Defendant 1 and three others

Defendants and Prosecutor

1.5 1.2

Attorneys Park Jong-sung et al., Counsel for the defendant-appellant

The Seoul Central District Court Decision 2008 Gohap1413, 2009 Gohap87 (Joint), 304, 309 (Joint), 411 (Joint), and 2009 early 30

All convictions against the Defendants in the judgment of the court below are reversed.

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

However, from the date this judgment became final and conclusive, the execution of the above punishment shall be suspended for four years for Defendant 1, and for three years for Defendant 4.

A sentence of punishment imposed on a defendant three shall be suspended.

Of the facts charged in this case against Defendant 1, the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) concerning the acquisition of shares of Nonindicted Co. 7, the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation), the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) concerning the loan of Nonindicted Co. 13, the violation of the Act on the Aggravated Punishment, etc.

The prosecutor's appeal against the defendant 1 and 2 and the defendant 3 among the judgment below is dismissed in entirety.

1. Summary of grounds for appeal;

A. Defendant 1, 4

(1) As to Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) in relation to the high-priced acquisition of shares by Nonindicted Incorporated Company

(A) The assertion that there was no intention of breach of trust and breach of trust

At the time of acquisition of the shares of Nonindicted Co. 2 as the representative director of Nonindicted Co. 1 (the name of the company is changed as at present through ○○○○ and △△ Y) of Nonindicted Co. 1 (the name of the company is changed as at present), Nonindicted Co. 2 was to take over the shares of Nonindicted Co. 2 in the aggregate of KRW 7.5 billion per week. Nonindicted Co. 1 was cumulative to have reached approximately KRW 30 billion, and sales have a high possibility of de-listing in the future, and promoted acquisition of Nonindicted Co. 2 by requiring the introduction of new business that could create real sales and profits because of high possibility of de-listing as a partial processing sales. Nonindicted Co. 2 has achieved sales equivalent to KRW 13.2 billion in the year 205. In addition, Nonindicted Co. 2 was expected to carry out complex M business from April 2006. The Defendant requested a tax accounting corporation prior to the acquisition of the shares and decided purchase price based on the results of the evaluation, this does not constitute an act of breach of trust as well.

(B) The assertion that there is no property loss

As long as the purchase price is determined in KRW 7,50,00 per share at a discount from a remuneration point of view on the basis of the appraised value of the shares of Nonindicted Incorporated 2, which the Defendant appraised by the Sejong Accounting Corporation ( KRW 821,715 per share), the purchase price is reasonable. Therefore, it cannot be deemed that Nonindicted Incorporated 1 suffered damage to Nonindicted Incorporated 1 in accepting the shares of Nonindicted Incorporated 2.

(C) Claim as to the calculation of damages for property

Even if the above act of the defendant constitutes a breach of trust, it is wrong to view the price of KRW 75,00 per share of KRW 8,000 per share of Nonindicted Co. 2 Co., Ltd., which was delivered by the defendant under the pretext of repayment of KRW 600 million invested by the defendant in the defendant, as the reasonable price per share of Nonindicted Co. 2. The total value of KRW 10 billion in cash acquired by the shareholders of Nonindicted Co. 2 Co., Ltd. as the price for the transfer of shares and KRW 5 billion in bonds with warrants (the time of repayment and exercise after one year) does not exceed KRW 15 billion. Thus, it is unreasonable to calculate the amount of profit of shareholders and the amount of damages of Nonindicted Co. 1 Co.

(2) As to Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) with regard to loans to Nonindicted Incorporated Company 2

The defendant, as the representative director of the non-indicted 1 corporation, needs to take over the non-indicted 5 corporation to secure a stable customer database essential for the business of the non-indicted 2 corporation, which is the subsidiary, and lending KRW 3 billion to the non-indicted 2 corporation under the name of the acquisition fund, is an act according to business judgment. Since the defendant did not take profits of KRW 750 million as recognized by the court below in the process, it does not constitute an act of breach of trust and there is no intention of breach of trust.

(3) As to Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) with respect to the lending of Nonindicted 5 Stock Company

The Defendant, as the representative director of Nonindicted Co. 1, from July 14, 2006 to January 8, 2007, lent a total of KRW 1.7 billion to Nonindicted Co. 5, and received repayment of KRW 1.2 billion remaining after excluding KRW 500 million of the instant loan. Since the lending of funds is for the business of acquiring shares of Nonindicted Co. 5, a second-tier subsidiary of Nonindicted Co. 1, and it does not constitute a breach of trust as well as for the intent of breach of trust.

(4) As to Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) with an amount equivalent to KRW 958,904,816 related to the acquisition of shares by Nonindicted Incorporated Co. 7

The Defendant, at the same time as securing the stable supply place of Tapoin produced by Nonindicted Co. 1, at the time of purchasing the shares of Nonindicted Co. 7 (after the change of the name of the company to △△△△), was expected to obtain investment profits from the increase in the stock price in the future. If the stock price does not increase, the Defendant was determined to have received a management premium and transferred the shares to a third party, and accordingly, he was aware that the shares of Nonindicted Co. 7 were acquired at a reasonable price. At the time, Nonindicted Co. 8, who was the CFO of Nonindicted Co. 1, was actually a director of Nonindicted Co. 7 and participated in the joint management. However, Nonindicted Co. 9, who acquired Nonindicted Co. 1, did not cooperate with Nonindicted Co. 3 and Nonindicted Co. 10, and did not unilaterally sell the shares of Nonindicted Co. 7 within the head of the company, and thus, the Defendant’s acquisition of the shares does not constitute

(5) As to Defendant 1 and 4’s occupational breach of trust related to vehicle leasing KRW 166,653,700

At the time of leasing the instant vehicle, the Defendants entered into a contract with Nonindicted Co. 9 at the time of the lease, but only paid the down payment, but not when they completely lost their authority as the officers of Nonindicted Co. 1. Moreover, the new management of Nonindicted Co. 1 Company was anticipated to require a vehicle even after leaving Nonindicted Co. 1 Company, and the Defendants consented to the use of the said vehicle by leasing the said vehicle. As such, the Defendants did not constitute an act of breach of trust, nor did

(6) As to Defendant 1’s occupational embezzlement of amounting to KRW 49,235,751 on the part of the facilities and equipment owned by Nonindicted Incorporated Company 11

① The Defendant did not request Nonindicted 12 to sell the equipment parts owned by Nonindicted Company 11, and ② KRW 300 million received from Nonindicted 12 is limited to the funds borrowed from Nonindicted 12, not to the proceeds from the sale of the said equipment parts, and ③ himself and Nonindicted 12 knew that the said equipment parts were purchased from Nonindicted Company 11. Accordingly, the Defendant cannot be deemed to have embezzled, and there was no intent to commit embezzlement.

(7) As to Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) of Specific Economic Crimes (Embezzlement)

(A) The actual principal debtor of the loan is the defendant

When the maturity of the loans extended under the name of the defendant was due, only the name of the non-indicted 5 corporation was borrowed from the new bank and the name of the non-indicted 5 corporation was requested to be replaced with the nominal lender as a juristic person from the financial branch in South-North Korea, and this constitutes the false conspiracy mark, and the actual principal debtor as the defendant is not the ownership of the non-indicted 5 corporation, and thus, the

(B) The assertion that there is no intent to obtain unlawful acquisition

Even if not, the real estate owned by the defendant and his father was offered as a security, and since the defendant repaid interest on the loan and repaid the loan on December 21, 2007, the defendant did not have an intent to acquire unlawful profits.

(8) As to Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) in an amount equivalent to KRW 600 million with respect to the loan of Nonindicted 13

The act of lending funds to Nonindicted Co. 13 is a financing act between Nonindicted Co. 1’s subsidiaries, and it cannot be deemed that Nonindicted Co. 14, the representative director of Nonindicted Co. 13, the subsidiary, was deceiving the Defendant, who is the representative director of Nonindicted Co. 1, the parent company. At the time, the Defendant believed that Nonindicted Co. 5, the parent company, was able to repay the above loans, and there is no intention to commit fraud.

(9) As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) related to KRW 5 billion lent to Defendant 1 and 4 to Nonindicted 15

(A) The assertion that Nonindicted Co. 16 is a borrower

The lower court found the Defendant guilty of this part of the facts charged on the premise that Nonindicted Co. 16 loaned KRW 5 billion to Nonindicted Co. 15 with personal funds of the Defendants, on the ground that Nonindicted Co. 16 loaned it to Nonindicted Co. 15 through internal decision-making process, such as holding consultation with Nonindicted Co. 15, which had been practically controlling the management right of Nonindicted Co. 16 Co. 16.

(B) The assertion that there is no intent to acquire illegal property

Although the Defendants, despite having given a loan of KRW 5 billion to Nonindicted 15 as personal funds, they did not intend to acquire unlawful profits in light of the fact that the Defendants received KRW 1 million shares of Nonindicted 15 at the time of lending as security and repaid all the loans by Nonindicted 15.

(10) As to the charge of giving property in breach of trust related to KRW 5 billion loaned to Defendant 1 and 4 Nonindicted 15

The Defendants did not make an illegal solicitation to Nonindicted 15, the largest shareholder, as the representative director of the learning and the largest shareholder, to the effect that “the Defendants did not pay a separate management premium in learning and do not exercise management rights against Nonindicted 16 Stock Companies.”

(11) As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) with regard to the amount of KRW 5 billion lent to Defendant 1 and 4's aid

(A) The defendants' assertion that they did not participate in the lending

The fact that Nonindicted Company 16 lent KRW 5 billion to Dog was already a practical manager, Nonindicted 15, Nonindicted 17, and Nonindicted 17, and Nonindicted 18, before receiving the business transfer from Nonindicted Company 17 and 18, the Defendants did not participate in the resolution of the board of directors and the execution of funds.

(B) The assertion that there is no intention to commit a crime of breach of trust

Although the loan of this case had experienced temporary liquidity shortage at the time of the lease of this case, at the time of September 30, 2007, the asset amounting to 81.2 billion won in assets and the debt amounting to 44.3 billion won in net assets amounting to 36.9 billion won in assets and the ability to repay is sufficient, there is no intention to commit breach of trust against the defendants.

(12) As to Defendant 1 and 4’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) with respect to the lending of KRW 3.5 billion to Nonindicted Incorporated Company 19 billion

(A) The Defendants’ assertion that there is no intention to commit a crime of breach of trust

Nonindicted Co. 19 (after the change of the name of the company in the place of residence) is proceeding with the apartment construction project in the Southern-si area in the area of business equivalent to KRW 400 billion, and the success of the project is able to gain a considerable profit. Accordingly, Nonindicted Co. 19 believed to have the ability to fully repay the above loan. In fact, Nonindicted Co. 19 was able to obtain a loan of KRW 4 billion from Pototototoon Mutual Savings Bank in December 21, 2007 and repaid all the principal amount of KRW 3.5 billion and interest to Nonindicted Co. 16 on December 21, 2007, so there is no intention to commit a crime of breach of trust.

(B) Defendant 4’s assertion that there was no conspiracy

Defendant 4 did not constitute joint principal offenders since he did not agree with or did not have participated in the instant lending.

(13) As to Defendant 1’s preparation of private documents with respect to the fabrication of private documents and the display of such private documents

In addition, the Defendant did not instruct Nonindicted 20, etc. to prepare the meeting minutes of the board of directors, and even if he had given a domestic direction, he was comprehensively delegated from Nonindicted 17 and 18 on August 17, 2007 all rights related to all duties of directors, other than the resolution of the extraordinary general meeting of shareholders for the appointment of new directors, by the “special agreement on private investment” at the time of transfer and takeover.

(14) Unreasonable sentencing

Taking into account all the sentencing conditions against the Defendants, the sentence of each of the lower courts (Defendant 1: imprisonment of three years and six months; imprisonment of three years and three years, suspension of execution of execution of three years, community service, 160 hours) is excessively unreasonable.

B. Defendant 2 [misunderstanding of facts and misunderstanding of legal principles as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) with respect to high-priced acquisition of stocks of Nonindicted

(1) The assertion that there was no intention in breach of trust

Since the Defendant provided accounting-related data to the Sejong Accounting Corporation according to the orders of Defendant 1, the representative director, and explained them, and was unaware of the situation of Nonindicted Co. 1 due to no relation with Nonindicted Co. 1’s non-indicted Co., Ltd., the Defendant was entirely unaware of the necessity to take over Nonindicted Co. 2, and whether the acquisition price was appropriately assessed, etc., the Defendant could not be said to have known that the acquisition of stocks of Nonindicted Co. 2, which was caused damage to Nonindicted Co. 1, and thus, the Defendant did not have any intention to commit breach of trust.

(2) The assertion that the crime of breach of trust is not a co-principal or an aiding and abetting.

Even if Defendant 1’s act in domestic affairs constitutes a breach of trust against Nonindicted Co. 1, the Defendant did not have conspired with the upper Defendant 1, and Defendant 1’s order provided accounting-related materials to the Sejong Accounting Firm designated by Nonindicted Co. 2 on the side of Nonindicted Co. 1 Co. 1, and did not contribute to functional control, and there was no intent to assist in such breach of trust.

C. Defendant 3

(1) Legal principles

(A) The assertion that it does not constitute private documents

The audit protocol of this case is only an internal document prepared by a certified public accountant in charge of audit in order to assist the preparation of an audit report, and it cannot be deemed a document proving an important fact in transaction, and even in light of the purport of punishing particularly an act of altering audit protocol under the Act on External Audit of Stock Companies (hereinafter “Act”), the audit protocol of this case does not constitute the object of the crime of forging private documents and uttering.

(b) argument that any addition or modification may be made as an unbuilt document;

The instant protocol of audit can be added and modified at any time with regard to its contents, and the Defendant, as the actual originator of the audit protocol, obtained the comprehensive and implied consent of the accounting firm, who is the title holder, for the addition and modification of the audit protocol. Therefore, the crime of forging and uttering private documents is not established.

(C) The assertion that there is no purpose to exercise

Since the audit report is a document that is not for the original purpose of being submitted to the investigation agency, even if it was submitted to the investigation agency, it cannot be deemed that there was a purpose of causing the effect of the function and role of the audit report.

(D) The assertion that it does not constitute alteration

Since the contents already stated in the initial audit protocol are summarized as they are, it cannot be deemed that it harms the public credit because it does not specially write new probative value, and therefore it does not constitute a crime of altering or uttering private documents.

(2) Unreasonable sentencing

Considering all of the sentencing conditions against the defendant, the sentence of the court below (one million won of fine) is too unreasonable.

(d) A prosecutor;

(1) As to Defendant 1

(A) misunderstanding of facts (as to embezzlement of the amount equivalent to KRW 245 million with warrant owned by Nonindicted 4)

Nonindicted 4 received KRW 280 million from the Defendant on April 24, 2006 without having known that Nonindicted Co. 1 acquired 525 million won of the purchase price of Nonindicted Co. 2’s shares of Nonindicted Co. 2 with KRW 700,000,000, and received KRW 280,000 from the Defendant around April 27, 2006. From around April 27, 2006, Nonindicted Co. 4 signed the acquisition agreement formally upon the Defendant’s request on the acquisition agreement, in light of the entire purport of Nonindicted Co. 4’s statement, this part of the facts charged is found guilty.

(B) Unreasonable sentencing

Considering all of the sentencing conditions against Defendant 1, the above sentence of the court below is unreasonable.

(2) As to Defendant 2

(A) misunderstanding of legal principles (as to violation of the Act on External Audit of Stock Companies)

As in the instant case, the Defendant’s act interfering with fair external audits should be punished under the Act on External Audit of Stock Companies, as long as it conducted external audits even though it is not a company subject to essential external audits.

(B) Unreasonable sentencing

Considering all of the sentencing conditions against Defendant 2, the above sentence of the court below is unreasonable.

(3) As to Defendant 3

(A) misunderstanding of legal principles (as to violation of the Act on External Audit of Stock Companies)

As in the instant case, as long as an external audit was conducted even though the company is not an essential external auditor, the act of altering the audit protocol by the auditor shall be punished under the Act on External Audit of Stock Companies.

(B) Unreasonable sentencing

Considering all of the sentencing conditions against Defendant 3, the above sentence of the court below is unreasonable.

(4) Defendant 4

Considering all of the sentencing conditions against Defendant 4, the above sentence of the court below is unreasonable.

2. Determination

A. Judgment on the misconception of facts and misapprehension of legal principles by Defendant 1 and 4

(1) Determination as to Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) in relation to the high-priced acquisition of shares by Nonindicted Co. 2

(A) The summary of this part of the facts charged (the prosecutor added the ancillary facts charged to the same purport as the following, on the grounds that the amount of breach of trust is different on the grounds that there is a difference in the calculation of the reasonable price of the shares of Nonindicted Co. 2 in the trial of the trial, based on the difference in the calculation of the reasonable price of the shares of Nonindicted Co. 2.

Around June 8, 2004, the Defendant established a non-indicted 2 Co., Ltd. and was appointed as the representative director. Around March 7, 2006, the Defendant acquired the non-indicted 1 Co., Ltd. and was appointed as the representative director. From February 17, 2005 to February 17, 2005, the above defendant 2 worked as the managing director of the non-indicted 2 Co., Ltd., and was delegated by the Defendant and took overall charge of the

The defendant, in collusion with the defendant 2,

The Defendant was able to have Nonindicted Co. 1 take over Nonindicted Co. 2. At the time, Nonindicted Co. 1 had Nonindicted Co. 1 recorded net losses for the last six consecutive years from 2000 to 2005, and recorded the total amount of losses in excess of KRW 29.4 billion and internal possession funds that can be mobilized for acquisition of Nonindicted Co. 2 were rarely nonexistent. In such a case, in determining whether to purchase the shares of Nonindicted Co. 1 from the standpoint of Nonindicted Co. 1 Co. 1, the Defendant, who is the representative director of Nonindicted Co. 1, should closely examine the business necessity to take over the shares of the acquired company, such as financial situation at the time of the acquisition, future business prospects, business profitability, etc. of the acquired company. In particular, in order to determine a legitimate purchase price, there was an occupational duty to prevent damage to Nonindicted Co. 1 by purchasing reasonable prices through negotiations between Nonindicted Co. 2’s shareholders and substantial prices.

The Defendant, at the time of acquiring Nonindicted Co. 1 as the representative director of Nonindicted Co. 2 and the largest shareholder of Nonindicted Co. 2, who was in fact affiliated with Nonindicted Co. 2, and Nonindicted Co. 2, even if it was difficult to expect any special management effect, was requested by Nonindicted Co. 2 to assess the shares of Nonindicted Co. 3 on or around March 9, 2006, and requested Defendant 2 to provide an exaggerated business plan with Nonindicted Co. 21, who was in fact known to Nonindicted Co. 21, and was conducting an accounting audit by outside auditors, without giving due notice of other business prospects, business feasibility, etc., it is difficult for Nonindicted Co. 1 to continuously determine the acquisition price of the shares from Nonindicted Co. 21 on or around 4, 2006, the total acquisition price of the shares of Nonindicted Co. 2, which was 300,71750,715, which was 406,000,000 won per share, to the maximum extent possible.

From the date of the conclusion of the above contract to March 16, 2006, the Defendant received a total of KRW 5.15 billion in cash and KRW 6.75 billion in the bonds with warrants of Nonindicted Co. 1 and KRW 1.6 billion in total from the shareholders of Nonindicted Co. 2, including KRW 8.250,000 in the bonds with warrants of Nonindicted Co. 1, as the purchase price for 90,000 shares of Nonindicted Co. 2, which were owned by himself, from Nonindicted Co. 1, to March 16, 2006. The Defendant acquired bonds with warrants worth KRW 10 billion in cash from Nonindicted Co. 1, and KRW 5,000 in the bonds with warrants of Nonindicted Co. 2, including the Defendant and the Defendant Nonparty 2, through the said transaction.

【Calculation of Stock Price and Results of Crimes】

① The case of actual transactions with Nonindicted 3 and the appropriate amount under the Enforcement Decree of the Inheritance Tax and Gift Tax Act (hereinafter “Reward and Gift Tax Act”).

On January 11, 2006, which was two months before the date of the stock value assessment of the Sejong Accounting Corporation, the Defendant transferred 8,000 shares of Nonindicted Co. 2 to Nonindicted Co. 3 to KRW 75,000 per share in order to repay the existing debt of KRW 600 million.

When calculating the stock value of Nonindicted Co. 2 in accordance with the Enforcement Decree of the Inheritance and Gift Act, the stock value of Nonindicted Co. 2 is 49,174 won per share.

Ultimately, at the time of acquiring Nonindicted Co. 1’s stocks, the reasonable price per share of Nonindicted Co. 2’s stocks is KRW 49,174 to KRW 75,00.

Accordingly, the Defendant, in collusion with Defendant 2, had Nonindicted Co. 1 purchase 20,00 won per share of the shares issued by Nonindicted Co. 2 Co. 2, Ltd. at a reasonable price of KRW 49,174 through 75,00 per share, from the shareholders of Nonindicted Co. 2, including Defendant and Defendant 2, a maximum of KRW 6,257,434,00 won from KRW 6,500,00,000, and acquired property benefits of KRW 7,422,500,000 from KRW 7,500,00 to KRW 7,59,086,00 from KRW 13.5 billion from KRW 1416,520,00 from KRW 13.5 billion for Nonindicted Co. 1.

② The appropriate amount pursuant to the Regulations on the actual transaction cases and the issuance and public disclosure of securities with Nonindicted 4

On December 21, 2005, the Defendant borrowed KRW 250 million from Nonindicted 4 for business purposes, and on December 31, 2005, the Defendant transferred 500 shares of Nonindicted Co. 2 Co. 2 in lieu of paying the above loan amount to Nonindicted 4 on December 31, 2005 (the base date for the evaluation of the value of shares of Nonindicted Co. 2 Co. 2 performed by the Sejong Accounting Corporation), which was later than 10 days later (the base date for the evaluation of the value of shares of Nonindicted Co. 2 Co. 3), and transferred 200 shares of Nonindicted Co. 2 in lieu of paying the above loan amount at that time to Nonindicted Co. 4 on January 9, 2006. In this process, the value of shares of Nonindicted Co. 2 was calculated as KRW

In cases where Nonindicted Co. 2 calculates the value of the shares of Nonindicted Co. 2 in accordance with the “Regulations on the Issuance and Publication, etc. of Securities (Financial Supervisory Commission Notice)” in consideration of both the average industry and the characteristics of the individual company of Nonindicted Co. 2 when assessing the value of the shares of Nonindicted Co. 2’s shares in accordance with the following methods: (a) the average increase rate of the estimated turnover presented to the Sejong Accounting Corporation when assessing the value of shares; (b) the average increase rate of the estimated turnover of Nonindicted Co. 2’s shares presented to the Sejong Accounting Corporation; (c) the average turnover rate of the “insurance Agency and Brokerage Business” for the past four years (2002 to 205); (d) the average turnover rate of the “insurance Agency and Brokerage Business” for the past four years (2002 to 205) to which Nonindicted Co. 2 Company belongs; and (e) the average average turnover rate of the estimated turnover rate

Ultimately, at the time of acquiring Nonindicted Co. 1’s stocks, the reasonable price per share of Nonindicted Co. 2’s stocks is KRW 357,143 to KRW 614,928.

As a result, the Defendant violated the representative director’s business duty and let Nonindicted Co. 1 purchase all of the shares issued by Nonindicted Co. 2, 357,143 through 614,928, at a reasonable price per share, KRW 20,000 per share from the shareholders of Nonindicted Co. 2, including himself, the Defendant acquired property gains of KRW 1.25,648,00,000, at least KRW 1.45,792,00, and had the shareholders, including Nonindicted Co. 3, etc. acquire property gains of KRW 1.485,792,00,000, at least KRW 2.71,440,000 for Nonindicted Co. 1.

(B) Determination on whether the crime of occupational breach of trust is established

1) Legal principles

In the context of breach of trust, “an act in violation of one’s duty” includes any act in violation of a fiduciary relationship with the principal by failing to perform an act that is expected to be naturally required under the provisions of statutes, the content of a contract, or the good faith principle, or by performing an act that is expected not to be naturally required, in light of the content and nature of the business to be handled. Furthermore, the intent of the crime of occupational breach of trust is established after combining the perception that a person who administers another’s business would cause property damage to the principal and the intent of his/her or a third person’s pecuniary gain is in violation of his/her duty. The fact (in-depth facts, such as intention, motive, etc.) constituting a subjective element of the crime of occupational breach of trust, which is a subjective element of the crime of occupational breach of trust (in-depth fact, such as motive, etc.) with the Defendant’s act in violation of one’s own interest, is bound to prove by the method of proving indirect facts that have considerable relevance with the intent of the principal, and what constitutes indirect facts with considerable relevance or analysis.

In addition, in a case where a parent company and its subsidiary purchased unlisted stocks from a major shareholder of the parent company, the crime of occupational breach of trust is established against the major shareholder, the parent company and its executives and employees, if it is merely for the personal interest of the major shareholder who intends to sell stocks mainly beyond the permissible limit in light of the overall circumstances such as the purpose of transaction, the process and contents of the conclusion of the contract, the size of transaction price, and the financial status of the company, etc., in view of the company’s position (see Supreme Court Decision 2005Do856, April 29, 2005).

(ii) the facts of recognition

The following circumstances are acknowledged according to the evidence duly adopted and examined by the court below and the trial court.

① At the time of acquiring the shares of Nonindicted Co. 2, the Defendant purchased shares to acquire the management right of Nonindicted Co. 1, a KOSDAQ-listed corporation that is engaged in the manufacture and sale of computer hardware, software, and semiconductor production equipment, etc. between January 18, 2006 and March 7, 2006, and the Defendant requested Nonindicted Co. 3 to purchase the shares of Nonindicted Co. 1, 10,000 (3.92% of the equity ratio), which were ordinarily known to, and managed by Nonindicted Co. 3, 10, 700 (3.62% of the equity ratio), respectively, and the Defendant became the largest shareholder of Nonindicted Co. 1, and was appointed as the representative director of Nonindicted Co. 1, 206 through a temporary general meeting of shareholders around March 7, 2006.

② Around January 2006, at the time of the purchase of Nonindicted Co. 1’s shares, the Defendant already planned to acquire Nonindicted Co. 2’s shares through Nonindicted Co. 1’s major shareholder and representative director, and around March 9, 2006, after securing the management right of Nonindicted Co. 1’s shares, the Defendant requested the value assessment of the shares of Nonindicted Co. 2’s shares to Nonindicted Co. 21 for the purchase of shares of Nonindicted Co. 2.

③ On the other hand, around March 6, 2006, the Defendant had Defendant 2 request a non-indicted 2 corporation to conduct an external audit on and around March 10, 2006, and on the basis of the balance sheet, profit and loss statement, etc. of the non-indicted 2 corporation sent by the non-indicted 2 corporation on and around March 13, 2006, the Defendant completed the audit report and sent it to Defendant 2 on and around March 15 of the same year. After the external audit, the Defendant did not take measures to ensure that the stock value assessment of the non-indicted 2 corporation was conducted on the basis of the data subject to the above external audit, in which the value assessment of the shares of the non-indicted 2 corporation was deferred after the external audit, or that the non-indicted 21 was informed of the above external audit fact and in connection therewith so that the stock value assessment of the non-indicted 2 corporation was properly conducted.

In addition, the audit report date as of March 13, 2006, which was not based on the date of the audit report, and was written retroactively as of March 7, 2006 before the end of the audit and inspection before the expiration of the audit and inspection, seems to have been prepared by the above external audit report prior to the completion of the stock evaluation report by Nonindicted 21, and to have been made by the stock evaluation of Nonindicted Company 2.

④ From March 9, 2006 to December of the same month, Nonindicted Co. 21 assessed the share value of Nonindicted Co. 2 based on the above accounting data and business plan received from Defendant 2 from Defendant 2. At the time Nonindicted Co. 21 assessed the share value of Nonindicted Co. 2’s stock, Nonindicted Co. 21 did not seek opinions or have received materials from those engaged in the same kind of industry other than Nonindicted Co. 2, or those engaged in the same kind of industry. Nonindicted Co. 2 did not ask employees for specific business, financial status, business plan, etc. after visiting the scene of Nonindicted Co. 2, and there was no demand for other additional materials. Moreover, around March 12, 2006, around March 2006, Nonindicted Co. 21 had been asked by the Defendant that the share value of Nonindicted Co. 2, Ltd. was appropriate for KRW 750,000 per share after the aforementioned evaluation process.

⑤ While using the method of appraisal pursuant to the “Regulations on Issuance and Public Disclosure, etc. of Securities” (hereinafter “the method of appraisal pursuant to the securities provision”), Nonindicted Co. 21 assessed only the intrinsic value without considering the relative value. While the intrinsic value of profits is ordinarily calculated based on the accounting data of three years, Nonindicted Co. 2 calculated the estimated profits per share based only on the accounting data of 2005, since it was not an initial business operation in 2004, the estimated profits per share were calculated based solely on the accounting data of 2005. In calculating the profit value, Nonindicted Co. 2 did not consider the increase rate of sales presented by Nonindicted Co. 2’s company’s average profit and loss, and the cost increase rate of sales and the cost increase rate of sales in the same industry. Nonindicted Co. 2 did not appear to have made reasonable efforts on the basis of the business plan and its average profit and loss rate per capita 320,000 won per share, it was difficult to view that the Defendants were not in violation of the business plan and its average profit and loss rate per se per se.

④ The Defendant set the purchase price of KRW 750,00 per share, which was already determined on the basis of KRW 821,715 per share as above, which was computed by Nonindicted 21. In this process, Nonindicted Company 1 did not examine the necessity to acquire stocks of Nonindicted Company 2 or the appropriateness of the said appraised value from the standpoint of Nonindicted Company 1, and did not hold a board of directors or hold a discussion among executives.

7) In light of the fact that there is no business necessity to take over the entire shares of Nonindicted Co. 1 at the time, Nonindicted Co. 1 and Nonindicted Co. 2 did not appear to have any business necessity to incorporate Nonindicted Co. 2 into the subsidiaries of Nonindicted Co. 1 because the contents of their business, facilities, technology, etc. were completely different, and there was no business necessity to incorporate Nonindicted Co. 1 into the subsidiaries of Nonindicted Co. 2. At the time, Nonindicted Co. 1 was 4.21,511,753 won in 2006, and the cumulative loss in six consecutive years from 2000 to 2005 exceeded KRW 29.452,337,527, and there was no funds held in the company’s assets and internal possession. Accordingly, it appears that Nonindicted Co. 2’s input of a large amount of money of KRW 15 billion into the acquisition of Nonindicted Co. 2, Ltd. 15 billion into the financial situation at the time, and the total amount of the shares was disposed to be disposed to KRW 19.

④ On the contrary, the Defendant and the shareholders of Nonindicted Co. 2 acquired cash worth KRW 10 billion and KRW 5 billion per share by selling KRW 750,000 per share shares of Nonindicted Co. 2, which were held by them. Furthermore, the Defendant participated in capital increase with the right to manage the Nonindicted Co. 1’s company in cash, thereby making a substantial profit by taking advantage of the beneficiary’s redemption period of one year after the date on which the exercise of the said right to bonds with warrants was restricted.

3) Determination

In light of the above legal principles and the above circumstances, the defendant's act of having the representative director of the non-indicted 1 corporation purchase all of the shares of the non-indicted 2 corporation at KRW 7,50,000 per share of the non-indicted 1 corporation cannot be deemed as a normal act according to the management judgment, and the method of appraisal of shares was not appropriate. Thus, in violation of his duty in relation to the non-indicted 1 corporation, the defendant's act of having the non-indicted 2 corporation purchase the shares of the non-indicted 2 corporation at KRW 7,50,00 per share in excess of the appropriate value of the non-indicted 2 corporation at the time of its violation of his duty, thereby causing property damage to the non-indicted 1 corporation and obtaining the same profit from the defendant and the shareholders of the non-indicted 2 corporation.

(C) Calculation of the adequate value of the shares of Nonindicted Co. 2 and the amount of breach of trust

1) Legal principles

In the context of the crime of breach of trust, property damages refer to cases where the representative director, etc. of a company inflicts property damages on another company in violation of his/her duty, and it is reasonable to view that the amount of damages incurred by the company is equivalent to the difference between the market price and the purchase price of the stocks in question. In the case of trading unlisted stocks, where there is a normal example of trading that reflects the objective exchange value at an appropriate level, the market price should be evaluated by considering the market price. However, where there is no such case of trading, the relevant laws and regulations on the method of appraisal should be considered as a universal method of assessment (e.g., the method of evaluation under Article 54 of the Inheritance Tax and Gift Tax Act) at all times considering that different standards are applied according to their purpose of establishment. In addition, if the actual market price of unlisted stocks at the time of trading is higher than the market price and the proper market price, it can be determined reasonably by considering the overall circumstances of the relevant non-listed corporation and the transaction party’s characteristics, etc., and if there is an excessive difference between the sale price and the market price within 20.

Meanwhile, in order to recognize the crime of breach of trust, the occurrence of damages must be proved to the extent that there is no reasonable doubt. Although the existence of property damages caused by the act of breach of trust is not sufficiently proven, it is not permissible to recognize the establishment of the crime of breach of trust by recognizing that the damage was caused to the minor amount. Therefore, in a case where the appraisal of the value of stocks is required to determine the occurrence of damages caused by the act of breach of trust in connection with the transaction of stocks, even if the value of stocks is calculated in accordance with the evaluation method or standard, it is necessary to easily waive it, and to review the most reasonable evaluation method or standard and determine specifically the occurrence of damages (see Supreme Court Decision 2008Do1036, Oct. 29, 2009).

2) Determination

A) As to the calculation of the value of stocks under the Inheritance and Gift Tax Act

In accordance with Article 54 of the Enforcement Decree of the Inheritance and Gift Tax Act, the prices per share calculated by weighted average of the net value of the profits and losses and the net asset value of the non-indicted 2 corporation are 49,174, and this method is reasonable to calculate the appropriate value of the stocks of the non-indicted 2 corporation.

The method of calculating the value of stocks under the Inheritance and Gift Tax Act is not only a method used by the tax authorities from the perspective of determining the tax base, but also a method inevitably required to determine the price of the goods indicated in a single numerical value for the purpose of taxation, and it cannot be deemed that the assessed value calculated by the method is immediately the value of stocks (see Supreme Court Decision 2001Do3191, Sept. 28, 2001, etc.). In addition, in light of the fact that the insurance agents and EM of Nonindicted Co. 2, unlike the general manufacturing industry, does not require any special investment in facilities and equipment, and the intangible assets such as human facilities and other business know-how, etc., which are expected to grow to a certain degree in the future, should not be reflected in the characteristics of Nonindicted Co. 2, taking into account the fact that the sales in 205 increased, it is inappropriate to reflect the characteristics of Nonindicted Co. 2, in light of the method of calculating the net asset value and net value.

B) As to the calculation of the stock price in the real transaction case with Nonindicted 3

On January 11, 2006, which was two months before the date of the evaluation of the stock value of Sejong Accounting Corporation, the Defendant allocated 8,000 shares of Nonindicted Incorporated Co. 2 to Nonindicted Co. 3 for the repayment of the existing debt of KRW 600 million. Thus, this case’s actual transaction case with Nonindicted Co. 3 is calculated as KRW 75,00 ( KRW 60 million ¡± 8,000 per share). We examine whether the aforementioned case’s actual transaction case with Nonindicted Co. 3 properly reflects the appropriate value of the shares of Nonindicted Co. 2.

① From around 200 to 200, Nonindicted Co. 2, Nonindicted Co. 1, 200, Nonindicted Co. 3 knew of Nonindicted Co. 22, Nonindicted Co. 2, Nonindicted Co. 1, 200, Nonindicted Co. 2, Nonindicted Co. 3, 200, and Nonindicted Co. 2, Nonindicted Co. 3, 200, 60 million won, which was 60 million won of capital, were 50 million won of capital, and 60 billion won of capital, was 50,000,000 won of capital of Nonindicted Co. 1, Nonindicted Co. 2, Nonindicted Co. 3, 200, and Nonindicted Co. 1, Nonindicted Co. 3, 200, and Nonindicted Co. 400, 700,000 won of capital of Nonindicted Co. 2, Co., Ltd., Ltd., Ltd. (hereinafter “Nonindicted Co. 2, 300,000).

C) As to the calculation of the stock price in the real transaction case with Nonindicted 4

The defendant borrowed KRW 250 million from Non-Indicted 4 on December 21, 2005 for business funds, but transferred 500 shares of Non-Indicted 4 on December 31, 2005 to Non-Indicted 4 on a total of 700 shares of Non-Indicted 2 Co. 2, Jan. 9, 2006, and thus, the price per share in this transaction is KRW 357,143 ( KRW 250 million ±700 shares, and below KRW 700). The case of actual transactions with Non-Indicted 3 as above is whether the appropriate amount of shares of Non-Indicted 2, as well as the appropriate amount of shares of Non-Indicted 3.

① In light of the fact that around December 21, 2005, the Defendant came to know Nonindicted 4 through the introduction of Nonindicted 23, a high school line, and that there was a pro rata relationship with the Defendant, such as receiving funds from the Defendant’s company, etc., ② Nonindicted 4 remitted KRW 250 million to the Defendant around December 21, 2005, and Nonindicted 4, in relation to the details of remittance, stated in the court below that “it was the Defendant’s right to dispose of the funds invested in any company, whether the funds invested in the Defendant would be invested, whether the funds would be invested in bonds or stocks, and what type of investment would be invested,” and that Nonindicted 4 distributed KRW 250 million to Nonindicted 250,000,000 to the employees of Nonindicted 2, a 700,000,000 won of the shares of Nonindicted 2, a 301,000,000 won of the shares issued at the time of the sale of the shares.

D) As to the calculation of the stock price in accordance with the method of appraisal of securities

The purpose of this study is to examine the issue of whether the average sales rate of the industry for four preceding years of “insurance agency and brokerage business for industrial soldiers belonging to Nonindicted Co. 2, Ltd.,” and the price per share calculated according to the method of appraisal in accordance with the securities regulations based on the average sales rate and the average sales cost rate of the industry in accordance with the securities market (see, e.g., the investigation report on the evidence against Defendant 1 and the investigation report on the number of pages less than 5723 [1]

Article 84-7 of the former Enforcement Decree of the Securities and Exchange Act (amended by Act No. 8635 of Aug. 3, 2007), Article 36-12 of the Enforcement Rule of the same Act, and Article 82 of the Regulations on Issuance and Public Announcement of Securities and Exchange, and Article 6 of the Enforcement Rule of the same Act, are used in calculating the merged value if the companies are merged, but it is the method of evaluating the value of stocks of unlisted companies.

In accordance with Article 8 (6) of the Enforcement Rule of the Securities Regulation, the average of the net asset value and profit value calculated by adding the ratio of 1.5 to the average value of 1.5 respectively, and the equivalent value at least 30% of the average value of each similar company for two or more listed corporations which meet the most similar and specific requirements, such as the issuing company's capital, size of sales, major financial ratio, the rate of profit per share, the composition cost of products, etc., shall be calculated by averaging the equivalent value for each similar company.

While using the method of appraisal under the securities provision, Nonindicted 21 certified public accountants of Sejong Accounting Firm assessed the stock value of Nonindicted Co. 2 in this case assessed only the intrinsic value without considering the other party's relative value. While the intrinsic value of the profits is calculated based on the accounting data of the three-year business year in general, Nonindicted Co. 2 calculated the estimated profits per share based only on the accounting data of the year 2005, since it was not engaged in normal business due to the initial business operation in the year 2004, the calculation of the profits was based on 20% of the sales increase rate and 73% of the cost sales rate presented by Nonindicted Co. 2 in the calculation of the profits. In the calculation of the profits value, there was no listed company of the type of business similar to that of Nonindicted Co. 2 at the time, the relative value cannot be reflected. Even if the sales value in 204 was excluded from the profits value, the increase in sales rate and cost ratio in calculating the future profits in the calculation of the profits of the company at least to reflect the industrial trend, etc.

Therefore, since the current rate of increase in the average sales of the industry at that time is 6%, the cost rate is 82%, 20%, the cost rate of sales presented by the company is 73%, and the intrinsic value value of the non-indicted 2 corporation calculated on the basis of this numerical value is 614,928 won per week, the presumption of performance due to the complex MM is too remote, as seen above, and as seen thereafter, the allowance for retirement benefits and the depreciation costs are reduced, and the estimated sales of the year 2006 and 2007 calculated on the basis thereof are excessively appropriated, it is reasonable to deem the stock price of the non-indicted 2 corporation at that time to be below 614,928 won.

(D) Sub-determination

Therefore, the Defendant, in violation of the duties of the representative director of Nonindicted Co. 1, which caused Nonindicted Co. 1 to purchase a maximum of 614,928 shares issued by Nonindicted Co. 2, Ltd. 750,000 won per share, from the shareholders of Nonindicted Co. 2, including himself, the Defendant acquired a minimum of 1.25,648,00 won [minimum of 9,000 shares owned by the Defendant 】 (750,000 - 614,928 won]’s shares owned by the Defendant 3 and other shareholders (minimum of 1.45,792,00 won owned by the shares owned by the Defendant 11,00 shareholders x (750,000 won - 614,928 won)]. It is recognized that there is no proof of property damage exceeding the above amount of KRW 2,740,00 for Nonindicted Co. 1.

(2) Determination as to Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) with regard to the lending of KRW 3 billion to Nonindicted Co. 2 and KRW 500 million to Nonindicted Co. 5

The crime of breach of trust is established when a person who administers another's business obtains pecuniary benefits or causes a third party to obtain such benefits through an act in violation of one's duty and thereby inflict loss on the principal. In this case, the term "act in violation of one's duty" includes any act in violation of a fiduciary relationship with the principal by failing to perform an act in accordance with the provisions of law, the terms of a contract, or the good faith principle, or by performing an act expected not to perform as a matter of course, in light of specific circumstances such as the content and nature of the business, etc., and the term "when a loss is inflicted on property" includes not only cases where a loss is actually incurred but also cases where a risk of actual loss in property arises. Thus, in lending company funds to a third party, if a director, etc. knew of the fact that another person has already lost his/her ability to repay debts and lent funds to him/her without taking any reasonable measures to recover debts, such lending is an act that causes loss to another person and causes loss to the company, and a director of the company is not exempt from one's duty of breach of trust (see 20. 160.).

In light of the above legal principles, a thorough examination of the records was conducted by the court below. The defendant, as the representative director of the non-indicted 1 corporation, recognizes the situation that even if the non-indicted 2 corporation and the non-indicted 5 corporation, which is the non-indicted 1 corporation, who is the subsidiary, are the non-indicted 5 corporation due to financial difficulties at the time, they could not repay the funds to the non-indicted 1 corporation due to financial difficulties, and losses to the non-indicted 1 corporation occur, but the board of directors did not take proper and reasonable measures to preserve claims, such as the provision of sufficient collateral from these companies, and did not discuss the necessity of the loan and the collection of claims. On April 26, 2006, the court below determined that the non-indicted 2 corporation, the subsidiary of the non-indicted 5 corporation, 200 million won around November 29, 2006, around January 5, 2007, and around August 2, 2007, the court below rejected the above non-indicted 1 corporation's property profits.

(3) The judgment on Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) with an amount equivalent to KRW 958,904,816 related to the acquisition of shares by Nonindicted Incorporated Company 7

(A) Summary of the facts charged

On March 22, 2006, Nonindicted Co. 10 and its representative director, Nonindicted Co. 3 acquired management rights of Nonindicted Co. 7 by calculating the shares 755,937 shares of Nonindicted Co. 7, a KOSDAQ-listed corporation (7.47%) from Nonindicted Co. 24 Co. 11 as KRW 7,937 per share and purchasing the total amount of KRW 6,000,000 won per share. The sales price per share was the price increased by 47% compared to the base share price of KRW 5,400 by reflecting the management premium.

As above, the Defendant calculated the shares of Nonindicted Co. 7 in order to have Nonindicted Co. 10 and Nonindicted Co. 3 participate in the management of Nonindicted Co. 7 in order to purchase the shares of Nonindicted Co. 3, Nonindicted Co. 10 and Nonindicted Co. 3, as KRW 377,968 in total, KRW 7,937 in each share, which reflects the management right premium, and decided to purchase the shares of another Co. 7 in total at KRW 3 billion in total from the said partnership on the same day, and announced the “decision to acquire the shares and investment shares of another Co. 10 and announced the purpose of purchasing the shares as “acquisition shares to participate in

The defendant, as the representative director of the non-indicted 1 corporation, recorded the net losses for the six consecutive years from 2000 to 2005, recorded the accumulated amount in which the accumulated amount exceeded 29.4 billion won, and the surplus funds which can be mobilized for the purchase of stocks also fall considerably short, the defendant has a duty to carefully review the necessity of investing the funds of the non-indicted 1 corporation in order to participate in the management of the non-indicted 7 corporation, and to discuss the necessity of the operation of the non-indicted 1 corporation in a careful manner, and to make efforts to prevent the funds of the company from being used for any area other than the business purpose of the company without permission, from

In addition, in cases where Nonindicted Co. 7 decided to participate in the management of Nonindicted Co. 7, it is necessary to review the appropriateness of the management premium, and in cases where Nonindicted Co. 1 had Nonindicted Co. 1 purchase stocks on the market price plus the management premium, it is necessary to take measures to allow Nonindicted Co. 1 to participate in the management of Nonindicted Co. 7 in advance in consultation with the joint purchaser, including Nonindicted Co. 10, and if the participation in the management is not expected, it is necessary to take measures to transfer the purchased stocks at the price added by the management premium to the market price at the time of the sale and purchase so that no property damage is inflicted on Nonindicted Co. 1.

Nevertheless, the Defendant decided to input 3 billion won of the funds of Nonindicted Co. 1 to participate in the management of Nonindicted Co. 7 on 15 days after acquiring the management right of Nonindicted Co. 1, and neglected to take prior measures to ensure the participation in the management or the securing of the management right by purchasing 377,968 shares of Nonindicted Co. 7, which are 5,400 per share and the reasonable price per share in KRW 7,937 per share, and did not discuss the necessity for the participation in the management or the appropriateness of the acquisition price, etc. of Nonindicted Co. 7’s shares at a price higher than the market price in the KOSDAQ market.

As a result, the Defendant violated the duties of the representative director of Nonindicted Co. 1 and caused Nonindicted Co. 3 to do so, thereby having the said union 958,904,816 won (7,937 won-5,400 won) x 377,968 won). As such, the Defendant paid less management premium and acquired management rights for Nonindicted Co. 1, thereby obtaining pecuniary profits equivalent to the same amount, and suffered pecuniary loss equivalent to the same amount.

(B) Determination

In determining whether there was an intentional breach of trust in relation to the so-called management judgment, the same legal doctrine as the method of proving an intentional breach of trust shall apply to the general crime of occupational breach of trust. However, in light of the inherent nature in the management of a company, the strict interpretation criteria for recognizing an intentional breach of trust shall be maintained only in a case where it is recognized that the act is an intentional act by itself or a third party, in light of all the circumstances, such as the developments and motive leading up to the management judgment in question, the contents of the business subject to determination, the economic situation of the company, the possibility of incurring losses and the possibility of acquiring profits, etc., and the awareness that he/she or the third party would incur losses to the principal (including dolusent perception). On the basis of the absence of such awareness, the mere fact that there was a loss to the principal cannot be held liable on the ground that he/she was negligent or neglected to perform the duty of care (see, e.g., Supreme Court Decision 200

According to the records, the following circumstances are recognized:

① In order to jointly take over the management rights of Nonindicted Co. 10, its representative director, Nonindicted Co. 3, Nonindicted Co. 1, and their representative director, and the Defendant jointly purchased shares 1,259,895 (12.5%) from Nonindicted Co. 24 Co. 11 to KRW 7,937 and KRW 1 billion per share. Nonindicted Co. 100, KRW 4.5 billion, KRW 3 billion, KRW 1.5 billion, KRW 3 billion, and KRW 1 billion, and KRW 1 billion was invested by the Defendant (Evidence Co. 100, KRW 101, KRW 5.5 billion, KRW 5 billion, KRW 1.5 billion, KRW 3 billion, and KRW 1 billion, KRW 5.262 of capital acquisition agreement, public trial record). The Defendant’s personal capital was invested, and thus, would have made profits and losses identical to the investment of Nonindicted Co. 1.

② At the time of the acquisition of the above shares, Slim Accounting Corporation’s stock assessment was conducted on the adequacy of the stock acquisition price at the time of the acquisition of the shares. At the time, Slim Accounting Corporation calculated the stock value per share of Nonindicted Co. 7 by the method of future cash flow (DCF) to the extent of 3,338 through 7,306 won per the household at the growth rate, and calculated the appropriate sales price per share by the method of adding the management premium to the reference share price (see the case of acquisition of shares accompanied by the management right premium) based on similar cases (see the case of acquisition of shares accompanied by the management right premium), and calculated the adequate sales price as 11,403 won per share (6,157 won per share, average trading volume per month of Nonindicted Co. 7 at the time, 6,157 won per share, average trading volume per week average trading volume per share is considered to be 5,097 won per share (5,090 won per share price per stock) and 797 billion won per share, including Defendant 26111 p.

③ At the time of the purchase of Nonindicted Co. 7’s shares, Nonindicted Co. 7 announced that the shares were invested in a few hundred billion won abroad, and reversed this within a short period, and thus, the share price fell from KRW 12,000 to KRW 5,000, so there is a possibility of short-term reflection, etc., so the Defendant may sell the shares within a certain range and obtain profits from the market price by selling them. Even if not, if the shares, including the management premium, are sold with the joint purchaser, there is no loss as Nonindicted Co. 1.

④ Only one director of Nonindicted Co. 1’s CFO 8 was elected on the Egym (4) photograph of Nonindicted Co. 7. This is limited to 2/3 of the share ratio between Nonindicted Co. 1 and the Defendant at the time of joint purchase. The above gap is deemed to have been further punished by additionally gathering Nonindicted Co. 10’s shares of Nonindicted Co. 7 within the head of the office, due to the management dispute with Nonindicted Co. 25, which was the existing management of Nonindicted Co. 7, around May 2006.

⑤ On April 21, 2006, Nonindicted Co. 7 acquired convertible bonds in an amount equivalent to 2 billion won issued by Nonindicted Co. 1 Company (Evidence No. 84, a report on the holding of stocks, etc., a report on holding of stocks, etc., and a trial record No. 2353), and such decision-making of Nonindicted Co. 7 cannot be achieved without the Defendant’s influence. Therefore, even if it is not a joint management, Nonindicted Co. 3 appears to have respected the Defendant’s intent in the management of Nonindicted Co. 7.

④ Although the Defendant did not make a written agreement with Nonindicted 3 regarding the method of securing the management rights corresponding to the management rights premium or the method of collecting funds when exercising the management rights, if either of the joint purchasing parties fails to enter into a joint agreement, both parties would lose the management rights premium, and it is difficult to deem that documentization of the above agreement was necessarily necessary.

② After the Defendant transferred Nonindicted Co. 1 to Nonindicted Co. 9 on March 19, 2007, Nonindicted Co. 9 did not take into account the fact that Nonindicted Co. 1 did not endeavor to secure management rights in the management dispute that occurred after the joint purchase, Nonindicted Co. 9 demanded legal interest at KRW 3 billion of the purchase price and sold the purchase price to Nonindicted Co. 10 without any further negotiation and the loss was realized.

In light of the above circumstances in light of the legal principles as seen earlier, even if the defendant had the intention of supporting the acquisition of the non-indicted 7 corporation by the non-indicted 3 in return for supporting the defendant's acquisition of the non-indicted 1 corporation, if the non-indicted 3 purchased the shares of the non-indicted 7 corporation at an appropriate price including the management right premium, and thereafter there are circumstances to deem that the non-indicted 7 corporation participated in the management as seen above, and if the losses of the non-indicted 1 corporation were realized due to the sale of shares of the non-indicted 9 corporation, even if the defendant did not make the agreement in writing as mentioned above, it is difficult to deem that the defendant had the intention to commit the crime of breach of trust. Thus, this part of the facts charged constitute a case where there is no proof, and the court below erred in the misapprehension of facts that found otherwise guilty, which affected the conclusion of the judgment, and the defendant

(4) Determination as to Defendant 1 and 4’s occupational breach of trust related to vehicle leasing KRW 166,653,700

(A) Summary of the facts charged

Defendant 1, from March 7, 2006 to the representative director of Nonindicted Co. 1; Defendant 4, from July 11, 2006 to the directors of Nonindicted Co. 1 and the vice president of Nonindicted Co. 1, from July 1, 2006 to the vice president, entered into a contract that sells 2,526,667 shares owned by Nonindicted Co. 9 to KRW 5,533,334,000 and transfers the right of management to the Nonindicted Co. 9; and thereafter, he resigned from the representative director on June 22 of the same year after transferring the right of management on or around the same month.

The Defendants are registered as the representative director on the corporate register as of March 20, 2007, but they concluded a contract to transfer all the shares and management rights as above. As such, the Defendants, who were in the position of the representative director, were in formality, shall manage the funds of Nonindicted Incorporated Company 1 with caution so as not to go against the interests of the Nonindicted Incorporated Company 1, and have duties to not use the funds of the Company for the purpose of personal convenience of the Defendants, who are expected to be retired.

Nevertheless, around March 20, 2007, the Defendants conspired and leased 2 Benz S 550 V car under the name of Nonindicted Co. 1 Co. 42 for a three-year contract period, and paid 16,653,700 won, including KRW 11,853,700 as security deposit, and KRW 64,80,00 as security deposit advance payment.

Accordingly, Defendant 1 violated his duties as the representative director of Nonindicted Co. 1, thereby acquiring the pecuniary benefits equivalent to KRW 82,69,700, and Defendant 4 acquired the pecuniary benefits equivalent to KRW 83,984,000, respectively, and Defendant 1 suffered the pecuniary damages equivalent to KRW 166,653,700.

(B) Determination

기록에 의하여 인정되는 다음 사정들 즉, ① 공소외 1 주식회사의 임원인 피고인들은 2007. 3. 19.경 공소외 9 주식회사에 대하여 공소외 1 주식회사의 주식 및 경영권을 양도하기로 계약한 다음 계약금 30억 원을 지급받았는데, 이때 차량리스를 승낙하였는지에 관하여 공소외 9 주식회사 대표이사 공소외 26은 검찰에서는 ‘통상적으로 기존의 대표이사가 경영권을 양도하면서 예우차원에서 기존에 사용하던 차량과 기사, 급여를 대표이사로 사임할 때까지의 기간 동안만 제공한다는 것이지, 새로이 차량을 리스하여 사용하여도 된다는 의미는 아니다’라고 진술하고( 피고인 1에 대한 증거기록 13권 6651면), 원심 법정에서는 ‘당시 계약금 30억 원만 지급한 상태이므로 제가 의사결정할 수 있는 권한도 없고, 당시 대표이사는 피고인 1이기 때문에 피고인들에게 공소외 1 주식회사 자금으로 신차를 리스해서 타고 다녀라는 말을 할 입장이 아니고, 그렇게 말한 적도 없다’고 진술하고(공판기록 5권 2234, 2251, 2253면) 있으나, 2007. 5.경부터 공소외 1 주식회사의 상무이사로 근무한 공소외 27은 검찰에서 ‘2007. 5. 1. 입사해서 리스차량 현황을 보니, 경영권이 양도된 이후에 피고인들이 차량을 리스하여 운행하고 있기에 공소외 26 사장에게 보고하였더니, 공소외 26 사장은 2007. 6. 초순경 대표이사 선임 주주총회 전까지는 피고인들이 계속해서 운행하도록 하였다고 하였고, 2007. 6. 말경 리스차량을 회수하여야 되겠다고 생각하여 공소외 26 사장에게 보고하니 그대로 추진하라고 하여 전보혜 등 실무자에게 리스차량 승계업무를 처리하도록 지시하였다’고 진술하고( 피고인 1에 대한 증거기록 13권 6540면), 원심 법정에서 ‘동의까지는 몰라도 제가 알기로 6-7월까지인가 계속 그 차량 사용에 대하여 협의가 있었던 것으로 기억한다’고 진술하는 점(공판기록 5권 2294면), 피고인들의 리스차량 이용 당시 공소외 9 주식회사 측에서 아무런 이의를 제기하지 않은 점, 공소외 26은 피고인들과 사이에 공소외 1 주식회사 양수도와 관련된 옵션계약 해제로 인한 손해배상 등으로 민사소송의 반대 당사자로서 서로 치열하게 다투고 있었던 점 등을 고려하면 당시 공소외 26은 피고인들에게 차량리스를 허용하였고 2007. 6.경의 대표이사 선임 주주총회 전까지는 이를 사용하도록 승낙한 것으로 봄이 상당한 점, ② 2007. 6.경 주주총회로 새로운 경영진이 선임되기 전까지는 형식적으로 피고인들이 임원이기는 하나, 이미 경영권이 양도된 상태에서는 공소외 1 주식회사의 양수인인 공소외 9 주식회사가 공소외 1 주식회사에 대하여 실질적인 경영권을 행사한다고 봄이 상당하므로, 피고인들이 공소외 9 주식회사의 대표이사 공소외 26의 승낙을 받고 공소외 1 주식회사 명의로 차량을 리스하였다면 업무상임무에 위배하였다는 인식을 하기는 어려운 점, ③ 피고인들은 공소외 1 주식회사 명의로 차량을 리스하였으므로 피고인들이 공소외 7 주식회사를 떠나더라도 위 리스차량의 이용자의 지위는 여전히 공소외 1 주식회사에 있다 할 것이므로 리스계약 당시 지급한 보증금 및 선급리스료 상당의 재산상이익을 피고인들이 취득하였다고 보기는 어려운 점, ④ 새로운 경영진이 주주총회에서 선임된 후 이 사건 리스차량을 공소외 1 주식회사에서 그대로 사용하면 차량리스 승계의 문제가 발생하지는 않지만, 공소외 26은 위 차량들이 필요 없게 되자 위와 같이 리스차량 승계를 지시하였는데, 차량리스의 경우 리스계약을 중도해지하면 리스회사에 이에 따른 손해배상을 하여야 하므로 이보다는 리스차량 이용자의 지위를 양도하는 것이 유리하다는 판단하에 공소외 27은 피고인들에게 차량리스 승계를 요청하였고, 이에 피고인들은 위 요청을 받아들여 피고인 1은 2007. 7. 11.경 공소외 28에게 위 리스차량 이용자의 지위를 양도하게 한 후 선급리스료 반환금 명목으로 27,467,220원을 반환하였고, 피고인 4도 그가 대표이사로 있던 공소외 29 주식회사에 리스차량을 승계시킨 다음 2007. 9. 12.경 위약금 보전 명목으로 청주지방법원에 33,484,400원을 공탁하여 이 사건 차량리스로 발생할 수 있는 공소외 1 주식회사의 손해를 보전하기 위하여 노력한 점 등을 종합하여 보면, 비록 피고인들이 위 리스차량을 일부 개인적인 용도에 사용하였다 하더라도, 이것만 가지고는 피고인들에게 배임의 고의가 있다고 보기는 어렵다 할 것이어서, 이 부분 공소사실은 그 증명이 없는 경우에 해당하다고 할 것임에도, 원심이 이와 달리 이를 유죄로 인정한 것은 사실을 오인하여 판결에 영향을 미친 위법을 저지른 것이므로, 이 점을 지적하는 피고인들의 위 주장은 이유 있다.

(5) Determination as to Defendant 1’s occupational embezzlement of amounting to KRW 49,235,751 of the facility parts owned by Nonindicted Incorporated Company 11

According to the reasons properly explained by the court below, it is sufficiently recognized that the defendant embezzled the above California from October 2006 to February 25, 2007 by requesting the sale of the above California to the representative director of the non-indicted 30 corporation to the non-indicted 12, even though he knew that he did not purchase the Californian owned by the non-indicted 11 corporation, but rent it. Thus, the fact-finding and decision of the court below on this point are justified, and there is no error of law that affected the conclusion of the judgment by misconception of the facts, which affected the conclusion of the judgment.

(6) The judgment on Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) of Specific Economic Crimes (Embezzlement) in relation to Defendant 1’s loan of Nonindicted Co. 5

(A) As to the assertion that the actual principal debtor of the loan is the defendant

In order to avoid the application of Acts and subordinate statutes restricting the limit of loans to the same person or the internal regulations of financial institutions, where a third party is paid to the debt amount the actual principal debtor intends to obtain a loan to the same person as the principal debtor in the form of a third party, and a financial institution is also aware that a third party is not liable as a debtor with respect to a third party, a third party is merely a person who lends only the form of a third party and the actual party to the loan contract is a financial institution and the actual party to the loan contract is a financial institution. Thus, a loan agreement entered into in the name of a third party is merely a juristic act that constitutes a false declaration of conspiracy because it is merely a formal act without the intent to bear the debt, under the understanding of the financial institution (see Supreme Court Decision 2007Da53013, Nov. 29, 2007).

On January 2006, the Defendant received a loan of KRW 3.3 billion in the name of an individual from the new branch of the new bank at the time of maturity on or around January 2007, the Defendant received a loan of KRW 3.5 billion in the name of the above company upon receiving a request to the effect that the loan would bring about the performance from the new branch of the bank at the transaction of the non-indicted 1 corporation in the name of the non-indicted 5 corporation. At the time of the loan of this case, the Defendant received a loan of KRW 3.5 billion in the name of the above company. At the time of the loan of this case, the Defendant merely received the loan under the name of the non-indicted 5 corporation as the representative director of the non-indicted 5 corporation, and the non-indicted 5 corporation was the actual debtor and the person in charge of the loan branch of the new both banks and the new branch of the second bank to non-indicted 5 was not liable as the debtor for the non-indicted 5 corporation, and there is no evidence to deem that the loan relationship was prepared under the above company name.

(B) The assertion that there is no intent to obtain unlawful acquisition

The intention of illegal acquisition in embezzlement refers to an intention to dispose of another person's property in violation of his/her duty for the purpose of pursuing his/her own interest or a third party as his/her own property, and even if there is an intention to return, compensate, or preserve it later, it does not interfere with recognizing the intention of illegal acquisition (see Supreme Court Decision 2004Do5167, Nov. 10, 2006, etc.).

According to the reasons properly explained by the court below, after receiving a loan of KRW 3.5 billion in the name of the non-indicted 5 corporation on January 19, 2007 and remitting KRW 3.475,288,90,00 except for fees, etc., the defendant can sufficiently be recognized that he paid the loan of KRW 3.3 billion in his personal name, and the remainder was embezzled by using his personal debt, investment, etc., and although the defendant provided real estate owned by his father as security and paid interest to the defendant's personal money, it does not affect the establishment of the crime of embezzlement. Thus, the fact-finding and judgment of the court below on this point are justified, and there is no error of law that affected the conclusion of the judgment by misconception of facts.

(7) Determination on Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) in an amount equivalent to KRW 600 million with respect to the loan of Nonindicted Incorporated Company 13

(A) Summary of the facts charged

On September 20, 2006, Nonindicted Co. 1 purchased 76.19% of the issued shares of Nonindicted Co. 13 (the trade name at the time was “the time”; hereinafter “Nonindicted Co. 13”) located in Chang-gu, Chang-gu, Seoul Special Metropolitan City from Nonindicted Co. 31, etc. (hereinafter “Nonindicted Co. 13”) in KRW 80 million and transferred Nonindicted Co. 13 to the subsidiaries of Nonindicted Co. 1.

On October 18, 2006, the representative director of Nonindicted Co. 1 and the representative director of Nonindicted Co. 5, the Defendant, who was the representative director of Nonindicted Co. 1 and the representative director of Nonindicted Co. 13, considered a new loan of KRW 1 billion in order to repay the existing bank loans and invest in facilities to produce new products of Nonindicted Co. 13, 14, knowing that Nonindicted Co. 14 took account of the new loan of KRW 1 billion in order to the former bank loans of Nonindicted Co. 13, the Defendant borrowed to Nonindicted Co. 13, as his credit rating is low, a large amount of funds from Nonindicted Co. 13, and borrowed KRW 600 million to Nonindicted Co. 5, 500. Even before the maturity, Nonindicted Co. 13, the Defendant, the largest shareholder of Nonindicted Co. 13, the largest shareholder of Nonindicted Co. 14, had Nonindicted Co. 14, trusting the Defendant’s promise to repay at the annual interest rate of KRW 13,500 million in its joint guarantee.

However, the facts are as follows: (a) due to the business depression as described in paragraph (3), Nonindicted Co. 5 suffered from the enemy from June 2006 to the end of the year 2006; (b) net loss in the year 2006 exceeded KRW 1.277 million; and (c) on December 31, 2006, as of December 31, 2006, the current current liabilities (3.268 million) exceeded the current assets (2.056 million) and the current assets (2.06 million) went into operation solely depending on the loan, and even if the funds were used from Nonindicted Co. 13, it did not have the ability to pay the principal and interest properly; and (d) even if the Defendant borrowed 60 million won in the name of Nonindicted Co. 5 with the knowledge of the above circumstances, even if he was requested to repay the loan from Nonindicted Co. 5, 2006, he did not intend to repay the loan on behalf of Nonindicted Co. 14.

Accordingly, the Defendant, by deceiving Nonindicted Co. 14, had Nonindicted Co. 5 acquire pecuniary benefits equivalent to KRW 600 million.

(B) Determination

The following circumstances acknowledged by the records of this case: ① Nonindicted 14 decided to jointly accept Nonindicted 13 corporation; ② Nonindicted 14 purchased 240 million won of shares issued by Nonindicted 13 corporation; Nonindicted 1 corporation purchased 76% of shares issued by Nonindicted 13 corporation and transferred Nonindicted 13 corporation to Nonindicted 13 corporation as its subsidiaries on September 206; ② Nonindicted 14 was assigned to Nonindicted 6 corporation’s representative director on the ground that it was difficult for the Defendant to know that Nonindicted 1 was the Defendant to use the Defendant’s right to authorize the Defendant to lend money to Nonindicted 4; ② Nonindicted 14 was called “the president of Nonindicted 13 corporation,” and Nonindicted 14 appears to have been aware that it was difficult for the Defendant to use the Defendant’s right to authorize the Defendant to lend money to Nonindicted 5 corporation at any time, and ③ Nonindicted 14 appears to have been aware of the fact that it was difficult for the Defendant to use the Defendant’s right to authorize the Defendant to lend money to Nonindicted 1 corporation at any time.

(8) The judgment on the charge of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and the giving of property in breach of trust related to KRW 5 billion lent to Defendant 1 and 4 to Nonindicted 15

The custody of property in embezzlement means the state of actual or legal control over the property and the custody thereof must be based on the consignment relationship. However, it does not necessarily require that it is set up by a contract such as loan of use, lease, delegation, etc., and may also be established by administrative management, custom, cooking, and trust rules (see Supreme Court Decision 2005Do7610, Jan. 12, 2006, etc.).

In addition, in the crime of giving rise to breach of trust under Article 357 of the Criminal Code, an illegal solicitation refers to a solicitation against social norms and the principle of trust and good faith, and in determining this, a comprehensive consideration of the contents and form of the solicitation and the amount and integrity of transactions, which are protected by the law, should be comprehensively considered. The solicitation is not necessarily to be explicitly made and implicitly made (see Supreme Court Decision 2003Do4320, May 11, 2006, etc.).

According to the above legal principles and the reasoning of the court below, when the defendants conspired to acquire the right of management by participating in the allocation of shares to a third party to the non-indicted 16 corporation, the defendants' personal funds and embezzled 5 billion won out of the funds for the offering of shares held by the non-indicted 16 corporation to the non-indicted 15 in lieu of compensation for the acquisition of the right of management with the largest shareholder's personal funds, and did not pay a separate fund for the right of management, while the representative director and the majority shareholder did not exercise the right of management to the non-indicted 16 corporation, it can be sufficiently recognized that the non-indicted 15 provided the economic benefits by lending 5 billion won to the non-indicted 15 in return for the illegal solicitation that the non-indicted 15 did not exercise the right of management to the non-indicted 16 corporation. Thus, the court below's findings of fact and judgment on

(9) Judgment on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) with regard to the amount of KRW 5 billion lent to Defendant 1 and 4's intent

According to the reasoning of the court below, around August 10, 2007, the defendants participated in the capital increase with the capital increase of non-indicted 16 corporation and become the major shareholders of non-indicted 16 corporation. From that time, defendant 1 participated in the overall business of the non-indicted 16 corporation with the general CEO and the defendant 4 with the CEO for the new financial business. At the time of the loan of KRW 5 billion, the 5 billion capital was in short of the ability to repay due to the possibility of continuous decrease in sales due to the work of pantech, which is the main selling place. However, the defendants did not act for recovery of claims such as the provision of adequate security from the learning, and did not take measures for recovery of claims such as lending of KRW 5 billion out of the capital increase with the capital increase of non-indicted 16 corporation to acquire the right of management of the non-indicted 16 corporation, and did not err in the judgment below's finding of facts and finding of property damage equivalent to the above amount of the non-indicted 16 corporation.5 billion won.

(10) The judgment on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) with regard to the lending of KRW 3.5 billion to Nonindicted Incorporated Company 19 billion by Defendant 1 and 4

In lending corporate funds to another person, if a director, etc. of a company had already known that it would cause damage to the company if the other person had already lost his ability to repay debts and lent funds to him, or has lent funds to the company only without taking reasonable measures to recover debts such as receiving sufficient collateral and taking reasonable measures to recover debts, such lending is an act of allowing another person to gain profits and causing damage to the company (see, e.g., Supreme Court Decision 2004Do7027, Nov. 9, 2006).

Examining the reasoning of the court below in light of the above legal principles and records, the defendants conspired with the company that runs the apartment construction business at the time, and the non-indicted 19 corporation did not take any measures such as providing security and collecting claims even though it was doubtful that the company's ability to repay borrowed money was difficult to operate and conduct its business due to the lack of any particular property, and without the resolution of the board of directors, and it can be sufficiently recognized that the above company borrowed 3.5 billion won to the non-indicted 19 corporation to obtain property benefits equivalent to the same amount and suffered property damage to the non-indicted 16 corporation. Thus, the fact-finding and decision of the court below on this point are justified, and there is no error of law that affected the conclusion of the judgment by misunderstanding the facts.

(11) Determination as to Defendant 1’s preparing and holding private documents by forging private documents, and by copying qualification

Even if a legitimate representative director is a corporation, he/she is not allowed to comprehensively delegate his/her authority to allow another person to perform the business of the representative director. Therefore, an act of preparing documents in the name of a corporation with no authority, in principle, by a person who is delegated by the representative director to comprehensively exercise his/her authority, constitutes an act of preparing documents in the name of a corporation without authority, and constitutes an act of preparing qualification documents or an act of preparing documents in the name of a corporation, and exceptionally, only when he/she has been delegated or consented to the preparation of documents in the name of a corporation individually and specifically (see Supreme Court Decision 2006Do20

According to the reasoning of the court below, even if the defendant and the defendant 4 did not have the right to prepare the meeting minutes of the board of directors until October 2, 2007, which is the date of the general meeting of shareholders of the non-indicted 16 corporation and the non-indicted 16 corporation to be appointed respectively, until October 2, 2007, the date of the general meeting of shareholders, which is the date of the non-indicted 16 corporation's representative director and the non-indicted 18's representative director, and there was no specific consent on the preparation of the meeting minutes of the board of directors except for the board of directors for convening a temporary general meeting of shareholders for the appointment of new directors from them, the defendant and the non-indicted 4 did not obtain any consent on the preparation of the meeting minutes of the board of directors' meeting minutes of August 17, 2007, the meeting minutes of the non-indicted 16 corporation's name and the non-indicted 17 corporation's right and duty or the non-indicted 17 corporation's representative director's name.

B. Judgment on the mistake of facts and misapprehension of legal principles on Defendant 2's assertion [as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) in relation to the high-priced acquisition of shares

(1) Summary of this part of the facts charged

The summary of this part of the facts charged against the defendant is as shown in Paragraph (1) (A) of the above A (Provided, That the "defendant" is "Defendant 1," and the "Defendant 2" is changed to "Defendant 1," and the prosecutor prosecutes the defendant again by aiding and abetting the defendant 1's above act of breach of trust.

(2) Determination

The co-principal under Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements such as the implementation of a crime through functional control based on the intent of co-processing and the intent of co-processing. Although even if a person does not directly share and implement part of the elements of a crime among the conspiracys, he/she may be held liable for the crime as a co-principal depending on the case. However, when comprehensively considering the status, role, control or power over the progress of the crime in the whole crime, it should not be deemed that there is a functional control over the crime rather than a simple conspiracy, but rather a functional control over the crime through an essential contribution (see Supreme Court Decision 2009Do2994, Jun. 23, 2009, etc.).

In addition, an act of aiding and abetting under the Criminal Act refers to any direct or indirect act that facilitates the commission of a principal offender with the knowledge of the fact that the principal offender is committing a crime. Aid and abetting is established not only in a case where the principal offender helps him to commit a crime but also in a case where the principal offender anticipated and facilitates the commission of a crime in the future prior to the commencement of the commission. Aid and abetting must have the principal offender’s intent to assist and abetting the commission of the principal offender and that the principal offender’s act constitutes an act that constitutes the elements of a crime. However, if the principal offender denies it, it should be proven by the method of proving indirect facts that are highly related to the principal offender in light of the nature of the object, and in this case, there is no other way other than reasonably determining the connection status of the fact by using the close observation or analysis power based on the normal empirical rule. Moreover, the principal offender’s intent in an aiding and abetting crime does not require recognition of the detailed contents of the crime realized by the principal offender, but it is sufficient to recognize or expect it (see, e.g., Supreme Court Decision 2007Do276.

According to the records of this case, the following circumstances are recognized.

(A) At the request of the ordinary defendant 1, the defendant served as executive director of the non-indicted 2 corporation from February 17, 2005 to take charge of the organization management, business operation, etc. of the company, but he was in charge of major business management, such as the fund raising of the company. The defendant did not participate in this.

(B) The Defendant did not have any relation with Nonindicted Co. 1, and did not have any position to know the necessity and the procedure for acquiring the shares of Nonindicted Co. 2, 1, the propriety of the acquisition price, the financial situation of Nonindicted Co. 1, and so on, nor could he exercise any influence on the decision making thereof.

(C) Defendant 1, on its own initiative, decided on the important decision regarding the operation of Nonindicted Co. 2 Co., Ltd., and did not know or notify in advance with the Defendant. In relation to the sale of the shares of Nonindicted Co. 2, it does not appear that Defendant 1 was either on the part of the Defendant or on the part of the Defendant.

(D) The Defendant received, with respect to the shares of Nonindicted Co. 2, 500, an amount equivalent to KRW 375 million in bonds with warrants, Nonindicted Co. 1, 375,000,000, and received the same amount of money in redemption, but the above profits were the Defendant’s purchase of the entire shares of Nonindicted Co. 2 as the representative director of Nonindicted Co. 1, and it does not appear that the Defendant intended to act and intended to act.

(E) Around March 6, 2006, the Defendant requested an external audit to the Dad Accounting Corporation that was in charge of Nonindicted Co. 2’s tax agent business according to Defendant 1’s order, and around March 9, 2006, Defendant 1 instructed that “the data that Nonindicted Co. 21 demanded contact with respect to the sale of Nonindicted Co. 2 Co., Ltd.,” provided the accounting data of Nonindicted Co. 2, and accordingly, provided the accounting data of Nonindicted Co. 2, and as seen below, the Defendant cannot be deemed to have provided the Dad Accounting Corporation or Doe Accounting Corporation by subdividing Nonindicted Co. 2’s financial statements in the form of Nonindicted Co. 2.

1) Prepaid expenses

On the balance sheet and income statement of Nonindicted Co. 2 in 2005, the sum of the expenses paid to Nonindicted Co. 117 on December 10, 2005, KRW 94,726,200, KRW 75,087, and KRW 240, KRW 33,000, KRW 51,88,080, and KRW 21,560,000, and KRW 250,000 paid to Nonindicted Co. 33 on December 27, 2005, were treated as advance payment in the asset account.

① However, according to Defendant 1’s statement of evidence No. 4 (a written opinion of review on the propriety of preparation of an accounting report, one trial record, 359 pages), the fact-finding results on the Korea Accounting Institute, testimony of Nonindicted 34, etc., Nonindicted Co. 2 is a company that purchases database containing customer information from home shopping companies, etc. and sells insurance products by telephone. The database purchased from outside is distributed to each salesperson. They encourage each salesperson to subscribe to insurance products by explaining the necessity, characteristics, discrimination, etc. of insurance products several calls for a long time on their database, and the company receives sales commission for those cases for which the actual contract has been concluded. Accordingly, in principle, purchase price of database constitutes intangible assets; ② it is consistent and systematic to calculate the purchase price of database with 00 billion won in consideration of the adequate amount of appraisal and utilization of assets; ③ The purchase price of database 200 billion won in total and 300 billion won in calculating the purchase price of external products within 300 billion won in total and 400 billion won in total as above.

(b) Reserves for severance benefits;

It is true that as at December 31, 2005, the allowance for severance benefits for six employees is not appropriated in the cost and debt account for 24,620,017, and the corresponding amount is increased in business profit and assets in 2005.

① However, in light of the Labor Standards Act or the collective agreement between labor and management, allowances for severance benefits were to be paid to an employee, but if the employee were to be treated as losses for the pertinent year as generated in a non-permanent manner, it is unreasonable to consider the amount of the said employee’s allowance as losses for each period during his service period, and it is not actually appropriated as expenses for the employee’s debts under the concept, and thus, there are many cases where the employee was omitted. ② Nonindicted 36, who was in charge of accounting of Nonindicted 2, stated that “I would like to include the allowances for severance benefits from the Dad Accounting Firm in charge of settlement of accounts without knowledge of the accounts to which the allowances for severance benefits should be appropriated,” and that Nonindicted 3’s statement that “I would like to have not consistently counted the above allowances for severance benefits from the 3rd Accounting Firm for the reason that it was difficult to consider the allowances for severance benefits from the 3rd Accounting Firm or that there was no possibility that the above allowances for severance benefits from the 3rd Accounting Firm to the 3rd Accounting Firm.”

(iii) depreciation costs;

Among the balance sheet and the cost account of the profit and loss statement provided to Nonindicted 21 of the Sejong Accounting Corporation, the item of the tangible asset depreciation account was calculated as 39,727,731 won in 2005, and the depreciation cost was calculated as 39,727,731 won in 205, and was reduced as 45,690,373 won in the original amount from 85,418,104 to 45,690,373 won (5.5%) and it is recognized that the defendant 3 of the saidd accounting corporation was found to have under-paid during the external accounting audit period for Nonindicted Co. 2.

① If Non-Indicted 2’s financial statements were made in the name of Non-Indicted 5’s office, Non-Indicted 2 (“Non-Indicted 2”) that had been used at the time of the settlement of accounts, the number of months can be automatically calculated within the program by entering the numerical value of each item of account on a flat basis. The number of months in the case of depreciation costs is automatically calculated if the items such as the date of acquisition, acquisition, depreciation method, and lifespan were entered and the date of settlement of accounts was entered. ② The defendant 3 intentionally sent the same statement to Non-Indicted 2 for the settlement of accounts on May 205, Non-Indicted 5 (“Non-Indicted 2”) to the effect that “Non-Indicted 5’s financial statements and the number of months in which Non-Indicted 5’s financial statements were not recorded.” This is because Non-Indicted 2 (“Non-Indicted 3”) could not be seen as the number of months in which Non-Indicted 5’s financial statements were recorded, and that the new accounting corporation’s financial statements were not recorded again.

In light of the above legal principles, in full view of the above circumstances (in particular, the fact that the defendant did not have a window dressing accounting), since the defendant did not have functional control over the occupational breach of trust by having a common processing doctor with respect to the acquisition of the shares of the above non-indicted 2 corporation, he cannot be held liable for the crime of joint principal offense against the defendant since he did not have functional control through substantial contribution to the occupational breach of trust due to the above acquisition of shares, and it is reasonable to deem that the defendant did not have any intention as well as aiding and abetting the principal offender as he did not know or have no intent to assist the defendant to commit the crime of occupational breach of trust due to the acquisition of shares of the non-indicted 2 corporation as above. Thus, the crime of aiding and abetting the above crime of occupational breach of trust by

C. Judgment on Defendant 3’s assertion of misapprehension of the legal principle

Private documents, which are the objects of the crime of forging a private document, refer to the document or drawing of another person with respect to the right, obligation, or certification of fact, and the document related to the right and obligation refers to the document stating the matters concerning the creation, modification, and extinction of the right and obligation, and the document related to a certification of fact refers to a document other than the document pertaining to the right and obligation, which proves an important fact in the transaction, and the document certifying an important fact in the transaction can include not only the document, but also the document stating an expression of intent that may substantially affect the occurrence, continuation, modification, or extinction of the legal relationship only indirectly in a direct legal relationship, as well as the document stating an expression of intent that may actually affect the change of the right and obligation. Whether it falls under the document should be determined by comprehensively taking into account not only the title of the document, but also the content of the document, the objective situation in which the document was prepared, the matters indicated in the document, and the relation with the other party scheduled (see Supreme Court Decision 208Do527, Apr. 23, 2009).

In light of the above legal principles, the court below determined that the audit report constitutes a private document which proves that the auditor has made efforts to understand the fact-finding, and that the audit report constitutes a document which contains the content of the audit procedure applied to prepare the audit report from the company's accounting records and the results of analysis of information obtained in the process (including magnetic tapes, diskettes, and other information-keeping devices). It is reasonable to view that it is a document which contains documents (Article 14-2 (1) of the External Audit Act) and an important document which examines whether the audit procedure was properly conducted at the time of the audit and inspection and has considerable influence on interested parties, such as shareholders, executives, and investors related to the company. It is reasonable to conclude that the audit report was a document which proves that it is an important document to verify how much the auditor has made efforts, and that it is necessary to keep the audit report for eight years from the time of completion of the audit and inspection (Article 14-2 (2) of the External Audit and Inspection Act). It is reasonable to conclude that it is a document completed at the time of completion of the audit report in light of the purpose of 20.

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

(1) Judgment on the misunderstanding of facts against Defendant 1 (as to the embezzlement of KRW 245 million with warrant owned by Nonindicted 4)

(A) Summary of the facts charged

Around December 21, 2005, the Defendant received 250 million won from Nonindicted 4 to the Choung Bank’s account under the name of the Defendant’s management fund, and transferred 200 million won from Nonindicted 4 to his own account, and the Defendant transferred 500 shares of Nonindicted 2 Co. 2 on December 31, 2005 to Nonindicted 4, and additionally transferred 200 shares of Nonindicted Co. 2 on January 9, 2006.

Around March 13, 2006, the Defendant prepared a sales contract to sell shares of Nonindicted Co. 2 to Nonindicted Co. 1 in total of KRW 525 million (750,000 per share) owned by Nonindicted Co. 4 at the office of Nonindicted Co. 1, a total of KRW 700 million, at the office of Nonindicted Co. 1, which was held by Nonindicted Co. 4, and embezzled the shares of KRW 30 million to Nonindicted Co. 4 by means of remitting the shares of KRW 280,500,000 per share to the account of one bank in the name of Nonindicted Co. 4 on April 24, 2006, and received from Nonindicted Co. 1, and kept them for Nonindicted Co. 4 on the name of KRW 525,00,00 for the purchase price of the shares.

(B) Determination

In full view of the various circumstances indicated in the record, the court below acquitted the defendant on this part of the facts charged on the ground that it is reasonable to deem that the defendant sold KRW 280 million to Nonindicted 1 Company 1 Company with warrant issued under the name of Nonindicted 4 with the permission of Nonindicted 4 and delivered KRW 525 million to Nonindicted 4, and otherwise, there is no evidence to support that the defendant failed to return to Nonindicted 4 the amount equivalent to KRW 245 million with the preemptive right to new shares and embezzled it. The court below's fact-finding and decision on this point are justified, and there is no error of law that affected the conclusion of the judgment by misconception of facts.

(2) Judgment on the misapprehension of legal principle as to Defendant 2’s assertion (as to the violation of the Act on External Audit of Stock Companies)

(A) Summary of the facts charged

On March 9, 2006, the Defendant received an order from Defendant 1 to request an accounting audit in 2005 from Nonindicted Co. 2, 2005, and requested an accounting audit to the Dad Accounting Corporation acting for the captain of Nonindicted Co. 2, the Defendant, a certified public accountant belonging to the said Dod Accounting Corporation, and provided KRW 275,561,520, total of the commission fees to be appropriated in the account subject of expenses, such as advertising expenses and other fees, out of the expense account, to the Defendant 3, who is a certified public accountant belonging to the said Dod Accounting Corporation, with a false statement of advance payment expenses, which was appropriated in the account subject to advance payment expenses out of the asset account. The Defendant made a false statement to Nonindicted Co. 2, Nonindicted Co. 38 and Nonindicted

In addition, the Defendant omitted the retirement benefits allowance of KRW 24,620,017 from the employees who had worked for one year or more as of December 31, 2005 without appropriating it in the cost and debt account. The Defendant made a false statement to the effect that, upon receiving the direction from Defendant 3, Nonindicted Co. 38 and Nonindicted Co. 37 asked Nonindicted Co. 2 for the reason of omitting the retirement benefits allowances allowances.

Ultimately, the Defendant presented the false accounting data in 2005, which would reduce costs and liabilities and increase operating income and assets to Defendant 3 who belongs to the Tradrid Accounting Corporation that is an external auditor. As such, as if there is no defect in asking about the authenticity of such accounting data, the Defendant interfered with the normal external audit of the auditor by submitting the audit opinion to the effect that “The financial statements, such as balance sheet, income statement, appropriation of retained earnings, cash flow table, etc., submitted by the Defendant, including the balance sheet, profit and loss statement, appropriation of retained earnings, and cash flow table, which are completed as of December 31, 2005 as of December 31, 2005, are appropriately indicated from the perspective of importance in accordance with generally accepted accounting standards.”

Article 20(2)3 of the External Audit Act provides that an auditor shall be punished for acts interfering with the normal external audit of an auditor. Article 1 of the External Audit Act provides that "the purpose of this Act is to contribute to the protection of interested persons and the sound growth of an enterprise by allowing an external auditor who is independent auditor (hereinafter referred to as an "auditor") from a stock company to audit the stock company and thereby ensuring appropriateness of accounting," and does not provide for separate definition as to the meaning of an auditor, but Article 2 provides that "a stock company whose total amount of assets as of the end of the immediately preceding business year is above the standard amount prescribed by Presidential Decree shall be prepared and audited by an auditor." Article 3 of the Act provides that "the auditor shall be punished by an external auditor" under Article 20 (1) provides that "the auditor shall be punished by the provisions of Article 23 of the Certified Public Accountant Act and the provisions of Article 41 of the Act on External Audit and Inspection of the Korean Public Accountant and the provisions of Article 20 (2) of the Act on External Audit and Inspection of the Korean Institute shall be construed as follows."

The court below found the defendant not guilty of this part of the facts charged on the ground that Article 2 of the External Audit Act and Article 2 of the Enforcement Decree of the same Act provide that the corporation subject to accounting audit by an external auditor shall be "stock company with total assets of at least seven billion won at the end of the immediately preceding business year" and since the total assets of the non-indicted 2 corporation in 2004 are not more than seven billion won, it does not necessarily require external accounting audit. The judgment of the court below on this point is just and it does not contain any error of law that affected the conclusion of the judgment by misunderstanding legal principles.

(3) Judgment on the misapprehension of legal principles as to Defendant 3’s assertion (as to the violation of the Act on External Audit of Stock Companies)

(A) Summary of the facts charged

Around March 9, 2006, the Defendant was commissioned by Defendant 2 to conduct an accounting audit of Nonindicted Co. 2 in 2005, and conducted an accounting audit in the name of the Bad Accounting Corporation from the 10th to the 12th day of the same month, and prepared an audit report and a protocol of audit.

Around November 28, 2008, the Defendant received a request from Nonindicted 136 of the Seoul Central District Public Prosecutor's Office to submit an audit report prepared in the name of the accounting firm in relation to the investigation of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) against Defendant 2, etc. in relation to the investigation of the case of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust), and submitted the audit report to the above accounting firm office located in Gangnam-gu, Seoul, the above accounting firm office located in Gangnam-gu as of December 31, 2005; and submitted the revised audit report to the auditor in relation to the above accounting firm as of March 10, 206, newly prepared a statement on the details of the revised matters of the company's assets, investment assets, tangible assets, capital, sales, profits and losses outside business, corporate tax, etc. as of March 10, 206; and as a result, after reviewing the contents of advance payment expenses claimed by Defendant 2 in the audit report, it stated the above.

(B) Determination

The court below sentenced the non-indicted 2 corporation, which is not subject to external audit under the Act on External Audit and Inspection, to be an auditor under the Act on External Audit and Inspection, and thus, it cannot be seen as an auditor under the Act on External Audit and Inspection. Thus, in light of the legal principles of the Supreme Court Decision No. 2002Do7340 as seen earlier, the court below's decision on this point is just and acceptable, and there is no error of law by misunderstanding legal principles which affected the conclusion of

E. Determination on the assertion of unfair sentencing on Defendant 3 and the above defendant by the prosecutor

Upon receiving a request from an investigative agency, the Defendant is subject to a punishment corresponding thereto by altering the protocol of audit, but the Defendant has no criminal record other than a fine, and there are circumstances that may be considered in light of the circumstances, such as the motive for supplementing the protocol of audit and inspection, etc., the sentence of the lower court against the Defendant is somewhat unreasonable, and it is not acknowledged that it is too unreasonable.

3. Conclusion

Therefore, among the convictions against Defendant 1, among the judgment below, the part of the judgment of the court below on the guilty amounting to KRW 958,904,816 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation), the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) regarding the vehicle leasing of KRW 166,653,700, the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) regarding the loan of Nonindicted Co. 13, the part on the defendant 4's guilt of occupational breach of trust related to the vehicle leasing of KRW 166,653,70, among the convictions against Defendant 4, the part on the defendant 1, 4, and the remaining guilty portion of the judgment on the defendant 1, 4, and the prosecutor's remaining guilty part of the judgment on the defendant 1, 4,700, and the prosecutor's appeal against the defendant 2 cannot be dismissed in its entirety without any grounds for appeal.

Defendant 1, 3, and 4’s criminal facts and summary of the evidence recognized by this court are as follows: (a) as stated in the facts constituting the crime of the lower judgment, the facts constituting the crime of the lower court are as follows: (b) Nonindicted 40 was changed to Nonindicted 17; (c) Nonindicted 11 to 12; and (d) deleted from Nonindicted 13 to 14; and (e) the summary of the evidence of the lower judgment is as stated in the corresponding column except for deletion of Chapters 16 through 32, 17, and 12 through 20, respectively, pursuant to Article 369 of the Criminal Procedure Act.

【Revised Crime】

1. Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) in relation to the high-priced acquisition of shares by Nonindicted Incorporated Company

Around June 8, 2004, the Defendant established a non-indicted 2 Co., Ltd. and was appointed as the representative director. Around March 7, 2006, the Defendant acquired the non-indicted 1 Co., Ltd. and was appointed as the representative director. Defendant 2, from February 17, 2005, performed duties as the managing director of the non-indicted 2 Co., Ltd. and took overall charge of the business and accounting affairs of the non-indicted 2 Co., Ltd.

The Defendant was able to have Nonindicted Co. 1 take over Nonindicted Co. 2. At the time, Nonindicted Co. 1 had Nonindicted Co. 1 recorded net losses for the last six consecutive years from 2000 to 2005, and recorded the total amount of losses in excess of KRW 29.4 billion and internal possession funds that can be mobilized for acquisition of Nonindicted Co. 2 were rarely nonexistent. In such a case, in determining whether to purchase the shares of Nonindicted Co. 1 from the standpoint of Nonindicted Co. 1 Co. 1, the Defendant, who is the representative director of Nonindicted Co. 1, should closely examine the business necessity to take over the shares of the acquired company, such as financial situation at the time of the acquisition, future business prospects, business profitability, etc. of the acquired company. In particular, in order to determine a legitimate purchase price, there was an occupational duty to prevent damage to Nonindicted Co. 1 by purchasing reasonable prices through negotiations between Nonindicted Co. 2’s shareholders and substantial prices.

The Defendant, at the time of acquiring Nonindicted Co. 1 as the representative director of Nonindicted Co. 2 and the largest shareholder of Nonindicted Co. 2, who was in fact affiliated with Nonindicted Co. 2, even if it was difficult to expect any special operational effect because it was difficult to take over the Nonindicted Co. 2, on March 9, 2006, requested the Sejong Accounting Corporation to assess the shares of Nonindicted Co. 2, and requested Defendant 2 to provide Nonindicted Co. 21 with an exaggerated business plan for the year 2005 financial statements and business plans. Defendant 2 did not properly notify the fact that the audit by an external auditor is in progress, and other industry prospects and feasibility, etc., and without giving sufficient data necessary for the adequate evaluation of shares and demand for on-site inspection, at around 12, 2006, it was difficult for Nonindicted Co. 21 to set the total acquisition price of the said Co. 2, Ltd. and KRW 2500,000,000 per share for 206,000.

From the date of the conclusion of the above contract to March 16, 2006, the Defendant received a total of KRW 5.15 billion in cash and KRW 6.75 billion in the amount of KRW 1.6 billion in the bonds with warrants of Nonindicted Co. 1, as the purchase price for Nonindicted Co. 2’s stocks 90 billion owned by himself from Nonindicted Co. 1, as well as KRW 5.15 billion in cash, from the shareholders of Nonindicted Co. 2, including the Defendant, to KRW 8.25 billion in total. The shareholders of Nonindicted Co. 2, including the Defendant, acquired bonds with warrants worth KRW 10 billion in cash and KRW 5.0 billion in the amount of KRW 5 billion in the bonds with warrants of Nonindicted Co. 1 through such transaction.

In cases where Nonindicted Co. 2 calculates the value of the shares of Nonindicted Co. 2 in accordance with the “Regulations on the Issuance and Publication of Securities (Financial Supervisory Commission Notice)” taking into account all the average industry and the characteristics of the individual company of Nonindicted Co. 2 when assessing the value of the shares of Nonindicted Co. 2, based on the average market value of the shares of Nonindicted Co. 2, in accordance with the four years (202 to 2005), the average value of the estimated sales rate presented to the Sejong Accounting Corporation when evaluating the stock value of the shares, the average sales rate of the “insurance Agency and Brokerage Business” for the past four years (2002 to 205) (4) years (202 to 205), and the average sales rate of the shares of Nonindicted Co. 2, Co. 2, Ltd., Ltd., based on the average sales rate of the shares of Nonindicted Co. 2, Ltd. 2, based on the average market value of the shares of Nonindicted Co. 2, Ltd. 2, the average sales rate of the shares of Nonindicted Co.

As a result, the Defendant violated the representative director’s business duty of Nonindicted Co. 1, thereby allowing Nonindicted Co. 1 to purchase from the shareholders of Nonindicted Co. 2, including himself the total amount of KRW 125,648,00 per share of KRW 750,00 per share of the shares issued by Nonindicted Co. 2, Ltd., which is a maximum of KRW 614,928,00,000 per share, thereby obtaining a property benefit of at least KRW 1.45,792,00,000, at least KRW 1.45,792,000, and at least KRW 2.71,440,000 for Nonindicted Co. 1.

1. Article relevant to the facts constituting an offense and the selection of punishment;

A. Defendant 1

(1) The acquisition of shares of Nonindicted Co. 2 in its holding, the loan of KRW 3 billion for Nonindicted Co. 2, the loan of KRW 500 million for Nonindicted Co. 5, and the loan of KRW 3.5 billion for each occupational breach of trust regarding Nonindicted Co. 19

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 356 and Article 355 (2) of the Criminal Act (Provided, That Article 30 of the Criminal Act shall be added to the lending of 3.5 billion won to non-indicted 19 corporation in the holding

(2) The crime of occupational embezzlement of the facility parts owned by Nonindicted Co. 11 in its holding

Articles 356 and 355(1) of the Criminal Act

(3) The point of occupational embezzlement of KRW 345,288,90 in connection with the loan of Nonindicted Co. 5 in its holding

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356 and 355 (1) of the Criminal Act

(4) Violation of each Securities and Exchange Act

Articles 210 subparag. 5, 188(6) of the former Securities and Exchange Act (amended by Act No. 8635 of Aug. 3, 2007; hereinafter the same shall apply), 210 subparag. 5, and 188(6) of the former Securities and Exchange Act (amended by Act No. 8635 of Aug. 3, 2007; hereinafter the same shall apply), Articles 210 subparag. 5-2, and 200-2(1) of the former Securities and Exchange Act (amended by Act No. 207-3 subparag. 2, Article 186(1)13 of the former Securities and Exchange Act, and Article 83(3)1 of the Enforcement Decree of the former Securities and Exchange Act (amended by Act No. 8635 of Aug. 3, 200; hereinafter the same shall apply), and Article 86-4(1)7 of the former Enforcement Decree of the Securities and Exchange Act.

(5) The point of occupational embezzlement with respect to the loan of KRW 5 billion to Nonindicted 15 in its holding

Article 3 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356, 355 (2), and 30 of the Criminal Act (Selection of Imprisonment with Labor for Abandonment)

(6) The point of giving property in breach of trust

Articles 357(2) and (1), and 30 (Selection of Imprisonment)

(7) The point of occupational breach of trust in relation to the loan of KRW 5 billion to the intent of the judgment

Article 3 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356, 355 (1), and 30 of the Criminal Act (Selection of Imprisonment with Labor for Abandonment)

(8) The charge of forging and exercising the minutes of the board of directors

Article 231 of each Criminal Code (the point of each private document assistance, each choice of imprisonment), Article 232 of each Criminal Code (the point of preparing each private document, each choice of imprisonment), Articles 234 and 231 of each Criminal Code (the point of exercising each private document, each choice of imprisonment), Articles 234 and 232 of each Criminal Code (the point of exercising each private document for qualification assistance, each choice of imprisonment)

B. Defendant 3

Article 231 (Formation of Alteration of Private Document, Selection of Fine) Articles 234 and 231 of the Criminal Act. Article 231 of the Criminal Act (Possession of Exercise of Private Document, Selection of Fine)

C. Defendant 4

(1) Violation of each of its own stocks' duty to report

Articles 210 subparag. 5 and 188(6) of the former Securities and Exchange Act.

(2) The point of occupational embezzlement with respect to the loan of KRW 5 billion to Nonindicted 15 in its holding

Article 3 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356, 355 (2), and 30 of the Criminal Act (Selection of Imprisonment with Labor for Abandonment)

(3) The point of giving property in breach of trust

Articles 357(2) and (1), and 30 (Selection of Imprisonment)

(4) The point of occupational breach of trust in relation to the loan of KRW 5 billion to the intent of the judgment

Article 3 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356, 355 (1), and 30 of the Criminal Act (Selection of Imprisonment with Labor for Abandonment)

(5) The point of occupational breach of trust in connection with the lending of Nonindicted 19 billion won Co. 3.5 billion won

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356 and 355 (2) of the Criminal Act, Article 30 of the Criminal Act

1. Formal concurrence (Defendant 1);

Articles 40 and 50 of the Criminal Code (the crime of forging a private document and the preparation of a private document for qualification and the crime of uttering of a private document for qualification and the crime of uttering of a private document for qualification and the crime of uttering of a private document for qualification and the crime of uttering of a private document for qualification, the crime of forging a private document for meeting minutes of the board of directors in which the items of the most severe loan than those of the crime are stated as Nonindicted 41

1. Aggravation of concurrent crimes (defendants 1, 3, 4);

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [In cases of defendants 1 and 4, the punishment prescribed for the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) with respect to lending 5 billion won to non-indicted 15 with the largest punishment and the nature of each punishment shall be aggravated; and the punishment for defendants 3 shall be aggravated for each punishment prescribed for the crime of uttering of a forged document with heavier punishment];

1. Discretionary mitigation (Defendant 1, 4);

Articles 53 and 55(1)3 of the Criminal Act (see, e.g., Articles 53 and 55(1)3)

1. Suspension of execution (Defendant 1, 4);

Article 62 (1) of the Criminal Act (Consideration favorable Circumstances as above)

1. Suspension of sentence (Defendant 3);

Article 59(1) of the Criminal Act

(Punishment to be suspended of sentence: fine of one million won, and fine of 50,000 won per day for detention in a workhouse;

1. Defendant 1

The Defendant acquired management rights of Nonindicted Co. 1, which is a KOSDAQ-listed company, by allowing Nonindicted Co. 1 to purchase the entire amount of the stocks of Nonindicted Co. 2, which he is a major shareholder, based on the assessed value of the stocks unfairly over the market price without undergoing due process, thereby having him and the special persons concerned acquire approximately KRW 2.7 billion. Accordingly, the Defendant suffered a considerable compromise in the finance of Nonindicted Co. 1, thereby causing considerable loss to the shareholders of Nonindicted Co. 1, and ultimately, suffered a considerable loss to the shareholders of Nonindicted Co. 1. In addition, the Defendant lent KRW 3 billion to Nonindicted Co. 2, and KRW 50 million to Nonindicted Co. 5, thereby causing loss equivalent to the same amount to Nonindicted Co. 1, and embezzled the amount of KRW 40 million for the facilities of Nonindicted Co. 11, and embezzled KRW 3.475 billion in the name of Nonindicted Co. 5.

After that, the Defendant acquired the right of management of Nonindicted Co. 16 in return for giving unfair economic convenience to Nonindicted Co. 15, who is the representative director of learning, through capital increase in the method of allocating to a third party the right of management of Nonindicted Co. 16, which was set at lower than the market price. Furthermore, the Defendant offered the money to Nonindicted Co. 15 in return for the right of management to Nonindicted Co. 16’s public funds, offered 5 billion won in the capital increase in the capital increase in the amount of capital increase in the amount of money to be paid to Nonindicted Co. 16’s public funds, offered the money to Nonindicted Co. 15 in return for the right of management, and incurred considerable damage to Nonindicted Co. 16 by lending KRW 3.5 billion to Nonindicted Co.

The above crime causes confusion in the system of the stock company which forms the basis of the economy of the Republic of Korea by the Defendant’s privateization of listed companies, and it is inevitable to strictly punish the financial institution of listed companies as being operated in drinking manner, such as a personal company.

However, with respect to high-priced takeover of Nonindicted Co. 2, the amount of breach of trust has been remarkably reduced to at least 2.7 billion won at the beginning 13.5 billion won, and among each of the crimes of this case, the suspension of execution shall be sentenced as per the disposition, by taking into account all the various sentencing conditions, including the following factors: (a) the high-priced takeover of Nonindicted Co. 2, and KRW 2.7 billion related to the high-priced takeover of Nonindicted Co. 1, Nonindicted Co. 2, and KRW 3 billion; (b) the lending of KRW 500 million to Nonindicted Co. 5, Nonindicted Co. 500; and (c) the loan of KRW 5 billion to Nonindicted Co. 16, except for the crime of occupational breach of trust due to acquisition of high-priced Co. 2, Ltd., except for the crime of occupational breach of trust due to the above crimes; (c) the Defendant did not gain personal benefits among its affiliates; (d)

2. Defendant 4

In order to secure the management right of the non-indicted 16 corporation jointly with the above defendant 1, the defendant embezzled KRW 5 billion out of the subscription price for new shares, lent it to the non-indicted 15, thereby giving money in return for illegal solicitation, in violation of his occupational duty, lent KRW 5 billion in the fund of the non-indicted 16 corporation to the aid for the non-indicted 16 corporation, and further, the crime's nature is weak, such as lending KRW 3.5 billion to the non-indicted 19

However, the Defendant did not obtain personal pecuniary benefits due to each of the instant crimes, and committed each of the instant crimes with a view to securing the management right of Nonindicted 16 Stock Companies, and committed the crime of lending KRW 5 billion to Nonindicted 15 and learning, and the damage was recovered due to full repayment of loans to Nonindicted 15 and Nonindicted 19, the lower court rendered a verdict of the same punishment as the order, taking into account the various factors of sentencing as shown in the trial process of the instant case, such as the fact that the Defendant was found guilty of the lower court’s conviction of the occupational breach of trust related to vehicle lease, and the fact that the mistake is divided.

Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Stocks of Non-Indicted Party 2, and the amount of breach of trust exceeds KRW 2.740,00 won, Non-Indicted Party 7’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the Act on the Aggravated Punishment, etc. of Specific Economic Crimes), KRW 16,653,70 won related to vehicle leasing, KRW 60 million related to Non-Indicted Party 2’s violation of the Act on the Aggravated Punishment, etc. (the Act on the Aggravated Punishment, etc. of Specific Economic Crimes) and KRW 60 billion (the Act on the Aggravated Punishment, etc. of Stocks of Non-Indicted Party 3). The above charges on the Aggravated Punishment, etc. (the Act on the Aggravated Punishment, etc. of Stocks of Non-Indicted Party 1) are as follows: Defendant 2’s violation of the Act on the Aggravated Punishment, etc. of Stocks of Non-Indicted Party 3 (the Act on the Aggravated Punishment, etc.) are as follows (the Grounds for 2)

It is so decided as per Disposition for the above reasons.

Judges Cho Jae-jin (Presiding Judge)