2015Gohap411 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

1. A;

2. B

Oral Jins ( Prosecution and Public Trial)

Law Firm C, Attorney D (Defendant A)

Attorney E (for the defendant A)

Law Firm F, Attorney G (Defendant B)

January 22, 2016

Defendant A shall be punished by imprisonment with prison labor for seven years and by imprisonment for five years. The amount of KRW 532 million from Defendant A and KRW 330 million from Defendant B shall be collected respectively.

Facts of crime

The Defendants are joint representative directors and I (the six-year imprisonment of October 11, 2012) of H Co., Ltd., and directors and J (the three-year imprisonment of October 11, 2012) of the said Co., Ltd., as the deputy head in charge of finance of the said Co., Ltd.

H A corporation is incorporated around June 200 in order to acquire and manage K’s assets, such as bonds, after being detained due to the suspicion of embezzlement of the company’s funds around September 199 (the so-called “KK situation”, resulting in the loss of investors’ failure to recover investment amounting to KRW 228.4 billion) after consultation with the Investment Council, etc. of the victim organization, which is the victim organization, and to fairly distribute the company’s assets. The Defendants, while in office as the joint representative director of H corporation, have duties to manage and preserve the above company’s assets and to fairly distribute the company’s assets to the victims.

Nevertheless, in collusion with I and J on March 2001, the Defendants established M Co., Ltd. separate from H Co., Ltd., and Defendant A’s representative director; and I assumed office as a director; and H Co., Ltd voluntarily remitted or directly withdrawn part of the assets acquired from H Co., Ltd.’s affiliates or L to the deposit account of H Co., Ltd. and intended to consume it.

On July 22, 2003, the Defendants, I, and J sold 4 lots of land owned by N Co., Ltd., N Co., Ltd., an affiliate of K Co., Ltd., Busan Shipping Daegu 0, and accordingly deposited KRW 200,000,000,000 including the down payment of KRW 100,000 and the intermediate payment of KRW 100,000,000,000, in the deposit account (P) of H Co., Ltd through N Co., Ltd., the Defendants, I, and J embezzled the total amount of KRW 20,000,000 on August 13, 2003 from that time to August 28, 2008 by arbitrarily consuming KRW 5,809,59,239,00,000 owned by H Co., Ltd., a total of 13 times of business as indicated in the list of crimes.

Summary of Evidence

1. Defendant A’s legal statement and part of Defendant B’s legal statement

1. A witness and J. (each legal statement in each court);

1. Each protocol of examination of the suspect against Defendant A by the prosecution;

1. Each prosecutor's office and police interrogation protocol against I and J;

1. Each protocol of prosecutor's statement concerning J, Q and I;

1. Each copy of the R, S, T, U,V, and W (including a certificate of seal);

1. Results of verification, such as records of seizure, complaint, recording book, X building lease-related data, data verifying the Seoul High Court's data, including data on the payment of auction proceeds, documents related to purchase price of X building site, shipping company-related data, tracking data, such as cashier's checks, track data, summary of bank holding status, summary of bank holding status, H-national Bank's account transaction details ( bank, Korean bank, new bank, national bank), M-invested account delivery status, copies of each one bank account transaction statement (the bank, Korean bank, bank, external bank), copy of each J-owned account statement (the National Bank, the company bank, the Busan Bank, the Busan Bank, the trust), copy of the bill of directors' meeting, copy of the bill of directors' resolution, copy of each request for settlement of real estate transactions, copy of the bill of directors' meeting, copy of each bill of trust agreement, copy of each company's records, records of payment of dividends, records of each account (the amount of money deposited in real estate trust, new bank, Busan Bank, Korean National Bank, records of trust records, and records, etc.);

1. Application of Acts and subordinate statutes to each investigation report (No. 2, 3, 6, 8, 9, 15 through 21, 23, 26, 27, 27, 32, 33, 34, 44, 46, 47, 48, 51, 55, 56, 64, 66, 90, 95, 101, 104, 108, 114, 116, 119, 122, 132, 133, 135, 138)

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

Article 3 (1) 1 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 11304, Feb. 10, 2012); Articles 356, 355 (1), and 30 of the Criminal Act [The maximum statutory penalty shall be 15 years prescribed by the main sentence of Article 42 of the former Criminal Act (Amended by Act No. 10259, Apr. 15, 2010)]

1. Additional collection:

Determination on the assertion of Defendant B and defense counsel under Articles 6(1), 3(1), 4(1), and 5(1) (Defendant A 532 million won, Defendant B 456 million won) of the Act on Special Cases Concerning the Confiscation and Restoration of Property Subject to Corruption

1. In order to recover 200 million won of his own damage due to the alleged K situation, there is only a fact that he embezzled 67 million won out of the amount No. 1 of the annexed crime list No. 1, and there was no conspiracy with A, I, etc. with regard to the remainder.

2. Determination

A. In light of the following circumstances revealed by the evidence adopted and examined by the court, it is determined that the defendant is liable to join the crime of this case.

1) All co-offenders, A, J, and I stated that the Defendant was involved in the process of withdrawing the funds of the victim company or remitting the account transfer to M&A company, such as the instant facts charged. That is, ① The decision-making on the execution of funds of the victim company was discussed by three parties, including the Defendant, A, and I, and the Defendant and A, who are co-representatives, mainly have the principal decision-making right, and the detailed practice, such as withdrawal, account transfer, and draft of a draft, was mainly conducted by J in accordance with A’s instructions. The document resolution was made in the order of I, A, and the Defendant. (ii) The Defendant and co-offenders, including the Defendant, took the method of receiving loans under a nominal loan agreement with the victim company in the event of the victim company’s execution of funds. In addition, from 2003 to 2008, the date indicated in the instant facts charged, the Defendant and co-offenders, etc. received the funds in cash from 600 to 800,000 won.

2) The above statements made by accomplices, including A, are generally consistent and consistent with the main part of the crime. In particular, in the case of J and I, it can be deemed that there is no motive to make a false statement, such as that the sentence has already become final and conclusive as a result of the crime of this case, and that they have already been released or are serving in prison.

3) In addition, the following objective circumstances also conform to the Defendant’s recruitment facts.

(1) The Defendant, as a joint representative director of the victim company, has borrowed the form of a loan agreement with the victim company and received KRW 400 million from around 2003 to 2006 from the victim company without undergoing a resolution by the board of directors or making notification to the investor union.

② On September 5, 2003, the Defendant opened the Busan Bank Account in his name and deposited KRW 900 million out of KRW 3 billion listed on September 8, 2003, 2000, and thereafter deposited several times until January 6, 2004 (see, e.g., evidence Nos. 1, 2286 through 2295).

In addition, the Defendant received KRW 50 million from February 16, 2007, and KRW 6 million from August 5, 2008 to his own account in the name of his own children from the M Co., Ltd.’s account. In particular, in the case of KRW 50 million, the Defendant himself stated that the Defendant would be paid KRW 50 million to the Z only among the investors, and that the Defendant would be able to protect the secrets that he paid large amounts of money. Accordingly, the funds of M Co., Ltd. are funds of the victim’s company, in terms of the victim’s funds, the above fund-raising process accords with the Defendant’s public offering.

B. Therefore, the defendant and his defense counsel cannot be accepted.

1. The reasons for sentencing: The scope of punishment from 5 years to 15 years for each term: the range of punishment recommended from 5 years to 15: the imprisonment range from 5 years to 8 years, and the aggravated area; and

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

[Special Person] When a large number of victims (including workers, shareholders, creditors, etc.) has been caused, or when a serious damage has been caused to the victim

3. In light of the fact that the sentence of sentence was rendered on a large amount of KRW 5.8 billion and that the amount of the instant embezzlement actually resulted in serious damage to the investors in the K situation, the victims, and that no particular damage has been recovered until now, Defendant A’s liability is grave in terms of leading the instant crime, Defendant B’s representative of the victim company, and Defendant B’s liability cannot be deemed to be less complicated than those of those of which punishment has become final and conclusive, it is inevitable to punish the Defendants with severe penalty equivalent to its liability.

However, compared to the size of the embezzlement of this case, the actual gain that the defendants acquired by the defendants should be recognized as 50 million won as the additional collection amount, and it is necessary to take into account the punishment details of related accomplices whose amount of profit is similar. In the case of the defendant A, the defendant A's mistake is currently divided in depth, the defendant B does not seem to have any significant degree of participation in the specific act, and deposited the victim company with the victim's money. The defendants have no particular criminal power over the long time, and the defendants have no other criminal power over the long time, and the punishment shall be determined as ordered by the order, taking into account various sentencing conditions as shown in the arguments of this case, such as character and behavior, environment, motive, means and consequence of the crime, and

The presiding judge of the Supreme Court;

Judges, Chief Judge

Judge Choi Jin-hun

1) Defendant B is a loan agreement and receipt (Evidence No. 9) made between the victim company and the victim company, and the shipping Daegu.

In other words, a draft document related to the sale and purchase of three parcels of land (Evidence No. 16 No. 16 (Evidence No. 32)) is forged.

However, the defendant B himself acknowledges that the seals and individuals of each of the above documents are his own, and the persons concerned are concerned.

Defendant A and J are the same and the Defendant B voluntarily signed and sealed on their own, and otherwise Defendant B is the same.

evidence or circumstances supporting that the above documents have been prepared or forged against the will of B seems to appear.

Therefore, each of the above documents is considered admissible as authentic.

2) ① Defendant A is consistent with the financial data and the amount is within the scope of his own recognition, ② Defendant B

56 million won by account transfer from an account under the name of M Co., Ltd. to an account transfer under the name of children, as shown below.

the loan agreement and receipt (No. 9 of the evidence No. 9 recognized as genuine) in the name of the plaintiff, the defendant B, and any copies thereof.

Scope of clearly admitting that the assets of the victim company are received from the victim company by evidence, such as the collection of deposits, etc.

The sum of KRW 456 million, which is KRW 400,000,000,000 to KRW 123 million, which was deposited with the victim company on January 15, 2016

The remaining 330 million won shall be additionally collected.