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

B. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

1. A.

2.(a) B

On-site (prosecution) and stuff (public trial)

Attorney C (for the defendant A)

Attorney D, E (for Defendant B)

October 12, 2017

Defendant A shall be punished by imprisonment with prison labor for three years and by imprisonment for five years.

Criminal facts

【Criminal Power】

On April 15, 2016, Defendant A was sentenced to a suspended sentence of two years for the violation of the Act on Special Cases Concerning the Settlement of Traffic Accidents at the Seosan Branch of the Daejeon District Court, and the judgment became final and conclusive on September 2 of the same year.

【Criminal Facts】

1. Defendant A

On October 2014, the Defendant planned to take over H (hereinafter “H”) a superior company, a company with cash value holding at least KRW 20 billion, by using the aforesaid company, which had been in fact an external appearance due to large-scale capital erosion and a long-term business owner, to take office as a registration director of G Co., Ltd., Ltd., a company that was acquired by F and serves as a representative director, and then recorded black persons for at least 10 years while carrying on business, such as unlisted companies, national books, large-scale construction, and oriental plant plant equipment, etc., and taking over H (hereinafter “H”) with an annual sales amount of at least KRW 100 billion as of that time. However, the Defendant planned to use the F’s cash assets, or to make it difficult to raise funds for the above acquisition. However, the Defendant attempted to take over H using the victim’s funds by approaching the company.

On October 2014, the Defendant “H, a large-scale business, went into the M&A; and the market.If the down payment is claimed one billion won, the remainder is a loan cycle from the MBO securities by LBO.

It would be possible to become the representative director by accepting H, on the face of raising one billion won of down payment, 1 billion won of down payment.

It suggested that only KRW 1 billion is an opportunity to acquire a high-quality company with more than KRW 100 billion annual sales."

Around November 2014, the victim established the J (hereinafter referred to as the “J”) as a special purpose corporation to take over H around November 201, 2014, and entered into a contract to take over H’s shareholder representative and H stocks and management rights at around KRW 11.6 billion with the Defendant’s order at around March 24, 2015, and paid KRW 50 million raised through L to K as contract deposit at that place.

Around April 2015, the Defendant received a loan from the Defendant through Mzz-type securities to implement the promise with the Defendant, but around that time, it was confirmed that there was a loss equivalent to KRW 9.6 billion, which was not perceived on H’s account books, and thus, it would be anticipated that it would be impossible to procure the balance on the terms of the initial promise made by the Defendant. After destroying the above contract for underwriting the shares and management rights between the said parties by mediating the victim and K, the Defendant intended to either pay the other purchaser instead of the victim, or take over H by directly raising funds.

Therefore, the Defendant was delegated by the victim, who was confined in the Seoul detention center on June 19, 2015, with the cancellation of the above acquisition contract for the shares and management rights and all affairs related to the return of the down payment pursuant thereto. On July 10, 2015, the Defendant cancelled the agreement on the above acquisition contract for the shares and management rights between K and K on behalf of the victim at the conference room of the name accounting corporation located in Gangnam-gu, Seoul, Seoul, on behalf of the victim. On the same day, K returned KRW 500,000,000,000 won for the total down payment of KRW 1 billion to five cashier’s checks.

While the Defendant kept custody of KRW 500 million for the victim, he/she received a proposal from B that he/she will take over a H and take office as a representative director on July 2015, and voluntarily delivered KRW 300 million to B for the purpose of raising funds, and embezzled the remainder of KRW 200 million for personal purposes, such as funds for the operation of M&A operated by the Defendant.

2. Defendant B

Around July 2015, the Defendant, the representative of the victim H (hereinafter referred to as the “victim”)’s shareholder, shall take over the shares and the management rights of the Victim’s company in total in KRW 9 billion. Of them, the Defendant shall pay KRW 5 billion, and the remainder of KRW 4 billion was entered into a contract with the victim company to pay the shares by purchasing the shares of the shareholders, and then he/she was appointed as the representative of the victim company on July 10, 2015.

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

On November 27, 2015, the Defendant, as the representative director of the victim company, voluntarily consumed the amount of KRW 650 million around November 30, 2015, KRW 450 million around December 2, 2015, the sum of KRW 1.1 billion from N in order for the Defendant to take over the victim company, while obtaining a loan of KRW 5 billion from the Industrial Bank for the purpose of operating the company from the Industrial Bank on November 27, 2015, the Defendant paid KRW 450 million around November 30, 2015, KRW 50 million around December 18, 2015, and KRW 50 million in total to pay back the amount of KRW 1.1 billion to the Defendant for the acquisition of the victim company.

Accordingly, the Defendant embezzled the sum of KRW 1.6 billion owned by the victim company.

B. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

The defendant, as the representative director of the victim company, bears the duty of care or loyalty to prevent damage to the property of the victim company and to ensure the best interest for the victim company in accordance with the statutes and the articles of incorporation.

Nevertheless, the Defendant intends to obtain the president status of Q Q (hereinafter referred to as " Q") who assisted in the process of raising funds necessary for the Defendant to take office as the representative director of the victim company and to implement the development project by acquiring the business rights of Q (hereinafter referred to as " Q"). When borrowing the acquisition funds, the victim company would subsequently be entitled to the right to execute the R business if the joint and several liability would be avoided, and P around June 3, 2016, borrowed the above foundation and business rights acquisition funds from S Co., Ltd. (hereinafter referred to as "S") to lose the ability to repay the debt amount of KRW 2 billion at the time of receiving the loan from the victim company, and in order to do so, it would cause damage to the victim company in its name without examining the feasibility and profitability of the above proposal and securing other security.

As above, the Defendant violated his duties, thereby having P gain pecuniary advantage equivalent to KRW 2 billion, and the victim company suffered a loss equivalent to the same amount.

Summary of Evidence

[Defendant A]

1. The defendant A's partial statement

1. Legal statement of the witness L;

1. Examination protocol of Defendant A by the prosecution;

1. The suspect interrogation protocol of the defendant A by the police;

1. The prosecutor's statement to K;

1. Statement of the police officer to I;

1. Certificate of fact prepared by U (Evidence No. 36);

1. A report on investigation (the execution results and analysis of warrants applying the financial account trend), - one copy of the analysis of the execution results of warrants applying the financial account trend;

1. One copy of the acquisition agreement of shares and management rights of H stock company, the actual inspection and the stock value assessment service contract, the contents certification of K preparation, the agreement for termination of the contract, the power of attorney, the substitute table, etc., and one copy of the written confirmation and contract termination agreement;

1. Previous records: Criminal records and other inquiries;

[Defendant B]

1. Defendant B’s partial statement

1. Each legal statement of the witness 0, V, W, and X;

1. The suspect interrogation protocol of Defendant B by the prosecution;

1. Each prosecutor's statement of 0, P, V, and Y (including the replaced part);

1. A written statement prepared by the defendant;

1. Each written confirmation of W or Z preparation (Evidence No. 219, No. 219);

1. Investigation reports (Attachment to the H account omitted in accounting), investigation reports (Attachment to the documents of relevant competent authorities, such as Q security trust that is an incorporated foundation);

1. Each - Investment Contract, - AA bond transfer/acquisition agreement, notice of assignment - transfer/transfer/transfer certificate/transfer certificate/transfer statement, - one copy of deposit certificate, - one copy of joint business agreement, one copy of joint and several liability agreement, one copy of joint and several liability agreement, one copy of joint and several liability agreement - one copy of the application for provisional attachment of claim No. 2017Kadan21 of Seoul Central District Court Act - one copy of the transfer/acquisition agreement, one copy of the transfer/acquisition agreement, one copy of -2 billion use of the application for provisional attachment of claim No. 2017Kadan21 of Seoul Central District Court Act, one copy of the transfer/acquisition agreement, one copy of the attached agreement, one copy of written opinion, and one copy of the attached agreement, three copies of account transfer/transfer/transfer certificate/transfer statement, one copy of account statement/ check, one copy of the deposit transaction statement/ check, one of the entire registration certificate, one of the registration certificate of the remaining ADR in South and North City ADR(U.).

Application of Statutes

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

A. Defendant A: Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter referred to as the "Specific Economic Crimes Act") and Article 355(1) of the Criminal Act (hereinafter referred to as the "Special Economic Crimes Act"),

B. Defendant B: Article 3(1)2 of the Specific Economic Crimes Act, Article 355(1) of the Criminal Act (Occupational Embezzlement, Occupational Embezzlement, Imprisonment with labor), Article 3(1)2 of the Specific Economic Crimes Act, and Article 355(2) of the Criminal Act (Occupational Breach of Trust and Imprisonment with labor)

1. Handling concurrent crimes;

Defendant A: the latter part of Article 37 and Article 39(1) of the Criminal Act

1. Aggravation for concurrent crimes;

Defendant B: the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravated Punishment of Specific Economic Crimes (Misappropriation) with a heavier penalty as provided for in the crime of violation of the Specific Economic Crimes Act]

Judgment on the argument of the defendant and defense counsel

1. As to the defendant A and his defense counsel's assertion

A. Summary of the assertion

Since the victim and L enter into an underwriting contract with K and the representative of H shareholder, respectively, and prepare and pay the down payment of KRW 1 billion in total to K, it is the amount of profit in the crime of embezzlement of this case only KRW 250 million, which can be seen as owned by the victim, out of KRW 50 million of the down payment received from K and used arbitrarily.

B. Determination

In full view of the following facts and circumstances admitted as evidence by this court as evidence, it is recognized that the victim decided to take over H solely and borrowed KRW 500 million from L from L and paid a total of KRW 1 billion to K as down payment. As such, the full amount of KRW 500 million that the Defendant received from K and used at will shall be deemed the amount of profit for the crime of embezzlement against the victim.

① The acquisition of shares and management rights, which was prepared at the time of acquisition, is also indicated in the contract (Evidence No. 3) as a joint underwriter with L. However, among the above "Agreement on the Acquisition of shares and management rights", only the portion entered as a party to which L is a party, and after the acquisition, J established by the injured party acquires 100% of H's shares. Since L consistently stated that "W has consistently lent 500 million won to the injured party and did not take over H jointly with the injured party, and if the injured party fails to return 500 million won, it can obtain satisfaction for 50 million won by paying the remainder of the acquisition fund excluding 50 million won borne by the injured party and acquiring H. Therefore, it is possible to obtain satisfaction for 500 million won by taking over H.

② The victim stated that he/she jointly entered into an underwriting contract with L from the police to the date before the conclusion of the underwriting contract, but on the other hand, the police and the prosecutor made a statement that he/she prepared to take over the contract by hearing explanation of the enactment and management status of H from October 2014 to the defendant, B, etc., and by establishing a J from the police and the prosecutor's office. It is difficult to believe that he/she has accepted the L's proposal that he/she jointly takes over the underwriting contract prepared for about six months before the day immediately before the conclusion of the underwriting contract, and it seems that he/she made a false statement in order to reduce the amount of damage by denying the borrowing of the loan from L as he/she was placed in a situation where H acquisition is nonexistent and the amount of damage is difficult to receive from the defendant.

③ The Defendant, at the police station, borrowed KRW 500,000,000 on the day of the contract with AE and borrowed KRW 500,000,000 from the place of the contract. At the request of AE, the Defendant stated that AE would take over H under the condition that the remainder payment is known (see, e.g., evidence No. 14). The Defendant stated that “The Victim would take over H” (see, e.g., evidence No. 14), and the Victim also lent KRW 500,000 to L at the prosecution and paid the down payment of KRW 1 billion (see, e.g., investigation record No. 437). In this court, the Defendant stated that “The remainder was paid by J as the principal agent, and there was no talk about L and the remainder payment by dividing them.”

④ On June 2015, upon the delegation of the JJ, the Defendant agreed to the termination of the agreement to acquire management rights, and agreed to the amount of forfeiture proposed by the seller. The Defendant sent a letter of agreement to terminate the contract (Evidence No. 20). This letter states that the transferee on March 24, 2015 also borrowed KRW 500 million to J.

⑤ On the same day, the purchaser stated that “A purchaser shall inspect H after the date of conclusion of the contract for acquisition of shares and management rights.” On the same day, the actual inspection and shares of H in the name of J and full-name accounting corporation were prepared, and the contract for value assessment service (Evidence No. 7) was prepared, the victim stated that “the police and the prosecution have borne the full amount of the service cost.”

2. As to the defendant B and his defense counsel's assertion

A. As to KRW 500 million paid to a person among the facts constituting the crime of violation of the Act of the Specific Economic Crimes (Embezzlement)

1) Summary of the assertion

① In order to obtain a loan of KRW 5 billion from an industrial bank, the victim company (H) borrowed KRW 2 billion from W, which requires a pledge on the deposit claim of KRW 2 billion, and thereafter borrowed KRW 2 billion from W, which was introduced by 0. Since then, the Plaintiff paid KRW 300 million out of the loan that was created by the pledge and loan, as interest and commission fees. ② The remaining KRW 200 million was paid by 0 as necessary for the financing of the victim company, and the above KRW 500 million was not used for personal purposes.

2) Determination

A) First of all, we cannot accept the argument that the Defendant paid KRW 300 million to the Defendant under the name of interest and fee of KRW 2 billion borrowed from W in full view of the following facts and circumstances acknowledged as evidence legitimately adopted and investigated by this Court.

① At this court, “50 million won received from the Defendant was personal transactions with the Defendant and was not money related to the victim company. Specifically, the Defendant lent KRW 300 million borrowed from AG and AH on August 3, 2015 and KRW 186 million out of KRW 300 million borrowed from the Defendant on November 20, 2015, respectively. However, the Defendant borrowed KRW 500 million to the Defendant for the purpose of paying the said money and making personal investments. Of KRW 500,000, KRW 300,000 to the Z under the pretext of borrowing the money, KRW 140,000,000 to the Defendant, and KRW 50,000,000,000 to the Defendant for personal investment or lending, and 50,000,000,000 won to the Defendant without any assistance from the victim, and 200,000,000 won to the Defendant.

On the other hand, this part of the crime was investigated by the prosecution three times on March 23, 2017, and on May 31, 2017, the prosecutor made a statement to the same effect as the above statutory statement at the time of investigation by the prosecution three times, and on May 31, 2017, the victim company received money from the defendant, which may cause problems such as the use of the company's funds by taking the form of remitting the money to the defendant, and Y also made a statement to the prosecutor that "Y sent money from his own account to the defendant on November 30, 2015, while he remitted money from his own account to the victim company's account." The defendant also made a statement to the effect that "The defendant stated to the effect that he would be paid in advance, as soon as he would be paid in advance." The defendant also acknowledged the above investigation records from the prosecutor's office (see, e.g., Supreme Court Decision 408Da6868, Nov. 30, 2015).

However, on May 23, 2017, at the time of the second investigation by the prosecution, this statement was made to the Z as interest rate of KRW 2 billion on the Z as the defendant's assertion." However, as seen earlier in the three-time investigation by the prosecution, the defendant re-satisfyed the statement as mentioned above and made a false statement to the Z's office by explaining the place of use of KRW 500 million from the defendant's office. The defendant also made a statement to the same effect in this court. The defendant also stated to the same effect as in the prosecutor's office that he was using the amount of money paid by B or 300 million from the prosecutor's office (see, e.g., investigation records4,2411).

② At this Court, W was an employee of the Z in this Court, lent KRW 300 million to the Z on November 20, 2015, and was paid the above money around November 30, 2015. On the other hand, on November 27, 2015, W loaned KRW 2 billion to the victim company at the time of lending KRW 2 billion to the victim company, taking into account the fact that W was able to receive assistance from 00,000,000,000 won after the day, and there was no concern that structural 2 billion would not be repaid, and there was no money received as interest thereafter. On December 2015, 2015, W stated to the effect that, on the first time, W did not want to complete the construction cost of the building owned at the time of Kimpo, the relationship became more than 3 billion since it was not lent to the 3 billion Won and did not submit to the prosecutor’s office a confirmation document (Evidence).

③ W lending KRW 2 billion to the victim company through the funds of AJ and AK, and the following circumstances are: (a) the lending period is only two billions; (b) the lending period was restricted from using the loan for any other purpose; (c) W was preparing means to withdraw KRW 2 billion directly upon the execution of the loan; and (d) other bond business entities’ transaction practices, it seems too excessive that W would pay KRW 300 million for interest and fee; (d) W was more reliable; (e) the employees Z or the above bond business entities were more reliable; (e) the employees of W lent KRW 2 billion to the victim company in the name of the victim bank established for the purpose of direct pledge on November 26, 2015; and (e) the employees of W were able to withdraw KRW 2 billion from the bank account in the name of the victim bank; and (e) the Defendant was able to receive KRW 2 billion from the bank account in the name of the victim company in the name of the victim bank in the name of 2 billion.

④ Considering that the Defendant directly lent W and W and W and W and W 2 billion won, and did not sit in W and W 5 billion won, and W immediately withdraws 2 billion won from the victim’s company’s account to which W 5 billion won was deposited and received repayment, if W 300 million won was to receive interest and commission, it would normally be the case where W 2.3 billion won was to withdraw or pay W 300 million won directly to W. However, there seems to be no reason to pay the above 300 million won through a lot.

⑤ At the prosecution, the Defendant transferred KRW 500 million to the account in the name of Y, on the first hand, that “0 and P can make profits from acquiring and developing Q.” (see, e.g., Investigation Records 1,929) or “in the short term,” and paid KRW 500 million. (See, e.g., Investigation Records 3,037) or “in the name of Y”, the Defendant made a statement of KRW 300 million out of KRW 500,000,000,000 to Z as interest and fee, and 200,000,000 won was provided to AI as a member of the management director of the victim company. (5) Although X in charge of finance and accounting, etc. was loaned KRW 2 billion from W, and was given a loan of KRW 500,000 from the Industrial Bank, the Defendant did not make a statement from this court to the Defendant’s name of the victim.

(7) The defense counsel submitted a receipt (Evidence 32 of the submission of counsel) that was kept on the computer of the defendant. The content of "AJ and AK6) received KRW 2 billion from the victim company on November 27, 2015, which is sufficient to return all documents related to lending and borrowing agreements with the victim company being kept in a certified judicial scrivener office, to the victim company." Thus, on November 27, 2015, the above receipt was stated as the date on which the defendant paid 0 billion won interest and fees for the above 2 billion won.

B) Comprehensively taking account of the facts and circumstances described in the above paragraph (a) as well as the evidence duly adopted and investigated by this court, the Defendant cannot be deemed to have paid KRW 200 million to the Defendant under the pretext of attracting investments for the victim company. Even if 0 did so by seeking necessary funds for the victim company, it appears that the Defendant would have paid the Defendant with the statement of the objection that he would merely send money, and 0 did not completely examine what kind of money was used for the purpose of attracting investments, and as long as it is recognized to have paid the Defendant money with the knowledge that the Defendant would not be used for attracting investments, the Defendant’s relationship with the Defendant, etc., at least did not have any negligence in embezzlement.

① Although 00 million won was reversed by the prosecutor’s office as seen earlier, it was consistent in relation to the remaining money, the Defendant received about KRW 140 million from the Defendant’s personal transaction relations with the victim company, and did not give money upon the Defendant’s request for attracting investment with the victim company. The Defendant paid KRW 140 million from the money received to AI as the name of investment or loan was received, and the profit was the same, and the AI did not return the principal by the due date, and if the AI was unable to return the principal, it was able to repay the part in the way of making an investment to the victim company if it is resolved well later. Around that time, the AI and the Defendant first stated that the payment was made.

② The Defendant wired money from his personal account to 0, and as seen earlier, wired money from the victim’s company’s account to 500 million won on an exceptional basis.

3 As seen earlier, the Defendant did not clearly explain the place of use of KRW 500 million paid to the accused prior to the date of interrogation of the accused prior to detention, and argued that the amount of KRW 200 million was paid to AI for attracting investment to the victim company.

④ The Defendant received KRW 500 million from the Defendant and did not attract investment in the victim company. The Defendant did not resist or request the return of the said money.

⑤ The Defendant also stated in the prosecutorial office that there was no business review, and that there was no actual use of 0 billion won, and that there was no control over 0.

C) Comprehensively taking account of the above, the Defendant is recognized to have paid KRW 500 million to 0 under the pretext of personal debt repayment, etc.

B. As to the violation of the Specific Economic Crimes Act (Misappropriation)

1) Summary of the assertion

Since the defendant provided a joint and several surety under the management judgment that the profitability of the R business (hereinafter referred to as the "business of this case") would be beneficial to the victim company, there is no intention of breach of trust.

2) Determination

In full view of the following facts and circumstances admitted as evidence by this court, the defendant, even though he/she was aware that P lost the ability to repay debts, can be recognized that the victim company had a joint and several surety without any specific agreement and examination on the consideration that P obtained by the victim company. Such defendant's act constitutes a breach of trust against the victim company.

① At the time when P borrowed 2 billion won from S, as long as P did not raise money at any other place because there was no means to pay the above money and no separate collateral was provided, the victim company was obligated to pay the above money for six months, and the lending period was less than six months. In fact, S recovered a considerable amount of money through compulsory execution, etc. against the victim company’s property after the due date.

② The Defendant prepared an investment contract (Evidence No. 96) with the content that Q and the victim company with the business rights of P or the instant business contributed to the instant business as joint and several sureties, and that it would have received any benefit. On July 2016, the Defendant prepared an investment contract (Evidence No. 96) with the content that “In order to manage the accounts of the victim company, the victim company shall invest KRW 1 billion in Q Q,” and that “The above investment contract shall be transferred to the development agency and the operating company to be established in the future after the prosecutor's investigation was conducted,” and the subsidiary agreement (Evidence No. 187) with the content that “The amount subrogated by the victim company as a joint and several sureties shall be converted to the amount of investment in the instant business (Evidence No. 208) and “the amount paid by the victim company as an investment in the instant business.”

③ 2 billion won borrowed from S was paid to P, and deposited into the Defendant’s account via the Y account. Of 2 billion won, P, the actual owner of Q and AB Co., Ltd. (hereinafter “AB”), who owns the business right and site of the instant project, was used as part of the down payment amount of KRW 1.5 billion (1 billion on a contract to acquire Q’s president status, including the entire shares of AB, and all the above business rights). Q. 40 billion won was paid to AM directors who purchased the above 2 billion loan, and the Defendant and P.D. paid 2 billion won as the consulting cost of the instant project. However, at the time of the statement, Q. 1.2 billion won was not prepared, and Q. 4 billion won was already paid from P.D.’s design, construction, and loan of the instant project, and the remainder of P. 4 billion won was paid as the consulting cost of the instant project.

④ During the process of acquiring a victim company, P had the Defendant offered real estate owned by the AP farming association corporation (hereinafter referred to as the “AP farming association corporation”) as collateral to a seller of stocks so that the Defendant helps the Defendant, and as seen earlier, the Defendant provided the P with the funds of the victim company (as well as the Defendant provided the P with KRW 200 million out of the expenses incurred in the acquisition of the business of this case) before the joint and several sureties, and the Defendant, at the prosecutor’s office, had no choice but to help P after the Defendant provided P with the help during the process of acquiring the victim company’s company. In fact, the victim company did not have invested in Q, and the part which was treated as having invested in Q as having invested KRW 1 billion in Q under the audit report, was to be repaid to the individual income that P would obtain by operating the business of this case. However, the victim company was made by accounting, but the fact was personally used. As to the business of this case, the P and 00 defects were stated as follows.

⑤ Considering the following facts and circumstances, it is difficult for the Defendant and the company to take advantage of the profitability of the instant project, and there was no change in the articles of incorporation that enable Q2 to provide the underlying property out of Ulsan Metropolitan City as security. If the instant project was implemented only, it is possible to successful loan, and even if the instant project was resumed, it is difficult for the victim to take profits from the instant project. Rather, it is difficult for the Defendant and P to take advantage of the facts that the instant project would have been carried out for 00 million won, and it would have been difficult for the victim to take advantage of the fact that the instant project would have been carried out by the Defendant and P to take advantage of the fact that the instant project had been carried out by the Defendant and P to take advantage of the fact that the instant project had been carried out by the Defendant and P to take advantage of the fact that the instant project had been carried out by the Defendant and P to take advantage of the fact that Q2 had not been carried out by the Defendant and P to take advantage of the real property available for sale after consultation with the creditors of Q, etc. However.

6) The victim company established AT (hereinafter referred to as "AT") and AU (hereinafter referred to as "AU"), respectively, to invest KRW 1.5 billion in a special purpose corporation, and to acquire business rights from Q, and to promote the business of this case. In the status of investment of KRW 1.5 billion in AT0 million, the above method was inconsistent with the relationship between AT and around May 2016. Although the role to be in charge of AT under the agreement entered into between the victim company and AT is clearly indicated, the victim company did not have invested KRW 1.5 billion in addition to the investment of KRW 1.5 billion. At the time, the victim company did not have invested KRW 1.5 billion in accordance with the above agreement, and even large-scale funds necessary for the promotion of the business of this case had been raised from AU, it cannot be seen that the defendant and the defendant can naturally seek profits from the distribution of this case even after the completion of the business of this case.

Reasons for sentencing

1. Defendant A

(a) The scope of applicable sentences by law: Imprisonment with prison labor for up to 30 years; and

(b) Application of the sentencing criteria; and

[Determination of Punishment] Type 3 (not less than KRW 500 million but less than KRW 5 billion)

【Special Convicted Person】

[Scope of Recommendation] Basic Field, 2-5 years of imprisonment

C. Determination of sentence: Determination of sentence shall take into account the following three years of imprisonment, and take into account the defendant's age, character and conduct, growth process, environment, motive, means and result of the crime, various factors of sentencing as shown in the arguments in this case, and the scope of recommended sentences in sentencing guidelines, and the sentence shall be determined as ordered by considering the following circumstances:

【Unfavorable Circumstances】

The Defendant used part of the H acceptance deposit paid by the victim using trust relationship formed through the preparation of the process of accepting the H as well as the victim. In particular, some of them paid to B so that H takes over the H, and he was appointed as the vice president of H and received benefits, etc. The nature of the crime is not good. In particular, the victim is strongly punished by the Defendant, such as submitting a written petition to the court, and only 50 million won out of the amount of damage has been recovered.

【Free Circumstances】

The Defendant generally recognizes and reflects the overall factual relations, and there is no previous conviction exceeding the probation prior to the instant crime. Taking into account the equity between the instant crime and the offense of violation of the Act on Special Cases concerning the Settlement of Traffic Accidents, which became final and conclusive, etc.

2. Defendant B

(a) Scope of applicable sentences under law: Imprisonment for three to forty-five years; and

(b) Application of the sentencing criteria;

1. Basic crime: Violation of the Specific Economic Crimes Act (Misappropriation)

[Determination of Punishment] Type 3 (not less than KRW 500 million but less than KRW 5 billion)

[Special Aggravation] Aggravations: Where mass victims (including workers, shareholders, creditors, etc.) have been caused, or where a serious damage has been caused to the victim.

[Scope of Recommendation] Aggravated Punishment, Three to Six years of imprisonment

2. First concurrent crimes: Violation of the Act on the Specific Economic Crimes (Embezzlement)

[Determination of Punishment] Type 3 (not less than KRW 500 million but less than KRW 5 billion)

[Special Aggravation] Aggravations: Where mass victims (including workers, shareholders, creditors, etc.) have been caused, or where a serious damage has been caused to the victim.

[Scope of Recommendation] Aggravated Punishment, Three to Six years of imprisonment

3) Scope of recommendations according to the standards for handling multiple crimes: Three to nine years;

C. Determination of sentence: Determination of sentence shall take into account the following five years of imprisonment and take into account the defendant's age, character and conduct, growth process, environment, motive, means and result of the crime, various factors of sentencing as shown in the argument of this case, and the scope of recommended sentence in the sentencing guidelines, including the circumstances after the crime, etc., as set forth in the order.

【Unfavorable Circumstances】

After the Defendant acquired the victim company without any particular capital, it becomes one of the causes for the Defendant to arbitrarily use the funds of the victim company for several persons who helps to take over the same as the instant crime, and to conduct false accounting, the victim company is faced with serious financial and managerial difficulties, and multiple employees were dismissed or was not paid. In particular, since the provisional attachment was made on the part of the victim company's property, the victim company was faced with serious financial difficulties after the provisional attachment was made on the part of the victim company's property. Nevertheless, even though the amount of damage caused by each of the instant crimes reaches KRW 3.6 billion, it appears that most of the amount of damage was not recovered differently from the Defendant's assertion, and the victim company auditor, etc. sought strong punishment against the Defendant.

【Free Circumstances】

The Defendant found the Defendant guilty of embezzlement of KRW 1.1 billion paid to N. The Defendant was not subject to criminal punishment for about 10 years, and there was no criminal conviction exceeding the suspended sentence.

The presiding judge; and

Judges in the order of precedence

Judge Kang Dong-hun

1) The Z seems to be W to lend KRW 300 million to the employees of W who engage in credit business, etc. on November 20, 2015.

2) A person who lends KRW 2 billion is not the person who lends it.

3) Y was engaged in the activities to assist 0 business, and this was received KRW 500 million remitted by the Defendant in the account in the name of Y.

4) The Defendant’s statement dated 2, 16.

5) As seen earlier, prior to the examination of the suspect prior to detention, the Defendant stated that he would have made an oral statement about the place of use of KRW 500 million at the attorney’s office.

6) As seen earlier, W was the source of KRW 2 billion (the principal) that W lent to the victim company.

7) As seen earlier, the Defendant remitted to 0 KRW 450 million on November 30, 2015, and KRW 50 million on December 30, 2015, and KRW 50 million on August 12, 2015.

8) P stated in the Prosecutor’s Office and this Court that “If the first victim company was to invest KRW 1.5 billion in the instant business or if the PF loan was subsequently made, P would have to repay the obligation of KRW 2 billion to S with the loan.”

9) P did not prepare the above investment contract in the prosecutor's office and this court, and stated that "the first time was made by the investigative agency". The above investment contract is prepared by the defendant at his own discretion for the accounting of the amount of KRW 200 million remitted from the victim's company account to P prior to joint guarantee and the amount of the victim's corporate card used by P, and it seems that it is irrelevant to joint and several guarantee in itself.

10) According to the above contract, the down payment and intermediate payment out of the total price of KRW 15 billion may be replaced by two directors, including the president, from among five directors of Q Q, if the down payment is made in KRW 1.5 billion. Upon the payment of the intermediate payment, the remainder of KRW 12 billion shall be transferred to the person designated by P, and the balance of KRW 1.2 billion shall be paid as the business profit of the instant case, but it may be substituted by taking over obligations, such as AB, Q, etc. (Evidence No. 167). Meanwhile, the said contract appears to have been drafted a re-contract around December 2, 2015 after the first contract was made on or around 2016 and May 31, 200. P did not pay the remainder of the down payment after borrowing KRW 300 million,000,000,000,0000,000,000,000 from the victim’s account, which was personally transferred from the victim’s account.

11) The content of the Investment Contract (Evidence No. 96) appears to be related to the foregoing.

12) As seen earlier, P agreed to take over all the powers, etc. related to the instant business in KRW 15 billion from AL, and agreed to the effect that the remainder of KRW 12 billion among the 15 billions may be disposed of by means of acquiring Q and AB’s obligations, and that there was a difference between the personal obligations and Q.

13) Ulsan Nam-gu AC and AD

14) At the time, P stated that it is impossible to implement the project in this case because there are many friendly obligations due to the ground for application, and that there is a concern that additional contingent liabilities may occur at the Q2 meeting. The Defendant’s assertion that there was no problem such as contingent liabilities and there was no problem in the project in this case is difficult to accept.

15) Although the sentencing guidelines are not applicable to concurrent crimes under the latter part of Article 37 of the Criminal Act, it is examined to refer to appropriate sentencing in consideration of the fact that the sentencing guidelines are different types of crimes and criminal records before