A defendant shall be punished by imprisonment for five years.

2. Defendant 2

(a) The defendant shall be punished by imprisonment for two years;

(b) however, suspend the enforcement of the above sentence for a period of three years from the date this ruling became final and conclusive;

3. Defendant 3

The defendant shall be innocent.

4. Defendant 4 company

Defendant shall be punished by a fine of 20 million won.

【Basic Facts】

Defendant 4 Company is a corporation established for the purpose of housing construction execution business. Defendant 1 (Defendant 1) is a person who actually manages Defendant 4 Company located in the Dong-gu Busan Metropolitan City ( Address 2 omitted) to manage the company’s business such as fund management, fund execution, etc., and Defendant 2 was an employee of the Defendant.

[2018 Highis292, 2018 Highis490]

1. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) by Defendants 1 and 2;

피고인 3(항소심 판결의 피고인 2)은 경남 거제시 (주소 3 생략)에 있는 공소외 28 회사의 운영자이고, 공소외 26 회사는 경남 거제시 (주소 4 생략) 외 83필지(이하 ‘거제 ▼▼▼지구’라고 함)의 토지를 매수하여 공동주택 신축사업을 진행한 시행사로, 위 공소외 28 회사와 공소외 26 회사는 2014. 8.경 공소외 28 회사에서 시행사의 토지 취득 등 업무를 대행하기로 하는 내용의 용역계약을 체결하고, 피고인 3은 그 무렵부터 ‘거제 ▼▼▼지구’ 사업의 부지를 확보하는 작업을 진행하였다.

【Criminal Facts】

피고인 1과 피고인 2는 2015. 6.경 피해자 공소외 1, 피해자 공소외 5의 공동소유인 위 ‘거제 ▼▼▼지구’ 내 토지인 경남 거제시 (주소 1 생략) 외 2필지 2,215㎡(등기부상 소유 명의자는 피해자 공소외 5임, 이하 ‘이 사건 토지’라고 한다)에 대하여, 토지 매매 여부를 실질적으로 결정하던 피해자 공소외 1로부터 매도 권한을 위임받아 시행사와의 대금 협상 및 매매계약 체결 등 일체의 업무를 담당하였다.

한편 피고인 3은 2014. 8.경부터 2015. 6.경까지 피해자 공소외 5 등을 접촉하여 이 사건 토지를 매수하려고 하였으나 피해자 공소외 5 등과 협상이 되지 아니하여 결국 ‘거제 ▼▼▼지구’ 대지 중 이 사건 토지만 매수하지 못하는 상황이 되자 피해자들의 매도 위임을 받은 피고인 1과 피고인 2에게 적극적으로 매수 제의를 하게 되었고, 당시 시행사로서는 이 사건 토지를 매수하기 위해 협상 가능한 범위 내에서 최대한의 자금을 지급할 의사가 있는 상황이었기 때문에 위와 같이 피해자들로부터 매도 권한을 위임받은 피고인 1과 피고인 2로서는 공정한 거래 관행에 따라 피해자들이 최대한의 이익을 얻을 수 있도록 매매대금에 관한 협상 및 계약체결을 하여야 할 임무를 부담하고 있었다.

Nevertheless, Defendant 1, either directly or through Defendant 2, agreed on the conclusion of the purchase and sale contract of the instant land on June 2015, he/she concluded a sales contract with the Plaintiff at a macroina, or through Defendant 2, with an agreement with Defendant 3, which calculated the purchase price of the instant land as KRW 5.61 million per square year and calculated as KRW 8 million per square year, and concealed the fact that the purchase price was agreed at KRW 8 million per square year to the victims, and concluded a sales contract with KRW 3.25 billion per square year by calculating the purchase price of the instant land as KRW 5 million per square year, and received KRW 2.21 billion per square year in total, calculated as KRW 3 million per square year, by preparing a false purchase and sale contract between Nonindicted Company 26 and Defendant 4.

이에 따라 피고인들은 2015. 8. 18. 무렵 거제시 (주소 3 생략)에 있는 공소외 28 회사 대표이사 사무실에서 이 사건 토지에 대하여 매매대금이 32억 5,000만 원(평당 500만 원으로 계산)이 아닌 55억 6,100만 원(평당 800만 원으로 계산)으로 합의된 사실을 피해자들에게 숨긴 채, 그 임무에 위배하여 피해자 공소외 5와 공소외 26 회사 사이에 이 사건 토지에 대하여 매매대금 32억 5,000만 원(평당 500만 원으로 계산)으로 정하여 부동산매매계약을 체결한 후, 미리 작성해 둔 공소외 26 회사와 피고인 4 회사 사이에 허위의 토지매수용역계약서에 따라 같은 날 공소외 26 회사로부터 토지매수용역대금 명목으로 피고인 1과 피고인 2가 관리하는 피고인 4 회사 명의의 ♠♠은행 계좌(계좌번호 생략)로 2억 원을, 같은 해 9. 9. 위 계좌로 20억 1,100만 원 등 합계 22억 1,100만 원을 송금받았다.

As a result, the Defendants conspired to acquire a total of 2.21 billion won property interest and suffered the same amount of property damage to the victims.

[2019Gohap182]

2. Violation of the Aggravated Punishment, etc. of Specific Crimes (Embezzlement) by Defendant 1;

From August 2015 to September 201 of the same year, the Defendant borrowed an amount equivalent to KRW 1.75 billion in total from the victim Nonindicted Co. 1 to September 1, 2015 as business fund, and, around October 2015, at ○○○○, at the ○○○○○ city, around the end of October, 2015, transferred the Defendant’s claim for loans equivalent to KRW 2.2 billion to Nonindicted Co. 3, a third party debtor, without notifying the Defendant of the transfer of the claim, and requested Nonindicted Co. 3, a third party debtor to repay KRW 1.1 billion, which was part of the above claim, around April 2016, and was transferred from the said company to the account in the name of Defendant 4, and used it as business funds operated by the Defendant for the victim.

Accordingly, the defendant embezzled the victim's property.

3. Defendant 1’s attempted attack.

On October 12, 2016, the Defendant received contents-certified mail from Nonindicted Company 1 (B) to urge the return of the money received from Nonindicted Company 3 and the performance of notification of the transfer of claims, as described in paragraph (2) of the above paragraph, the Defendant expressed his intent to threaten the victim to give up the claim for return of the amount of KRW 1.1 billion by threatening the victim. On October 26, 2016 and October 27, 2016, the Defendant sent money to the Defendant through Defendant 2, while maintaining an internal relationship with the principal who returned to Defendant 2 through Defendant 2 for about four years on his residence. “In addition, the Defendant did not inform the Defendant of the fact-finding, omission, national tax, embezzlement, breach of trust, forgery of public documents, etc. related to his internal relations with the Defendant, and did not request the investigative agency to return the money to the Defendant and his family member to the Defendant without having the Defendant give up his/her right to file a complaint with the Defendant and his/her family member.”

Accordingly, the defendant attempted to acquire property benefits by threatening the victim.

[2019 Gohap319]

4. Defendant 1 and Defendant 2’s Note 2) The scope of the punishment of tax offenses

No person shall be issued a tax invoice under the Value-Added Tax Act without being supplied with goods or services.

그럼에도 불구하고 피고인들은 ‘거제 ▼▼▼지구’ 공동주택 신축사업 진행 과정에서 부가가치세 신고를 함에 있어 매입자료가 부족해지자 거래처로부터 허위 세금계산서를 발급받기로 결의하였다.

Accordingly, the Defendants conspired, around September 21, 2015, received seven false tax invoices equivalent to the total supply value of KRW 939,022,80 in total by the same seven occasions from July 31, 2015 to December 30, 2015, including that the Defendants received false tax invoices equivalent to KRW 780,000,00, even though they did not receive goods or services from Nonindicted Company 20, even though they did not receive any goods or services from Nonindicted Company 20.

5. Violation of the Punishment of Tax Evaders Act by Defendant 4;

Defendant 1, who is the actual operator of the Defendant at the time and place specified in the above Paragraph 4, and Defendant 2, who is his employee, received each false tax invoice as stated in the above Paragraph 4 in relation to the Defendant’s business.

Summary of Evidence

[Fact 1] of Paragraph 1 of this Article (2018 Highest 292, 2018 Highest 490)

1. The entry of Defendant 1 in part of each trial record in the first and sixth trial records, Defendant 2 in the sixth trial records;

1. Among the third trial records, each statement made by the witness 2, Nonindicted 18, and Nonindicted 18 among the witness's third trial records.

1. Each legal statement of the witness, Nonindicted 8, Nonindicted 9, Nonindicted 21, and Nonindicted 6, respectively, in their respective legal statements

1. Some statements made by Defendant 1 in the police interrogation protocol (two times, two times, and two times, respectively)

1. Each police statement against Defendant 2 (including the defendant 1 and the parts of their subparagraphs), Nonindicted 8, Nonindicted 9, and Nonindicted 30

1. 각 토지등기부(거제시 (주소 1 생략), 같은 동 (지번 1 생략), 같은 동 (지번 2 생략), 증거기록 1권 순번 19~21), 사실확인서(공소외 5, 증거기록 1권 순번 22), 부동산 매매계약서(거제시 (주소 1 생략) 등 3필지, 증거기록 1권 순번 23), 수사보고(피고인 2 제출 ▼▼ 토지매매 사실확인서 등 첨부), ▼▼ 토지매매 사실확인서, 부동산처분 위임장, 공동사업계약서

1. 수사보고(피고인 3 제출 토지매수 용역계약서 첨부), 토지매수 용역계약서, 수사보고(피고인 3 제출 거래내역자료 첨부), 기업은행 ◀◀ 거래내역, 수사보고(참고인 피고인 3 제출 자료 첨부), 공소외 31(지주) 면담 내용, 공소외 5ㆍ공소외 1ㆍ피고인 2ㆍ공소외 32 M/T 내용

1. Each electronic tax invoice (2.21 billion won (Evidence No. 25), 572 million won (Evidence No. 30), and 850 million won (Evidence No. 33)

1. ♠♠은행 거래내역(22억 1,100만 원), ♠♠은행 거래내역, ♠♠은행 이체내역(공소외 6, 7,000만 원), ♠♠은행 입금영수증(공소외 27, 7,000만 원), ♠♠은행 이체내역(◀◀, 2억 원), ♠♠은행 이체내역(◀◀, 3억 7,200만 원), 피고인 4 회사와 ◀◀㈜ 간 작성된 토지매수 용역계약서

1. A reply to requests for the provision of financial transaction information, reply to requests for the provision of such information, investigation report ( telephone conversations on materials supporting KRW 780,000,000), and one copy of account transactions;

1. Detailed statement on the situation of changes in the shares of each defendant 4 (the No. 6,8 of evidence No. 1) and the list of shareholders of the defendant 4 company (the No. 7 of evidence No. 1 of the record);

1. 수사보고(법인등기부등본 첨부), 부산 ▶▶동 피고인 4 회사, 수사보고(참고인 제출 자료 첨부), 피고인 4 회사 폐쇄사항 법인등기부

1. 수사보고(피고인 2 제출 자료 첨부), 피의자 명함 등 이메일 자료, 피고인 4 회사 수입ㆍ지출 장부, 급여대장 사본, 출납일보 사본, 피의자 서명의 서류, 수사보고(참고인 피고인 2 제출 자료 첨부), CC☆☆☆☆☆ 운영 변경 관련 자료, 피고인 4 회사 부산법인 주주 관련 자료, 피고인 1이 피고인 4 회사와 공소외 4 회사의 실질적 운영자로서의 자금 거래를 결재한 내용이 확인되는 각종 자료, 피고인 4 회사와 공소외 4 회사의 주식양도ㆍ양수 관련 자료 등, 수사보고(피의자 명함 등 사진 첨부), 피의자 명함 사진

1. 수사보고(공소외 8 제출의 최고서 첨부), 최고서 2매, 각 수사보고(참고인 공소외 8 제출 자료 첨부), 벤츠 차량 리스료 납부 영수증 등, 피의자의 체크카드 사용내역(♠♠은행 계좌), 자동차세 및 과태료 7월 청구 안내, 수사보고(피고인 2 상대 피의자의 체크카드 사용관계 확인), 수사보고(지도 검색을 통한 체크카드 사용처 파악), 네이버 지도 검색 자료

1. Investigative reports (Attachment of Suspect's credit reports), credit reports, and investigation reports (in cases of reporting on the routes for entering and withdrawing the funds issued by Nonparty 1);

1. 건물등기부(부산 동구 ▶▶동 ◁◁◁모텔, 증거기록 1권 순번 16번)

1. A copy of a certificate, a certificate of transfer and takeover of shares, a copy of remittance receipt, a list of shareholders, a copy of the defendant's resident registration, and a copy of the non-indicted 7 identification card (related to the acquisition by the non-indicted 4 companies

1. A copy of a certificate of borrowing, a copy of the receipt and disbursement date book, photographs of bound books, and a copy of the receipt and disbursement date (from July 2016 to November);

1. Investigation report (Attachment to the data submitted by Defendant 2) and each investigation report (the counter phone of Nonindicted 10 for reference, the counter phone of Nonindicted 11 for reference, and the counter phone of the person who prepares a fact confirmation statement);

1. Investigation report (Attachment of Investigation Record No. 2018No. 21629) and written answer (Nonindicted 21) and each protocol of examination of suspect (Nonindicted 33, Nonindicted 34, Nonindicted 21-3)

1. A defense counsel's opinion (a transcript of appended notes, and a record of evidence No. 162);

【Facts in paragraphs 2 and 3 at the Time of Sales (2019, 182)】

1. The defendant 1's partial statement

1. Each legal statement of Nonindicted 1, Defendant 2, Nonindicted 35, and Nonindicted 9

1. Some statements in the police statement (Evidence No. 5) made against Defendant 1

1. Investigation report (Attachment to Nonindicted 9’s documents);

1. Written complaint and attached documents (Evidence Nos 1, 2);

【Facts in paragraphs 4 and 5 at the Time of Sales (2019, 319)】

1. Partial statement of Defendant 1, Defendant 2, and Defendant 4’s each legal statement

1. Seven copies of electronic tax invoices, and details of issuance and receipt of tax invoices;

1. Investigation report of value-added tax;

1. A copy of the details of transactions of passbooks, cash-scopic photographs, business registration certificate (Defendant 4 Company), the current status of shareholders of Defendant 4 Company, full certificate of registered matters, and the receipt and disbursement date of the bankbook ( July 4, 2016) by Defendant 4;

1. A report on investigation (related to the submission of a relative statement of tax officials) and an explanatory note;

1. Investigation report (verification of the result of the disposition of Nonindicted Company 20 accusation case, which is the commercial company), inquiry about summary of the case, or copy of the judgment;

1. A written accusation;

Application of Statutes

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

A. Defendant 1: Each of the Defendants 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 (the crime of breach of trust with the victim’s KRW 500 million to KRW 5 billion), Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 355(1) (the crime of embezzlement with the amount of KRW 500 million to KRW 5 billion) of the Criminal Act; Articles 352 and 350(1) (the crime of attempted crimes, choice of imprisonment), each of the former Punishment of Tax Evaders Act (Amended by Act No. 16108, Dec. 31, 2018; hereinafter “former Punishment of Tax Evaders”), Article 10(3)1 of the Criminal Act, Article 30(1) of the Criminal Act (the crime of false receipt of tax invoices, and selection of tax invoices)

B. Defendant 2: Each of the Specific Economic Crimes Act; Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes; Article 355(2) of the Criminal Act; Article 30 of the Criminal Act (the crime of breach of trust with the victim’s KRW 500 million to KRW 5 billion); Article 10(3)1 of the former Punishment of Tax Evaders Act; Article 30 of the Criminal Act (the receipt of false tax invoices; the choice of imprisonment with labor)

(c) Defendant 4: Articles 18 and 10 (3) 1 of the former Punishment of Tax Evaders Act.

1. Aggravation for concurrent crimes;

A. Defendant 1 and Defendant 2: The former part of Article 37, Article 38(1)2, and Article 50 of each Criminal Code [aggravating concurrent crimes with the punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) against the victim non-indicted 1, who has the largest punishment and criminal punishment];

B. Defendant 4 Company: The former part of Article 37 of the Criminal Act and Article 20 of the Punishment of Tax Evaders Act (the application of the Restriction on Price Restrictions on Concurrent Punishment of Fines under Article 38 (1) 2 of the Criminal Act)

1. Discretionary mitigation;

Defendant 2: Articles 53 and 55(1)3 of the Criminal Act

1. Suspension of execution;

Defendant 2: Article 62(1) of the Criminal Act

1. Determination as to whether to collect additional collection

The prosecutor filed a claim for collection of total of KRW 2.21 billion against Defendant 1 of the amount of damages of the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust).

However, Article 6 of the Act on Special Cases Concerning Confiscation and Recovery of Decomposed Property (hereinafter “Corruption Property Confiscation Act”) provides that where a crime victim satisfies the requirements of “where it is deemed extremely difficult to recover from damage, such as where the right to claim for return of property or the right to claim for damages against the criminal with respect to the property damaged by the crime is not exercised, etc.” In addition, since the purpose of collection is to deprive the criminal defendant of his/her unlawful profits and prevent him/her from holding them, it is reasonable to deem that the scope of collection is limited to the profits actually acquired by the criminal (see Supreme Court Decision 2008Do1392, Jun. 26, 2008). If the criminal proceeds cannot be specified, it shall not be additionally collected (see, e.g., Supreme Court Decision 2016Do18972, Apr. 7, 2017). Such a legal doctrine applies to cases where a collection order is issued in accordance with the Corruption Property Confiscation Act.

In light of the fact that part of the amount was returned from Defendant 1 to Nonindicted Party 1 (325 pages of evidence 2019Dahap182). Nonindicted Party 1 made a statement to the effect that “the victim Nonindicted Party 1 lent a total of KRW 6.235 million to Defendant 1 from August 19, 2015 to August 30, 2016, and received reimbursement of KRW 4.565 million from Defendant 1.” ( Nonindicted Party 1’s testimony recording as of July 26, 2019, Nonindicted Party 1’s witness 9 page), it is difficult to specify that the amount for collection is criminal injury property to be collected from Defendant 1, and there is no other evidence to acknowledge this fact. Furthermore, it is difficult to view that the victim’s personal or economic relationship cannot be seen as the victim’s right to claim the return, etc. because the victim’s mental or economic relationship or the victim’s physical damage cannot be actively claimed due to the concealment of criminal proceeds or release from Korea.”

Therefore, since the prosecutor's request for collection cannot be deemed to meet the requirements, it is not ordered to impose additional collection.

Judgment on Defendant 1 and defense counsel’s assertion

1. Summary of the assertion

A. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) and Punishment of Tax Evaders Act

All specific acts, such as negotiating with Defendant 3, Defendant 4’s preparation of service contract and receipt of service cost, and receipt of each false tax invoice under the name of Defendant 4, were committed by Defendant 2. Moreover, Defendant 4 related to this crime was transferred to Defendant 2 on or around March 2014, which was prior to the crime, and did not participate in the operation thereof. As such, the actual operator at the time of the crime is Defendant 2. Accordingly, the Defendant is irrelevant to the above crime.

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

It is not constituted a crime because the defendant has consenteded to use the transferred claim in repayment.

C. The attempted part of the official seal

It is difficult to view that the content of the content certification sent by the defendant constitutes a conflict, and there was no intention to attack the defendant against the victim.

2. Review:

A. Part of the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) and the Punishment of Tax Evaders

In full view of the following facts and circumstances acknowledged by the evidence examined by this court, the fact that the Defendant continued to be an actual operator of Defendant 4 on or after March 2014, Defendant 2 obtained financial benefits equivalent to KRW 2.21 billion in front of Defendant 2, and the fact that Defendant 2 received seven false tax invoices equivalent to KRW 939,022,80 in total through Defendant 2. This part of the Defendant and the defense counsel’s assertion is rejected.

1) The defendant's credit standing and business operation methods

A) As of April 2017, the Defendant did not cancel the public information of KRW 212,144,00 in arrears amounting to taxes registered from 2010 as of April 2017, the Defendant was in Grade 9 in credit rating (2018 High Gohap292 Evidence No. 2, 1099-1105), and did not engage in financial transactions under the Defendant’s name from around 2010 (2 evidence record No. 1452 pages).

B) In fact, around 2006, the Defendant was registered as the representative director only at the beginning of the incorporation of Defendant 4 Company, and it was difficult to grant PF loans thereafter, and Nonindicted 6, who is employed as an employee of the Defendant, was the representative director from April 2007 (2018 Mahap292, 1453, and 1924). The Defendant appears to have opened and managed the account of Defendant 4 Company through Nonindicted 6.

2) Status and relationship between the Defendant and the Defendant 2

A) Since 2006, the Defendant had been doing construction projects, and succeeded to several apartment construction projects (2 pages of the Defendant’s newspaper record on May 17, 2019 against Defendant 1, 2019, and 2/1450 of the evidence record of 2018 Gohap292). The Defendant seems to have been well aware of the real estate implementation projects.

B) Defendant 2 became aware of the Defendant around the second half of 2012, and reported the Defendant’s experience in the real estate enforcement business, etc., and took part in the real estate enforcement business by gathering the Defendant as the Chairperson from the later half of 2016, and carried out a driving engineer and a letter-post (3 pages of the testimony of November 2, 2018 as to Defendant 2, 2018, 2018, 2058, 3rd 187, evidence records, and 3rd 187, evidence records). Defendant 2 appears to have no direct investment in, or involvement in, the real estate enforcement business before delivery.

3) Whether the defendant operated or controlled the defendant 4 company

In light of the following facts and circumstances, it is determined that the Defendant continued to manage and operate Defendant 4 as an actual operator even after March 2014.

A) Defendant 4 Company is a corporation established by the Defendant in 2006 for the implementation of real estate (2018 Gohap292 Evidence Nos. 2, 1450, 1453, 3 evidence records No. 1924).

B) There is no disposition document regarding the transfer of Defendant 4 Company, including the contract between the Defendant and Defendant 2. On February 3, 2014, Nonindicted 6, who works for Defendant 4 as an internal director and a representative director, was assigned respectively to Defendant 4. On November 2014, Nonindicted 7, who was the Defendant, was appointed as an internal director (3rd 192 evidence records, 192). After August 2016, Nonindicted 6 and Nonindicted 7, who was the Defendant, retired from office, and Nonindicted 36, who was Nonindicted 36, as an internal director and the representative director, was assigned respectively to Nonindicted 4, and Nonindicted 30% of the shares of Defendant 4, Nonindicted 30% of the total number of shares of Defendant 4, Nonindicted 30% of the total number of shares of Defendant 1, and Nonindicted 36% of the total number of shares of Defendant 2, Nonindicted 40% of the total number of shares of Defendant 30% of the total number of shares of Defendant 1630% of the total number of shares.

다) 부산 동구 ▶▶동 (지번 3 생략) 소재 ◁◁◁ 모텔(이하 ‘◁◁◁ 모텔’이라 한다)은 피고인 2가 이미 2008. 1.경 모친 공소외 38 명의로 매수(경낙)하여 운영해오던 건물이고, 그 건물 내의 스포츠센터의 사업자등록 명의도 공소외 38 명의로 되어 있었다. 그런데 그 스포츠센터의 사업자등록 명의는, 피고인 2가 피고인을 처음 만날 무렵인 2012. 7.경에 피고인의 지인인 공소외 19로, 피고인이 피고인 4 회사를 피고인 2에게 양도한 이후라고 주장하는 2014. 4.경에는 공소외 6으로 각 변경되었다(2018고합292 증거기록 1권 63~75쪽, 증거기록 2권 1326~1331, 1459쪽).

라) 공소외 6은 2014. 3.경 이후에도 ① 2016. 8. 1.까지 피고인 4 회사의 대표이사를 유지하였고, ② 2014. 3.말경 및 같은 해 7.경에 새로운 피고인 4 회사의 법인 예금계좌(♠♠은행)들을 만들어 사용하도록 하였다. 또한 공소외 6은 ③ 대표이사로 있는 동안 피고인 4 회사가 대출을 받는 것에 대표이사로서 결재를 하였으며, ④ 피고인 2가 요청하는 위임장, 용역계약서 등 각종 서류의 견본이나 초안을 제공하기도 하였다. 특히, ⑤ 공소외 6은 2014. 11.경 피고인이 주기로 하였던 돈을 준다고 하여 피고인의 지시에 따라 피고인 4 회사가 38억 원을 대출받는 대출서류에 결재도 하였다. 아울러 공소외 6은 ⑥ 피고인의 지시에 따라 2012년에 피고인 4 회사 이름으로 체결한 거제도 소재 ♥♥개발과의 토지개발사업 PM용역계약을 2016. 6.경까지 유지하면서 수행하였고, 이후 피고인 4 회사의 법인 자금에 대한 실사를 하기도 하였다(증인 공소외 6에 대한 2019. 7. 3.자 증언 녹취서 3, 7, 12, 15~17, 16, 36쪽, 2018고합292 증거기록 3권 2137~2140, 2927~2951쪽).

마) 피고인 2가 2015. 10. 28.경 명함제작사에 의뢰한 피고인의 명함에는 피고인의 지위가 ‘피고인 4 회사(부산과 ▲▲지점 모두 표시), (주)□□□□□(▷▷펜션 소유법인), ◇◇◇◇, ☆☆☆☆☆의 회장’으로 표시되어 있고(2018고합292 증거기록 2권 1038, 1039쪽), 피고인이 실제 사용한 것으로 보이는 명함에도 피고인의 지위가 ‘피고인 4 회사, ㈜□□□□□, ◇◇◇◇, ☆☆☆☆☆의 회장’으로 표시되어 있다(증거기록 2권 1060쪽).

F) In relation to Defendant 4, on January 2016, the Defendant finally approved Defendant 4’s receipt and withdrawal books (2018 Gohap292 2, 1040-1049) as the chairperson on December 2015, 2015 (2nd page 1050 of the evidence record), the daily receipt and disbursement date (2nd page 1051-105 of the evidence record, 3rd page 2803-2874 of the evidence record), and (4) on June 2016, Defendant 4’s bathing facility construction document (2nd page 1056, 1057 of the evidence record) as the chairperson.

G) The Defendant used a mobile phone at Defendant 4’s corporate expense until May 2016 (2018 high-priced 292 evidence Nos. 1067, 1087-1089), and ② up to November 2016, Defendant 4 had been living free of charge in Matern Matern (262 pages 1262, evidence Nos. 3894, evidence No. 1262, evidence No. 1265, 1278-1310) (Evidence No. 265, evidence No. 267, 1278-1310), and ④ Defendant 4 used a vehicle (vehicle No. 267, 1267, 1319-1310) with lease fees exceeding KRW 580,00 per month at Defendant 4’s corporate expense (Evidence No. 267, 1300).

아) 피고인은 ① 2015. 11.경 피고인 4 회사 이름으로 부산 수영구 ▽▽리 ◎◎◎◎ 부지에 오피스텔 시행사업을 하는 공소외 4 회사를 인수하였고(2018고합292 증거기록 2권 1387~1397쪽, 증거기록 3권 2758~2768쪽), ② 이후 2015. 11.경 ~ 2016. 5.경 사이에 회장으로서 피고인 4 회사가 대략 ‘1억 원의 원금에 1년간 2,500만 원 정도의 이자를 받는 조건’으로 공소외 4 회사에 합계 51억 원 이상의 사업자금을 대여해주는 금전대차 거래에 관한 차용증들을 작성하였다(증거기록 2권 1367~1370, 1373~1376쪽, 증거기록 3권 2769~2774쪽). ③ 나아가 2016. 4.경 피고인 4 회사 자산인 ◁◁◁ 모텔이 공소외 4 회사를 채무자로 하는 채권최고액 42억 원의 근저당권 담보로 제공되었다(증거기록 1권 72쪽). 피고인 4 회사에서 공소외 4 회사로 대여 형식으로 이전되는 자금은 많아 보이는데, 이 사건 기록상 공소외 4 회사가 위와 같은 차용금의 이자나 원금을 피고인 4 회사에 변제한 내역이나 자료는 확인되지 않는다.

I) On October 23, 2015, the Defendant, as the chairperson of Nonindicted Co. 4, following consultation with Nonindicted Co. 35 (2018 Gohap292 Evidence 3: 1981-1996). Defendant 4 concluded a contract for monetary lending and borrowing under the condition that Defendant 4 lent KRW 1.1 billion to Nonindicted Co. 3 for one year and was paid KRW 2.2 billion to Nonindicted Co. 3, and entered into a contract for establishing a right to collateral security on the business site of Nonindicted Co. 3 as security. On May 2016, the Defendant was returned from Nonindicted Co. 3 to Defendant 4’s account (Evidence 2: 1345-1354 of evidence record).

(j) ① The Defendant, as described in the foregoing paragraph (i), transferred the claim KRW 2.2 billion against Nonindicted Co. 3 to Nonindicted Co. 4, 2019, 182 evidence records 34,35), and thereafter, in relation to this, Nonindicted Co. 1 sent a content certification to Nonindicted Co. 4 from the standpoint of Defendant 4 (Evidence No. 45-56 pages). ② In addition, around November 28, 2016 and around December 12, 2016, the Defendant sent a content certification to Nonindicted Co. 8, who is in charge of the representative in the name of Defendant 4, to Nonindicted Co. 8, who sent the name of Defendant 4, and “a person’s domicile is the name of Defendant 4 company, return the head of Tong and funds to Defendant 4, and disclose the details of funds” (Evidence No. 2018, 292, 212-1266).

(k) At present, except Nonindicted 6, who works as an employee of the Defendant, Nonindicted 1, Defendant 2, Nonindicted 9, and Nonindicted 8, who worked or worked together with the Defendant for a considerable period, stated that the Defendant is the actual operator of Defendant 4.

아울러 피고인 4 회사와 계약이나 거래를 하였던 대부분의 사람들, 즉 ① ◁◁◁ 모텔 인테리어 공사를 하였던 공소외 10, ② ▷▷펜션 공사를 하였던 공소외 11, ③ 2015. 7. ~ 2017. 6.까지 ◁◁◁ 모텔 직원이었던 공소외 12, ④ ◁◁◁ 모텔의 모텔을 임대하여 운영한 공소외 14, ⑤ ◁◁◁ 모텔 일부를 임차하여 스파를 운영한 공소외 15, ⑥ ◁◁◁ 모텔 주차장을 임차하여 운영한 공소외 16, ⑦ ◁◁◁ 모텔 사우나의 카운터 직원이었던 공소외 13, ⑧ 2016. 11. 10. ~ 2017. 3. 6.까지 피고인 4 회사의 법인 등기상 대표이사였던 공소외 17은 모두 ‘피고인 4 회사의 실소유주가 피고인이거나 피고인이 피고인 2, 공소외 8에게 업무 지시를 하여 회사를 운영한다’라는 취지로 확인해주고 있다(2018고합292 증거기록 3권 2027~2030, 2118~2136, 2241~2247쪽).

Other) The Defendant voluntarily stated in the investigative agency that “Defendant 4 Company’s implementation project is the person in question. Defendant 4 used the physical card of Defendant 4 Company’s corporate entity, used benz S50 Maben vehicle (vehicle number omitted) at its corporate expense, and signed on the receipt and disbursement date as the Chairperson” (2018 Gohap292 Evidence No. 294, 1454, 1461, 1467, 151).

(m) The circumstances described in paragraphs (b) through (l) do not comply with the Defendant’s assertion that “Around March 2014, Defendant 2 transferred Defendant 4 to Defendant 2 and did not participate in the company operation.” Rather, it accords with the fact that the Defendant actually operated Defendant 4 company.

하) 이와 관련하여, 피고인은 피고인 2가 경매절차에서 피고인 4 회사 명의를 이용하여 종전 채권자들과의 관계를 단절시키면서 안정적으로 부산 동구 ▶▶동 (지번 3 생략) 소재 ◁◁◁모텔(이하 ‘◁◁◁모텔’이라 한다)을 매수하기 위하여 구두로만 법인 양도계약을 하였고, 피고인 2로부터 양도대금 3억 원 중 5,000만 원을 받지 못하여 40% 지분을 유지하고 있다고 주장하기도 있으며, 피고인 4 회사의 법인 자금은 대부분 피고인 2가 사용하였다고 주장하기도 한다[2018고합292 증거기록 4권 3118~3121쪽, 2019. 12. 4.자 변호인의견서 ⑴]. 그러나 ① 피고인이 유지하고 있는 지분이나 피고인 2 측에 지분을 이전해준 시기가 피고인 주장에 따른 양도대금 중 미지급 잔금의 주4) 비율 이나 양도대금의 주5) 지급시기 와 전혀 맞지 않는 점, ② 외부에 공표하지는 않더라도 권리관계를 명확하게 하기 위하여 피고인과 피고인 2 사이에 법인양도 관련 처분문서를 충분히 작성할 수 있는 점, ③ 피고인은 공소외 4 회사를 양수하면서 피고인 4 회사의 이름을 이용해서까지 계약서 등 처분문서를 작성하였고, 공소외 3 회사와 금전대차 거래를 하면서도 현금보관증 등 처분문서를 작성하고 담보 설정도 하였던 점 및 ④ 차량, 체크카드 등을 피고인 4 회사의 법인 비용으로 사용하였고, 피고인의 관여로 많은 자금이 피고인 4 회사에서 공소외 4 회사로 이전된 것으로 보이는 점 등의 사정들에 비추어 보면, 피고인의 주장은 전혀 납득하기 어렵다.

In addition, Defendant 2’s statement is alleged to be for the purpose of “work” of Defendant 2. However, if Defendant 2 led each of the instant crimes as Defendant’s argument, and Defendant 4’s corporate funds are used in whole by Defendant 2, it is not reasonably explained that Defendant 2 provided information to Nonindicted 1 that Defendant 2 should be subject to all criminal liability of mixed persons, and that Defendant 2 provided information to Nonindicted 1.

A record of Defendant 2 and Defendant 3’s recording around March 2017 (2018Dahap292 Evidence No. 112-136 pages) is understood to the effect that, rather than intentionally viewing Defendant 2 as a whole, Defendant 3 ought to file a false complaint by creating facts without Defendant 2, Defendant 3 has already been treated separately from the land contract and service contract on the document, so if the actual seller (Nonindicted 1 and Nonindicted 5) becomes aware of the fact that the real seller becomes aware of the fact, it may cause a big problem (criminal liability). In addition, the record between Defendant 6 and Nonindicted 17 (Evidence No. 20) submitted by the Defendant, which is also understood to the effect that Defendant 2 “in the course of investigation, Defendant 2 is investigated or investigated into a civil petition by driving an attorney-at-law in the process of investigation,” it is understood to the effect that it is true that Defendant 2 is not a “work”.

4) Whether the Defendant was entrusted with the authority to sell and purchase the instant land, and whether the Defendant was involved in the process of trading the instant land

In full view of the following facts and circumstances, the Defendant was delegated by Nonindicted 1 with the authority to sell the entire land of this case, including Nonindicted 5’s shares, and was involved directly or through Defendant 2 in the major part relating to the sale of the land of this case, such as the purchase price and the payment method thereof.

가) 공소외 1은 수사기관 및 이 법정에서, ‘2013. 8.경 피고인 2의 소개로 피고인을 알게 되었고, 내연관계로 발전하여 피고인에게 사업 자금을 많이 빌려주거나 투자하였다. 이 사건 토지의 매매 당시에는 피고인과 관계가 좋았다. 피고인이 시공사인 현대건설과 직접 협상하여 평당 1,000만 원을 받아준다고 하여 피고인에게 이 사건 토지의 매매 권한을 위임하였다. 피고인이 필요하다고 하여 피고인에게 본인과 언니 공소외 5의 인감도장과 인감증명서도 건네주었다. 그러나 이 사건 토지 매매와 관련하여 피고인 3(매수인 측)에게 제시된 부동산 처분 위임장(2018고합292 증거기록 1권 370쪽)은 본인이 직접 작성하지 않았으며, 그 내용에 있는 ♤♤면 모텔은 본인과 아무런 관련이 없다. 당시 이 사건 토지 매매는 피고인이 주도적으로 진행하였고, 피고인 2는 피고인의 비서처럼 일하였으며, 결정권이 없었다. 땅값이 평당 500만 원으로 결정되었다는 것은 피고인에게서 먼저 들었고, 이후 피고인 2에게도 들었다.’라는 취지로 진술하였다.

B) At the investigative agency and this court, Defendant 2 knew of the Defendant and Nonindicted Party 1 at the place of meal around August 2013, which was under pressure, and thereafter developed into an internal relationship. From September 2016, Defendant 2 performed an act related to the sale and purchase of the instant land, including negotiations with Defendant 3, according to the direction of the Defendant. While Nonindicted Party 18 upon Defendant 3’s request was able to communicate the instant land more than several times, the case was closed when Nonindicted Party 18 was under the direction of the Defendant, and Nonindicted Party 18 was under the direction of the Defendant, and Nonindicted Party 3 did not participate in the sale of the instant land, and Nonindicted Party 18 was under the direction of Nonindicted Party 3 to the effect that the Defendant would not have been under the direction of the Defendant, and Nonindicted Party 3 would not have been under the influence of the purchase of the instant land. After that, Nonindicted Party 3 and Nonindicted Party 3 would have prepared the instant land sales contract with Defendant 40 million won in cash, and the remaining amount of the instant land would have been paid to Defendant 300 million won.

C) At the investigative agency and this court, Defendant 3 concluded a service contract with Nonindicted Company 26, who is a project executor, and agreed to purchase the instant land as a project site. At the same time, Defendant 2 and Defendant 2 agreed to purchase and sell the instant land upon delegation. At the same time, Defendant 2 introduced Defendant 2 as the Chairperson of the Company. Defendant 3 met with Defendant 2 in the course of the negotiations, and Defendant 2 met with Defendant 3 at first, and Defendant 30 was met at the same time. At the same time, Defendant 2 directly talked with the principal, and mainly paid the land value in cash. At the same time, Defendant and Defendant 3 did not want to pay the land value as a reserve fund. At the same time, Defendant 4 did not want to do so, Nonindicted Company 2 and Nonindicted Company 4 did not purchase the instant land as the purchase price for the instant service contract, and Defendant 2 made a pressure on the remainder of KRW 500,000,000 between Defendant and Defendant 2 and Defendant 4.

라) 공소외 18은 수사기관 및 이 법정에서, ‘피고인 3은 중학교 동창이고, 피고인 2는 과거에 같은 직장에 근무하여 잘 알고 있다. 피고인 3의 부탁을 받고 이 사건 토지 매매와 관련하여 공소외 1 및 피고인 2와 몇 번 만나고 연락을 하기도 하였는데, 피고인 2로부터「뒤로 빠져 있으면 나중에 용역비라도 좀 챙겨주겠다」라는 취지의 말을 듣고는 더 이상 관여하지 않았다. 이후 피고인 3으로부터 땅값이 평당 800만 원으로 결정되었다는 이야기를 들었다.’라는 취지로 진술하였다. 또한 공소외 30은 수사기관에서, ‘피고인 3과는 고등학교 친구 사이이다. 피고인 3이 2015. 5. ~ 6.경 거제시 ♣♣동 커피숍에서 피고인, 피고인 2와 이 사건 토지 매수 관련 협상하는 자리에 같이 갔다. 당시 피고인은 피고인 3에게,「이 사건 토지 매매로 토지주와의 채권채무가 잘 해결되게 해 달라. 토지 자금 일부를 현금으로 달라」는 등의 말을 하였다.’라는 취지로 진술하였다.

마) 피고인이 피고인 4 회사 법인 계좌로 받은 총 22억 1,100만 원은, ① 2015. 9. 4. 골프회원권 비용으로 1,870만 원(2018고합292 증거기록 2권 1076쪽), ② 2015. 9. 4. 보험료 등 벤츠 차량 비용으로 7,550만 원(증거기록 2권 1076쪽), ③ 2015. 9. 11. 및 9. 15. 공소외 18에게 5억 7,200만 원(증거기록 2권 1076, 1096, 1097쪽), ④ 2015. 9. 21. 공소외 20 회사 용역비 8억 5,800만 원(이중 부가세를 제외한 7억 8,000만 원은 현금인출하여 금고에 보관하였음, 증거기록 2권 1075~1077 주6) 쪽) , ⑤ 그 외 ▷▷펜션 관련 각종 공사대금 등으로 사용되었다.

5) Whether the Defendant received a false tax invoice

In full view of the following facts and circumstances, it is determined that the Defendant received each false tax invoice listed in the separate sheet as the actual operator of Defendant 4 company.

A) The fact that the Defendant continued to manage and operate Defendant 4 as an actual operator even after March 2014 is as seen earlier.

나) 공소외 20 회사의 실 운영자였던 공소외 21은 수사기관에서 범죄일람표 1항 기재 공소외 20 회사 사이의 세금계산서와 관련하여, ‘공소외 20 회사는 부산 서구 ♧♧동의 아파트 시행사업을 위하여 설립한 법인으로, 본인이 사업자금이 없어 폐업하려고 하였다. 그런데 피고인이 사업권을 넘기는 대가로 30억 원을 줄테니 위 법인을 그대로 가지고 자기 밑에서 일하라고 하였고, 이후 그 30억 원 중 일부를 줄테니 피고인 4 회사와 사이에 법인간 거래로 세금계산서를 발행하여 달라고 하여 그렇게 하였다. 이후 피고인으로부터, 2015. 9. 22. 본인 처 명의로 1,000만 원, 2015. 9. 23. 공소외 20 회사와 관계된 공소외 39가 300만 원, 공소외 33이 1,000만 원을 각 지급받았다.’라는 취지로 진술하였다(2018고합292 증거기록 4권 3552~3556, 3571, 3578, 3579쪽). 실제 피고인이 피고인 4 회사에서 공소외 20 회사로 위 세금계산서에 따라 용역비로 8억 5,800만 원을 지급하였다가 그중 7억 8,000만 원을 현금으로 인출하여 금고에 보관해두고 사용한 점은 앞서 본 바와 같다.

C) In addition, Nonindicted 9 also stated in the investigative agency and this court that “the Defendant entered into an expense settlement issue related to KRW 2.2 billion, which was deposited by Defendant 4 by telephone around September 2015, and the Defendant stated to the effect that, if there were any buildings of a corporation, it would be said that there would be a lot of corporate tax if the cost settlement would have been made.”

라) 범죄일람표 2~7항 기재 각 세금계산서는 모두 ▷▷펜션의 공사와 관련한 것인데, ▷▷펜션 공사를 진행하였던 공소외 11은 ‘▷▷펜션 공사는 피고인이 지시 및 관리하여 진행된 것이다’라는 취지로 확인해주었다(2018고합292 증거기록 3권 2027, 2028쪽).

B. Whether a crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) is established

In full view of the following facts and circumstances acknowledged by the evidence examined by this court, the fact that the Defendant received at will a claim of KRW 1.1 billion offered as security against the victim and embezzled by using the claim. This part of the Defendant and the defense counsel’s assertion is not accepted.

1) Where a transferor receives money from the obligor before the transferor notifies the transferor of the assignment of claims, the money received by the transferor belongs to the ownership of the assignee between the transferor and the transferee, and the transferor is in the custody of the assignee (see Supreme Court en banc Decision 97Do666, Apr. 15, 199). The Defendant borrowed money from Nonindicted 1 as stated in paragraph (2) of the judgment, as a security, and transferred the claim amounting to KRW 2.2 billion against Nonindicted 3 of the Defendant 4, and used it with payment of KRW 1.1 billion out of the transferred claim without notifying Nonindicted 3 of the assignment of claims (see Supreme Court Decision 2019Da18916-18, Apr. 15, 199).

2) While the Defendant asserted that the above transfer of claims was made in order to show that Nonindicted Party 1 was necessary to borrow money from a third party (Nonindicted Party 25) and that Nonindicted Company 3’s repayment of KRW 1.1 billion was carried out with Nonindicted Company 1’s consent, the Defendant did not have any evidence to confirm it.

3) In an investigative agency and this court, Nonindicted 1 stated to the effect that “at the time, Nonindicted 1 was unaware of the fact that the Defendant received reimbursement of KRW 1.1 billion from Nonindicted Company 3,” and that this conforms to each content certification sent by Nonindicted 1 to Nonindicted Company 4 and Nonindicted 3 (Evidence 42-45 pages of evidence).

C. Whether the crime of attempted extortion was established

In full view of the following facts and circumstances acknowledged by the evidence examined by this court, as stated in paragraph (3) of the judgment of the defendant, the defendant attempted to give up the defendant's exercise of right by notifying the victim non-indicted 1 of harm to the extent that the decision-making or execution of the decision-making process would be hindered, but the victim failed to comply with the above, thereby sufficiently recognizing the fact of the attempted violation. This part of the defendant and the

1) Intimidation, which is the means of the crime of intimidation, refers to the threat of harm and injury that is likely to be frighten to restrict the freedom of decision-making or interfere with the freedom to enforce the will. The threat of harm and injury is sufficient if, even though it is not necessarily an explicit method, the other party is aware that it would cause harm and injury to the other party through speech or behavior, and may be indirectly made through any third party other than the one who is the one who is the one who is the one who is the one who is not the one who is the one who is the other. In a case where the perpetrator demands the delivery of property or pecuniary benefits by using illegal perjury based on his occupation, status, etc., and where the other party does not respond to such demand, it is also a threat of harm and injury (see, e.g., Supreme Court Decisions 2003Do709, May 13, 2003; 2010Do1374, Apr. 11, 2013).

2) Meanwhile, each content certification sent by the Defendant to Nonindicted Party 1’s house on October 26, 2016 and December 27, 2016 includes “The fact that Nonindicted Party 1 engaged in money transactions several times, while maintaining internal relations with the Defendant over four years; Nonindicted Party 1’s real estate transaction case, national tax evasion, embezzlement, breach of trust, forgery of official document, etc., which the Defendant came to know while maintaining internal relations with the Defendant, are accused and inform the relevant agency of the fact that the Defendant knew of the fact, such as the forgery of real estate transaction, national tax evasion, embezzlement, breach of trust, and fabrication of official document.” In fact, Nonindicted Party 1 was a woman with the husband and his children; Nonindicted Party 1’s family members appear to have not been specifically aware of the relationship with the Defendant or details of money transactions. In light of the fact that Nonindicted Party 1 appears to have failed to comply with the Defendant’s demand, it constitutes a threat of harm and injury to the extent that it would be at an unreasonable disadvantage.

3) The Defendant voluntarily testified in an investigative agency to the effect that “the part that seems to inform of the internal relationship during the content certification or the part that seems to have been accused of the unlawful facts of family members, and that he/she shall be punished (see, e.g., Supreme Court Decision 2019Gohap182 Evidence No. 128, 129).” The Defendant appears to have been aware of the harm and injury inflicted on Nonindicted 1.

Reasons for sentencing

1. Defendant 1

(a) The scope of punishment by law: Three to forty-five years of imprisonment; and

(b) Scope of recommendation types according to the sentencing criteria; and

1) First Crimes [Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)]

[Determination of Punishment] Embezzlement and Breach of Trust (Type 3] 50 million won or more, and less than five billion won or less

【Special Convicted Person】

[Recommendation and Scope of Recommendation] Basic Field, 2 to 5 years of imprisonment

2) Second Crimes [Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)]

[Determination of Punishment] Embezzlement and Breach of Trust (Type 3] 50 million won or more, and less than five billion won or less

【Special Convicted Person】

[Recommendation and Scope of Recommendation] Basic Field, 2 to 5 years of imprisonment

3) Group 3 (Violation of Punishment of Tax Evaders Act)

[Determination of Punishment] Acceptance, etc. of General Tax Invoice for Tax Offenses [Type 1] below 3 billion won

【Special Convicted Person】

[Recommendation and Scope of Recommendation] Basic Area, 6 months to 1 years of imprisonment

4) Scope of recommendations according to the standards for handling multiple crimes: Two to seven years of imprisonment (the first crime maximum + the second crime maximum + 1/2 + the third crime maximum).

5) Scope of the recommendation range revised according to the applicable sentencing range: Imprisonment with prison labor for three to seven years (in cases where the lowest limit of the sentencing range recommended by the sentencing criteria is in conflict with the statutory minimum limit of the applicable sentencing range, it shall be based on the statutory minimum limit of the applicable sentencing range).

(c) Determination of sentence;

[Opinion of Prosecutor] Nine years of imprisonment

[Judgment] Five years of imprisonment

The Defendant sold the instant land upon delegation by the victim, and used the amount of KRW 2.2 billion, which is the victim’s money, to collect the amount of KRW 1.1 billion, which was provided as security to the victim Nonindicted Party 1, at will. The Defendant attempted to interfere with the exercise of the rights of the said victim and to evade his/her obligations by intimidation, such as punishing the victim Nonindicted Party 1, and impairing the relationship with the victim upon the occurrence of a dispute, and received seven false tax invoices equivalent to KRW 939 million in total of the value of supply in order to evade corporate tax.

The defendant belongs to a person who was in an internal relationship and embezzled a large amount of KRW 2.2 billion, and embezzled a claim of KRW 1.1 billion, which was provided as security, with his intent to escape his responsibility to disclose his crime, and in order to avoid his responsibility, intimidation all responsibility to Defendant 2, who was under his direction, and completely denied his responsibility for the crime. In light of the contents of the defendant's crime, the defendant's responsibility is very heavy, and the defendant shall be held liable upon receiving punishment corresponding to his crime.

On the other hand, the defendant returned some of the money while doing money transaction with the victim non-indicted 1, the defendant did not have the same criminal record and did not have any criminal record within the last ten years, etc. In addition, considering the defendant's age, character and conduct, environment, career, family relationship, circumstances before and after the crime, the defendant's punishment shall be determined by taking into account the various sentencing conditions revealed in the trial process of this case, including the defendant's age

2. Defendant 2

(a) The scope of punishment by law: Imprisonment with prison labor for a year and six months to 22 years and six months;

(b) Scope of recommendation types according to the sentencing criteria; and

1) First Crimes [Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)]

[Determination of Punishment] Embezzlement and Breach of Trust (Type 3] 50 million won or more, and less than five billion won or less

【Special Convicted Person】

[Recommendation and Scope of Recommendation] Basic Field, 2 years to 5 years of imprisonment

2) Second Crimes (Offense of Violation of Punishment of Tax Evaders Act)

[Determination of Punishment] Acceptance, etc. of General Tax Invoice for Tax Offenses [Type 1] below 3 billion won

【Special Convicted Person】

[Recommendation and Scope of Recommendation] Imprisonment of six months to one year

3) Scope of recommendations according to the standards for handling multiple crimes: Imprisonment for two to five years (the first crime maximum + the second crime maximum 1/2)

(c) Determination of sentence;

[Opinion of Prosecutor] One year of imprisonment

[Judgment] Three years of suspended sentence for two years of imprisonment

While taking charge of Defendant 4’s practice, the Defendant, along with Defendant 1, took part in the crime of violating the Punishment of Tax Evaders Act, which receives false tax invoices equivalent to KRW 939 million in total of the value of the criminal conduct in breach of trust and supply, which inflict on the victims about KRW 40 million out of the total value of the land in the course of selling and selling the land in this case. In light of the specific details and methods of the crime, the Defendant is not less likely to commit the crime.

On the other hand, the fact that the defendant recognized all the crimes, committed a mistake, committed a crime without any previous conviction in the past ten years, committed a crime of this case in accordance with the direction of the defendant 1, committed a crime of this case, and the actual profit gained by the defendant seems to be almost nonexistent, committed a crime of breach of trust and embezzlement to the victim non-indicted 1, committed a serious contribution to the expression of each crime of this case in cooperation with the investigation, and the victim non-indicted 1 expressed his intention not to punish the defendant, taking into account the favorable circumstances, such as the defendant's age, character, character, environment, career, family relationship, etc., and the punishment against the defendant shall be determined by taking into account the various sentencing conditions revealed in the trial process of this case, including the defendant's age, character and behavior, career, career

3. Defendant 4 company

(a) The scope of applicable sentences under law: fine of 3.50,000 won to KRW 280,000 to KRW 6,840,000; and

(b) Scope of recommendations based on the sentencing criteria: The fact that the sentencing criteria do not apply to fines; and

(c) Determination of sentence;

[Opinion of Prosecutor] Fines 30 million won

[Judgment] Fines 20 million Won 11

Various circumstances examined in the sentencing grounds for Defendant 1 and Defendant 2, and the background and result of the instant crime, and the circumstances after the instant crime, etc., shall be determined by taking into account all the sentencing conditions revealed in the trial process of the instant case.

Parts of innocence

1. Facts charged;

피고인 3은 판시 제1항 기재와 같이 피고인 1, 피고인 2와 사이에 이 사건 토지의 매매대금이 평당 800만 원으로 계산하여 55억 6,100만 원으로 하는 합의에 이르자, 매매대금이 평당 800만 원으로 합의된 사실을 피해자 공소외 5, 공소외 1에게 숨긴 채, 이 사건 토지 매매대금을 평당 500만 원으로 계산하여 32억 5,000만 원에 매매계약을 체결하고, 평당 300만 원씩 계산한 차액 합계 22억 1,100만 원은 공소외 26 회사와 피고인 4 회사 사이에 허위의 토지매수용역계약서를 작성하는 방법으로 피고인 3이 매매대금과 별도로 위 22억 1,100만 원을 피고인 1, 피고인 2에게 지급하고 그중 일부를 나누어 가지기로 공모한 후, 이에 따라 이 사건 토지에 대하여는 매매대금 32억 5,000만 원(평당 500만 원으로 계산)으로 정하여 부동산매매계약을 체결하고, 미리 작성해 둔 공소외 26 회사와 피고인 4 회사 사이에 허위의 토지매수용역계약서를 근거로 공소외 26 회사로부터 토지매수용역대금 명목으로 피고인 1과 피고인 2가 관리하는 피고인 4 회사 명의의 ♠♠은행 계좌(계좌번호 생략)로 합계 22억 1,100만 원을 송금하여 위 22억 1,100만 원 상당의 재산상 이익을 취득하고 피해자들에게 같은 금액 상당의 재산상 손해를 가하였다.

2. Determination

A. Summary of the defendant 3 and his defense counsel's assertion

The Defendant, as a purchaser of the instant land at the time, was only aware of the fact that he had followed the negotiations with Defendant 1, etc., the seller, who is the opposite contractual party, and did not know that Defendant 1, etc. was infinite Nonindicted 1, the landowner, or abused the power of delegation. Ultimately, the Defendant was unaware of the act of breach of trust by Defendant 1, etc., and was not even actively involved therein.

(b)review;

1) In the case of a type of a breach of trust requiring the existence of an opposite act by the opposite contractual party, the opposite contractual party is basically an independent transaction with an interest separate from the one executing the act of breach of trust and against the opposite contractual party. Even if the act was conducted in a transaction with the knowledge that it constitutes an act of breach of trust, such circumstance alone does not constitute a crime. If the opposite contractual party actively participates in the act of breach of trust by inducing the counter contractual party to commit the act of breach of trust or participating in the whole process of such act of breach of trust, and the contract with the executor becomes null and void as it constitutes an anti-social juristic act, the latter may constitute an accessory criminal or joint principal offender of the crime of breach of trust (see, e.g., Supreme Court Decisions 2005Do4915, Oct. 28, 2005; 2008Do10234, Feb. 12, 2009; 201Do1685, Nov. 24, 2011).

In addition, the facts charged in a criminal trial should be proved by the prosecutor, and the judge should be convicted with evidence with probative value, which leads to the conviction that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is doubt as to the defendant's guilt, it is inevitable to determine it with the benefit of the defendant (see Supreme Court Decision 2005Do767, Apr. 15, 2005, etc.).

2) 이 사건 기록에 의하면, ① 피고인이 위 공소사실의 요지 기재와 같이 이 사건 토지에 대한 매매대금으로 평당 800만 원으로 합의된 후 피고인 1, 피고인 2가 요청하는 대로, 땅값 중 평당 300만 원씩 계산한 차액 합계 22억 1,100만 원은 공소외 26 회사와 피고인 4 회사 사이에 토지매수용역계약서를 작성하고 매매대금과 별도로 피고인 1, 피고인 2가 지정하는 피고인 4 회사 법인 계좌로 송금한 사실, ② 피고인이 그와 같이 송금한 날인 2015. 9. 9. 피고인 4 회사로부터 7,000만 원을 받은 사실, ③ 그 다음 날인 2015. 9. 10. 피고인이 피고인 2에게 ‘■야 고맙다. 나머지는 ◆◆이 한테로 다 넣어줘라. 형이 꼭 신세 갚으마....’라는 문자메시지를 보낸 사실, ④ 이후 피고인이, 피고인 4 회사에게서 총 5억 7,200만 원을 송금받은 공소외 18로부터 합계 1억 2,800만 원(= 3000만 원 + 9,800만 원)을 받은 사실은 인정된다.

According to these facts, there is doubt as to whether the defendant knew and actively participated in the breach of trust by the defendant 1 and 2.

3) However, in full view of all the following facts and circumstances acknowledged by the evidence examined by the court, it is insufficient to view that the evidence presented by the prosecutor alone proves that the Defendant knew and actively participated in the act of breach of trust committed by Defendants 1 and 2, and there is no other evidence to acknowledge it.

A) The Defendant consistently transferred KRW 3 million per square year from the investigative agency to the instant court, among the underground values of the instant land, to Defendant 4, stated to the effect that “Defendant 2 was requested from Defendant 2 to pay part of the purchase price of the instant land separately because Defendant 2 received money from Nonindicted 1 due to Defendant 2’s purchase and sale at the early stage of negotiations,” in relation to the transfer of the instant land to Defendant 4.

나) 피고인 2가 피고인에게 제시한 부동산 처분 위임장에는 ‘이 사건 토지를 공소외 26 회사에 매매 처분권에 대하여, ♤♤면 모텔 모든 권리를 공소외 1에게 양도하는 것으로 하고 자금수령 권한을 포함한 모든 권리를 위임자(피고인 2)에게 위임양도한다’라는 취지로 기재되어 있는바(2018고합292 증거기록 1권 370쪽), 이 사건 토지의 처분권과 함께 표시된 자금수령 권한에는 ‘♤♤면 모텔을 공소외 1에게 양도하는 것’도 함께 표시되어 있다.

C) The Defendant, along with Nonindicted 18, asked Nonindicted 1 to determine whether to delegate his right to sell to Defendant 2 when putting Nonindicted 2’s talks with Nonindicted 1 on the spot, and asked Nonindicted 1 of whether to delegate his right to sell to Defendant 2, and Nonindicted 1 responded to the purport that “not specifically confirm the contents of delegation, it is in compliance with the delegation to Defendant 2,” and that “it is in compliance with the delegation to Defendant 2” (four pages of the testimony of Nonindicted 18 as of May 17, 20

D) Defendant 2 presented his power of proxy to dispose of Nonindicted 1’s real estate to Defendant 3, which was written by Defendant 1 (five pages of the testimony made by Defendant 2 as of March 15, 2019). Defendant 2 stated that “Defendant 3 was unable to sell telecom with Defendant 1, and Nonindicted 1 did not state that “the balance was received from Defendant 3, and that it would be received from the sale price of the instant land” (five pages of the recording). However, Defendant 2 stated, at Defendant 1’s order, that “3 million won out of the underground value to Defendant 3 was delivered to Defendant 3 for cash settlement of obligations, such as the balance of telecom,” and stated that “the demand was delivered (the same page is 10 pages).”

In addition, Defendant 2 made a statement to the effect that, “Defendant 2 received all the service costs from Defendant 4 and made phone calls to Defendant 3 to resolve the problem of land owner and low will. The Domination was made to the expense without any expense, and Defendant 3 was fine (the 4 pages of the testimony record as of April 10, 2019 against Defendant 2).” As to the reasons for giving money, Defendant 1 stated to the effect that “Defendant 3 expressed that Defendant 3 would have made a decision to grant the land value to Defendant 3 if the problem arises following the issuance of money.” Even in order to prevent the formation of money, Defendant 2 made a statement to the effect that Defendant 3 talked that it is called “Sata Co., Ltd.” (the same recording was 7 pages).

E) Meanwhile, there is no evidence suggesting that Defendant and Defendant 1 and Defendant 2 conspiredd or agreed to have in advance to pay the service cost of KRW 2.21 billion. Ultimately, Defendant received the money of KRW 200 million, but Defendant 2, who received Defendant 1’s order, actively offered money, and Defendant first refused to pay the money.

F) In addition, the Defendant is a side to purchase the instant land. The Defendant’s act of purchasing the instant land can be deemed as merely cooperating with the method of paying the already determined land value at the request of the agent delegated by the seller the right of transfer.

3. Conclusion

Thus, since the facts charged in this case constitute a time when there is no proof of crime, the court rendered a judgment of innocence in accordance with the latter part of Article 325 of the Criminal Procedure Act, and the defendant did not consent to the public notice of the judgment of innocence, the summary of the judgment of innocence in accordance with the proviso of Article 58

(attached Form omitted)

(Name of Preliminary Crime against Defendant 1: Title 1)

Judges Kim Jong-sung (Presiding Judge)

(1) Defendant 1 was indicted for the violation of trust in the beginning. However, according to the permission of the application for the modification of a bill of indictment, the previous violation of trust was the preliminary charge, and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) was the primary charge. As examined below, Defendant 1 did not judge the preliminary charge as much as he found guilty of the primary charge.

Note 2) According to the records and relevant evidence of this case, as examined below, Defendant 4’s actual operator is Defendant 1, and Defendant 2 is deemed to have performed duties upon Defendant 1’s instruction. Accordingly, among the facts charged, Defendant 2 deleted the statement to the effect that “Defendant 2 is the actual operator of Defendant 4 Company.”

주3) 2016. 10. 26.경 피고인 1이 추진하는 부산 수영구 ▽▽리 ◎◎◎◎ 부지 오피스텔 개발사업의 PF 대출금에서 22억 원이 공소외 1에게로 지급되었다. 이는 피고인 1이 그 동안 공소외 1로부터 차용한 전체 금액의 일부를 반환하는 것으로 보인다.

주4) 피고인 2가 피고인에게 지급하여야 하는 양도대금 잔금은 약 16%(≒ 5,000만 원 / 3억 원)인 반면, 피고인은 40%의 지분을 가지고 있다.

(5) The Defendant asserted that he/she received KRW 250 million in total from Defendant 2, KRW 30 million on June 3, 2014, KRW 10 million on July 4, 2014, KRW 50 million on November 10, 2014, KRW 50 million on November 5, 2014, KRW 11,000 on July 1, 2015, KRW 250 million on July 15, 2015, and KRW 100 million on July 15, 2015 (Article 2018Dahap292).

주6) 피고인은 피고인 2가 전적으로 위 돈을 사용한 것이라고 주장하나, 이에 관여한 피고인 2, 공소외 8이 일관하여 피고인의 지시로 비자금을 만든 것이고 피고인이 사용하였다고 진술한 점, 공소외 9도 ‘피고인이 금고에 현금이 있는 사진을 보여주면서 30억 원이라고 하여 이를 사진 찍어 당시 ▽▽리 ◎◎◎◎ 부지에 오피스텔 사업을 진행하던 공소외 4 회사 측에 보여주었다’라는 취지로 진술한 점(2018고합292 증거기록 3권 1892쪽), 공소외 20 회사의 실제 운영자였던 공소외 21이 수사기관에서 ‘피고인이 공소외 20 회사로 송금한 8억 5,000여 만 원 중 7억 8,000만 원을 인출하여 금고에 보관하였다’라는 취지로 진술한 점(증거기록 4권 3553~3554쪽) 등에 비추어 보면, 위 돈은 피고인이 사용하였다고 판단된다.

7) Since the sentencing guidelines are not applied to attempted crimes, the remaining crimes of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation), violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), and violation of each Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) were reviewed as the sentencing guidelines. Among them, each crime of violation of the Aggravated Punishment, etc

8) In the case of Defendant 1, each violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) and each violation of the Punishment of Tax Evaders Act were applied by adding up the amounts to the same crimes. The victim Nonindicted 1 expressed his intention not to punish the Defendant, but in relation to the crime of violation of the Aggravated Punishment, etc. of Specific Economic Crimes (Non-Indicted 5 of December 31, 2019) and the crime of violation of the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) to the other victim Nonindicted 5 did not express his intention not to punish the Defendant, so it shall not be applied to a special

Note 9) = KRW 50,00 + KRW 50,00 + KRW 50,00 + KRW 50,00 + KRW 50,00 + KRW 50,00 + KRW 50,00.

Note 10) = (780,00,000 + KRW 21,364,00 + KRW 85,00,000 + KRW 45,963,636 + KRW 3,054,545 + KRW 1,51,073 + 2,129,546) ¡¿ 10% ¡¿ three times.

Note 11) = 12 million won + KRW 1 million + KRW 3.5 million + KRW 2 million + KRW 5 million + 500,000 for each of the crimes under paragraph (4) of the attached Table of Crimes in paragraph (1) of the attached Table of Crimes in paragraph (2).