Housing Daegu

Reference domicile Daegu

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

A. Error of mistake

The Defendant, in collusion with B, has not embezzled KRW 787,473,916 in total amount of time deposits in small amount of 000cc and KRW 0000 (hereinafter referred to as “second class deposits”) (i) Daegu Bank term deposit amounting to KRW 50 million cancelled on March 3, 2008, andii) KRW 737,473,916 in a national bank deposit account cancelled on April 19, 2010.

In other words, ① the above KRW 50 million was remitted to the Defendant by sending money to the Defendant for the return, etc. of the deposits for lease of multi-household houses owned by the Defendant. ② The above KRW 737,473,916 was remitted to B for the purpose of keeping or managing the general affairs of the clan in accordance with the transfer of the general affairs of the clan, and all at the time of each transfer was permitted by the executive branch of the clan. At the time, the Defendant was entirely unaware that all of the above money was embezzled.

Nevertheless, the judgment of the court below which found the defendant guilty of the facts charged of this case is erroneous in the misapprehension of facts that affected the conclusion of the judgment by misunderstanding the fact that the judgment of the court below which found the defendant guilty of the facts charged of this case.

B. Unreasonable sentencing

Although the facts charged in the instant case are found guilty, the punishment imposed by the lower court (two years of imprisonment) is too unreasonable.

2. Judgment on the assertion of mistake of facts

A. Summary of the facts charged

The defendant is a member of the victim's clan, and from March 2007 to May 201, 201, he is a member of the above clan in charge of managing and keeping the property of the clan from March 2007, and B is a member of the defendant's friendship.

Around March 2007, the Defendant: (a) transferred the entire deposits of a clan from ○○○○, and deposited them in the Daegu Bank’s deposit account in the name of the Defendant; (b) the national bank’s deposit account in the name of the “A (0000 dollars)”; (c) from around 2005 to several times, the Defendant was unable to lend money borrowed from the name of the Defendant to B, (d) the amount of money borrowed, (e) a mortgage loan, and (e) the Defendant’s wife Kim○-○’s retirement allowance, etc., and (e) was unable to be repaid; (b) around 2008, the Defendant and B transferred the clan’s property to B’s account; and (c) was willing to use money lent by the Defendant to B, (e) the repayment of money loaned by the Defendant, and (e)

Accordingly, while the defendant had been in custody of KRW 50 million in the deposit account of the Daegu Bank in the name of the defendant, he terminated it on March 2, 2008 and transferred the total amount of KRW 50 million to the National Bank account in the name of B, including KRW 30 million on March 3, 2008, and KRW 50 million on March 4, 2008. The defendant transferred the said amount to B MMF account in the name of B, and he consumed it for personal use, such as stock investment.

Then, the Defendant terminated a term deposit of 737,473,916 won in the deposit account in the name of a national bank in the name of "A" (0000,000) on April 19, 2010 and transferred all of the same day to the national bank account in the name of B, and B remitted the amount of 6,000,000 won out of the above money to the account in the name of the national bank in the name of the deceased person under the name of the deceased person. On April 20, 2010, the Defendant transferred the amount of 103,000,000 won to the account in the name of the defendant's wife Kim ○○○○ (000,000 won to the account in the name of the defendant's wife, and used the money for the loan in the name of the defendant and the debt owed to the defendant, etc. on April 27, 2010 to the third person's account.

Accordingly, the Defendant, in collusion with B, embezzled KRW 787,473,916, which was the ownership of the victim's clan in his custody, by arbitrarily consuming it.

B. The judgment of the court below

The defendant argued that the court below also argued to the same effect as or similar to this part of the grounds for appeal, and that the court below rejected the defendant's assertion on the ground that, in collusion with the defendant as a general member of the clan B, the defendant embezzled 50 million won of the time deposit money owned by the clan (hereinafter referred to as "the time deposit money of this case 50 million won") in the Daegu Bank Deposit Account cancelled on or around March 2, 2008, and 200 won of the time deposit owned by the clan 737,473,916 (hereinafter referred to as "7,473,916 won") in the deposit account of the National Bank of Korea cancelled on April 19, 2010, in full view of the evidence duly admitted and examined by the court below, the defendant embezzled 7,473,916 won (hereinafter referred to as "the money of this case").

1) The part concerning KRW 50 million in this case

A) The president C and auditor D of a clan consistently stated that there was no fact that the Defendant requested the permission of a clan to transfer KRW 50 million from the investigative agency to the court of original trial. Furthermore, even if such request was made, it does not appear that the clan would allow it.

B) At the time, there was no circumstance that the lessee of a multi-household owned by a clan should return the deposit, and such circumstance was easily confirmed through a real estate lease agreement, etc. In fact, there was no fact that a clan had returned the deposit to the lessee at the time.

C) B immediately used 50 million won for personal purposes upon receipt of remittance from the Defendant, and the Defendant did not verify whether B used 50 million won for the purpose of returning the leased deposit.

D) The Defendant kept approximately KRW 20 million among the general art deposits that can be used for operating expenses of the clans with the exception of KRW 50 million. Therefore, if the money is needed as a general subsidization, it would be the preferential use of ordinary deposits, and it would be difficult to understand that the Defendant first transferred the term deposit to a clan upon cancelling the term deposit. Furthermore, it is pointed out that there was no circumstance that the funds of KRW 20 million or more were needed to the clans at the time, and that the operating expenses managed by the managing branch of the clans are too large, and that around February 27, 2008, the Defendant had deposited approximately KRW 70 million among the fixed deposits managed by the Defendant and there was no circumstance that the term deposits should be cancelled after the said term deposit was made.

E) B made a statement consistent with the Defendant’s assertion, but it is difficult to believe that the statement is in the relationship of matrimonial relationship with the Defendant with the Defendant’s friendship and in light of the aforementioned circumstances.

2) The part of the instant KRW 737,473,9161)

A) The chairperson C and the auditor D of a clan consistently state that the defendant approved from the investigative agency to the court of the court below that the defendant exceeded the general affairs of the clan B on May 2010. At the time, there was no request for permission for the damage and transfer of the term deposit in the name of the clan, and that even if requested, the defendant did not allow it.

B) Also, in light of the following: (a) the amount equivalent to KRW 737,473,916 at the time was kept in the form of a fixed deposit in the name of a clan; (b) when the Defendant was appointed as a new manager and received and transferred the same from the previous manager, the said amount was possible to acquire and transfer the same in the form of a fixed deposit in the name of the clan; (c) the Defendant was exempted from taking over the same by transferring it to B for a fixed deposit in the name of a clan; (d) the maturity of a fixed deposit at the time did not expire; and (d) there was no need for the Defendant to waive and cancel the benefit such as interest on a fixed deposit in the clan; and (e) there was no need for the Defendant to cancel a fixed deposit in the name of a clan and transfer the deposit to

C) The Defendant also stated that there was no explicit approval from the executive organ on the fact that the term deposit is cancelled and the deposit is transferred to B. However, given that the term deposit in the name of a clan is of the nature that it is exempted from the acquisition and transfer to the new executive organ as it is, it is deemed necessary to allow a clan to cancel the term deposit and transfer it to the account in the name of an individual of the new executive organ.

D) From around 2002, the Defendant began to lend money to B, and even at the time of the instant case, the Defendant loaned money in excess of KRW 400 million, and on March 19, 2010, the Defendant received credit loans from the second financial right and extended the loan to KRW 28620,000. This was the amount that is equally liable in light of the size of the Defendant’s assets. In light of the foregoing, it appears that the Defendant was aware that at the time of the instant case that the financial standing was not very good.

E) B began to use KRW 737,473,916 for the personal purpose of remittance recipient, and fully consumed the total amount by means of stock investment and payment of existing debts. The Defendant and his wife used approximately KRW 110 million as debt repayment.

F) B made a statement consistent with the Defendant’s assertion, but it is difficult to believe that the statement is in the relationship of matrimonial relationship with the Defendant with the Defendant’s friendship and in light of the aforementioned circumstances.

C. Judgment of the court below

1) Relevant legal principles

The establishment of facts constituting a crime in a criminal trial ought to be based on strict evidence with probative value, which leads a judge to have the degree of having no reasonable doubt. As such, in a case where the prosecutor’s proof does not sufficiently reach the extent of ensuring such conviction, there is doubt of guilt, such as where the defendant’s assertion or defense is contradictory or uncomfortable. Even if there is doubt of guilt, it should be determined in the interests of the defendant (see, e.g., Supreme Court Decision 2010Do1487, Apr. 28, 2011).

On the other hand, when determining the credibility of a witness, various circumstances such as the reasonableness, objective reasonableness, consistency before and after the statement itself as well as his/her human beings and the existence of interests derived from his/her statement should also be examined (see, e.g., Supreme Court Decisions 2008Do8137, Jan. 15, 2009; 2013Do100, Mar. 30, 2017).

2) Specific determination

Based on the above legal principles, comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and investigated by the court below and the court below as to the instant case, the defendant's management of KRW 57,473,916 of the time deposit of the Daegu Bank of this case and the time deposit of the National Bank of Korea, which is owned by the defendant, or remitted to his students B, the defendant neglected his duty of care as a member of the clan so that he does not cause losses to his property during the clan by recklessly consuming the above money transferred to B, and even if the defendant neglected his duty of care, it is difficult to view the above money as the facts charged in the instant case and there is no other evidence to prove that the defendant's damage to the clan was caused by the defendant's civil damage compensation liability with regard to the fact that the defendant's name and the defendant transferred the above money to B in collusion with the defendant's account, and it is difficult to view it as being used for the repayment of the money borrowed to B, investment in stocks, etc., and that there was no reasonable evidence to acknowledge it as to the above amount of KRW 78730,710.70.7.

Nevertheless, the lower court found the Defendant guilty of the facts charged in the instant case. Therefore, the lower court erred by misapprehending the facts. Therefore, the Defendant’s ground of appeal disputing the misunderstanding of facts is with merit.

A) The status or status of the defendant B, C, D, and complainant E

All of the above persons shall be the clan members.

The defendant from March 2007 to around 3 years is a person who has served as a general secretary of a clan, and the defendant B is a member of his family who followed the defendant and served as a general secretary.

C is a person who served as the president of a clan from around 2007 to December 2014, and D is a person who served as a clan auditor from around 2004 to November 2014.

E as a member of C, from January 2015 to December 3, 2015, the president of a clan has been assigned to him/her (3) and from December 10, 2014, a person who representing a clan (as delegated by C) has filed a complaint with the police for punishing the Defendant and B, an accomplice of the instant embezzlement. (4)

B) Embezzlement B’s clan funds

B, each of the instant KRW 50,00,000 and KRW 737,473,916, as well as KRW 104,735,950, and the rent, etc. received from the lessees of a clan building on March 17, 2008, which he/she acquired from the Defendant, embezzled funds of KRW 1,001,630,444 for personal purposes, such as equity investment and debt repayment (Evidence 4).

C) Whether the task is performed as a general secretary (or substantial general secretary) in B.

From the first police investigation on January 9, 2015 to the trial of the political party, the Defendant: “B was assigned with the general affairs at the request of the executives of the clan around March 2007. At the time, the day of the company was diverse times, and the clan’s members entered and dealt with these practical matters by having B and executives of the company (the president C and the auditor D, etc.) as a general affairs assistant; however, as a general affairs member, the Defendant accepted the general affairs as a member of the clan to the purport that “limited to business affairs, such as the management of the head of the clan fund or the books and accounts,” while managing the official seal, etc. used as the seal of the head of the clan or the head of the Tong. Accordingly, the part that consistently stated to the purport that “B paid the general affairs of the clan, such as the payment of funds, etc. so that it can collect money if requested by the members of the clan.”

On March 8, 2007, B performed not only the property tax on the real estate owned by the clan (such as the lease advertisement and contract of lease, return of lease deposit, lease building repair cost, and payment of brokerage commission, etc. when a public room occurs) but also the real estate management business (such as the lease advertisement and contract of lease, return of lease deposit, lease building repair cost, and payment of brokerage commission, etc.) on behalf of the defendant or on behalf of the defendant, who takes charge of general affairs of the above statement. Accordingly, B prepared the "monthly rent contract" between the lessee and the lessee by designating himself as the lessor with respect to 70-Gu, Daegu 00-Gu, 000 multi-household 00, which is owned by the clan on June 8, 2007 (in accordance with the special agreement, the term "this contract is entered into with the agent of the representative of the clan E. B.) (5).

② On the other hand, on March 6, 2008, the defendant transferred money of KRW 20 million to the national bank account in the name of the defendant to B, and Eul paid expenses, such as the portraits and description, etc., which are the events of a clan with the above money collected. The chairperson of a clan C, etc. requested and received expenses necessary for the above portraits, description, etc.

③ In addition, with respect to the receipt of land compensation of KRW 104,735,9508, which was determined as the money entitled to compensation as forest land located in Daegu-gu 00 00, which is owned by the clan, the president of the clan and the auditor of the clan: (a) on March 17, 2008; (b) on behalf of the Defendant at the time of visiting the Gu Office on his behalf; (c) on March 17, 2008, the compensation was 9; (d) the Daegu Bank Account (00-00-000, and the name of the clan was used as the seal of the head of the Tong; (c) on March 17, 2008, the Defendant was aware of the fact that he received the above money from the Defendant on his behalf; (d) on March 17, 2008, at the time, C had received the above money from the Defendant for more than 1,000,000 his own account or 2,00.

④ Although it differs from the time of the Defendant’s assertion (2008 around), D himself, who was the auditor at the time, stated that from January 2009 at the prosecution and the court of original instance, B performed most of the clans operations (after the Defendant was issued to Seoul).

Ultimately, as seen earlier by B from around 208, the Defendant’s above statement is consistent with the objective circumstances where B assist or act on behalf of the Defendant, and is consistent with the contents of the statement from the competition in B to the trial in question and the contents of the statement from the trial in G (one person among the closed operating members 15). As such, the credibility of the statement is high.

On the other hand, it is difficult to believe that C/D stated each of them in the investigative agency 16 and the court of the original instance to the effect that C/D does not have a fact that C/D provided a real clan member with or on behalf of the defendant.

D) As to the embezzlement of KRW 50 million in this case, as to March 3, 2008

With respect to the remittance of KRW 50 million, the Defendant: (a) requested that B, who is in charge of the real estate management business of KRW 50,000,000,000,000,000 for expenses necessary for his business (such as refund, etc. of deposits for lease of multi-household housing owned by a clan); and (b) the president or auditor of a clan, at the request of B, shall be liable to refuse such request; (c) there is no reason to refuse such request; and (d) paid KRW 50,00,000 to B upon cancelling the term deposit of the Daegu Bank in the name of the Defendant owned by the Defendant of the clan on March 3, 2008; (d) the Defendant did not separately check the place of use. The Defendant consistently stated the main part from the police to the court of the trial.

B In addition, at the time of the prosecutorial investigation, the Prosecutor requested that “the reserve fund is needed for the return, etc. of the deposit money for the lease of the building during the clans.” In fact, the said fund was not urgently required. As to the remittance of the said money, the Prosecutor stated to the effect that “the said money was conveyed to C by contact with the chief of the Association and was authorized.”

6. In light of the following facts: (a) Defendant 2 and Defendant 2 were bound to have been engaged in the business of the clan B on behalf of Defendant 5, or (b) Defendant 1 and Defendant 2 were to have been engaged in the business of the clan B on behalf of Defendant 5, and (c) Defendant 2 were to have been aware of the fact that it was 00,000 won or more at the time of 00,000 won for cash transfer, and that it was difficult for Defendant 2 to have been engaged in the business of the clan B, and that there was no possibility that the Defendant would have been engaged in the business of the clan B to have been engaged in the business of the KRW 80,000,000,000 for 0,000,000 won for 0,000 won for 0,000 won for 30,000 won for 5,000 won for 2,00 won for 3,000 won for 3,000 won.

Meanwhile, around February 27, 2008, the defendant opened a term deposit of approximately KRW 50 million among the money of the clan managed by him according to the records of the clan executive office and managed the remaining funds of KRW 20 million as a general deposit. If the defendant sent KRW 50 million to the defendant for the return, etc. of the deposit money of the clan among the clans from B who actually provided assistance to the defendant on behalf of him and actually provided assistance to the defendant, he sent KRW 50 million to the defendant for the return, etc. of the deposit money of the clans. Accordingly, the defendant did not appear to have been negligent in performing the above duties or managing the money of KRW 50 million as a general deposit under the civil law, even if he knew that the defendant had not been negligent in performing his duties due to his reliance on the money of the clan's president or auditor, it is difficult to see that the defendant had not been negligent in performing his duties or managing the money of KRW 20,000,000,000 for the above defendant's trust or 30,08.

E) As to the embezzlement of KRW 737,473,916, which was cancelled on April 19, 2010

(1) The Defendant’s total amount of money for fixed deposits in a national bank owned by a clan

As to whether substantial or active involvement has been made;

(A) Since the clan auditor D was friendly with H of 00 branch employees of the national bank located in Daegu 0-gu 00-dong, it has been closely involved in the fund of a clan by visiting 00 branch offices of the above national bank every year during his term of office as an auditor and by repeating the new opening, maturity termination, and new opening of a term deposit every year (D in the original judgment and the court of the first instance, once every year at 00 branch offices of the national bank, once again at 00 branch offices of the national bank, the term deposit of the clan was terminated at the maturity of the clan and the reasons for the new opening, so that it can achieve its performance.)

(B) The term deposit in the national bank owned by the above clan was opened in the name of the deposit holder in the name of the ‘○○○ (00000 dollars)’ until the defendant was on March 2007. The term of deposit in the national bank owned by the above clan was cancelled on September 21, 2007 after the defendant was on general duty, and the term of the cancellation was cancelled on September 21, 2007, and again deposited in the new account of the one-year fake term deposit (the national bank account number: 000-00-00000) on the same day, and the name of the deposit holder was changed to the term "A (00 m00 m00.)".

On January 3, 2018, 2018, the results of the fact inquiry of the head of the National Bank of Korea on the 00 East General Financial Center, the opening of the above new account was made at 00 points of the National Bank of Korea on September 21, 2007, and the applicant's name column "A (00cc.000)" is written on the applicant's name column, and the applicant's name number is written on the resident registration number column, and the defendant's name registration number is affixed "the name of the defendant" and "D's seal" are affixed to the seal registration column (not the seal of the defendant was affixed), and the name of the defendant's driver's license is attached to the certificate column, and the person in charge of the National Bank is affixed to the "the name of the defendant" column of "the name of the applicant," and the seal and seal of the clan are affixed to the "each letter related to the opening of deposits of the organization attached to the application for the transaction."

On September 21, 2007, the Defendant asserts that at the time of opening the said new account, he did not directly visit 00 or more national banks or directly prepare an application for new transaction, and that he did not actually participate in the establishment of the said term deposit.

Therefore, it is difficult for the defendant to take up the above new deposit account with the above new deposit account No. 1. The defendant's new deposit account No. 20 of the above new deposit account No. 1. The defendant's new deposit account No. 20 of the above new deposit account No. 1. The new deposit account No. 20 of the above new deposit account No. 30 of the defendant's new deposit account No. 1. 20 of the new deposit account No. 16 of the new deposit account No. 30 of the defendant's new deposit account No. 1. 20 of the new deposit account No. 30 of the new deposit No. 16 of the new deposit No. 30 of the new deposit No. 30 of the defendant's new deposit account No. 10 of the new deposit account No. 10 of the new deposit account No. 40 of the new deposit account No. 40 of the defendant's entry No. 40 of the new deposit account No. 30 of the new deposit No. 0 of the new deposit No.

(C) On October 26, 2009, D participated in opening a new account (Account Number: 0000-000-0000-000) of the national bank set up in the name of "Defendants" with respect to money owned by the clans that had terminated the time deposit at 00 points of the national bank.

If the result of the fact-finding conducted on January 26, 2018 for the head of the National Bank of Korea on 00 Dong General Financial Center, "A" is written in the name column of the applicant on the application for new transaction made on October 26, 2009, and "resident registration number of the defendant" is written in the resident registration number column, and only the seal of the defendant is affixed in the column of the seal of the head of the Tong (in this case, the seal of the clan or the seal of the defendant is not affixed). The seal of the defendant's resident registration certificate is attached in the column of the certificate of real name verification, and the person in charge of the National Bank is affixed to the column of the "real name verification" (in addition to the previous time deposit, since the account was opened in the name of the defendant alone, unlike the previous time deposit, the seal of the defendant used to cancel, withdraw or transfer the money for the new time deposit in the middle of the above new time deposit, and the seal of the defendant's respective organizations or the seal of the defendant's deposits attached thereto are written.

On October 26, 2009, the Defendant did not directly visit 00 branches of the National Bank and prepared a new transaction application even at the time of opening the said new account, and the Defendant merely delivered the deposit passbook and kept it.

Therefore, the number of applicants stated in the above new transaction application No. 1 is 27). Compared to the above new transaction application No. 20, the number of applicants stated in the name of 00, 209, 28, 200, 200, 30,000,000,000, 20,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,000,000,00,000,00,000,00,00,00,00,00.

(D) As to this, D, at the court of the first instance, opened a family bank account with approximately KRW 700 million from around 2007 to around 2010 in a single year and repeatedly opened a family bank account with approximately KRW 700 million, it is the fact that D, at the time of opening a new account, made a statement contrary to the Defendant and B’s assertion or statement, but 30) and D, as seen earlier, extended the maturity of the passbook of a national bank in the name of the national bank in the name of the family bank in the name of the same clan around 2008 at the prosecution around 200. In light of the purport that the name of the passbook was originally entered in the name of D and the highest base, it is difficult to view that the name of the head of the Tong was changed to D and the name of the defendant at the time of extending the maturity of the passbook and its name was changed to 31).

(E) Ultimately, with respect to the term deposit in the national bank account of this case, which was cancelled on April 19, 2010, the Defendant cannot be deemed to have actually or actively participated in the opening of the term deposit account from March 2007 to the Defendant, and instead, to the Defendant “B,” who supported the Defendant’s identification card or carried out the practical general business on behalf of the Defendant, it seems that the Defendant primarily carried out the role of opening the term deposit account in the national bank account under the name of the Defendant who is the general manager of the deposit account, and the possession and possession of the term deposit account after delivery of the term deposit account.

(2) The time when the clan was transferred to transfer to B the instant KRW 737,473,916.

As to whether a transfer is made

From the first police investigation of January 9, 2015 to the trial of the political party, the Defendant: (a) from around March 2007, the Defendant: (b) from around the day of the first police investigation to the day of the trial of the political party; (c) however, (d) from around January 2009 due to the issuance of personnel in the workplace KT, the Defendant changed the workplace from Daegu to the Sungnam-si or Seoul (KT head office) in Daegu, thereby making it difficult for the Defendant to continue to hold the office of the general affairs; (d) Do Do 2, which had been carrying out the practical general affairs on behalf of or with the Defendant, Do 1, 300, the Defendant requested the auditor to succeed to the general affairs of the clan or the general affairs of the clan from around Daegu, 18, 200; (c) Do 1, 400, 700, 200, 700, 200, 300, 100, 106, 3, 2000.

The consistent statements from the Defendant, the time of the transfer of the said money on April 18, 2010, and the police from the Defendant, the time of the transfer of the said money, are inconsistent with D and C’s consistent statements, “The end of May 19, 2010, the time of the transfer of the said money (the time after the end of April 19, 2010, the date of the transfer).”

(6) On the 1st 0th 4th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 200 6th 6th 6th 6th 6th 2012

Ultimately, the evidence submitted by the prosecutor alone is insufficient to recognize that D and C permitted the transfer of the general affairs of the clan from the defendant to B, and that it is "the end of May 2010, when the defendant was later than April 19, 2010, when the defendant transferred the instant KRW 737,473,916 to B," and there is no other evidence to acknowledge it.

(3) to transfer to B upon cancellation of time deposits in the national bank owned by the clan C or D.

Whether permission is granted or not

On April 18, 2010, the Defendant and B consistently testified that “B obtained permission from B to transfer to B the term deposit of a national bank owned by the Defendant, i.e., the instant case’s KRW 737,473,916, which was kept by the Defendant at the 00 restaurant,” and that C obtained permission from C by telephone to the police branch, while D and C consistently consistently stated that “no fact was received or permitted to do so.”

In light of the following facts: (a) it appears that the principal motive for B to acquire the general services at the time is that B would have been intended to arbitrarily use the said clan’s money (B appears to have been in need of large amount of money for the purpose of raising funds for investment of stocks and paying debts at the time; (b) it began to order the above funds from the date immediately after the Defendant was transferred to 7,473,916; (c) it appears that the public in the name of the Defendant could have easily transferred the above clan’s money which was kept in the management of the said clan’s account; (d) it would have been difficult for B to request the auditor to keep the said KRW 70,00,000 for a long time deposit account; (d) it would have been difficult for B to use the said clan’s new services in the name of 70,000,0000,000 won and KRW 7,7,000,000,000 won and KRW 7,7,000,00.

Meanwhile, even if there was a circumstance that certain profits such as interest on time deposits at the time of cancellation even though the maturity of time deposits at the time of cancellation still remains for several months on October 26, 2009, when compared to the principal amount of KRW 700 million, the amount of profit lost by cancellation even when compared to the principal amount of KRW 700 million, C and D do not seem to be a little level, and C and D do not seem to have obtained the right to manage the above money even if they were to have been transferred to B prior to the expiration of the term deposits at the time of termination, rather than continuously maintaining the term deposits owned by the Defendant, who is not a general manager, as requested by the new general manager B, rather allowing B to manage the said money. In light of the above, D and C cannot be deemed to have obtained the right to receive the said money prior to the expiration of the term deposits at the time of expiration of October 26, 2009.

(4) Whether it can be deemed that the Defendant had the intent of embezzlement or intent of unlawful acquisition

As to whether or not

B consistently from the police to the trial of the political party, since 208, in fact, from 2008 to 2008 due to the personal circumstances of the defendant, the time when the general affairs of the clan was transferred officially with the approval of the president C, auditor D, etc. The time when the clan was transferred to him is April 19, 2010. Accordingly, it was difficult for the defendant to have the time deposit money transferred to the national bank owned by the clan to the defendant. Accordingly, since the defendant worked in the Sungnam-do or Seoul, which is the long distance at the time of the defendant, the citizen in the name of the defendant was in the possession of the term deposit money and the seal impression directly. Accordingly, the defendant stated to the effect that the term deposit was cancelled and then the cancellation money was remitted to B.

In fact, at around 13:40 on April 19, 2010, the Defendant immediately remitted KRW 737,473,916 to B of the fixed term deposit at the KT branch of the National Bank of Korea (at that time, at the location of the head office of the Sungnam-si, the defendant's workplace, at the time of the defendant's workplace), the above fixed term deposit amount of KRW 737,473,916.

In light of the above various circumstances, even if the defendant transferred the management and custody of clan funds by transferring all the money that the defendant cancelled the time deposit of the above national bank account with his name to the personal gold account of B upon the above request of B, it does not seem that the defendant transferred the management and custody of clan funds in a very exceptional manner in comparison with the above time deposit account and password, the defendant's seal impression of the passbook itself, and it does not seem that it transferred the management and custody of clan funds in a very exceptional manner.

In addition, as the defendant consistently asserts, although he received a request from B to transfer the above money to B, he received a request from B to transfer the management or custody of the term deposits of a clan which was kept in the name of the person under his own custody to B, and even if he did not obtain specific or explicit permission to promptly transfer the money from the president of a clan C or auditor D to the "personal account in the name of B" (or even if the defendant neglected to take separate measures so that he did not use the above money without permission, by neglecting to take a separate measure to prevent unauthorized use of it (or even if he neglected to exercise a duty of care as a full-time member in the process of acquiring and transferring the funds of a clan to the general secretary, it is difficult to conclude that the defendant lent the money to the above defendant with the intent to acquire unlawful profits together with the above money (such as lending the money in the name of the defendant and the intent to use the money in the name of the defendant, as if he had sent the money to the above defendant, it is difficult to conclude that the defendant lent the money for the purpose of B's investment).

F) As to the determination of the credibility of each statement of C, D, and E, consistent with the facts charged

① The president of a clan 3 has a duty to administer the general affairs of the clan C. It is reasonable to view that the auditors of the clan B were 0 or more times a year, and that the auditors of the clan B have the duty to deposit and verify the earnings of the clan B. It is not reasonable to conclude that C or D had no civil liability for damages caused to the clan by preventing or early detection of embezzlement of the clan properties for 10 or more times from March 208 to May 201. It is reasonable to view that the auditors of the clan B were 0 or more than 1, and that the auditors of the clan B were 0 or more than 1, and that the auditors of the clan B were 5 or more likely to have been aware of their respective facts with the view to 30 or more, and that the auditors of the clan B had no responsibility to compensate for damages caused to the clan B and the Defendant for the same crimes without asking their responsibility.

However, in addition to the above ① or 6 circumstances seen earlier, each of the statements from C, D, and E police that correspond to the facts charged in the instant case to the original court or the trial court is difficult to believe.

G) Other circumstances

(1) Whether there is a special motive for the defendant to be recruited or participated in the crime of embezzlement B

After being assigned to the general secretary around March 2007, the Defendant seems to have been actually in charge of the general secretary's affairs of clan B without actually performing or paying attention to the general secretary's affairs, and there seems to be almost little of the Defendant had been taking advantage of the actual profits of B by receiving a distribution of the embezzlement money.

However, if it is assumed that the Defendant knew of the intent of embezzlement of the clan B at the time of remitting KRW 50 million and KRW 737,473,916, the Defendant did not know of the intent of embezzlement of the instant clan funds, there is a question of whether there was a special motive to arbitrarily transfer large amount of funds to B without any permission of the members of the clan, even if the objective financial resources on the details of remittance remain clear as evidentiary materials and there is no particular benefit to himself/herself, and at the same time he/she is subject to criminal punishment as an accomplice of embezzlement, he/she is not able to maintain a stable workplace life at the same time as he/she is subject to criminal punishment.

Of course, when the Defendant borrowed several money to B, even around 2010, at the request of B to lend the business funds, etc., the Defendant’s wife and Kim○, on January 21, 2010, lent KRW 100 million received from the Defendant’s retirement pay. 41) On April 20, 2010, B received the Defendant’s transfer of KRW 737,473,916 from the Defendant, and then remitted KRW 130 million to the basin securities account in the name of Kim○○, and repaid the above loan (the part recorded in the prosecution) to the Defendant (the part written in the indictment). In light of the funding flow on the Defendant’s repayment of KRW 737,473,916, the Defendant did not transfer KRW 737,916 to B for the purpose of obtaining the Defendant’s loan from Kim○○.

하지만 다른 한편으로, ① 피고인과 그 아내 김○○은 2010. 4.경 무렵까지 위 돈을 포함하여 B에게 합계 4억 3,500여만 원의 거금을 빌려준 것으로 보이는데43), 단지 아내의 위 대여금 1억 원만을 변제받을 목적으로 그보다 훨씬 큰 액수의 종중 정 기예금 737,473,916원을 B에게 모두 임의로 송금할만한 특별한 동기가 있었는지 의문 인 점(전체 횡령금에서, 피고인 부부의 대여금 채권 중 약 1억 원만 변제받고 나머지 6억 원 이상의 횡령금은 B이 임의로 사용할 수 있도록 하기 위하여 B과 횡령 범행을 공모할 특별한 동기가 있는지 의문이다)44), ② 특히 피고인 명의의 국민은행 정기예금 계좌( 이 사건 737,473,916원) →→ B 명의의 개인 예금계좌 → 김○○ 명의의 유안타증 권 계좌로 이어지는 자금흐름이 객관적 금융거래내역으로 분명하게 남는 것을 충분히 알 수 있는 상황에서, 피고인이 과연 B과 횡령 공범으로 중하게 형사처벌받을 위험을 감수한 채, 위 대여금 1억 원만을 변제받을 생각으로(그것도 자금 흐름 추적이 쉽지 않은 현금 등으로 전달받는 것이 아니라 금융거래계좌를 통하여 변제받을 생각으로) B 과 횡령 범행을 공모한 것이라고 볼 수 있는지 의문인 점45), ③ 여기에다가 피고인의 아내 김○○이 위 대여금 1억 원을 변제받은 때로부터 수개월 뒤인 2010. 9. 24. 다시 B에게 7,000만 원을 빌려주었고46) 결국 위 돈은 현재까지 변제받지도 못한 점까지를 더하여 보면, 단지 위와 같은 자금흐름만으로, 과연 피고인이 B에게 아내의 퇴직금으 로 빌려준 1억 원을 변제받을 생각으로 종중의 정기예금을 모두 넘겨줌으로써 횡령 범 행을 공모하였다고 볼 수 있는지 합리적 의심이 든다.

In addition, B deposited KRW 10 million in the Defendant’s national bank account (i.e., KRW 6 million on April 19, 2010 + KRW 4 million on April 27, 2010) following the remittance of KRW 737,473,916 (i.e., KRW 7., KRW 50 million in the name of the Defendant). Since B promised to change the principal and interest of credit loans around 2005 and deposited KRW 50 million in the Defendant’s bank account (Account number 000-00-0000-000) with the Defendant’s bank account (hereinafter the above account transaction) in which the Defendant actually used the above account (i.e., KRW 6 million on April 19, 2010, KRW 4 million on April 27, 2010, it appears that B used the above account with the Defendant’s intent to receive money on behalf of the Defendant, it is difficult to view that B used the above account as a public offering account.

(2) Whether the Defendant was aware of the failure of stock investment or excess of liabilities in B

For the purposes of this section:

B Despite the repeated failure from around 200, B had repeated equity investment, and the financial conditions such as the increase in debts have also deteriorated. There is no direct evidence supporting the Defendant that he remitted each of the above money to B, even with full knowledge of such circumstances, he could not support the fact that the Defendant was fully aware of such circumstances, or that KRW 50 million and KRW 737,473,916, which he remitted to B, could be used in the name of debt repayment, etc. of B.

Of course, the Defendant already lent a large amount of money at the request of B, but the Defendant’s wife and Kim○ lent KRW 100 million to B on January 21, 2010. On March 19, 2010, the Defendant lent KRW 2862,00,000 to the Defendant’s credit loans from the second financial right, and on April 20, 2010, Kim○ borrowed KRW 100,000 again on September 24, 2010.

However, in the prosecutor's office and the court below's decision, B continued the construction project of the Defendant and continued to pay money in temporary financing. It was doubtful whether the Defendant could not be deemed to continue to lend large amounts of money even with the knowledge of the circumstances where it is difficult for him to receive payment from B due to the failure of continuous stock investment, excess of liabilities, and a large amount of loans accumulated among them, even if it is well known that it is difficult for him/her to receive payment from B, and that he/she would not have been able to do so until the end of his/her bankruptcy.

Therefore, it is difficult to see that the defendant's assertion that "if he was aware of the financial standing of approximately 2, he would have lent the money to his wife or would not lend the money borrowed under the name of the defendant to him."

(3) Circumstances shown in the B-related criminal trial

In the case where the complainant E and the defendant were accused of the embezzlement, etc. of this case as co-offenders, the prosecutor, as a result of the investigation on March 2, 2015, by the Seogu District Court Branch of the Daegu District Court 2015Rahap21, the prosecutor, assisting the defendant who is the general secretary of the victim's clan from around 2008 to early April 2010. From around April 3, 2010, the police officer was in charge of managing and keeping the clan's properties as the general secretary of the clan, while he was in charge of the duties of managing and keeping the clan's properties as the general secretary of the clan from around March 3, 2008 to May 2, 2014, he embezzled the above funds for personal purposes, such as stocks investment and non-payment, etc., for business purposes.

However, on December 28, 2016, the prosecutor indicted the Defendant as a public prosecutor of the instant facts charged on the following grounds: (a) on the trial date ( January 12, 2017), the prosecutor, who was the public prosecutor of the instant criminal trial, submitted an application for approval of changes in indictment to the effect that “B embezzled in collusion with the Defendant who is the punishment,” and filed an application for consolidation of the instant case against the Defendant in the relevant criminal trial; (b) on the other hand, he/she did not consent, and (c) on the subsequent trial date (by January 19, 2017, the prosecutor withdrawn the application for changes in indictment as he/she withdraws the application for changes in indictment from the prosecutor’s withdrawal of the application for changes in indictment).

In the above-related criminal trial, the first instance court found the defendant guilty in accordance with B's confession 55) and other supporting evidence, and sentenced B's imprisonment on February 9, 2017 to "a person who is punished by imprisonment with prison labor for three years and six months", and dismissed B's appeal (Seoul High Court Decision 2017No120 decided July 6, 201), and the above conviction became final and conclusive around that time.

3. Conclusion

Therefore, since the defendant's appeal is well-grounded, the decision of the original trial is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows after the pleading.

【Reasons for a new judgment】

1. Summary of the facts charged

2. A. As set out in paragraph (1).

2. Determination

As examined in the above 2-C., since the facts charged in this case constitute a case where there is no proof of crime, the entire verdict of innocence is rendered under the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment of innocence is publicly announced under Article 58(2) of the Criminal Act.

Lee Jin-Jin

Fishery Resources

It is clear that ‘737,473,916' is a clerical error.

(ii) each statement of 243 pages, 247 pages, d/C of evidence records;

3) Statement 83 to 84 pages E of the trial records

(iv) 4 pages of evidence records;

5) Evidence records 300, 313 pages, and monthly housing contracts submitted by the defendant from the trial to the trial on May 18, 2018

6) Evidence of 513 pages of the financial transaction

7) Evidence Nos. 129 pages (B) of the statement of the withdrawal of the National Bank Account at around August 10, 2008 to October 2008.

C), each financial transaction of 571-579 pages, evidence records 1219-1220 pages B, evidence records 122 pages B

Statement of Tender

8) Evidence records 38 pages

19) As to the annual pay, the Defendant was not present directly in the workplace service relationship at the time of the prosecutor’s investigation; and B

In addition, the statement was made that "the attendance was made" (Evidence Records 156, 1229 pages).

10) Evidence records 12,878-881 pages and details of transactions

11) The oral statement of the court below 61th day of the trial record

12) Evidence records 70,112 B Police Statements

13) Evidence records 41 pages

14) 65 pages of the trial records

15) According to the clan’s articles of incorporation, the members of a clan consisting of six members (including advisers, the chairperson, the auditor, one secretary, and six operating members).

Records 17 pages)

16) C and D have no "no detention" as to whether there was a fact at the time of the police investigation with the Defendant.

A statement that seems to be ice, and did not make any other rebuttal (Evidence Record 89 pages).

17) In the facts charged, it is stated that the facts charged were cancelled on March 2, 2008, and it is based on the content of financial transactions of 62 pages of evidence records.

The correct date of cancellation is March 3, 2008.

18) Evidence records 149-152 pages

19) The time when the entire embezzlement crime in B became known seems to be the end of 2014.

20) Statements by B police of 115 pages of evidence records

21) At the time of the prosecutorial investigation, the Defendant: (a) at the time of the prosecutorial investigation, the head of the Tong in which the “land compensation is paid to B after the receipt of the

The question of whether or not the passbook was made, and the passbook was deposited into the passbook in the name of B, and the passbook is kept by C.

In other words, a statement was made to the effect that he was aware of such reduction and that he did not know that he was in custody with B (Evidence Records)

1229 pages)

22) At the time of prosecutorial investigation, the Defendant “At the time of prosecutorial investigation, B was required for the return of the deposit money and her fling with the president.

The money was remitted to the Chairperson. Whether the internal branch directly verified the permission of the Chairperson is not memory.

state "C" (Evidence No. 155 pages of evidence)

23) As to this, the part that the Defendant did not properly confirm the place of use at the time of the prosecutor’s investigation is erroneous.

statement to the effect that it is (Evidence No. 248 pages)

24) Pursuant to Article 3 of the Act on Real Name Financial Transactions and Confidentiality, the Bank shall have the applicant’s name, resident registration number, real name and confirmation

by photograph, etc. attached to a certification card (identification card), the person who applies for the opening of a new account is identical to the person who actually applied for.

The person in charge of the confirmation shall have a duty to verify whether or not it is. The person in charge of the confirmation shall, upon completion of the confirmation, account the “actual name verification”

It shall be indicated in the application form for a new opening transaction, and shall be stamped or signed.

25) Evidence records 5,101,161,1247 pages

26) The defendant from December 2, 2006 to February 2008, and the defendant from February 2008 to January 2009, and the defendant from February 2008 to January 2009.

00 branch offices, from the end of January 2009, KT head office (Seoul Metropolitan City and Seoul) (Evidence Records 974 pages).

27) Evidence records 66 pages

28) Evidence records 75,116, 161, 1247 pages

29) Evidence records 55,101,161,1247 pages

30) While D visited the Defendant at the court of the first instance on October 26, 2009, the Defendant visited the O-dong branch of the National Bank at the O-dong branch of the National Bank;

The body of "A" written in the name column of the application for new transaction at the time is ambiguous. The meaning of "B" in the above application is

The reason why the mobile phone number was written is also ambiguous."

31) Evidence records 1241 pages

32) Evidence records 97 pages

33)C is an old person of 1934(1934) and D is an old person of 1950(1950) for a long time to the extent that memory can be considerably flow.

When the investigation of the case was commenced in accordance with the instant complaint of E around the end of 2014, the time when the investigation of the case was commenced shall be the time of the transfer to the general public.

The above statement concerning the point is stated as above.

34) Evidence records 88, 255 pages, 66 pages of the trial records

35) Evidence records 236, 280-283 Use of Cash Receipts

36) On this basis, “E” in the court of the court below for the first instance shall be the time when B, respectively, takes charge of the general duties. 4.

The statement was made as follows: B, from May 2010, to May 201, that it was called "(93 pages of the trial record)" and was made at the trial court (93 pages of the trial record).

On May 14, 2018, the date of the transfer of general office is 2010. 'The date of the transfer of general office without any particular evidentiary material in the application for coal sent on May 14, 2018.

4. The defendant specified as "26." The defendant was in charge of the general office from around 2007 to April 25, 2010, and B from April 26, 2010 to April 26, 2010.

The argument or statement about the time is not consistent, such as 'the person in charge of general affairs'.

On the other hand, the complainant E is delegated by the president of a clan C with the entirety of the powers of the representative, and the Defendant and B around December 11, 2014.

B. A complaint was filed against the charge of the embezzlement of this case, and “the defendant was not approved by the clan around May 2010 at the time of the first complaint.”

The secretary D and B arbitrarily transferred this general secretary to B, and the president of the clan C around September 2010, the auditor D and B had the general secretary of the clan C.

Recognizing that "C and D made a multiple calls on May 2010 at the time of the police investigation", it was argued that C and D had been called on May 2010.

The statement that the defendant accepted the transfer of the office from the defendant to B is different from the statement that the defendant accepted the transfer of the office to B.

(c)

Ultimately, the complainant E appears to have no direct involvement in the acceptance of the above general office transfer acceptance.

It makes a claim that is inconsistent or different from D orC with the time of its acceptance or acceptance.

In light of the above, the complainant E’s statement about this part of the facts charged and the credibility evidence supporting the facts charged.

It is difficult to keep them out.

37) Documentary receipt of 57 pages of evidence records

38) The articles of incorporation of a clan (Evidence Records 17 to 19 pages)

39) Evidence No. 16-1

40) The complainant E has the intention to cancel the complaint in the event of full repayment of the amount of embezzlement damage of the Class B at the time of the prosecutorial investigation.

The following was also made (Evidence 1246 pages).

41) Records of 1154 pages of transfers

42) Evidence of 1155 pages of deposit

43) Evidence records 1136 to 1150 Defendant-B Debt Settlement, 131 to 1312 investigation reports

44) Regarding this, B denies the Defendant’s participation in the commission of the crime, and the circumstances leading to the Defendant’s participation in the commission of the crime at the time of the prosecutor’s investigation.

With respect to the retirement benefits received after the retirement of the deceased Kim ○ at the time of ‘the retirement of the deceased Kim ○' after working for twenty (20) years in KT, it shall not be repaid.

the following day after the deposit of a term deposit of the same clan because it has been thought that it was considerably unfortunate;

The statement was made that the amount of money borrowed to a prisoner is KRW 100 million (Evidence Record 1124 pages).

45) In relation to this, the Defendant, at the time of the prosecutor’s investigation, without any permission, before he transferred to the prosecutor’s office with B.

If it is intended to embezzled the above money by gathering it, the Secretary of the Republic of Korea may be appointed by the defendant, even though he may be appointed by the Secretary of the Republic of Korea.

If the auditor ascertains the situation of keeping the money of a clan, he is a gold box, and the defendant is aware of such risk burden.

A statement to the effect that it does not have any reason to attract embezzlement by remitting money to clan B.

(Evidence Records 1245 pages)

46) Evidence records 1156 Description of transactions

47) Evidence records 1137 to 1145, 1157 to 1194

48) Evidence-record 313 pages lease contract

49) Contents of transactions of 656 pages of documentary evidence

50) Adjustment of 1136 pages Defendant-B’s debt details of evidence records

51) The trial records from 147 to 150 pages

52) The above embezzlement amount of KRW 1001,630,444 in B includes both KRW 50 million and KRW 737,473,916 in entirety.

53) Evidence No. 3-2, 224 pages of the trial records

54) Evidence No. 3-3, 226 pages of the trial records

55) Evidence No. 15