would pay 10% of value-added tax, so the Defendant requested F to issue a false tax invoice from G by requesting “F to prepare a false tax invoice in its name.”

The Defendant received a false tax invoice from G on February 20, 2012 that “F supplied KRW 7,200,000,000, such as automobile key, to E” and remitted KRW 7,200,000 to H account in F’s H account, and then returned KRW 5,500,000 to the account in the name of the Defendant on February 27, 2012, and consumed it for personal use around that time while working for E.

In addition, from around that time to September 17, 2012, the Defendant returned the sum of KRW 137,745,200 from G to the account in the name of the Defendant in the same way over 22 occasions, as indicated in the attached Table of Crimes (1) from around that time, and then embezzled KRW 14,745,200,00 in total for cash and check over two occasions, and embezzled the sum of KRW 14,745,200 for personal use around that time while he was on business custody for E.

2. Business embezzlement of goods purchased from four companies, such as I;

Around June 27, 2012, the Defendant purchased clothing equivalent to KRW 4,100,000 from I and used it for the personal purpose for E, and embezzled it for the personal purpose around that time while the Defendant used it for the personal purpose from January 19, 2012 to June 27, 2012, as indicated in attached Table No. 13,226,006, total purchase amount of eight times as shown in attached Table No. 13,226,00, and used it for E.

3. Occupational embezzlements related to the input of false electronic data;

A. On January 3, 2011, the Defendant embezzled the goods worth KRW 288,824,820 in total of the normal wholesale prices of KRW 288,820 by using them for personal purposes around that time, as indicated in the “the details of embezzlement planned to sell them to K” from around that time to December 31, 2012, as if he/she released 10,000 won per unit of K to K for personal purposes, while he/she kept two J-2 for business purposes for E.

B. Around October 4, 2012, the Defendant, while carrying one L1 on business for E, has falsified computerized data and used them for personal purposes as if they were shipped into M 250 won, and embezzled them by using goods equivalent to KRW 128,217,880 in total of the normal wholesale prices for personal purposes over 33 times from around that time to November 23, 2012, as indicated in the [Attachment] Embezzlement.

C. Around February 29, 2012, the Defendant embezzled goods worth KRW 6,301,200, total of the normal wholesale prices of KRW 6,301,200 from around 20 to July 30, 2012, as indicated in the “the embezzlement details raised by selling in attached Form 0” as if he/she released 800 won as if he/she were released from 80 won for personal purposes while he/she had been in custody for business purposes for E, by using them for personal purposes.

D. On March 14, 2011, the Defendant embezzled electronic data of KRW 528,320,00 in total of the normal wholesale prices for 18 occasions by using them for personal purposes, as indicated in “the details of embezzlement planned to be sold in attached Form F” from around that time to March 12, 2012, as if the Defendant had released 1 P for business purposes, as if they were released F for free, and used them for personal purposes.

E. Around March 16, 2011, the Defendant, while keeping Q 1 for business purposes, used data to enter them falsely and used them for personal purposes as if they were released free of charge to R, and embezzled goods worth KRW 7,564,400 in total of the normal wholesale prices over 215 times, as indicated in the “the description of embezzlement planned to be sold to a person who is presumed to be the team download” from around that time to October 9, 2012.

F. Around January 5, 2011, the Defendant, while keeping one S for business purposes for E, embezzled electronic data to general consumers by using them for personal purposes at around that time, as indicated in the Embezzlement, as if the computerized data was falsely entered and used for personal purposes, from around that time to October 24, 2012, as shown in the Embezzlement, which was derived from the credit card delivery to October 24, 201.

G. On January 5, 2011, the Defendant embezzled 6,467,464 won worth of 62,340 won per unit for U as if 62,340 won per unit of 187,020 won were released falsely, and used them for personal purposes from around that time to August 3, 2012, as indicated in “the details of embezzlement planned to sell to other companies” in attached Form 47 times, as the Defendant used goods worth 6,467,464 won in total for personal purposes around that time.

Accordingly, the Defendant, like the facts charged 1, 2, and 3, embezzled a sum of 599,116,890 won of cash and goods owned by the Victim E for the victim, using them for personal purposes around that time.

Summary of Evidence

1. The defendant's partial statement in the first protocol of trial;

1. Legal statement of witness V;

1. Statement of a witness W, X, and Y in the third protocol of trial;

1. Each statement made by the witness Z, G, AA, and AB in the fourth trial record;

1. The entry of each part of the witness AC, AD, and AE in the sixth trial records;

1. Written statement on the details of W loss;

1. AF-written confirmation;

1. The details of each transaction statement (F), each tax invoice (F), I/AG, AH. AI storage, operation of the K-factory price and false sales, M-factory price and false sales, 0-factory price manipulation and false sales, 0-factory price manipulation and false sales, F-out price and false sales, 0-out price and improper sales, 0-out price and 0-out price, f-out price and f-out price of other companies, the team divers, the omission of delivery of the card, the current status of claims and debts, inquiries about the model inventory, the report on the results of the model inventory inspection (0), the statement of goods purchase, tax invoices, printed out of each AJ website site, e-mail, e-mail (Attachment to AK e-mail), and false delivery, the details of deposit transactions in the name of K, additional embezzlement, the remittance details and statement of funds from AF, the current status of sales on team model management (F-out July 2012);

1. The report of investigation (part of the list of crimes in which each statement of a suspect A and his/her agent W is reflected);

Application of Statutes

1. Article applicable to criminal facts;

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 356 and Article 355 (1) of the Criminal Act [However, the upper limit of the punishment shall be governed by the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010)]

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (see, e.g., Articles 55(1)3 of the Criminal Act)

Judgment on the argument of the defendant and defense counsel

1. As to the F’s occupational embezzlement in relation to the F’s false tax invoice

The defendant and his defense counsel acknowledged that he received the false tax invoice from F and received 144,745,200 won for the remainder of the goods after deducting value-added tax. However, the defendant and his defense counsel asserted to the effect that he did not have the intent of embezzlement since he used most of the above amount as the company's business cost.

However, in full view of the evidence as indicated in the holding, i.e., the following circumstances, i., ① the business director of the victim company: the defendant provided business expenses, such as using the corporation card for business activities and treating it as the expense of the victim company at least two to three times a week; ② the defendant also stated that the defendant was unable to report each of the crimes of this case; ② the defendant also stated that the head of the victim company AB father of the victim company "n't provide funds for activities or visits or visits to the customer," and he stated that the company did not obtain prior approval from the company; ③ the defendant did not submit objective data, such as a receipt verifying that the amount received through the false tax invoice was used as business expenses, ③ The defendant did not provide the funds through the issuance of the falsified tax invoice, and did not use the funds individually (the part claiming that the defendant actually supplied the motor vehicle is included in the charges of this case). < Amended by Presidential Decree No. 23721, Apr. 3, 2012; Presidential Decree No. 2172130, Mar. 121, 2012, 2014>

2. As to the occupational embezzlement of goods purchased from four companies such as I

The defendant and the defense counsel asserted that all the goods purchased by the defendant from four companies, including I, were paid to the participants in the model car competition organized by the victim company, or used for business purposes, such as payment to the team dyna of the victim company, and some of them were stored in the victim company as inventory, and therefore, they did not embezzled the above goods.

However, in full view of all the evidence of the judgment, W, the business director of the victim company, stated that the victim company did not hold a model automobile competition and that W, the victim company did not know the team leader belonging to the victim company, and the defendant did not have been authorized in addition to the purchase cost of tent in the company's publicity at the model automobile competition, ② the victim company's planning team Y, the business director 2 and the victim company did not hold the model automobile competition and the defendant did not request the company to support the model automobile competition, ③ the above Z was stated in the same manner that the defendant did not request the company to do so. However, the above Z is not related to the company, but the outside person, and the defendant was aware that W, as the potential user of the company's goods, the defendant was aware of the fact that W, as the victim company's potential user of the company's goods, the victim company and the victim company concluded a contract with the victim company without compensation, and the defendant did not provide the victim company's exclusive model or its parts to the victim company's players without compensation.

In addition, according to the above Y's statement, since goods claimed by the defendant as being kept in inventory in the victim company can be recognized that they cannot be sold because they are in the trace of personal use after removing stuffs on the defendant's book, they cannot be seen as being kept in inventory in the victim company. Considering all the above circumstances, the defendant's intent of embezzlement can be sufficiently recognized.

3. As to occupational embezzlement in relation to the input of false electronic data

The defendant and his defense counsel asserted that some of the goods mentioned in the facts charged are supplied to the team members belonging to the victim company or used in the model car competition, and that most of them were caused in the course of controlling purchase and sales due to the error in the computer system of the victim company, and that there was a false appearance due to pressure on the business performance of the victim company, and that there was no embezzlement of all the goods described in the facts charged.

However, as seen earlier, the Defendant entered into an exclusive contract with DDR without the victim company's decision-making and arbitrarily offered its goods in the Games, etc. constitutes embezzlement. In other words, the victim company's persons related to the company should obtain approval from the president of the company in order to sell them below wholesale price or to sell them at a discount rate. The Defendant appears to have no other authority to sell them at a discount rate. ② The Defendant sold them at a discount rate of 5% in person with the false goods released by the investigative agency, and the Defendant did not appear to have been able to use the new goods at a discount rate of 5% because of the fact that the Defendant did not actually deposit them with the company's passbook or deliver them to the wholesale market for the purpose of selling them at the request of K, and the reason why the Defendant stated that the Defendant did not use the new goods at a discount rate of 3rd company's digital data storage system without the victim company's error in the quantity of the electronically stored goods at the request of the victim company's company's digital data storage system.

Therefore, the defendant and his defense counsel cannot be accepted.

Reasons for sentencing

1. The scope of punishment by law: Imprisonment with prison labor for not less than one year and six months and seven years and six months;

2. Scope of recommendations according to the sentencing criteria;

[Determination of Punishment] At least 50 million won, and less than 5 billion won

【Special Convicted Person】

【Determination of Recommendation Area】 Basic Area

[Scope of Recommendation] Two to Five years of imprisonment

3. Determination of sentence: Imprisonment for 2 years; and

In light of the fact that the Defendant, who was in charge of the business of the model business team of the victimized company, received a false tax invoice from the customer and used part of the amount, and sold and used the company's goods individually without the consent of the victimized company, and the nature of the crime is not good, the Defendant attempted to avoid liability without showing a strong contrary attitude as to his criminal act up to this court, the sum of the embezzled amount exceeds KRW 500 million, and there was no particular damage recovery, etc., it is inevitable to sentence sentence equivalent to his liability against the Defendant.

However, since the defendant made efforts for the business of the victim's model and business team and caused some of the crimes of this case, the defendant has no criminal record or suspended execution for the same reason, and the defendant has no criminal record or suspended execution for the same reason, and other various circumstances which form the conditions for sentencing specified in the arguments, such as the defendant's age, character and conduct, and family relation, shall be determined as ordered by the sentence.

Judges

The presiding judge, the senior judge;

Judges Yang Sung-tae

Judges Shin Young-ju

Attached Form

A person shall be appointed.

참조조문

-특정경제범죄 가중처벌 등에 관한 법률

-특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항 제2호