Defendant

Defendant

Yong-Nam

Attorney Mai-si et al.

Seoul Central District Court Decision 2005Gohap1138-1 (Separation), 2006Gohap227 (Consolidation), 2006Gohap547 (Consolidation) Decided February 9, 2007

The defendant's appeal is dismissed.

One hundred forty-five days out of the number of days under confinement before the pronouncement of this judgment shall be included in the imprisonment of the original judgment.

Of the judgment of the court below, the facts constituting the crime in paragraph (2) of the same Article shall be corrected to the following third "round December 21, 2001," "round December 20, 2001."

1. Summary of grounds for appeal by the defendant;

A. Error of mistake

(1) Criminal facts No. 1 of the judgment of the court below

After receiving a loan of KRW 4 billion from Nonindicted Co. 11 in the name of Nonindicted Co. 10, the Defendant lent KRW 500 million to the co-defendants of the first instance court (the co-defendants of the first instance court judgment) who were the representative director of the said Nonindicted Co. 11 Co., Ltd. in the name of the said Nonindicted Co., Ltd., on the ground that the money is urgently needed. However, the Defendant did not grant KRW 500 million

(2) Criminal facts of the judgment below

The Defendant did not receive KRW 200 million from Nonindicted 2 as a loan honorarium, but only borrowed KRW 500 million including KRW 200 million.

(3) Criminal facts of the judgment below

(A) Criminal No. 3-A

The Defendant delegated the work of issuing new shares to a company specializing in licensing to Nonindicted 3, thereby executing the work by the said company. As such, the Defendant did not know the specific facts, and did not cause damage to Nonindicted 3 Company.

(B) Facts constituting the crime No. 3-B

The lending of KRW 1 billion to Nonindicted Co. 3 Co. 12, 13, and 14 respectively is not an embezzlement of Nonindicted Co. 3’s corporate funds to raise funds for capital increase with a view to a normal transaction that has gone through both the board of directors’ resolution and the disclosure obligation, and the Defendant’s offering of capital increase with respect to Nonindicted Co. 8

(C) Criminal 3-C.

On January 28, 2004, the Defendant was aware of the fact that he lent KRW 400 million to Nonindicted Co. 3 Co. 15, and if there was such fact, Nonindicted 4, the Defendant’s letter, was killed in the Defendant.

(D) Facts constituting the crime No. 3-E

The defendant purchased a certificate of deposit equivalent to KRW 3.5 billion on March 2, 2004, KRW 1 billion on the same month, KRW 50 million on the 23th of the same month, and KRW 3.5 billion on the 23th of the same month, and borrowed KRW 3.5 billion on the 3.5 billion on the 3rd of the same month. However, with respect to the payment of interest on the 3rd Co., Ltd. with the 3rd Co., Ltd., the defendant was in a normal account in the form of provisional payment against the defendant. The specific tasks were executed by Nonindicted Co. 4, and the defendant was found to have been only when he sells and settle the 3rd Co., Ltd.

(4) Criminal facts of the judgment below

The loan to 14 enterprises in the facts stated in the judgment below, which the court below recognized as an investor loan, is not a normal loan to these enterprises and is not an investor loan, and even if the company borrowed a certain amount of money again from these enterprises after the loan was made, it is merely merely a normal transaction between individuals.

(5) Criminal facts of the judgment of the court below

The promissory note under paragraph (7) of the facts stated in the judgment of the court below is that Nonindicted 16, the actual owner of Nonindicted 9 Co., Ltd., issued a promissory note and delivered it to Nonindicted 17 in the Defendant’s seat, and the Defendant is not arbitrarily issued

B. Unreasonable sentencing

In light of the overall circumstances, the sentence of the court below that sentenced the defendant five years of imprisonment is too unreasonable, considering the fact that most of the criminal facts in the judgment of the court below found the defendant guilty, even if all or part of the criminal facts in the judgment of the court below are found guilty, the defendant has no personal benefit, all of the funds withdrawn from the non-indicted 3 corporation have been repaid, there is no real loss, and the crime related to the non-indicted 8 corporation was derived from the unreasonable investigation and administrative disposition by the financial authorities against the above non-indicted 8 corporation.

2. Determination on the grounds for appeal

A. Judgment on the assertion of mistake of fact

As to the defendant's assertion of misunderstanding of facts (the defendant did not claim misunderstanding of facts as to paragraph (4) of the facts stated in the judgment of the court below in the statement of grounds for appeal, but this issue also is also viewed as a ground for appeal since he or she contests

(1) Criminal facts No. 1 of the judgment of the court below

According to the evidence duly adopted and examined by the court below, on June 28, 2001, the defendant delivered a reward of KRW 500 million to the co-defendant of the court of first instance, the representative director of the non-indicted 11 corporation, to the co-defendant of the non-indicted 11 corporation in the name of the non-indicted 11 corporation, and it can be fully recognized that the whole amount of KRW 500 million was given as a honorarium. Thus, the judgment of the court below which found the defendant guilty of this part of the facts charged is just, and

(2) Criminal facts of the judgment below

(A) In relation to this part of the facts charged, Nonindicted 2, who is a money provider, made a statement that corresponds to the facts charged at the prosecutor’s office continuously, and in particular, made a statement that corresponds to the prosecutor’s main examination in compliance with the prosecutor’s main examination even though he was a witness at the court of original trial (However, from the time of the continuous attorney’s cross-examination, he stated to the effect that “the direct defendant was requested to change KRW 200 million as a loan honorarium,” and that “the statement that he was given to the defendant as a loan honorarium is attributable to the misunderstanding that he was made, and that KRW 300 million as a check was delivered to the defendant, and KRW 200 million as a check was delivered to him in cash.” Meanwhile, the defendant stated to the effect that “the amount of KRW 300 million,000,0000 which he borrowed from Nonindicted 2 under the name of Nonindicted 18 Company, as a check, and the Defendant did not receive KRW 200,000,00.”

(B) However, in full view of Nonindicted 2’s statement that Nonindicted 4 and Nonindicted 2’s statement were insufficient to reverse Nonindicted 2’s statement at the prosecution’s office and that Nonindicted 2’s statement that was issued to Nonindicted 4 and Nonindicted 2’s statement, the Defendant did not appear to have borrowed KRW 200 million from the Seoul Central District Prosecutor’s Office, and Nonindicted 8’s statement that was issued to Nonindicted 2, 300,000,000,000 won, and the Defendant’s statement that was issued to Nonindicted 2,000,000,000 won, based on the Defendant’s statement that was 40,000,000 won, and the Defendant’s statement that was issued to Nonindicted 2,000,000 won, which was 10,000,0000 won, was delivered to Nonindicted 3,000,000 won, and the Defendant’s statement that was 10,000 won,00 won.

(3) Criminal facts of the judgment below

(A) 3-A and B-B of the facts of the crime

According to the evidence duly admitted and examined by the court below, it can be sufficiently recognized that the defendant committed the embezzlement under Article 3-1 (a) and (b) of the criminal facts in the decision of the court below in collusion with the employees of non-indicted 3 corporation. Thus, the defendant's assertion of mistake of facts

(B) Facts of crime 3-C

The Defendant alleged that there was no fact that he had been involved in the embezzlement of Nonindicted Co. 3 in the above KRW 400 million loan type for Nonindicted Co. 45. However, according to the evidence duly adopted and examined by the lower court, the Defendant and Nonindicted Co. 4 embezzled KRW 3 billion for capital increase with consideration for Nonindicted Co. 3 around December 2003, and sought repayment method. The Defendant borrowed KRW 500 million from Nonindicted Co. 3 40,000,000 to treat the above embezzlement amount as repayment. The above KRW 400,000,000 was arbitrarily withdrawn from the Defendant’s funds for Nonindicted Co. 4 in order to repay the above loan amount (the external form was returned to Nonindicted Co. 3’s KRW 400,000,000,000,000 for KRW 500,000,000,0000,000,000 won, which was not known to Nonindicted Co. 3, 3 and 4000.

(C) Facts No. 3-E

According to the evidence duly admitted and examined by the court below, the defendant borrowed funds from the bond company company as collateral with negotiable certificates of deposit purchased by embezzlement of the company funds of non-indicted 3 Co., Ltd. as stated in paragraph (d) of Article 3 of the criminal facts of the judgment below, and embezzlement using the defendant's personal purpose such as interest on the above borrowed money as stated in paragraph (3) E of the criminal facts of the judgment below is sufficiently recognized.

Although the defendant asserts that he did not know the specific details of withdrawal of company funds, in light of the above criminal facts No. 3-D., if the defendant borrowed funds from the bond company company as collateral with negotiable certificates purchased by embezzlement of company funds as stated in the above criminal facts, the payment of interest is naturally expected, and Non-Indicted 4 stated in the prosecutor's office that "in any case, the defendant first issued an order to execute it, and then reported it to him, but all of the defendant was used for the defendant's individual" (Seoul Central District Prosecutor's Office 2005-No. 13016-No. 1277-1279). In the court of the court of the court below, the defendant stated that "It was dealt with with with the defendant's daily order, although it was not ordered by the defendant," it is sufficient to find this part of the facts charged as guilty, and it is not affected by mistake of facts as long as the defendant used a large amount of company funds for the defendant's representative director's use.

(4) The point of occupational breach of trust in the crime No. 4 of the judgment below

According to the prosecutor's statement, Nonindicted 4, 20, 21, and 22, the prosecutor's statement, the prosecutor's statement, and the prosecutor's statement of Nonindicted 23, and the evidence duly adopted and examined by the court below, each of the loans except for the loans to Nonindicted 24 out of each of the loans listed in the list of crimes 1 in the court below's holding is reasonable, and the defendant, who is the majority shareholder and the chairperson of the Nonindicted 8 Corporation and is the chairperson of the other company (Nonindicted 25,26,27), or a relative company (Nonindicted 28,29), or a nominal company (Nonindicted 13), and used the loans for personal purposes, and divided the loans from the lending company and the defendant and the non-indicted 1 to use them for a large amount of loans (Nonindicted 30, 31,32) or 300 million won for the actual operation of the loans by the defendant (Nonindicted 34), and there is no violation of law in collusion between the defendant and the non-indicted 1 corporation without any specific instruction or explanation of loans.

(5) Violation of the Mutual Savings Banks Act under Articles 4 and 5 of the facts charged in the judgment below

(A) Article 37(1) of the former Mutual Savings Banks Act (amended by Act No. 8522 of Jul. 19, 2007) provides that a mutual savings bank shall not grant a loan or pay a provisional payment to an investor (limited to a person holding at least the percentage prescribed by Presidential Decree out of the total number of outstanding voting shares). Article 39(2)2 provides that a person who violates the provisions of Article 37(1) and an investor who has received a loan or a provisional payment from another person shall be punished. Here, the issue of whether a loan constitutes a loan to an investor is likely to be granted to an investor with a close relationship with a mutual savings bank without considering the credit or collateral. In light of the purpose of prohibiting a loan from being granted to an investor, the loan shall be determined on the basis of the person to whom it actually belongs (Article 2 subparag. 5 of the same Act provides that a loan or provisional payment made in violation of the provisions of Article 37 shall also be deemed to belong to another person under his/her name, etc.

(B) According to the evidence duly admitted and examined by the court below, each investor loan under Articles 4 and 5 of the facts charged in the judgment of the court below is sufficiently recognized, since the defendant (the defendant and the non-indicted 1) 5 of the crime Nos. 1-5 and 2-5 of the crime sight table 1 and the crime sight table Nos. 1 and 5 of the crime day Nos. 2 of the crime day table 1 and 1-5 are confirmed to have received a loan through a prior consultation to use a part of the loan as the actual borrower from the beginning or between the loan company and the name of the loan company as the actual borrower. Thus, the court below's decision that found the defendant guilty of all the facts charged is just and there is no error of mistake of facts as alleged by the defendant (the defendant used the loan in the case of non-indicted 25 and 27, as the above company was used by the above company. However, according to the evidence duly adopted and investigated by the court below, since the above company is recognized as the defendant's company actually owned, the above company, it does not fall under reasons.

(6) Criminal facts No. 7 of the judgment of the court below

In light of the records, the court below acknowledged the fact that the defendant had a director in charge of financial affairs of the above company issue a promissory note with a face value of KRW 110 million in the name of the above company because he violated his occupational duty that the defendant should not issue a promissory note in the name of the above company for a purpose unrelated to the business of the non-indicted 9 corporation, and delivered it to the non-indicted 17, and recognized the defendant's arbitrary delivery of it to the non-indicted 17, and it is just to accept the measures that recognized the defendant as a

B. Determination on the assertion of unfair sentencing

The Defendant used the company funds close to 10 billion won as one's capital increase, etc. using the embezzled money as a major shareholder of a mutual savings bank and the president of a mutual savings bank. The Defendant used most of them for personal purposes, causing insolvency loans up to 18.8 billion won, and eventually used them for the personal purpose, causing the bankruptcy of the mutual savings bank, giving and receiving honorariums related to the loan in the process, and making it difficult to see that the Defendant committed various illegal acts, such as giving and receiving honorariums related to the loan in the process. In addition, considering all the circumstances leading to the sentencing conditions, including the method and frequency of the crime, damage amount, and after the crime, the Defendant cannot be held liable for strict legal liability corresponding to the act, and it is difficult for the Defendant to find out the reason for discretionary mitigation, and thus, it cannot be accepted that the Defendant's imprisonment with prison labor for a limited period of up to five years, which is the maximum punishment imposed on the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement).

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed by Article 364 (4) of the Criminal Procedure Act, and 145 days out of the number of days under confinement before the pronouncement of this judgment is included in the imprisonment of the court below in accordance with Article 57 of the Criminal Procedure Act. The defendant's appeal is clearly erroneous in the facts constituting the crime of the court below. Since it is obvious that "round December 21, 2001," among the facts constituting the crime of the court below, "round December 20, 200," it is obvious that it is a clerical error of "round December 20, 201."

Judges Lee Jin-gu (Presiding Judge)