Violation of the Act on the Punishment, etc. of Specific Economic Crimes (Embezzlement partially)

Name of recognized crime: Occupational Embezzlement

[Defendant-Appellee]

except that the execution of the above sentence shall be suspended for four years from the date this judgment became final and conclusive.

In order to order the defendant to provide community service for 200 hours.The charge of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) among the charges in this case is not guilty.

From October 2003, the defendant is a person working as the representative director of the victim B Co., Ltd. (hereinafter referred to as the "victim Co., Ltd.") from October 2003 to the present date, and the victim Co., Ltd. is a subcontractor of C which manufactures automobile trial and supplies parts, etc. necessary to manufacture automobile trial.

1. Business embezzlement under the pretext of the sales proceeds, service expenses, or purchase proceeds of raw materials;

On August 2006, the Defendant made a false accounting as if he had paid service costs or goods to the customer, paid the amount to the borrowed account, such as the wife E, of the staff in charge of accounting management, and then withdrawn the amount in cash or check to F and G, paid it to F and G, or paid the amount in cash or check, after selling the scrap metal of the victim company to F and G, and delivered the sales proceeds to F and G without depositing it into the victim company’s account.

On August 1, 2006, the Defendant, even though having not purchased raw materials from a customer, etc., had D personnel in charge of accounting handle the accounts as if he purchased the raw materials amounting to KRW 20,096,00,00, and then returned the raw materials to the purchaser account, such as E, which is the wife of D, and distributed them to F and G during the course of carrying out business by withdrawing the checks or cash and then distributing them in custody, and then delivered them to F and G from March 10, 2015 by the aforementioned method until March 10, 2015. Accordingly, the Defendant embezzled the amount equivalent to KRW 6,505,122,070 in total from the time to March 10, 2015 in collusion with F and G. Accordingly, the Defendant embezzled the amount equivalent to KRW 6,505,122,070, which was kept in business in collusion with F and G.

2. Occupational embezzlements due to false benefits;

(a) False benefits for G;

On March 201, the Defendant received G’s request from G around March 201, and, in fact, G had never worked as an auditor of the victim company but G had been employed as an auditor of the victim company, G had the intent to pay the funds of the victim company kept in business for the benefit of the victim company.

From around 2011, the Defendant provided G with false payment of KRW 50,000,00 for the 201-year salary, as well as KRW 127,550,000 for the benefit of 201, around 2012, KRW 148,000 for around 2013, KRW 180,000 for around 200,000 for around 2014, KRW 216,000 for around 200,000 for around 2015, and KRW 216,00,000 for the benefit of 216,00,000 for around 2017.

Accordingly, the Defendant embezzled the amount equivalent to KRW 1,137,550,000 of the victim company's funds kept in business in collusion with G, etc.

(b) False benefits for I;

In light of the F’s request in 2008, the Defendant: (a) received the F’s request in 2008; (b) did not work as an employee of the Victim Company; (c) did not work as an individual engineer of F; (d) did not work as an employee of the Victim Company; (c) did not work as an employee of the Victim Company; and (d) did not intend to pay the funds of the Victim Company in custody in the course of business to I as wages for the Victim Company; and (e) after the F was written on January 26, 2009, the Defendant

The Defendant paid I a false amount of KRW 11,50,00 for the purpose of salary in 2008 at the office of the victim company around 2008, including a false amount of KRW 28,350,00 for the purpose of salary in 2009, KRW 32,051,535 won around 200, KRW 35,860,896 won around 201, KRW 37,974,974,984 won around 2012, KRW 40,365,58 won around 2013, KRW 45,046, KRW 768, KRW 47,529, KRW 456 around 2015, KRW 47,619, KRW 424, KRW 2017, KRW 3817, KRW 197, KRW 4197, KRW 197, KRW 2017; and

Accordingly, the Defendant embezzled the amount equivalent to KRW 373,918,071 of the victim company that was kept in business in collusion with F and G.

C. Sub-committee

Accordingly, the Defendant embezzled the amount of KRW 1,511,468,701 of the victim company that was kept in business in collusion with F and G.

3. Occupational embezzlement by using corporate cards;

The defendant received F's request from F in 2005, and in fact F or G used the corporate card of the victim company for personal purposes even though F or G had never worked for the victim company, F or G used the corporate card of the victim company for personal purposes, the defendant had the mind to pay it from the victim company to pay it.

On September 2005, the Defendant, in collusion with F and G, embezzled the corporate card price of KRW 1,216,200 used by F in the office of the victim company, with the funds of the victim company kept in office, and from that time, until January 2018, the Defendant settled KRW 314,680,867, which is the total amount of the corporate card price of the victim company used by F or G, as stated in the separate crime list in attached Table 2. Accordingly, the Defendant embezzled an amount equivalent to KRW 314,680,867 of the victim company kept in office in office in collusion with F and G.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of witness G and D;

1. Matters concerning the accused's interrogation protocol (including the partial statement portion of D) and the inheritance attached thereto, the result of a regular investigation of corporate tax against B, each confirmation document, each receipt copy, each copy, the details of payment of non-funds, each real estate sales contract copy, substitute table, financial transaction details, B I and G, and each receipt for wage and salary income;

1. A copy of each protocol of suspect examination of part of the prosecution (including I's statement portion) and the report attached thereto; each receipt; output of the payment of non-funds; statement of earned income of J; current status of distribution and details of dividends of B; details of payment of G in 2017; details of return on source tax of B in 2017; details of return on source tax of B; each credit card photograph; mobile phone text message; and results of regular corporate tax investigation of B;

1. A copy of the prosecutor's statement to K and the confirmation attached thereto, and a report on the completion of investigation by a corporate entrepreneur;

Each copy

1. A copy of each prosecutor's statement of D with respect to each part of the prosecution's protocol (including the part of theL's statement) and each receipt, receipts attached thereto, output of the payment of non-funds, details of financial transactions, each real estate registration certificate, whole certificate of each real estate register, branch, B's articles of incorporation of a stock company, the report on the completion of investigation

1. A report on investigation (B false pay, details of the details of the use of G cards specified) and attached thereto, and the details of the source tax return for G, I and G respectively, the wage and salary income withholding receipt for each year 2017, each withholding receipt for employment income, M dialogue output with G as a result of D mobile phone analysis, and a statement of each corporate card from B to 2005 to 2017;

1. A copy of the investigation report (main B B) and the voluntary submission consent attached thereto, each copy of the receipt, each copy of the investigation report (specific to G false benefits received from the mainJ, B (State), and the G (2015) among the wage and salary income payment records attached thereto, the G details among the wage and salary income payment records of the stock company B (201 to 2016), and the G details among the wage and salary income payment records of the stock company B (2017) among the wage and salary income payment records of the stock company B (2017);

Judgment on the Defendant and defense counsel's argument

1. Summary of the assertion as to the facts constituting the crime described in Article 2-1 (a) of the holding;

After G, a major shareholder of the victim company, was self-auditored, and notified the Defendant, who is a nominal representative director, the Defendant entered G as an auditor on the corporate register and paid the benefits accordingly, and there was no fact that the Defendant directly appointed G as an auditor or participated in such appointment procedures. Accordingly, the Defendant’s payment of benefits to auditors does not constitute occupational embezzlement.

2. Determination

A. Relevant legal principles

Even if an abstract amount of remuneration for an officer of a corporation has been determined by a resolution of the general meeting of shareholders or the board of directors, in the case of an officer who fails to perform his/her actual business affairs at all, the right to claim payment of specific remuneration does not arise, and the interests of a stock company as an independent right holder separate from shareholders do not necessarily coincide with each other, so the act of a regular payment of remuneration to an officer who does not perform his/her actual business affairs at all cannot be justified solely on the ground that he/she did not dismiss or is unlikely to dismiss the officer at all (see Supreme Court Decision

B. Specific determination

In full view of the following circumstances acknowledged by the prosecutor’s evidence, G is merely a nominal auditor who does not perform the duties of the victim company at all and does not have the right to claim specific remuneration for the victim company. As such, the Defendant’s act of paying money to G in the form of periodic payment of remuneration for audit constitutes occupational embezzlement. Accordingly, this part of the Defendant and the defense counsel’s assertion is rejected.

① Articles 415 and 388 of the Commercial Act provide that “the remuneration of auditors shall be determined by a resolution of the general meeting of shareholders if the amount is not determined by the articles of incorporation,” and also the remuneration of auditors of the victim company shall be determined by the resolution of the general meeting of shareholders (see, e.g., Act No. 875 of the Investigation Records). However, D stated to the effect that “G” is appointed from this court as auditors of the victim company and the general meeting of shareholders determined their remuneration shall not have been actually opened. G benefits shall be determined according to the rate of increase in wages (the record of examination of witnesses D). (2) G stated to the effect that “the representative director of the victim company was not recorded in the meeting of shareholders for one year after graduation of his/her major social experience at the investigative agency as a teacher, and that “the representative director of the company was not recorded in the meeting of shareholders in the meeting of shareholders or in the meeting of auditors before his/her husband was registered as the representative director of the victim company (see, e.g., Supreme Court Decision 2000Du8Du6.

③ G는 수사기관과 이 법정에서 피해자 회사의 감사로서의 역할을 수행하였다는 취지로 진술하였다. 그러나 ① G가 피해자 회사의 감사로서 수행하였다고 진술한 업무가 그 내용 자체로 너무나 추상적일 뿐만 아니라 상법 제409조 이하에서 정하고 있는 감사의 직무와는 직접적인 관련이 없어 보이는 점(G가 피해자 회사가 물품을 공급하는 주식회사 C의 주주로서 간접적으로 피해자 회사의 이익 창출에 긍정적인 영향을 미친다고 하더라도, 이것이 피해자 회사의 감사로서의 업무 수행에 해당한다고 보기는 어렵다), ①) 피해자 회사의 대표이사인 피고인과 경리 담당 이사인 D도 G가 감사로서 수행한 업무에 관하여 구체적으로 진술하지 못하고 있는 점, Ⓒ 2016. 2.경부터 2016. 4.경까지 피해자 회사에 대한 정기 세무조사를 담당한 세무공무원 K은 '피해자 회사에 감사 사무실이나 책상 등이 전혀 없었고 (G가) 결재 서류에 날인 한 것도 없었다'는 취지로 진술한 점(수사기록 제848면), ㉣ D은 위 세무조사 당시 '피해자 회사가 2011년부터 2014년까지 실제 근무 없이 G에게 급여를 지급하였다'는 사실을 인정하였고(수사기록 제853면), 위 세무조사에 따라 G에 대한 위 기간 동안의 급여는 법인세법상의 부당행위계산의 부인으로 처리되어 해당 법인세가 납부되었으며, G도 그 결과를 인정한 것으로 보이는 점(수사기록 제302면, 제862면) 등에 비추어 보면, G는 형식적으로 감사로 등재되어 급여를 지급받은 것에 불과하고 실제로 피해자 회사의 감사 업무를 수행하였다고 보기 어렵다.

④ In light of the fact that both the Defendant, G, and D listed G as the auditor according to the proposal, and paid the benefits, the statement is consistent. However, as seen earlier, G did not have the ability to conduct the audit and inspection, and that N was registered as the auditor of the victim company, but N was merely listed as the vice president of the victim company as the type auditor, and it was not sufficient for the victim company to pay N as the auditor (in the investigation record, No. 860 of the investigation record), the Defendant appears to have not anticipated G to perform the audit and inspection duties from the time of registering G as the auditor according to the proposal, and on the other hand, it is reasonable to deem that G provided economic support only with the appearance of payment of benefits to G as the major shareholder of the victim company.

⑤ In light of the fact that the Defendant voluntarily stated in this court that he had worked as the representative director in charge of management rather than the victim company’s name (the Defendant’s newspaper record page 20), as seen earlier, the Defendant and D appears to have decided the amount of benefits to G by discussing the above issues, and the stock company and the shareholder have the status as the separate subject of rights, insofar as the Defendant paid the money in the name of benefits to G who did not actually work as the representative director of the victim company in violation of the victim company’s duty as the representative director, so long as the Defendant paid the money in the name of benefits to G who did not work as the auditor, the Defendant cannot be deemed to have

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Comprehensively, Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356, 355(1), and 30 of the Criminal Act (the occupation of occupational embezzlement in the market of the first time and the choice of limited imprisonment), Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356, 355(1), and 30 (the occupation of occupational embezzlement in the market of the second time), Articles 356, 355(1), and 30 (the occupation of occupational embezzlement in the market of the third time and the choice of imprisonment) of the Criminal Act

1. Aggravation for concurrent crimes;

Articles 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (Concurrent Punishment, etc. of Specific Economic Crimes (Embezzlements) of the Criminal Act) of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (Article 55(1)3 of the Criminal Act (Article 53 and 55(1)3 of the Criminal Act recognizes the remaining crimes except partial crimes, and takes into account the fact that the

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following consideration of favorable circumstances among the reasons for sentencing):

1. Social service order;

Article 62-2(1) of the Criminal Act, grounds for sentencing under Article 59(1) of the Act on Probation, Etc.

2. Scope of recommendations according to the sentencing criteria;

[Determination of Punishment] Type 4 (at least five billion won, but less than 30 billion won)

[Special Mitigation] A person who actually takes part in a passive crime by pressure, etc.

[Recommendation and Scope of Recommendations] Reduction Area, 2 years to 5 years of imprisonment

3. Determination of sentence: The crime of this case for a period of four years under a suspended sentence of three years is deemed to have embezzled a large amount of company funds equivalent to 8,300,000,000 won in total for a period of more than ten years when the defendant was in office as the representative director of the victim company; the crime is deemed to have been committed in excess of the quality of the crime; however, there is no other criminal records in addition to the criminal records subject to a fine for this type of crime, the defendant still has no other criminal records; the defendant delivers most of the embezzlement funds passively under the direction of G or F recorded as a large shareholder on the register of shareholders or uses them for his own interest; the defendant has no profits gained by the defendant compared to the total embezzlement funds; G also has paid 10,000,000 won directly to the victim company; G from the investigation stage to the immediately preceding judgment before this judgment has been made; however, the defendant's overall effort to recover damages and losses is recognized as a replacement of the defendant's family relationship with his own occupation and behavior.

The acquittal portion

1. Summary of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter referred to as "violation of Trust") among the facts charged in this case

The defendant shall not lend money to the representative director of the victim company regardless of his/her business, and even in extenuating circumstances, he/she has duties to take measures to collect bonds, such as receiving collateral, after ascertaining whether he/she has the ability to repay debts after confirming the financial status of the company to grant the loan, such as the size of loan, cash flow

On October 2016, the defendant received a request from the representative director S of R, a corporation that received instructions from P to Q, from the victim company's office, to lend money from P to the effect that "the loan of money is not good."

On October 31, 2016, the Defendant confirmed the financial status, etc. of R in the victim company office and took necessary measures, such as receiving appropriate collateral. However, without taking such measures, the Defendant merely lent KRW 1,00,000,000 to the victim company’s funds at an interest rate of 2.94% much lower than the bank interest rate in the city of R, and additionally lent KRW 600,000,000 on November 4, 2016.

As a result, the Defendant conspired with Q Q to give a total amount of KRW 1,600,000,000 to R and caused property damage equivalent to the same amount to the victim company.

2. Summary of the defendant's and defense counsel's assertion

The defendant, as the representative director of the victim company, has changed the trade name from "R" corporation to "R" corporation around February 23, 2017 in accordance with reasonable business judgment for securing and maintaining the stable customers of the victim company as the partner company (hereinafter referred to as "R" in this case). Thus, the defendant cannot recognize the defendant's intention of breach of trust on October 31, 2016, as the defendant lent the sum of KRW 1,600,000,000 (hereinafter referred to as "the money of this case or "the loan of this case") or "the loan of this case") to the "R" corporation as the partner company around February 23, 2017. < Amended by Presidential Decree No. 27810, Nov. 31, 2016; Presidential Decree No. 27000, Nov. 4, 2016>

3. Determination

A. Relevant legal principles

In determining whether a company had an intent to commit an occupational breach of trust in relation to a management judgment, the same legal doctrine as the method of proving intent in general occupational breach of trust shall apply to the company’s management. However, the management of the company has inherent risks as a source of risk, and thus, the manager has made a prudent decision with the belief that the company’s interests are consistent with the company’s interests based on the information collected in good faith and without intent to take any personal benefits. Even in such cases, there may arise losses to the company. As such, if a company is held liable for an occupational breach of trust by relaxing the interpretation standard on intent, this would not only violate the principle of no punishment without the law, but also cause a serious loss to the society as well as the relevant company, even from a policy perspective. Therefore, even if the current criminal law does not deny the legal doctrine that the crime of breach of trust is a dangerous crime, even if there is no choice of motive and motive leading up to the business judgment at issue, details of the business at issue, economic situation of the company, probability of incurring losses and profits, etc., one of the company’s own interests or 3.

B. Specific determination

1) The following circumstances acknowledged by the evidence submitted by the prosecutor, i.e., (i) R had deteriorated the financial status of approximately KRW 4,883,00,000, including the total sales loss of approximately KRW 1,023,00,000 during the year 2016 and the sales loss of approximately KRW 3,416,00,00,000 (the investigation record), and (ii) the Defendant was aware of the fact that R at the time was liable for a loan of at least KRW 20 billion to a financial institution (section 4 of the investigation record), and (iii) the Defendant did not take proper measures to recover claims, such as receiving collateral from R, and lent the instant money to R without taking measures to recover claims, and lending the instant money to the victim company, there is no doubt that the Defendant borrowed the instant money with the intent to obtain property benefits in R and cause property damage to the victim company.

2) However, the finding of guilt ought to be based on evidence with probative value, which leads to the judge to have the conviction that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is doubt of guilt against the defendant (see, e.g., Supreme Court Decision 201014731, Dec. 23, 2010). In full view of the following facts and circumstances acknowledged by the prosecutor and the evidence submitted by the defense counsel, it is reasonable to view that the act of the defendant lending the instant money within the discretionary scope of reasonable management judgment as measures to minimize risks or property damage to the victim company that may arise due to R, rather than personal interests orR interests of the defendant, rather than for personal interests orR interests of the defendant. On the other hand, even if there is evidence submitted by the prosecutor, it is insufficient to find that the defendant violated duties of the representative director and has no reasonable evidence to prove that the defendant had a judge lent the money to the victim company.

① The injured company has maintained a long-term transaction relationship with R as it was supplied with parts exceeding KRW 6,00,000 per annum from R to the time of leasing the instant money as the second event company (hereinafter referred to as “C”) that produced bit presses, which are automobile parts, and supplied them to C and V (hereinafter referred to as “C”), and from 2006, the injured company had maintained an annual average supply price of at least KRW 6,000,000 from R to the time of lending the instant money. However, as of the time of 2015, immediately before lending the instant money, the total annual sales of R were approximately KRW 41,50,000 (the sum total of sales of R as of the time of 201,00 to 1160,000 as of the date of 205,000,000 (the sum total of sales of R as stated in No. 1151 to 1160,000). Accordingly, the injured company’s annual sales of the part to the injured company appears to have not been supplied.

② According to a summary report on R drawn up by W accounting firm around July 4, 2016, the value of the gold at the time of R is calculated as approximately KRW 1,60,00,000 (No. 1166 of the Investigation Records). However, the value calculated as above is the amount reduced in consideration of depreciation of the deteriorated gold type, so it seems that there is a difference between the cost of new production of gold type and the cost of new production of gold type. The head of the purchase management team of the 10th generation of a new gold type within a short period of time (No. 6 of the record of examination of witness X), considering the fact that there is more cost than the case of new production of gold type, it is difficult to view that R’s new production of the same kind of gold type or new installation of new installation (including land, buildings and machinery) as security at the time of obtaining a loan from a financial institution (No. 49 of the Investigation Records). If it is more difficult for the Defendant to directly acquire the ownership of the victim’s new production of the same type of gold, as above 141414 of the acquisition price.

③ As seen earlier, at the time of lending the instant money, R had deteriorated financial standing, such as the occurrence of deficit and the increase in liabilities, but C, a superior collaborative entity that is supplied with the automobile parts from the victim company and R, has decided to support the management normalization of R, the financial status of which has deteriorated from January 4, 2016, and began to provide management guidance to R in full scale by dispatching C’s S. to R (C) around February 2016 (No. 1 of the record of the examination of witness X, No. 1133 of the investigation record), and C’s Q Planning Headquarters (hereinafter “T”), and C, a major shareholder, from July 2016, the victim company acquired R to lend the instant money to October 4, 2016, took active measures to prevent the victim company from extending its funds to KRW 3,40,000,000,000 on five occasions in total.

④ There are a number of cases where financial assistance is provided between upper collaborative companies and subordinate collaborative companies, such as lending operating funds to other collaborative companies except R (Article 17, No. 18 of the Examination Record of Witness X), and the victim company also lent KRW 1,100,000 to Y, a partner company other than R, without being provided with security around 2014 (Article 21 of the Examination Record of Witness D, and Article 242 of the Investigation Record). Accordingly, it is difficult to view that the financial assistance provided between collaborative companies, such as lending of the instant funds, is an exceptional case, and it cannot be readily concluded that the Defendant’s decision to lend the instant funds to R is for the benefit of a specific person or a specific company.

⑤ The instant loan was used for R’s operating capital in line with the original purpose of the loan (for the witness S, page 21, page 22 of the record of the examination of witness S), and there is no circumstance to view that the said loan was used for the personal interest or purpose of the defendant, R management or Q.

④ Under R’s profit and loss statement in 2015, approximately KRW 4,140,00,000 and approximately KRW 1,455,000,000, including the gross profit of KRW 1,455,000,000 (in accordance with the investigation record, KRW 37,000,000). As to this, S, the representative director of R, made a statement to the effect that “The R, according to the end of the Zan, was able to make a false profit each year by means of increasing inventory assets.” However, there was no evidence to deem that the Defendant, from around 2015, notified the Defendant of the above contents before lending the money, it is difficult to view that the Defendant had been aware that the Plaintiff had been continuously making a loan from around 2015 to the date of this case.

① Even after the Victim Company lent the instant money to R, the transaction between the Victim Company and R was normally continued (see, e.g., page 19, page 20), and R paid interest from November 30, 2016 to the Victim Company from November 31, 2016, and paid the principal and interest of the original loan agreement to the Victim Company in the amount of KRW 100 million (Evidence 9 submitted by the Defense Counsel).

4. Conclusion

Thus, the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) among the facts charged in this case constitutes a case where there is no proof of crime, and thus, the innocence is pronounced pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the acquittal part

Judges Choi Dong-hwan

Judges Kim Gin-han

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.