(영문) 대전고등법원(청주) 2011. 5. 19. 선고 2010노221 판결

2. Defendant 1 shall be punished by imprisonment for a term of two years, by imprisonment for a term of three years, by imprisonment for a term of three, four, and five years.

3.Provided, That the execution of each of the above punishments shall be suspended for four years for Defendant 1, and for two years for Defendant 3, 4, and 5 from the date this judgment has become final and conclusive.

4. The prosecutor's appeal against the defendant 6 and 2 is dismissed.

5. Of the facts charged in the instant case, Defendant 1, 3, 4, and 5 are not guilty of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud).

6. A summary of the judgment on the facts charged as stated in Paragraph 5 against Defendant 1, 3, 4, and 5 shall be published.

Reasons

1. Summary of grounds for appeal;

A. Defendant 1

1) misunderstanding of facts about the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) (hereinafter “Special Economic Act”)

Although the Defendant was normally making profits from rental housing before being forced to buy a rental deposit insurance policy, the Defendant’s insurance policy forced to buy a guarantee insurance policy, which led to the nonperformance of Nonindicted Co. 2 (hereinafter “Nonindicted Co. 2”) due to the aggravation of profitability from an additional burden of the enormous insurance premium, and thus, did not intentionally make a default.

In addition, the submission without stating the actual management owner in the data on the actual conditions of the company for credit assessment is all apartments of Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) and most apartments of Nonindicted Co. 2 after the purchase of a surety insurance, and the fact that most of the apartments of Nonindicted Co. 2 are after the purchase of a surety insurance, and the fact that the actual management owner is not stated in the data on the actual conditions of the company, which is a kind of basic material

The Act was enforced by law, and the part which the judgment of the court below found guilty is the lease part which purchased a guaranteed insurance through the examination and evaluation of the Korea Housing Guarantee Co., Ltd. (hereinafter referred to as "Korea Housing Guarantee") after entering into a lease contract in a normal condition, and there is no act of deception by the

With regard to the amount of damage, the defendant is recognized the guarantee limit of 18.5 billion won in the examination of the Korea Housing Guarantee through the appraisal of the rental housing, and has subscribed to the insurance equivalent to 16.6 billion won, which is within the scope of the guarantee limit, and has been submitted to the certificate of transfer of the rental housing as security at the time of purchasing the insurance. The Korea Housing Guarantee is succeeded to the lessee's right when paying the insurance money, while it is possible to recover the insurance money through the auction of the rental housing, so there is no substantial damage and there is no substance of so-called

2) The misapprehension of legal principles as to the special law (Fraud)

Unlike the general guarantee, the security deposit of this case is an insurance contract which covers the debtor's obligation to refund the security deposit, as an insured event, and the time of commencement of its execution is the time of insurance claim against the insurance company, and it is merely a preliminary phase due to the absence of the commencement of its execution.

3) Unreasonable sentencing

The sentence (three years) of the lower court is too unreasonable.

(b) Prosecutors;

1) Part of the Defendants 1, 3, 4, and 5’s violation of special law (Fraud)

㈎ 피고인 1, 3, 4, 5(이하 ‘피고인 1 등’이라 한다)의 범 의 내지 범행의 착수 시점과 관련한 사실오인 내지 법리오해

The lower court, rather than on December 28, 2007, at the time when Defendant 1, etc. established Nonindicted Incorporated Co. 3 (hereinafter “Nonindicted Co. 3”) for the purpose of concealing company’s property, determined the transfer stage of company’s property as the time of crime commencement, and sentenced Defendant 1, etc. not guilty of the part of the guaranteed insurance contract previously subscribed.

However, on February 25, 2008, the part of the surety insurance policy as of February 25, 2008 was erroneous in the lower judgment in that it acknowledged the following facts: (a) from February 20, 2008, Defendant 1 had the intention to pay for the future or was predicted to be in advance at least that he would be in default; and (b) Defendant 3, 4, and 5 knew of such circumstances, Defendant 3, 4, and 5 had the intention to pay for the future; and (c) Defendant 3, 4, and 5 had the intention to buy the surety insurance with the intention

Defendant 1, at least on September 9, 2007, started a series of work with intent to default on the property related to the apartment (name 1 omitted), and even according to the statement of related persons, Defendant 1’s employees knew that Nonindicted Company 3 was the best act to preserve the property in the process of Defendant 1’s intentional act, and in particular, Defendant 3 was aware that the lease agreement with Nonindicted Company 5 (hereinafter “Nonindicted Company 5”) was false in the case of Defendant 3. The lower court determined that Defendant 1 was at least at the time of crime since it was difficult to determine that there was an intentional act of Defendant 1, which was the time when it was against the rule of evidence established by Nonindicted Company 6, around July 9, 2009, since it was difficult to view that there was an obvious error in the omission of Defendant 2’s implementation plan, such as an intentional act of Defendant 4, even after the establishment of the property of Nonindicted Company 2 by the Defendants around 6, 2009, since it was about June 1, 2009.

㈏ 사기 범행의 이득액 산정과 관련한 사실오인 내지 법리오해

The lower court, on the ground that a lease contract, which can be deemed as a principal contract, is false, and thus, cannot be said to have caused a guaranteed obligation to the Korea Housing Guarantee in accordance with the subsidiary legal doctrine of the guaranteed obligation, excluded the part concerning each household based on the false lease contract from calculating the amount of profit of Defendant 1, etc. for fraud.

However, the act of disposal in fraud is irrelevant to the validity in the civil law as a de facto concept, and it is sufficient to acquire property benefits from it in the external form. Therefore, regardless of the invalidity of the guarantee insurance contract for the household of this case, a lease contract is concluded in the external form regardless of the invalidity of the guarantee insurance contract for the household of this case, and if the guarantee has been subscribed based on this, it shall not be an obstacle to the recognition of the acquisition of the property benefits. Therefore, even in a false lease contract, even though it can be deemed that Defendant 1 et al. acquired the guaranteed benefits, the judgment of the court below, excluding this from the amount of the benefits obtained by deception, is erroneous in the misapprehension of the legal principles as to the act of disposal in fraud or in the misapprehension

2) misunderstanding of facts or misunderstanding of legal principles as to Defendant 2’s conspiracy

From around 205, Defendant 2 consulted about the main part of Defendant 1’s business and fund management from time to time, and Defendant 1 had close relation, such as aiding and abetting the money laundering when purchasing the Seoul Housing which is his residence, and Defendant 1 sought advice from Defendant 2 at the time of submitting the data that there is an excessive guarantee fee for Defendant 1’s house guarantee. (Name 1 omitted) Defendant 2 was able to receive more money from the Kan Housing Guarantee by raising the deposit money, and Defendant 2 was able to come back with the Kan Housing Guarantee, and Defendant 2 was aware of the fact that the Kan Housing Guarantee before and after the purchase of the instant house was aware that Defendant 1 was acting on behalf of the Kan Housing, and that the Kan Housing Guarantee was hiding and publicly offered in advance, but the lower court erred by misapprehending the legal principles on Non-Party 1’s testimony, excluding Defendant 2 from the charge of this case by misapprehending the legal principles on the presumption by reasoning, etc.

3) Defendants 1 and 6’s unreasonable sentencing

The lower court’s sentencing against Defendant 1 and Defendant 6 is unreasonable in light of the Defendants’ previous conviction, criminal law, and circumstances after the crime.

2. Judgment on Defendant 1, etc.'s violation of special law (Fraud)

Defendant 1 and the Prosecutor's assertion of mistake or misapprehension of the legal principles also.

A. Summary of the facts charged regarding the guilty portion

(Open도요)

According to the Rental Housing Act amended by Act No. 7598 of July 13, 2005, when a rental business operator purchases a guarantee insurance for a victim's guarantee for a rental deposit, Defendant 1, etc. was aware that, even if the lessee fails to refund the rental deposit due to the default of the rental business operator, there is a "rental deposit system for rental deposit" in which the lessee pays the rental deposit to the lessee, and Defendant 1, etc. was aware that (name 2 omitted), apartment (name 3 omitted), apartment (name 4 omitted), apartment (name 4 omitted), apartment (name 4 omitted), and non-indicted 1 (name 1 omitted), while operating an apartment leasing business for the general public, he purchased a guarantee insurance for the rental deposit for the rental deposit for the purpose of avoiding the lessee's obligation to return the rental deposit to the lessee and was planning to pay the rental deposit for the non-indicted 2 and the non-indicted 1 (hereinafter

Defendant 1, etc. concluded a false lease contract which has occupied a false tenant in an unsold apartment unit, subscribed to the security deposit insurance for the rental deposit for the rental house for the rental house for the rental house for the housing, and deducted all the old-age companies established by Defendant 1, etc. from the assets of the instant company, thereby making the instant company liable for the payment of the proposed bill in a manner that did not pay intentionally the outstanding bill, thereby allowing the Korea Housing Guarantee to substitute the security deposit for the rental deposit and to acquire the pecuniary profit equivalent to the guaranteed profit.

[Sharing of Criminal Conduct]

In the above process, Defendant 1 was in general as the actual operator of the instant company, Defendant 3 was in charge of the conclusion of rental apartment lease contract, application for purchase of guarantee insurance for rental deposit for rental housing for rental housing, (name 4 omitted) apartment management fee deposit management, management of company funds, accounting, etc., Defendant 4 applied for guarantee insurance for rental deposit for rental housing for rental housing for employees of the instant company, (name 3 omitted) apartment management fee deposit management, (name 3 omitted), and application for transfer registration of ownership related to concealment of property, etc. as employees of the instant company, and Defendant 5 decided to take charge of the following affairs: the conclusion of rental apartment lease contract, application for guarantee insurance for rental deposit for rental deposit for rental housing for rental housing, and management of company funds.

1) Defendant 1 and 3’s co-principal (name of building 1 omitted) apartment cases

(Establishment of a floating company and concealment of the property of Nonindicted Company 1)

Defendant 1, one of the preparatory work for the “defluent bankruptcy,” was to establish Nonindicted Company 3 with Defendant 2 as the representative director around December 28, 2007 in order to deduct the property owned by Nonindicted Company 1 from the property.

On February 26, 2008, Defendant 1 transferred (name 1 omitted) apartment Nos. 1 to 12 commercial buildings and 12 commercial buildings of Cheongju-si (name 1 omitted), which is owned by Nonindicted Co. 1, 208, to Nonindicted Co. 3, thereby concealing property.

[Conclusion of a false rental agreement for an undeveloped apartment]

Defendant 1: (a) was anticipated to incur a significant economic loss if the non-occupant apartment is sold at auction by means of the guarantee of the house for the non-resident; (b) was subscribed to the Korea Housing Guarantee on the ground of false tenant; (c) was in mind by dividing the rental deposit received from the Korea Housing Guarantee; and (d) around January 208, upon Nonindicted 4’s request to introduce Nonindicted 4 (name 1 omitted); (c) Nonindicted 7 was introduced from Nonindicted 4 as the representative director of the non-indicted 5; and (d) Nonindicted 4 registered Nonindicted 4 as the joint representative of the non-indicted 5 in the name of the non-indicted 5 in the name of the non-indicted 4 (name 1 omitted); (d) concluded a lease agreement with the non-indicted 2,61,00,000 won on the ground of false tenant; and (e) concluded a lease agreement with the non-indicted 2,500,000 won on the condition that the non-indicted 2 was paid to the non-indicted 5, and the non-indicted 2, 14,08.

(Entry into Guarantee)

(1) Provisions of a guarantee agreement and guarantee agreement.

According to the provisions of Article 4 of the Korean Guarantee Clause, the Korean Housing Guarantee Clause does not perform the guaranteed obligation for obligations owed by the rental business operator to persons other than the normal contractor, such as the borrowed-name contractor, the nominal lessee who does not actually reside, etc. In addition, according to the Guarantee Agreement, if a cause exists to affect the Guarantee Agreement, the rental business operator is obligated to notify this fact to the rental business operator, and if the cause for prohibition occurs or the claim of the Korean Housing Guarantee is deemed to be likely to be infringed, the Korean Housing Guarantee may exercise

(2) Subscription to guarantee (name 1 omitted) apartment.

Defendant 1 and Defendant 3, while hiding the fact of the above preparation in the house guarantee for the above "high intention", purchased a guarantee insurance for the rental deposit of 1.462 billion won for the housing units with respect to (name 1 omitted) apartment 68 households as shown in attached Form 1 at the Daejeon District of Housing Guarantee for the location of the Jung-gu Daejeon District, Daejeon District.

(Non-Indicted 1 Company's intentional default)

Defendant 1 did not honor Nonindicted Company 1 on or around March 10, 2008, but Nonindicted 4 arbitrarily appropriated KRW 1.5 billion for the remainder of the rental deposit and failed to repay Nonindicted Company 1 due to the wind to begin an investigation.

- Doz.

As a result, Defendant 1 and Defendant 3 conspired with Nonindicted Company 1 by deceiving the staff in charge of the Korea Housing Guarantee's guarantee insurance for the Korea Housing by hiding the fact of preparation for the intention of Nonindicted Company 1 and by deceiving the staff in charge of the Korea Housing Guarantee's guarantee insurance for the rental deposit for the Korea Housing Guarantee (name 1 omitted) apartment 68 households, as shown in attached Form 1, acquired the guarantee interest of KRW 1.462 million from Korea Housing Guarantee.

2) Joint-use (name 2 omitted of the building), apartment (name 3 omitted of the building), apartment (name 4 omitted of the building), and apartment (name 4 omitted of the building), Defendant 1, etc.

(Recidion of Company Property)

(1) The establishment of a bereaved company and the false transfer of real estate owned by Nonindicted Company 2

Defendant 1 established a non-indicted 9 Co., Ltd. (hereinafter “non-indicted 10 Co., Ltd.”) on February 28, 2008 in order to deduct the property owned by the non-indicted 2 from the process of preparing for the “defluence,” and changed its trade name to the non-indicted 10 Co., Ltd. (hereinafter “non-indicted 10 Co., Ltd.”) on October 20 of the same year, and changed Defendant 1’s wife to the representative director on October 20 of the same year. Defendant 1, 3, 4, and 5 established the non-indicted 6 Co., Ltd. (hereinafter “non-indicted 6 Co., Ltd.”) on May 22, 2009 (name 2 omitted) on June 24, 2009 (name 1 omitted), and transferred the non-indicted 6 Co., Ltd. 4, 209 to the non-indicted 6 Co., Ltd. (hereinafter “non-indicted 6 Co., Ltd.”).

On August 31, 2009, Defendant 1 transferred (name 3 omitted) land of Cheongju-si, the front apartment, to Nonindicted Co. 3 by falsity.

On September 14, 2009, Defendant 1 transferred the apartment commercial buildings (name 3 omitted), apartment commercial buildings (number 1, 2, 3 omitted) to Nonindicted Company 10 and concealed the property.

② Withdrawal of Nonindicted Company 2’s funds

From April 14, 2009 to September 25, 2009, Defendant 1, via Defendant 3 and 5, deposited KRW 47.7 billion in cash from the National Bank Account (Account Number 1, 2, and 3 omitted), Han Bank Account (Account Number 4 omitted), and from the New Bank Account (Account Number 5 omitted), and withdrawn KRW 4.7 billion in cash from January 14, 2009 to September 25, 2009, as shown in attached Table 1, Defendant 3, 5, and 4, and its family members, deposited KRW 1.746 billion in capital of Nonindicted Company 2, and withdrawn KRW 1.746 billion from January 24, 2009 to September 25, 2009.

[Conclusion of a false rental agreement for an undeveloped apartment]

From July 14, 2009 to September 9, 2009, Defendant 1, 3, 4, and 5 concluded a false rental agreement by pretending that (name 2 omitted), apartment (name 3 omitted), (name 3 omitted), apartment (name 4 omitted), as shown in attached Table 7, are leased to the Defendants’ relatives, relatives, etc., Non-Indicted 6, and Non-Indicted 12 Co., Ltd. (hereinafter “Non-Indicted 12”).

(Entry into Guarantee)

(1) Provisions of a guarantee agreement and guarantee agreement.

(2) Preparing and submitting false data on the actual corporate conditions for credit assessment.

Defendant 1 and 4 prepared a credit assessment statement on September 1, 2009, and submitted it to the Korea Housing Guarantee for the credit assessment of Nonindicted Company 2, and submitted it to the Korea Housing Guarantee. Defendant 1 and 4 prepared a credit assessment statement by concealing the fact that the debt amounting to KRW 1 billion is remaining due to the wind that Defendant 1 and Defendant 1 is due to the operation of Nonindicted Company 13 (hereinafter “Nonindicted Company 13”) and due to the default of payment, and submitted it to the Korea Housing Guarantee, and submitted it to obtain the CCC + rating credit assessment.

(Name 3 omitted) Subscription to an apartment guarantee.

Defendant 1, etc., concealed the fact of the above preparation in the house guarantee for the said “high intention”, and purchased a guarantee insurance policy for the rental deposit for the house of Korea with respect to (name 3 omitted) apartment 25 households as shown in attached Form 2 at the Daejeon-gu Daejeon-gu Daejeon-gu Daejeon-dong's Daejeon-dong's Daejeon-gu Daejeon-dong on September 9, 2009.

(4) Subscription to (name 2 omitted) apartment guarantee.

Defendant 1, etc. concealed the fact of the above preparation in the house guarantee for the above "high intention", and purchased a guarantee insurance policy for each house guaranteed by each of the rental deposit amounting to KRW 99.9 million for 9 households of (name 2.29 billion, as shown in the attached Form (3) on September 9, 2009, with respect to the (name 2 omitted) apartment 99 households, as shown in the attached Form (4) as to the (name 2 omitted) apartment as of September 24, 2009.

(Name 4 omitted) Subscription to an apartment guarantee.

Defendant 1, etc. concealed the fact of the above preparation in the house guarantee for the above "high intention", and subscribed to the security deposit insurance for each house guarantee for two households of (name 4.3 million won for the apartment (name 4.4 omitted), as shown in the attached Form (5) on September 9, 2009, at the Daejeon Branch of the house guarantee for the housing located in the Jung-gu Seoul Metropolitan City, Daejeon, as shown in the attached Form (5).

(Non-Indicted 2 Company's intentional default)

On October 15, 2009, Defendant 1 did not intentionally settle KRW 120 million of the promissory note issued by Nonindicted Co. 2, which was presented to Nonindicted Co. 3’s director for payment by Nonindicted Co. 14 at Lone Star branch of the Korean National Bank on October 15, 2009, resulting in Nonindicted Co. 2’s bankruptcy on October 19, 2009.

- Doz.

Accordingly, Defendant 1, etc. conspired to prepare and submit false data on the actual conditions of the company for the credit assessment of Nonindicted Co. 2, thereby hiding the fact that the person having the right to manage the company of Nonindicted Co. 2 is Defendant 1, and deceiving the staff in charge of the Korea Housing Guarantee by hiding the employees in charge of the Korea Housing Guarantee by hiding the fact of preparation for the intentional negligence against Nonindicted Co. 2, and purchasing the security deposit insurance for the Korea Housing Guarantee Co. 25 households of (name 3 omitted) apartment as shown in attached Form 2, as shown in attached Form 3, 2.95 billion won as to the (name 2 omitted), apartment 999 billion won as to the (name 2 omitted), apartment 99 million won as to the rental deposit for each of (name 4.4 billion won as stated in attached Form 499 billion won as to the (name 4.6 billion won as to the apartment house) apartment as to each of the (name 4.6 billion won as to the apartment house) households as stated in attached Form 3.

B. Summary of the facts charged regarding the acquitted portion

1) Defendant 1 and 3’s co-principal (name of building 1 omitted) apartment cases

㈎ 2008. 1. 14. 임대보증금 보증보험 가입행위

Defendant 1 and 3, as described in paragraph 2. A-1 of the same Article, conspired to have the Korea Housing Guarantee pay the rental deposit on behalf of the person in charge of the guarantee, and to acquire the pecuniary profit equivalent to the guarantee profit. On January 14, 2008, Defendant 1 and 3, by deceiving the staff in charge of the guarantee of the Korean Housing by purchasing the guarantee insurance of the rental deposit of the amount equivalent to KRW 4.593 billion for the rental deposit of (name 1 omitted) apartment rental deposit at the Daejeon-gu Daejeon District Housing Guarantee Office, Jung-gu, Daejeon Special Metropolitan City on January 14, 2008, acquired the guarantee profit equivalent to KRW 4.593 billion from the Korea Housing Guarantee.

㈏ 2008. 2. 25. 임대보증금 보증보험 가입행위

Defendant 1 and 3, as described in paragraph 2. A-1 of the same Article, conspired to have the Korea Housing Guarantee pay the rental deposit on behalf of the person in charge of the guarantee interest, and to acquire the pecuniary profit equivalent to the guarantee interest. On February 25, 2008, Defendant 1 and 3, by deceiving the employees in charge of the Korea Housing Guarantee from the Korea Housing Guarantee by purchasing the guarantee insurance of the rental deposit of the amount equivalent to KRW 2.610 million for the 90 households who have concluded a false rental contract with Nonindicted Company 5 at the Daejeon District of Housing Guarantee in Daejeon-gu, Daejeon, as shown in attached Form 8 at the Daejeon District of Housing Guarantee for the housing located in Jung-gu.

2) Joint-use (name 2 omitted), apartment (name 3 omitted), apartment (name 4 omitted), and apartment (name 4 omitted), of Defendant 1, etc.

㈎ (건물명 3 생략)아파트 보증가입

(1) Purchasing a guarantee insurance for rental deposit on October 27, 2008.

Defendant 1, etc., as described in subparagraph 2-A-2 of Article 2, conspired to have the Korea Housing Guarantee pay the rental deposit by subrogation and to acquire the pecuniary benefits equivalent to the guaranteed profit. On October 27, 2008, Defendant 1, etc. acquired the guarantee profit equivalent to KRW 3.777 billion from the Korea Housing Guarantee by deceiving the staff in charge of the Korea Housing Guarantee by purchasing the guarantee insurance for the rental deposit for the house equivalent to KRW 3.7777 billion from the Jung-gu, Daejeon Housing Guarantee at the Daejeon District of the Housing Guarantee for the House located in the Jung-gu, Daejeon District.

(2) Purchasing a guarantee insurance for rental deposit on September 9, 2009 and September 25, 2009

Defendant 1, etc., as described in subparagraph 2-A-2 of Article 2, conspired to have the Korea Housing Guarantee Co., Ltd. pay the rental deposit by subrogation and to acquire the pecuniary benefits equivalent to the guaranteed profit. On September 9, 2009 and September 25, 2009, Defendant 1, etc., by deceiving the employees in charge of the Korea Housing Guarantee Co., Ltd. of KRW 250 million by subscribing the employees in charge of the Korea Housing Guarantee Co., Ltd. of KRW 250 million by purchasing the rental deposit of Korea Housing Guarantee Co., Ltd. of KRW 250,000,000,000 from the Korea Housing Guarantee Co., Ltd.

㈏ (건물명 2 생략)아파트 보증가입

(1) Purchasing a guarantee insurance for rental deposit on October 23, 2008

Defendant 1, etc., as described in subparagraph 2-A-2 of Article 2, conspired to have the Korea Housing Guarantee pay the rental deposit by subrogation and to acquire the pecuniary profit equivalent to the guaranteed profit. On October 23, 2008, Defendant 1, etc. acquired the guarantee profit equivalent to KRW 9.6272 million from the Korea Housing Guarantee by deceiving the staff in charge of the Korea Housing Guarantee by taking out the guarantee insurance for the rental deposit for the house equivalent to KRW 9.62 billion in the amount of KRW 9.62 billion at the Daejeon-gu Daejeon District Housing Guarantee Office (Name 2 omitted) at the Daejeon-gu Daejeon District Housing Guarantee Office on October 23, 2008.

(2) Purchasing a guarantee insurance for rental deposit on September 9, 2009 and September 24, 2009;

Defendant 1, etc., as described in subparagraph 2-A-2 of Article 2, conspired to have the Korea Housing Guarantee Co., Ltd. pay the rental deposit by subrogation and to acquire the pecuniary benefits equivalent to the guaranteed profit. On September 9, 2009 and September 24, 2009, Defendant 1, etc., by deceiving the staff in charge of the Korea Housing Guarantee Co., Ltd. of KRW 648,000,000 by subscribing to the Korea Housing Guarantee Co., Ltd. of KRW 648,00,00,000 as shown in attached Form 7 at the Daejeon District of the Housing Guarantee Co., Ltd. of Daejeon, for 24 households who entered into a false rental contract, as shown in attached Form 7.

㈐ (건물명 4 생략)아파트 보증가입

Defendant 1, etc., as described in subparagraph 2-A-2 of Article 2, conspired to have the Korea Housing Guarantee pay the rental deposit by subrogation and to acquire the pecuniary benefits equivalent to the guaranteed profit. On October 27, 2008, Defendant 1, etc. acquired the guarantee profit equivalent to KRW 1.89 billion from the Korea Housing Guarantee by deceiving the staff in charge of the Korea Housing Guarantee by taking out the guarantee insurance for the rental deposit for the house equivalent to KRW 1.89 billion in the amount of KRW 1.89 billion in the amount of the rental deposit at the Daejeon-gu Daejeon Housing Guarantee Branch.

B. The judgment of the court below

1) Whether to recognize a crime

In the instant case, in full view of the objective circumstances at the time of purchasing each of the instant security deposit, Defendant 1 et al.’s act of purchasing a guarantee insurance policy of this case must be established under the premise that the operation behavior of Defendant 1 et al. for the leased apartment of this case, such as Defendant 1, etc. is distinct from normal operation behavior before taking into account the objective circumstances at the time of purchasing the guarantee insurance policy of this case, and special circumstances should be established to recognize that there was an intention to return to the instant company in the future or that at least it was predicted that the instant company would be processed in advance, and Defendant 1 et al. should be found not guilty of the above act of purchasing the guarantee insurance of this case without considering the following circumstances: (i) from February 20, 2008 when entering into a false lease contract with Nonindicted Company 4, at least for Nonindicted Company 2, at least from July 9, 2009, Defendant 1 had been aware of the intention to purchase the guaranteed insurance of this case after purchasing the guaranteed insurance policy of this case in advance.

2) Fraudulent act

The court below held that Defendant 1 et al. did not inform Defendant 1 et al. of the fact that Defendant 1 et al. proposed intentional negligence to Nonindicted Company 1 and Nonindicted Company 2 at the time of entering into a guarantee insurance contract for each of the instant lease deposit, or that if Nonindicted Company 2’s management office knew that Defendant 1 was Defendant 1, etc., he would have not concluded each of the instant lease deposit insurance contract for the instant case. Thus, Defendant 1 et al. did not inform Defendant 1 et al. of the fact that Defendant 1 et al. planned intentional negligence to the instant company as a requirement for fraud.

(iii)the calculation of the amount of profit;

The court below determined as follows: (a) in cases where a rental business operator plans to give notice of intentional negligence while deceiving the guarantee of rental deposit and purchasing the guarantee insurance for rental deposit, profit acquired by the rental business operator shall be the profit which can be used in operating his/her own business the guarantee liability equivalent to the rental deposit that the Korea Housing Guarantee bears to the lessee of the household who purchased the guarantee insurance for rental deposit; and (b) in principle, the amount shall be determined as equivalent to the maximum guarantee amount of the guarantee insurance for rental deposit; (c) in cases where each guarantee insurance contract, such as the respective guarantee insurance for rental deposit of this case, is formally an insurance contract which covers the debtor's default as an insurance accident, but actually aims at the same effect as the guarantee contract with the nature of the guarantee; (d) as such, the guarantee insurance contract assumes the legal relationship of the principal contract, and is liable for damages suffered by the insured due to the failure of the policyholder to perform his/her obligation under the main contract, unless contrary to its nature, the provisions of the Civil Act concerning the guarantee insurance contract for rental deposit of this case apply to the guarantee insurance contract.

C. Judgment of the court below

1) Facts of recognition

The following facts are acknowledged according to the evidence duly adopted and examined by the court below, including each fact-finding inquiry report and Nonindicted 15 witness’s statement on the housing guarantee adopted by the court below.

A) As to Nonindicted Co. 1

(1) Around 2002, Non-Indicted Party 1 established a total of 377 units of (name 1 omitted) apartment units on two parcels, including Chungcheongnam-nam (name 3 omitted) and operated (name 1 omitted) apartment units as a rental business operator of private-public rental housing under the Rental Housing Act, and Defendant 1 actually owned the stocks of Non-Indicted Party 1 and actually operated the above company.

As the rental environment has deteriorated due to the wind to build a dormitory at ○ University △△ Campus around the apartment (name 1 omitted), Defendant 1 attempted to sell (name 1 omitted of the building) apartment from around 2005, but he did not appear at the purchaser and did not dispose of it, which led to the revision of the Rental Housing Act on July 13, 2005 (No. 7598 (No. 14, 2005, Dec. 14, 2005). As a result, the Rental Housing Act was amended, which was anticipated to have been obligated to purchase a guarantee insurance policy for rental deposit to a rental business operator of privately constructed rental housing. Accordingly, the financial status of Nonindicted Company 1 has deteriorated.

Defendant 1 established Nonindicted Company 3 with Defendant 2 as the representative director on December 28, 2007, and transferred the commercial buildings and land owned by Nonindicted Company 1 to Nonindicted Company 3 as indicated in the summary of the facts charged on February 26, 2008.

Around February 208, Defendant 1 requested the introduction of the company that could rent more than 90 households of (name 1 omitted) apartment units 90 households, which were not leased to Nonindicted 4, who was in close friendship around February 2008, and introduced the manpower service business company to Nonindicted 5. Of February 2008, Defendant 1 had Nonindicted 4 take office as joint representative director of Nonindicted 5, who was appointed to Nonindicted 4 on February 20, 2008, and on February 20, 2008, Defendant 1 received the remainder of KRW 90,000,000 in total from Nonindicted 1 and Nonindicted 5’s name (name 1 omitted) for a period of two years from February 20, 2008 to February 20, 2008 (the remainder of Defendant 1’s imprisonment with prison labor for a period of 2.5 billion won from February 20, 2010). Moreover, Defendant 1 received the remainder of the rent from Nonindicted 4 and Nonindicted 14.5 billion.

(v) Nonindicted Co. 1 has purchased a guarantee insurance for rental deposit required by the Rental Housing Act from 2007 to Korea Housing Guarantee. With respect to the facts charged in this case, it purchased a guarantee insurance for rental deposit with the guarantee period from January 14, 2008 to January 13, 2009 for (name 1 omitted) apartment 213 households, with the guarantee period from January 14, 2008 to January 13, 2009; the guarantee insurance for rental deposit with the amount of deposit of KRW 4,593,000,000; and on February 25, 2008, with respect to the above apartment 158 households (including 90 households which concluded a false rental contract with the Nonindicted Co. 5 Company) from February 25, 2008 to January 13, 2009 to January 13, 2009.

⑹ 그 후 공소외 1 회사는 2008. 8. 19. (건물명 1 생략)아파트 202세대에 관하여 보증금액 4,218,000,000원, 보증기간 2008. 8. 19.부터 2009. 8. 18.까지로 한 임대보증금 보증보험에, 2009. 4. 28. 위 아파트 2세대에 관하여 보증금액 49,000,000원, 보증기간 2009. 4. 28.부터 2009. 8. 18.까지로 한 임대보증금 보증보험에 가입하였다.

⑺ 공소외 1 회사가 위 보증보험의 가입으로 인하여 대한주택보증에게 납부한 총 보증보험료는 합계 132,242,000원이고, 위 보증기간이 만료되어 보증계약이 해지된 이후에는 임대보증금 보증보험에 가입하지 않은 채 임대사업을 운영하여 오고 있으며, 이 사건 변론종결 당시까지도 부도나지 않은 상태이다.

B) As to Nonindicted Co. 2

(1) At around 199, Nonindicted Co. 2: (a) around 199, (b) around 199 apartment units (name 2 omitted); (c) around 2003, (d) around 49 apartment units (name 4 omitted); (d) around 2003, (e) around 204, (e) around 198 apartment units (name 3 omitted); and (e) around 2004, (e) around 198 apartment units; and (e) from around that time, (e) as a rental business operator of privately constructed public rental housing under the Rental Housing Act, (e) Defendant 1 was a person who actually owns the entire shares of Nonindicted Co. 2, and (e) was actually managing the said company.

D. In 2005, Defendant 1 established a company of Nonindicted Company 9, Nonindicted Company 6, Nonindicted Company 3, etc. as stated in the facts charged, following the revision of the Rental Housing Act, under the situation where the profitability of leasing business has deteriorated due to additional expenditure of guarantee insurance premiums, which were unexpected as a result of compelling the rental business operator of privately constructed public rental housing to subscribe to a security deposit insurance policy, Defendant 1 transferred property owned by Nonindicted Company 2 to the said company, such as commercial buildings and land.

Defendant 1 entered into a false lease agreement between July 14, 2009 to September 9, 2009 with respect to (name 3 omitted) apartment 10 households, (name 2 omitted), and (name 2 omitted) apartment 20 households, as shown in attached Form 7.

On the other hand, on September 9, 200, Defendant 1 purchased a guarantee insurance for rental deposit with the guarantee period of KRW 712,20,00 for the above apartment units from September 9, 200 to October 26, 209, the guarantee insurance for rental deposit of KRW 712,20,00 for the above apartment units from September 25, 209 to October 26, 209, the guarantee insurance for the guarantee period of KRW 75,000 for the above apartment units from September 26, 209 to October 26, 209, KRW 70,000,00 for the guarantee period of KRW 20 for the above apartment units from September 9, 209 to KRW 20 for the guarantee period of KRW 9.20,00 for the above apartment units, the guarantee insurance for the guarantee period of KRW 9.20,000 for KRW 9.29,000 for each apartment units;

(v) As Non-Party 2 made a default on October 19, 2009, the Korea Housing Guarantee pays the amount of the deposit to the household which requested the refund of the rental deposit among the households that purchased the rental deposit insurance. The amount of the deposit that the Korea Housing Guarantee paid by the Korea Housing Guarantee has reached approximately KRW 109,00 as of January 31, 201, and there is about KRW 2.5 billion among them with respect to the households that purchased the insurance after July 9, 2009.

⑹ 대한주택보증이 대위변제한 금액 중 2011. 1. 31. 현재 회수된 금액은 (건물명 2 생략)아파트에서 약 37억 원, (건물명 3 생략)아파트에서 약 22억 원, (건물명 4 생략)아파트에서 약 15억 원을 회수하였다.

C) Regarding the warranty insurance for the rental deposit for the housing guarantee

(1) According to the reasoning of the Housing Guarantee Act, one of the grounds for the prohibition of guarantee is that “the person having the right to manage a customer, etc. who fails to fully pay the principal debt or the joint and several liability incurred by the performance of the guaranteed obligation is the person having the right to manage the customer, etc.” (Article 8(1)8). Accordingly, the Housing Guarantee refers to the person who has applied for the guaranteed obligation to submit an enterprise status table as the basic data for credit assessment in advance, and there is a separate reason to require the person having the right to manage the enterprise to enter the said list. However, there is no notification or explanation of the grounds for the prohibition of guarantee under the Commercial Act, and there is no information on the insurance terms and conditions.

Luxembourg, Defendant 1, while running Nonindicted Company 13, subscribed to a loan guarantee insurance to Housing Business Mutual Aid Association, which is a telegraph of the Korea Housing Guarantee, but the said Mutual Aid Association, on behalf of the said Mutual Aid Association, failed to recover some principal and damages for delay. However, upon applying for a security deposit insurance for rental deposit prior to the Korea Housing Guarantee, Defendant 1 submitted without stating in the column of the management authority of the business status list.

The guarantee insurance for the rental deposit to be handled by the house guarantee for the third party is all and part of the guarantee, and the guarantee insurance purchased by the non-indicted 1 and the non-indicted 2 was the whole guarantee for the deposit.

According to the regulations on the guarantee of house guarantee, the guarantee insurance premium is calculated on the basis of the credit assessment result and the debt ratio. Among them, the debt ratio is calculated by dividing the sum of the rental deposit of the relevant rental house and the loan from the National Housing Fund into the price of the relevant rental house. If the debt ratio exceeds 120%, the guarantee is not granted, but even in this case, the security corresponding to the excess amount of 120% is provided. Also, even if the credit assessment is conducted without being assessed, it is only higher than the guarantee fee, and there is no impediment to the issuance of the guarantee certificate.

(v) The house guarantee for the applicant has been used in the way of securing the right to indemnity against the policyholder after the payment by subrogation, but at present, the method of receiving the right to lease transfer registration from the lessee by subrogation after the additional registration in accordance with Article 18(2) of Rental Housing Act concerning rental housing at the time of subscription for the guarantee insurance policy has been used.

2) Determination

A) Under the Rental Housing Act, as a system to protect a lessee of privately constructed public rental housing, an insurance company returns a rental deposit to a lessee on behalf of a rental business entity in a case where a rental business entity is unable to refund a rental deposit to a lessee due to default, etc.

Accordingly, if a rental business operator of rental housing fails to purchase a guarantee insurance for rental housing, the Minister of Land, Transport and Maritime Affairs may impose additional interest on a rental business operator who violates the obligation to purchase a guarantee insurance for rental housing within the limit of 1% per annum on a loan from the National Housing Fund under Article 60 of the Housing Act (Article 39), and the head of a Si/Gun/Gu may impose a penalty in an amount equivalent to 50/100 of a guarantee insurance for rental housing in violation on a rental business operator who has violated the obligation to purchase a guarantee insurance for rental housing for at least six months from the time the first additional interest is imposed, notwithstanding the imposition of additional interest (Article 42).

B) As such, a security deposit differs from a voluntary credit guarantee insurance or preferential performance guarantee insurance in that the purchase of a security deposit is enforced by an Act. Since a rental business operator requires a law to purchase a security deposit insurance for the administrative purpose of securing the performance of a security deposit refund claim held by a lessee, even if a domestic rental business operator has an intention to deliberate on unjust profits by using it, the fact of the purchase itself cannot be evaluated as an act of provisional illegality.

As in the case of this case, even if Defendant 1 et al. neglected the bankruptcy of Nonindicted Company 1 and Nonindicted Company 2 or had a plan to intentionally default the above companies, so long as the Rental Housing Act compels the rental business operator to purchase the security deposit insurance for the protection of lessee, it is reasonable to regard Defendant 1 et al. as the preliminary phase prior to the execution act rather than the execution act in the crime of violation of special law (Fraud) even though Defendant 1 et al. concealed such internal plan and purchased the security deposit insurance, it is reasonable to regard it as the preliminary phase prior to the execution act. The insurance can not be renewed every year in the nature of the security deposit insurance for rental deposit. However, if it is renewed according to this part of the facts charged, the criminal nature of the act of purchasing the security deposit insurance may vary according to the changes in internal deliberation such as the withdrawal or re-establishment

In this context, even if Defendant 1, etc. transferred the assets of Nonindicted Company 1 and Nonindicted Company 2 prior to the purchase of the instant guarantee insurance, or did not notify that he is the actual management right holder at the time of the purchase, such an act is deemed merely a preliminary act prior to the purchase of the instant guarantee insurance ( even if a supplementary rental business operator transferred assets other than a rental house to another person, the Korea Housing Guarantee is determined by calculating the debt ratio based on the source of the rental housing subject to the guarantee of the rental deposit, which is the object of the security deposit, and therefore, there is no causal relationship between Defendant 1 and Nonindicted Company 1 and the Korea Housing Guarantee Insurance, and Defendant 1 purchased the Korea Housing Guarantee Policy without disclosing that he is the actual management right holder of the Korea Housing Guarantee Insurance, but the management right holder did not pay the previous debts, and it cannot be said that Defendant 1 has a duty to notify the actual management right holder at the time of the purchase of the Korea Housing Guarantee Insurance.

However, Defendant 1, etc. concluded a false lease agreement with regard to the unused public room among the rental houses possessed by Nonindicted Company 1 and Nonindicted Company 2, and purchased the security deposit insurance therefor, and subsequently intended to obtain the amount of the security deposit by intentionally neglecting the above companies. However, this part of the facts charged is deemed as property gains and thereby constituting a violation of the Special Act (Fraud) by purchasing the instant security insurance that was the opportunity for Nonindicted Company 1 and Nonindicted Company 2 to obtain the security interest. Therefore, it is unnecessary to consider whether the above circumstances constitute a violation of the Special Act (Fraud).

C) Furthermore, there is doubt as to whether Defendant 1 acquired a guarantee benefit that can be evaluated as a property benefit due to the purchase of a security deposit insurance policy. Rather, while the benefit of a security deposit insurance or a security deposit insurance in a security deposit insurance is the benefit that an insurer can use the guaranteed debt borne by the insurer as a security for its own business, the security deposit insurance is subject to a lease contract already concluded at the time of purchase, and thus, it is not possible or easy to conclude a lease contract that can be viewed as a rental business operator’s business. However, in the event of purchase of a security deposit insurance, there is a benefit to avoid the application of additional interest on the loan from the National Housing Fund and the imposition of penalty surcharges and penalties. However, considering the guarantee insurance fee that the rental business operator bears due to the purchase of a security deposit insurance policy, it is difficult to evaluate such benefit equally with the economic benefit as seen in a credit guarantee insurance or preferential guarantee insurance. Rather, considering that Defendant 1 was excessively aggravated due to the purchase of a security deposit insurance policy in light of the fact that the status of Nonindicted Company 1 and 2 acquired the pertinent property benefit.

In particular, the crime of violation of the Special Economic Act (Fraud) is subject to aggravated punishment as a constituent element, and if it is considered to have acquired the money equivalent to the guarantee limit at the same time as the purchase of the security deposit insurance, as long as the lease business is done every year, the amount of the acquired money will increase by the number of years renewed as the nature of the security deposit insurance, and if this part of the charge is in accordance with this part of the charge, it would result in the same conclusion even if there is no actual damage to the guarantee company due to the expiration of the guarantee period without the guarantee accident. This is judged to be inconsistent with the legislative intent of the Act on the Aggravated Punishment, etc. of

Therefore, it is difficult to view that Defendant 1 et al. obtained a guarantee benefit equivalent to the rental deposit only by taking out the instant guarantee insurance.

D) Therefore, Defendant 1’s assertion on the guilty portion among the facts charged is with merit, and the prosecutor’s assertion on the acquittal portion is difficult to accept.

3. Judgment on Defendant 2

A. Summary of the facts charged

The summary of this part of the facts charged is that Defendant 2 is the representative director of Nonindicted Co. 12 and Nonindicted Co. 3, and Defendant 1, 3, 4, and 5 conspired with Defendant 1, 3, 4, and 5 to acquire the benefit of guarantee by deceiving the Korea Housing Guarantee, as stated in the summary of

B. The judgment of the court below

In light of the above facts, the lower court: (a) concluded a false lease agreement with Nonindicted Company 2 on or after the date of Nonindicted Company 207; (b) it was difficult for Nonindicted Company 2 to conclude that Defendant 1 and Nonindicted Company 2 participated in the sales of Nonindicted Company 2 on or after the date of Nonindicted Company 2’s solicitation; and (c) on or after February 26, 208, it was difficult for Nonindicted Company 2 to conclude that Defendant 1 and Nonindicted Company 2 participated in the sales of the instant house; and (d) concluded a false lease agreement with Nonindicted Company 2 in the name of Nonindicted Company 3, which was located in the name of Defendant 2, on or after the date of Nonindicted Company 2’s solicitation; (b) it was difficult for Nonindicted Company 2 to conclude that Defendant 1 and Nonindicted Company 2 participated in the sales of the instant house; and (b) it was difficult for Nonindicted Company 2 to conclude that Defendant 4 and Nonindicted Company 2 participated in the sales of the instant house on or after the date of the sale of the instant house.

C. Judgment of the court below

1) In order to establish a joint principal offender under Article 30 of the Criminal Act, it is necessary to implement a crime through functional control based on the joint doctor as a subjective element. Here, the intention of joint processing is insufficient to recognize another person’s criminal act and to allow it without restraint, and it is one of the two to commit a specific criminal act with another’s criminal intent, and it should be transferred to the execution of one’s own criminal act by using another’s criminal act (Supreme Court Decision 2002Do995 Decided June 24, 2004).

2) In light of the evidence duly adopted and examined by the court below, the non-indicted 4 did not directly call with the defendant 2 or listen to or do not have any content related thereto directly, and he became aware of the involvement of the defendant 2 only through the defendant 1. Accordingly, the statement made by the non-indicted 4 is insufficient to determine the involvement of the defendant 2, and the defendant 2 himself also knew that he attempted to transfer the property including the commercial building, etc. in preparation for the case where the company in this case did not go against the obligation of the non-indicted 2. Thus, it cannot be deemed that he directly participated in the above act of the defendant 2 as to the defendant 1's house guarantee.

3) In light of the above legal principles, even if there is no need to recognize the facts of conspiracy as direct evidence in such circumstances and co-principals, since it is about the elements of criminal facts, there is no reasonable doubt, and in light of the above legal principles, even if Defendant 2 participated in Defendant 1’s partial transfer of property and attempted to do so, it cannot be deemed that Defendant 2 committed the instant fraud in collusion with Defendant 1. Furthermore, even if Defendant 2 cannot be deemed to have committed the instant fraud, as seen earlier, Defendant 2’s part against Defendant 2 is not guilty. Thus, the Prosecutor’s assertion on this part is without merit.

4. Determination as to Defendant 6

Defendant 6 received a bribe of KRW 5 million from Defendant 1 to Defendant 1 in relation to his duties, and received KRW 15 million from Defendant 6 to Defendant 1 in relation to his duties. Defendant 6’s crime of this case was significantly damaged the general public’s confidence in the integrity and fairness of police officer’s performance of duties.

However, in light of all the circumstances such as the fact that Defendant 6 did not actively demand a bribe to Defendant 1, that there was no previous conviction until now against Defendant 6, that Defendant 6 confessions all the crimes of this case, and that Defendant 6 is considered to repent of his mistake, and that he works in a relatively sincere manner while serving as a police official for about 34 years, etc., the lower court’s punishment is too unreasonable, and the prosecutor’s allegation in this part is without merit.

5. Conclusion

A. Defendant 1

Therefore, as to the violation of the Special Economic Act (Fraud), it is difficult to find the entire charge guilty, the prosecutor's appeal on the part of Defendant 1 is with merit, and there is no reason to believe that the prosecutor's appeal on the acquittal part of the reasoning is without merit (the prosecutor's appeal on the acquittal part of Defendant 1, but the prosecutor's appeal on the acquittal part of the reasoning is not dismissed in the order as long as the part on Defendant 1 is reversed in whole, the prosecutor's appeal on the acquittal part of the judgment above is not dismissed in the above order). The decision on the grounds of unfair sentencing by the prosecutor on Defendant 1 and Defendant 1 is omitted. The remaining facts charged against Defendant 1 are concurrent crimes under the former part of Article 37 of the Criminal Act, and a single sentence shall be imposed pursuant to Article 38 of the Criminal Act. Accordingly, the part on Defendant 1 in this part is not dismissed from the whole reversal part

B. Defendant 3, 4, 5

The prosecutor appealed against the above Defendants by asserting misconception of facts or misapprehension of legal principles as to the acquittal part of the reasons for the violation of the Act on Special Economic Crimes (Fraud) and did not separately appeal against the guilty part. However, the whole crime of violation of the Act on Special Economic Crimes (Fraud) was tried by the appellate court due to the prosecutor's appeal against part of the crime of one offense, and the remaining facts charged against the above Defendants should be sentenced to one punishment pursuant to Article 38 of the Criminal Act in relation to concurrent crimes under the former part of Article 37 of the Criminal Act. Therefore, the whole facts charged against the above Defendants were transferred to the appellate court for a trial, and they were subject to a trial. Since the part of violation of the Act on Special Economic Crimes (Fraud) against the above Defendants was accepted by Defendant 1 in relation to the co-offender with Defendant 1 and sentenced not guilty of the whole crime, the judgment of the lower court should be reversed in its entirety through oral proceedings against the above Defendants pursuant to Article 364 (2) of the Criminal Procedure Act.

C. Defendant 2, 6

Since the prosecutor's appeal against the defendant 2 and 6 is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act.

Summary of Facts and evidence (defendants 1, 3, 4, 5)

The facts constituting the crime against the above Defendants and the summary of their evidence acknowledged by the court of this Court are deleted, and facts constituting the crime of the judgment below are also deleted, and paragraphs (2) through (1) and (3) are changed to 2, and the "paragraph (2)" of the judgment below is changed to 'paragraph (1), 4, (5) through 3, and (4) of the facts constituting the crime, and the summary of the evidence is the same as that of each corresponding part except for addition of "the defendant 1's statement in the trial room" to the summary of the evidence. Thus, it is cited as it is in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article applicable to criminal facts;

A. Defendant 1

(1) Paragraph (1) of this Article: Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 356 and Article 355 (1) of the Criminal Act (General Provisions) [Provided, That the maximum of statutory penalty shall be 15 years of imprisonment as prescribed by the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010) under Article 1 (1) of the Criminal Act];

Section 2-A. A. of the Decision on Do governor: Article 3(1)1 of the Act on Regulation and Punishment of Criminal Proceeds Concealment, Article 30 of the Criminal Act

Article 133(1), Article 129(1) of the Criminal Act (the point of offering of a bribe), Article 133(2) and (1), and Article 129(1)(the point of delivery of a third party acceptance) of the Criminal Act

B. Defendant 3, 4, 5

Article 3(1)1 of the Act on Regulation and Punishment of Criminal Proceeds Concealment, Article 30 of the Criminal Act

1. Commercial competition;

Defendant 1: Articles 40 and 50 of the Criminal Act (the crime of offering of a bribe under paragraph (4) at the time of sale, between the crime of offering a bribe and the crime of delivering a third party acceptance, and the punishment specified for the crime of offering a bribe heavier than the crime

1. Selection of punishment;

A. Defendant 1: Determination of imprisonment for the violation of the Act on Regulation and Punishment of Criminal Proceeds Concealment and the offering of bribe

B. Defendant 3, 4, and 5: Determination of imprisonment with prison labor for a violation of the Act on Regulation and Punishment of Criminal Proceeds Concealment

1. Aggravation of concurrent crimes;

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

1. Discretionary mitigation;

Defendant 1: Article 53 and Article 55 (1) 3 of the Criminal Act (hereinafter referred to as the reasons for sentencing)

1. Suspension of execution;

Defendant 1, 3, 4, and 5: Article 62(1) of the Criminal Act

Grounds for sentencing against Defendant 1, 3, 4, and 5

1. Defendant 1

Defendant 1’s embezzlement of this case was planned with the intention of making the company insolvent from the beginning and committed a systematic division of crime with his employees. The nature and circumstances of the crime are very good. In addition, Defendant 1’s embezzlement of this case’s embezzlement of this case’s embezzlement of this case’s embezzlement of this case’s crime of this case’s crime of embezzlement of this case’s crime of non-indicted 2’s failure to repay, and as a result, damage is extensive in that the guarantee accident occurred.

In addition, Defendant 1 already committed each of the crimes in this case even though he had been sentenced to a suspended sentence of two years for a year due to a violation of special law at a party member on January 22, 2002, even though he had been sentenced to a suspended sentence of two years.

The crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) stated in the judgment of the most severe criminal falls under the basic area of the category 3 (50 million won to 5 billion won) among the embezzlement and the crime of breach of trust in the sentencing guidelines, and the scope of the punishment of the recommendation is from 2 to 5 years, and the crime of offering of bribe and delivery to a third party in the judgment falls under the aggravated area of the category 1 (30 million won) of the offering of bribe among the crime of bribery in the judgment (affirmative), and the scope of the recommended sentence is from 6 months to 1 year and 6 months, so even if the recommendation sentence is calculated according to the sentencing guidelines, considering only the crimes to which the sentencing guidelines apply, the scope of the recommendation sentence is from 2 to 5 years.

Provided, That the sentence shall be imposed as ordered in consideration of the circumstances favorable to the defendant, such as the fact that the defendant 1 is not subject to a sentence, the fact that he is making efforts for the recovery of damage, and the circumstance that he has been detained for a considerable period of time,

2. Defendant 3, 4, and 5

The above Defendants, as employees of the company run by Defendant 1, participated in the crime of this case by Defendant 1’s instruction, and there are some circumstances to consider the circumstances. The above Defendants did not have any profit acquired from the crime of this case, and the above Defendants did not have any particular criminal record up to now, and the above Defendants have led to confession and reflect of all the crimes of this case, and the crime caused by fraud was destroyed ex officio and sentenced not guilty. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Part not guilty: Violation of special law (Fraud)

The summary of this part of the facts charged is the same as that of paragraph (1) of Article 4. This part of the facts charged constitutes a case where there is no proof of a crime, such as that of paragraph (3) of Article 4, and thus, the court acquitted Defendant 1, 3, 4, and 5 under the latter part of Article 32

[Attachment]

Judges Kim Heung-ung (Presiding Judge) Doz. (Presiding Justice)

심급 사건

-청주지방법원 2010.11.24.선고 2010고합53,2010고합61(병합)

대전고등법원 2011.5.19.선고 (청주)2010노221

원심판결

-청주지방법원 2010. 11. 24. 선고 2010고합53, 2010고합61(병합) 판결

본문참조판례

-대법원 2004. 6. 24. 선고 2002도995 판결

본문참조조문

-민법

-범죄수익은닉의 규제 및 처벌 등에 관한 법률