Defendant

Defendant and Prosecutor

Kim Jong-ok (prosecution and public trial), and finger-ho (public trial)

Law Firm, Pacific and 2 others

Seoul Central District Court Decision 2011Gohap123 Decided January 5, 2012

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

However, the execution of the above punishment shall be suspended for three years from the date this judgment becomes final and conclusive.

1. Summary of grounds for appeal;

A. Summary of the defendant's appeal

(1) Legal principles as to occupational embezzlement

The lower court found the Defendant guilty of this part of the facts charged by misapprehending the legal doctrine on the intention of unlawful acquisition in the crime of embezzlement, although the Defendant did not intend to obtain unlawful acquisition.

(2) Unreasonable sentencing

Punishments (fines 100,000,000, and KRW 100,000 per day) imposed on the defendant by the court below are unreasonable.

B. Summary of prosecutor's appeal

(1) misunderstanding of legal principles as to occupational embezzlement and mistake of facts

In light of the fact that the Defendant was diagnosed as a dementia patient around the end of July 2010 when he neglected the management right of Nonindicted Company 1 (hereinafter referred to as “Nonindicted Company 1”), the Defendant’s intent of unlawful acquisition is recognized in view of the following: (a) the mother did not engage in any special advisory activity; (b) the Defendant withdraws the company fund under the pretext of an inevitable advisory activity; (c) the Defendant consumed the annual salary; and (d) the Defendant’s mother was diagnosed as a dementia patient around the end of 2010.

(2) misunderstanding of legal principles as to the operation of unregistered credit business and mistake of facts

Although the Defendant’s act as stated in this part of the facts charged constitutes a credit business under the Act on Registration of Credit Business, etc. and Protection of Finance Users (hereinafter “Credit Business Act”) and Presidential Decrees, the lower court determined that the Defendant’s act does not constitute a credit business.

The lower court determined that the Defendant’s loans to Nonindicted Co. 3 (hereinafter “Nonindicted Co. 3”) appears to have the substance of the investment amount. If the investment amount refers to “investment”, the Defendant constitutes “investment” and thus, constitutes a case where the Defendant registered a credit business in another person’s name as if he were not an investor, and thus, the lower court should have convicted him of having applied Articles 19(1)1 and 3(2)2 of the Credit Business Act, which are recognized as identical to the facts charged,.

(3) Unreasonable sentencing

The sentence imposed by the court below against the defendant is too minor that the defendant does not actually punish the defendant.

2. Ex officio determination

Before the judgment on the grounds for appeal by the defendant and the prosecutor, the prosecutor examined the facts charged as to the violation of the Act on Registration of Credit Business, etc. and Protection of Financial Users, which were acquitted by the court below, as the primary facts charged, and applied for the amendment of an indictment to add the facts charged as stated in the "paragraph 4 of the facts charged," as the ancillary facts charged, and since this court changed the subject of the judgment upon permission, the judgment of the court below was no longer maintained.

However, the defendant and prosecutor's assertion of misunderstanding of facts and misapprehension of legal principles still are subject to the judgment of this court, despite the above reasons for ex officio reversal.

3. Prosecutor on occupational embezzlement and judgment on the grounds for appeal by the defendant

A. The judgment of the court below

The lower court acquitted Nonindicted Company 1 and Nonindicted 2 on the charge of occupational embezzlement in relation to the portion of benefits paid from August 2005 to December 2012, 201, on the ground that it is difficult to readily conclude that the Defendant embezzled the amount equivalent to the benefits by pretending that Nonindicted Company 2 was paid the benefits to Nonindicted Company 2 with an illegal acquisition intent, since Nonindicted Company 1 and Nonindicted Company 2 actually performed duties as an adviser in accordance with the terms of the advisory agreement, and Nonindicted Company 1 paid advisory fees to be paid under the contract.

However, the lower court, on or after August 1, 2010 when Nonindicted 2 was unable to perform advisory services due to dementia, found the Defendant guilty of this part of the charges on this part, on the ground that, by concluding a contract with Nonindicted 2’s salary increase of KRW 140,00,000 per annum on January 1, 2011, and thereafter concluding a contract with the effect that the Defendant would increase the salary amount of KRW 170,000,000 per annum on June 1, 2011, the lower court found the Defendant guilty of this part of the charges.

B. Judgment of the court below

(1) Relevant legal principles

In embezzlement, illegal acquisition intention refers to the intention to dispose of another person's property in breach of his/her duties, such as his/her own property, for the purpose of seeking the benefit of himself/herself or a third party.

(2) Basic facts

In full view of the evidence duly admitted and examined by the court below and the defendant's statement in the court of the trial, the following facts are recognized:

① The Defendant established Nonindicted Company 1 on May 1, 1993 (the date of its incorporation on the corporate registry; July 1, 1994; the date of its merger; Nonindicted Company 5; and Nonindicted Company 1; and the position at Nonindicted Company 1, as the president, is a person who has ordered the representative director to perform his duties as a subordinate relationship to Nonindicted Company 6; and is a person who actually runs Nonindicted Company 1. Nonindicted Party 2, an adviser of Nonindicted Company 1, as the mother of the Defendant, is residing in the Daegu Suwon-gu from August 29, 2003 to the present date.

② Since the establishment of Nonindicted Company 1, Nonindicted Company 2 became an adviser. Nonindicted Company 1 newly established an advisory position on August 1, 2005, appointed Nonindicted Company 2 as a regular adviser, and paid a total of KRW 580,268,340 from August 25, 2005 to July 25, 2011 (the annual salary of Nonindicted Company 2 is KRW 120,000,000 to December 209; Nonindicted Company 130,000 to December 12, 2010; Nonindicted Company 20,000,000,000,000 won and KRW 1,30,000,000,000 from January 1, 201 to December 27, 2011; and Nonindicted Company 20,000,000 won and KRW 715,00,00,000,00.

In addition, Non-Indicted 2 was appointed as the auditor of Non-Indicted 1 as of March 31, 201, and was appointed as the auditor of Non-Indicted 2 from August 12, 2005 to the auditor of ○○○○ Marart Co., Ltd. (the auditor of Non-Indicted 7 was appointed as of January 10, 2008, which was after the trade name was changed to non-Indicted 7), and as of March 28, 201, he was employed as the auditor of Non-Indicted 8 Co., Ltd. as of March 28, 201, respectively, until now. There is no remuneration that the auditor of the above

③ At the meeting of the board of directors around 2005, Nonindicted 6 (former representative director at that time), who is the mother of the Defendant, proposed that Nonindicted 2, who is the mother of the Defendant, was appointed as adviser. On August 1, 2005, with the consent of the board of directors, the Defendant newly established the advisory position system and appointed Nonindicted 2 as adviser. In relation to the proposal at the time, the Defendant stated that, “I think, as in the case of the proposal, that “I do not know that I would like to do so, and that I would like to do so, if I did not have any money, I would like to do so, and if I would like to do so, I would like to do so more much more, and even if I would like to do so, I would like to do so.”

④ The Defendant provided management consulting at the time of Nonindicted 2, an adviser, to himself, made a lot of contributions to alleviate conflicts with door-to-door sales business organizations, provided advice on the recreation and maintenance education, etc. of flap system (business organization). The Defendant provided advice on the sales management of ○○○ Mart (Nonindicted Company 1, a subsidiary company, established ○○○ Mart around May 24, 1997) and provided advice on the internal management (cloat management, landscaping management, etc.) and the food management of Nonindicted Company 1’s training institute, and provided advice on the development of the wide-to-door and the quality maintenance of products.

⑤ Nonindicted 6, the representative director of Nonindicted Company 1, stated that Nonindicted 2, an adviser, could not speak in detail on a yearly basis with regard to the duties performed by Nonindicted Company 2. In full view of the statements made by the relevant persons and the details of Nonindicted Company 2’s materials related to the advisory personnel affairs submitted by Nonindicted Company 1, Nonindicted 2, who was present at the business conference (executive meetings and emergency management meetings) once a month or twice a month, had an interview with the president and major executive officers, was made two times a year, was present at the business report, and contributed to the stabilization of the atmosphere of the business organization and the conflict resolution. Nonindicted 6, the representative director of Nonindicted Company 1, who was an adviser, contributed to the ○○○○○m Management (cleaning, the maintenance of products, the repair of products, the display of products, the monitoring, and opening of sales stores), contributed to Nonindicted Company 1’s attendance at the training center’s meeting to directly emphasizing the level of business management-oriented advice, product development (management-oriented advice, product management-oriented).

6. Nonindicted 2, an adviser, did not keep a document by means of settlement, etc. on documents; Nonindicted 2’s remarks at a management council or an emergency management council did not enter the minutes, etc.; and Nonindicted 2, an adviser, did not prepare and report a business report to Nonindicted 2, an adviser, at the time of filing a business report twice a year.

7) The national bank account (Account Number 1 omitted), in which Nonindicted 2’s benefits are transferred, was opened at the branch of the branch of the office of Nonindicted 1 Company. The head of the Tong and Do in the above account was managed by the Defendant, and the affairs such as deposit and withdrawal were managed by the Defendant in writing, and Nonindicted 2 did not receive or transfer direct money from the above benefit account.

④ The above wage account was established on August 11, 2005 and deposited KRW 19,00,000 for the first time on August 19, 2005 (the first place of business). On October 17, 2005, the Defendant’s personal funds irrelevant to Nonindicted 2, such as deposit of KRW 17,500,000 (the place of business) was also deposited. The Defendant’s personal funds irrelevant to Nonindicted 2’s payment was also deposited. On August 25, 2005, Nonindicted 2’s payment of KRW 7,779,340 was deposited on October 25, 2005, and since the deposit of KRW 7,779,340 was made on October 26, 2005, the first deposit of KRW 25,000 was made on October 26, 2005, and the first deposit of KRW 15,500,000 after the payment was made on October 25, 2005.

9) Before Nonindicted 2 was appointed as an adviser, the Defendant paid the living expenses to Nonindicted 2, who was his mother, from January 25, 2007, and from around September 23, 2007, Nonindicted 2 transferred KRW 3 million monthly living expenses to the National Bank account (Account Number 2 omitted; hereinafter “living expenses account”) in the name of Nonindicted 9 (Chin of the Defendant) or the Defendant’s name. The Defendant first paid KRW 3 million to Nonindicted 2 by means of direct transfer from the said payment account to the name of Nonindicted 2, around March 26, 2008, when Nonindicted 2 began to receive the benefits as an adviser. The Defendant paid KRW 3 million to Nonindicted 2 by September 23, 2011.

(10) Examining the entry of Nonindicted 2, an adviser, in the receipt for tax withholding of earned income, there is no deduction other than personal deductions and insurance premium deductions.

① On July 30, 2010, Non-Indicted 2, an adviser, was assessed of neology in Samsung Medical Center, and as a result, was diagnosed as an early dementia symptoms, and was confirmed as a dementia patient on January 13, 201 after a follow-up inspection. Non-Indicted 2, an adviser, was unable to perform advisory services due to dementia from August 2010.

(3) Determination

Comprehensively taking account of the facts acknowledged above, it is determined as follows. In full view of such determination and related legal principles, it is recognized that the Defendant, a de facto manager of Nonindicted Co. 1, violated the occupational duty to preserve the property of Nonindicted Co. 1 for the purpose of seeking his own interest by taking advantage of his position, and then withdrawn the property of Nonindicted Co. 1, which he manages and keeps as remuneration of Nonindicted Co. 2 and disposed of as if he were his own possession.

① The content that Nonindicted Party 2 provided management consulting to the Defendant with respect to Nonindicted Party 2’s business as an adviser seems to be a consultation with the Defendant’s children on a daily basis rather than having been made in a position of adviser. Moreover, the content of Nonindicted Party 2’s business contributed to Nonindicted Company 1 is neither the settlement by Nonindicted Party 2 nor any other document nor the details of Nonindicted Party 2’s statement at the meeting of the management council, etc. (the contents of Nonindicted Party 2’s statement are abstract, not the specific advice or instruction on the subject of the meeting, but the abstract contents of the meeting) did not appear to be written in the minutes, and the report was received without a written report at the time of receiving the business report. In light of the content of Nonindicted Party 2’s business report, Nonindicted Party 2 appears to have attended the various events of Nonindicted Company 1 as the mother of the Defendant, who is the chairperson of Nonindicted Company 1, and was given honorable treatment thereto, it does not seem to have given advice to the employee as an adviser of Nonindicted Company 1.

② In light of the reasons for Nonindicted 6’s proposal that proposed Nonindicted 2 to take office as an adviser and the background of the Defendant’s decision, Nonindicted 2’s decision to take office as adviser appears to be a major consideration for the Defendant’s health and social activities rather than seeking advice on Nonindicted 1’s management, namely, for Nonindicted Company 1.

③ The Defendant, at the board of directors meeting, expressed his opinion that Nonindicted 6, the present representative director (at the time) appointed Nonindicted 2 as an adviser, and decided to be an adviser at the board of directors meeting. However, it cannot be said that the Defendant had decided to appoint the mother of the Defendant as an adviser until the executives, including Nonindicted 6, employed by the Defendant in the status of having substantial and exclusive management rights, created an organization without the principal of the Defendant’s mother, and made a decision on the appointment of the Defendant’s mother as an adviser. However, it seems that the Defendant was determined to be the adviser of Nonindicted 2 by exercising substantial influence on the agenda items proposed at the board of directors meeting by expressing his consent.

④ In light of the contents of Nonindicted 2’s activities acknowledged earlier, the background or reason that Nonindicted 2 was appointed as an adviser, and other examples that Nonindicted 2 was appointed as an auditor without any benefit, and the fact that Nonindicted 2 had no significant differences in the activities after the transfer of advisory positions and subsequent activities, it is not determined that Nonindicted 2’s advisory appointment was essential for the company or that the payment of benefits for the advisory appointment was essential.

⑤ The Defendant was under duty to support Nonindicted 2 as the male head, and even before Nonindicted 2 was appointed as an adviser, he paid the daily living expenses of KRW 3 million per month by cash or account transfer, etc. In light of the fact that Nonindicted 2 was not changed in the amount or payment method even after Nonindicted 2 was appointed as an adviser, it is not deemed that the Defendant’s advisory appointment of Nonindicted 2 and the payment of his benefits is specially related to Nonindicted 2.

6) In light of the fact that the Defendant opened Nonindicted Party 2’s benefit account at the location of Nonindicted Party 1, while keeping the passbook and seal of the above benefit account, deposited, withdrawn, transferred, etc., and the Defendant deposited and withdrawn the Defendant’s personal funds from the first transaction after opening Nonindicted Party 2’s benefit account, or opened and used the benefits paid to Nonindicted Party 2 for several months without using the benefits paid to Nonindicted Party 2 for Nonindicted Party 2 each month, the above benefit account is deemed to be the Defendant’s own account and not deemed to be the account for Nonindicted Party 2. Furthermore, considering the management method and transaction point of the above benefit account, the Defendant’s living expenses paid to Nonindicted Party 2, the method of payment, and the amount of transaction in preparation for the living expenses paid to Nonindicted Party 2, among the details of the above payment from the above account, the Defendant appears to have used the money paid to Nonindicted Party 2 for personal purposes.

7) Taking account of all the circumstances acknowledged earlier, the Defendant deemed to have taken the office of Nonindicted Party 2 as an adviser to use his benefit as an adviser and used the funds deposited in the name of Nonindicted Party 2 for an individual purpose after he took office as an adviser.

8) The Defendant asserts to the effect that Nonindicted 2, while managing the Defendant’s account, managed the account by changing the cost of living, and that the Defendant paid the cost of living by frequently settling accounts. However, as seen earlier, the Defendant was paying the cost of living to Nonindicted 2, who is the Defendant’s mother, with personal funds, and there was no particular change in the payment method even after Nonindicted 2’s voluntary intervention. Even if part of the money deposited with Nonindicted 2 was paid as the cost of living by the mother’s mother who is the adviser, it is nothing more than a consumption form using the already embezzled money.

9) In light of the fact that Nonindicted 2 contributed to the company during the period, the Defendant asserts that Nonindicted 2’s payment of advisory commission and salary has the nature of compensation for Nonindicted 2’s contribution, so it was concluded on January 1, 201 notwithstanding the diagnosis of dementia, and that the increase in salary upon renewal of the advisory contract on June 1, 2011 was made at the end of the last consideration of Nonindicted 2, even though having known the fact that the dementia was confirmed, it was against the fact that the Defendant appointed Nonindicted 2 as an adviser is merely “for Nonindicted 2 or Defendant,” and it was not “for the company.”

C. Sub-decision

As seen earlier, the Defendant is recognized as an unlawful acquisition intent. Therefore, it is recognized that the Defendant embezzled the funds of Nonindicted Company 1 through the method of taking office through the board of directors by exercising his de facto and exclusive influence on Nonindicted Company 1 as an adviser, thereby taking office through the board of directors’ meeting.

Therefore, the judgment of the court below convicting the defendant only for KRW 64,109,480, which is the sum stated in the annexed Table 1 / 158,860, which is the facts charged prior to January 201, 201, on the ground that it is not recognized as an intention of illegal acquisition, on the grounds that only the money paid to Nonindicted 2 after January 201 is recognized, and on the grounds that the previous part is not recognized as an intention of illegal acquisition, on the grounds that it is not recognized as to the previous part, it is erroneous in the misapprehension of legal principles and misapprehension of legal principles as to only KRW 64,109,480, which is the sum stated in the annexed Table 1 / 66 or 72 of the crime

4. Determination of the misapprehension of the legal principles by the prosecutor on the fact that a non-registered credit business is running (mainly charged facts)

A. Main facts charged

Any person who intends to engage in credit business shall register with the Special Metropolitan City Mayor, Metropolitan City Mayor, Do Governor, or Special Self-Governing Province Governor having jurisdiction over

Although the Defendant did not register his credit business, around November 2010, at the office of Nonindicted Co. 3 located on the fourth floor in Gangnam-gu Seoul ( Address omitted), Nonindicted Co. 3 agreed to provide the Defendant with all of the loan contracts prepared by Nonindicted Co. 3 as collateral, instead of lending the loan business funds to Nonindicted Co. 3 with the representative director of Nonindicted Co. 3 and Nonindicted Co. 4, on a yearly basis.

Pursuant to the foregoing agreement, the Defendant loaned a total of KRW 9.9 billion to Nonindicted Co. 3 from that time to August 10, 2011, and received interest of KRW 314,147,912 (227,757,852, when tax credit was deducted) in total, as shown in the attached Table 2 of Crimes List 2, and received all of the loan agreements entered by Nonindicted Co. 3 as collateral between the lender and the lender.

Accordingly, the Defendant, without registering, engaged in credit business.

B. The judgment of the court below

As to the above primary facts, the lower court acquitted the Defendant of this part of the primary facts charged on the ground that the Defendant’s lending of KRW 9.9 billion to Nonindicted Co. 3 had the substance of “investment money” and the Defendant’s lending as above does not constitute “credit business” regulated by the Credit Business Act.

C. Judgment of the court below

(1) Relevant legal principles

The term "credit business" regulated by the Credit Business Act means the business of lending or arranging money, and the term "business" here refers to the continuous repeating of the same act, and the issue of whether it constitutes such a business shall be comprehensively taken into account various circumstances, such as the repetition and continuity of the lending of money, the existence of the business, and the purpose and manner of the act.

(2) Basic facts

The following facts are recognized in full view of evidence duly adopted and examined by the court below and the defendant's statement in the court room.

① While the Defendant was working on or around April 2010 and examined business feasibility, the Defendant created a new business team on or around June 2010, and joined the △△ Group and performed the Defendant’s business with the Defendant’s secret book from around November 2006 at the general personnel team. From around June 2009 to May 2010, the Defendant was working on Nonindicted Company 1’s financial team) and Nonindicted 11, and 12 ( Nonindicted Company 11 and 12, who had been working on the lending business, employed Nonindicted Company 1 as the employee of Nonindicted Company 1 on or around June 2010). The Defendant promoted the business with the aim of establishing the new business team on September 2010.

② The “loan financial business plan” prepared by the new business team on August 30, 2010 was reported to the Defendant, who is the representative director of Nonindicted Company 1, and the Chairperson of Nonindicted Company 6 and Nonindicted Company 1, through Nonindicted Company 4’s head of Nonindicted Company 4’s office (from July 2006 to September 2010) (the head of the management planning team) (the head of the management planning team was employed before retirement) with a plan regarding the overall contents of the business prior to commencement of credit business, and was in office before retirement. From early April 2010, he planned the establishment of the loan company and was appointed as the inside director of Nonindicted Company 3 on August 27, 2010). The content of the business plan was reported to the name of the corporation as “Nonindicted Company 3”; the form of the corporation as “one director”; the amount of the capital as “60 million won”; the location of Nonindicted Company 3’s office as “Seoul 4th floor; and the number of Nonindicted Company 3’s non-Indicted Party 3’s investment Plan and investment Plan.

③ Of the KRW 600,000, KRW 100,000 of Nonindicted Company 3’s investment, the Defendant lent the name of Nonindicted Company 10 to Nonindicted Company 10, and the remaining KRW 500,000 was invested by Nonindicted Company 13. Nonindicted 13 was invested in Nonindicted Company 3 in the manner of receiving the Defendant’s investment solicitation by family members with relatives and relatives, and deposit KRW 500,000 to Nonindicted Company 10’s account around August 26, 2010 in the name of the wife, Nonindicted 14. However, there was no written investment agreement or any other disposal document, and there was no need to take any measures, such as an investment agreement

④ The Defendant retired from Nonindicted Company 4, who was working for Nonindicted Company 1, and retired from Nonindicted Company 3’s representative director, and Nonindicted Company 10, 11, and 12 who was working for Nonindicted Company 1, and had Nonindicted Company 3 work as an employee of Nonindicted Company 3.

⑤ The registration of Nonindicted Co. 3’s credit business was made to the Gangnam-gu Office on September 13, 2010; the registration of business was made on September 17, 2010; and the incorporation was made on August 27, 2010.

④ From the time of the credit business plan, the Defendant had set up a place of use of KRW 600 million, and the period of one year after the commencement of the business was set to provide Nonindicted Co. 3 with necessary funds. Accordingly, the Defendant lent to Nonindicted Co. 3 a total of KRW 9.9 billion on nine occasions from December 10, 2010 to August 10, 201, and the Defendant received KRW 314,147,912 ( KRW 227,757,852 at the time of tax credit deduction) with the interest of KRW 8% on the said money, and received a loan agreement that was written between Nonindicted Co. 3 and its lender as security.

7) The Defendant had a plan to make a direct investment since one year after the start of Nonindicted Company 3’s business, had the idea to convert the loaned money into the investment, and furthermore, had a plan to make Nonindicted Company 3 into a savings bank. Although Nonindicted Company 3 did not set specific measures, it had a capital increase plan around October 201.

④ As to the operation of Nonindicted Co. 3, Nonindicted Co. 4’s representative directly reported to the Defendant to the head office of Nonindicted Co. 1 in one month, the report was a summary of the business status, business day, balance sheet, income statement, monthly income statement, daily fund plan, etc.

(3) Determination

In full view of the facts acknowledged above, the reason why the defendant lent KRW 9.9 billion to Nonindicted Co. 3 is that the defendant raised operating funds which was planned in advance while the defendant launched Nonindicted Co. 3, and the defendant converted funds from the commencement of Nonindicted Co. 3 to the loaned funds for a period of one year after the commencement of the business of Nonindicted Co. 3, it is considered that the plan to develop Nonindicted Co. 3 into the Savings Bank

In light of the aforementioned relevant legal principles, the Defendant’s lending KRW 9.9 billion to Nonindicted Company 3 is determined as “investment money” as a loan expected to be converted into investment as at the time of original adjudication, and it does not seem that such lending by the Defendant constitutes a credit business governed by the Credit Business Act. Accordingly, the Prosecutor’s assertion on this part is rejected.

In light of the purport of the amendment of the Credit Business Act, the prosecutor asserts to the effect that the Defendant’s act constitutes a typical “business prior to concealment” and that the Defendant’s act as stated in the facts charged also falls under the scope of credit business. However, the Defendant’s act of lending “the hidden prior owner” as alleged by the prosecutor should be determined as operation of credit business under the Credit Business Act, and as seen earlier, the Defendant’s act of lending KRW 9 billion does not constitute “credit business.” Next, the term “credit business” under the above Credit Business Act refers to lending of money as “business.” However, it is excluded from cases prescribed by the Presidential Decree considering the nature of lending, etc. In light of the statutory form of lending, the issue of whether the Credit Business Act constitutes a credit business regulated by the Credit Business Act is excluded from part of the credit business stipulated by the Act. Accordingly, the Defendant’s act of lending money to Nonindicted Party 9 is not subject to the aforementioned provision of the Credit Business Act even if it was revised on September 1, 2005.

D. Determination as to the non-existence of judgment as to the violation of the duty to register as an investor

The Prosecutor’s assertion in this part is based on the premise that the Defendant’s actual substance of KRW 9.9 billion lent to Nonindicted Co. 3 is an investment and the Defendant did not register the fact that it constitutes “investment”. As seen earlier, it is insufficient to recognize that the Defendant’s lending of KRW 9.9 billion does not constitute “investment” as provided by the Credit Business Act, and the evidence submitted by the Prosecutor alone is insufficient to acknowledge that the amount of KRW 9.9 billion is “investment.” Therefore, the Defendant does not constitute “investment” as provided by the Credit Business Act. Accordingly, the lower court’s failure to determine whether the Defendant’s act constitutes “investment” as provided by Articles 19(1)1 and 3(2)2 of the Credit Business Act is justifiable, and the Prosecutor’s assertion in this part is rejected.

E. Sub-decision

It is reasonable for the court below to find the defendant not guilty of this part of the facts charged, on the ground that the defendant's act does not constitute "credit business". Thus, the prosecutor's appeal in this part is not accepted.

5. Conclusion

Therefore, the judgment of the court below is reversed under Article 364 (2) of the Criminal Procedure Act without examining the defendant and prosecutor's assertion of unfair sentencing, and the judgment below is reversed and it is again decided as follows.

The Defendant is a major shareholder and the president of Nonindicted Company 1, who exercises a substantial right to manage the said Company.

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

As a major shareholder and president of Nonindicted Company 1, the Defendant had a duty to use the operating fund of the said Company for the said Company.

The Defendant, who was the mother of Nonindicted Party 2, who supported the Defendant as the mother of South and North as the adviser of Nonindicted Party 1, pretended that the Defendant would pay normal wages, and was willing to embezzled the amount equivalent to the amount of the benefits.

From August 25, 2005 to July 25, 2011, the Defendant deposited approximately KRW 8,000,000, a sum of KRW 580,268,340 per month in the National Bank Account (Account Number 1 omitted) with the aforementioned Nonindicted Party 2’s daily living expenses, etc. as shown in attached Table 1.

Accordingly, the Defendant embezzled the property of Nonindicted Company 1.

2. Violation of the Act on Registration of Real Estate under Actual Titleholder’s Name, National Land Planning and Utilization Act;

No one who intends to enter into a contract to transfer ownership to any land located within an area subject to permission for a land transaction contract shall obtain permission from the competent authority, and no one shall obtain permission for a land transaction contract by fraudulent or other illegal means, and no one shall register any real right to real estate in the name of a title trustee

In purchasing real estate from Non-Indicted 15, the Defendant was aware of the fact that it is impossible to obtain permission for a land transaction contract in the name of the Defendant in the course of purchasing the real estate located in the Gu Ri (number 1 omitted), (number 2 omitted), (number 3 omitted), and (number 4 omitted), which is the permission for a land transaction contract, in the name of Non-Indicted 16 as if Non-Indicted 16 were purchased, and entered into a title trust agreement with the above Non-Indicted 16 to obtain permission for a land transaction contract in the name of the above

The Defendant: (a) completed around March 17, 2008, upon Nonindicted 16 applied for permission for a land transaction contract as of April 1, 2008, as if he purchased each of the said real estate from Nonindicted 15; (b) concluded a sales contract with Nonindicted 15 to purchase the said real estate in gold amount of KRW 352,00,000, around April 7, 2008; and (c) registered the ownership of each of the said real estate in the name of Nonindicted 16 on April 15, 208.

Accordingly, the Defendant obtained permission for a land transaction contract by fraud or other improper means, and completed the registration of ownership transfer in the name of non-indicted 16.

3. Violation of the Farmland Act;

Where a person intends to divert farmland outside an agricultural promotion zone, he/she shall obtain permission from the competent authority for diversion of farmland.

On April 208, the Defendant used farmland for the purpose of the playgrounds, access roads, and landscaping site attached to Nonindicted Company 1’s Training Institute by cutting or banking up a total of 1,301 square meters out of the above farmland, and making it easy to use it for the purpose of the competent authority’s permission, without permission, in relation to the farmland located in the Gu Ri (number 1 omitted), (number 2 omitted), (number 4 omitted) and (number 4 omitted.

4. Violation of the Act on Registration of Credit Business, etc. and Protection of Financial Users.

Anyone who intends to engage in a credit business shall register with the Special Metropolitan City Mayor, Metropolitan City Mayor, Do Governor, or Special Self-Governing Province Governor having jurisdiction over the relevant place of business, and where a person who intends to register a credit business is a corporation, he/she shall submit to the Mayor/Do Governor an application stating the names or names, addresses and shares of investors, names and addresses of executive officers, and evidentiary documents, and shall not register a credit

Although the Defendant intended to establish a lending company as Nonindicted Company 3 with its capital invested, the Defendant intended to establish Nonindicted Company 3’s loan business. However, even though Nonindicted Company 10’s employee, who had completed the registration of the credit business as if he was an investor of Nonindicted Company 3, was aware of the fact that the Defendant was a shareholder of the lending company, he would have a negative impact on the image of Nonindicted Company 1, who was operating the water purifier company, completed the registration of the credit business, and the Defendant did not register the credit business under his personal name, around September 2010, at Nonindicted Company 3’s office located on the fourth floor in Gangnam-gu Seoul ( Address omitted), Nonindicted Company 11, 12, and 10, etc., who was an employee of Nonindicted Company 3 and worked for a long time at Nonindicted Company 4 and 1, through the above Nonindicted Company 4, presented a personal right to employ Nonindicted Company 13 as an employee of Nonindicted Company 3, and received the loans from 2017 to 2018, and received the loans as a total of 16318.2.

Accordingly, the Defendant actually operated Nonindicted Company 3 without registering the credit business, while running the credit business.

1. Part of the defendant's oral statement in the court room;

1. Entry of the defendant in part of the trial records in the third and fourth trial records of the court below;

1. Part of the witness’s statement in the second trial record of the court below

1. Each part of the statements made by the witness, Nonindicted 17, 18, and 19 in the third trial records of the court below

1. Examination protocol of the accused by prosecution;

1. Each written statement by the prosecution against Nonindicted 10, 16, 13, 20, 11, 4, and 21

1. The statement of Nonindicted 12 and 22

1. The details of health insurance benefit for Nonindicted 2 health insurance, the current status of business in July 201, the output of the loan business plan, the materials related to Nonindicted Company 3’s financing business, the materials materials related to Nonindicted Company 3’s personnel affairs, the draft of the materials, the draft of the annual salary adjustment of the chairman group, Nonindicted Party 2’s wage withholding receipt, Nonindicted Party 2’s wage transfer, the review of the feasibility of the loan business, and the monthly materials reported to the suspect by Nonindicted Party 3 to the suspect. The details of the calculation of the payment of the short-term loan interest paid to the suspect sent by facsimile from Nonindicted Company 3, the total payment and deduction details of Nonindicted Company 2’s advising service period, Nonindicted Company 3’s business registration certificate, Nonindicted Company 3’s business registration certificate, Nonindicted Company 3’s loan and loan-related documents, the details of Nonindicted Company 3’s loan loans, land transaction contract, permission for use of farmland, the submission of the results of investigation report, the statement of Nonindicted Company 1’s loan transaction contract, Nonindicted Company 26, the new Security Foundation

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

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356 and 355 (1) of the Criminal Act (including the fact of occupational embezzlement, including the fact of occupational embezzlement), Articles 7 (1) 1 and 3 (1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, Article 7 (1) 1 of the Act on the Registration of Real Estate under Actual Titleholder’s Name, and Article 3 (1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name (the choice of imprisonment), Article 141 subparagraph 6 of the former National Land Planning and Utilization Act (amended by Act No. 9037 of March 28, 2008), Article 118 (1) of the former National Land Planning and Utilization Act (amended by Act No. 9037 of March 28, 2008), Articles 57 (2) and 34 (1) of the Farmland Act (the selection of imprisonment), Article 19 (1) 1 and 3 (1)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes with punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) with the largest punishment]

1. Discretionary mitigation;

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

1. Suspension of execution;

Article 62(1) of the Criminal Act (Consideration favorable Circumstances among the Reasons for Sentencing below)

1. Defendant's assertion;

The defendant asserts to the effect that he did not participate in the management of Nonindicted Company 3 from the original judgment to the trial court.

2. Basic facts

In full view of the evidence duly admitted and examined by the court below and the defendant's legal statement in the trial court, the facts and the following facts recognized in Section 4.B. are recognized.

① Around May 2010, the Defendant recommended Nonindicted 4’s head of the management planning team to enter into the credit business, and said Nonindicted 4 to be “to directly participate in the credit business after introducing Nonindicted 13 to Nonindicted 4 in terms of image, and subsequently developing Nonindicted 4 as a savings bank in the future.” The Defendant presented an opinion that “the documents review the feasibility of the credit business conducted on May 26, 2010, regarding Nonindicted 1 Company’s image will be likely to damage the corporate image.”

② During the employment process of Nonindicted 11 and Nonindicted 12 employed by Nonindicted Company 1 in order to enter into credit business, the Defendant, at the final interview conducted in his office, asked visitors to “If the Defendant establishes a lending company in his office, how future prospects will be followed, and whether the lending company will live among the lending company.” During the interview, the Defendant tolds that “a loan shall not be made more than five million won.”

③ There was a defect that Nonindicted 4 said that “I will refrain from lending more than three million won.”

④ From October 11, 2010 to August 12, 2011, Nonindicted Co. 3 loaned KRW 12,482,661,780 in total, and received interest from KRW 1,412,297,972 in total.

⑤ The Defendant did not directly register his credit business under his own name, and on September 13, 2010, the Defendant registered his credit business with “Non-Indicted 4, the representative director of Non-Indicted 3 Company.”

3. Determination

Comprehensively taking account of the above facts acknowledged, the Defendant decided to operate a credit business on the ground of Nonindicted Company 10 and Nonindicted Company 13, not directly taking into account the image of the Defendant’s new business after having decided to enter into the credit business. ② The Defendant invested KRW 100 million out of the capital of Nonindicted Company 3 in the name of Nonindicted Company 10, and received an investment of KRW 500 million from Nonindicted Company 13, who could exercise substantial influence, retired the employees working in Nonindicted Company 1, and let Nonindicted Company 3 work as the representative director and the employees, and carried out the funds of Nonindicted Company 3. ③ The Defendant used the funds planned from the launch of Nonindicted Company 3, and actually operated Nonindicted Company 3 upon receiving a report on the overall management, such as the business situation of Nonindicted Company 3, and ④ The Defendant appears to have been using the funds of Nonindicted Company 3, who was merely a 600 million capital loan to Nonindicted Company 10 million, and the Defendant appears to have been using the funds directly from Nonindicted Company 13 or 13 (the Defendant appears to have been using the funds.).

Taking into account all these circumstances, it is recognized that the Defendant, with the intention of engaging in the credit business by itself, was engaged in the credit business by making Nonindicted Company 3 and without registering the credit business under his own name, while actually engaging in Nonindicted Company 3 and lending money to the finance user.

The fact that the defendant was sentenced to a fine of one million won due to the violation of the Securities and Exchange Act, there is no record of punishment for the crime except for the crime that he was punished, that part of the amount embezzled by the defendant returned to the non-indicted 1 company, that the equity structure of the shares of the non-indicted 1 company operated by the defendant seems to be included in the category of the family company, that the defendant did not engage in a special illegal act while running a credit business, that part of the defendant's crime concerning the purchase of land in the face of the defendant is not for the personal interest of the defendant, but for the personal interest of the defendant, but for the crime that occurred in the course of the operation of the non-indicted 1 company. The restoration of the farmland in question of illegal diversion to the original state was completed

In light of the fact that the defendant intentionally committed an illegal act under his/her name without registering credit business in consideration of the image of himself/herself and non-indicted 1, the defendant, as a social leader, should satisfy morality corresponding to himself/herself but neglected various legal regulations in the process of acquiring the above land, the defendant's prosecutor's investigation ( August 16, 201) and the defendant's address at the time of the examination for recognition of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the court of Seocho-gu, Seoul ( Address 2 omitted), although the above land sales contract of the case of the defendant (name 2 omitted), the above land sales contract of the defendant (name 3 of the sales contract to the effect that the defendant recovered the name of the above land) is written to the defendant's address at his/her own discretion to acquire the administrative address of the Eup in Gyeonggi-do.

Other conditions of various sentencing, such as the defendant's age, criminal records, character and conduct, environment, family relationship, motive and background of the crime, circumstances after the crime, etc., and the fact that the scope of sentencing guidelines set by the sentencing guidelines of the Supreme Court is from 1 year and 6 months to 3 years, etc. shall be determined as the same as the order.

The summary of the facts charged in this case against the defendant is the same as the above 4-A (1). This constitutes a case where there is no proof of a crime as seen in Article 4-2 (b) of the above 4-2, and thus, the defendant must be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as the defendant is found guilty of violating the Act on Registration of Credit Business, etc. and Protection of Financial Users against the defendant, which is the ancillary facts

[Attachment]

Judges Hwang Han-sik (Presiding Judge)

1) The scope of the sentence of recommendation 1 year, 6 months to 3 years [decision of type] Embezzlement Embezzlement Offense of Embezzlement and Breach of Trust (Special Convicts): A company or family company (decision of the recommended area] mitigated area