In a case where the Defendant, an actual operator of the Company A, borrowed money from Company B as business funds, and transferred Company B’s loan claims to Company C as security for the above debt to Company C, and requested Company C to pay part of the above claim without notifying the transfer of the claim, which was the third obligor C, and embezzled Company B’s property by receiving a partial repayment from Company C to the account in the name of Company A, and using the money as business funds of Company B operated by the Defendant, the case holding that the Defendant’s above money repaid was owned by Company A and cannot be deemed as owned by Company B, and thus, the Defendant embezzled Party B’s property.

Defendant, the actual operator of Company A, borrowed a total of KRW 1.75 billion from Company B as business fund, and transferred the loan claim amounting to KRW 2.2 billion to Company C, which was equivalent to the above debt, to Company C, as security, but demanded Company C to pay KRW 1.1 billion as part of the above claim without notifying the transfer of the claim to Company C, which was the third obligor C, and embezzled Company B’s property by using Company C’s business fund, etc., which was transferred from Company C to the account under the name of Company C, and the Defendant embezzleded Company B’s property by using Company C’s business fund, etc.

The case affirming the judgment of the Supreme Court en banc Decision 300Da14448 delivered on the ground that, although the Supreme Court has long decided that if the obligor concludes a contract for the transfer of security for the movable property to secure performance of an obligation and still occupies the movable property by the method of occupation revision, the obligor cannot be the subject of embezzlement as it takes custody of his own property; and that if the assignee takes over the obligation to the third obligor for the purpose of collateral transfer, even if the assignee takes over the obligation to the transferor for the purpose of collateral transfer, the obligee cannot realize the foregoing obligation, which is the collateral, until the security right is exercised, and the assignee or the assignee cannot have the above obligation itself. Thus, the transferor collected money from the third obligor before the security right is duly exercised, and the obligor is also deemed to have the transferor, and since the obligor cannot be deemed to have been aware of the obligation of the transferor prior to the transfer of obligation to the third obligor, the obligor cannot be deemed to have obtained notification of the transfer of obligation to the assignee, and thus, it is difficult for the transferor to directly obtain the notification of obligation to the assignee prior to the transfer of obligation.

Article 355(1) of the Criminal Act; Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 15256, Dec. 19, 2017); Article 325 of the Criminal Procedure Act

Defendant 1 and one other

Defendant 1 and Prosecutor

Go Young-young et al.

Law Firm Appellant et al.

Busan District Court Decision 2018Gohap292, 490, 2019Gohap182, 319 decided January 10, 2020

【Reversal Part】

Defendant 1 of the lower judgment is reversed.

Defendant 1 shall be punished by imprisonment for five years.

Of the facts charged in this case, Defendant 1 is not guilty of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement).

【Each Part】

The prosecutor's appeal against Defendant 2 is dismissed.

1. Summary of grounds for appeal;

A. Defendant 1

1) misunderstanding of facts and misapprehension of legal principles

A) 2018Gohap292 - Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

A person who uses 2.21 billion won in the form of service payment (hereinafter “instant KRW 2.21 billion”) out of the purchase price of two parcels, other than 2,215 square meters (hereinafter “instant land”), in the form of service payment, is Nonindicted 1 (or Nonindicted 1 and Defendant 2).

In other words, the Defendant did not have received delegation from Nonindicted 2 to sell the instant land, and there is no fact that the Defendant conspiredd with Nonindicted 1. The Defendant transferred Nonindicted 3 Co. 3 (hereinafter “Nonindicted 3”) to Nonindicted Co. 1 on or around March 2014, and Nonindicted Co. 1 used the said KRW 2.1 billion deposited in August 9, 2015 to Nonindicted Co. 3.

B) 2019Gohap182 - Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and attempted attempted crimes

Nonindicted 2 agreed to use the Defendant’s repayment of KRW 1.1 billion from Nonindicted Co. 4 (hereinafter “Nonindicted Co. 4”). Therefore, the Defendant’s use of the Defendant’s repayment of KRW 1.1 billion can not be an embezzlement.

In addition, there is no right to demand the return of the above KRW 1.1 billion to the defendant (i.e., the obligation of the defendant to return the above KRW 1.1 billion to the non-indicted 2). Thus, it does not constitute a conflict to send the defendant to the non-indicted 2 a document verifying the contents of the indictment.

C) 2019Gohap319 – Violation of the Punishment of Tax Offenses Act

As seen in paragraph (a), the Defendant did not have been involved in the acquisition and use of KRW 2.21 billion. As such, the Defendant received false tax invoices entered in the indictment in the process of acquiring and using KRW 2.21 billion and no relation exists with the Defendant.

2) Unreasonable sentencing

The sentence of the lower court (five years of imprisonment) shall be too unreasonable.

(b) Prosecutors;

1) misunderstanding of facts – The portion of innocence against Defendant 2

In full view of the fact that Defendant 1 met to negotiate the purchase and sale of the instant land, Defendant 1 said that “I need not change the vehicle to benz?” and that Defendant actually received KRW 198 million out of KRW 2.21 billion and used it, Defendant 1 and Nonindicted 1 actively participated in the act of breach of trust.

Therefore, as co-offenders with Defendant 1 and Nonindicted 1, Defendant cannot be exempted from the liability for the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation). In so doing, the lower court erred by misapprehending the legal doctrine.

2) Unfair sentencing - Defendant 1

The sentence of the court below is too uneasible and unfair.

2. Ex officio determination - On Defendant 1

Prior to the judgment on the grounds for appeal by Defendant 1 and the prosecutor, Defendant 1's violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) is considered ex officio.

A. Facts charged

From August 2015 to September 201 of the same year, the Defendant borrowed an amount equivalent to KRW 1.75 billion in total from Nonindicted Co. 2 to September 2, 2015 as business funds, and in the “△△△△” coffee shop located at ○○○○○○ at the end of October 2015, the Defendant embezzled the victim’s property with Nonindicted Co. 5’s business funds, despite having transferred the victim’s claim equivalent to KRW 2.2 billion against Nonindicted Co. 4 as security for the above obligation, without giving notice of the transfer of claim to Nonindicted Co. 3’s non-indicted 4, the third debtor, and requested Nonindicted Co. 4 to repay KRW 1.1 billion, which was part of the above claim, around April 2016, and was transferred from Nonindicted Co. 4 to the account in the name of Nonindicted Co. 3, 2016, and used it for the victim. The Defendant embezzled the victim’s property.

B. Determination

1) The crime of embezzlement is established when a person who keeps the property owned by another person embezzled or refuses to return the property. Therefore, the property which is the object of the crime of embezzlement should be “the ownership of another person.” Therefore, the transferor, who transferred a pecuniary claim against the debtor to the assignee for the purpose of securing a pecuniary obligation against the assignee, shall be deemed to have reverted to anyone among the transferor and transferee.

A) In a case where a property right is transferred to a creditor for the purpose of securing a claim, which form of security contract is to be determined specifically by the intention of the parties for each individual case, or, unless otherwise stipulated, by the parties, it is presumed that the security right to the property transferred for the purpose of securing a claim is a weak means of transfer requiring settlement procedures (see Supreme Court Decision 9Da14433, Dec. 10, 199, etc.). Unless otherwise stipulated, the execution of the security right to the property transferred for the purpose of securing a claim may be done by the method chosen by the creditor in the course of settlement of disposal or settlement of attribution, unless otherwise agreed upon. In order for the security right to be exercised by the method of settlement of accrual of ownership to the creditor, the creditor shall evaluate it at an appropriate price and appropriate amount to appropriate it to the principal and interest of the secured claim, and return the balance, or complete settlement procedures, such as notification to the debtor, etc. (see Supreme Court Decision 200Da15661, Aug. 24, 2001).

Although the Supreme Court held that even if an obligor entered into a security agreement for security for movable property to secure performance of obligation and still occupies such movable property by means of the occupancy revision, if the content of the said security agreement merely borrowed the form of sale for the security for loan deposit and the settlement procedure at the time of the execution of the security right, the ownership is reserved against an obligor, barring special circumstances, and the obligee’s right of security and right of realization belongs only to the obligee at the time of default, and thus, the obligor cannot be the subject of embezzlement (see, e.g., Supreme Court Decisions 80Do2097, Nov. 11, 1980; 2008Do10971, Feb. 12, 2009).

B) The basic principles of the security system include: (a) the obligor’s property right as a security to compel the obligor to perform his/her obligation; and (b) the realization of a security to the obligee, i.e., the secured obligee, or the secured obligee, if the obligor does not perform his/her obligation; and (c) the consideration thereof belongs to the obligee; or (d) the security itself belongs to the obligee by realizing the security before the obligor does not perform his/her obligation. Therefore, even if the assignee takes over the transferor’s obligation to the obligor for the security of the transferor’s pecuniary claim against the transferor, even if the assignee takes over the transferor’s obligation to the transferor for the security of the transferor’s pecuniary claim against the transferor, the transferee cannot be held either the assignee nor the assignee of the claim itself until the transferor’s pecuniary claim against the transferor is fulfilled. Accordingly, the transferor’s ownership of money collected from the obligor before the security right is duly exercised

C) The transferee’s fulfillment period of monetary claims against the transferor is later than that of the transferor’s third obligor. In this case, requiring the transferor to deliver the money collected from the transferor to the transferee from the third obligor is unjust as it infringes on the transferor’s interest within the time limit held by the transferor. It is clear that the transferor’s ownership of the money collected from the third obligor is deemed to belong to the transferor. The transferor is obliged to provide other security or bear civil liability for nonperformance, in accordance with the explicit and implied agreement with the transferee.

D) Supreme Court en banc Decision 97Do666 Decided April 15, 1999 cited by the court below, which held that the defendant transferred part of the claim for return of the lease deposit to his third party obligor in order to repay the monetary obligation to the victim, and used it with the return of the lease deposit without notifying the assignment of the claim. In this case, there is room to regard that the purpose of the transfer and takeover of the claim is to have the victim receive the lease deposit directly from the third party obligor (in this case, the transferor can only receive the money in order to deliver it to the transferee only). In preparation for the case where the transferor fails to perform the monetary obligation to the transferee, it is different from the case where the transferor transferred the money to the transferee for the purpose of exercising the monetary claim that the transferor acquired from the transferor only if the transferor did not perform the monetary obligation to the transferee. Thus, it is difficult to view that the above legal principle of the

In addition, in the above en banc decision, the obligor delivered money to his creditor (the transferor) with the intention to repay, and the obligee is deemed to have received it as the intention to acquire it (the obligee’s receipt of it without notifying the assignment of claim is contrary to the new intent). Therefore, there is a dissenting opinion that the ownership of money given by the obligor as repayment of obligation belongs to the obligee, and the ownership of the property should be attributed to the obligee, and the ownership of the property should be attributed to the obligee in accordance with the civil law and the criminal law should not change the theory.

E) Even if the transferor does not have any authority to do so in relation to the assignee, in cases where a debtor, who was unaware of the fact of the assignment of a claim before a notification of the assignment of claim is given, has discharged the obligation to the transferor, and as long as the obligor performed the obligation to the transferor, the assignee would incur damages by extinguishing the claim that was reverted to the assignee. However, the risk of the obligor to repay the obligation to the transferor without having knowledge of the fact of the assignment of claim before the notification or consent of the assignment of the assignment of claim is the risk that may sufficiently arise and may be predicted due to the structural characteristics of the assignment of claim contract

2) In full view of the aforementioned overall circumstances, where the transferor transfers monetary claims against the obligor to the assignee with the intent to secure a pecuniary obligation against the assignee, it shall be deemed that the transferor has the ownership of the money collected prior to issuance of a notice of assignment of the obligation.

3) Based on these legal principles, according to the evidence duly adopted and examined by the court below and the court below, it is recognized that the monetary claim against Nonindicted Co. 3 Company 4 was transferred by the defendant to the victim Nonindicted Co. 2 for the purpose of securing the obligation to return money borrowed from the victim Nonindicted Co. 2 as business funds. Thus, even if the defendant demanded the repayment of KRW 1.1 billion, which is part of the above claim, to Nonindicted Co. 4 without notifying the transfer of claim to Nonindicted Co. 4, and received the repayment in the deposit account in the name of Nonindicted Co. 3, the above KRW 1.1 billion was owned by Nonindicted Co. 3 and it cannot be deemed that the victim’s property was embezzled.

4) Therefore, the facts charged do not constitute a crime and thus should be pronounced not guilty. In so determining, the lower court erred by misapprehending the legal doctrine on the attribution of ownership of the money collected before the assignment of assignment after the assignment of assignment of assignment of assignment of assignment for the purpose of security, which affected the conclusion of the judgment

Furthermore, as to the scope of reversal of the lower judgment, the lower court found all of the facts charged and the remainder of the facts charged guilty and sentenced to a single sentence pursuant to the former part of Article 37 of the Criminal Act, and thus, the entire part of the lower judgment as to Defendant 1 is reversed.

5) However, despite the above reasons for ex officio destruction, Defendant 1’s assertion of misunderstanding of facts and misapprehension of legal principles as to the remaining facts charged are still subject to the adjudication of this court, and the following is examined by changing

3. Judgment on the mistake of facts and misapprehension of legal principles by Defendant 1

A. As to the case 2018Gohap292

1) The judgment of the court below

In full view of the facts and circumstances found by the evidence duly adopted and examined by the lower court (the lower court’s judgment No. 14 pages), the lower court determined that the Defendant continued to operate Nonindicted Co. 3 even after March 2014, and that Nonindicted Co. 2 and Nonindicted 6, who violated their duties, was in violation of the victim Nonindicted Co. 6’s duty, thereby obtaining pecuniary benefits equivalent to KRW 2.21 billion. The lower court determined that the lower court’s major part of the grounds for appeal is as follows.

A) Relationship between the Defendant and Nonindicted 1

In 2012, Nonindicted Party 1 became aware of the Defendant in the late 2012, and Nonindicted Party 1, from the Defendant, took the Defendant as the Chairperson until the last half of 2016, carried out the driver and the secretary-general by gathering the Defendant as the Chairperson.

B) Comprehensively taking account of the following circumstances, it is recognized that the Defendant managed or operated Nonindicted Company 3 after March 2014.

(1) There is no document written between the Defendant and Nonindicted 1 as to the transfer and acquisition of Nonindicted Company 3. By August 1, 2016, Nonindicted 7 (the heart of the Defendant. The representative director was also the body of the Defendant) and Nonindicted 8 (a child of the Defendant) were registered as the inside director of Nonindicted Company 3.

(2) On October 28, 2015, Nonindicted Party 1 indicated Nonindicted Party 1 as the chairperson of Nonindicted Company 3, Nonindicted Company 9, and △△/sports club as the name of the Defendant, who requested the production of a master craft producer, or the Defendant appears to have actually used the name of the Defendant.

(3) The Defendant, as the president, issued a final approval on Nonindicted Co. 3’s entry and withdrawal account books (see, e.g., January 2016), benefit ledgers (see, e.g., Supreme Court Decision 201Do329, Jun. 15, 2016); daily receipt and disbursement date reports; and documents related to bathing facility works (see, e.g.

(4) The Defendant used the mobile phone at Nonindicted Co. 3’s expense until May 2016, used Nonindicted Co. 3’s cash card, and used Nonindicted Co. 3’s name on board the benz passenger car (the monthly rent exceeds KRW 5.8 million) leased in the name of Nonindicted Co. 3.

(5) Around November 2015, the Defendant acquired, under the name of Nonindicted Co. 3, Nonindicted Co. 5 (hereinafter “Nonindicted Co. 5”) an officetel, which was being newly built on the △△△ Group site, in the name of Nonindicted Co. 3 (hereinafter “Nonindicted Co. 5”). Around April 2016, the Defendant set up the right to collateral security of KRW 4.2 billion with the maximum debt amount of Nonindicted Co. 5 as the debtor at the ▽▽△△△△ Group ownership of Nonindicted Co. 3.

(6) On October 23, 2015, the Defendant lent KRW 1.1 billion to Nonindicted Company 4 in the name of Nonindicted Company 3, and on May 19, 2016, the Defendant returned the said KRW 1.1 billion to Nonindicted Company 3’s deposit account.

(7) On November 28, 2016 and December 12, 2016, the Defendant sent to Nonindicted 10, who was a representative in the name of Nonindicted Company 3, a certificate of the content that Nonindicted 3 would return the corporate passbook, etc. while being the actual owner of Nonindicted Company 3.

(8) For a considerable period of time, Nonindicted 2, Nonindicted 1, Nonindicted 11, and Nonindicted 10 traded with Nonindicted Company 3 ( Nonindicted 12, Nonindicted 14, Nonindicted 15, and Nonindicted 16, Nonindicted 17, and Nonindicted 18, and Nonindicted 19, which were registered as the representative director of Nonindicted Company 3, from November 10, 2016 to March 6, 2017), the Defendant stated that the Defendant was the actual owner of Nonindicted Company 3.

다) 피고인이 시공회사인 ◁◁건설과 직접 협상하여 이 사건 토지를 3.3㎡당 1,000만 원 이상으로 팔아주겠다기에 피고인에게 매도권한을 위임하였다는 공소외 2의 진술을 비롯하여 공소외 1, 피고인 2, 공소외 20 등의 진술을 종합하면, 피고인이 공소외 2, 공소외 6으로부터 이 사건 토지의 매도에 관한 권한을 위임받아 직접 또는 공소외 1을 통하여 이 사건 토지의 매매에 관여하였음이 인정된다.

2) Determination of the immediate deliberation

The Defendant and the defense counsel also asserted as the grounds for appeal, and the lower court rejected the assertion in full view of the facts and circumstances stated in the lower judgment, including the main grounds as seen earlier, and found the Defendant guilty of this part of the facts charged.

Examining the reasoning of the lower judgment in comparison with the record, the lower court’s judgment is justifiable, and it did not err by misapprehending the facts or by misapprehending the relevant legal principles as alleged in the grounds of appeal. The Defendant’s assertion is without merit. The grounds attached to this court are as follows.

A) As to the record of March 6, 2017 (No. 2018Dahap292 case) (No. 35) for the Defendant’s proof that Nonindicted Party 1 was guilty, as evidence,

(1) The above recording recording was recorded by Nonindicted Party 1 upon the request of Defendant 2 or Nonindicted Party 1 to deliver a confirmation letter necessary for Defendant 2 to file a complaint. If Nonindicted Party 2 and Nonindicted Party 1 read the following words as they are, they seem to have no relation to the act of breach of trust in this case.

The vote contained in the main text - Defendant 2 is why the Defendant 2 would see? The case is why why she would see? why she would see her wrong? - Defendant 2 is n't we see her, and we now see that she has a defect? ? - Non-Party 1 is not that she has made a defective test since her internal examination? It is not that she is fl't her, but it is fl't be fl't her in a correct manner. I want to work her fl'b fl't.

(2) However, even at the time of the above conversation, Defendant 2 did not recognize that the Defendant was involved in the sale of the instant land by taking the lead of Nonindicted Party 1 in front of the above conversation. This is to be confirmed even in the case where Defendant 2 “Defendant 1 brought about why he would bring about (2.1 billion won)? Defendant 1 would have been discharged? Since Defendant 1 was changed, Defendant 1 would have come to the place? This land appears in Note 2, while this land appears in Note 2? (Evidence Record 121 pages).

In addition, Defendant 2, “at the time of negotiations, Defendant 2 met twice and Defendant 2 met (on the actual basis, Defendant 1 appears to have met three times)” means, at the end of Nonindicted Party 1, Defendant 2, “ how Defendant 1 had a large framework, how to deal with service costs, and how to do so? I have her fluencing? I have ever formed a fluencing?” (Evidence 130 pages of the 2018Dahap282 case), it appears to mean that Defendant 2 had no statement that Defendant 2 would directly deal with the instant KRW 2.1 billion with the service payment.

(3) In addition, while Nonindicted Party 1 used the expression “work” at the time of the above conversation, the above recording is equivalent to the material for the instant accusation against Nonindicted Party 2 by recording Nonindicted Party 1’s conversation with Defendant 2 (the Defendant 2 seems to have known of the fact of the recording) (only if the instant case is about Nonindicted Party 1’s accusation against the Defendant using Nonindicted Party 2’s accusation, the above recording would not have been submitted as evidentiary material). In light of the following circumstances, it is difficult to view that the expression “work” was used as a means of punishing the Defendant who did not have any crime.

Nonindicted 1, even though the Defendant received and succeeded to the instant officetel operation project, which was conducted by Nonindicted Company 5 with the funds, etc. of Nonindicted Company 2, Non-Indicted 1, was aware of not only the profits promised to Non-Indicted 2, but also the principal, and the instant breach of trust in which Non-Indicted 2 participated, and Non-Indicted 2 requested to assist the Defendant 2 to collect data necessary to file a complaint against the Defendant. Moreover, Nonindicted 1’s request made to Defendant 2 was not the service price but the actual substance of Non-Indicted 2.1 billion won was written confirmation of the fact that the purchase price was the purchase price.

(4) Therefore, it is difficult to view that the horses of Defendant 2 or Nonindicted 1 recorded in the recording to be the evidence that the Defendant did not have any relation to the instant act in breach of trust. Rather, rather, it is true that the Defendant brought KRW 2.1 billion to the instant case, or that Nonindicted 2 delegated the sale (122 pages of the evidence record), or that Nonindicted 1’s remarks, such as (131 pages of the evidence record), were sent to Nonindicted 1 (131 pages of the evidence record), are supported by the instant charges.

B) As to whether Nonindicted Co. 3 was transferred or taken over

(1) 피고인은, 자신과 공소외 1이 공소외 3 회사 양도양수에 관한 처분문서를 작성하지 않은 것은 공소외 1의 경우 자신이 운영하다 부도난 ▽▽▽모텔을 공소외 3 회사 명의로 경락받는 것을 다른 채권자들이 알지 못하게 할 필요가 있었고, 피고인의 경우 거제시 ▷▷면 아파트 시행사업을 공소외 3 회사 명의로 진행하고 있었기 때문이라고 주장하나, 설득력이 없다. 당시 특별한 자금이 없었던 공소외 1이 ▽▽▽모텔을 경락받기 위하여 3억 원이나 주면서 공소외 3 회사를 양수한다는 것도 납득하기 어렵다.

(2) At the time, Nonindicted Co. 3 was led by Nonindicted Co. 21 in the process of winning a successful bid price in the name of the ▽▽▽▽▽▽△△△○○○○○○ was awarded in the amount equivalent to KRW 3.19 billion (Evidence records 2,226 pages). The court’s appraisal price, which was equivalent to KRW 7.59 billion, was a successful bid in the amount equivalent to KRW 3.9 billion (Evidence records 2,226 pages).

(3) The funds necessary for the successful bid of the ▽▽▽▽▽▽ was raised as loans (2.8 billion won) that Nonindicted Co. 3 received from Nonindicted Co. 22, and Nonindicted Co. 3 received from Nonindicted Co. 23 cooperatives on November 5, 2014 and repaid the loans of KRW 3.8 billion (the funds were used by South Korea as the expenses for the remodeling of the said ▽▽▽▽▽▽△△○). The Defendant and Nonindicted Co. 7 were joint and several guarantors of Nonindicted Co. 3 regarding the said KRW 3.8 billion loans, which support that the Defendant is the actual owner of Nonindicted Co. 3.

The fact that the above 3.8 billion won loaned by Nonindicted Party 1 is a financial institution located in the city where Nonindicted Party 1 is a high-speed, may not be the personal circumstance that Nonindicted Party 1 is not the actual owner of Nonindicted Company 3, but the defendant.

(4) As seen earlier, Nonindicted Co. 3 was awarded a successful bid and became a Cheongsan hotel through remodeling. The Defendant used the name cards indicating himself as the chairperson of the Masan and sports club.

C) With respect to the place of use of KRW 2.21 billion

After the instant KRW 2.21 billion was deposited into the bank account of Nonindicted Company 3, the golf membership purchase cost was used as KRW 18.7 million, and KRW 75.5 million, respectively, and Defendant 2 was transferred to Nonindicted 20, and KRW 572 million (of which KRW 128 million is returned to Defendant 2), respectively, to Nonindicted 20, respectively, and KRW 7880 million in cash was stored in the bank of Nonindicted Company 3, and was used as the cost of constructing a balpted construction project.

(1) The above golf membership was mainly used by the Defendant, and the Defendant used the benz car. The Defendant alleged that the above golf membership was mainly used by Nonindicted Party 1, and the cost of leasing the benz car was deposited in Nonindicted Company 3. However, according to the photographs of less than 2,203 in the evidence record, it is recognized that the Defendant or the Defendant’s wife used the above golf membership, and Nonindicted Party 1 was able to make a promise for its use, and there is no evidence that the Defendant deposited the cost of leasing the benz car.

(2) Furthermore, the said cash worth KRW 780 million was remitted to Nonindicted Co. 3, as if Nonindicted Co. 3 were paid as service payment to Nonindicted Co. 24, and then withdrawn a certain amount of KRW 858 million in cash and in cash.

Although the Defendant alleged that Nonindicted Party 1 used the above cash, it appears that Nonindicted Party 1 and Nonindicted Party 10, who was involved in Encashment, consistently stated that the above KRW 780 million was funds created under the Defendant’s instruction, and Nonindicted Party 11, who was the Defendant’s side, stated that the Defendant had shown on the part of Nonindicted Company 5 by affixing a photograph of cash that was contained in the depository in order to show funds when he takes over the business of △△○○ Office’s office from Nonindicted Company 5, and Nonindicted Party 25, who was the actual operator of Nonindicted Company 24 and Nonindicted Party 25 also stated that the investigative agency of the instant investigation agency or the investigation agency of the case of violation of the Punishment of Tax Evaders Act, commercialized the above KRW 780 million with the Defendant’s instruction, it appears that the above KRW 780 million,000,000,000,000,00 won, was also used for the Defendant’s secret funds.

In relation to the above KRW 780 million, Nonindicted Party 1 stated that, at the police station, Nonindicted Party 1 attempted to see one-month, Nonindicted Party 26, who is not only the month in which he was in bulk, and that the Defendant was also aware that he purchased KRW 8 million from the credit cooperative after having directly viewed the above visibility (Evidence No. 2,742 pages).

(3) On September 4, 2012, Non-Indicted 1 purchased knives Nonindicted 1’s name and received building permission. Non-Indicted 1 stated in the police that “The Defendant’s business site and purchase amount was confirmed and sold as a housing site after having confirmed the Defendant’s business site and purchase amount. Non-Indicted 1 stated that Non-Indicted 21, who was in charge of the apartment construction project at Ansan-si, was in charge of the civil engineering work, and Non-Indicted 13 was in charge of the civil engineering work, and Non-Indicted 13 of the civil engineering work. As knives were born knives and all construction costs were paid from Non-Indicted 3.”

The name of the owner of block was changed from Non-Indicted 27 to Non-Indicted 9 Co., Ltd. and the registration of ownership preservation was deemed to have been made in the name of the above company. As seen earlier, the Defendant used the name cards indicating himself as the chairperson of Non-Indicted 9 Co., Ltd.

B. As to attempted crimes among the cases 2019Gohap182

1) The allegation in this part is based on the premise that the Defendant’s obligation to be relieved of the victim (Nonindicted 2) by intimidation as stated in the pertinent facts charged is the obligation to return the victim’s 1.1 billion won repaid by Nonindicted Company 4 to the victim, so long as the victim consented to the repayment of the above amount, the Defendant’s obligation to return the victim’s 1.1 billion won to the victim cannot be an attempted crime, since there is

2) First, we examine whether the Defendant consented to the repayment of KRW 1.1 billion from Nonindicted Company 4.

A) In full view of the facts and circumstances found by the evidence duly adopted and examined by the lower court (the 26th page of the lower judgment), the lower court determined that the Defendant used the 1.1 billion won of the loan claim against Nonindicted Company 4, which the Defendant provided as collateral to Nonindicted Company 2 as collateral, at will. The lower court’s summary of the grounds for the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) is as follows.

(1) While the Defendant borrowed money from the victim as collateral transferred to the victim the monetary claim of KRW 2.2 billion against Nonindicted Co. 3’s Nonindicted Co. 4 (principal KRW 1.1 billion, interest, or damages KRW 1.1 billion). However, without giving notice of assignment of claims to Nonindicted Co. 4, the Defendant used the monetary claim of KRW 1.1 billion from Nonindicted Co. 4.

(2) The Defendant asserted that the document pertaining to the assignment of claims was prepared to show that the victim was necessary to borrow money from a third party, and that the victim consented to the repayment of KRW 1.1 billion from Nonindicted Company 4, but there is no evidence.

(3) The victim stated in the investigative agency and the lower court to the effect that “the Defendant was entirely unaware of the fact that he received reimbursement of KRW 1.1 billion from Nonindicted Company 4,” and this accords with the content certification sent by Nonindicted Company 3 and Nonindicted Company 4 around October 2016.

B) The Defendant: (a) stated that he/she obtained consent from the victim and used 1.1 billion won in repayment from Nonindicted Company 4 (hereinafter “Defendant’s ground for appeal”), (b) maintained good relationship between the Defendant and the victim at the time; (c) was seriously pressured to prepare funds for the preparation of balance in the site of △△○ Office’s project, which was repaid by the Defendant and the victim; (c) was actually used in paying the balance; (d) the X-cell file dated June 27, 2016, stating that the said KRW 1.1 billion was the amount to be repaid to the victim; (d) Nonindicted Company 5 paid 2.2 billion won to the victim with the consent of the victim; and (e) the victim did not respond to the first instance case with the consent of the victim after obtaining the consent of the victim; and (v) the victim did not assert any content that he/she was used with the payment of KRW 1.1 billion in repayment from the victim at the time of the complaint in this case.

However, in light of the following facts and circumstances revealed by the evidence duly examined and adopted by the court below and the court below, it is recognized that there was no consent of the victim in using the loan claim 1.1 billion won against Nonindicted Company 4, which the defendant provided as security to the victim at will.

(1) Even at the time of May 19, 2016 when the Defendant repaid the above KRW 1.1 billion from Nonindicted Company 4, it appears that the Defendant and the victim maintained internal relations. However, the circumstance that the Defendant and the victim were in such relations is not only an incentive or circumstance that there was the consent of the Defendant’s assertion, but also a circumstance that the Defendant used KRW 1.1 billion upon repayment without the consent of the victim.

(2) The Defendant’s repayment of KRW 1.1 billion was made on May 19, 2016, before two months from July 29, 2016, which is the remainder payment date of the site for △△○ Office’s project.

On May 19, 2016, the above KRW 1.1 billion was transferred from Nonindicted Co. 4 to Nonindicted Co. 5 immediately after it was deposited into Nonindicted Co. 3 (Evidence Record 243 pages, 248 pages), and the above KRW 2 billion was transferred to Nonindicted Co. 3 on July 12, 2016 (Evidence Record 255 pages). Of the above KRW 2 billion, it was transferred to Nonindicted Co. 4 to Nonindicted Co. 3, 2016, and used to repay the debt to the victim, and the remaining KRW 1.45 billion was transferred to Nonindicted Co. 3’s other deposit accounts (Evidence Record 244 pages).

Meanwhile, on July 29, 2016, the balance of the site for the project to implement ○○○ Office Officetel was paid as KRW 8.6 billion in total, including KRW 1 billion remitted by the victim, KRW 350 million remitted by Nonindicted Company 6, KRW 275.15 billion remitted by Nonindicted Company 5, KRW 150 million, KRW 150 million remitted by Nonindicted Company 28, KRW 290 million, KRW 150 million remitted by Nonindicted Company 29, KRW 6.7 billion, and KRW 8.6 billion remitted from the loan account (Evidence record).

Therefore, it is difficult to accept the Defendant’s assertion that the Defendant used the remaining amount of KRW 1.1 billion from Nonindicted Company 4 to repay the said KRW 1.1 billion as the site due to high pressure on funds to prepare the balance of the purchase and sale of the site for the △

(3) Upon the Defendant’s instruction, Nonindicted 11, who was in charge of Nonindicted 11, who was in charge of the business of operating ○○○ Office Office, stated “Nonindicted 2 & Nonindicted 3 Company” as “Nonindicted 3 Company” in relation to KRW 1.1 billion on May 19, 2016, in the “current status of deposits in Nonindicted 2 Loans” written by Nonindicted 11.

In light of the X-cell No. 1, the above statement appears to the effect that the victim (Nonindicted 2) lent KRW 1.1 billion to Nonindicted Co. 3 on May 19, 2016, as alleged by the Defendant, as alleged by the Defendant (Nonindicted 11 stated in the lower court that the Defendant’s defense counsel questioning what the reasons stated are, or that he took place.)

However, there is doubt as to whether the above statement that the victim did not participate at all is sufficient evidence to deem that the defendant was paid 1.1 billion won by the non-indicted 4 and that the victim gave consent thereto. The 1.1 billion won is part of the amount of KRW 1.5 billion that the victim lent to the non-indicted 7's deposit account upon the defendant's request on September 10, 2015, and transferred to the non-indicted 7's deposit account. Even if the defendant was paid 1.1 billion won by the non-indicted 4 on May 19, 2016, the victim's 1.1 billion won loan claim still exists as of May 19, 2016. This is because there is no relation between the defendant's consent to receive repayment from the non-indicted 4. The above accelerator file was prepared to indicate the status of the loan from the victim, and Non-indicted 11 was recorded by judging the above status of the loan as of May 19, 2016.

(4) 피해자는 2019고합182 사건을 늦게 고소한 이유에 대하여 원심에서 피고인이 보낸 내용증명 자체가 너무 두려웠고, 피고인이 2018고합292 사건에 관하여 계속하여 혐의를 부인하면서 공소외 1에게 책임을 전가하기에 너무 괘씸해서 추가로 고소하게 되었다는 취지로 진술하였다. 2019고합182 사건의 경우 피고인과 피해자가 내연관계인지 여부에 관한 조사도 수반될 수밖에 없다는 점에서 피해자의 위와 같은 해명에 설득력이 없다고 할 수 없다.

(5) The Defendant, based on the fact that Nonindicted Co. 5 received the PF loan and repaid the victim KRW 2.2 billion, paid D, however, the amount loaned by the victim for the project of the project of the project of the project of the project of the project of the project of the project of the project of the project of the project of the project of the project of the project of the project of the project of the project of the project of the project of the project of the project of the project of the project of the project of the project of

3) In addition, according to the evidence duly adopted and examined by the court below, the defendant's obligation to be exempted from sending the content certification as stated in the facts charged is not limited to the obligation to return the above KRW 1.1 billion to the victim, but it is recognized that the defendant was the defendant's obligation to return the above KRW 1.1 billion to the victim. Even if the defendant did not have any obligation to return the victim's above KRW 1.1 billion to the victim, it is recognized that the defendant was liable for damages under the civil law as a result of collecting the above KRW 1.1 billion without the victim's consent to the collection of KRW 1.1 billion, and that the defendant was liable for the borrowed money guaranteed by the transfer of claim to the victim regardless of the victim's consent to the collection of KRW 1.1 billion, and that the defendant's obligation to be exempted from the payment of the above content certification by the victim includes

4) The defendant's assertion on this part is without merit.

C. As to the case 2019Gohap319

The Defendant and his defense counsel also asserted as the grounds for appeal, and the lower court determined that, in full view of the facts and circumstances acknowledged by the evidence duly admitted and examined by the lower court (25 pages of the lower judgment), the Defendant received false tax invoices as stated in the list of crimes in the lower court as the actual operator of Nonindicted Co. 3.

Examining the reasoning of the lower judgment in comparison with records, the lower court’s judgment is justifiable, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the facts or by misapprehending the relevant legal doctrine. This part of the

4. Judgment on the prosecutor's assertion of mistake of facts

A. The judgment of the court below

As to the facts charged of this part of the charge that Defendant 1 and Nonindicted 1 took part in the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) (2019Dahap490), the lower court found Defendant not guilty on the ground that the evidence submitted by the prosecutor alone is insufficient to prove that Defendant 1 and Nonindicted 1 was actively involved in the crime of breach of trust with the knowledge of the criminal intent of Defendant 1 and Nonindicted 1, and that the facts and circumstances of the lower court are summarized as follows.

1) 피고인은 경찰에서 원심에 이르기까지 ‘이 사건 토지 매매를 위한 협상 초기에 공소외 1로부터 자신이 ▷▷면 모텔 매매 관련하여 공소외 2로부터 받을 돈이 있다고 하면서 이 사건 토지 매매대금 일부를 별도로 지급해달라는 요청을 받았다’라는 취지로 일관되게 진술하였다.

2) 공소외 1이 피고인에게 위 협상 때 제시한 위임장에 ‘이 사건 토지를 주식회사 공소외 30 주식회사에 매매하는 것과 관련하여, ▷▷면 모텔에 대한 모든 권리를 공소외 2에게 양도하는 것으로 하고, 자금수령 권한을 포함한 모든 권리를 수임자(공소외 1)에게 위임한다’는 취지로 기재되어 있다.

3) The Defendant, along with Nonindicted 20, gave up Nonindicted 2’s words, as described in Nonindicted 1’s 1-1, at the call of Nonindicted 20, delegated Nonindicted 1 with the right to sell, and Nonindicted 2 responded to the purport that the delegation was not made by Nonindicted 1, but that the delegation was made to Nonindicted 1.

4) In the lower judgment, Nonindicted Party 1 testified that “after receiving all service costs from Nonindicted Company 3’s deposit account, Nonindicted Party 1 called “the Defendant was 3) Nonindicted Party 1’s telephone to the Defendant and resolved the problem with the owner of the land. It was written in the expense without any expense.” However, Nonindicted Party 1 testified that “The Defendant is fine.”

In addition, with respect to the background leading up to giving money to the defendant, Nonindicted Party 1 testified that, in the event that there was a problem after Defendant 1 gave money to the defendant, Defendant 2 gave much time in the land value, Defendant 2 testified that he would be given to the defendant, even in order to prevent him from suffering.

5) There is no evidence to deem that the Defendant and Defendant 1 and Nonindicted 1 conspiredd or agreed to have divided the above KRW 2.21 billion. Ultimately, the Defendant received approximately KRW 200 million, but Nonindicted 1, who received Defendant 1’s instructions, actively provided money, and the Defendant first rejected it.

B. Judgment of the court below

Examining the reasoning of the lower judgment in comparison with records, the lower court’s aforementioned determination is justifiable, and there is no error of mistake of facts. This part of the Prosecutor’s assertion is without merit. The grounds attached to this Court are as follows.

1) The recording on March 6, 2017, supra, seems to have been recorded by Nonindicted Party 1 upon Nonindicted Party 1’s request for the delivery of a confirmation letter necessary for Nonindicted Party 1 to interview the Defendant or file a complaint against Defendant 1, and the Defendant also seems to have been unaware of the fact of recording.

According to the above recording, the defendant asked the non-indicted 1 that he would have caused 2.21 billion won to the non-indicted 1, and asked whether he had made a statement about the complaint with the non-indicted 20 and the non-indicted 20 (No. 11 of the Record). This suggests that there was no public contest relationship between the defendant and the non-indicted 1, 1, and 20.

2) Of the instant KRW 2.21 million, the money reverted to the Defendant was considerably high as KRW 70 million as of September 9, 2015, KRW 30 million as of September 11, 2015, KRW 98 million as of September 15, 2015, and KRW 198 million as of September 15, 2015.

However, considering the circumstances leading up to which each of the said money was paid, it is difficult to view that the said money was given in return for committing a crime.

가) 피고인은 2018. 6. 25. 경찰에서 위 7,000만 원을 지급받은 경위에 관하여 공소외 1이 공소외 2로부터 받을 ▷▷면 모텔 매매잔금을 해결해주어 고맙다면서 준 것이고, 회사거래행위로 인한 것이 아니어서 회사 예금계좌로 받을 수 없어 세금 30%를 공제한 7,000만 원을 처 공소외 31의 예금계좌로 받았다고 진술하였다. 피고인에게 돈을 보내게 된 경위에 관한 공소외 1의 진술(공판기록 402쪽 등)이나 공소외 1이 협상 당시 제시하였던 위 위임장 내용에 부합된다.

B) The above KRW 30 million was part of KRW 200 million that Nonindicted 20 received from Defendant 1 on September 11, 2015, and Nonindicted 20 was lent to Nonindicted Incorporated Company 32 operated by the Defendant on the part of Defendant 1, and Nonindicted 20 was leased to Nonindicted Incorporated Company 32 with the indication of the Defendant’s height (the trial record 431 pages).

At the police and the original trial, Nonindicted Party 20 had attempted to mediate between the Defendant and Nonindicted Party 1 (or Nonindicted Party 2), and Nonindicted Party 1 had been expected to give him a handout cost later, but it stated to the effect that, on September 11, 2015, the gold amount of KRW 200 million was deposited and the said KRW 30 million was given in the mind of play.

The fact that the above KRW 30 million was applied to the defendant by Nonindicted 20 due to the indication of the horse, can be said to be the circumstance that there is no conspiracy between the defendant and Nonindicted 20, and there is no conspiracy between the defendant and the Defendant and the Defendant 1.

On the other hand, at the time of the recording of March 6, 2017, the defendant asked Nonindicted Party 1 to ask him whether he stated with Nonindicted Party 20 about the accusation of Defendant 1 in breach of trust against Nonindicted Party 1, and Nonindicted Party 1 asked him that Nonindicted Party 20 is ambiguous (No. 11 pages of the Record). The same applies to this case.

C) The above KRW 98 million was remitted to the Defendant at KRW 370 million, which was remitted to Nonindicted 20 on September 15, 2015. Nonindicted 20 stated that Nonindicted 1 remitted the amount of KRW 100 million out of the above KRW 370 million to the Defendant, and that Nonindicted 1 remitted the amount of KRW 98 million in total to the Defendant in two sequences. As such, Defendant 1 appears to have been originally planned to pay KRW 200 million to the Defendant.

한편 피고인은 위 7,000만 원을 송금받은 다음 날인 2015. 9. 10. 공소외 1에게 “♤야 고맙다. 나머지는 공소외 20한테로 다 넣어줘라. 형이 꼭 신세 갚으마. ♡♡동 자료 좀 보내주고”라는 문자메시지를 전송하였고, 공소외 20이 2019. 9. 15. 위와 같은 경위로 피고인에게 9,800만 원을 송금하였다.

The prosecutor asserts that the Defendant’s use of the expression “Is money” was based on the premise that the amount to be distributed to the Defendant was determined in advance, and thus, it is an important evidence in a public offering relationship (the fourth page of the grounds for appeal). However, in full view of the following facts and circumstances, the foregoing text message appears to support the fact that the Defendant, rather than the consideration for committing a crime, was aware of the money he received as a honorarium paid by Nonindicted 1.

(1) The Defendant 1 initially planned to pay KRW 200 million to the Defendant. Nonindicted 1 said that he would remit KRW 200 million to the Defendant on September 9, 2015, which he remitted KRW 70 million. However, there is sufficient possibility that he sent the instant text message to the effect that he would bring the remainder to Nonindicted 20, while the Defendant changed only KRW 70 million.

(2) The Defendant also thought that Nonindicted 1, who brokered Nonindicted 1 and Nonindicted 2, should be the case to the Nonindicted 20. The Defendant asked the police to question the meaning of “baton money” in the police to the effect that “Nonindicted 1 paid the purchase price (8 million won per 3mm2 as desired by Nonindicted 1) and that Nonindicted 20 had contributed to Nonindicted 20, so Nonindicted 1 also thought that he should have paid the trust money to Nonindicted 20.”

(3) Even until sending the above text message, the Defendant did not at all anticipate that Defendant 1’s side was 470 million won at the expense of Nonindicted 20, which was the largest amount of KRW 470 million.

(4) The Defendant’s text messages sent are not “Sicker Nonindicted 20 (Nonindicted 20 Deposit Account)” but “Sicker 20,” and the remainder of the money (excluding KRW 100,000,000,000,000,000,0000,000 won, which was paid to Nonindicted 20,000,000 won.”

3) The Defendant engaged in a partnership with pro-dong Nonindicted 33 and operated the apartment project in the instant land through Nonindicted 30 Co., Ltd., and the instant land remains the last part of the land that the said company should have to die. The purchase price is inevitable to be rice. The Defendant had to purchase KRW 6 million per 3.3 square meter up to the last day, but did not have to purchase KRW 8 million at the last time, and it seems that it was judged that the purchase was done even at the above price even if there was no choice but to purchase even at the last (the experience of conducting the apartment project several times, so that it is unfavorable in negotiations with Defendant 1, who is aware of the weak point of the implementing company).

As at the time of the negotiations on the sale and purchase of the instant land, it is necessary to obtain approval for the sale from a large city until October 30, 2015, as well as to obtain the application for a PF loan, it appears that the entire land to be the apartment site should be purchased by September 8, 2015. There is no material to deem that the purchase price of KRW 8 million per 3.3 square meters, determined under such circumstances, is an impossible amount unless there is a public offering or collusion between the Defendant and the Defendant 1. Of the text messages sent to Nonindicted Party 1, the part of “the full payment of the sentence” among the text messages sent by the Defendant to Nonindicted Party 1, appears to have been a rush emotional expression as to the acquisition of the land so that the implementation project may continue, even if it is difficult from the standpoint of the Defendant at the time.

5. Conclusion

Of the lower judgment, Defendant 1 did not decide on the allegation of unfair sentencing by Defendant 1 and the prosecutor on the grounds of the above ex officio reversal. In accordance with Article 364(2) of the Criminal Procedure Act, the part of the lower judgment on Defendant 1 among the lower judgment is reversed, and it is so decided as follows.

In addition, since the appeal against Defendant 2 by the prosecutor against Defendant 2 is without merit, it is dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

【Discied Judgment: Defendant 1】

Criminal facts and summary of evidence

The summary of the facts of the crime recognized by the court and the evidence is as stated in the judgment of the court below, except for deletion of "the part of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)" among the facts of the crime of the court below, and therefore, it is cited as it is by

Application of Statutes

1. Article applicable to criminal facts;

Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 13719, Jan. 6, 2016); Article 355(2) and Article 30 of the Criminal Act (Amended by Act No. 13719, Dec. 31, 2016; hereinafter referred to as “Aggravated Punishment, etc. of Specific Economic Crimes”); Article 352 and Article 350(1) of the Criminal Act (a) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 1371, Dec. 31, 2018; hereinafter referred to as “Aggravated Punishment, etc.”)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act [Inter-party 2 and non-party 6 respectively to violate the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)]

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 (Misappropriation of Trust) for the victim non-indicted 2 who has the largest punishment and punishment)

Reasons for sentencing

1. Scope of applicable sentences under law: Three to forty-three years of imprisonment;

2. Scope of recommended sentences according to the sentencing criteria;

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

【Determination of Punishment】

Embezzlements and Misappropriations. [Type 3] 50 million won or more, and less than five billion won or less, of embezzlements and Misappropriations.

【Recommendation Area and Scope of Recommendations】

Basic Area, 2 to 5 years of imprisonment;

(b) Second offense (Violation of the Punishment of Tax Evaders Act);

【Determination of Punishment】

. Tax offenses: Acceptance, etc. of general tax invoices (type 1) less than 3 billion won;

【Recommendation Area and Scope of Recommendations】

Above 6 months to 1 years of imprisonment,

(c) Scope of recommendations according to the standards for handling multiple crimes: Imprisonment with prison labor for two to five years (the upper limit of the first crime + the upper limit of the second crime).

(d) Scope of recommended sentences revised by applicable sentences: Imprisonment with prison labor for three to five years (in cases where the scope of sentence recommended by the sentencing guidelines is inconsistent with the scope of applicable sentences in law, the lower limit of applicable sentences in law shall apply);

3. Determination of sentence;

○ Unfavorable Conditions

- The Defendant, as an assignee of the victim Nonindicted 2 and Nonindicted 6, paid 5.5 billion won for the sale price of the instant land to the victims, and paid 3.25 billion won more than the above amount by deceiving the sale price, and avoided 2.21 billion won. The amount of damage is not only a large amount of money that is 2.21 billion won, but also a large amount of money that is difficult for the general public to win, and also a means of deception for the breach of trust. In addition, it is extremely poor in that the Defendant used internal ties with the victim Nonindicted 2. The Defendant received a false tax invoice in Chapter 7 in excess of 90 million in total in order to conceal the profit from the crime (for legitimate profit) and to raise funds.

In addition, not only caused a dispute between the victim non-indicted 2, but also caused the victim to commit an attempted attempt to keep the claim for the return of the loan by threatening that the relationship would be wide. This part of the crime is very poor in that the width of internal relationship may bring about a fatal result, such as home blasting, etc., to the above victim.

- The Defendant, since the commencement of the investigation, did not have been involved in the above crimes, and did not seem to have been completely denied the crime due to the fact that Nonindicted Party 1 committed the crime. Many people were present and made statements at the lower court.

- The Defendant borrowed funds exceeding 6 billion won with Nonindicted 2’s aid from the victim Nonindicted 2, thereby making it difficult to make efforts to recover from damage, even though he appears to have earned enormous profits by running the △△△ Office Office’s business. The said victim has filed a heavy penalty against the Defendant since the commencement of the investigation to the trial.

- An investigative agency has taken into account that the defendant is being treated with cerebral blood, and has given consideration to the defendant who does not execute a warrant of detention. Nevertheless, the defendant escaped during hospitalization. In addition, the circumstances after the crime do not change to the disadvantage of the defendant.

○ favorable circumstances

- 피고인이 배임행위로 가로챈 22억 1,100만 원 상당의 이익은 이 사건 토지 일원에 아파트 시행사업이 진행되고 있었다는 특수한 사정 아래에서 피고인과 공소외 1이 시행회사 측인 피고인 2를 최대한 압박함으로써 생긴 수익인 데다가, 위 토지의 매매가격이 3.3㎡당 800만 원으로 결정된 데에 피고인이 어느 정도 기여한 것으로 볼 수 있다(당시 다른 토지의 최고 매매가격이 3.3㎡당 400만 원 내지 500만 원 정도이었던 것으로 보인다).

- The defendant has no same criminal records and has no criminal records within the last ten years.

○ In addition to the above circumstances, the Defendant’s age, character and conduct, health conditions, environment, motive and background of the crime, means and consequence of the crime, and all of the sentencing conditions shown in the records and arguments, including the circumstances after the crime, shall be determined as ordered.

The acquittal portion

1. Facts charged;

As described in paragraph 2-A(a) above.

2. Determination

The above facts charged constitute a case that does not constitute a crime as seen in Article 2-2(b) of the Criminal Procedure Act, and thus, a judgment of innocence is rendered pursuant to the former part of Article 325 of the Criminal Procedure Act, but Defendant 1 does not consent to the public notice of the judgment of innocence, and thus, the purport of the public notice of the judgment of innocence is not pronounced pursuant

Judges Orn-si (Presiding Judge)

Note 1) The evidence record refers to the evidence record of the case in question.

주2) 이는 공소외 1이 피고인 2에게 공소외 2, 공소외 6 명의의 위임장을 제시하면서 자신이 공소외 2로부터 ▷▷면 모텔 매매대금 15억 원을 받을 것이 있어 이 사건 토지 매매를 위임받았다고 말한 것을 지적한 것으로 해석된다.

Note 3) Nonindicted 2 refers to Nonindicted 2.

4) Since Nonindicted 1 remitted the sum of KRW 570 million to Nonindicted 20,000 to Nonindicted 20,000, KRW 100 million to the Defendant, Nonindicted 20,000,000 to be received by Nonindicted 1 is the Defendant, Nonindicted 20,000 won.

Note 5) The Defendant appears to have committed an excessive desire to kill the profits that the Defendant promised to borrow from the victim and not return the principal amount.