(영문) 서울중앙지방법원 2014.5.30. 선고 2013고합1363 판결

On November 2012, the defendant, as the representative director of C (hereinafter referred to as "C") of the victim company E (hereinafter referred to as "victim company") who was owned by F from D, the representative director of E (hereinafter referred to as "victim company") of E (hereinafter referred to as "victim company") who was a manufacturing company for the reduction of forged land and paper money in the name of C, received a proposal from D to acquire the management right by acquiring the shares of the victim company 2,852,737 shares (19.22% of the total number of issued shares), and then paid 2.7 billion won of the down payment of 2.6.2 billion won of the acquisition price of the shares to other investors to F, and paid 23.5 billion won of the remaining remaining balance to the credit service provider, at a temporary general meeting of shareholders, the defendant was appointed as the representative director of the victim company, and had the victim's shares and the deposit certificate

On January 11, 2013, at the temporary general meeting of shareholders of the victim company held at around 09:00, the defendant, D and G are appointed as each representative director of the victim company, and the defendant and G have overall control over all the affairs related to the management of the victim company, such as financial management of the victim company.

1. Embezzlement the certificate of deposit;

(a) Embezzlements equivalent to 19.9 billion won in the certificate of deposit;

On January 11, 2013, the Defendant borrowed 7 billion won from F to F to F as collateral a certificate of deposit equivalent to KRW 7.9 billion in order to pay the shares acquired from F to F to the victim company under the pretext of confirming the major assets of the victim company, and provided it to F as collateral a certificate of deposit equivalent to KRW 9.9 billion in excess of the amount of KRW 9 billion in borrowing 9 billion from F to F by borrowing 9 billion in loan from F to F, while borrowing 9.0 billion in loan from F to F to him as collateral, and borrowing 4.0 billion in loan from LJ of the credit service provider and borrowing 4 billion won in excess of the amount of KRW 3.0 billion in loan from F to him as collateral.

Accordingly, the defendant, in collusion with D, provided the certificate of deposit equivalent to 19.9 billion won at the market price of the victim's property in his business custody, and embezzled it as personal debt security.

(b) Embezzlements equivalent to one billion won in the certificate of deposit.

On January 14, 2013, the Defendant, along with D, borrowed additional KRW 1.9 billion from H of credit service providers in order to repay the interest on bonds borrowed from the name of the purchase price of stocks in a coffee shop where the name in Gangnam-gu Seoul Metropolitan Government cannot be known, and provided as security a certificate of deposit equivalent to KRW 1.9 billion, which is owned by the victim company that was under business custody for the victim company.

Accordingly, the defendant, in collusion with D, provided the certificate of deposit equivalent to one billion won at the market price of the victim's property in his/her business custody as security for personal debt, and embezzled it.

2. Embezzlement of company funds by means of returning them after concluding a false contract;

In order to pay interest, etc. on bonds borrowed from the victim company as the price for acquiring stocks with D, the defendant concluded a false contract as if he purchased an asset management system or entered into a false contract as if he requested service, and received the delivery price, etc. from the counterpart company, and received the return, etc. of the company's funds.

On February 5, 2013, the Defendant entered into a false contract as if he was supplied with an asset management system from the representative M of the corporation L, and accordingly, made the employee N of the financial accounting team of the victim company transfer KRW 200 million to the above L account. The Defendant returned the above money from the above M and embezzled it under the pretext of payment such as the interest on bonds borrowed individually by the Defendant and D, etc. around that time.

In collusion with D, from around that time to March 19, 2013, the Defendant embezzled a total of KRW 1,760,000,000 by the aforementioned methods five times, such as the entry of the list of crimes in attached Table (1).

3. Embezzlement treasury stocks;

On February 7, 2013, the Defendant, along with D, provided 6,198,432,855 won (based on 4,485 won per day) in the market price of the victim company owned by the Defendant and provided 1,382,043 shares as security under the pretext of borrowing 3.3 billion won from credit service providers P, who borrowed 3.3 billion won from 517 office located in Jung-gu, Seoul, Seoul, for the purpose of acquiring shares or taking part of the certificate of deposit to be entrusted as security.

Accordingly, the defendant, in collusion with D, embezzled the property of the victim who was in custody on duty using the victim's personal purpose in collusion with D.

4. Embezzlement the use of corporate cards;

On February 16, 2013, the Defendant paid an amount equivalent to 8.50,00 won by using the corporate card of the victim company that was in custody in business and used it for personal purposes in mind.

In addition, from around that time to March 27, 2013, the Defendant embezzled an amount equivalent to KRW 28,473,977 by using the above corporation card for personal purposes over 43 times, as shown in the annexed crime sight table (2).

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of witness G, R, S and T;

1. The second and seventh suspect examination guidelines of each prosecution against the accused;

1. Examination protocol of police suspect regarding D;

1. Each police statement of the U, V, F, W, X (including the part of the statement for the second time, and the part of the statement for the third time, for the third time), R, Z, AA, AB, AC, AD, H, AE, I, AF, P, AG (including the part of the statement for the AH), J, AI, AJ, and N;

1. Each statement of M, AK, and AL;

1. Domestic investigation reports (Attachment of the contents of publication), investigation reports (AM), investigation reports (D. 200 million won receipt), investigation reports (the details of disposal of the certificate of deposit), investigation reports (the verification of the identity of the owner of the deposit), investigation reports (the details of disposal of the certificate of deposit), investigation reports (the confirmation of the identity of the owner of the deposit), investigation reports (a supplementary attachment of the agreement on joint management, etc. - the minutes of the board of directors), investigation reports (Attachment of the meeting minutes of the

1. Internet posted notes, a certified copy of a register of each corporation, an audit report on financial statements, and an agreement between shareholders, such as joint management, a written agreement for acquisition of stocks and management rights, M&A, a loan agreement for security, such as stocks and CDs, consulting contracts, security lending contracts, stocks and certificates of acceptance of major assets, checks, copies of checks, each supply contract, each contract for advisory services, copies of passbooks, etc., each service contract, and a written agreement for advisory services, details of arranging accounts, etc.;

Application of Statutes

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

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 (generally, choice of limited imprisonment)

2. Discretionary mitigation;

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

The defendant and defense counsel's assertion

1. Summary of the assertion

Of the facts stated in paragraph (4) of the judgment, ① No. 18-20 of the annexed Table No. 18-20 of the annexed Table No. 4 is used by lending the corporate card of the defendant to the defendant. ② No. 26-43 is the defendant's business trip in Japan according to the order of NN and D and thus, the crime of embezzlement is not established for this part.

2. Determination

A. According to the evidence duly examined and adopted by the court at Nos. 18, 19 of the annexed crime list (2) Nos. 18 and 19, the defendant paid 9.9 million won in the "AO" through a corporate card of the victim company. The defendant was paid in the card because N, AP used alcohol with a corporate bonds company and used it to change the corporate card of the victim company in custody of the defendant. The defendant is recognized as a representative director of the victim company, who is holding the corporate card of the victim company, as a representative director of the victim company, to use the corporate card after examining whether the expenses paid in accordance with the corporate card are for the victim company and whether the expenses are appropriate. It is apparent that the defendant and the corporate bond company are not for the victim company, and it is not clear that the defendant and the corporate bond company are not for the victim company, but for that reason, it cannot be viewed that the defendant's act of embezzlement is a large amount of amount of 9.9 million won for the victim's corporate card.

B. According to the evidence duly adopted and examined by this court in accordance with the attached list (2) No. 20 No. 1 of the crime sight table (20), 4.9 million won paid from the attached list (20) No. 20 of the crime sight table (20) to the drinking value can be acknowledged as the fact that the defendant personally used the person.

C. According to the evidence duly adopted and examined by this court, around March 19, 2013, the issue related to the certificate of deposit and treasury stocks provided at will to bond dealers as a security in the financial audit of the victim company occurred, and D et al. ordered the defendant to make a business trip to Japan in Hong-si while the defendant, the representative director of the victim company, can postpone the financial audit if he/she is in a foreign country. Accordingly, the defendant left the Republic of Korea around March 20, 2013 and stayed until March 23, 2013, and the defendant did not conduct any business or management for the victim company. Since the representative of the victim company cannot be deemed as a business trip for the victim company to delay the financial audit for the purpose of concealing himself/herself and his/her accomplices, the victim company cannot be deemed as having been used for the purpose of embezzlement. Accordingly, the part of the crime of embezzlement against the victim company is established.

Therefore, each of the above arguments by the defendant and his defense counsel is rejected.

Reasons for sentencing

1. Scope of applicable sentences under law: Imprisonment for two years and six months to fifteen years;

2. Scope of sentence recommended according to the sentencing criteria; and

[Determination of Punishment] Type 4 (not less than 5 billion won but less than 30 billion won)

[Special Convicted Persons] - Reductions: De facto participation in passive crimes by pressure, etc.

-Aggravated factors: where mass damage has been caused or serious damage has been caused to the victim;

[Scope of Recommendation] Four to Seven years of imprisonment

3. Determination of sentence: Imprisonment with prison labor for not less than three years and six months;

The defendant and his defense counsel asserted that punishment should be imposed on the defendant considering that the defendant's simple work such as "the chief director of the term "the defendant signed the loan contract, etc." under the direction of D, etc. However, according to the records of this case, the defendant allowed D, etc. to use the corporate personality of D, etc., the defendant taken office as the representative director of the victim company of this case and signed the loan contract, etc. at the scene of each crime of this case. With regard to paragraph (2) of the decision, the defendant was using a false contract directly with D, etc. and embezzled part of the funds of the victim company through the company of which the defendant was known, such as Paragraph (4) of the decision, the defendant used the corporate card from the victim company and introduced himself as the representative director of the victim company as the representative director of the victim company. In full view of this, it cannot be deemed that the defendant merely lent the name as "the chief director of the victim company", and it cannot be deemed that the majority of the defendant and his accomplice suffered considerable damage from the victim's losses from the crime of this case.

However, under the circumstances favorable to the defendant, the fact that the defendant was not led to and executed the crime of this case, the actual profits that the defendant acquired by the crime of this case is not significant, the defendant did not have any criminal record other than a fine once, and the defendant led to the confession of the important parts of the crime of this case and de facto repent of the crime, etc., shall be considered as favorable to the defendant, and the punishment shall be determined by deviating from the lowest limit of the sentencing range recommended by the sentencing guidelines, considering the defendant's age, career, character and behavior, circumstances after the crime, etc.

Judges

The presiding judge, the senior judge;

Judges Yang Sung-tae

Judges Shin Young-ju

Note tin

1) The Defendant stated that the number Nos. 18 through 20 in the annexed list of crimes (2) attached to the 7th suspect examination protocol attached to the 7th suspect examination protocol at the time of the prosecutor’s investigation. However, the above number Nos. 18-20 is identical to the contents of Nos. 17-19 in the annexed list of crimes (2) attached to the indictment of this case. The rejection of Nos. 20 in the annexed list of crimes attached to the indictment of this case by the Defendant in this court seems to have been based on the above difference. However, as long as the Defendant contests 18-20 in the annexed list of crimes attached to the indictment of this case in this court, it is reasonable to deem that the Defendant made a statement that he was drinking with the Defendant’s corporate card and settled it with the Defendant’s corporate card, and so long as it is not used for the victim or the Defendant’s corporate card with knowledge that it was not used for the victim or the company’s expense, it is established as embezzlement.

2) While the Defendant contests at this court about 26-44 times the annexed list of crimes (2) in the annexed list of crimes, the annexed list of crimes (2) attached to the indictment is only stated in 43 No. 43, and it also appears that the above reasons have occurred.

Attached Form

A person shall be appointed.

참조조문

-특정경제범죄 가중처벌 등에 관한 법률

-특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항 제1호

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