Defendant 1 and six others

Maternal Notes

Law Firm Han-gu, Attorneys Kim-hee et al.

Defendant 1 is punished by imprisonment with prison labor for a period of two years and six months, by imprisonment for a period of four years, by imprisonment for a period of two years; by imprisonment for a period of three years; by imprisonment for Defendant 4; by imprisonment for a period of three years; by imprisonment for Defendant 5; and by imprisonment for a period of three years; and by imprisonment for Defendant 6 (Non-Party 7 in a judgment of the Supreme Court), by imprisonment for a period of two years and six months; and

The 19-day detention days prior to the issuance of this judgment shall be included in the above-mentioned sentence against Defendant 1, and the 32-day detention days prior to the same sentence against Defendant 2.

However, the execution of each of the above punishment shall be suspended for three years for Defendant 1, 3, and 6, and for Defendant 4, and 5 for four years from the date this judgment became final and conclusive.

The amount of KRW 250 million shall be collected from Defendant 7 to KRW 54 million.

Defendant 2 was the vice president of the Savings Bank from April 1, 2002 to November 24, 2003, and from November 25, 2003 to the representative director, Defendant 5 is the auditor of Nonindicted Savings Bank; Defendant 1 is the director in charge of the lending and receipt business of the Savings Bank; Defendant 4 is the managing director of the Savings Bank who is in charge of the lending and receipt business of the Savings Bank; Defendant 4 is the chairman of the Credit Review Committee who manages the lending business of the Savings Bank as the managing director of the Savings Bank; Defendant 3 is the maximum stockholder of the Savings Bank from April 11, 1986 to November 24, 200; Defendant 6 was the representative director of the Savings Bank from November 25, 200 to July 28, 2007, and Defendant 200 was established from May 28, 2008 as the president of the Savings Bank.

Non-Indicted 1 Savings Bank, Non-Indicted 9 Savings Bank, and Non-Indicted 10 Savings Bank respectively become a separate legal entity, but their capital stock, main decision-making, etc. are all the structure that the major executives of Non-Indicted 1 Savings Bank, including Defendant 2, 1, 3, 4, and 5, are the main executives of Non-Indicted 1 Savings Bank. The executives of other Bank are present at the meeting of major decision-making, but each of the loans, etc. are the systems that follow the decision-making by Non

Defendant 2 and Defendant 3, while serving as the representative director of each of the above banks, have duties to exercise overall control over all kinds of loan and receipt business, investment business, etc. of the above banks, and to prevent damage to the above banks pursuant to the provisions of Acts and subordinate statutes. Defendant 5, as an auditor of the above bank, has duties to monitor whether other managers of the above bank operate the bank in compliance with various Acts and subordinate statutes, such as the Mutual Savings Banks Act, etc. in operating the bank, and to operate the bank in compliance with the regulations on security investigation and credit investigation, and to ensure the sound development of the bank. Defendant 4 is the chairman of the credit review committee of the above bank and Defendant 1 is a member of the credit review committee of the bank who is in charge of loan provision, and thus, each credit provision should be executed in accordance with the provisions of various Acts and subordinate statutes and the regulations of the bank related to mutual savings banks, and when the bank loans funds, efforts to secure appropriate security, etc.

Nevertheless, Defendant 2, 3, 5, 4, and 1 had the time of IMF relief financing in the late 1990s, had the size of defective loans increased, and had not been loaned bank funds to various dangerous businesses, and had no expertise in the above bank, the above bank established various special purpose corporations and registered them as executive officers of the above corporation with the name of the relative of the officers and employees of the bank, and decided to conduct various real estate-related businesses such as golf courses, apartment houses, etc. under the direction of the above bank.

In accordance with the intent of the Mutual Savings Banks Act, a mutual savings bank must promote the financial convenience of ordinary people and small and medium enterprises, protect the customers, and conduct affairs such as deposit, loan, bill discount, etc. designated as its duties, Defendant 2, 3, 5, 4, and 1, under the pretext of avoiding the risk of collecting loans, was actively implementing the said golf course business without examining the business feasibility, in violation of the Act on the Structural Improvement of the Financial Industry and the Act on the Registration of Real Estate under Actual Titleholder’s Name at the time of real estate transactions.

1. Occupational breach of trust in relation to the construction project of Doggul golf course;

On December 2002, Defendant 2, 3, 5, 4, and 1 introduced the land of 21 square meters (957,813 square meters) including the two documents in Ulsan-gun, Ulsan-gun as Defendant 6’s introduction, and introduced the land of 3,166,323 square meters (957,813 square meters) as a golf course development site.

Defendant 2, 3, 5, 4, and 1 as executive officers of the above bank, including the representative director, auditor, and managing director of the above bank, have provided money in violation of the Act on the Registration of Real Estate under Actual Titleholder’s Name, and have purchased land from the name of the nominal holder, and shall not directly engage in the golf course construction business after purchasing the land. Even if the above bank’s principal duty is a loan to an enterprise which will construct such golf course, if the loan is made, it is appropriate as the site for the golf course, whether the purchase price of the site for the head of the aggregate department is appropriate, and if the validity of the golf course construction project is recognized by prior to the examination of the feasibility of the golf course construction project

Nevertheless, Defendant 2, 3, 5, 4, and 1 did not take such measures as land appraisal and feasibility study as to whether the purchase price of the land is appropriate in violation of their duties. Defendant 2, 3, 5, 4, and 1 did not take measures as land appraisal and golf course feasibility study. Defendant 2, 11, 12, 13, and 3, who are relatives of the above banking officers and employees, paid a monthly amount of KRW 100-2,000,000,000, and decided to purchase the above 950,000,000,000 won, and did not take measures to secure claims, such as establishment of a right to collateral security on the above purchased land. On December 6, 2002, Defendant 2 borrowed 475,000,000 won from the above date to November 5, 2008 to the aggregate of KRW 375,767,7167,757,7675,767,757,27,27.7,75

As a result, Defendant 2, 3, 5, 4, and 1 conspired [Provided, That until November 2003, Defendant 3 conspired with the other Defendants about the use of KRW 4,852,589,960 in total from No. 1 to No. 13, No. 301 to No. 307 with the above Defendants while serving as the representative director of the above bank] to obtain profits equivalent to the above aggregate amount from the persons who have accrued profits listed in the annexed list of crimes (1) such as Nonindicted 14, and the above bank suffered losses equivalent to the above aggregate amount.

2. Occupational breach of trust in relation to the construction project of the erogtic golf course in Antarctica;

around August 202, 2002, Non-Indicted 8, who is the land of Defendant 4, recommended that approximately KRW 300,000 square meters be the land of Geongsung-dong, Geongsung-dong, Geongsung-dong, Geongdong-dong, was appropriate as the site of a golf course.

Accordingly, Defendant 2, 3, 5, 4, and 1 are prohibited from running a golf course business in the same manner as the preceding paragraph. Even if the principal duties of the above bank are to lend such golf course to an enterprise that will build such a golf course, the duty of the bank is to provide loans, even if there is a loan, prior to the examination of the feasibility of the golf course construction project, such as whether the site for the head of the aggregate department is appropriate, whether the purchase price of the site for the golf course is reasonable, and the problems in the construction and operation of the golf course,

Nevertheless, Defendant 2, 3, 5, 4, and 1 did not take such measures as land appraisal and feasibility study as to whether the purchase price of the land is appropriate in violation of their duties, and did not take measures as land appraisal and golf course feasibility study. Defendant 4 paid KRW 1 million per month to Nonindicted 3, etc., who is the land owner of Defendant 4, and decided to purchase the land by lending that person’s name, and did not take a minimum measure to secure claims, such as the establishment of a right to collateral security on the above land. On August 28, 2002, Defendant 2, 3, 5, 4, and 1 loaned KRW 10 million in the name of Nonindicted 6 Co. 6 Co., Ltd. and paid KRW 10 million for business expenses between June 23, 2005 and June 23, 2005, Defendant 3,603,603,813,30,000 won in the form of the land purchase price and the payment to the person, etc.

Thus, Defendant 2, 3, 5, 4, and 1 conspired [limited to the use of KRW 2,075, 109, and 453 in total from Nos. 1 to 29 of the annexed Table of Crimes (2) with the remaining Defendants during the period of their work as the representative director of the above bank from November 2003], Defendant 2, 3, 5, 4, and 1 violated his duties, thereby obtaining profits equivalent to the above aggregate amount from the land seller, etc., and suffered damages equivalent to the above aggregate amount from the above bank.

3. Violation of the Act on the Aggravated Punishment, etc.;

Defendant 7 is a public official with authority to process various authorization and permission procedures related to the construction of golf courses in cooperation with Ulsan Metropolitan City and Ulsan Metropolitan City, such as making a lead in the formulation, etc. of a military comprehensive development plan while serving as the head of Ulsan Metropolitan City, and making a recommendation for the modification, etc. of a basic urban planning designated within Ulsan Metropolitan City after consultation with Ulsan Metropolitan City.

On June 2004, Defendant 7 received request from Defendant 6 to cooperate in various authorization and permission procedures to be made available in the future for the construction of the above golf course from Defendant 6, a service company of Nonindicted Co. 5 Co. 6, which was planning to construct by directly investing Nonindicted Co. 1’s money in the said bank (hereinafter “construction management”). Accordingly, Defendant 7 demanded Defendant 6 to prepare for KRW 300 million while talking about his economic difficulties.

After October 2004, Defendant 7 received cash KRW 70 million from Defendant 6 to Defendant 6 at the ○○○ hotel’s 1st floor above the Seosan-dong, which was located in Ulsan-gu, Busan-do, to include the construction of the above golf course in the long-term plan, such as the development plan of the military in the future. At the time, the above golf course site was designated as a natural park under the basic urban planning and is not easy to permit the golf course, and the above golf course site was requested to change it at the time.

Even thereafter, around November 2004, at the “Sari-gu Docdong stores” located in Seoyang-gu, Seoyang-gu, Ulsan-gu, Seoul-do, KRW 70 million, and around December 2004, the amount of KRW 85 million from the “Sari-gu” restaurant located in Busan-gu, Busan-do, and around September 2005, the amount of KRW 29 million was issued at the “Sari-si” hotel “Sari-gu, ○○” hotel’s “Sari-si, Doctri-gu,” along with a request to

Thus, Defendant 7 received a bribe of KRW 250 million through four times in total.

4. Offering of bribe;

around June 2004, Defendant 2 reported to the effect that Defendant 7 demanded KRW 300 million from Defendant 6 at the savings bank located in the Seocho-dong, Busan at the Seocho-gu, Busan at the expense of the authorization. Defendant 2 instructed the above bank to create money to Defendant 1 in charge of managing the funds related to the above golf course.

After that, Defendant 6 made a solicitation as to the money prepared by Defendant 1, who received orders from Defendant 2 at the same date, time, and place as in the above paragraph 3, and granted KRW 254 million in cash on four occasions in total as in the above paragraph 3.

Thus, Defendant 2 and 6 conspired to give a bribe in relation to the official duties of the public official.

[Each fact of paragraphs 1 and 2 at the Time of Sales]

1. The respective legal statements of the defendant 1, 2, 3, 4, and 5;

1. The defendant 6's partial statement

1. Each prosecutor's protocol of examination of the suspect as to the defendant 1, 2, 3, 4, and 5;

1. Each prosecutor’s statement on Nonindicted 27, 3 (part), 28, 6, 4 (3), and 29, and 30

1. Each written statement of Nonindicted 14, 18, and Defendant 4

1. The registry of Nonindicted Co. 5, the registry of Nonindicted Co. 6, and the bank internal control regulations

1. An investigation report (the acquisition of the documents related to the △△ golf course in Ulsan-si, the documents related to the disapproval of the golf course in Ulsan-si, the copy of the register, the attachment of the copy of the register, the attachment of the land purchase and ownership change, the attachment of the copy of the register, the attachment of the copy of the land purchase and ownership change, the attachment of the contract for the golf course in Ulsan-si, the attachment of the copy of the contract for the golf course, the attachment of the non-indicted 1 Savings Bank regulations, the arrangement of the details of loans, the arrangement of the status of loans, the attachment of the current status of loans, the attachment of the real estate sales contract, the attachment of the loan, the current status of loans and the details of loans, the attachment of the loan-related documents, the report attached to the loan-related loan-related documents, the submission of the current status of loans by corporation, the statement attached to the statement, the current status of executive officers, etc. of each special purpose company, the list of the loan-related transactions by the non-indicted 1 Bank, 4070, and 70.

[Each fact of paragraphs 3 and 4 at the Time of Sales]

1. The respective legal statements of the defendant 1, 2, 6, and 7;

1. Each prosecutor’s protocol on Nonindicted 27, Defendant 1, Nonindicted 31, 32, and 33

1. An investigation report (attached to Defendant 6’s ○ hotel service agreement; arrangement of the estimated amount of money that Defendant 6 sent to Defendant 7; attachment, such as a card sales slip, etc. to the ▽▽▽△△△△△ Seo hotel restaurant; attachment of Nonindicted 34 foreign exchange bank records, etc.; attachment of Nonindicted 34 transaction records, etc.; execution details of business promotion expenses; attachment of the head of Gun; visit to the ○○ hotel on June 11, 2004 and June 27, 2004; and the head of Gun related to the head of Gun on October 27, 2004 and December 15, 2004; and relevant relation to the schedule, etc. on November 16, 2004; and September 12, 2005)

【Criminal Records of Defendant 7 at the Time of Sales】

1. Criminal records and investigation reports (attached to defendant 7's judgment of acceptance of bribe);

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

A. Defendant 1, 4, and 5: Each of the Defendants 1, 4, and 5: Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 355(2), and Article 30 of the Criminal Act (the each of the breach of trust under paragraph (1) of the same Article, including each of the Defendant), Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 35(2), and Article 30 of the Criminal Act (each of the breach of trust under paragraph (2) of the same Article, including each of the Defendant

B. Defendant 2: Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 355(2) and Article 30 of the Criminal Act ( comprehensively including the violation of trust under paragraph (1) of this Article), Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 35(2) and Article 30 of the Criminal Act ( comprehensively including the violation of trust under paragraph (2) of this Article), Articles 133(1), 129(1) and 30 of the Criminal Act ( comprehensively including the violation of trust under paragraph (2) of this Article), Articles 133(1), 129(1) and 30 of the Criminal Act

(c) Defendant 3: Each of the Specific Economic Crimes Act (Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 355(2) and Article 30 of the Criminal Act (each of the misappropriation under paragraphs (1) and (2) shall be included in the sale, respectively)

(d) Defendant 6: Articles 133(1), 129(1), and 30 of the Criminal Act (the offering of a bribe, including the offering of a bribe, choice of imprisonment with prison labor)

(e) Defendant 7: Article 2(1)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 129(1) of the Criminal Act (the acceptance of bribe and, collectively, selection of limited imprisonment)

1. Handling concurrent crimes (Defendant 7);

Articles 37 (latter part) and 39 (1) of the Criminal Act [trade between the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) of the first head in which the above crime and judgment

1. Statutory mitigation (defendant 7);

The latter part of Article 39(1) and Article 55(1)3 of the Criminal Act

1. Aggravation for concurrent crimes (defendants 1, 2, 3, 4, 5);

(a) Defendant 1, 2, 4, and 5: the former part of Article 37 of the Criminal Act, Articles 38 (1) 2, and 50 of the Criminal Act [Aggravated Punishment, etc. of Specific Economic Crimes (Aggravated Punishment, etc. of Specific Economic Crimes (Aggravated Punishment, etc. of Specific Economic Crimes)]

(b) Defendant 3: the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (limited to concurrent crimes with punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) under paragraph (1) of the same Article which is heavier than the punishment);

1. Discretionary mitigation (Defendant 1, 2, 3, 4, 5, 7);

Articles 53 and 55 (1) 3 of the Criminal Code (The following circumstances are considered in favor of the reasons for sentencing)

1. Inclusion of days of pre-trial detention (Defendant 1, 2);

Article 57 of the Criminal Code

1. Suspension of execution (defendants 1, 3, 4, 5, 6);

Article 62(1) of the Criminal Code (The following circumstances considered as favorable among the reasons for sentencing)

1. Collection (defendant 7);

Article 134 of the Criminal Act

1. As to the assertion that the intention of breach of trust or the intention of unlawful acquisition was not made

A. Summary of the case

Defendant 1, 2, 3, 4, and 5 and their defense counsel are as follows: Defendant 1, 2, 3, 4, and 5 and their defense counsel have to seek a new profit model for the disposal of non-performing loans remaining in the mutual savings bank immediately after the time of the IMF remedy finance; as a way to create a large amount of profits by reducing the risks arising from the existing executor loan; and as a way to establish or take over a separate special purpose corporation on the basis of the relatives of the officers of the above bank, they would directly promote a real estate development project in the form of lending to the above corporation; since the above golf course project is expected to have more than 20 billion won when the completion of the golf course itself as well as the site itself, it was expected that the above Defendants promoted for the interest of the savings bank of non-indicted 1 as well as to promote the personal interests of the above Defendants.

In addition, the above Defendants received a report from Nonindicted Co. 6, a construction project management service company for the above golf course construction project from the beginning of the above golf course construction project, and conducted the above golf course project on the basis of the report that both Nonindicted Co. 35 and Nonindicted Co. 35 were able to conduct the above golf course project. Thus, the above Defendants did not intend to acquire the intent of breach of trust or unlawful acquisition.

(b) Fact of recognition;

According to each evidence of the judgment, the following facts are recognized.

1) Dogsung golf course project

(A) At the time of around April 2002, the above Defendants acquired Nonindicted Co. 17 as a way to handle large amount of non-performing loans held by Nonindicted Co. 1 with respect to Nonindicted Co. 17, and established Nonindicted Co. 6 by dividing Nonindicted Co. 17 in order to promote real estate business on April 26, 2002.

(B) Around November 2002, Defendant 6, who was a director of Nonindicted Company 6, confirmed that he was fit as a site for a golf course after introducing two documents in Ulsan-gun, Ulsan-gun, the two documents in Ulsan-do, and 950,000,000 from Ulsan-gun, and confirmed that he was fit as a site for a golf course, and then recommended Defendant 1 as a site for a golf course around that time.

(C) In accordance with Defendant 6’s proposal, the above Defendants resolved to operate the golf course business on the said site following the resolution of the said Bank Credit Deliberation Committee. At the time, the above Defendants did not undergo any legal review and feasibility review on whether the golf course business is possible in the said site and expected profits in addition to the confirmation of Defendant 6’s above advice, or confirming the land use plan issued by the head of the Ulsan-gu Gun. In addition, the above Defendants did not perform the said legal review and feasibility review on whether the golf course business is possible in the said site, and did not check the surrounding land tax assessment.

(D) At the time of December 6, 2002, the above Defendants purchased the above site from Nonindicted 14, who is the owner of the above site, to KRW 4.75 billion (hereinafter referred to as KRW 4959,000). According to the contract, the purchaser’s name is not the above bank, but Nonindicted 13, 2, 11, 12, and 3 (hereinafter collectively referred to as “five persons, including Nonindicted 13, etc.”), and the above real estate purchase price was obtained from the above bank under five persons, including Nonindicted 13, etc., and was paid, and completed the registration of ownership transfer.

(E) However, the above Defendants did not undergo the examination of the said Bank Credit Review Committee at the time of making a loan under the name of five, including the above non-indicted 13, etc., and in preparation for the audit, the said Defendants set up a collateral security on July 7, 2003 as to the 635,752 of the said site, which was part of the said site, and on December 30, 2004, as to the remainder of the said site.

(F) After that, the above Defendants entered into a construction management service contract with Nonindicted Co. 6 on December 29, 2003 for the establishment of the basic design and access road for the golf course with Nonindicted Co. 36 on December 29, 2003, and entered into a construction management service contract with Nonindicted Co. 6 on May 2004, and received a loan from the said Nonindicted Co. 13 in the name of five persons, including the above Nonindicted Co. 13.

(G) On March 2004, the above Defendants established Nonindicted Co. 5 Company as the executor of the above golf course business and received loans from Nonindicted Co. 5 in the name of Nonindicted Co. 5 and paid interest and other expenses including KRW 50 million monthly operating expenses.

After the decision of the above Defendants, Nonindicted Co. 5 purchased 427,085 square meters, which was determined as a site for a golf course from November 17, 2004, from five persons, including the above Nonindicted Co. 13, etc. In accordance with the advice of Nonindicted Co. 36 that the pertinent site would be adequate when the authorization date for a golf course would be 6 to 70,000 won, and decided to KRW 55,618 without confirming the price of surrounding land.

(h) Around September 2004, Nonindicted Co. 6 submitted to the said Defendants a business plan containing the business plan, the analysis of water supply, etc. of the Dogsung golf course in the name of Nonindicted Co. 5.

(i) Around April 2005, Defendant 6 submitted a proposal to formulate an urban management plan to the head of Ulsan-si, and on May 13, 2005, the head of Ulsan-si recommended the Ulsan-si Metropolitan City Mayor to revise the basic urban planning. However, on July 13, 2005, the Ulsan-si Metropolitan City Mayor notified the head of Ulsan-do Gun that he would not modify the basic urban planning because he was unable to construct a golf course on the said site.

(ii) A grogtic golf course business;

(A) Around August 2002, the above Defendants decided to operate a golf course business in the above site with the advice of Nonindicted 8, Defendant 4, the branch of Defendant 4, to the effect that it is appropriate that the 125-1 and 300,000,000,000 square meters from the Gesung-dong, Gidong, Gidong, Gidong-dong, Gidong-dong, would be a site for the golf course.

(B) In accordance with the proposal of Nonindicted 8 that the said Defendants may purchase the land at a level of KRW 45,00 per deliberation that is lower than that of other golf courses in the course of the purchase of land, the said Defendants only determined the price per deliberation by Nonindicted 6 Company after consultation, but did not undergo any other verification procedures for the price per deliberation, and there was no other examination on the feasibility of the said golf course at all.

(C) The above Defendants, without undergoing the examination of the above Bank Credit Review Committee, purchased the amount received by causing a security loan in the name of Nonindicted 3, etc. as purchase price, and completed the registration of transfer of ownership in the name of the above Nonindicted 3, but did not set up a mortgage on the above site for the security of the above loan. However, on April 7, 2005, only three parcels among them were set up as a collateral.

(D) On June 15, 2004, the said Defendants were notified of the results of the feasibility of the said golf course site by Nonindicted Co. 35 established by said Nonindicted Co. 8 on June 15, 2004.

C. Determination

In general, the intention of the crime of occupational breach of trust or the intention of unlawful acquisition is established when it is combined with the perception that the person who deals with another's business would inflict property damage on the principal and that the intention of the person himself/herself or a third person's pecuniary gain is in violation of his/her duty, and such subjective element of the crime of occupational breach of trust (such as intention, motive, etc.) is a subjective element of the crime of occupational breach of trust in a case where the defendant asserts that he/she committed an act at issue for the principal's interest and denies his/her criminal intent, it is inevitable to prove by the method of proving indirect facts that have considerable relevance to the intention due to the nature of the object, and what constitutes indirect facts that have considerable relevance should be determined by the method of reasonably determining

6. In light of the following circumstances, the Defendants’ direct use of the above construction site by taking over the existing Nonindicted Co. 17 to promote the said real estate development project without prior approval from the Financial Services Commission, and the fact that the said Defendants did not directly own the land for non-indicted Co. 3’s construction business under the Act on the Structural Improvement of the Financial Industry, and the fact that the said Defendants’ direct use of the land for non-indicted Co. 4 was impossible. The Defendants violated Article 18-2 subparag. 2 of the Act on the Structural Improvement of the Financial Industry by taking over the land for non-indicted Co. 5’s construction site for non-indicted Co. 4 and the construction site for non-indicted Co. 4, 200, on the ground that the above Defendants’ construction site for non-indicted Co. 4 and the above construction site for non-indicted Co. 5 were non-indicted Co. 4 and the construction site for non-indicted Co. 5’s construction site for non-indicted Co. 4 and the construction site for non-indicted Co. 4, Ltd.

2. As to the assertion that it does not constitute an act of breach of duty

A. Summary of the case

Defendant 1, 2, 3, 4, and 5, the above defendants and their defense counsel came to know about the present situation of the above site through several site answers after soliciting the purchase of the above site site in Dolsan City. After having received a review report on feasibility from Nonindicted Co. 6 and conducted an internal review and legal review, they could not be confirmed at the time that the above site was designated as a white village natural park. Although the above defendants' land utilization plan confirmed by the above defendants could not be confirmed at the time the above site was designated as a white village natural park, the above golf course project is still feasible because it is not completely impossible to cancel the designation of the natural park in Ulsan Metropolitan City Mayor, and the above site was purchased from Nonindicted Co. 8 to purchase the above site in Masan-gun, and the business feasibility was examined based on the official document stating that the above site is appropriate for the golf course project. In addition, the above defendants purchased the site in the name of another person in lieu of the bank, and received all necessary documents from the registered titleholders and did not complete the act of collateral security at the bank.

B. Determination

In light of specific circumstances, such as the content and nature of the duties performed in breach of trust, the act of breach of trust refers to any act that does not perform as a matter of course an act that is expected to have to be performed, or is expected not to perform as a matter of course, under the provisions of statutes, the terms of a contract, or the principle of trust and good faith (see, e.g., Supreme Court Decisions 94Do902, Sept. 9, 1994; 2004Do810, Jul. 9, 2004). Whether a certain act constitutes an act of breach of trust shall be determined depending on whether such act deviates from the scope of ordinary business performance in light of the principle of trust and good faith, depending on the nature and content of the relevant duties, specific roles and status of the executive, and specific circumstances at the time of the act (see, e.g., Supreme Court Decision 2007Do6075, Nov. 15, 2007).

With respect to this case, since the above defendants' act of using loans from the above nominal holders and non-indicted 5 stock companies with the name of the above nominal holders and non-indicted 5 stock companies in the name of the above nominal holders in order to carry on the golf course construction business, the above defendants' act of appropriating loans from the above nominal holders and non-indicted 1 savings banks to the golf course business funds has the substantial investment, the form and form of loan, and therefore,

1) Review in terms of investment

The following points are as follows: ① the above Defendants, as executives and employees of the mutual savings bank, committed an act in violation of each of the above Acts in order to directly operate the golf course construction business despite their occupational duties to comply with the Mutual Savings Banks Act, the Act on the Structural Improvement of the Financial Industry, and the Act on the Registration of Real Estate under Actual Titleholder’s Name; ② the illegal operation of the golf course construction business as above, did not sufficiently examine the feasibility of the business based on objective data in advance. In particular, in the case of the cereale golf course, it was easily determined that the purchase price of the site was low compared to other golf courses in its surroundings; ③ the above Defendants were examined the feasibility of the non-indicted 6 and the non-indicted 35 companies in purchasing the golf course site, but the non-indicted 6 companies and the non-indicted 35 companies were also their employees who recommended the purchase of the site to whom the above Defendants were established, and were more fair and objective as a result of the examination of the above facts that the above Defendants did not have been paid to the above non-indicted 5 companies’s special purpose.

2) Review on loan terms

As seen above, the following points are as follows: ① the above Defendants, as executives and employees of a mutual savings bank, did not go through a proper review of the financial status or financial structure of the applicant for loans, repayment ability, and feasibility of the business that the applicant intends to implement as a matter of course; ② the establishment of collateral security according to the rate of establishment of collateral limit, the procedures for investigating the value of collateral (appraisal, on-site investigation, verification of survey price, and examination of collateral) and the internal control regulations that stipulate that the above Defendants shall comply with the above regulations, and the amount exceeding KRW 17.7 billion for the Malsung golf course business; ③ the above Defendants did not immediately lend the above amount exceeding KRW 3.6 billion for the Malsung golf course business to the above employees of the above Defendants; ③ the above Defendants did not take such measures despite the fact that the above Defendants did not have been using the new loan for the purpose of securing loan obligations, even if they did not know whether the new loan was used for the purpose of the loan or not; ④ the above Defendants did not fully use the above new loan to the above 5000-party basic urban planning.

Therefore, the above defendants and their defense counsel's above assertion cannot be accepted as it appears to be just and reasonable.

3. As to the assertion that no damage had occurred

A. Summary of the case

The above Defendants and their defense counsel asserted that even if the above Defendants used the loans as land purchase cost, corporate operating cost, access road cost, design cost, construction project management cost, etc. while running a golf course business, such cost is essential for running a golf course business or for reducing the risk of the golf course business, so long as the amount is not unfairly excessive, it cannot be deemed that the Defendants’ use of loans for the above purpose alone did not cause damage. Furthermore, since the above Defendants’ use of loans for the above purpose is not only high profitability but also it is anticipated that the profits would increase in the price of the land to be purchased as the site of the golf course and then the profits would be higher than 20 billion won if the golf course is completed after the end, it would not cause damage to Nonindicted 1 Savings Bank due to the promotion of the golf course business of the above Defendants.

B. Determination

In the crime of occupational breach of trust, the term "as to inflict property damage on the principal" means the case where a person inflicts property damage on the principal in general, i.e., the decrease of the principal's property value, which includes not only the case where the person actually inflicts property damage but also the case where the risk of actual property damage has been incurred, and the determination of whether the property damage occurred or not must be based on legal judgment and from an economic point of view (see Supreme Court Decision 2004Do5742, Mar. 15, 2007, etc.).

As seen earlier, as to the instant case, the Dogsung Golf Site has not only the National Land Planning and Utilization Act, but also the regulations on the determination, structure and installation standards of urban planning facilities, the Installation and Utilization of Sports Facilities Act, the Enforcement Decree of the same Act, and the conditions of location that make it impossible to construct a golf course, and thus, it is impossible to proceed with the construction of a golf course. In the case of Magsung Golf Site, a specific project plan is not established and neglected without examining the feasibility of the project. In light of the fact that most of the instant site were sold to a third party, the said Defendants’ act of breach of their duties, as seen earlier, are caused by the above Defendants’ act of violation of their duties, and thus, the said Defendants’ assertion that the said Defendants’ act of violation of their duties, which led to extremely falling short of the total amount of loans specified in the list of crimes (17,779,636,573 won, the Magsung golf course business, and the said Defendants’ defense counsel and their defense counsel were not accepted.

4. As to the assertion that the beneficial owner as stated in the attached list of crimes (1) and (2) did not obtain property benefits

A. Summary of the case

The above Defendants and their defense counsel asserted that the profit acquisitors listed in the annexed Table (1) and (2) are either the parties to the transaction dealing with the balance between the benefits and the consideration, and they did not receive the unduly excessive amount of money, so they do not gain any pecuniary profit from the act of breach of duty of the above Defendants, and therefore, they do not constitute a crime of breach of trust against the above Defendants.

B. Determination

In a case where the crime of occupational breach of trust is established due to bad loans, the amount borrowed in excess of the value of the collateral or the amount actually impossible to recover shall not be deemed as the amount of damage, and the total amount of loans likely to cause the impossibility of exercising the right to property or to cause the risk of damage shall be deemed as the amount of damage. If a third party acquires it, the total amount shall be deemed as falling under the property value that the third party has acquired (see Supreme Court Decision 2000Do28, Mar. 24, 200, etc.).

With respect to this case, the term "property gains" refers to the formation of a more favorable property status than the whole property status. The property losses incurred to a mutual savings bank due to the act of breach of trust by the above Defendants are equivalent to the total amount of loans in the annexed crime list (1) and (2) as seen above. Meanwhile, according to Defendant 4's statement and investigation report (the calculation of the amount of breach of trust among the current status of loans and the details of the use of loans, and the disbursement of the nominal holders after July 7, 2003), each of the above amounts can be recognized as having been paid to the persons to whom the above amounts are attributed, through the form of loan, through the annexed crime list (1) and (2). Thus, each of the above nominal parties shall be deemed to have acquired property gains due to the act of breach of trust of the above Defendants, regardless of the balance between the contents of consideration or benefits and the balance of the above amounts.

Therefore, the above defendants and their defense counsel's assertion on the premise that the property interest as stated in the crime of breach of trust is an unreasonable difference between payment and consideration is without merit.

Defendant 4 and 5 and their defense counsel asserted that the part concerning the amount of KRW 254 million (attached Form 258-268, 270, 271) offered as a bribe to Defendant 7 among the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) against the above Defendants is irrelevant to the above Defendants, so this part does not constitute a crime of breach of trust against the above Defendants (Provided, That the defense counsel of Defendant 3 also asserted the same purport with Defendant 3, but it is obvious that the above part is not included in the charges of breach of trust against Defendant 3, and therefore, it is not judged separately as to the above argument).

Therefore, according to each prosecutor's interrogation protocol against the above Defendants, unlike Defendant 2 and Defendant 1, Defendant 4 and Defendant 5 did not know that the above total amount of KRW 254 million would ultimately be offered as a bribe to Defendant 7. However, it is recognized that Defendant 4 and Defendant 5 did not have known that the above amount would be ultimately offered as a bribe. However, it was recognized that Defendant 6 loaned a loan equivalent to the above amount with the knowledge that it would have been used as operating expenses or civil petition expenses of Nonindicted Company 6 after giving a loan for the golf course business in the form of Do account account. Thus, the above Defendants should be deemed to have committed a crime of breach of trust as seen in the above part. Since the above loans were used for any purpose other than operating expenses of Nonindicted Company 6, it cannot be denied the establishment of a crime of breach of trust merely

Therefore, the above defendants and their defense counsel's above assertion is without merit.

Defendant 2, 6 and their defense counsel demanded a bribe of KRW 300 million to the above Defendants on the grounds that the head of Ulsan Gun, who can exercise a huge influence over the revision of the basic urban planning and the approval of a golf course business in the above golf course business. At the time, the above Defendants were unable to comply with the above demands of the head of the Ulsan Gun, and thus there was no possibility of expectation for not giving a bribe. However, even if the head of the Ulsan Gun first demanded a bribe, it cannot be said that there was no possibility of expectation for refusing to give a bribe solely for the above reasons. Thus, the above Defendants and their defense counsel's above arguments are without merit.

Defendant 6 and his defense counsel asserted that, at the time of the offering of the above bribe, Defendant 6 was the representative director of Nonindicted Company 6, a special purpose corporation established by Nonindicted 1 Savings Bank at the time of the offering of the bribe, who was in accordance with the direction of the officers of the above bank. Defendant 7’s demand was delivered to Defendant 1, 2, etc., and there was no agreement with the above Defendants on the offering of the bribe. The above Defendants merely served as a joint principal offender for the offering of the bribe in that amount.

In the case of co-offenders who jointly process two or more persons in a crime, the conspiracy is not legally required, but is a combination of two or more persons to jointly process a crime and realize the crime. Even if there was no master process, if there was a combination of intentions in the order of priority or secret, and the combination of intentions is established (see Supreme Court Decision 2007Do11258, Apr. 24, 2008, etc.).

According to each prosecutor's examination protocol on the offering of a bribe against Defendant 7, 2, and 6, around April 2004, Defendant 6 was discussed a way to inform Defendant 1 of the fact that Defendant 7 first was requested to grant KRW 300 million in relation to the authorization of a golf course from Defendant 7 and to pay the above amount at the end of the year. After that, Defendant 7 demanded re-payment around September 2004, Defendant 6 did not directly offer the money to Defendant 2 on the front place with Defendant 2, "at the golf course permitting authority but going through the head of Ulsan City," and Defendant 2 was to prepare and pay the above money to Defendant 1. After that, Defendant 1 did not directly offer the money to Defendant 6 to Defendant 2 in relation to the above crime list (1) No. 258-268, 270, 271, and Defendant 2 did not directly offer the money to Defendant 7 and Defendant 2, who did not directly offer the money in the form of a bribe to Defendant 6.

1. Defendant 1, 2, 3, 4, 5;

(a) Common matters:

A mutual savings bank shall contribute to the development of the national economy by promoting the financial convenience of ordinary people and small and medium enterprises, protecting its customers, and maintaining order in credit in accordance with the purport of Articles 1 and 11 (4) of the Mutual Savings Banks Act, and shall not engage in any business other than the business listed in Article 11 of the Mutual Savings Banks Act without permission, and shall obtain approval from the Financial Services Commission if it intends to own stocks of other companies in excess of a certain ratio under Article 24 (1) of the Act on the

However, the above Defendants, as officers and employees of the savings bank 1, intended to establish a special purpose corporation with their relatives or spons as its executives in violation of the relevant Acts, and directly run the golf course business. The examination of feasibility of the golf course was conducted without properly examining the feasibility of the golf course, in fact, by purchasing the site of the golf course in a place where it is impossible to construct the golf course, and spent only all of the expenses incurred in promoting the golf course construction business in an unreasonable manner. Since the 21.3 billion won invested in the above golf course business, all of them used the deposits of the customers of the savings bank 1 savings bank by taking the form of loans, property damage caused by the failure of the golf course was high, and thus, the savings bank 1 savings bank came to leave.

In light of the purpose, details and nature of the act of breach of trust of this case, the number of the amount of breach of trust, social strike resulting therefrom, morality required for officers and employees of financial institutions, etc., the crime of this case is deemed to be very poor, and in the case of the appearance of the appearance of Non-Indicted 1 Savings Bank, which is likely to be shown recently, the statement of intention that is not hidden, such as this case, should be made.

In addition, although the essence of the instant case is not a financial institution’s insolvency loan to its officers and employees, but a financial institution’s officers and employees were engaged in business affairs for the purpose other than the establishment of a special purpose corporation, and they were engaged in extremely poor and insufficient business affairs, the said Defendants took the attitude of denying the performance of business affairs and the establishment of various special purpose corporations, unlike in the instant case. Non-Indicted 5, etc. of Non-Indicted 1 Savings Bank was caused by the Defendants’ breach of trust in this case, and the subsequent criminal trial was in progress on March 18, 2009, taking advantage of the government’s mutual savings bank relief policy, up to 80% price of the amount of claims to the Korea Asset Management Corporation.

Therefore, the above Defendants cannot be subject to strict punishment.

(b) Individual matters;

1) Defendant 1

As a director in charge of lending Nonindicted 1 Savings Bank, the class is lower than that of Defendant 2, 3, 4, and 5; rather than determining all matters concerning the golf course business in a leading position, the practical person who has been engaged in various business according to the direction of Defendant 2, etc., who is a superior, is relatively minor and the degree of participation is relatively insignificant; and all kinds of sentencing factors in the trial of this case, including the above Defendant’s age, character and conduct, environment, career, motive, means, means, results, and circumstances after the crime, etc., are determined as ordered.

2) Defendant 2

It is recognized that there is no particular criminal history for the bribe offering part of this case, and all mistakes and reflects the fact that the principal established a pledge on the shares and deposits of the non-indicted 1 Savings Bank in order to secure the liability for damages arising from the crime of the violation of trust in this case, and that the defendant led the external formation of the non-indicted 1 Savings Bank. The above defendant is the principal shareholder of the non-indicted 1 Savings Bank and the vice president of the above Bank before November 2003. Since the above defendant is the representative director of the above Bank, who is the company of the above Bank, is involved in the golf course business plan of this case, which is for the purpose other than the mutual savings bank's business, and is involved in the execution of various funds for this purpose, the degree of illegality among the above defendants is the largest among the above defendants. The above defendant takes part in providing large amount of bribe to the head of Ulsan-do for the purpose of promoting the golf course project, and all of the sentencing elements of this case, such as the defendant's age, character, environment, career, career, motive, means, result, etc.

3) Defendant 3

Until November 25, 2003, when the non-indicted 1 Savings Bank held office as the representative director of the non-indicted 1 Savings Bank, it was located in the position to lead the crime of this case, but thereafter, the representative director was resigned from the position and did not participate in the crime of this case since he was responsible for the commission of the crime of this case, so the amount of breach of trust is considerably small compared to the other defendants, since there was no participation in the crime of this case, the investigation agency has taken the attitude that he will be responsible for his mistake and negligence, the establishment of pledge rights to the stocks and deposits of the non-indicted 1 Savings Bank held by himself to secure the liability for compensation for damages arising from the crime of this case, and all other sentencing factors indicated in the trial of this case, such as the above defendant's age, criminal record, character and behavior, environment, career, motive, means, consequence,

4) Defendant 4

As the chairman of the Savings Bank’s Credit Review Committee, Non-Indicted. 1 made a significant contribution to the purchase of the site of the golf course by recommending the nominal lender necessary for the purchase of the site of the Doggsung Bank to other Defendants, and informing the other Defendants of the solicitation, etc. of the purchase of the site of the Magsung golf course, and above all, it appears that the degree of participation in the instant crime is high, and that this court has the attitude of denying its responsibility by asserting that all the financial expenditure is in the form of loan, and that there is no responsibility for them in this court. However, there is no particular criminal power, on the other hand, there is no specific criminal power, a pledge is established on the deposit of the Savings Bank of Non-Indicted. 1, which is owned by himself to secure the liability for damages caused by the instant crime, and all the sentencing factors indicated in the instant trial, such as the Defendant’s age, character, environment, career, motive, motive, means, consequence, and circumstances after the instant crime, etc.

5) Defendant 5

The auditor of the non-indicted 1 Savings Bank is aware of the duty of care to monitor and correct the illegal performance of duties by other officers, and rather, it appears that the special purpose corporations of the above Bank actively participate in the illegal acts of other Defendants, such as recommending their relatives as officers of the special purpose corporations of the above Bank, participating in the Credit Review Committee, which is the policy-making body of the non-indicted 1 Savings Bank, and not entirely opposing the golf course business promotion. However, on the other hand, in order to secure the liability for compensation for damages arising from the crime of this case, a pledge is established on the shares and deposits of the non-indicted 1 Savings Bank held by himself, and all the sentencing factors indicated in the trial of this case, such as the above defendant's age, character, character, criminal records, criminal records, career, motive, means, consequence, and circumstances after

2. Defendant 6

Defendant 6, who notified Defendant 2, etc. of the fact that Defendant 7's demand for bribe and delivered a bribe prepared by Defendant 2, etc. to Defendant 7, is relatively minor, and Defendant 6 appears to have been in a position where it is difficult for Defendant 2, etc., the representative director of the above bank, and Defendant 7, the head of Ulsan-do, who is the representative director of the above bank, to refuse the above illegal instructions and demands, as an executive officer of the above bank established by the savings bank to run the golf course business. In addition, the above Defendant's age, character and behavior, environment, career, motive, means, consequence, etc. of the crime, all the sentencing factors indicated in the instant trial, including the above Defendant's age, character and behavior, environment,

3. Defendant 7

Defendant 7, as the head of Ulsan-gun, who heard the business explanation of Dogsung golf course located in Ulsan-gun from Defendant 6, actively demanded a bribe of KRW 300 million at the expense of authorization and permission by taking advantage of his status as the head of Ulsan-gun, Defendant 7, who received the bribe as above, demanded the public official in charge to make a change in the basic urban planning to the effect that he excluded the site of Dogsung-gun from the area of Dogsan natural park. Defendant 6, in the course of receiving several bribes from Defendant 6, if it becomes a problem after the next, he was signed with Defendant 6 to take up the loan certificate. In particular, Defendant 7 should be punished by a severe punishment corresponding to the statutory penalty (a life imprisonment or imprisonment with prison labor for more than 10 years) in light of the fact that Defendant 7 received a bribe with high amount of money as a high-ranking public official with a high-ranking official with the nature of business performance of Dog Ggsung-gun golf course business.

However, on the other hand, on February 5, 2008, Defendant 7 was sentenced to imprisonment with prison labor for 6 years for the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, and the above judgment has become final and conclusive, and the above Defendant has not improved health conditions as an old age of 68 years, all of the crimes in this case have led to confession of all of the crimes in this case and reflect his mistake. Since the crime in this case is related to concurrent crimes under the latter part of Article 37 of the Criminal Act with the above violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) for which judgment has already become final and conclusive, Defendant 7 must simultaneously take into account all the factors of sentencing in this case, such as character, character, environment, career, motive, means, consequence, circumstance after the crime, etc., and make a decision as ordered after mitigation and mitigation by law.

1. Summary of the facts charged

Defendant 2 and Defendant 1, as an executive officer or employee of the Savings Bank, are prohibited from directly running a golf course construction business after having provided money to a mutual savings bank in violation of the Act on the Registration of Real Estate under Actual Titleholder’s Name, and having purchased land by seeking a name holder. Even if the said bank’s principal duty is to lend money to an enterprise which will build such a golf course, it is necessary to take appropriate measures to secure bank funds when it is recognized the validity of the golf course construction business by prior to the investigation of the feasibility of the golf course construction business, including whether the purchase price of the site for the head of the aggregate department is appropriate, and the construction and operation of the golf course

Nevertheless, Defendant 2 and 1 violated their occupational duties, and committed a total of KRW 254,00,000 in total over 13 occasions from the above date to September 9, 2005, as shown in the attached Table of Crimes (3) in the form of lending KRW 5,00,000 to Defendant 7, the head of Ulsan-gu at the time, in order to offer it as a bribe to Defendant 1 in relation to the cancellation of the designation of a natural park and other authorization and permission for a golf course as to the land of △△△ Group in violation of the said occupational duties. Accordingly, Defendant 2 and 1 conspired to obtain profits equivalent to the above aggregate amount to Defendant 7 in violation of their occupational duties, thereby incurring damages equivalent to the above aggregate amount to the above bank.

2. Determination

As seen above, Defendant 2 received a report from Defendant 1 that Defendant 7 demanded a bribe and directed Defendant 1 to pay a bribe by finding out funds. Accordingly, Defendant 1 prepared a loan to five persons, including the above Nonindicted 13, etc., by dividing the amount of KRW 254 million, and then delivered it to Defendant 7.

However, the above Defendants are expected to be easy to cancel the designation of the natural park on the site of Dogsung golf course and paid a bribe to Defendant 7 with the money of the mutual savings bank. Thus, the above Defendants cannot be acknowledged as having committed a crime of breach of trust in addition to the crime of offering of a bribe, and there is no other evidence to acknowledge it (However, upon the prosecutor’s indictment, the crime of offering a bribe to Defendant 2 was found guilty as seen above).

Therefore, since the above facts charged constitute a case where there is no proof of crime, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, but as long as it is found not guilty of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

[Attachment]

Judges Choi Young-young (Presiding Judge)