Defendants shall be punished by imprisonment for two years.

However, the execution of each of the above punishment against the Defendants shall be suspended for three years from the date this judgment became final and conclusive.

A. Defendant 1

1) misunderstanding of facts or misapprehension of legal principles

① Defendant 1 entered into a security trust agreement with Nonindicted Co. 2 (hereinafter “Nonindicted Co. 2 trust company”) on the instant land (hereinafter “instant land”) with the first beneficiary. However, as to the instant land (hereinafter “instant building”), Defendant 1 was only obligated to enter into an additional trust agreement after completion of the construction of the instant building (hereinafter “instant building”), it cannot be deemed that Defendant 1 was in the position of a person who administers the affairs of the Victim’s imprisonment without labor, as to the instant building at the time of change of the owner’s name that was not completed.

② Defendant 1’s alteration of the name of the owner to Defendant 2 is solely to minimize the damage of the persons concerned including the victim’s safe, and there was no intention of breach of trust.

2) Unreasonable sentencing

Imprisonment with labor (three years of imprisonment) imposed on Defendant 1 is too unreasonable.

B. Defendant 2

1) misunderstanding of facts or misapprehension of legal principles

① Defendant 1 is merely obligated to conclude an additional trust contract, which is one’s own business, with respect to the instant building for the same reason as that of the above A. 1, and is not a person handling affairs of the victim’s safe office.

② Defendant 1’s sole method of completion of the instant building was to change the name of the owner of the instant building and borrow funds from Defendant 2. From the standpoint of the victim’s safe bank, Defendant 1 is entitled to receive loans from the proceeds of sale, which should be completed. Thus, Defendant 1’s change of the name of the owner of the instant building to Defendant 2 does not constitute breach of trust.

③ Even if Defendant 1’s crime of breach of trust is established, Defendant 2 did not know that Defendant 1 should additionally trust the instant building for the victim’s safe depository, and Defendant 2 did not actively participate in Defendant 1’s act of breach of trust. Thus, Defendant 2 does not constitute a co-principal offense of breach of trust.

④ The instant building was built with Defendant 2’s funds, and the change of the owner’s name was a prerequisite for Defendant 2’s financing. However, since the decrease in the property value of Defendant’s credit at the time of the discontinuance of the new construction of the instant building was realized, there was no relationship between the change of the owner’s name and the occurrence of damage, and even if Defendant 2 suffered damage from Defendant 2’s domestic affairs’s credit cooperative, it is merely KRW 220 million invested in the instant building until Defendant 2 was funded.

2) Unreasonable sentencing

Imprisonment with labor (three years of imprisonment) imposed on Defendant 2 is too unreasonable.

2. Determination

A. As to the assertion of mistake of facts and misapprehension of legal principles

1) Whether Defendant 1 was in the position of a person administering another’s business

A) Based on its reasoning, the lower court determined as follows: (a) Defendant 1 took out a loan of KRW 1 billion from the victim’s safe to raise funds for the construction of the instant building; (b) concluded a security trust agreement and a fund management agency agreement; and accordingly, (c) completed the registration of ownership preservation on the instant building that is scheduled to be completed in the future for additional security against the loan obligation to the victim’s safe; and (d) completed the registration of trust with the victim’s safe as the first beneficiary, thereby cooperating in preserving the property of the victim’s safe; and (e)

B) In light of the circumstances that the lower court and the trial court duly adopted and examined based on the evidence duly admitted and examined, the lower court’s aforementioned determination is justifiable, and there was no error as otherwise alleged by the Defendants.

In other words, Defendant 1, Nonindicted Co. 3 (hereinafter “Nonindicted Co. 3”), Nonindicted Co. 2, and Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) entered into a fund management agency contract, which had been concluded between the victims, provide that “The completed building shall immediately complete registration of ownership transfer under the supervision of Nonindicted Co. 2, trust company, and shall enter into an additional trust agreement (such as security trust or disposal trust) with Nonindicted Co. 2 as the trustee” (Article 17 of the above agreement, evidence No. 62 pages). In light of the fact that only Defendant 1 entered into an additional trust agreement on the building of this case with Nonindicted Co. 2, which was the first trust company at the time, on the date of the conclusion of the above agreement with Nonindicted Co. 1, the duty of ownership transfer registration of this case, which was the first time, shall not be deemed to have been trusted by Nonindicted Co. 1’s witness’s statement in the lower judgment, which was the first time before the completion of the construction of the instant trust agreement, and the right to use of the above real estate shall not be deemed to have been established.

2) Whether Defendant 1 had an intentional act in breach of trust

A) On the grounds indicated in its reasoning, the lower court determined as follows: (a) based on the following: (a) details of the security trust contract and the fund management agent contract; (b) the motive, purpose, intent, and the necessity of the owner’s transfer of the instant building unilaterally to Defendant 2 as security without undergoing consultation procedures, such as seeking prior consent or consent from the victim’s safe; (c) the background leading up to the change of the owner’s name; (d) the Defendants’ mutual relationship; (e) their efforts and attitudes for their own financing; (e) the degree of progress at the time of the discontinuance of construction by Nonindicted Co. 5 (hereinafter “Nonindicted Co. 5”); (e) the rate of sale and lease; (e) the situation at the time of excess of the obligation at the time; (e) probability of incurring damages and acquiring profits; and (e) the H Corporation, the seller of the instant land, filed a civil petition against the change of the owner’s name; and (e) it is reasonable to deem that Defendant 1 committed

B) In light of the circumstances, such as the reasoning of the lower court’s judgment duly admitted and examined, the lower court’s aforementioned determination is justifiable, and there was no error as otherwise alleged by Defendant 1.

3) Whether Defendant 2’s act of changing the name of the owner constitutes an act of breach of trust

A) Based on its reasoning, the lower court determined as follows: (a) Defendant 1 changed the name of the owner of the instant building to Defendant 2; (b) caused the risk of property damage, which would result in the loss of the victim’s right to benefit with respect to the building as security; and (c) it was reasonable and reasonable to complete the construction under the circumstances in which such act was difficult to continue the construction due to financial difficulties; and (d) it was the best possible measure to complete the construction.

B) In light of the circumstances, such as the reasoning of the lower court’s judgment duly admitted and examined, the lower court’s aforementioned determination is justifiable, and there was no error as otherwise alleged by Defendant 2.

4) Whether Defendant 2 actively participated

A) On the grounds indicated in its reasoning, the lower court, with knowledge of the fact that Defendant 2’s instant building was subject to an additional trust to guarantee the victim’s preferential right to benefit, and completed the registration under one’s own name, determined that Defendant 1 constitutes a co-principal offense of breach of trust, on the ground that he actively participated in the process of Defendant 1’s breach of trust, taking advantage of the fact that Defendant 1 violated the duty of additional security trust, rather than the acquisition of profits by taking advantage of Defendant 1’s act of breach of trust, and taking advantage of Defendant 1’s preferential

B) In light of the following circumstances, such as the reasoning of the lower court’s judgment, which is duly admitted and investigated by the lower court and the party, the lower court’s aforementioned determination is justifiable, and there was no error as alleged by Defendant 2.

① As Nonindicted Co. 3 renounced construction on November 30, 201, Defendant 1 entered into a contract for the construction of the remainder of the building with Nonindicted Co. 5 on December 8, 2011, and Defendant 2 was present at the place of entering into the said contract, as the lower court properly states at the time, on the grounds that it was the actual management owner of Nonindicted Co. 5.

In the above contract agreement, Defendant 1, Nonindicted Co. 5, and Nonindicted Co. 2, a trust company, in consultation with each other, stipulate that all revenues generated from the sale or lease of the land in the course of construction shall be preferentially paid at the cost of construction except for the public charges for the system (Article 2 of the special agreement, No. 230 pages of evidence record), and Defendant 2 was aware of the fact that the trust agreement on the land in this case was already concluded at the time.

In this regard, Defendant 1 stated to the investigative agency that “it was aware that the real estate of the building that was newly built by Defendant 2 was entrusted to another person. There was no need to say any unfavorable content in lending money due to Defendant 2’s position to lend the construction cost (Evidence No. 389, 390 pages).” On the other hand, in the court of original instance, Defendant 1’s statement to the effect that “Defendant 2 was directly examined the trust contract form and entered into a contract,” and it is difficult to readily make any statement because it is not consistent.”

However, as a person who participated in the above contract and was in charge of sale of the building in this case after the conclusion of the contract, Nonindicted 6 stated in the court below that “Defendant 2 shall decide the terms of the contract.” In light of the above statements, Defendant 2 appears to have led the above contract process. As seen earlier, Defendant 2 was aware of the trust fact of the land at the time of the above contract, and employees of Nonindicted 2 trust company at the time of the above contract were present (the trial record 651 pages). Defendant 2 appears to have confirmed the trust contract of the land of this case or confirmed the facts of the contract of this case to employees of the trust company prior to the completion of the contract of this case after the completion of the contract of this case, it appears that Defendant 1, 3, trust company and victim 2 were not entitled to receive the payment of construction expenses prior to the completion of the contract of this case, and Defendant 2 would not have been able to receive the payment of construction expenses prior to the completion of the contract of this case before the completion of the contract of this case.

② Nonindicted 7, who was in charge of the above trust contract as an employee of Nonindicted 2’s trust company, stated in the court below that “At the time of entering into the second amendment contract of the Fund Management Agent Contract (hereinafter “the second amendment contract”), Nonindicted 7, who was in charge of the above trust contract, had a seal after reviewing Defendant 2’s Na, the president of the affiliate company, instead of Nonindicted 8, who is the contracting party, up to one hour. At the time of entering into the contract, Nonindicted 7 had shown that it would bring about land security trust contract or the Fund Management Agent Contract, showing its contents, and explain its contents to Defendant 2, and made an additional trust of the instant building.” Although Nonindicted 7 had revised two times the date of entering into the contract, the statement that Defendant 2, the most essential content of the instant charges, was present at the time of entering into the second amendment contract, and was consistently detailed and detailed as to the contents of conversation divided at the time of entering into the contract.”

Furthermore, with respect to the reasons why Nonindicted 7 made a statement by amending two times the date of conclusion of the contract, Nonindicted 7 made the first testimony, and Nonindicted 7 made a statement that “The date of draft of the second amendment contract was February 14, 2012, and was February 14, 2012” (the date of draft of the second amendment contract). After that, Nonindicted 7 again appeared in the court of original judgment on February 15, 2012, and again made a second amendment on February 16, 2012, the second amendment contract was concluded on February 16, 2012 with Nonindicted 5’s office’s seal affixed to Nonindicted 20, the second amendment of the contract was made on February 16, 2012, and the second amendment was made on February 16, 2012 with the victim’s second amendment date (the date of February 17, 2012, the second amendment order was made on February 25, 2012).

In light of the circumstances leading up to the correction of the statement, it appears that the statement that entered into the second amendment contract on February 16, 2012 in the team minutes refers to the date on which the conclusion of the second amendment contract is completed finally with the seal of the victim’s safe office. It is reasonable to view that Defendant 1 and Defendant 2 reviewed the second amendment contract at the office of Nonindicted Co. 5 and affixed the second amendment contract on February 15, 2012. Nonindicted Co. 7 took note of “the date of concluding the second amendment contract” recorded in the team minutes as “the date of concluding the second amendment contract was affixed to the office of Nonindicted Co. 5, with the seal affixed by the Defendants.” Nonindicted Co. 7 stated “the date of signing the second amendment contract” as “the date of signing the second amendment contract on February 16, 2012, which was later written by examining relevant documents, and thereby, it was corrected as February 15, 2012.

From the time of the first testimony, the statement was not made by his/her accurate memory, but by reporting documents. When the date was corrected, the reason for reversal was presented along with the evidentiary materials. This only appears to be the accuracy of the statement to be referring to objective data when considering the limitation of memory following the passage of time.

On February 15, 2012, Defendant 2, along with Nonindicted 10, Nonindicted 10, Nonindicted 2, Nonindicted 10, Nonindicted 2, Nonindicted 10, Nonindicted 10, Nonindicted 2, Nonindicted 10, Nonindicted 10, Nonindicted 2, and Nonindicted 10, Nonindicted 2, Nonindicted 10, Nonindicted 10, Nonindicted 2, and Nonindicted 10, Nonindicted 2, Nonindicted 10, Nonindicted 10, and Nonindicted 10, Nonindicted 2, Nonindicted 10, Nonindicted 10, Nonindicted 200, Nonindicted 10, Nonindicted 10, Nonindicted 200, Nonindicted 10, and Nonindicted 20, Nonindicted 10, Nonindicted 10, Nonindicted 200, and Nonindicted 10, Nonindicted 200, Nonindicted 10, Nonindicted 10, and Nonindicted 10, Nonindicted 200, 200, Nonindicted 110, 200, 200.

Ultimately, Nonindicted 7’s statement as seen earlier is reliable, and there is insufficient evidence of Defendant 2’s submission to impeachment.

(v)whether the owner’s change in name and the causal relationship and scope of the damage;

The damage of the victim’s safe, referred to in the facts charged of this case, is the damage that prevents the acquisition of preferential right to benefit from the building of this case. This is, regardless of the real possibility of the loan claim, Defendant 2’s completion of registration of preservation of ownership on the building of this case through the change of the owner’s name, and considering the fact that the invested construction cost exceeds KRW 2 billion, the value of the building of this case is deemed to exceed KRW 1 billion. Therefore, regardless of the number of the invested funds until the suspension of construction work, the amount of damage, regardless of the number of the invested funds until the suspension of construction work, shall be deemed to have exceeded KRW 1 billion, the loan secured by the above preferential right to benefit of this case, which is set in the order of priority

6) Sub-determination

Therefore, the defendants' assertion of mistake of facts and misapprehension of legal principles is without merit.

B. As to the Defendants’ assertion of unfair sentencing

In light of the fact that the Defendants conspired to register the preservation of ownership of the instant building in the future, thereby causing damage to the victim’s safe by preventing the acquisition of preferential right to benefit (1.3 billion won) from the instant building established after completion, and that the victim is a financial institution in charge of ordinary people’s financing and the amount of damage exceeds one billion won when the interest on the instant building exceeds one billion won, it is true that there is a doubt as to whether the Defendants denied the instant crime from the trial to the trial, and therefore, it is true that the Defendants are against the truth.

However, Defendant 1’s completion of the building in this case was important as well as the victim’s safe and the creditors concerned had possibility of expanding damages. As such, Defendant 2 was unable to refuse the request to change the owner’s name. In the case of Defendant 2, the demand of Defendant 1 for change of the name of the previous owner due to the lack of possibility of the sale of the building in this case as expected at the time of the conclusion of the contract was made due to Defendant 2’s failure to facilitate the sale of the building in this case, seems to have been an inevitable measure to avoid the risk of transaction and to protect their own interests. In addition, Defendant 2 was in the first instance trial by fully paying the amount of damages to the victim’s safe and unanimous agreement, and Defendant 2 did not withdraw the victim’s complaint against the Defendants and have been punished. In addition, Defendant 2 was sentenced to a fine for a crime without the same kind of crime, and Defendant 2’s age, family relation, age, criminal records, circumstances, motive, form and circumstances of the crime, etc.

3. Conclusion

Therefore, since the defendants' appeal is well-grounded, the judgment of the court below is reversed pursuant to Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

A. Defendant 1: Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 355(2) and Article 30 of the Criminal Act

B. Defendant 2: Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 355(2) and the main sentence of Article 33 of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Code

1. Suspension of execution;

Article 62 (1) of the Criminal Code

Judges Kim Heung-ung (Presiding Judge)

(1) Regarding Defendant 1-1(a)(1) and Defendant 2-1(b)(1)’s grounds for appeal as described in paragraph (1).

(2) As to Defendant 1-1. A.1)-2

Note 3) As to Defendant 2-1.B.1 (2)

4) According to the investigation report submitted by the prosecutor as reference material at the court below (the other party confirmation report, the trial record 625 through 641 of the trial record), Nonindicted 11 and Nonindicted 12, on February 15, 2012, did not directly evidence the date of Defendant 2’s visit to confirm the specific circumstances, such as the work log, and they went back to the office at the latest due to Nonindicted 11 and Nonindicted 12’s return to the office at the latest. According to the business trip of Nonindicted 11 and Nonindicted 12, Nonindicted 11 appears to have been memoryd on February 10, 2012; on February 13, 2014; on February 15, 2015; on February 16, 2016; on February 21, 2012, Nonindicted 12, on February 14, 2015; and on February 21, 2012, Nonindicted 12, 2017.

5) The facts charged in the instant case, as acknowledged by the lower court, did the Defendants “ despite the opposition to the Defendant’s imprisonment without prison labor.” However, according to the evidence duly adopted and examined by the lower court and the lower court, the Victim’s imprisonment without prison labor was unaware of the fact that the application for change of the name of the owner was filed until the name of the owner of the instant building was changed to Defendant 2, and thus, the facts charged in the instant case should be modified and recognized within the scope consistent with the facts charged