[2] Whether a person can be punished pursuant to Article 28(1)1 of the former Merchant Banks Act in a case where a discount of promissory notes, which is one of the business of a merchant bank, is an unmanned bank (negative)

[2] Article 28 (1) of the former Merchant Banks Act (amended by Act No. 5750 of Feb. 5, 199) provides that "any person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than three years or by a fine not exceeding 20 million won." subparagraph 1 provides that "any person who is subject to punishment under the above provision is a person who conducts comprehensively the business under each subparagraph of Article 7 (1) without obtaining authorization under Article 3." Since it is apparent that he is a person who conducts comprehensively the business under each subparagraph of Article 7 (1). Thus, only one of the subparagraphs of Article 7 (1) can be punished under Article 9 of the former Short-Term Finance Business Act (amended by Act No. 5750 of Jan. 13, 1998) or Article 28 (1) of the former Merchant Banks Act (amended by Act No. 9501 of Jan. 13, 1998).

A. According to the reasoning of the judgment of the court below, the court below determined that the amount of long-term investment for a period of not less than one year among the amount invested by ordinary investors of the above company as the representative director of the non-indicted company and the chairperson of the non-indicted company is corporate funds. The amount of short-term investment for a period of not more than one year is classified as general funds, and the director of the non-indicted 1 working for the non-indicted 1 shall deposit general funds in the name of the defendant or officers and employees of the above company and manage them. If the defendant needs to use funds to purchase real estate in his personal name or in the name of the defendant, or if it is necessary to use funds to purchase real estate in the name of the non-indicted 1's personal name or in the name of the non-indicted 1's personal funds, the non-indicted 1 can arbitrarily withdraw the above general funds under the name of the non-indicted company's non-indicted 1's non-indicted 3's non-indicted 3's non-indicted 1'the above part of funds distributed or non-indicted 1'the funds.

B. The intent of unlawful acquisition in the crime of embezzlement means that a person who keeps another’s property refers to an intention to dispose of another’s property in violation of his/her occupational duty, such as in the case of his/her own property, and does not necessarily require his/her own acquisition (see, e.g., Supreme Court Decisions 95Do2551, Sept. 6, 1996; 98Do408, Jul. 9, 1999; 99Do4923, Mar. 14, 200).

In light of the records, the fact-finding of the court below is just and acceptable, and even if the defendant classifys the funds invested by ordinary investors of the above company into corporate funds and general funds, it cannot be deemed that there was an intent of unlawful acquisition as long as it exists corporate property. However, if the defendant voluntarily withdraws funds under the defendant's oral order without following the procedures prescribed by the law or the articles of incorporation, such as the resolution of the board of directors, etc., such general funds managed as such, without the defendant's oral consent, he purchased shares under the name of the defendant or the borrowed-name shareholder, lent them to another person, acquired real estate in the name of the defendant or an employee, acquired them in the name of the defendant, or used them as personal business expenses without the ordinary statement in the company's account book, it cannot be deemed that the defendant had an intention not to own another person's property in his business for the purpose of seeking the benefit of himself or the third party, and thus, it cannot be deemed that the court below erred in the misapprehension of legal principles as to the crime of embezzlement or ex post facto crime of embezzlement.

The ground of appeal on this part is without merit.

2. On the second ground for appeal by the defendant's defense counsel

A. Article 28 (1) of the former Merchant Banks Act (amended by Act No. 5750 of Feb. 5, 199) provides that "any person who falls under any of the following subparagraphs shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding 20 million won" and subparagraph 1 of Article 7 provides that "any person who conducts the business under each subparagraph of paragraph (1) of Article 7 without obtaining authorization under Article 3" and it is apparent that any person who is subject to punishment under the above provision is a person who conducts the business under each subparagraph of paragraph (1) of Article 7 in a comprehensive manner, so it cannot be said that only a person who conducts the business under any subparagraph of paragraph (1) of Article 7 is a person who is a person who conducts the business under any subparagraph of paragraph (1) of Article 7.

B. The summary of the facts charged as to the violation of the Act on the Law of the Closing of this case is as follows: “Around June 5, 1996, the Defendant, without obtaining authorization from the Financial Supervisory Commission, obtained a discount of KRW 25,00,000 from Nonindicted 2, a customer, at the face value of KRW 25,00,000, and deducted KRW 3,077,260, and paid KRW 21,922,740, the difference and paid KRW 21,92,740, the difference from around that time until December 23, 1998, engaged in business of KRW 58,832,416,242 in total from around 2,525 to December 23, 1998.”

However, even if the defendant performed the act of discounting promissory notes, which is one of the business operations of a merchant bank without obtaining authorization from the Minister of Finance and Economy (which seems to be erroneous as to the legal provisions at the time of the act, according to the facts charged), it shall not be subject to punishment under Articles 23 (1), 3, or Articles 28 (1) 1-2 and 3-2 of the former Short-Term Finance Business Act (amended by Article 2 of the Addenda of the amended Merchant Banks Act, Act No. 5503 of Jan. 13, 1998), or Article 23 (1), 23 (1), 3, or Article 28 (1) 1-2, or 28 (1) 1-2 of the Closing-term Finance Business Act, which is a punishment provision for a person operating a short-term financing business (see, e.g., Supreme Court Decision 98Do3282, Dec. 9, 198; Supreme Court Decision 2008Do15395, Apr. 15, 2005).

Therefore, the judgment of the court below that found the defendant guilty of the violation of the subordinate law among the facts charged in this case is erroneous by misapprehending the legal principles on Article 28 (1) 1 of the subordinate law, thereby affecting the conclusion of the judgment.

The ground of appeal on this part is with merit.

3. As to the Defendant’s ground of appeal on unreasonable sentencing

Defendant was sentenced to six months of imprisonment and four years and six months of imprisonment with prison labor for the crimes as set forth in Articles 2 through 4 of the decision of the court below regarding the crimes as set forth in the decision of the court below. As seen above, insofar as there exist grounds for reversal of violation of the Labor Act, the part concerning the crimes as set forth in Articles 2 through 4 of the decision of the court below which constitutes concurrent crimes as set forth in the former part of Article 37 of the Criminal Act cannot be exempted without any need to determine the assertion of unfair sentencing. Meanwhile, the argument of unfair sentencing as to the crimes as set forth in Article 1 of the decision of the court below with six months of imprisonment cannot be a legitimate

4. Therefore, the part of the judgment of the court below regarding the crimes of Articles 2 through 4 is reversed, and that part of the case is remanded to the court below. The remaining part of the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)