Violation of the Act on the Punishment, etc. of Economic Crimes (Misappropriation partially recognized)

Name of crime: Crime of Occupational Breach of Trust, Specific Economic Crimes Aggravated Punishment, etc.

violation of Korean law (Embezzlement), the Financial Investment Services and Capital Markets Act

anti-, fabrication of private documents, display of a falsified document, violation of the Punishment of Tax Evaders Act;

Violation of Commercial Act

Attorney GK, FI, GL, GM, GN

2. FK;

3. FL;

4. FM;

2017 early 671, 672, 673, 674, 2018 early 44

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

(1) Of the facts charged, the summary of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) due to the acquisition of the shares of AI Co., Ltd. (hereinafter referred to as "AI"), among the facts charged, is that the defendant, the real owner of the victim G Co., Ltd. (hereinafter referred to as "G") was merely 6,600 won in the account book of the non-listed shares held by AJ Co., Ltd. (hereinafter referred to as "AJ"), but the value of the 70,000 shares (hereinafter referred to as "the shares of this case") is merely 6,605,000 won in violation of his/her duty, thereby having G take over the shares of this case in KRW 4.3 billion around November 2012, by obtaining 4.3 billion won in consideration of the difference between the above acceptance price and the above account book value and causing damage to G.

The lower court determined that the Defendant’s act of acquiring the shares constitutes a breach of trust and the Defendant’s intent is recognized, and that the value on the above book cannot be recognized as an objective exchange value of the shares, and that there is no normal example of transaction that properly reflects the exchange value, so the Defendant did not prove the value of the shares to the extent that the value of the shares was not proven on the grounds of the crime under Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes. However, the lower court found the Defendant not guilty of the facts that the value of the shares was not less than 4.3 billion won, the value of the shares was proven

Examining the evidence duly adopted and examined by the lower court and the first instance court, such determination by the lower court is justifiable. In so doing, the lower court did not err by misapprehending the legal doctrine regarding the requirements for establishing a crime of breach of trust or omitting judgment. Since the lower court’s aforementioned determination is justifiable, the allegation in the grounds of appeal on the conjunctive judgment of the lower court on the premise that the instant shares are valuable.

(2) As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of trust) regarding the purchase price for the electronic voting machine among the facts charged in this part, the argument that the lower court erred by misunderstanding of facts or misunderstanding of legal principles as to the crime list No. 2 of the attached Table 2 of the lower judgment is erroneous, it shall not be a legitimate ground for appeal, as it is asserted only in the final appeal that the Defendant either

2. As to the violation of the Financial Investment Services and Capital Markets Act due to the use of undisclosed important information

(1) The lower court reversed the first instance judgment that acquitted the Defendant of this part of the facts charged and found the Defendant guilty on the following grounds.

The information that “the FY Accounting Corporation, an external auditor of G, does not express its opinion” as a result of the audit of the financial statements of G 37 period (from January 1, 2012 to December 31, 2012), was fully embodied at the time when the Defendant offered BI to BI as security of G shares. The Defendant, as a real owner of G, obtained a loan from BI after having become aware of the aforementioned undisclosed information related to his/her duties, and provided BI as security and made BI sell the entire shares, thereby avoiding losses equivalent to the sales value of the said shares and obtaining unfair profits equivalent to the same amount.

(2) Examining the evidence duly adopted and examined by the lower court and the first instance court, such determination by the lower court is justifiable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the relevant legal doctrine

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-tae

Chief Justice Cho Jae-hee

Justices Kim Jae-in