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Cases
209Gohap159, 169(combined). Matters concerning the aggravated punishment, etc. of specific economic crimes
Violation of law (Embezzlement)
(b) Offering of bribe;
C. Occupational breach of trust
(d) Violation of the Commercial Act;
E. Acceptance of bribe
Defendant
1. A. (b) . (c) Da. 500 (59****-1*****) and the head of the headquarters of 000 testing.
Housing Jeju Interlock*******-00 Borrowing***
Jeju-sido2 Dong ***
2.ma. State00 (61*****-1*****) and public officials.
Housing Jeju Interlock******000 apartment*** heading
Jung-gu Seoul Central District Court 1 **
Prosecutor
Maapscopes
Defense Counsel
Attorney B/L taken over (for the defendant 100)
Attorney Jeon Soo-soo (Attorney Lee In-bok, Counsel for the defendant-appellant)
Imposition of Judgment
November 18, 2010
Text
Defendants shall be punished by imprisonment for two years.
From 00 to 20,953,648 won shall be additionally collected.
Of the facts charged in the instant case, the charge of occupational breach of trust against Defendant 200 shall be acquitted.
Reasons
Criminal facts
Defendant Bo 00 is the head of the Business Development Headquarters of 000 KK Co., Ltd. (hereinafter referred to as “000 KK”) for the purpose of wind power generation projects, etc. in Jeju *****-* 2000 lending, and in fact, he is a person who operates the above PSK, and Defendant Bo 00 holds office as the head of Jeju Special Self-Governing Province 000 Director from September 2006 to September 200, in charge of managing the wind power generation complex, managing the wind power generation complex, granting permission and approval business related to solar power generation, and supervising the public officials under his control.
Defendant 1, at the end of 2006, became aware of Defendant 200 of the Business Development Headquarters of the company that actually operates 000techs in wind and new and renewable energy seminars. Defendant 2, around December 21, 2006, entered into a joint investment contract with the Dong-gu Minedong **** 00 comprehensive development company on the fourth floor of 00 buildings (hereinafter referred to as “0 comprehensive development”) to jointly promote the wind power generation complex development project. To this end, Defendant 2, a joint investment corporation of 00 Energy Co., Ltd. (hereinafter referred to as “00”) established the company’s name, submitted the business permission around June 12, 200 to Jeju Special Self-Governing Province, and applied for the approval of the business related to the wind power generation complex to the public official of 00 Jeju Special Self-Governing Province (the former name is 00 energy and electric power generation project). Defendant 2, a resident of 000 Jeju-do.
1. Violation of the Commercial Act;
around June 2005, Defendant L00 was administered respectively with KRW 40 million and KRW 50 million, respectively. Defendant L00 borrowed KRW 300 million from KRW 100 to KRW 30 million, and Defendant L00 to KRW 80 million from KRW 100,000, respectively. Defendant L00 conspiredd with Defendant L0 to make the payment of KRW 410,000 by way of withdrawing the borrowed amount.
On June 21, 2005, Defendant L00 paid 500 million won as share capital at the Jeju Bank Interlive Branch, which is linked to Jeju City, and received a share payment certificate from the said bank on June 22, 2005, and received the application document from the Jeju District Court located in Jeju-do 2 Dong, Jeju-do around June 22, 2005, and completed the registration of incorporation 000 tech with the total amount of capital KRW 500 million, representative director status0, and wind power generation business for corporate purpose.
On June 28, 2005, Defendant Female 00 paid the total of KRW 410 million on June 28, 2005, and KRW 80 million on June 29, 200, respectively, and repaid the total of KRW 410,000,000.
Accordingly, the defendant 00 pretended to pay the share price in collusion with the gender 00.
2. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement);
On November 17, 2005, Defendant Green 00 delivered KRW 2,000,000 to his father for personal debt repayment against Defendant Green 000, while keeping the money owned by Defendant Green Dock for the purpose of victim 000 testing. Defendant Green Dock used it in mind.
As a result, Defendant 00 embezzled 2,000,000 won while being kept in custody of money owned by the victim for business purposes.
Defendant Female 00, as indicated in the annexed Table 1, embezzled totaling KRW 521,236,130 through 23 times from around that time to May 22, 2009.
3. Bribery;
A. On March 3, 2008, at the time, Defendant L0 filed an application for authorization and permission with the Department of 000 industries for the development of the wind power generation site at the time, but on February 28, 2008, Defendant L0 only obtained conditional approval due to the review of the change of the wind power generation site from the Jeju Special Self-Governing Province (00 energy department at the time) on February 28, 2008, as well as the ground surface survey, etc. In addition to the case of conditional approval, Defendant L0 made a solicitation to the effect that Defendant 1 would be able to obtain final approval and permission for the development of the wind power complex, and that it would be 00,000,000,000,000 won and 30,000,000,000 won and 30,000,000,000 won and 30,000,000,00 won and 30,00,00.
B. From April 12, 2008 to around 20:30 of the same day, Defendant L00 made a solicitation to the same purport as that of paragraph 3(a) to Defendant 1,00, and in return, made a bribe to Defendant 1,000,000 won in cash in paper shopping bags; and at the Jeju State’s offer in Jeju-si Co., Ltd., in Jeju-si Co., Ltd., the market price of KRW 450,00,000 at KRW 450,00,000, in relation to public officials’ duties.
C. At around April 19, 2008, Defendant Lb0 issued to Defendant 00 a solicitation to the effect that Defendant 3 paragraph (a) is the same as that of Defendant 3, and as a consideration, issued three boxes of gift gift tax and one box of gift tax in the amount of KRW 500,000 at the market price; around May 5, 2008, Defendant 200 issued 4 boxes of gift tax and two boxes of gift tax in an amount of KRW 700,000 at the market price under the same method; around May 7, 2008, Defendant 2 boxes of fishery products at the market price of KRW 300,000 at KRW 30,000 at the market price of KRW 30,000 at the same method; Defendant 00,000 at 0,000 at 0,000,000 won at 0,000 won at the market price of Defendant 30,508.
D. On June 13, 2008, at the time, Defendant Boh 00 established a corporation for 000 Korea Co., Ltd. (hereinafter “00 Korea”) with the aim of solar power generation projects, etc., Defendant Boh 00 at the time. Defendant Boh 00 made 00 Korea Co., Ltd. with the same purport as paragraph 3(a) to Defendant Lee 00, along with the solicitation to the same effect as paragraph 3(a), a prompt person and permission for solar power generation projects and allocation of policy funds to Defendant Boh 00 Korea. In response, Defendant Lee Wh 00 Korea Co., Ltd., Ltd., 300 Korean Co., Ltd., a total of KRW 15 million, offered a bribe in relation to public official’s duties by offering 00 Korea Co., Ltd. 15 million.
E. On June 16, 2008, at the Jeju Franchi, Defendant L0 delivered a bribe to Defendant 00 for the official duties of the public official by having 01, the director in charge of the business development of the 000 Kranc, who received the direction of Defendant LO00 in return, transfer the amount of USD 666 in relation to Defendant 00 to his family's travel account in the U.S. in relation to Defendant 00's children to the U.S., by having Defendant LO0 transfer the amount of USD 6666 in relation to his family's travel account in the U.S. for the official duties of the public official.
A. On March 3, 2008, at the Jeju SP, Defendant 00 received a solicitation from Defendant 00 to the same purport as Defendant 3’s paragraph (a) and received a bribe in relation to public officials’ duties after receiving the request from Defendant 00 to four persons, such as Defendant 00’s wife 00, Mono 00, Mono 01, Mano 00, Mano 00, Mano 00, Mano 650,000, market price of which is equal to 650,000, and Defendant 1 received a solicitation from Defendant 00 on March 21, 2008.
B. On April 12, 2008, from around 16:30 on the same day to around 20:30 on the same day, Defendant 00 received a solicitation from Defendant 00 to the same purport as paragraph 3(a) in return for the solicitation, Defendant 10 million won in cash contained in a paper shopping bags; and Defendant 1 received a bribe in relation to public officials’ duties at the Jeju State’s provision in the Jeju State’s offer in the Jeju-si Co., Ltd., the market price of KRW 450,00 in the amount of KRW 450,00 in the market price, and received a bribe in relation to public officials’ duties.
C. Around April 19, 2008, Defendant 1 received a solicitation from Defendant 00 to Defendant 3’s paragraph (a) and received 3 boxes and 1 boxes of high gift gift tax equivalent to 500,000 won at the market price. Defendant 1 received 2 boxes of high gift tax in the same way as the market price around May 5, 2008; Defendant 2 boxes of high gift tax amounting to 300,000,000 won at the market price around May 7, 2008; Defendant 1 received 300,000,000,000 won at the same method and received 2 boxes of fishery product gift tax in the way of delivery to Defendant 10,000,000,000 won at the market price to Defendant 10,000,0000,000 won at the market price; Defendant 1 received 30,500,005,000 won at the market price.
D. On June 13, 2008, at the time, Defendant 00 had established KRW 500,000 of the capital for the purpose of solar power generation projects, etc. At the time, Defendant 00 had been offered a bribe in relation to public officials’ duties after receiving a request from Defendant 00 to Defendant 3’s recommendation to the same effect as Defendant 1’s paragraph (a). In response, Defendant 00 Korea received a request from Defendant 100 to Defendant 1’s wife 000 to KRW 30% of the equity in 15,000 of the capital for the purpose of solar power generation projects, and received a bribe in relation to public officials’ duties after receiving the request from Defendant 100 to KRW 30 of the equity in 15,000.
E. On June 16, 2008, the Defendant’s Note received the request from Defendant F0 to the same purport as the 3-A-C-C-C-C-C-C-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P.
Summary of Evidence
○ Summary of the evidence of No. 1 and 2 of the holding (No. 13582 of 2009, No. 23218 of 2009)
Reference to the record of proposed evidence
1. The defendant's partial statement
1. Statements consistent with part of the defendant in the second trial records;
1. Each legal statement of 00 witnesses and 01;
1. Each legal statement of a witness 00, strong01, Lee 01, Kim 00, and Kim 01;
1. Each prosecutor's office and police suspect interrogation protocol as to Defendant 00;
1. Evidence of the case No. 24516 of the suspect interrogation protocol against Defendant female 00 (3 times, No. 2009)
Records)
1. Each prosecutor's office and police statement of 01, high-00, high-00, and high-01;
1.Investigative Report (in relation to the de facto owner 302, 100, 302, 200, 300, 300, 200
The details of post offices transactions with P00 and P00, and the first and second financial statements and shareholders of 000 et al.
Documents attached to the general meeting minutes, documents attached to the post office passbook transactions with 00, paper 00, and paper passbook in 00.
Documents attached to the details of transactions, details of the transaction by the Japanese bank, details of the transaction by the Japanese bank and details of registration, Kim 02 receipts
accompanied by a copy of power of attorney of Kim k-3, with respect to Jeju tax evasion response, with a copy of the Equipment Register- Dormitory
Han 100,000 and 10 million won telephone communications
1. A written statement prepared by 00;
1. Answers to requests for cooperation with investigation;
1. Register of entry and withdrawal, information on completion of registration, and copy of the notice of completion of registration;
1. A list of crimes;
1. A register of shareholders, a copy of written opinion, a copy of a joint venture contract, a copy of articles of incorporation, and a copy of a statement of accounts (three, four
(ix)a copy, a copy of a bankbook, and a copy of each daily balance sheet;
○ Summary of Evidence of Nos. 3 and 4 in the holding (see, e.g., Supreme Court Decision 2009No. 24516)
1. Defendants’ respective legal statements
1. Statements consistent with the Defendants’ part of the second protocol of trial
1. Each legal statement made by the witness 01, 01, and 02;
1. Each legal statement made by a witness of 00, strong03, Kim04, Kim05, 00, le00, Kim00, Ma01, 02
1. Each prosecutor's interrogation protocol against the Defendants
1. Each prosecutor's office with respect to female 01, high 02, female 02, Kim01, Kim00, 02, regular 01, 02, red 00, 01, and father 01;
Statement
1. Investigation report (the attachment of letters with a thickness of the inspector, the attachment of a copy of accounting books on February 3, 2000 table of February 3, 2008, the note;
00 Attachment, such as a copy of the business registration certificate of 000 Bao Co., Ltd., with respect to overseas business trip,
addition, such as this annex, foreign exchange purchase certificate / a copy of account statement, joint venture agreement, and a license for an electrical business
Data recorded in the personal pocket book of the suspect in 2009, accompanied by a copy of the solar rupture certification certificate, and in the personal pocket book of the suspect.
Attachment, with respect to the details of monetary transactions listed in the personal pocket book of 2009, seizure and search;
Heading (209.3513) Report-1, State 02 and telephone with respect to telephone conversations 10 million won, State 02 and telephone.
Currency-Gaba gift, 000 Meca and 0000 Meca with respect to entertainment expenses, 000 Mecaca
Confirmation of the details of transactions of accounts, submission of accounting books of 000 Sbio, appendix of Note 02 boarding records, Note 00 Sbio
D. The analysis-5 of Note 00 personal pockets in Note 00, and stored in a computer among note 00-related supplementary data
document analysis-6, summary of work logs, etc., and documents stored in the Nowon-do of use 00
T-2, Review-1 of documents on the process of approving the implementation of wind power development projects and wind power generation;
Document review-2, ( Note) 000 Korea for the process of approval for the implementation of a pre-development project and permission for road occupancy.
Analysis of seizure data of 00 Korea's office room and 000 Korea, such as a certificate of deposit of stock payment, etc.
The existence of 00 intervention data of the H and the wind, the confirmation of accompanying persons, and the omission of the details of the suspect's boarding;
Within a passbook with respect to the investment agreement of persons, 000 Korea and the wind and its shares, in the form of passbooks, in the form of a
The approval for the implementation of a wind power development project and a copy of the processing plan, 00 energy shall be attached;
Documents requesting urgent processing for approval for the implementation of wind power generation projects and related areas with 00 energy in the 00 Industry Bureau.
Documents attached to review opinions on approval of the implementation of the project, the Enforcement Rule of the Small and Medium Enterprise Promotion Fund Ordinance
【Attachment of High Document】
1. Written statements prepared by each of 00, height02, leisure01, height01, 04, and 01;
1. Entry or departure status of each individual (the punishment No. 13582, 209, or the punishment No. 23218, 2009);
(including) the response to the results of the aircraft master's inquiry;
1. Copy of door-to-door bookkeeping;
1. Family relation certificate, minutes of the promoters' general meeting, certification, stock acceptance certificate, list of shareholders, (State),00 Korea attitude;
Permission to operate the Yang Mining Power Generation Project, the current status of implementation of the projects for wind power generation, Jeju and Jeju projects for wind power generation;
Approval of implementation, copies, etc. of minutes of a special general meeting, replies, details of each boarding, and requests for forwarding of details of cargo;
Responses, telephone communications with 01 and telephone communications, boarding details, replys to requests for access to the details of the goods, and consultation and replys at the time of conference.
A copy, the results of the deliberation on road management in Seopopo City in the second quarter of February 4, 08, and the results of the implementation of Sampo wind power generation projects.
person, reply, reply, copy of the application for recommendation of the Energy Utilization Rationalization Fund, (State), 000 Co.
(1) A copy of the meeting minutes of the board of directors, a copy of the certificate of seal impression 00, etc. (ju)
public official personnel records card,
1. Added 1-Account Transactions Details, copies of personal pocket book 2006-208 from 2006 to 2008, and details of separate account transactions; and
A copy of the personal pocket book in 2008, a separate 3-2007, and a separate 4-000 et al.
(State) Accounting books, separate 5-(State) contracts related to 000 Korea, etc., separate 6-Business Operating Days (2009), separate
A7- Computer Storage Data outputs, Appendix 10 - One copy of the application for approval for the implementation of the wind power generation project
Appendix 11-Application Form 2, Appendix 12-Cropic Power Development Project
Three copies of an application for approval, Appendix 13-Application Form 4, Appendix 14
Documents related to permission to occupy and use a three-month wind power generation complex, and additional 15-Permission to create a wind power generation complex.
Related Documents
Application of Statutes
1. Article relevant to the facts constituting an offense and the selection of punishment;
Defendant F00: Articles 628(1) and 622(1) of the Commercial Act; Article 30 of the Criminal Act
Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes
Subparagraph 2, Article 355(1) of the Criminal Act (including the point of embezzlement, inclusive) and Article 133 of the Criminal Act
Articles 129(1) and 129(1) (the offering of a bribe and the selection of imprisonment);
Defendant State00: each Criminal Code article 129(1)(the acceptance of bribe and the choice of imprisonment)
1. Aggravation of concurrent crimes;
Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act
1. Discretionary mitigation;
Defendant F00: Articles 53 and 55(1)3 of the Criminal Act (the suspension of execution to Defendant F00)
(1) A person who has no record of being punished, or whose substantial amount of embezzlement has been restored;
for the purpose of this chapter.
1. Additional collection:
Defendant: the latter part of Article 134 of the Criminal Act [20,953,68 Won = 10,000,000 won + 3,435,000 won
(Total Amount of Gapt et al.) + 7,518,648 Won (US 6,666)
127.91 won, the sale rate of exchange at the closeest point ( November 17, 2010) of the ancient day.
any amount converted by the Corporation and any minority interest. On the other hand, 000 Korea Notes
collection related to Food 3,000 note (total of 15,000,000 Won)
the Korea Stock Exchange, not listed on the Korea Stock Exchange, or to the Korea Securities Dealers Association.
in the case of shares issued by an unregistered corporation
If there is a normal example of transactions that properly reflect the value of the exchange;
the value of shares shall be assessed on the basis of the market value of such shares.
See Supreme Court Decision 2002Do4656 delivered on November 13, 2002, see Supreme Court Decision 2002Do4656 delivered on November 13, 2
In the absence of cases, various methods of universal recognition are generally accepted.
relevant laws and regulations providing for such appraisal methods shall be taken into account, and each such legislation
Considering that different standards are applied according to the purpose, no one shall apply
for example, Article 54 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act
(A) It cannot be readily concluded that this ought to be applied at all times, and at that time,
Status of the relevant unlisted corporation and transaction parties, characteristics of the relevant type of business, etc.
It should be reasonably determined by comprehensively taking into account the following factors (Supreme Court Decision 2005.
4. 205Do856 delivered on September 29, 200, and 000 Korea
In light of the record, the value of the shares shall be determined by examining the record as an unlisted corporation established.
Since there is no data that can be found, the collection related to the above shares shall be additionally collected.
2010Do1764 decided October 8, 2010
[See Decision]
Judgment on the defendants' and defense counsel's arguments
1. As to the offering of bribe and the offering of bribe
A. Whether Defendant 1 received KRW 10 million as described in the above sub-paragraph (b) and Nos. 3-2 and 4-2 of the judgment of Defendant 100
(1) Defendants’ assertion
Defendants asserts that there is no fact that they deliver or receive KRW 10 million.
(2) Determination
위 각 증거에 의하여 인정되는 다음과 같은 사정들, 즉 ① 피고인 여00의 동생으로 서 당시 0000테크의 사업개발부장으로 근무하였던 여01은 수사기관에서부터 이 법정 에 이르기까지 일관하여, 피고인 여00이 피고인 주00에게 교부할 것이라고 하면서 1,000만 원을 인출하여 오라는 지시를 받고 당일은 토요일이었기 때문에 은행에 가지 못하고 현금인출기로 0000테크 법인통장에서 500만 원, 0000바이오 법인통장에서 500 만 원을 각 인출한 다음 위 1,000만 원을 피고인 여00에게 교부하였다고 매우 구체적 으로 진술하고 있는 점(증거기록 24, 2578쪽), ② 여01의 위와 같은 진술은 0000테크 및 0000바이오의 장부 및 통장내역(증거기록 63, 67, 612, 613, 741, 1006, 1007쪽) 과 일치하는 점, ③ 피고인 여00의 2008년도 개인수첩에는 2008. 4 . 12.자에 "JOO, 10,000,000 갈치 3 BOX"(증거기록 877쪽, 별첨2 여00의 2008년도 개인수첩), 피고인 여00의 2009년도 개인수첩 사본에는 0000바이오의 명판이 찍혀져 있는 아래 부분에 "2008. 4. 8. 10,000,000 채00, 4. 10 . 10,000,000 영주, 4. 12. 5,000,000 주선생, 4. 21. 30,000,000 영주, 6. 16. 7,000,000 주선생 항공료"(증거기록 567쪽), 피고인 여00이 사 용한 노트북에 저장된 문서파일에는 "08 . 1. 23. 채00(김01) 10,000,000 가지급금, 4. 12. 로비 5,000,000 .."(증거기록 879쪽, 별첨2 피의자 여00 사용의 노트북에 저장된 문 서 )이라고 각 기재되어 있는바, ⓐ 피고인들도 당일 갈치세트 3박스를 교부 수수한 사 실은 모두 인정하고 있으며(증거기록 361, 366, 1615쪽), ⓑ 0000바이오 및 영주위드테 크의 각 통장내역에 의하면, 피고인 여00의 2009년도 개인수첩 사본에 기재된 바와 같 이 위 각 일자에 위 각 금원이 정확히 인출되었고(증거기록 612 -615쪽), 특히 2008. 4. 10. 및 2008. 4. 21.에는 위 수첩에 기재된 대로 0000테크에 위 각 금원이 실제로 입금 되었으며( 증거기록 595, 596쪽), Ⓒ 피고인 여00이 사용한 노트북에 저장된 문서파일에 기재된 대로 0000테크의 법인통장에서 2008. 1. 23. 채00이 지정한 박02에게 1,000만 원이 계좌이체되었을 뿐만 아니라 2008. 4. 12.에도 100만 원씩 5번 합계 500만 원이 현금으로 인출되었으므로[2009년 형제13582호, 2009년 형제23218호 사건의 증거기록 635, 636, 999쪽, 별첨2 0000테크(주 ) 법인통장거래내역], 피고인 여00의 2008년도 개 인수첩에 기재된 1,000만 원도 피고인 주00에게 실제로 지급된 것으로 보이는 점 , ④ 피고인 여00은 수사기관에서 처음에는 1,000만 원 교부사실이 기억나지 아니하여 수첩 과 장부들을 확인해 보고 차후에 진술하겠다고 하였으나( 증거기록 430쪽) 그 후 위 ③ 기재 수첩들이 제시되자 그때서야 비로소 피고인 주00이 아닌 '주02'에게 보낸 것이라 고 진술하고 있는바 , 이는 상대방이 누구인지는 차치하더라도 적어도 수첩에 기재된 내용대로 금원이 누군가에게 교부되었다는 사실 자체는 인정하고 있는 것으로 볼 수 있는 점(증거기록 627쪽), ⑤ 피고인 여00은 2009년도 개인수첩에 기재되어 있는 " 주 선생이 주02라고 주장하나, 그 아래 부분에 기재되어 있는 "6. 16. 7,000,000 주선생" 에서의 "주선생"은 피고인 주00이라고 진술한 바 있으며(증거기록 621쪽), 또한 피고인 여00이 지목한 주02는 당시 비행기를 타고 제주에 오지도 않았고(증거기록 634, 635, 671쪽), 피고인 여00이 주02에게 토요일에 급히 현금 1,000만 원을 인출하여 지급하여 야 할 아무런 이유가 없으며( 증거기록 729쪽), 무엇보다도 주02는 수사기관에서부터 이 법정에 이르기까지 일관하여 피고인 여00로부터 한번에 1,000만 원을 지급받은 적 이 없다고 진술하고 있으므로, 이 부분에 관한 피고인 여00의 진술은 신빙성을 인정하 기 어려운 점, ⑥ 피고인 주00은 2008. 4. 12. 07:08경부터 16:30경까지 한01, 김05 및 김04와 함께 나인브리지 골프장에서 골프를 쳤는데, 이와 관련하여 한01은 피고인 주 00과 함께 골프를 치고 차량을 이용하여 제주시내로 들어온 후 **식당으로 저녁식사를 하러 가기 전에 피고인 주00이 만날 사람이 있다고 하여 그의 관사에 그를 내려주었고 ** 식당에서 김05 및 김04와 저녁식사를 하는 동안에는 피고인 주00이 위 식당에 나타 나지 않았다고 진술하고 있으므로(증거기록 1975쪽), 피고인 주00은 적어도 그 날 저 녁 서울로 가기 위하여 제주공항으로 가기 전에 피고인 여00로부터 1,000만 원을 수수 할 시간이 있었던 것으로 보이는 점 [피고인 주00은 2008. 4. 12. 이 토요일이어서 ** 식 당이 휴업을 하였으므로 한01의 위와 같은 진술은 신빙성이 없다고 주장하고 있으나, 위 피고인이 이를 증명하기 위하여 제출한 ** 식당 CARD 전표( 증 제4호증) 의 해당 부 분은 줄 간격, 휴업하는 요일의 기재 유무, 글씨체 등에 비추어 보았을 때 조작된 것으 로 보인다] 등을 종합하여 보면, 피고인 주00이 피고인 여00로부터 판시 제3의 나. 항 및 판시 제4의 나. 항 각 기재와 같이 1,000만 원을 지급받은 사실을 충분히 인정할 수 있다. 따라서 피고인들의 위 각 주장은 모두 이유 없다.
B. Whether the 3,00 shares were actually received as stated in the No. 3-D and No. 4-D of the judgment of the court below as to whether the defendant's share was actually received 3,00 shares
(1) Defendants’ assertion
Defendant State 00 is the actual shareholder who owns 30% of the shares of 000 Korea. The shares are claiming that there is no quid pro quo, and Defendant 00 also note that there is no quid pro quo.
(2) Determination
According to the above facts, ① Defendant 00 entered 0 to 00 shares of 00 shares in the above 400 shares, and Defendant 1 stated 00 to 00 shares in the above 0-mentioned 40 shares, and Defendant 1 stated 0 to 3/10 shares in the above 0-mentioned 4 shares in the 0-registered 0-registered 10-registered 0-registered 10-registered 0 shares in the 0-registered 0-registered 10-registered 0-registered 0-registered 0 shares in the 0-registered 0-registered 0-registered 10-registered 0-registered shares in the 0-registered 0-registered 0-registered shares, and Defendant 4-registered 0-registered shares in the 0-registered 0-registered 0-registered shares in the 0-registered 0-registered shares, and Defendant 4-registered shares in the 0-registered 0-registered shares.
C. Whether Defendant 00 borrowed USD 6,666 as stated in the No. 3-e. and No. 4-e. as indicated in the judgment of the court below
(1) Defendants’ assertion
The Defendants asserted that Defendant 00 merely borrowed the above money from Defendant 00.
(2) Determination
In the context of the crime of bribery, if the accepter claims that he/she received the money from the accepter but not received the money from the accepter, whether or not the accepter actually borrows the money shall be determined by taking full account of all the objective circumstances revealed through evidence, such as the motive, process of delivery, and method of receiving the money from the accepter, the relationship between the accepter and the accepter, the position and work experience of the accepter, the need for borrowing the money, the possibility of borrowing the money from the person other than the accepter, the amount of the borrowed money and the circumstances of the accepter, the economic situation of the accepter, the amount of the borrowed money, the amount of the borrowed money, the amount of the borrowed money, the amount of the guaranteed money, and the amount of estimated economic interest related to the accepter, the payment period, the existence of the principal and interest of the accepter, the possibility of compulsory execution, etc. (see Supreme Court Decision 2007Do3943, Sept. 7, 207).
The following circumstances acknowledged by each of the above evidence, i.e., (1) the defendant 00 was first investigated by the investigative agency, and (3) the defendant 00 did not refuse to purchase the flight slip at the request of the Director-General, and (4) the prosecutor stated that "I would like to pay money to the Director-General" (361, 362, 368, 420). (2) If the defendant 60 was 60 U.S. dollars and 60 U.S. dollars were 60 U.S. dollars and 60 U.S. dollars were 60 U.S. dollars and 60 U.S. dollars were 60 U.S. dollars and 60 U.S. dollars were 60 U.S. dollars were 60 U.S. dollars and 60 U.S. dollars were 60 U.S. dollars were 60 U.S. dollars and 600 U.S. dollars were 60 U.S. dollars.
D. Whether the money received by Defendant 100 is in a quid pro quo relationship with his occupational act
(1) Defendants’ assertion
The defendants asserts that there was no quid pro quo of money received.
(2) Determination
The legal interest in the crime of bribery is the process of performing the duties of a public official, the trust in the society, and the purchase of an act of official. Since a public official does not require a solicitation or an unlawful act related to his duties, there is no special solicitation in recognizing the bribe of money and valuables received, and there is no need to have a relation between an individual act of official and a quid pro quo. When a public official receives money and valuables or other benefits from a person subject to his duties, it is deemed that such money and valuables are merely an ordinary one in light of the social norms, or that there is no relation with his duties unless there are special circumstances, such as where it is clearly recognized that a private pro rata relation exists, and that there is no relation with his duties. If a public official received money and valuables in relation to his duties, even if he received money and valuables by taking the form of a private teaching ceremony, such money and valuables shall be a bribe (see Supreme Court Decisions 201Do3579, Oct. 12, 201; 2007Do6784, Jun. 27, 2007).
In addition, the issue of whether money received by a public official constitutes a bribe as an unfair benefit with a quid pro quo relationship shall be determined by taking into consideration all the circumstances such as the contents of the relevant public official’s duties, relationship with a provider of duties and benefits, whether there exists a special relationship between both parties, the degree of interest and the circumstances and timing of receiving benefits, etc. In light of the fact that the crime of bribery is protected by the legal interest of the fairness of performing his duties and the trust in society, it is not necessary to make a solicitation or an unlawful act related to his duties, but it is one of the criteria for determining whether a public official is suspected of having a fair performance of duties from the general public due to receiving money (see, e.g., Supreme Court Decisions 9Do4940, Jan. 21, 200; 200Do5438, Sept. 18, 2001).
According to the above evidence, Defendant 0: (a) was established with 00 KMM 1 on June 21, 200; (b) around 00 on December 21, 2006; (c) Defendant 2 was appointed as the Director of Jeju Special Self-Governing Province 0, 00 and then changed the terms and conditions of 0.4 on September 8, 2006; (d) Defendant 2 was changed to 0.0 on May 20, 2006; and (e) Defendant 2 was changed to 0.0 on May 20, 200 on June 1, 2006; and (e) Defendant 2 was changed to 0.0 on May 26, 200 on June 20 on June 1, 206; and (e) Defendant 2 was changed to 0.0 on July 20, 200 on June 3, 2006.
6) On the basis of the above facts, Defendant 1 stated that he/she granted 00 funds to Defendant 1 (Evidence No. 361, 368, 421) to Defendant 1 on the ground that he/she had issued 0 conditional permission for construction of wind power generation projects (Evidence No. 361, 421), and ② Defendant 00 consistently stated that he/she issued 00 funds to Defendant 1 for authorization and permission of the above project (Evidence No. 28, 721, 2575 of the record No. 28), and Defendant 1 stated that he/she had issued 0 conditional approval for construction of wind power generation projects (Evidence No. 400 of the record No. 721, 200) on the ground that he/she had issued 60,000 if he/she had issued 60,000 if he/she had issued 6,000,000 won of 6,000.
2. Defendant Female 00
A. As to the crime of disguised payment under the Commercial Act
(1) The argument
Defendant 00’s establishment of a company by using the money borrowed from 00,000 to 50,000, even if Defendant 1 immediately withdrawn and repaid the money borrowed from 00,000 to 10,000, it should be deemed that the crime of fictitious payment is not established since it does not go against the company’s capital adequacy.
(2) Determination;
The purpose of Article 628 (1) of the Commercial Act is to regulate the act of neglecting the intent of the law that intends to lose the company's capital. Thus, in case where a company's capital is paid in form or temporarily without the intent to secure the company's capital due to the payment of stock price, and the company's capital is deposited in Eul bank and withdrawal of the paid money immediately after the company obtained a certificate of payment of stock price and completed the registration of incorporation or a certificate of payment of capital, the company's capital is not increased, unless there are special circumstances that the company used it as above, and therefore, the crime of inducing payment, the crime of not entering the original of authentic deed, and the crime of exercising the original of authentic deed is established (see, e.g., Supreme Court Decision 96Do2904, Feb. 14, 197).
In full view of the following circumstances acknowledged by each of the above evidence, i.e., (i) Defendant F0 stated in the court that this part of the facts charged is recognized as substitute for this part of the facts charged, and the investigation agency also stated that the act of withdrawing money is well aware of the fact that it is punished as the crime of fictitious payment (as long as the money withdrawn by Defendant F0 is used for the purpose of repaying its own private collection, not for the company’s liability, it cannot be viewed as being used for the company, so long as it is used for the purpose of repaying its own private collection, it can be sufficiently recognized that Defendant F0 committed the crime of fictitious payment. Accordingly, the above Defendant’s assertion is without merit.
B. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)
(1) Attached Table 1 No. 1, 4
A. The argument
The repayment of the debt borrowed from 00 in the process of preparation for the establishment of 000tech is reasonable, and it is deemed that the debt of the company, which is not the debt of the above defendant, has been repaid.
B. Determination
The intent of unlawful acquisition refers to the intent of disposal of the property of another person, which is in violation of his/her duties for the purpose of pursuing the benefit of himself/herself or a third party, in fact or by law. This means the intention of disposal of the property of another person, which is in violation of his/her duties. If the defendant denies it, the subjective element is that the defendant must prove it by means of an indirect fact or circumstantial fact which has considerable relevance to the nature of the property. Although the money in his/her custody was both dead and the location or use of the money is not revealed, in circumstances where the defendant's whereabouts or use of the money was not revealed, it is insufficient to recognize that the money was used in the location of the defendant's assertion, such as the defendant's failure to explain his/her whereabouts or use, or disclosure of funds used in the location of the defendant's assertion made out of funds other than the above money. Rather, where there are many reliable materials about the defendant's use of the above money for his/her personal purpose, it can be concluded that the defendant embezzled the above money with the intent of acquiring it (see, 2006.4.7.7.654.
④ Examining the following circumstances acknowledged by each of the above evidence, i.e., ① L01 consistently stated at an investigation agency to the effect that there is no 00 tech loan from 00 to 40,000 (the witness’s legal statement, 623 pages). ② Defendant 1’s 2 million won per annum as of November 7, 2005 and 4 million won per annum as of January 18, 2007 are assumed to be the Defendant’s debt of 00 tech, and the above 4 million won per annum as of December 31, 2006 was not yet paid to 400,000 won per annum, and the above 100,000 won per annum as of 40,000 won per annum as of 10,000 won per annum as of 40,000 won per annum as of 30,000 won per annum as of 30,000 won per annum as above.
(2) Attached Table 1 No. 2,10
(A) The argument
Since the equipment is used in the company dormitory, it is not a crime of embezzlement for the expenses incurred in relation thereto.
(B) Determination
Taking into account the following circumstances acknowledged by each of the above evidence, i.e., (1) the fact that no indication is made on L CDTV and its visitors (Evidence Records 643, 644 pages), (2) the depreciation cost specifications of tangible assets in 000 et al. (Evidence Records 106, 107, 623 pages), (3) the fact that the Defendant’s 00 degree of her and her address 00 degree of her address is being used (Evidence Records 330 pages), and (4) the said 01 degree of 600 level of her address her address her address her address her address her address her address her address her address her address her address her address her address her address her address her address her address her address her address her address her address her address her address her address her address her address her address she had been written on the 6000th page (Evidence Records 608 pages pages).608 pages).
(3) Attached Table 1 No. 3
A. The argument
The crime of embezzlement is not established because of the use of indirect official business expenses with personal credit cards of 000, which are later refunded after the use of indirect business expenses for 000tech.
(B) Determination
In full view of the following circumstances acknowledged by each of the above evidence, i.e., ① 00, the former representative director of the 000tech, was actually performing the representative director's business from August 2006 to November 2006, when Defendant 00 made a statement to the effect that Defendant 60 did not have any reason to receive business promotion expenses (Evidence 698 pages), ② 01Do 000, when Defendant 00 made a statement to the same effect, and Defendant 00 made a statement to the effect that Defendant 0 used business promotion expenses, the amount corresponding thereto was paid, but Defendant 00 made a statement to the effect that he did not submit such receipt (the witness 01's legal advance statement). ③ Defendant 00 did not submit evidence that Defendant 00 had used the above money for the company. Accordingly, the above Defendant's assertion is not reasonable.
(4) Attached Table 1 No. 5,6,7
(A) The argument
Since 00 was withdrawn under the name of the Defendant’s provisional payment, this cannot be deemed to have been embezzled.
B. Determination
위 각 증거에 의하여 인정되는 다음과 같은 사정들, 즉 ① 여01은 연번 5, 6, 7, 8 기재 각 금원을 경리장부에 모두 '가지급금'으로 기재하였는데(증거기록 197, 198, 200 쪽), 그 의미가 피고인 여00이 금원을 지출하고도 사후에 증빙서류 등을 제출하지 아 니하여 정산되지 아니한 채 그대로 남아있는 것을 뜻한다고 하면서 위 피고인이 여전 히 이를 변제하지 않고 있다고 진술한 점 (증거기록 628쪽), ② 여01은 피고인 여00이 2008. 3. 26. 4,100만 원, 2008. 9. 30. 4,000만 원, 2008. 12. 1. 70,019,850원을 0000 테크에 입금하기는 하였으나, 당시 위 피고인이 0000바이오에 2억 원을 투자하려고 하 는데 0000테크 법인통장의 잔고가 부족하였기 때문에 처 성00의 명의로 2008. 3. 26. 자 금원을 입금한 후 바로 인출한 것에 불과하고, 그리고 2008. 9. 30.자 금원은 주식 회사 $$(후술함) 에 투자하기 위하여 입금한 것이며, 나머지 2008. 12. 1. 자 금원은 여 01이 성00에게 자진 반납하라고 하여 반납된 것이라고 진술하고 있는바, 이는 0000테 크의 법인통장 내역과도 대체로 일치하는 점(증거기록 629, 705, 709, 852, 857, 859 쪽), ③ 위 가지급금이 여전히 변제되었다고 보기 어려운 점 등을 종합하여 보면, 피고 인 여00이 불법영득의사를 가지고 횡령한 사실을 충분히 인정할 수 있다. 따라서 위 피고인의 위 주장도 이유 없다.
(5) Attached Table 1 Nos. 8, 9
A. The argument
Since the amount Defendant 00 withdrawn from the provisional payment, it cannot be viewed as embezzlement; (B) judgment;
In a case where a representative director of a company voluntarily disposes of the company's property for any purpose other than expenditure for the company, he/she does not have an agreement on interest or maturity for the use of large company funds under the pretext of provisional payment, etc., and it does not go through legitimate procedures such as a board of directors' winner, etc., by using the status of representative director, etc. beyond the generally acceptable scope, and thus constitutes embezzlement by using the company's funds for private purposes (see, e.g., Supreme Court Decisions 2003Do135, Apr. 27, 2006). In a case where a shareholder or representative director arbitrarily disposes of the company's property for private purposes such as providing it as security for a third party's financing, then he/she cannot be exempted from liability for embezzlement regardless of whether there was a resolution by the general meeting of shareholders or the board of directors (see, e.g., Supreme Court Decisions 2005Do3045, Aug. 19, 2005; 206Do8796, Oct.
The following circumstances acknowledged by each of the above evidence, i.e., 100 won to 00 won borrowed from 00 to 10 million won and stated that she paid her interest, and she also recognized her her her her her her her her her her 1 month her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her with the her her her her her her her her her her.
(6) Attached Table 1 No. 11
A. The argument
Jeju Interlock******* because of the following expenses for the use of heading 00 (00) 302 as a dormitory in 000 et al., embezzlement is not established.
B. Determination
In light of the following circumstances acknowledged by each of the above evidence, i.e., (1) 00 won to be deposited in 000 et al. on March 3, 2008: (2) 100 m30 m30 m30 m30 m30 m30 m300 m30 m30 m30 m30 m30 m300 m3 m30 m30 m3 m30 m3 m30 m3 m4 m3 m3 m4 m3 m3 m4 m3 m4 m3 m3 m4 m3 m3 m4 m3 m4 m3 m3 m4 m3 m4 m3 m3 m4 m3 m3 m4 m3 m4 m3 m4 m3 m4 m3 m4 m3 m m3 m.
(7) Attached Table 1 No. 12
(A) The argument
200 million won of the capital increase of 10000 U.S. dollars is not private investment but investment by the above defendant, so the above defendant does not embezzled the above money.
(B) Determination
The following circumstances acknowledged by each of the above evidence, i.e., ① 01 consistently with the investigative agency from 00 to 100 m200 m2 were stated that the defendant's investment in the above 00 m200 m3m2 was kept in Jeju Bank and deposited 00 m220 m20 m20 m200 m20 m2. The purpose of this case's investment in the above 00 m2m2 is 00 m220 m220 m20 m220 m20 m20 m20 m26 m20 m20 m20 m20 m20 m2 m20 m2
(8) Attached Table 1 No. 13
A. The argument
Since the above defendant's investment in Korea, other than the above defendant's individual, 000 Guca is invested in 000 Korea, the above defendant's embezzlement cannot be viewed as embezzlement.
(B) Determination
According to the following circumstances acknowledged by each of the above evidence, i.e., (1) Kim 01 and Kim 00 stated that they were her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her hers.
(9) No. 14, 16, 17, 18, 19,20 listed in Appendix 1 List of Offenses
A. The argument
0000테크가 주식회사 $$(이하 '$$'이라 한다)에 투자하거나 투자하면서 발생한 비용 이므로 이를 횡령한 것이 아니다.
B. Determination
위 각 증거에 의하여 인정되는 다음과 같은 사정들, 즉 ① 여01은 수사기관에서부터 이 법정에 이르기까지 일관하여 피고인 여00이 개인 명의로 $$ 에 투자하면서 그 형식 은 0000테크에서 $$ 에 대여하는 방법으로 각 금원을 지급한 것이라고 진술한 점(증거 기록 623쪽), ② 공동사업계약서에는 계약 당사자가 "여00", "이01" 및 "주식회사 $$( 대 표이사 이01)"으로 기재되어 있으므로 위 계약의 일방 당사자는 피고인 여00 개인으로 보는 것이 타당하다고 보이는 점 (증거기록 645-650쪽), ③ 이01도 이 법정에서 처음에 는 피고인 여00과 계약을 체결하였다고 진술한 점(증인 이01의 법정진술), ④ 피고인 여00은 주주총회 또는 이사회의 의결을 전혀 거치지 아니하였고, $$은 영세한 업체로 서 수익성을 위해 투자하기에 적절하지 않았던 회사로 보이는 점(증거기록 713쪽) 등 을 종합하여 보면, 피고인 여00이 불법영득의사를 가지로 횡령한 사실을 충분히 인정 할 수 있다. 따라서 위 피고인의 위 주장도 이유 없다.
(10) Attached Table 1 No. 15 per annum
A. The argument
The amount of money withdrawn to purchase No. 203 of 01 listed above to be used as a dormitory is used as expenses for the operation of the company Eul, and the account book was returned after recording it as provisional payment, so it cannot be deemed as embezzlement.
(2) Determination
In full view of the following circumstances acknowledged by each of the above evidence, i.e., (1) the fact that the Defendant 01 received the statement that it is necessary to collect the down payment of mileage ****,00 (Evidence No. 713, 714 pages), but it was stated that the Defendant 00 was still unable to recover it (Evidence No. 713, 714 pages), and (2) the Defendant 00 was paid as the down payment, but was actually used as the expense for the operation of the company without using it for that purpose. However, in light of the above facts, 8 million won out of the above amount was transferred to 01, and 00, the Defendant 00 still was unable to submit the evidentiary documents corresponding to the assertion (Evidence No. 714, 855 pages of evidence No. 714, 8555). Therefore, the above Defendant’s assertion is without merit.
(11) Attached Table 1 No. 21
(A) The assertion
Since Defendant Boh 00 used approximately KRW 20 million out of KRW 70 million deposited in 000 ether, it is not embezzled.
(B) Determination
Even if the money kept by the representative director of a company is disposed of as the provisional payment of the above representative director on the company’s account books, if the above representative director consumeds the above money, which is funds owned by the company, for personal use, it constitutes an occupational embezzlement (see, e.g., Supreme Court Decision 88Do936, Jul. 26, 198; Supreme Court Decision 2004Do7585, Jun. 16, 2006). On the other hand, inasmuch as the above representative director’s embezzlement of the company’s money kept in business with the intent of unlawful acquisition and thereby constitutes an offense, it does not affect the crime of occupational embezzlement established at the time of using money (see, e.g., Supreme Court Decision 2004Do7585, Jul. 26, 198).
The following circumstances acknowledged based on each of the above evidence, i.e., ① the ownership of the money belongs to 000 KK as long as the money was deposited as the Defendant’s provisional deposit even in the assertion of 00, and ② Kim 02 agreed to receive KRW 30 million from 00,000 from 00 and transfer the public interest shares owned by Kim 02 to 00, and on December 24, 2008, it appears that the above Defendant was paid KRW 15,00,000 to 15,000 as above (Evidence Record 1086,107, the evidence record) and it appears that the above Defendant was tried to purchase the above shares individually, and ③ the Defendant’s own 00,000 won (= KRW 20,000,000 - 15,0000,000) was personally used (Evidence evidence) and thus, the above Defendant’s evidence was not sufficiently admitted to 1086,006.
(12) Attached Table 1 No. 22,23
A) The assertion
Since the 000tech is an actual owner of Ireland 702, it is not embezzlement that the above Defendant paid the interest of the loan with the funds of 000tech.
(B) Determination
In light of the following circumstances acknowledged by each of the above evidence, i.e., 01 purchased * Ireland 702 in order to secure comprehensive construction capital * in order to acquire important assets * without the resolution of the general meeting of shareholders : purchase without the procedure ** 721, 722 pages at the time of 000, 2 01do * 00, 70, 100, 100, 70, 100, 100, 200, 100, 300, 100, 200, 100, 1000, 100, 100, 1000, 200, 1000, 1000, 1000, 200, 200, 100, 300,000,000,000,000).
Reasons for sentencing
1. Defendant Female 00
[Recommendation and Punishment of Fundamental Crimes] Imprisonment with prison labor, one year and six months - Three years;
Embezzlement, Type 3, not less than KRW 500,000 - Less than KRW 5 billion, the mitigation area
· A special mitigation person: A person who has not been punished or whose significant damage has been recovered;
[Recommendation and Punishment of Minor Offenses 1] Imprisonment from April to October
The basic territory of bribe, offering of bribe, type 1, class 30 million won,
· A person who is in general: in a case where he is highly related;
[Recommendation and Punishment of Minor Offenses 2] Imprisonment with prison labor - Six months
The scope of bribe, offering of bribe, type 1, 30 million won or less, and mitigation
· Special mitigation: where the consignee complies with the affirmative demand of the consignee;
· A person who is in general: in a case where he is highly related;
[Dive cumulative Calculation of Multiple Crimes] Imprisonment with prison labor for at least one year and six months
Only the lower limit of the punishment shall be observed in relation to concurrent crimes in the former part of Article 37 of the Criminal Act with which the sentencing criteria have not been set.
[Scope of Punishment] Imprisonment, one year and six months, - November and three months;
[Determination of Sentence] Two years of imprisonment
In light of the fact that Defendant F0 embezzleds the amount of KRW 500 million in using the remaining assets as his/her own safe after establishing a 000 thesis with the method of fictitious payment, and that Defendant F00, who is a public official, offered a bribe over several times to Defendant F0, it is necessary to punish the above Defendant.
However, considering the following facts: (a) there is no record of punishment of Defendant 00 who has been sentenced to the suspension of execution or heavier punishment; (b) the upper part of the embezzlement amount seems to have been actually recovered; and (c) the age, character and conduct, family environment, and circumstances after the crime, all the sentencing conditions specified in the argument of the instant case shall be determined
2. Defendant Note 00
[Recommendation and Punishment of Fundamental Crimes] Imprisonment - 1 year - 3 years
The basic territory of bribery, acceptance of bribe, type 2, class 10 million won or more, - the amount of less than 30 million won,
· A public official of Grade III or higher in the case of a high relevance to his duties;
· General mitigated: No history of criminal punishment
[Recommendation and Punishment of Minor Offenses] Imprisonment for 2 years - 4 years
The scope of bribery, acceptance of bribe, type 2, class 10 million won or more, - the amount of less than 30 million won, and aggravating
· Persons under special circumstances: positive demand
· A public official of Grade III or higher in the case of a high relevance to his duties;
· General mitigated: No history of criminal punishment
- 2 years - June 5, 200
[Scope of Punishment] Imprisonment with prison labor, 1 month - June 7
[Determination of Sentence] Two years of imprisonment
Although Defendant State 00, while serving as the Director General of Jeju Special Self-Governing Province, knew that Defendant 00, who is a business operator related to the business affairs of Jeju Special Self-Governing Province, applied for authorization and permission, he/she received sets and money from him/her; furthermore, Defendant 00 attempted to conduct business by taking advantage of his/her status with Defendant 00, etc., and Defendant 00 continued to deny the public action of this case in full and to conceal his/her crime; ** in order to avoid his/her misconduct, such as manipulating the books of restaurant, etc., it is necessary to strictly punish Defendant 00.
However, considering the fact that the defendant is a primary offender, the fact that he served as a public official for a considerable period of time, the age, character and conduct of the above defendant, family environment, and circumstances after the crime, all the sentencing conditions shown in the arguments of this case shall be determined as ordered.
The acquittal portion
1. Of the facts charged in the instant case, the offering of bribe to Defendant 00 on March 13, 2008 and the offering of bribe to Defendant 1 on March 13, 2008 on March 13, 2008
A. Summary of this part of the facts charged
(1) On March 13, 2008, Defendant L00 apartment units **** at the time at the dwelling area of Defendant 100, Defendant L00 applied for authorization and permission with the Department of 000 industry at the dwelling area of Defendant 100. However, on February 28, 2008, Jeju-do (department 00 Energy at the time of department in charge) applied for authorization and permission with respect to the wind power generation complex development project at the dwelling area of Defendant 100, but only obtained conditional approval due to the prior environmental review on the change of the wind power plant site at Jeju-do (department 00 Energy at the time of department in charge), cultural heritage surface inspection, etc. In addition to the case of conditional approval, the case of Defendant 00, as well as the case of change of the project site area, made a request to the effect that Defendant 1 may obtain final authorization and approval for the wind power complex development project, and in consideration of the above request, Defendant granted 100 U.S. dollars (one million won for official’s overseas business trip).
(2) On March 13, 2008, Defendant Note 00 apartment *** at the time at the dwelling area of Defendant 00, at the time, applied for authorization and permission with the Department of 000 for the development of the wind power complex for three months, but on February 28, 2008 at Jeju-do (department 00 Energy at the time of department in charge), only obtained conditional approval due to the prior environmental review on the change of the wind power plant site for the Jeju-do (department 00 Energy at the time of department in charge), the ground surface survey, etc. In addition to the case of conditional approval from Defendant 00, the case of the conditional approval and the change of the project area for the wind power complex development project so that the final authorization and permission can be obtained, in return for the request, Defendant 100 US dollars (one million US dollars at the time of receiving a bribe from a public official under the pretext of an overseas bribe under the pretext of the official's duty.
B. Defendants’ assertion
Defendant 00 asserts that there is no fact that the amount of USD 1,00 is received from Defendant 00, but Defendant 00 delivered USD 1,000 to Defendant 00, but Defendant 00 did not have any quid pro quo.
C. Determination
In order to acknowledge a conviction only with a statement made by a person who has accepted a bribe in the context of the bribery, in a case where the defendant, who was selected as a bribe, denies the fact of the acceptance of the bribe, and there is no evidence such as financial materials to support this, the statement made by the person who has accepted the bribe must have the admissibility of evidence, and there is credibility to exclude a reasonable doubt. In determining the credibility of the statement, not only the rationality, objective reasonableness, consistency before and after the statement itself, but also its human beings, and the existence of interests derived from the statement should also be examined (see, e.g., Supreme Court Decisions 200Do5701, Jun. 11, 2002; 2007Do2178, Jun. 14, 2007).
According to the records, ① Defendant 00 stated in the prosecutor’s office that “at the time of delivery of USD 1,00 to 22:0 or more times at the time of delivery,” and immediately, Defendant 00 stated that “I do not have memory as to the time of delivery of the above money (365 pages of evidence records)” and stated that “I do not have memory as to 10 or more times of delivery to 100 or more times of delivery to 100 or more times of delivery,” and there is no fact that Defendant 20 or more times of delivery to 00 or more times of delivery before 100 or more times of delivery to 100 or more times of delivery to 200 or more times of delivery (see, e.g., Supreme Court Decision 200 or more witnesses’ statement). It is difficult to find that there is a lack of evidence to acknowledge that the Defendants’ personal testimony was delivered to 100 or more times of delivery to 200 or more times of delivery (see, e.g., Defendant 20000 or more times of testimony)., etc.
Therefore, this part of the facts charged constitutes a case where there is no proof of crime and thus, should be acquitted under the latter part of Article 325 of the Criminal Procedure Act. However, inasmuch as the crime of offering a bribe to Defendant 00, which is a single comprehensive crime, and the crime of acceptance of bribe against Defendant 00, each of the charges against Defendant 1
2. The point of occupational breach of trust against Defendant 00 among the facts charged in the instant case
A. Summary of this part of the facts charged
On June 21, 2005, the defendant was issued a corporate card to be used only for business purposes of the company by the victim while operating the above company as the victim's business development director around June 21, 2005.
On June 26, 2005, the above defendant paid 149,000 won of personal shopping price in violation of the occupational duty to use the above corporation card only for the purpose of the company's business at K2 Jeju agency in Jeju.
Accordingly, the above defendant acquired property benefits equivalent to KRW 149,00, and suffered damages equivalent to the same amount to the victim.
In addition, the above Defendant acquired property benefits equivalent to KRW 43,179,882 over 263 times as stated in the annexed Table 2 between around that time and around June 4, 2009, and caused considerable damage to the victim.
B. Defendant 00’s assertion
Defendant 100 and his defense counsel asserted that the corporate card is used for the company, so this does not constitute a crime of occupational breach of trust.
C. Determination
The following circumstances acknowledged by the record (i.e., the corporate card used by Defendant 00 should be used for the company abstractly, but there is no specific provision on the card’s articles of incorporation, and (ii) the above Defendant was carrying out the business of lending the corporate cards to the public for 00 table, and the officer in charge of preparing accounting books at the time of using the card was only 00 if he was issued a corporate card by the above company and prepared it for 10 books (350 pages of the evidence), and (3) there was no other evidence to prove that the above personal records were available for 100 table from November 1, 206 to 100 table, and there was no other evidence to prove that the above personal records were available for 200 table of the facts charged (3) and there was no other evidence to prove that the above personal records were available for 160 table of the facts charged.
3. The point of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) on January 18, 2006
A. Summary of this part of the facts charged
On January 18, 2006, Defendant Green 00 delivered KRW 200,000 to Kim 07, while keeping the money owned by the Defendant for the purpose of the victim's 000 test, as a personal debt ( Kim 07) wage, during the course of carrying out his business, and consumed it in mind.
B. Defendant 00’s assertion
The above defendant has not embezzled the above money.
C. Determination
According to the records, even though the above facts as stated in the above facts charged are entered in the accounting account book of 000tech, (Evidence No. 194 pages), but there is no record of withdrawal of KRW 200,000,000 corresponding to the above part on the same day (Evidence No. 814 pages), on the other hand, in the personal account book of 00,000, Defendant No. 800, there can be a fact that the account transfer record of KRW 200,400 on the same day exists (Evidence No. 979 pages). Thus, it is difficult to recognize the fact that Defendant No. 00 has embezzled the above money individually.
Therefore, this part of the facts charged should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act because it constitutes a case where there is no proof of a crime. However, as long as it is found to be guilty of a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes in the judgment related to
It is so decided as per Disposition for the above reasons.
Judges
[Presiding Judge]
Scargs
Anti-effective Forest
Site of separate sheet
List of Offenses 1
have been kept
have been kept
Debt Settlement
have been kept
account shall be accounted
have been kept
Voluntary Lawsuit
account shall be accounted
have been kept
have been kept
have been kept
Purchase costs
Objectives
Voluntary Lawsuit
A person shall be appointed.
Voluntary Lawsuit
Personally
have been kept
have been kept
Voluntary Lawsuit
List of Offenses 2
Price shall be determined
power
Price shall be determined
Shopping payments
Price shall be determined
Price shall be determined
power
Price shall be determined
power
Shopping payments
Shopping payments
Shopping payments
Shopping payments
power
Price shall be determined
Price shall be determined
shopping payments
Duties
payment
shopping payments
shopping payments
A person shall be appointed.
payment
Price shall be determined
shopping payments
payment
payment
Duties
Duties
Duties
Duties
Duties
Duties
Duties
Duties
Duties
Duties
Duties
Duties
A person shall be appointed.
Duties
Duties
Duties
Price shall be determined
Shopping payments
Use
Shopping payments
Use
Price shall be determined
Use
Use
travel expenses as travel expenses
payment
shopping payments
Shopping payments
Price shall be determined
Price shall be determined
Price shall be determined
Price shall be determined
payment
Use
Use
Use
shopping payments
Occupational
For purposes
Occupational
For purposes
For purposes
Occupational
For purposes
Occupational
Shopping payments
Shopping payments
Occupational
Shopping payments
For purposes
Occupational
For purposes
Occupational
Price
Occupational
Shopping payments
shopping payments
shopping payments
payment
A person shall be appointed.
shopping payments
shopping payments
Shopping payments
For purposes
Shopping payments
Price
Occupational
For purposes
Occupational
Shopping payments
Occupational
For purposes
Price
Occupational
For purposes
Occupational
Shopping payments
Occupational
A shopping mall;
Occupational
A shopping mall;
Occupational
For purposes
A shopping mall;
Occupational
Occupational
A shopping mall;
Occupational
For purposes
Occupational
Occupational
A shopping mall;
For purposes
For purposes
Occupational
Price
Price
Price
Price
For purposes
Shopping payments
For purposes
Shopping payments
Occupational
A shopping mall;
A shopping mall;
Occupational
For purposes
A person shall be appointed.
Occupational
For purposes
A shopping mall;
For purposes
Occupational
Occupational
A shopping mall;
For purposes
Occupational
For purposes
Occupational
Shopping payments
Occupational
For purposes
A person shall be appointed.
Occupational
For purposes
Occupational
For purposes
For purposes
Occupational
Shopping payments
Price
Occupational
For purposes
For purposes
For purposes
For purposes
For purposes
Occupational
For purposes
A person shall be appointed.
For purposes
Occupational
For purposes
For purposes
Occupational
Occupational
Price
For purposes
Shopping payments
Shopping payments
Occupational
For purposes
Occupational
For purposes
For purposes
Shopping payments
Occupational
For purposes
For purposes
Occupational
For purposes
For purposes
Occupational
For purposes
A person shall be appointed.
For purposes
Occupational
For purposes
For purposes
For purposes
For purposes
For purposes
Shopping payments
Shopping payments
For purposes
For purposes
For purposes
Occupational
For purposes
For purposes
Price
Shopping payments
Occupational
For purposes
Price
For purposes
Occupational
For purposes
Price
Shopping payments
Occupational
Price
Occupational
Shopping payments
Shopping payments
Use
Use
Use
Use
shopping payments
Use
payment
Use
shopping payments
shopping payments
Occupational
For purposes
Occupational
Price
Occupational
Shopping payments
Occupational
Occupational
A person shall be appointed.
Occupational
Occupational
Shopping payments
Occupational
For purposes
Occupational
For purposes
Occupational
For purposes
shopping payments
Use
shopping payments
A person shall be appointed.
Use
Use
shopping payments
payment
shopping payments
Price shall be determined
shopping payments
shopping payments
Use
shopping payments