(영문) 서울중앙지방법원 2014.3.28. 선고 2013고합849 판결

피고인은 서울 강남구 D에 있는 E 주식회사의 대표이사로 재직하던 자로서, 2012. 10. 19. 인천 중구 항동 7가 91-6에 있는 주식회사 베스트물류(이하 '베스트물류'라 한다)에서 피해자 주식회사 화승네트웍스(이하 '화승네트웍스'라 한다)가 중국에서 수입하여 베스트물류에 보관하고 있던 피해자 화승네트웍스 소유의 철근에 대하여, 사실은 피해자 화승네트웍스로부터 출고승인을 받지 않아 이를 출고하거나 건네받을 자격이 없었음에도 베스트물류에게 "우리 회사 철근의 운송의뢰를 하겠다."라고 거짓말하고, E 주식회사 명의의 물품출하요청서를 베스트 물류에게 팩스로 발송하여 같은 날 이에 속은 베스트물류 직원 F으로부터 시가 115,000,000원 상당의 피해자 화승네트웍스 소유의 철근 204,692kg을 납품받아 이를 편취한 것을 비롯하여 그 때부터 2012. 11. 9.까지 11회에 걸쳐 별지 범죄일람표 기재와 같이 시가 합계 1,432,000,000원 상당의 피해자 화승네트웍스 소유의 철근 2,556,914kg을 편취하였다.

[2013Gohap1375]

On July 4, 2011, the Defendant concluded a transfer security agreement with the National Federation of Fisheries Cooperatives to the effect that, in order to establish a credit necessary for the import of steel products at the alternate station of the National Federation of Seocho-gu Seoul, Seocho-gu National Federation of Fisheries Cooperatives in Seocho-gu, Seoul, the Defendant signed a foreign exchange transaction agreement and credit transaction agreement with the National Federation of Fisheries Cooperatives within the limit of US$ 300,000,000.

On May 31, 2012, the Defendant imported steel products equivalent to USD 250,278.34 from China through a letter of credit (credit number G) based on a basic contract, such as a foreign exchange transaction agreement with the National Federation of Fisheries Cooperatives (credit number G), and entered into a warehouse in the name of Jung-gu Incheon, Jung-gu, Incheon, in the name of 1-48. On June 11, 2012, the Defendant entered into a warehouse in the name of Jung-gu, Incheon. On August 20, 2012. On August 20, 2012, the National Federation of Fisheries Cooperatives paid the payment of USD 250,278.34 (Korean currency 286,919,088 won) on behalf of the Defendant, but the Defendant did not pay KRW 225,18,120 among the letter of credit amount until December 30, 2012, and thus the National Federation of Fisheries Cooperatives did not perform its duty to protect the said steel products.

Nevertheless, on December 31, 2012, the Defendant violated the above duties, and arbitrarily released the said steel products from the warehouse in the name of the office of the said corporation, and transferred them to H, D, Steel, I, etc., which is the customer, for the purpose of paying the existing debts, thereby acquiring pecuniary gains equivalent to KRW 225,18,120 of the remaining secured debt amount, and causing property damage equivalent to the same amount to the National Federation of Fisheries Cooperatives.

Summary of Evidence

[Plaintiff-Appellant] 201.7

1. Defendant's legal statement;

1. Statement to J police officers;

1. 화승네트웍스의 고소장

1. A contract for supply of imported goods, a summary of the details of shipment thereof, and an official document related to the shipment of inventory goods;

[2013Gohap1375]

1. Defendant's legal statement;

1. The police statement of K;

1. The president of the National Federation of Fisheries Cooperatives;

1. A written agreement on foreign exchange transactions, a credit transaction agreement, a transfer for security, the current status of subrogated payment, content certification, and details of the use of imported cargo;

1. A criminal investigation report (Submission report of additional data by a complainant);

Application of Statutes

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

Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347(1) of the Criminal Act ( comprehensively including fraud and fraud), Article 355(2) and (1) of the Criminal Act (the point of breach of trust and the choice of imprisonment)

1. Aggravation of concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 (Fraud) of the Criminal Act shall be limited to the sum of the long-term punishments of the crimes prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud).

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

Reasons for sentencing

1. The scope of punishment: Imprisonment with prison labor for not less than one year and not more than 6 months but not more than 17 months;

2. The scope of recommended sentences according to sentencing standards;

(a) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes;

[Determination of Punishment] Fraud, General Fraud, Type 3 (not less than 500 million won but less than 5 billion won)

[Special Convicts] Mitigation elements (where damage has been recovered from part of the party)

[Determination of the Recommendation Area] Reduction Area

[Extent of Recommendation] Imprisonment with labor for not less than one year and six months but not more than four years, but breach of trust.

[Determination of Punishment] Embezzlement and Breach of Trust, Type 2 (not less than KRW 100 million but less than KRW 500,000)

[Special Sentencing] Mitigation element (the case where punishment is not imposed or damage has been recovered from a considerable part)

[Determination of the Recommendation Area] Reduction Area

[Scope of Recommendation] Imprisonment with prison labor for not less than six months but not more than two years. Imprisonment with prison labor for not less than one year and not more than six months but not more than five years (in the case of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), which is a basic crime, one-half of the upper limit of the punishment scope of breach of trust

3. Determination of sentence;

In full view of the fact that the Defendant was sentenced to a suspended sentence of two years and six months on September 30, 2010 by the Incheon District Court for the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Customs Duties) and was sentenced to a suspended sentence of two years and six months on September 30, 201, and the above judgment became final and conclusive around that time, the Defendant committed each of the instant crimes during the suspended sentence and the total amount of damages inflicted on the victims by each of the instant crimes exceeds KRW 1.6 billion,

다만, 피고인이 자신의 잘못을 인정하면서 반성하고 있는 점, 피고인이 사기 범행의 피해자 화승네트웍스에게는 1,042톤(시가 약 5억 8,378만 원 상당)의 철근을 반환하고 부동산을 담보로 제공하였고, 배임 범행의 피해자 수산업협동조합중앙회에게는 채무를 일부 변제하면서 부동산을 담보로 제공하여 이 사건 각 범행으로 인한 피해가 상당 부분 회복되거나 회복될 예정으로 보이는 점, 배임 범행의 피해자 수산업협동조합중앙회가 피고인의 처벌을 원하지 아니하는 점, 그 밖에 피고인의 연령, 성행, 환경, 범행의 동기와 수단, 결과, 범행 후의 정황 등 이 사건 변론에 나타난 모든 양형요소를 참작하여 주문과 같이 형을 정한다.

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