Defendant 1 shall be punished by imprisonment for four years, by imprisonment for three years, and by imprisonment for three years, and by imprisonment for one year and six months, respectively.

However, with respect to Defendant 3, the execution of the above punishment shall be suspended for five years from the date this judgment becomes final and conclusive.

All appeals on Defendant 4’s appeal and prosecutor’s acquittal part against Defendant 2 are dismissed.

A. Defendant 1’s assertion of mistake of facts

1) In relation to the judgment of the court of first instance, the defendant 1) was in contact with the co-defendant 4 of the first instance court (hereinafter "non-indicted 1") who found the defendant at the location of the branch office of the △△△△△△ branch, and Non-indicted 3 of the non-indicted 4 and the non-indicted 2 corporation (hereinafter "non-indicted 2 corporation") who found the defendant. However, at the time, the defendant returned the documents related to the loan against which he was assigned to the co-defendant 1, and there was no fact that the defendant returned the documents related to the loan against which he was assigned to him to the non-indicted 3 on October 20, 201, and there was no fact that the payment guarantee letter and the employee identification card forged for the defendant on October 20, 201. Nevertheless, the court of first instance recognized the defendant guilty of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) and the facts charged for the use of the above investigation documents, which affected the conclusion of the judgment.

2) In relation to the judgment of the court below of the third instance, the defendant forged the employee identification system in the name of the representative director of ○ bank, and there was no conspiracy to acquire the borrowed money from the victim non-indicted 8 by using the written payment guarantee as well as the written payment guarantee as of November 16, 201. Nevertheless, the court of the third instance found the defendant guilty of the charge of forging private documents, uttering of a falsified investigation document, and violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), so the judgment of the court below erred by misapprehending the facts and affecting the conclusion of the judgment

B. Defendant 2’s assertion of mistake and misapprehension of legal principles

1) 제1 원심판결과 관련하여, 피고인은 피고인 5의 소개로 ▒▒▒ 일식집에서 공소외 1 회사 대표이사 공소외 28과 공소외 1 회사의 저유소를 담보로 한 담보대출에 대하여 이야기를 나누었을 뿐이고, 2011. 10. 20.자 지급보증서의 발급, 알선료 명목의 수재금의 요구, 수수 및 전달에 전혀 관여한 사실이 없다. 그럼에도 제1 원심은 피고인에 대한 특정경제범죄가중처벌등에관한법률위반(알선수재)의 공소사실을 유죄로 인정하였으므로, 제1 원심판결은 사실을 오인하여 판결 결과에 영향을 미친 잘못이 있다.

2) In relation to the judgment of the court below in Article 3, the defendant was not recruited to obtain the loan from the victim non-indicted 8 by using the payment guarantee letter as of November 16, 201 and the forged employee identification certificate as of November 16, 201 (2014Dahap1493), and the defendant did not conspired to use the forged employee identification system as of October 20, 201 (2). Nevertheless, the court below found the defendant guilty of the charge of forging each private document, the use of the above investigation document, and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against the defendant, and thus, the judgment of the court below in Article 3 is erroneous by misapprehending the legal principles as to the public-private crimes or by misapprehending the legal principles as to the public-private crimes, thereby affecting the conclusion of the judgment.

C. Defendant 4's assertion of mistake of fact

The Defendant was unaware of the fact that the payment guarantee certificate as of November 16, 201 was false and its employee identification system was forged, and there was an intent and ability to repay the borrowed money even at the time of lending additional money from the victim Nonindicted 8. Nevertheless, the lower court found that the Defendant conspired with Defendant 1, Defendant 2, and Defendant 5 to forge the employee identification system in the name of the representative director of ○○ bank, to use the false payment guarantee certificate together with the false payment guarantee, and to acquire the borrowed money by deceiving the said victim solely by deceiving the said victim, and thereby, convicted the Defendant of the charge of forging the private document, uttering of the above investigation document, violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and fraud, thereby adversely affecting the conclusion of the judgment.

D. Prosecution's misconception of facts and misapprehension of legal principles

1) The part concerning Defendant 3’s acquittal of reasons

In relation to the judgment of the second instance, the Defendant was fully aware that it was impossible for the Defendant to obtain a normal payment guarantee certificate from the victim Nonindicted 9 and Nonindicted 10. Nevertheless, the second instance court erred by misapprehending the facts and adversely affecting the conclusion of the judgment, on the ground that there was a lack of evidence to acknowledge the criminal intent of defraudation, since there was a lack of probability that the Defendant believed to have been issued a normal payment guarantee certificate at the time of the act of brokerage and acceptance.

2) The part concerning Defendant 2’s acquittal in the disposition

In relation to the judgment of the court below, although the defendant, in collusion with the non-indicted 11 and the non-indicted 6 and non-indicted 7, acquired money from the victim non-indicted 6 and the non-indicted 7 for the purpose of securing land funds, the court below held that the defendant conspired with the non-indicted 11 in the first place more than participating in the issuance of the payment guarantee letter as of July 19, 201, and that the facts charged that the defendant acquired funds from the above victims were not sufficiently proven, and thus, the court below erred by misapprehending the legal principles as to the fraud against the defendant

E. The defendants and the prosecutor's allegation of unfair sentencing

1) Defendants

Each court below's sentence (2 years of imprisonment of the first instance court / Defendant 2: 1 year of suspended sentence of imprisonment of one year; 3 years of suspended sentence of imprisonment of one year; 3 years of suspended sentence of six years; 3 years of suspended sentence of imprisonment of one year and six months; 4 years of suspended sentence of two years of imprisonment of two years; 3 years of suspended sentence of three years of suspended sentence of imprisonment of two years; 3 years of suspended sentence of three years of imprisonment of three years / Defendant 5: 2 years of imprisonment of the third instance court) is too unreasonable.

2) Prosecutor (Defendant 1, Defendant 2, and Defendant 3)

Each court below's sentence sentenced to the above defendants (for defendant 1: 5 years of imprisonment with prison labor for each of the above defendants 1: defendant 2, and defendant 3: the same as the above) is too uneased and unfair.

2. Ex officio determination

Each court below rendered a separate review of the facts charged against the above defendants, and sentenced the court of first instance to two years, and the court of first instance to three years, respectively. The court of first instance to the defendant 2 shall be punished by imprisonment with prison labor for two years, and the court of first instance to the defendant 2 shall be punished by imprisonment for three years, and the court of first instance to the defendant 3 shall be punished by imprisonment for three years, with prison labor for one year and six years, and the court of first instance to the defendant 3 shall be punished by imprisonment for three years, with prison labor for three years, with prison labor for three years, and the second court to the probation for two years. The above defendants filed an appeal against each judgment of the court of first instance to the court of second instance, and the court decided to jointly examine the above three appeals cases.

The crimes recognized in each judgment of the court below against the above Defendants are in a concurrent crime relationship under the former part of Article 37 of the Criminal Act, and therefore, a single sentence shall be determined within the scope of a single sentence under Article 38(1) of the Criminal Act. As such, the part of the judgment of the court of first instance against Defendant 1, the part against Defendant 2, and Defendant 3, the part against Defendant 1 among the judgment of the court of first instance (including the part of acquittal in the grounds), the part against the judgment of the court of second instance against Defendant 1, and the part against

However, despite the existence of the above reasons for ex officio reversal, each assertion of misunderstanding of facts or misapprehension of legal principles with respect to Defendants 1, 2, and 3 is still subject to the judgment of this court, and this will be examined in turn.

3. Judgment on Defendant 1’s assertion of mistake of facts

A. As to the judgment of the first instance court

1) The judgment of the court below

In full view of the following circumstances admitted by the evidence adopted by the lower court, the lower court determined that the Defendant: (a) exercised a false guarantee of payment that he received from Defendant 5 on the part of Nonindicted 3; and (b) thereby inflicted damage on ○ Bank equivalent to KRW 1 billion on the part of ○ Bank.

① Both Nonindicted Co. 3 and Nonindicted Co. 1 stated consistently from the investigative agency to the court of original trial that “The Defendant visited the room of △△△△△△△ branch on the day of the instant case with the co-defendant in the first instance trial, and met the Defendant, and at all times, Nonindicted Co. 3 directly received a payment guarantee of KRW 1 billion from the Defendant, and confirmed the documents by opening an envelope in that place.” In particular, Nonindicted Co. 3 went through a place to obtain the payment guarantee letter as Nonindicted Co. 2’s employee, it is reasonable to deem that he directly confirmed the payment guarantee letter on that spot, and the credibility of the statement is recognized as a person without any interest in the instant case.

② Even according to the analysis of CCTV installed at △△△△△△ branch of ○○ bank, when Nonindicted 3 enters the branch room, it is confirmed that the document bags will be used and emitted.

③ Defendant 5 stated in the court of the court below that “The Defendant 5 laid down an envelope containing one billion won of fake ○ Bank’s payment guarantee certificate and employee identification card forged to the Defendant at the post office of △△△△△△△△△△ on the day of the instant A.M. on the following day, and Defendant 2 should take care of the Defendant after the establishment of a payment guarantee certificate in P.M., Defendant 2 would have the same amount of KRW 50 million, and Defendant 50 million among the money received from Co-defendant 50,000,000 from the first instance trial, was put into three bags, and the Defendant was put in the △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, and Defendant 5 made a concrete statement directly related to his criminal responsibility.” The credibility of the said statement is recognized.

④ The Defendant alleged that Defendant 5 did not receive 50 million won since he had been a meal in the surrounding restaurant at the time. However, in light of the fact that the restaurant was located in a place where 50 million won was not far away from the bank of this case, it appears that three persons including the Defendant at the time, including the Defendant, were able to walk out the Defendant’s locked place among the meals, and Defendant 5 stated that the investigative agency received money, and that Defendant 5 stated that he was able to get a customer to take money at the restaurant, and that he was able to get a customer to take up at the restaurant, it cannot be ruled out that the Defendant returned to the bank from among the eating tools and received KRW 50 million from Defendant 5.

⑤ At the court of first instance, Nonindicted 5 stated in the court of first instance that, “I would have issued a payment guarantee in friendly relation with Defendant 1 at the head of the branch office. I would like to assume all responsibility within the branch office, Defendant 1 would have called “I Mara.”

6) Although the Defendant asserts that there was no motive to commit the instant crime under which he was subject to criminal punishment and non-voluntary retirement, the Defendant was in a situation that he was in charge of raising business performance of the branch office of a bank, and that such a payment guarantee certificate was not forged or not directly inquired of the head office, etc., it would be less likely that the Defendant would be dismissed from committing the instant crime. In fact, in light of the fact that the forged payment guarantee certificate, which was issued by the Defendant prior to the instant crime, was discovered to have been forged after the lapse of at least five months (after the instant crime), and the Defendant was sentenced to eight months in the first instance trial due to the use of a false payment guarantee certificate similar to the instant case at the Seoul Central District Court, which was sentenced by the Defendant at the Seoul Central District Court, and appealed, and then the appellate trial is proceeding, it seems possible that the Defendant continued to issue such payment guarantee certificate to maintain the relationship with the customer and enhance business performance.

7) Although the Defendant asserts that there was no motive to commit a crime because he did not have economic difficulties, Defendant 5 instructed the investigative agency to pressure the Defendant’s auction of a hotel from his usual window on the ground of Nonindicted 12, and thus, Defendant 2 asked Defendant 2 to raise funds, and made a statement that he was suffering from this process.

2) The judgment of this Court

In full view of the circumstances in the reasoning of the lower court and the following circumstances admitted by the evidence duly admitted and investigated by the lower court, the lower court’s determination that the Defendant exercised the right by giving Nonindicted 3, on October 20, 201, a forged employee reduction scheme along with the payment guarantee letter as of October 20, 201, and that the Defendant inflicted property damage equivalent to one billion won on the victim ○○ Bank is justifiable, and that there was no error of misunderstanding of facts as alleged by the Defendant.

A) Both Nonindicted 3 and Nonindicted 4 consistently stated in the investigative agency and the court of original trial that “Nonindicted 3 obtained an envelope containing a payment guarantee letter and an employee identification card from the Defendant on October 20, 201, and confirmed documents by opening the envelope at the seat.” Meanwhile, the first instance court reversed the statement that Nonindicted 3 received an envelope from the Defendant as the co-defendant himself at the investigation stage, but Nonindicted 3 received the envelope from the Defendant. However, at the first instance court, the lower court stated that “at the time of the trial, Nonindicted 3 or Nonindicted 4 did not open the envelope with the Defendant and sent it to Nonindicted 3 at the same seat without opening the envelope from the Defendant, and Nonindicted 3 or Nonindicted 4 opened the envelope.” In the first instance court, the co-defendant appears to have different reasons for the reversal of the previous statement in the process of investigation with Nonindicted 4, etc., and it appears to be difficult to reverse this part of the first instance trial.

B) The Defendant asserts that Nonindicted 3 made a false statement as if he received and confirmed a direct receipt of the payment guarantee even though Nonindicted 3 did not actually receive the payment guarantee certificate in order to avoid the reprimand of the Company (Nonindicted 2 Company). However, in light of the following circumstances, the above assertion by the Defendant seems to be just a conjecture.

① The purpose of the payment guarantee letter issued on October 20, 201 is to secure the payment of the oil by Nonindicted Company 1, the debtor, supplied the oil from Nonindicted Company 2, the creditor, and thus, it is sufficiently possible for Nonindicted Company 3, the other party to the declaration of the payment guarantee, to receive the payment guarantee letter directly from the defendant in the ○○ Bank △△△△ branch, along with Nonindicted Company 4, at the first instance trial co-defendant and Nonindicted Company 1.

② 공소외 3 및 당시 공소외 2 회사의 마케팅 본부 시장운영팀장이었던 공소외 55는 ‘공소외 2 회사에서는 관리팀이 지급보증서 관련 업무를 하는데, 공소외 3이 관리팀 소속은 아니었으나, 당시 관리팀 직원들이 다른 업무로 바빴기 때문에 공소외 3이 대신하여 지급보증서를 받으러 갔다’라는 취지로 진술하였다. 공소외 2 회사로서는 지급보증서가 정당하게 발급되었는지 확인하려면 발급기관인 ○○은행에 그 진위를 문의하면 되는 것이고, 단순히 지급보증서를 수령하는 것에 특별한 지식과 경험이 필요한 것도 아니다. 따라서 공소외 3이 자신이 원래 담당하던 업무가 아니었음에도 위 지급보증서를 수령하게 된 경위는 충분히 이해할 수 있다.

③ Moreover, it is difficult to view that Nonindicted 3 did not have any special doubt regarding the procedure for issuing payment guarantee certificates, or did not immediately refer to the Defendant, who is the head of a bank branch, to the fact that there is no certificate of seal impression or other necessary documents, as there is no experience in performing the business related to the payment guarantee prior to the instant case.

④ As to whether Nonindicted 4 was in possession of document bags when entering a branch room, it is true that Nonindicted 3’s statement and the statement of Nonindicted 3, the Defendant, and the Defendant in the first instance trial are somewhat inconsistent with as to whether Nonindicted 3 made a statement somewhat inconsistent in the investigative agency and the lower court court court’s trial, and whether Nonindicted 3 first respondeded to the vehicle. However, it is difficult to view this part as an important matter on the facts charged, and there is no ground to view that Nonindicted 3 made a false statement in the investigative agency with any intention other than the limit of simple mistake and memory.

⑤ Furthermore, insofar as the Defendant, Nonindicted Co. 1, and Nonindicted Co. 2 already agreed on the issuance of payment guarantee certificates, it is difficult to deem that the Defendant and Nonindicted Co. 3, etc. did not divide any particular talk about the payment guarantee certificates in the branch office at the time.

6) It seems true that Nonindicted Company 1 and Nonindicted Company 2 had traded even before the instant case, and that Nonindicted 4 promised to obtain a payment guarantee letter from Nonindicted Company 2 and ordered oil in advance. However, in the process, it is not reasonable to deem that the Defendant agreed not to confirm whether to issue the certificate on the premise that Nonindicted 4 and Nonindicted 55 would not issue the certificate of payment normally, as alleged by the Defendant.

다) 피고인 5는 원심 법정에서 ‘이 사건 당일 오전 ○○은행 △△△△지점 후문 주차장에서 피고인에게 지급보증서와 사용인감계가 들어있는 봉투를 건네주었다’는 취지로 진술하였다. 이에 대하여 피고인은 다른 사람들의 눈에 띌 수 있는 장소에서 지급보증서와 사용인감계를 주고받는다는 것은 말이 되지 않는다고 주장한다. 그러나 비록 피고인이 지급보증서와 사용인감계를 건네받은 장소가 공개된 장소라고 하더라도, 지급보증서와 사용인감계가 서류 봉투 안에 들어 있었던 이상, 피고인의 주장처럼 이를 주고받는 행위가 다른 사람들의 의혹을 살만하다고 보기는 어렵다. 그 밖에 피고인 5가 위조책임자인 서정우 등에게 대가를 지급하지 않은 상태에서 먼저 지급보증서와 사용인감계를 건네받았다거나, 지급보증서를 발급할 때 사용인감계를 첨부하지 않는 업무 관행이 있다고 하여도, 이를 두고 피고인 5 진술의 신빙성을 의심할만한 사정이라고 보기는 어렵다.

D) Meanwhile, at the court of the court below, Defendant 5 made a statement to the effect that “On the day of the instant case, when the fact of forging an employee book was discovered, Defendant 5,00,000 won was presented to the Defendant on the same day.” Accordingly, Defendant 5 asserts that Defendant 5’s statement was tending to provide meals with his clients, etc. for a considerable period of time. According to Nonindicted 14’s legal statement in the court below, Nonindicted 14’s written confirmation, a copy of Nonindicted 14’s pocket book, a copy of credit card approval slip, and Korean card transaction approval details, etc., the Defendant was planned to offer a simple promise with Nonindicted 14 and Nonindicted 15 at the “Segu Masung” restaurant located in Samsungdong-dong, Seoul, Seoul, on October 20, 201, and the Defendant’s payment from the above restaurant around 21:51, but it is difficult to accept the Defendant’s assertion in full view of the following circumstances.

① Defendant 5 stated to the effect that “○○ Bank △△△△△△ branch had a tolerance in front of the parking lot in which the Defendant had been contacted.” According to the Defendant’s monetary content, the Defendant made three calls with Defendant 2 on October 20, 201 through 17:35, and from October 18:30 to 18:30, and was in conversations with Defendant 5 at around 18:37 and around 18:45, and it is consistent with the Defendant’s statement. The Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s birth was 14 other than Nonindicted 15, the customer Nonindicted 15, and thus, it seems difficult to see that Defendant 50,000 parking lot at ○○ Bank △△△△△△ branch at a distance from the place where the Defendant was locked.

② The Defendant alleged that he was unable to control the situation inside the bank amounting to KRW 50 million, and thus, Defendant 5’s statement cannot be trusted. However, even according to Defendant 5’s statement, as to whether it was necessary to reduce KRW 50 million for the purpose of controlling the situation at the time, there was a debate among Co-Defendant 5 of the first instance trial, Defendant 2, and Defendant 5, and thus, Defendant 5’s statement as to the circumstances in which the amount of KRW 50 million was raised is sufficiently acceptable.

③ Defendant 5 asserts that carrying three bags containing a sum of KRW 50,00,000 in the vicinity of the ○ bank around the time of his retirement by Defendant 5 cannot be understood as an ambiguous act. However, at the time, it is urgent to cope with the situation because it was discovered that the payment guarantee was issued unlawfully, and that it was difficult for the Defendant to delay outside of the area because he is waiting for customers at ○○ restaurant. In addition, Defendant 5 stated that the front part of the vehicle was parked to the front part of the vehicle at the time, so it is difficult to view that Defendant 5, on the ground that the vehicle was carrying a bag containing cash on the ridge between the two parts of the vehicle, has lost its title.

④ Even if Defendant 5 received KRW 50 million from Co-defendant 5 in the first instance trial and did not deliver it to the Defendant, if Defendant 5 received KRW 50 million from Co-defendant 5 in the name of delivering it to the Defendant from Co-defendant 5 in the first instance trial, it would be a good reason to acknowledge the fact that the Defendant participated in the crime in this part.

E) The Defendant was indicted on July 24, 2012 in collusion with Nonindicted 11 on July 19, 201, on the charge of using a forged payment guarantee letter to Nonindicted 7, and was sentenced to imprisonment for eight months at the first instance trial on September 25, 2013 (Seoul Central District Court Decision 2012No3871), and on February 6, 2014, the appellate court rendered a verdict of innocence on the ground that it is highly doubtful whether Nonindicted 7, the other party to the event of the foregoing investigation document, was forged or falsified (Seoul Central District Court Decision 2013No364, May 16, 201), and thus, it appears that the Defendant was not aware of the Defendant’s payment guarantee letter issued at any time on May 20, 2014, and thus, it appears that the Defendant had been in an economic unstable situation with the Defendant’s delivery guarantee letter to ○○○ Bank.

B. As to the judgment of the court below

1) The judgment of the court below

In light of the following circumstances acknowledged by the evidence adopted, namely, the payment guarantee certificate of KRW 80 million, the process of issuing the employee reduction certificate on November 16, 201, the process of paying the amount of damage and distributing the amount, the Defendant’s speech and behavior after the crime, the motive for committing the crime, and the structure and nature of the crime as indicated in the facts constituting the crime in the judgment below, the lower court determined that the Defendant conspired with other Defendants in a successive or implicit manner to forge the employee reduction system in the order of the Defendants and to use the false payment guarantee certificate and the victim Nonindicted 8 to acquire the money.

A) Payment guarantee amounting to KRW 80 million, and details of issuance of employee reduction certificates on November 16, 201

① 피해자 공소외 8은 수사기관과 원심 법정에서 비교적 일관되게 공소외 17로부터 소개받은 피고인 4가 ‘은행에서 BIS 비율을 맞추는데 사용할 돈 6억 원을 빌려주면 20일 후에 원금과 이자를 변제하고, 은행의 지급보증서도 발급받아 주겠다’는 취지로 말하였고, 2011. 11. 15. 피고인과 ▤▤ 호텔 및 ○○은행 △△△△지점 지점장실에서 두 번에 걸쳐 만났으며, 피고인이 ‘피고인 4와 거래가 있어 지급보증서를 발급해 줄 수 있다‘고 말하며 자신의 명함을 교부해 주어 이를 믿었다고 진술하였다. 공소외 8과 함께 피고인을 만났다는 공소외 16, 공소외 17의 각 수사기관 및 원심 법정진술도 이와 중요부분에서 일치한다.

The Defendant asserts that the victim Nonindicted 8, Nonindicted 16, and Nonindicted 17’s respective investigative agencies and the lower court’s statutory statements are inconsistent, and they are inconsistent with each other, and that the credibility of each of the above statements is low as the location of the base station according to the monetary content does not coincide with each other. However, the remaining important parts, excluding the part regarding the time and order, are consistent with each other, and it is difficult to expect that the Defendant accurately memorys of detailed matters, such as the date and time, at the time when two or more years have passed since the commission of the crime was committed, it cannot be said that each of the above statements is lower.

② Nonindicted 18, who works for the Audit Board of ○○ Bank, entered the counseling room at the ○○ Bank △△△△△△△△ branch (a branch office and counseling room at the ○○ Bank △△△△△△△△ branch office are immediately attached, and a door is an internal connection) on November 15, 2011 through CCTV in the lower court’s court court, and stated that the face was 10 minutes later. Although the face was not clearly verified, the above victim’s statement was not clearly verified, the credibility of the above victim’s statement was added to the above victim’s statement ( Although Nonparty 8 requested a bank to keep the CCTV at the △△△△△△△△△△ branch, ○ Bank was ordinarily kept for two months, and on the day it was kept in the USB, it was not always deleted by Nonindicted 18’s request to keep the CCTV.

③ 피고인은 2011. 11. 15. 양재동에서 ○○은행 지점장들과 점심을 먹고 잠실과 청담동을 거쳐 14:00경 ○○은행 △△△△지점으로 돌아왔고, 공소외 8이 ○○은행 △△△△지점장실에 들어왔다고 주장하는 13:30경에는 은행에 없었다고 다툰다. 피고인의 발신내역에 의하면 휴대폰 발신 기지국 위치가 당일 11:41경 (주소 1 생략) ▽▽빌딩, 13:05경 (주소 2 생략) ☆☆빌딩, 13:37경 (주소 3 생략) ▽▽빌딩, 13:42경 (주소 4 생략) ◎◎고W, 14:16경 강남구 (주소 5 생략) ◁◁빌딩으로 확인된다. 위에서 본 바와 같이 2011. 11. 15. 13:30 ~ 14:00경 ○○은행 △△△△지점 상담실에서 피고인과 공소외 8 등이 만난 사실이 인정되는 이상 그 시간대의 위 휴대폰 발신 기지국 위치 기재만으로 그와 같은 사실을 뒤집기에 부족하다.

④ The Defendant was forged the payment guarantee certificate and the employee reduction certificate, which Defendant 5 received from Nonindicted 20, which was introduced through Nonindicted 19 on October 20, 201 through the case of forgery of the payment guarantee and employee reduction certificate, which occurred prior to the commission of the crime. On October 20, 201, Nonindicted 3 confirmed on October 20, 201, that the payment guarantee and the employee reduction certificate, supra, deemed the Defendant at the ○ Bank △△△△△△△△ Branch Office, were forged on November 16, 201, and that it was aware of the fact that it was attached to the KRW 80 million payment guarantee certificate.

⑤ The Defendant asserts that, in light of the practice of which the employee reduction system is not attached to a payment guarantee certificate, the Defendant may prove that the Defendant is irrelevant to the crime. However, the existence of a forged employee reduction system can not be verified by the general public as to the amount exceeding the right of the head office’s approval on the amount of payment guarantee exceeding the right of the head office. As such, it is difficult to view the existence of an employee reduction system alone to prove that the Defendant is irrelevant to the crime.

B) The process of distributing the amount of damages and money;

① At an investigative agency and the lower court’s court, on November 16, 201, Nonindicted 8 brought a payment guarantee of KRW 800 million and confirmed that he/she was using a general telephone at ○○ Bank △△△△△△△△△△△△△△△△△△△△ on the same day, Nonindicted 8 called the Defendant at around 12:02:50 and around 12:42 on the same day, and stated that he/she paid KRW 50 million to Defendant 4 on November 16, 201. In addition, according to Nonindicted 8, Defendant 4, and Defendant’s monetary statement according to the empirical rule, Nonindicted 8 believed that he/she would have paid KRW 50 million to Defendant 4,000,000 on the same day, and that he/she again called the Defendant at around 12:08:48 on the same day, and that he/she had confirmed that he/she would have paid KRW 500,000.

② 금원 배분과 관련하여, 피고인 5는 수사기관과 원심 법정에서 ‘피고인 4로부터 1억 6,000만 원을 교부받아 2011. 11. 16. 오후 3시경 여의도 ▥▥호텔에서 피고인, 피고인 2를 만났는데, 피고인은 자신을 보자 피고인 2와 잘 상의해서 처리하라며 나갔고, 자신이 피고인 2의 지시를 받아 금원을 지급 또는 송금하였다. 1억 6,000만 원 중 5,000만 원은 합의금 명목으로 1심 공동피고인에게, 2,000만 원은 위조범 공소외 20에게 각 지급하였고, 2,000만 원은 공소외 12에게, 2,000만 원은 공소외 22에게, 300만 원은 피고인 2의 처인 공소외 23에게 각 송금하였으며, 현금 3,000만 원은 피고인 2가, 나머지 1,700만 원은 자신이 나눠가졌다’라고 일관되게 진술하였다. 1심 공동피고인의 원심 법정진술, 송금계좌 내역(수사기록 순번 49번 제21쪽)도 위 진술에 부합한다.

③ 피고인은 ○○은행 심의위원회로부터 2011. 11. 16. 오후 2시에 ○○은행 본점 3층에 있는 검사실에 출석할 것을 요구받았으므로, 자신은 위 일시에 여의도 ▥▥호텔에 가지 않았다고 다투며, 심의위원회 소명안내서(수사기록 순번 61번 제221쪽)를 제출하였다. 그러나 피고인의 통화내역에 의하면 피고인 2가 같은 날 13:28경 피고인에게 여의도 일대에서 전화를 건 사실과 피고인이 같은 날 14:10경 피고인 2에게 여의도 일대에서 전화를 건 사실, 피고인이 그때부터 14:57경까지 여의도 일대에 있었던 사실이 인정된다.

④ Nonindicted 12 also stated at the police that “Defendant 2, who was introduced through Defendant 2, transferred money to Defendant 2,00,000 won to Defendant 2, she her mother and her mother and her mother, and Defendant 5 stated to the effect that “The transfer of money to Defendant 2 was made with Defendant 2’s secretary, who was her mother and her mother and her mother, with Defendant 2’s instructions.” However, Nonindicted 12 stated to the effect that “The above KRW 20 million was not lent to Defendant 2, but that Nonindicted 2 transferred money to Defendant 2, who was her mother and her mother to Defendant 2, and that it was difficult for Defendant 2 to know that Nonindicted 2 was her face at the time of this case’s disclosure to Defendant 2, including Nonindicted 12 and Nonindicted 2, who was her mother and her mother, and that it was difficult for Defendant 2 to know that it was a considerable amount of conversation between Defendant 2 and Defendant 15,000 won.”

C) Defendant’s speech and behavior after committing the crime

① Inasmuch as the Defendant 4 did not pay the money even after the 20th day after the instant crime was committed at an investigative agency and the court of the court below consistently, Nonindicted 8 stated that he would not pay the money to the Defendant on December 12, 2011; on January 13, 2012; and on January 16, 2012, Defendant 4 would not pay the money; thus, he would have presented a payment guarantee letter to the bank; accordingly, the Defendant had been waiting to present it on the counter on the date of maturity of the payment guarantee; however, after a telephone call on January 16, 2012, the Defendant was waiting for presenting it on the first day, but the fact was found to have been verified the authenticity of the payment guarantee letter directly at ○○ Bank △△△△△△△△ branch on January 19, 2012. According to Nonindicted 8’s telephone calls, the fact of the Defendant and the Defendant could have been recognized.

② At the investigative agency, the Defendant denied that there was no call with Nonindicted 8 at the first time. However, while showing and pursuing the Defendant’s monetary content, Nonindicted 8 said that he had a written payment guarantee issued by him by telephone, but he did not issue a written payment guarantee because he did not have a timely issuance of the said written payment guarantee, and reversed the above statement of denial.

③ At the time, there was a disturbance at a bank in connection with a false issuance of a payment guarantee certificate and an employee identification card as of October 20, 201, it seems reasonable that the Defendant memorys the content of the certificate if the Defendant received a call from Nonindicted 8 that he did not issue the certificate, and it is in accord with the empirical rule to establish ex post facto measures to prevent another problem, such as actively ascertaining the fact and requesting investigation to an investigation agency, etc. However, the Defendant, without confirming it or requiring the bank to take ex post facto measures, is recognized only by frequent contact with Defendant 2 and Defendant 5 around that time, contrary to ordinary rules.

D) The motive for committing the crime

① Defendant 5 consistently stated at the investigative agency and the court of the court below consistently that Defendant 5 delivered KRW 50 million out of KRW 6.5 million to the victim Nonindicted 5’s non-indicted 5’s 6.5 million, which was acquired through the forgery of the payment guarantee letter and the employee identification certificate on October 20, 201. Even if Defendant 5 did not deliver KRW 50 million to the Defendant, the actual victim of the instant case’s ○ Bank △△△△△ branch and the head office, thereby demanding the Defendant, including the first instance trial, to issue the Defendant’s payment guarantee letter, and thus, Defendant 2, including the Defendant, and Defendant 5 were required to pay the amount of damages.

② According to the explanation statement of the Bank Deliberation Committee, the records of non-prosecutions, and the decision-making on non-prosecutions (Investigation Record No. 3270). Since around 2010, it is recognized that the Defendant was conducting deliberation within ○ bank and accused of the investigation agency on the grounds that ○○ Bank was dealing with unsound credit, such as providing loans without reasonable recovery of claims, with respect to loans implemented at △△△△△△△△△ branch, etc., since then, 2010, it appears that

③ 피고인 5는 수사기관에서, 피고인이 공소외 12 명의로 평창 ▷▷▷호텔을 인수받았는데 평창 올림픽 개최가 늦어지면서 자금압박을 받고 있다는 말을 피고인 2로부터 들은 사실이 있다고 진술하였다. 서울중앙지검 2011형제101903호 사건과 관련된 각 약정서(수사기록 제2984쪽, 제3023쪽)의 기재와 피고인에 대한 피의자신문조서(수사기록 제3011쪽)의 진술기재에 의하면 공소외 12가 공소외 24와 함께 공소외 25 회사의 대표이사로서 평창 ▷▷▷호텔 경매에 참여해 이를 인수하는 과정에 피고인이 참여하였고, 그 과정에서 일부 금액을 손해 본 사정이 인정된다.

2) The judgment of this Court

In full view of the circumstances in the lower court’s reasoning and the following circumstances admitted by the evidence duly admitted and investigated by the lower court, it is reasonable to conclude that the Defendant, in collusion with Defendant 2, Defendant 4, and Defendant 5 in sequence, committed the act of forging the employee reduction system on November 16, 201, and using the false payment guarantee and the false payment guarantee together with the victim Nonindicted 8’s fraud, and the lower court did not err by misapprehending the legal doctrine as alleged by the Defendant.

가) 피고인은 2011. 11. 15. 점심시간에 ○○은행 잠실남 지점장 공소외 51, 양재북 지점장 공소외 52를 만나 양재동 부근에서 함께 식사를 하고, 자신의 차량으로 공소외 51을 잠실 부근에 데려다 준 다음 ○○은행 △△△△지점으로 돌아왔으며, 이 사건 당일에는 코엑스 ▤▤ 호텔에 간 적이 전혀 없다고 주장한다. 공소외 52의 당심 법정 진술, 공소외 52 진술서에 첨부된 영수증 사본 및 ○○은행 양재북 지점 경비지급처리 전산증빙서류 등은 피고인의 위 주장에 부합한다. 그러나 다음과 같은 사정들을 종합하여 보면, 피고인의 위 주장을 그대로 받아들이기 어렵다.

① 피고인 5는 원심 법정에서 ‘피고인이 직접 ▤▤ 호텔에 가서 채권자를 만나보겠다고 하였고, 피고인이 호텔에 왔을 때 자신이 직접 피고인의 차량을 주차시켰다’라는 취지로 진술하였다( 2014노2690 공판기록 256쪽).

② 피고인 5, 피고인 4, 공소외 17, 공소외 16 및 공소외 8은 2011. 11. 15. 피고인을 ▤▤ 호텔에서 만난 사실이 있다고 진술하고 있는데, 그 만난 시각에 관하여는 기억이 서로 정확하지 않으나 모두 점심 무렵에 만났다고 한다.

공소외 8의 발신 내역에 의하면, 공소외 8은 2011. 11. 15. 13:08경부터 13:12경까지 강남구 (주소 6 생략) ◈◈빌딩에 있는 기지국을 통하여 휴대전화를 발신한 사실이 인정된다. 에스케이텔레콤 사실조회 회신에 의하면, ◈◈빌딩은 ▤▤ 호텔에서 발신하는 경우 연결되는 기지국은 아니나, 그 위치가 ▤▤ 호텔에서 멀리 떨어지지 않은 곳에 있고, 여기에 공소외 8이 ▤▤ 호텔을 찾지 못하여 주변에서 헤맸던 정황을 더하여 보면, 위 발신 내역은 호텔에 도착하기 직전 공소외 8이 공소외 17, 공소외 16과 통화한 것으로 보인다.

한편, 피고인의 발신내역에 의하면, 피고인은 2011. 11. 15. 13:37경 (주소 3 생략) ▽▽빌딩, 13:42경 (주소 4 생략) ◎◎고W, 14:16경 강남구 (주소 5 생략) ◁◁빌딩에 각각 소재하는 기지국을 통하여 휴대전화를 발신한 사실이 인정된다. 피고인의 이동 경로를 고려할 때, 피고인이 공소외 51을 데려다주고 ○○은행 △△△△지점으로 돌아오는 길에 ▤▤ 호텔에 들르는 것도 가능하다.

따라서 피고인이 청담동(◎◎고 인근)에서 삼성동으로 이동하는 13:42경부터 14:16경까지 사이에 중간 지점에 있는 ▤▤ 호텔에서 공소외 8 등을 만났을 여지도 충분하다.

③ Nonindicted 17, 16, and 8 made a statement with the assent of all about unique matters, such as that they met the Defendant before drinking the point of view, and that the Defendant was found to run the Arives car ( Nonindicted 7 of the case No. 2014Dahap535) [it appears that the witness of Nonindicted 7 of the case No. 2014Dahap535 appears to have held the trust of Nonindicted 17, 16, and 8 of the lower court’s statement to the effect that “The Defendant was at the location where the Defendant 2 created a guarantee letter of payment, but it was apparent that the branch head of the branch, but he was at the location of the branch, and that the clothes of the Defendant in the color of the Nexnae should be the Kexnae or the Arts, and that the Defendant thought that it was at the location of the branch,” regardless of the status of the branch head of the bank (Article 2014No26914).

나) 피고인은 2011. 11. 15. ○○은행 △△△△지점장실에서 공소외 17, 공소외 16 및 공소외 8을 만난 사실이 없다고 주장한다. 그러나 피고인은 2011. 11. 15. 14:16경 강남구 (주소 5 생략) ◁◁빌딩에 있는 △△△ 기지국을 통하여 휴대전화를 발신한 내역이 있고, 공소외 8은 2011. 11. 15. 14:53경 위 △△△ 기지국을 통하여 휴대전화를 발신한 내역이 있으므로, 그 무렵 피고인과 위 피해자는 ○○은행 △△△△지점에 있었던 것으로 보인다( 2014노2690 공판기록 1240쪽, 에스케이텔레콤 사실조회 회신). 따라서 점심 식사를 하고 ○○은행 △△△△지점장실에서 피고인을 만났다는 공소외 17, 공소외 16 및 공소외 8의 각 진술은 신빙성이 있고, 이는 공소외 8이 ○○은행에 민원을 제기할 때 CCTV 보존을 요청하면서 지점장실을 방문한 시간을 2011. 11. 15. 13:30경∼14:00경으로 특정하였다고 하더라도 마찬가지이다.

C) Defendant 4 found Defendant 4 as ○○ Bank along with Nonindicted 17, 16, and 8 in the court below’s trial. In light of the contents of Defendant 4’s sending (the location of the base station and the currency between Defendant 4 and Nonindicted 17), Defendant 4 was waiting at the first floor of the bank, Nonindicted 17, 16, and Nonindicted 8 entered the branch office, and was about 10 to 15 minutes. Defendant 4 stated to the effect that, after that, at the time of the branch office, Defendant 4 got out of the branch office, Defendant 4 received a payment guarantee from Defendant 5 by waiting at the bank with Nonindicted 17 and waiting at the place where the branch office was located 30 meters away from the bank (684 pages of the trial record 2014No2690), it is difficult to accept Defendant 4’s assertion that, in full view of the following circumstances, Defendant 4 was false at the place of ○○○△△△△△ branch.

① According to the contents of Defendant 4’s sending, Defendant 4 made a mobile phone call from around 13:38 to 14:59 on November 15, 201, and from around 15:53 to 16:16, through a base station located in Gangnam-gu Seoul ( Address 12 omitted). Of that, Defendant 4 appears to have made a phone call with Nonindicted 17. However, even though Gangnam-gu Seoul ( Address 12 omitted), Defendant 4 was somewhat far away from ○○ Bank △△△△△△△△△△△△△△△△△ branch, it is difficult to view that Defendant 4 contradicts the statement to the effect that Defendant 4 was waiting around ○ Bank △△△△△△△△△△△△△ branch, and Defendant 4 made a statement to the effect that “A time far away from Nonindicted 17, such as whether to obtain a mixed payment guarantee” in the court of the first instance, it is difficult to deem that Defendant’s overall statement acknowledged credibility of Defendant 4’s statement.

② Furthermore, in the court below’s decision, Defendant 5 stated in regard to the reason that the Defendant did not issue a direct payment guarantee certificate to Nonindicted 8 in the branch room, Defendant 5 stated in the court below that “When the head of a branch room was, the head of a branch room would have been considered to have many snows of employees due to the case of the government.” That said, the head of a branch office stated that “it is difficult for Defendant 4 to deliver to the bank the head of a branch office directly because the head of a branch office was not free from a bank because of other cases.” Accordingly, Defendant 4 provided a statement to the effect that “The head of a branch office would not be free from a bank’s location, and if the head of a branch office confirmed and processed the telephone, it would be so that Defendant 4 would do so.” (No. 2014No2690 trial record 297 pages).

라) 피고인은 피고인 4가 2011. 11. 16. 피고인의 개인 휴대전화가 아닌 ○○은행 △△△△지점 일반전화로 전화하였고, 공소외 8이 피고인에게 전화하여 약 25초 동안만 통화한 점을 들어, 피고인 4가 피고인이 가담한 것처럼 허위 진술을 하였다고 주장하고, 피고인 4에게 돈을 주라는 피고인의 말을 믿고 돈을 빌려주었다는 공소외 8의 진술에 대하여도 의혹을 제기한다. 그러나 피고인 4는 ○○은행 △△△△지점 일반전화로 전화하여 약 2분가량 통화를 하였고, 바로 이어 공소외 8은 피고인의 개인 휴대전화로 직접 전화하였다. 따라서 피고인 4가 ○○은행 △△△△지점에 일반 전화로 전화하였다거나 공소외 8이 피고인과 통화한 시간이 짧다고 하여도, 피고인의 주장처럼 피고인 4가 피고인과 통화하지 않았음에도 마치 통화를 한 것처럼 꾸몄다고 보기에는 무리가 있다. 공소외 17도 수사기관 및 원심 법정에서 ‘공소외 8이 피고인에게 전화하여 지급보증서를 믿고 돈을 줘도 되느냐는 취지로 제 앞에서 바로 전화를 하여 확인하였다’라는 취지로 진술하였다.

E) As examined in the part of the judgment of the court of first instance, it is recognized that the Defendant denied the payment guarantee certificate issued on October 20, 201. In addition, as to Defendant 5’s delivery of KRW 50 million out of KRW 160 million delivered by Defendant 4 to co-defendant 4 under the agreement regarding the above payment guarantee, the statement of Defendant 5 and co-defendant 1 in the court of first instance is consistent. Accordingly, even if the money paid to Nonindicted 22 and 12 out of the above KRW 160 million as the Defendant’s assertion was irrelevant to the Defendant, the relationship with the Defendant in the process of distribution of the amount of damage cannot be denied. Furthermore, since Defendant 4 did not have presented the payment guarantee certificate to ○ bank if the payment guarantee was paid to Nonindicted 8 by the due date, the Defendant appears to have been involved in the instant crime in the situation where it was somewhat dangerous to prepare an agreement on payment guarantee issued on October 20, 2011.

바) 피고인은, 2011. 11. 16. 당초 ○○은행 본점에서 개최될 심의위원회에 출석할 예정이었는데 심의위원회가 취소되면서 ♠♠노총 공소외 27 위원장을 만나기 위하여 여의도 부근에 갔던 사실은 있으나, 피고인 2나 피고인 5와 약속에 따라 여의도로 간 것은 아니라고 주장한다. 피고인이 2011. 11. 16. 14:40경 및 14:43경 ♠♠노총의 대표전화로 발신한 내용의 통화내역은 피고인의 위 주장에 부합한다. 그러나 다음과 같은 사정들을 종합하면, 피고인의 위 주장을 받아들이기 어렵다.

① 피고인 스스로도 당심 법정에서, ‘공소외 27이 그 전날인 2011. 11. 15. 피고인에게 2011. 11. 16. 만날 수 있을지 없을지 잘 모르지만 일단 여의도로 오라고 하여 그 날 공소외 27을 만나기 위하여 여의도로 갔는데, 공소외 27이 사무실에 없고 전화 통화도 안 되어서, 커피숍에서 기다리면서 혹시 공소외 27이 돌아왔는지 확인하기 위하여 두 차례 ♠♠노총에 전화하였다’라는 취지로 진술하여, 결국 피고인은 2011. 11. 16. 공소외 27을 만나지 못한 것으로 보인다.

② 피고인의 발신 내역에 의하면, 피고인은 2011. 11. 16. 14:10경부터 14:53경까지 4차례 영등포구 (주소 6 생략) ♡♡빌딩에 있는 기지국을 통하여 휴대전화를 발신한 내역이 있고(♡♡빌딩은 여의도 ▥▥호텔과 가까운 거리에 있다), 그 중 14:10경 발신 내역은 피고인 2와 통화를 한 것이다. 따라서 그 무렵 여의도 ▥▥호텔에서 피고인 2와 함께 피고인을 만났다는 피고인 5의 진술은 신빙성이 있다.

4. Judgment on the mistake of facts and misapprehension of legal principles by Defendant 2

A. As to the judgment of the first instance court

1) The judgment of the court below

In full view of the following circumstances admitted by the evidence adopted, the lower court determined that it was sufficiently recognized that the Defendant conspired with Defendant 3, Co-Defendant 1, and Defendant 5 in order to arrange for the issuance of the payment guarantee and to receive money and valuables.

① Co-defendant in the first instance trial consistently asked Defendant 3 to ask Defendant 5 and Defendant 5 again about the issuance of payment guarantee certificates from investigative agency to the court of the lower trial. Defendant 5 introduced Defendant 5 to the effect that “A person is a person who may deposit a large amount of money with ○ Bank, and obtain payment guarantee certificates by making efforts to the head of a branch office.” There is no reason for Co-defendant in the first instance trial to make a false statement while under his criminal responsibility.

② Defendant 5, consistently from the investigative agency to the court of the court below, consistently upon the request from co-defendant 1 to co-defendant 1, delivered to the Defendant a letter of payment guarantee issued by ○○ Bank through Defendant 1, upon receipt of the request from co-defendant 1, and made a statement to the effect that the Defendant committed the instant crime on the ground that he was aware of the progress with Defendant 1.

③ 공소외 28도 일관되게 피고인이 ▒▒▒ 일식집에서 거액이 든 통장을 보여주며 ‘자신이 ○○은행에 거액을 예치하고 있고, ○○은행 지점장을 소개시켜주고 지급보증서를 끊어줄 수 있으니 같이 은행에 가자’는 취지로 말하였다고 진술하고 있다.

④ The Defendant also stated that there was a fact that he displayed the passbook in which KRW 30 billion was included in Defendant 5’s vice versa. This is consistent with Nonindicted 28’s above statement, and if Nonindicted 28 simply consulted on whether it was possible to lend money secured by the oil reservoir as security, the Defendant seems not to have to have any need to present his re-written power to Nonindicted 28.

⑤ The co-defendant and Defendant 5 appears to have discussed about the control of the present situation by finding the Defendant immediately, who revealed that the payment guarantee was forged.

6) According to the case of issuing the same payment guarantee letter as this case, Nonindicted 11, which is in trial at the Seoul Central District Court, stated that the person who actually assumes the case is the defendant, and the defendant issued a forged payment guarantee letter by drawing up Defendant 1.

2) The judgment of this Court

Defendant 1 asserts that Defendant 5 was unrelated to the instant crime, given that the number of calls made by Defendant 1 to Defendant 5 more than the number of calls made to Defendant 1. However, as seen earlier, insofar as Defendant 1’s conspiracy was acknowledged, there seems to have been a need to directly communicate with Defendant 5 by seeking an employee who was forged. Accordingly, Defendant 1’s frequent call with Defendant 5 around October 20, 201 does not interfere with recognizing the Defendant’s participation in the instant crime.

In addition, a thorough examination of the judgment of the court below in comparison with the evidence related to adoption, the judgment of the court below that recognized the fact that the defendant conspireds with the defendant 3, co-defendant 3, and defendant 5 in order to arrange for the issuance of payment guarantee certificates and received money and valuables in return for the issuance of payment guarantee certificates by the defendant 1, the head of bank branch office, is sufficiently acceptable

B. As to the judgment of the court below

1) As to the case No. 2013 Highest 1493

A) The judgment of the court below

In light of the following circumstances acknowledged by the evidence adopted, the lower court determined that the Defendant conspired with other accomplices to forge the employee identification system of Nonindicted 46 and to use a false payment guarantee and to acquire money from Nonindicted 8 by defrauding the money from Nonindicted 8.

① On May 201, Defendant 5 consistently introduced the Defendant as a doctor’s at the investigative agency and the lower court’s court’s court to engage in foreign exchange affairs. Around May 201, Defendant 5 came to know the Defendant’s work, and was employed as his secretary and article, Defendant 1 was introduced through the Defendant, and most of Defendant 1 was contacted through the Defendant. Defendant 1 and Nonindicted 12 also stated at the investigative agency that Defendant 5 took the form of Defendant 5’s work as the Defendant’s secretary.

② Defendant 5 received the Defendant’s order and reported at the time of carrying out all the activities related to the instant case. Defendant 5 received the Defendant’s letter of payment guarantee amounting to KRW 800 million and the employee identification certificate issued on November 16, 201 through Defendant 1; Defendant 1 received the case’s private person; Defendant 5’s letter of payment guarantee and employee identification form could not reduce the amount of financing at ○ bank; and Defendant 5 stated that it was forged via Nonindicted 20 in the same way as the payment guarantee issued on October 20, 2011.

③ As seen earlier, Defendant 5 distributed KRW 160 million acquired through the instant crime to Nonindicted 12 through the Defendant’s instruction. Of that, it is reasonable to view that KRW 20 million remitted to Nonindicted 12 and KRW 3 million remitted to Nonindicted 23, and KRW 30 million that the Defendant brought to cash as profits acquired by the instant crime.

④ Defendant 1 sent an ordinary call to the Defendant. However, on November 15, 201, which was the date of the instant crime, Defendant 1 frequently exchanged or sent letters with the Defendant, and on November 16, 201, Nonindicted 8 frequently contacted Defendant 1 on the date when Nonindicted 8 demanded an amount of money by calls with Defendant 1. As to the contents of the said call, Defendant 1 and Defendant 1 and Defendant’s investigative agency’s statements, including the fact that Defendant 5 requested contact with Defendant 1 by wanting to communicate with Defendant 1, or confirmed the fact that he was issued a false payment guarantee certificate. It is difficult to understand that each statement made by Defendant 1 and Defendant’s investigative agency was based on the date, time, frequency, time, etc. of the call.

B) The judgment of this Court

In full view of the circumstances in the lower court’s reasoning and the following circumstances admitted by the evidence duly admitted and investigated by the lower court, it is reasonable to conclude that the Defendant, in collusion with Defendant 1, 4, and 5, forged the employee reduction system on November 16, 201, and acquired the borrowed money from Nonindicted 8 by using a false payment guarantee and accompanied by a false payment guarantee. In so doing, the lower court did not err by misapprehending the legal doctrine or misapprehending the legal doctrine as argued by the Defendant.

① Defendant 5 asserts that Defendant 5 is not his own letter or article. However, Defendant 5, Defendant 1, and Nonindicted 12 stated that Defendant 5 served as Defendant 5’s performance of the duty to make a false statement on this part. Defendant 5, etc. may not find any motive for Defendant 5, etc. to make a false statement on this part.

② Defendant 5 asserts that it is impossible for Defendant 5 to perform all the activities according to Defendant’s instructions on November 15, 201. According to Defendant 4’s statement, Defendant 4 already requested Defendant 5 to issue a payment guarantee certificate via Defendant 1 on November 8, 201, and Defendant 5 appears to have reported the fact to Defendant on November 15, 201, and have sought final permission. Defendant 5 had already participated in the issuance of the payment guarantee certificate as of October 20, 201, and there was an urgent need to prepare such agreement, and thus, it is also understood that Defendant 5 and Defendant 5 have been engaged in a swift solicitation for the crime under this part.

③ The Defendant asserts that the money remitted to Nonindicted 12 is irrelevant to himself. However, Defendant 5 stated in the lower court court’s trial that the Defendant transferred the money by entering the account number of Nonindicted 12 (2014No2690) and Nonindicted 12 also stated to the effect that he remitted money to Defendant 5 upon the Defendant’s instruction at the police investigation (Nonindicted 12 reversed the statement to the effect that he remitted money to Nonindicted 12 at the prosecutor’s office and the lower court’s court’s court, but that there was no credibility of the reversal statement, the relationship between the Defendant and Nonindicted 12 is difficult to deny.

④ Defendant 5 asserts that it is difficult to believe that Defendant 5 gave 30 million won in cash, excluding the check number of KRW 14 million. However, according to Defendant 4, Defendant 5’s statement and the reply to fact-finding of the Korea Exchange Bank, Defendant 4 exchanged part of the amount received from Nonindicted 8 with 310 million cashier’s checks of KRW 16 million and KRW 20 million, whichever is KRW 10 million, and KRW 45 million in cash (number 1 through 16), and KRW 4,000 in cash (number 17 through 20,000) and KRW 50,000 in cash (number 1 to 16,000) and KRW 50,000 in cash (number 3,000) and KRW 16,50,000 in cash (number 17 to 200,000). Defendant 2510,000,00 won in cash (number 4,000).

2) As to the case No. 2014Gohap642

A) The judgment of the court below

In light of the following circumstances admitted by the evidence adopted, the lower court determined that the Defendant conspiredd with Defendant 5 and Defendant 1 to forge the employee identification system on October 20, 201 and participated in the exercise of that system against Nonindicted 3.

① 1심 공동피고인은 수사기관에서, 2011. 10. 20.자 지급보증서 발급에 대하여 피고인 3으로부터 문의를 받아 피고인 5에게 이를 다시 문의하였고, 피고인 5가 ‘○○은행에 거액을 예치하고 있고, 지점장에게 힘을 써서 지급보증서를 발급받게 해줄 수 있는 사람이다’라는 취지로 피고인을 소개하였으며, 2011. 10. 20.자 지급보증서 및 사용인감계 발급과 관련하여 ▒▒▒ 일식집에서 피고인과 공소외 28을 함께 만난 사실이 있고, 범행이 발각된 후 피고인 5와 함께 피고인을 다시 만나 대책을 논의하였다는 취지로 진술하였다. 1심 공동피고인은 자신의 형사책임이 인정되는 상황에서 그 책임인정과 특별히 관계가 없어 보이는 피고인의 관여정도에 대해서 허위로 진술할 이유는 없을 것으로 보인다.

② Defendant 5, consistent in the investigative agency and the court of the court below, had been reported to the Defendant during all days as Defendant’s secret, from May 201 to May 201, and received his instructions. At the time of committing the crime, Defendant 5, upon the request of the Co-Defendant 1 to “the confirmation of the issuance of ○ Bank’s guarantee certificate through Defendant 1,” sent the request of the Co-Defendant 1 to the Defendant, and stated to the effect that Defendant started the implementation on the part of Defendant 1 as Defendant 1’s secret.

③ On October 20, 2011, Defendant 5 asked Defendant 1 through the Defendant about the issuance of a payment guarantee certificate and an employee identification system, and the Defendant knew that there was no payment guarantee form inside a ○ bank, and consistently stated that the Defendant was forged through Nonindicted 19, and that all these matters were reported to the Defendant.

④ On October 20, 201, Co-Defendant 5 and Co-Defendant 5 came to know that there was a forgery of the payment guarantee and employee identification system as of October 20, 201 through Defendant, and immediately discussed about the situation management by finding the Defendant. The Defendant instructed Co-Defendant 5 to deliver to Defendant 1 the amount equivalent to KRW 66.5 million, which Non-Party 5 remitted to Defendant 5, out of the amount acquired by committing a crime, to recover the payment guarantee and employee identification system forged by Non-Party 2.

B) The judgment of this Court

As a result of a thorough examination of the judgment of the court below compared with the adopted evidence, the judgment of the court below that the defendant conspired with the defendant 1 or 5 on October 20, 201 that the defendant was involved in forging the employee identification system and exercising it against the non-indicted 3 is justified, and there is no error of law by mistake of facts or by misapprehending legal principles, such as the defendant's assertion.

5. Judgment on the assertion of mistake of facts by Defendant 4

A. As to the assertion that he was unaware of the fact of the payment guarantee and the forgery of employee identification system

1) The judgment of the court below

In full view of the following circumstances admitted by the evidence adopted by the lower court, the lower court determined that the Defendant was aware that the payment guarantee certificate was false and that the employee reduction certificate was forged on November 16, 201.

① Defendant 5 consistently sought funds from the investigative agency and the lower court on October 20, 201 in the form of a written guarantee for payment guarantee and an employee reduction case, which was introduced through Nonindicted 19, stated that Defendant 5 was offered a proposal that he would pay 20% of the amount of the payment guarantee issued as commission if he/she would issue a written guarantee for payment guarantee of KRW 800,000,000 from the Defendant introduced through Nonindicted 19.

② Nonindicted 19, who introduced the Defendant and Defendant 5, introduced the false payment guarantee as of October 20, 201 and Nonindicted 19, to Defendant 5 at the time of issuance of a forged employee reduction certificate, which was the forged employee issuance. Around that time, when the Defendant sought a financing through Nonindicted 17, and the payment guarantee is needed, he seems to have proposed to Defendant 5, who sought a mutual agreement on the crime as of October 20, 201 through Nonindicted 19, to commit a similar crime. < Amended by Presidential Decree No. 23284, Oct. 20, 2011>

③ In order to issue a payment guarantee certificate from a bank, it is a general case where the bank has deposited money equivalent to the face value of the payment guarantee certificate in the bank, or issued a payment guarantee certificate in the form of providing the bank with an equivalent human and material security. However, the Defendant did not have made a deposit or offered a security, but did not go through a normal procedure to submit documents to the bank in connection with the issuance of the payment guarantee certificate. The Defendant seems to have already known that the payment guarantee certificate in the amount of KRW 800 million is

④ 피고인은 8억 원 지급보증서가 피고인 1 지점장의 전결로 정상적으로 발급되는 것으로 알았다고 다툰다. 그러나 피고인은 피고인 1을 ▤▤ 호텔에서 잠시 보았을 뿐, 피해자 측이 ○○은행 △△△△지점장실에 갈 때도 같이 가지 않았고, 지급보증서도 피고인 1이 아닌 피고인 5로부터 은행 외부에서 교부받았다. 이런 사정에 비추어 보면 피고인의 진술을 그대로 믿기 어렵다.

⑤ In order to issue a normal payment guarantee certificate, it would not be deemed that a bank deposits money or provides a reasonable security, and an application for the issuance of a payment guarantee certificate after paying a fee related to the issuance of a certain payment guarantee, and there is no other reason to pay money as a fee to the head of a bank branch. However, it is sufficient to interpret that the Defendant already paid a large amount of money exceeding KRW 160 million, the face value of which is 20% of the payment guarantee certificate issued, with a fee for issuing a payment guarantee certificate. This is sufficient to interpret that the Defendant already paid a payment guarantee certificate as a consideration for the issuance of a payment guarantee certificate without going through a normal

6) The Defendant first stated the debtor’s name as Nonindicted 29, not himself, and issued a payment guarantee letter, and it is difficult to understand that the bank did not have any doubt about the issuance of a payment guarantee certificate without properly verifying who is the debtor.

7) Without intervention of other Defendants, the Defendant issued a separate payment guarantee letter in the amount of KRW 80 million, which is the same as the payment guarantee letter in the amount of KRW 2.5 billion, within five days after the Defendant committed the instant crime, and carried out the payment guarantee letter in the amount of KRW 17 billion. The Defendant also knew that the payment guarantee letter in the amount of KRW 80 million was prepared in a false manner, it appears that it could have been issued without intervention of Defendant 1.

① On January 20, 2012, the following day after the Defendant revealed that the payment guarantee letter was false, the Defendant resisted ○ Bank with Nonindicted 8 on January 20, 2012, which is likely to be an action to avoid his/her responsibility.

2) The judgment of this Court

In light of the circumstances in the lower court’s reasoning and the circumstances acknowledged by the evidence duly adopted and examined by the lower court, including: (a) the Defendant was aware of the fact that the payment guarantee certificate was false on November 16, 201 and the employee reduction certificate was forged; and (b) the lower court did not err by misapprehending the legal doctrine, such as the Defendant’s assertion.

B. As to the assertion that there was no intention to commit fraud at the time of additional borrowing

1) The judgment of the court below

The lower court determined that, in full view of the following circumstances, particularly the Defendant’s financial history, the details of the offense, the process of performing transactions, etc. admitted by the evidence adopted by the lower court, it was recognized that the Defendant, who received a loan from the bank, by deceiving the victim Nonindicted 8 to repay the borrowed amount, thereby deceiving the victim Nonindicted 8 in addition to

① Since 2002, the Defendant had become liable for the debt amounting to KRW 400 million in September 201, where approximately one year had not elapsed since the date of the instant case.

② 피고인은 ▣▣은행 ●●● 지점에 개설된 공소외 30 주식회사 계좌에 50억 원이 예치되어 있었고, 추가로 50억 원을 예치하여 이를 담보로 대출을 받으려고 준비하였으나, 당초 예상대로 진행되지 못한 것에 불과하다고 주장한다. 그러나 피고인은 위 계좌에 50억 원 이상 예치되어 있음을 증명하기 위해 ▣▣은행에 금융정보제출명령을 신청한 후 ▣▣은행에서 법인번호가 아닌 사업자번호로 재요청해 달라고 회신하였음에도 다시 금융정보제출명령을 신청하지 않았다.

③ Even if the Defendant was granted a loan from a bank, the Defendant made efforts to make an investment in futures option and make profits therefrom, and stated that the Defendant did not have the ability to make a separate payment to the victim Nonindicted 8.

④ Even after it has been revealed that the payment guarantee letter was false, the Defendant received additional payment of KRW 30 million to the victim non-indicted 8,000,000 by promising that only some interest would accrue in a bank, and that the Defendant would receive a loan from the bank to pay the damages incurred therefrom. As seen above, the Defendant failed to submit any materials to acknowledge whether the Defendant actually paid the said amount to the bank.

2) The judgment of this Court

As a result of a thorough examination of the judgment of the court below compared with the adopted evidence, it is proper to determine that the defendant did not have the intent or ability to repay the borrowed money at the time of borrowing additional money from the victim non-indicted 8, and there is no error of mistake of fact as alleged by the defendant.

6. Judgment on the prosecutor's misconception of facts and misapprehension of legal principles

A. As to Defendant 3 (the second judgment of the court below)

1) Summary of the facts charged

On May 2010, the Defendant accessed Non-Indicted 31 to those who need payment guarantee along with Non-Indicted 31, and conspired to acquire money under the pretext of paying money as a fee for issuing a payment guarantee to the head of a branch office in a relative relationship with them and allowing them to receive a payment guarantee certificate from the above head of the branch office.

가) 공소외 31은 2010. 5.경 불상의 장소에서 피고인에게 ‘내가 시중은행 지점장 몇 명을 소개받은 사실이 있다, 위 지점장들에게 수수료를 지급하고 지급보증서를 발급받을 수 있으니 지급보증서를 필요로 하는 사람들을 물색해 봐라’라고 말하고, 피고인은 2010. 6.경 불상의 장소에서 피해자 공소외 9에게 ‘내가 아는 동생인 공소외 31이 은행 지점장들과 밀접한 친분이 있다, 공소외 31이 지점장들에게 지급보증서 발급을 위한 수수료를 지급하고 지점장들로부터 지급보증서를 발급받아 줄 수 있다고 하는데, 내가 한 번 알아봐 주겠다’라고 말하고, 2010. 9. 30.경 서울 강남구 논현동에 있는 오리리빌딩 4층에서 위 피해자에게 ‘공소외 31이 ◆◆◆이 ★★★★로부터 유류를 외상으로 공급받을 수 있도록 미지급 유류대금을 담보할 수 있는 ▼▼은행 발행의 10억 원 상당의 지급보증서를 발급받아 줄 수 있다고 하는데 알선 수수료 명목으로 2억 원을 지급해라’라고 말하였다.

However, the Defendant and Nonindicted 31 did not have an intention or ability to obtain a normal payment guarantee letter issued by a commercial bank that can guarantee the unpaid oil amount due to credit transaction.

Around October 8, 2010, the Defendant received KRW 5 million from the victim as a commission for the issuance of payment guarantee certificates to the account in the name of the Defendant, and around 14:00 of the same month, the Defendant received KRW 15 million in total on two occasions, such as the receipt of ten copies of a cashier’s checks on KRW 10 million in the street near the subway station in Gangnam-gu Seoul, Gangnam-gu, Seoul, under the same name. Accordingly, the Defendant received property by deceiving the victim in collusion with Nonindicted 31.

나) 공소외 31은 2011. 1.경 불상의 장소에서 피고인에게 ‘지점장들에게 수수료를 지급하고 지급보증서를 발급받을 수 있으니 지급보증서를 필요로 하는 사람들을 물색해 봐라, 알선 수수료를 받아 위 공소외 9에 대한 문제를 해결하자’라고 말하고, 피고인은 2011. 2.경 서울 강남구 (주소 11 생략)에 있는 공소외 54 주식회사 박물관 사무실에서 피해자 공소외 10에게 ‘내가 잘 아는 지점장인 공소외 33이 ○○은행에서 근무한다, 공소외 53 주식회사가 ▶▶▶로부터 건축자재를 외상으로 공급받을 수 있도록 미지급 물품대금을 담보할 수 있는 10억 원 상당의 지급보증서를 지점장 전결로 발급받아 줄 수 있다, 지점장에게 건네줄 알선비 명목으로 2억 원을 지급하면 내가 책임지고 10억 원 상당의 지급보증서를 발급받아 주겠다’라고 말하였다.

However, in fact, the Defendant and Nonindicted 31 did not have any intent or ability to issue a normal payment guarantee letter issued by a commercial bank that could guarantee the payment of unpaid goods due to credit transaction, as the head of the branch office, not the head of the bank.

피고인은 이에 속은 피해자로부터 2011. 3. 3.경 서울 용산구 한강로2가에 있는 ○○은행 ▨▨지점 앞 노상에서 지급보증서 발급 알선 수수료 명목으로 1억 원을 교부받았다. 이로써 피고인은 공소외 31과 공모하여 피해자를 기망하여 재물을 교부받았다.

2) The judgment of the court below

A) As to the fraud against Nonindicted 9

원심은 기록에 의하여 인정되는 다음과 같은 사정들에 비추어 보면, 피고인이 공소외 9에 대한 알선수재행위 당시 ▼▼은행 ◀◀◀지점 지점장으로부터 정상적인 지급보증서를 발급받을 수 있을 것이라고 믿었을 개연성이 있어 보이므로, 위 공소사실에 부합하는 듯한 공소외 9의 각 진술기재 및 기재는 피고인의 편취의 범의 등을 추측하는 진술에 불과하여 그것만으로는 위 공소사실을 인정하기 부족하고, 그 밖의 증거들만으로는 위 공소사실을 인정하기 부족하다고 판단하였다.

① ▼▼은행으로부터 지급보증서를 발급받아 ◆◆◆이 ★★★★로부터 석유를 외상으로 공급받을 수 있게 되면, ◆◆◆로부터 위 석유의 독점판매권을 취득한 공소외 9가 그로 인한 이익 중 일부를 피고인에게 주기로 하였으므로, 위조된 지급보증서를 행사하여 공소외 9를 기망하는 것보다 정상적인 지급보증서를 공소외 9에게 교부함으로써 공소외 9의 석유판매사업이 원활히 이루어지는 것이 피고인에게 더 이익이 되는 것으로 보인다.

② ★★★★의 과장 공소외 34는, ▼▼은행 ◀◀◀지점장과 상담을 마치고 나온 후 밖에서 기다리던 공소외 35(공소외 9로부터 석유를 공급받기로 하고 알선 수수료를 일부 부담한 사람이다)에게 지급보증서가 발급되면 ★★★★로 보내라고 말하였다고 진술하고 있고, 또한 그와 함께 상담을 받은 사람 중 하나가 공소외 35와 피고인에게 지점장과 상담이 잘 되었고 오후에는 지급보증서가 발급될 것이라는 취지로 말하였다고 진술하고 있다.

③ The Defendant demanded not only Nonindicted 9 but also Nonindicted 31 to pay the good offices fees in several times, in which the normal payment guarantee certificate was not issued.

④ 알선수재죄의 공범인 공소외 31도 ▼▼은행의 지점장으로부터 지급보증서를 받아오겠다고 이야기한 공소외 36이 ▼▼은행 ◀◀◀지점장 명의로 된 지급보증서 샘플을 가지고 왔으므로, 위 문서가 위조되었다는 사실을 알지 못했다는 취지로 진술하고 있다.

⑤ The issuance of the payment guarantee letter was conducted by Nonindicted 31 through Nonindicted 36, etc., and all the money that the Defendant received from Nonindicted 9 was delivered to Nonindicted 31.

B) As to the fraud against Nonindicted 10

In light of the following circumstances acknowledged by the record, the lower court determined that it was probable that the Defendant was able to obtain a normal payment guarantee certificate from the ○○ Bank even at the time of the act of arranging or taking measures against Nonindicted 10, and that the other evidence alone was insufficient to recognize the facts charged.

① 공소외 10도 ▶▶▶와 공소외 37 사이의 대리점 계약서가 ○○은행에 제출될 것이라 해서 지급보증서가 발급될 수 있다고 생각했다고 진술하고 있다.

② 공소외 10과 달리 위조된 ○○은행 ▨▨지점 지점장 명의의 지급보증서가 공소외 10 측에게 교부되기 전에도 공소외 31을 만났던 공소외 37이 피고인도 공소외 31에게 당해서 피해를 입은 것이라고 진술하고 있다.

③ 피고인이 위조된 ○○은행 ▨▨지점 지점장 명의의 지급보증서를 받아오기 이전에 ○○은행 ▨▨지점의 전화로 ▶▶▶ 직원에게 지급보증서가 정상적으로 발급될 것이라고 통지가 되었다.

④ Nonindicted 31, an accomplice in the crime of acceptance of good offices, stated that Nonindicted 36, an accomplice in the crime of acceptance of good offices, expressed that ○○ Bank would issue a payment guarantee certificate through a branch office, and that the payment guarantee certificate was issued by ○ Bank, and that it was not believed that the payment guarantee certificate was forged.

⑤ 과거 은행원이었던 공소외 38도 ○○은행 ▨▨지점 지점장 명의의 지급보증서가 위조된 것인지 식별하지 못하였다.

6) The issue of the payment guarantee letter was conducted by Nonindicted 31 through Nonindicted 36, etc., and all the money that the Defendant received from Nonindicted 10 was delivered to Nonindicted 31.

3) The judgment of this Court

A) As to the fraud against Nonindicted 9

As a result of a thorough examination of the judgment of the court below compared with the adopted evidence, it is acceptable to accept the judgment of the court below that it was probable that the defendant would have believed to have issued a normal payment guarantee certificate at the time of receiving brokerage fees from Nonindicted 9, and there was no error of mistake of facts,

B) As to the fraud against Nonindicted 10

(1) In full view of the following circumstances acknowledged by the evidence duly adopted and investigated by the lower court, there is considerable doubt as to whether the Defendant did not have any intent or ability to obtain a normal payment guarantee issued by a commercial bank at the time of receiving the commission fee from Nonindicted 10.

① 피고인은 이 사건 이전 공소외 31을 통하여 공소외 9에게 지급보증서를 발급받아 주었다. 공소외 9는 2010. 10. 13. 피고인으로부터 지급보증서를 받아, 그 당일 ★★★★의 과장인 공소외 34에게 지급보증서를 보냈는데, ★★★★의 법무팀 직원이 주식회사 ▼▼은행에 지급보증서가 정상적으로 발급되었는지 조회하여 지급보증서 위조 사실이 드러났고, 경찰에 2010. 11. 1. 공소외 9의 고소장이 접수되었다. 피고인은 이번에도 공소외 9에 대한 경우와 마찬가지로 공소외 31을 통하여 공소외 10에게 지급보증서를 발급받아 주기로 하였다.

② 공소외 31은 공소외 36로부터 지급보증서를 입수하였는데, 공소외 31은 경찰 피의자신문 조사에서 ‘피의자는 2010년에도 ▼▼은행 지급보증서와 관련하여 공소외 36이 가져온 지급보증서가 위조된 것이었는데, 다시 한 번 공소외 36이 가져왔다는 지급보증서가 진짜일 것이라고 믿었다는 것인가요’라는 물음에, ‘공소외 36은 이번에는 진짜로 가능하다고 우겼다. 저는 전에 했던 공소외 36의 위조에 대한 불안감 때문에 처음에 피고인이 저에게 지급보증서를 만들어 달라는 부탁을 거절하였는데, 피고인이 자꾸 괜찮다면서 지급보증서를 만들어 달라고 이야기하였다. 피고인은 공소외 36이 지급보증서를 받아올 것을 알고 있었다’라는 취지로 진술하였다.

③ In the lower court’s trial, Nonindicted 10 made a statement to the effect that “ Nonindicted 37 talks about Nonindicted 37 in the currency with the Defendant,” Nonindicted 37 asked Nonindicted 37 as a fake, and the Defendant also responded to each other in the form of “A special,” i.e., A special, the Defendant was aware of.

④ In the prosecutor’s investigation, the Defendant also stated in the prosecutor’s investigation that “I had no choice at the time. There was no room for choice at the time of the prosecution. Nonindicted 9 filed a complaint and the indictment was suspended, so how would be able to resolve the problem of money, and under this circumstance, Nonindicted 31 would have resolved the problem of Nonindicted 9 as part of the commission that was issued with the payment guarantee certificate, and thus, Nonindicted 31 would have resolved the problem of Nonindicted 31, but did not have to find a person in need of the payment guarantee at the same time.” On March 3, 2011, the Defendant stated to the effect that Nonindicted 36 would have been considered together with Nonindicted 31 at the time of receiving money from Nonindicted 10 on March 3, 2011. The Defendant was aware that Nonindicted 31 was preparing for the payment guarantee through Nonindicted 36 as before, and that there was experience in issuing the payment guarantee certificate issued to Nonindicted 9 at once.

D. However, in full view of the circumstances as stated by the lower court and the following circumstances recognized by the record, it is probable that the Defendant believed that the Defendant would have issued a normal payment guarantee certificate at the time of receiving brokerage fees from Nonindicted 10, and the evidence alone submitted by the prosecutor alone is insufficient to deem that the criminal intent to obtain the Defendant was proven without any reasonable doubt. Accordingly, the Prosecutor’s appeal on this part

① 피고인은 ‘수수료가 지급되기 전 먼저 지점장과 상담을 하고, 지점장으로부터 직접 보증서가 발급된 이후에 수수료를 주기로 하였기 때문에 그런 과정이 확인되면 이상이 없을 것이라고 생각하였다’라는 취지로 주장한다( 2014노982 공판기록 326쪽). 공소외 10과 함께 공소외 53 주식회사를 운영하던 공소외 37, 공소외 38, ▶▶▶의 직원인 최충섭은 2011. 3. 3. ○○은행 ▧▧지점에서 영업소장인 공소외 33을 만났고, 당시 피고인은 공소외 33과 만나는 자리에 함께 있지 않고 밖에서 대기하고 있었다. 그런데 공소외 37, 공소외 38은 당시 공소외 33이 서류 접수를 한 번 해보라고 하였다고 진술하였는데, 그러한 말을 전달받은 피고인으로서는 지급보증서 발급이 정상적으로 이루어지는 것으로 생각하였을 여지가 있다(공소외 33은 위와 같은 말을 한 사실이 없다고 주장하나, 설령 공소외 33이 상담을 거절하기 위하여 꺼낸 말을 공소외 37, 공소외 38이 오해하였다고 하더라도, 그들이 공소외 33의 말을 서류 접수를 해보라는 취지로 받아들인 이상, 이를 전달받은 피고인 역시 그들이 이해한 것과 동일하게 해석하였을 수도 주3) 있다).

② ○○은행 ▧▧지점의 전화로 ▶▶▶ 직원에게 지급보증서가 정상적으로 발급되었다는 통지가 이루어졌는데, ▶▶▶의 공소외 40은 은행으로부터 직접 이러한 연락을 받는 것이 이례적인 것은 아니라고 진술하였다( 2014노982 공판기록 142쪽).

③ The Defendant was introduced from Nonindicted 31 to Nonindicted 36 as “a person who may obtain a payment guarantee certificate as the most closely connected with the head of a branch office” (Article 2013Dahap413 evidence No. 1st page 206). Therefore, even if the Defendant deemed that Nonindicted 36 had made a payment guarantee certificate with Nonindicted 31 at the time of receiving money from Nonindicted 10, it is difficult to readily conclude that Nonindicted 36 was aware of the fact that Nonindicted 36 had made a payment guarantee certificate with the decision of the head of a branch office, not with the head of a branch office.

④ In the lower court’s trial, Nonindicted 10 stated in the lower court that Nonindicted 37 was aware that the payment guarantee certificate was a fake in the process of communicating with the Defendant. However, such telephone calls were made in the process of enforcing liability to the Defendant by revealing the fact that the payment guarantee certificate was not issued normally. Therefore, it is difficult to readily conclude that the Defendant had been aware that the payment guarantee certificate was false at the time of receiving the payment guarantee fee from Nonindicted 10

⑤ In the investigation into the suspect of the police, Nonindicted 31 stated to the effect that Nonindicted 31 had the Defendant issued a payment guarantee certificate by knowing himself/herself who is uneasy about Nonindicted 36. However, it cannot be ruled out that Nonindicted 31 had attempted to transfer his/her responsibility to the Defendant by asserting that Nonindicted 31 had known himself/herself of the fact that the payment guarantee certificate was not issued normally. Even if Nonindicted 31 had taken a more active position on Nonindicted 31 regarding the issuance of the payment guarantee certificate through Nonindicted 36 as stated above, it is difficult to deem that Nonindicted 36 had anticipated that Nonindicted 36 had been issued a payment guarantee certificate in a more timely manner.

B. As to Defendant 2 (the third judgment of the court below)

1) Summary of the facts charged

피고인은 공소외 11과 함께 기업 M＆A와 자금조달 컨설팅 관련 업무를 하면서 속칭 ‘금융브로커’ 행세를 하여 온 사람이다. 피고인은 공소외 11과 함께, 남양주시 화도읍에 있는 ▦▦ 아파트의 시행사업을 추진하던 공소외 42 주식회사(이하 ‘공소외 42 회사’라 한다)의 회장인 피해자 공소외 6과 위 회사의 대표이사이자 공소외 6의 딸인 피해자 공소외 7에게 금융기관을 통하여 위 아파트 시행사업에 필요한 자금을 조달하여 줄 것처럼 행세하며 자금 조달에 필요한 경비 명목으로 금품을 받기로 공모하였다. 그러나 사실 피고인과 공소외 11은 금융기관을 통하여 위 아파트 시행사업에 필요한 자금을 조달하여 줄 의사나 능력이 없었다.

A) Fraud of acquiring money by means of giving and receiving cash, cashier's checks, account transfer, etc.

On March 30, 2011, the Defendant stated that Nonindicted 11 “A need to pay expenses for the loan of Nonindicted Company 42’s business expenses.” Nonindicted 11 stated that “The victims would change KRW 500 million from financial institutions to land purchase funds in the restaurant near Nonindicted Company 42 located in Yeongdeungpo-gu Seoul Metropolitan Government ( Address 8 omitted).” The Defendant received KRW 50 million from the victims in cash and cashier’s checks for expenses necessary to raise KRW 200 billion around March 30, 201. In collusion with Nonindicted 11 and from February 2, 2012, the Defendant received KRW 231,600,000 from the victims by the same method as indicated in the attached Table 3 of the lower judgment by the same method from that date until February 2, 2012.

(B) fraud by using a credit card to obtain financial profits;

On May 201, the Defendant instructed Non-Indicted 11 to “Sa’s card that can be used as a guard to contact the head of the bank branch, talking with Non-Indicted 6,” and Non-Indicted 11 stated that “Around that time, at the coffee shop near Non-Indicted 42’s office, the Defendant provided the victims with a credit card that can be used as a guard to contact the head of the bank to raise funds, and settled the price.”

The Defendant and Nonindicted 11 acquired pecuniary benefits equivalent to the above amount by receiving the “NV card” in the name of the victims, from the time of the receipt of the said false statement from the victims to January 2, 2012, by purchasing goods, etc. equivalent to KRW 11,539,293 using the said card and allowing the victims to pay the price. The Defendant, including this, acquired pecuniary benefits in collusion with Nonindicted 11 by the same method from May 201 to January 2012 in collusion with Nonindicted 11. The Defendant acquired six copies of the credit card from the victims as indicated in the attached Table 3 of the lower judgment’s judgment from May 201 to January 2012, by purchasing goods, etc. equivalent to the above amount of KRW 41,464,791, and by allowing the victims to pay the price.

2) The judgment of the court below

In light of the following circumstances acknowledged by the relevant evidence, the lower court determined that the evidence submitted by the prosecutor alone was insufficient to view that the fact that the Defendant, in collusion with Nonindicted 11, was sufficiently proven to the extent that it excludes reasonable doubt, obtained money from the victims under the pretext of the above facts charged, and that there was no other evidence to acknowledge it.

① Nonindicted 11 refers to the victims’ desire to procure KRW 200 billion as the land sale fund, and the amount of KRW 500 billion can be raised through the bond business operator’s money with KRW 500 billion, and Nonindicted 11 demanded the victims to pay KRW 500 million for the expense. Nonindicted 11’s first demand for the payment of KRW 500 million for the victim’s access to the expense, and does not suggest that the Defendant and Defendant 1 et al. have issued the payment guarantee certificate. Nonindicted 11 appears to have used the same as Nonindicted 44 and Nonindicted 45, which introduced himself, other than the Defendant, to the victims on March 30, 2011.

② At the time of issuance of a payment guarantee certificate on July 19, 201, the victims did not have any fact that, except that Defendant 1 had met with Defendant 1, the victims did not directly contact or have a conversation between Defendant before and after the commission of the crime, and did not file a complaint against Nonindicted 11 and Defendant 1 even at the time of the accusation of Nonindicted 11 in 2012. However, when Nonindicted 11 identified Defendant as co-offender in the course of the investigation, it is merely the fact that the Defendant was accused accordingly.

③ Nonindicted 11 introduced the Defendant to Nonindicted 7, the victim Nonindicted 7 on the date of issuance of the payment guarantee certificate, as “the sales at the head of a branch.” If Nonindicted 11 was working together with the Defendant, it would be more in line with the empirical rule to introduce the victims to the effect that they are those who are working together with the victims’ money. However, it did not so.

④ Non-Indicted 11 stated in detail that, at the beginning of the investigation, Non-Indicted 11 made a statement about the Defendant’s solicitation and participation during the third police interrogation, he paid KRW 2,000 to KRW 30 million out of the amount received from the victims to the Defendant, and the card received from the victims was also given to the Defendant to allow him to use the amount in the drinking value. However, Non-Indicted 11 made a statement again to the effect that he paid some of the amount to the Defendant and the Defendant’s prosecutorial investigation other than this case after his criminal punishment became final and conclusive, the Defendant paid some of the amount to the Defendant’s prosecutorial investigation, and it does not mean that the Defendant used the card issued by the victims before the third police interrogation, and that his responsibility was for the Defendant. Therefore, it is difficult to believe that Non-Indicted 11’s statement at the stage of the police was in force.

⑤ The Defendant consistently came to know Nonindicted 11 from May 201 to May 201 in the investigative agency and the court of the court below consistently, and asserted that Nonindicted 11 consulted about the PF loans, etc. and confirmed the site or examined the documents, and received some expenses. According to the Defendant’s account tracking results, the Defendant’s receipt of the money from Nonindicted 11 is merely KRW 6.9 million out of the total amount of the fraud, which is part of the period of deception, and is consistent with the aforementioned legal action by the Defendant.

④ After committing the crime, Nonindicted 11 stated that the letter of payment guarantee of KRW 4 billion was forged separately without the involvement of the Defendant and Defendant 1.

3) The judgment of this Court

In light of the circumstances stated by the court below and the fact that Nonindicted 11 stated that the amount of the money received from the victims until the victim's investigation was conducted after the criminal punishment was finalized and that the amount of the money increased from the defendant and the prosecutor's office was 4), considering the fact that it is highly probable that Nonindicted 11 made a false statement for the defendant to be held liable before the confirmation of his criminal liability, the evidence submitted by the prosecutor alone is insufficient to acknowledge the facts charged that the defendant conspired with Nonindicted 11 from the beginning to obtain money from the victims, and there is no other evidence to acknowledge this otherwise. Accordingly, the prosecutor's appeal on this part is without merit.

7. Determination on the assertion of unfair sentencing by Defendants 4 and 5

A. Defendant 4

The Defendant partially repaid the damage to the victim Nonindicted 8 and agreed to do so. In addition, the equity between the first head of the criminal facts stated in the judgment below, which is a concurrent crime under the latter part of Article 37 of the Criminal Act, should be taken into account in the case where each crime is adjudicated simultaneously.

However, the Defendant, by abusing the general public’s trust in a commercial bank, forged the employee identification system in the name of the representative director of the bank, provided it as a security to the victim, along with a false payment guarantee, and acquired a total of 600 million won from the victim as a loan money. The Defendant, instead of doing so, acquired a total of KRW 90 million from the victim as a loan money by borrowing a payment guarantee already issued. The Defendant acquired most of the money by personal acquisition and did not recover most of the damage even though he did not recover. Although there was a history of punishment several times by fraud, the Defendant committed the instant crime, and thus, the Defendant’s responsibility is not somewhat weak.

In addition, comprehensively considering all the sentencing conditions in the case, including the scope of recommended punishment according to the sentencing guidelines of the Sentencing Commission (one year to nine years), the character and conduct of the defendant, the environment, the circumstances and result of the crime, and the circumstances after the crime, etc., the sentence of the court below against the defendant is appropriate and too unreasonable. Defendant 4’s assertion of unfair sentencing is without merit.

B. Defendant 5

The Defendant forged the employee identification system in the name of the representative director of a bank and used it together with a false payment guarantee certificate, and received KRW 183 million as a broker fee for issuing the said payment guarantee certificate, and acquired a total of KRW 600 million from Nonindicted 8, the victim Nonindicted 8. The Defendant mainly played a role in linking other accomplices or counterfeit businessmen, and as a whole, appears to have contributed to committing the crime, the lower court’s judgment that sentenced the Defendant to the punishment is acceptable.

However, it is difficult to view that the Defendant primarily committed each of the instant crimes with Defendant 2’s instructions, and thus, did not play a full-time and leading role, and the actual gains therefrom are relatively significant. Above all, the Defendant, after self-denunciation, has recognized all of his criminal acts from the beginning, and has failed to cooperate with the investigation and to reveal the substance of the instant case. In addition, the Defendant is trying to reach an agreement with the victims and has achieved certain results.

In addition, considering the character, conduct, environment, and consequence of the crime committed by the defendant and all of the sentencing conditions in the case, such as the circumstances after the crime, the sentence of the court below against the defendant is deemed to be too unreasonable. Therefore, the defendant 5's assertion of unfair sentencing is with merit.

8. Conclusion

Therefore, the appeal by Defendant 5 against the judgment of the court below against Defendant 3 is reasonable, and the part of the judgment of the court of first instance against Defendant 1, Defendant 2, and Defendant 3, the part of the judgment of the court of second instance against Defendant 1 among the judgment of the court of first instance (including the part of the judgment of the court of second instance) and the part of the judgment of the court of second instance against Defendant 1, and the part of the judgment of the court of second instance guilty against Defendant 2 are reversed under Article 364(2) or (6) of the Criminal Procedure Act without further proceeding to decide on the argument of unfair sentencing by Defendant 1, Defendant 2, Defendant 3, and the prosecutor, and they are again dismissed under Article 364(4) of the Criminal Procedure Act. Since the appeal against Defendant 4 and the prosecutor on the part of the

A. Defendant 1: Articles 234 and 231 of the Criminal Act (the exercise of the above investigation document as of October 20, 201), Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 356 of the Criminal Act (the violation of occupational duties), Articles 231 and 30 of the Criminal Act (the violation of occupational duties), Articles 234, 231, and 30 of the Criminal Act (the use of the above investigation document as of November 16, 201), Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the use of the above investigation document as of November 16, 201), Articles 347(1) and 30 (Fraud) of the Criminal Act

B. Defendant 2: Article 7 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 30 of the Criminal Act (the point of acceptance of good offices), Articles 231, 30 of the Criminal Act (the point of each private document), Articles 234, 231, and 30 of the Criminal Act (the point of exercise of each private document), Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 347(1) and 30 of the Criminal Act (the point of fraud)

C. Defendant 3: Article 7 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes and Article 30 of the Criminal Act

D. Defendant 5: Articles 231, 30 (each private document is used), 234, 231, and 30 (each private document is used) of the Criminal Act; Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes; Articles 3(1)2, 347(1), and 30 (Fraud's point) of the Criminal Act; Article 7 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes; Article 30 of the Criminal Act

1. Commercial competition;

Defendant 1: Articles 40 and 50 of the Criminal Act / [the punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust)]

1. Selection of punishment;

Each sentence of imprisonment shall be imposed on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation), each violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and each violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud).

1. Aggravation for concurrent crimes;

(a) Defendant 1: the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (the aggravated punishment of concurrent crimes with punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the Act on the Aggravated Punishment, etc. of Specific Economic Crimes)

(b) Defendant 2: the former part of Article 37, Articles 38 (1) 2 and 50 of the Criminal Act (aggravated increase of concurrent crimes with the punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) with the largest penalty);

(c) Defendant 3: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (limited to a concurrent offender with the punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, which received money from Nonindicted 4 with the largest penalty)

(d) Defendant 5: the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (an aggravated punishment of concurrent crimes provided for in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) with the largest penalty);

1. Discretionary mitigation;

Defendant 5: Article 53 and Article 55(1)3 of the Criminal Act (hereinafter referred to as the following factors, the favorable circumstances among the reasons for sentencing)

1. Suspension of execution;

Defendant 3: Article 62(1) of the Criminal Act (The following extenuating circumstances among the reasons for sentencing)

(a) The scope of applicable sentences by law: Imprisonment with prison labor for up to 3 years up to 45 years; and

(b) Scope of recommendations based on the sentencing criteria;

1) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

[Determination of Punishment] The systematic Fraud < Act No. 500 million won or more, and the amount of less than five billion won (Type 3)

【Special Convicted Person】

[Scope of Recommendation] Four to Seven years of imprisonment (Basic Area)

2) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

[Determination of Punishment] Embezzlement and Breach of Trust Crime < Act No. 500 million won or more, and less than five billion won or less (Type 3)

【Special Convicted Person】

[Scope of Recommendation] Two to Five years of imprisonment (Basic Area)

(iii) the fabrication of private documents and the display of private documents;

[Determination of Punishment] Forgery, Alteration, etc. of Private Document Crime Group :

【Special Convicted Person】

[Scope of Recommendation] Six months to two years (Basic Area)

4) Scope of the recommended punishment revised according to the standards for handling multiple crimes: four to ten years (the highest range of sentence according to the sentencing criteria shall be determined as the basic crime, and the upper limit of the basic crime (Fraud) of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) shall be added to the upper limit of the sentence range of the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation in 7 years), 1/2 (2) of the upper limit of the sentence range of the crime of forging private documents or the crime of uttering of the falsified

(c) Determination of sentence: Four years of imprisonment; and

The Defendant, as the head of a commercial bank, was aware of this portion as a branch of a commercial bank, exercised the employee identification system in the name of the representative director of the bank that was forged in conjunction with the financial hub, and issued a payment guarantee letter to the effect that the amount of payment guarantee was unlawful, thereby causing damage equivalent to the same amount to the victim ○○ bank. As such, the Defendant was aware of such crime and necessary to prepare the agreed amount, the Defendant: (a) forged the employee identification system in the name of the representative director of the bank; (b) executed a false payment guarantee certificate along with the false payment guarantee certificate; and (c) fraudulently acquired KRW 600 million from the victim Nonindicted 8 for the purpose of borrowing money. Nevertheless, the Defendant did not reflect the Defendant at all, and is consistent with the defense against the Defendant to the end of the trial. The Defendant’s crime was committed not only by the victim ○ bank’s trust, but also by having the bank take responsibility for the payment guarantee; (d) even if the amount and money obtained by the Defendant did not reach the judgment, the Defendant did not make any effort to recover damages to the Defendant.

However, the Defendant has no criminal history, and it appears that he/she had been living in a financial institution for a long time. Family members of the Defendant and his/her neighbors want to take the Defendant’s wife. The amount he/she acquired by committing the instant crime seems not to be so big. In addition, the Defendant’s individual acquisition of the instant crime appears to have not been much significant. In addition, the Defendant’s decision of the lower court is reversed in the trial, and the Defendant’s experience, character and conduct, and environment, etc. are determined by comprehensively taking into account all the sentencing factors indicated in the pleadings, such as the Defendant’s experience

2. Defendant 2

(a) The scope of applicable sentences by law: Imprisonment with prison labor for up to 3 years up to 45 years; and

(b) Scope of recommendations based on the sentencing criteria;

1) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

[Determination of Punishment] The systematic Fraud < Act No. 500 million won or more, and the amount of less than five billion won (Type 3)

【Special Convicted Person】

[Scope of Recommendation] Four to Seven years of imprisonment (Basic Area)

2) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

[Determination of Type] Securities/Financial Crime Group > at least KRW 100 million (Type 4) in case of mediation acceptance about duties of executive officers and employees of financial institutions.

【Special Convicted Person】

[Scope of Recommendation] Imprisonment of 2 years and 6 months to 3 years and 6 months (Basic Area)

(iii) the fabrication of private documents and the display of private documents;

[Determination of Punishment] Forgery, Alteration, etc. of Private Document Crime Group :

【Special Convicted Person】

[Scope of Recommendation] Six months to two years (Basic Area)

4) Scope of the recommended punishment that is modified according to the standards for handling multiple crimes: four to nine years [the maximum of the sentence shall be determined as the basic crime in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) with the highest maximum of the sentencing range according to the sentencing criteria, and 1/2 (1/9 September) of the maximum of the sentence range of the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and 1/3 (8 months) of the maximum of the sentence range of the crime of forging private documents or uttering of the falsified Private Document

(c) Determination of sentence: Three years of imprisonment; and

The Defendant, by abusing the trust of the general public in commercial banks, forged the employee identification system in the name of the representative director of the bank, used it along with the payment guarantee letter issued unlawfully, and received KRW 183 million as a broker fee for issuing the payment guarantee letter. The Defendant was aware of such crime and required to prepare the agreed amount. In addition, the Defendant forged the employee identification system in the name of the representative director of the bank in addition to the false payment guarantee certificate, and used it along with the false payment guarantee certificate, and acquired the total amount of KRW 600 million from the victim Nonindicted 8 in the name of borrowed money from the victim Nonindicted 8 to the trial. Nevertheless, the Defendant was consistent with his defense without any reflection, and even if the amount of the Defendant’s acceptance and fraud is not so big, the Defendant did not make any effort to recover from damage to the trial, and the victim Nonindicted 8 and Nonindicted 5 wanted to punish the Defendant. It is inevitable to severely punish the Defendant.

However, the Defendant does not have any record of crime exceeding the punishment or fine for the same crime. The part acquired by the Defendant on his own by committing the instant crime seems to be relatively large.

In addition, the punishment shall be determined by comprehensively taking into account the purport that the original judgment is reversed in the trial and the sentence is imposed for the concurrent crimes under the former part of Article 37 of the Criminal Act, and all sentencing factors shown in the pleadings, such as the defendant's career, character and conduct, and environment

3. Defendant 3

(a) The scope of applicable sentences under law: Imprisonment for one month to seven years; and

(b) Scope of recommendations based on the sentencing criteria: Imprisonment for two years and six months to three years;

[Determination of Type] Securities and Financial Crime Group < Act No. 100 million won or more (Type 4) for the mediation and acceptance of financial assistance regarding the duties of executive officers and employees of financial institutions.

【Special Convicted Person】

(c) Determination of sentence: Imprisonment with prison labor for three years and five years under a suspended sentence; and

The Defendant received a certain amount of money in total amount of KRW 4330,000,000 from a commercial bank as a broker fee for the issuance of a commercial bank’s payment guarantee letter. The Defendant did not know during the suspension period and committed each of the instant crimes. The Defendant did not agree with Nonindicted 10 and Nonindicted 5 suffered from the instant damage, and did not recover the damage.

However, the Defendant shows the attitude of recognizing and opposing all of the instant crimes. The Defendant does not have the criminal records subject to punishment or sentence for the same crime. The benefits acquired by the Defendant appears to be relatively small due to the instant crime, and the victim did not want to be punished against the Defendant by mutual consent with Nonindicted 9 who suffered from the instant crime.

In addition, the punishment shall be determined by comprehensively taking into account the purport that the original judgment is reversed in the trial and the sentence is imposed for the concurrent crimes under the former part of Article 37 of the Criminal Act, and all sentencing factors shown in the pleadings, such as the defendant's career, character and conduct, and environment

4. Defendant 5

(a) Scope of applicable sentences under Acts: Imprisonment with prison labor for a period of one year and six months from June to twenty years; and

(b) Scope of recommendations based on the sentencing criteria;

1) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

[Determination of Punishment] The systematic Fraud < Act No. 500 million won or more, and the amount of less than five billion won (Type 3)

[Special Sentencing] Self-denunciation (Discretionary Elements)

[Scope of Recommendation] Two to Five years (Discretionary) imprisonment

2) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

[Determination of Type] Securities/Financial Crime Group > at least KRW 100 million (Type 4) in case of mediation acceptance about duties of executive officers and employees of financial institutions.

[Special Sentencing] Self-denunciation (Discretionary Elements)

[Scope of Recommendation] 2 years to 3 years (Mitigation) imprisonment

(iii) the fabrication of private documents and the display of private documents;

[Determination of Punishment] Forgery, Alteration, etc. of Private Document Crime Group :

[Special Sentencing] Self-denunciation (Discretionary Elements)

[Scope of Recommendation] Imprisonment from one month to one year (Mitigation)

4) Scope of the recommended punishment revised according to the standards for handling multiple crimes: 2 to 6 years [the maximum of the sentence shall be determined as the basic crime in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) with the highest maximum of the sentencing range according to the sentencing criteria, and 1/2 (1/6 month) of the maximum of the sentence range of the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and 1/3 (4 months) of the maximum of the sentence range of the crime of forging private documents or uttering of the above investigative documents]

(c) Determination of sentence: Imprisonment with prison labor for eighteen years and six months;

The sentence shall be determined by comprehensively taking into account the factors favorable and unfavorable to the defendant.

Judges Kang Young-soo (Presiding Judge)

Note 1) From 1 to 1, each of the defendants' names does not indicate the defendant's names in the corresponding items, and only "the defendant" shall be called "the defendant," and the other defendants shall be appointed in their respective names.

2) It is difficult to view that Defendant 5 used the three 1 million won cashier’s checks (the number 34 omitted), (the number 5 omitted), (the number 35 omitted) (the number 5 omitted), and (the number 36 omitted) (the number 56 omitted) attached to the remaining copy.

주3) 피고인은 이에 관하여 검찰 조사에서 ‘공소외 37 등이 30분 뒤에 상담을 마치고 돌아왔고, ▶▶▶ 최대리는 ’발급이 될 것도 같지만 지점장이 확답을 주지는 않고 같이 동석했던 박사장(공소외 41)에게 진행해보라고 말하는 정도로 상담을 마쳤다‘라고 말하면서 발급이 확실치는 않다는 뉘앙스로 이야기하였고, 공소외 37은 ’발급이 될 것 같다‘라고 말하였으며, 공소외 38은 ’확실치 않지만 기다려보자‘라고 하였다’라고 진술하였다(2013고합413 증거기록 1권 195쪽).

(4) During the third police interrogation, Nonindicted 11 stated that “The amount of money paid to the Defendant would be approximately KRW 200 through KRW 30 million for the transfer of money to the account, KRW 1500 through KRW 20 million for the transfer of money to the account. In addition, Nonindicted 11 made a statement to the effect that Nonindicted 6’s card received from Nonindicted 6 was the Defendant, and there are many cases that allow the Defendant to use the card in drinking prices, etc.” In the second prosecutor’s examination, Nonindicted 6 made a statement to the effect that “The Defendant was not in cash paid from Nonparty 6, KRW 300 through KRW 40 million for the cash, KRW 100 to KRW 20 million for the card, and KRW 20 million for the card, and KRW 60,000 to KRW 30,000 for the Defendant, and KRW 6,000,000 for the credit card of this case to the effect that he was under investigation by the prosecution.”

5) However, among the judgment of the court of first instance, the part on the part that Defendant 2 and Defendant 5 conspired with Defendant 2 on October 20, 201 that forged the employee identification system of Nonindicted 46 in collusion with Defendant 2 is not recognized (the judgment of the court of first instance that found Defendant 2 not guilty, and the part on which the prosecutor did not appeal against the judgment of the court of first instance became final and conclusive). The part on “in collusion with Defendant 2” among the criminal facts constitutes a case where there is no proof of crime. However, as long as the court of first instance found Defendant 2 guilty of the part on the forgery of the above Defendants on the same factual basis, the sentence of acquittal is not separately pronounced, and the relevant part is deleted from the