Defendant 1 and one other

The completion of convictions (prosecutions), the encouragement of indictments (prosecutions and public trials), fingers (public trials)

Law Firm Jeongam et al.

Defendant 1 (original trial: Defendant 1) shall be punished by imprisonment with prison labor for seven years, by imprisonment for seven years and by fine for 400,000,000.

When Defendant 2 fails to pay the above fine, Defendant 2 shall be confined in a workhouse for the period calculated by converting KRW 400,000 into one day.

400,000,000 won shall be additionally collected from Defendant 2.

To order Defendant 2 to pay an amount equivalent to the above fine and the additional collection charge.

" 2015 Gohap1046"

피고인 1은 2014. 8. 20. 서울 금천구 (주소 2 생략) □□□□□□□□ ◇◇◇◇◇ 소재 ☆☆☆☆☆공인중개사 사무실에서 피해자 공소외 6, 공소외 7과 사이에, 피해자들에게 피고인 1 및 공소외 1, 공소외 2, 공소외 3 공동 소유인 서울 금천구 (주소 생략)외 1필지 ○○○○ 지하 1층 △△△호 건물 및 그 토지 지분(이하, ‘이 사건 부동산’ 이라 한다)을 매도하는 계약(이하 ‘이 사건 매매계약’이라 한다)을 체결하였다. 피고인 1은 피해자들로부터 계약 당일 계약금 2억 원을, 2014. 9. 30. 중도금 6억 원을, 2014. 11. 30.에 이 사건 부동산에 관한 소유권이전등기에 필요한 서류와 상환으로 잔금 5억 8,000만 원을 지급받기로 약정하였다.

Defendant 1 received 200 million won down payment from the victims on the day of the contract in accordance with the above agreement, and received 600 million won from the same account on September 30, 2014. As such, the duty to receive the balance on November 30, 2014, and to perform the procedure for the transfer of ownership of the instant real estate, at the same time, was incurred.

피고인 1은 위와 같은 임무에 위배하여, 2015. 4. 13. 서울 금천구 (주소 3 생략) 지하 1층 ◎◎◎◎◎ ◁◁◁◁공인중개사 사무소에서 공소외 4, 공소외 5에게 대금 15억 원에 이 사건 부동산을 매도하고, 같은 달 17. 서울 구로구 공원로 21 소재 서울남부지방법원 구로등기소에서 이 사건 부동산에 대한 소유권이전등기를 마쳐주었다.

Accordingly, Defendant 1 acquired property benefits equivalent to KRW 110 million, which is the amount obtained by deducting the maximum debt amount of the right to collateral security established at the time of the transfer of ownership from KRW 1.5 billion at the market price of the instant real estate at the time of the transfer of ownership, from KRW 1.1 billion, and sustained damages equivalent to the same amount to the victims.

" 2016, 351"

피고인 1은 공소외 9 주식회사(이하 ‘공소외 9 회사’라 한다)의 실제 대표이사이고, 피고인 2는 인천 부평구 (주소 4 생략)에 있는 주식회사 ▽▽은행(이하 ‘▽▽은행’이라 한다) ▷▷▷지점에서 기업여신 및 외환업무를 담당한 기업금융팀장이다.

1. Forgery of private documents and uttering of private documents by Defendant 1;

around September 2015, Defendant 1 asked Defendant 2 to determine whether Nonindicted Company 9 could negotiate an export draft of credit issued by the company in relation to the export of the inorganic weapon to Singapore. However, Nonindicted Company 9 heard the answer from Defendant 2, 2013, and 2014, which led to the 27 million won debt for the year 2013, and the 2014 debt amounting to approximately KRW 96 million.

이에 피고인 1은 2015. 10. 초순경 서울 서초구 (주소 5 생략), ♡♡♡호에 있는 피고인 1이 별도 운영하는 공소외 12 주식회사 사무실에서 피고인 2로부터 받은 흑자 기업의 재무제표를 토대로 지인 공소외 16과 함께 공소외 19 명의의 공소외 9 회사 재무제표확인서 원본 중 2013년, 2014년 재무상태표, 손익계산서에 ‘2013년 제품매출 999,590,000원, 순이익 20,315,256원’, ‘2014년 제품매출 1,572,830,260원, 순이익 25,195,794원’, ‘2013년, 2014년 부채 0’으로 작성한 다음, 재무제표확인서 원본 표지 확인대상 서류란 중 ‘결손금처리계산서’를 ‘이익잉여금처분계산서’로 바꾸고 확인자란에 날인된 공소외 19의 도장을 스캔하여 덧씌운 표지를 작성하였다.

계속하여 피고인 1은 2015. 10. 8.경 ▽▽은행 ▷▷▷지점에서 위와 같은 허위작성 사실을 모르는 지점장 공소외 20에게 공소외 9 회사의 기업신용평가를 받기 위하여 위와 같이 허위로 작성한 재무제표확인서를 마치 진정하게 성립한 것처럼 피고인 2를 통하여 교부하였다.

As a result, Defendant 1 forged and exercised a written confirmation of the financial statements of Nonindicted 19 with respect to the certification of fact.

2. Defendants’ violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

피고인 1은 2015. 10. 8.경 ▽▽은행 ▷▷▷지점에서 위 1.항 기재와 같이 공소외 9 회사에 매출 및 순이익이 발생하였고 부채가 없는 것처럼 위조한 재무제표확인서를 제시하고, 피고인 2는 2015. 10. 14. 그 위조사실을 알면서도 이를 근거로 공소외 9 회사의 기업신용등급을 여신거래가 가능한 BB+ 등급으로 평가하여, 지점장 공소외 20으로 하여금 ▽▽은행 명의로 그 무렵 공소외 9 회사와 외국환거래를 체결하고 2015. 11. 19. 공소외 9 회사 발행의 미화 300만 불 권 수출환어음 1장, 미화 150만 불 권 수출환어음 1장(이하 위 각 수출환어음을 ‘이 사건 각 수출환어음’이라 하고, 위 각 수출환어음과 함께 매입한 각 신용장을 ‘이 사건 각 신용장’이라 한다)을 매입하게 하였다.

However, in fact, as stated in the above 1. Paragraph 1., Nonindicted Company 9 entered into a foreign exchange transaction agreement with the ▽▽△ bank, due to the bad financial standing, such as sales and net losses, and thus, constitutes a CCC class.

그럼에도 피고인들은 위와 같이 지점장 공소외 20을 기망하여 이에 속은 공소외 20으로 하여금 2015. 11. 19. ▽▽은행 ▷▷▷지점에서 수출환어음 매입대금 명목으로 미화 합계 450만 불을 공소외 9 회사 외화계좌로 입금하게 하였다.

As a result, the Defendants conspired to receive the amount of 4.5 million U.S. dollars (the amount equivalent to 5.28 billion U.S. dollars) from the victim Ⅳ bank.

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

피고인 1은 2015. 11. 25. ▽▽은행 ▷▷▷지점 주차장에서 피고인 2에게 ‘그동안 네고(어음 매입)하는데 수고했다’라는 인사와 함께 1억 원 권 자기앞수표 4장을 교부하였다.

Accordingly, Defendant 1 granted KRW 400 million to Defendant 2, who is an executive officer or employee of a financial company.

4. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes by Defendant 2;

피고인 2는 2015. 11. 25. ▽▽은행 ▷▷▷지점 주차장에서 위 3.항 기재와 같이 피고인 1로부터 ‘그동안 네고(어음 매입)하는데 수고했다’라는 인사와 함께 1억 원 권 자기앞수표 4장을 교부받았다.

Accordingly, Defendant 2, an executive officer or employee of a financial company, received KRW 400 million from Defendant 1 in connection with his/her duties.

" 2015 Gohap1046"

1. Each legal statement of the witness, Nonindicted 6 and Nonindicted 8

1. Each certified copy of the register, sales contract, Internet banking transfer certificate, receipt, notification (in the case of Defendant 1, the addressee, and Nonindicted 6), subsequent real estate sales contract with the purchaser, Nonindicted 6, the complainant, Defendant 1, Defendant 1, Defendant 6, Defendant 1, Defendant 1, Defendant 1, Defendant 6, Defendant 6, and Defendant 1, Defendant 6, Defendant 1, Defendant 1, and Defendant 1, and text message;

" 2016, 351"

[Each fact of paragraphs 1 and 2 at the Time of Sales]

1. Defendants’ partial statement

1. Each legal statement of the witness, Nonindicted 13 and Nonindicted 16

1. The prosecutor’s statement on Nonindicted 21 and Nonindicted 22

1. Each written confirmation (20.3.2, 2016.3.3.2, 10, 200, 200, 10, 200, 15, 200, 20, 10,000,000,000,0000,000,0000,000,000,0000,000,000,000,0000,000.0,0000.0,000,000,000,000.0,000.0,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00.0,000).

[Each fact of paragraphs 3 and 4 at the Time of Sales]

1. Defendants’ partial statement

1. Some statements made by the Defendants in the suspect interrogation protocol of each prosecutor about the Defendants

1. Each prosecutor’s statement concerning Nonindicted 23 and Nonindicted 24

1. In an investigation report (verification of an internal audit report of the ▽▽△ bank), the written answer on March 7, 2016, the written answer on March 8, 2016, the written answer on March 10, 2016, the investigation report on March 10, 2016, the investigation report on March 10, 206, the investigation report (refembing documents, etc. on March 10, 2016), the image of the check, Defendant 1’s opinion, the investigation report (verification of the details of the check issued on November 25, 2015 of the suspect), two copies of the check with 100 million won, the investigation report (verification of Defendant 2.10 million won’s cashier’s checks), the statement of deposit transactions (FFF) and the written record of recording

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

A. Defendant 1: Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 355(2) of the Criminal Act, Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347(1)1 of the Criminal Act, Article 347(1) and Article 30 of the Criminal Act (Fraud, Selection of Imprisonment), Articles 6(1) and 5(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 231 of the Criminal Act, Article 231 of the Criminal Act, Articles 234 and 231 of the Criminal Act

B. Defendant 2: Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347(1) and Article 30 of the Criminal Act (Fraud, Selection of limited term of imprisonment), Article 5(4)1, Article 5(1), and (5) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Concurrent Imposition of Materials, Selection of limited term of imprisonment, and Fine)

1. Aggravation for concurrent crimes;

(a) Defendant 1: the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (limited to concurrent crimes with the punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, which is the largest penalty);

(b) Defendant 2: the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (aggravated Punishment, etc. of Specific Economic Crimes (aggravated Punishment, etc. of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes with the largest punishment)

1. Discretionary mitigation;

Defendant 2: Articles 53 and 55(1)3 and 6 of the Criminal Act

1. Detention in a workhouse;

Defendant 2: Articles 70(1) and 69(2) of the Criminal Act

1. Additional collection:

Defendant 2: Article 10(3) and (2) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

1. Order of provisional payment;

Defendant 2: Article 334(1) of the Criminal Procedure Act

" 2015 Gohap1046"

1. Defendant 1 and his defense counsel’s assertion

A. The instant contract was missing, and the victims expressed their intent to cancel the instant contract to Defendant 1, and even based on the victims’ acts, there was no intent to maintain the contract. Thus, Defendant 1 did not have an intent to commit a breach of trust.

B. In the case of double transfer of movable property, the seller is not in the position of dealing with the buyer's business, and the debtor's obligation to transfer ownership in the pre-sale of real estate does not belong to the other party's business, as in the case of the pre-sale of real estate, the obligation to transfer ownership under the sales

2. Determination

A. Intention of breach of trust

Unless there exist special circumstances such as the seller’s belief that the sales contract was lawfully rescinded when the seller sells real estate to a third party after selling it in the sales contract, the seller may recognize the criminal intent of breach of trust. In full view of the following circumstances acknowledged by the evidence duly adopted and investigated by the court, Defendant 1 may be recognized as having committed the criminal intent of breach of trust. Defendant 1 does not seem to have believed that the sales contract of this case was lawfully rescinded.

① Defendant 1, after the lapse of November 30, 2014, did not receive the instant real estate from a lessee of the instant real estate after concluding the instant sales contract with the victims and receiving the down payment and intermediate payment, and completed the registration of ownership transfer after selling the instant real estate to Nonindicted 4 and Nonindicted 5, as indicated in the facts constituting a crime, during the process of completing the delivery of the instant real estate and the registration of ownership transfer to the victims.

② The notification of December 16, 201, which was sent to Defendant 1 by B/L, an agent of the victims, was merely a content that the victims would cancel the instant sales contract, if the victims could not accept such requirements and conditions while demanding the agreement on compensation for damages to Defendant 1. In light of the language and text of the said notification, the victims cannot be deemed to have expressed their intent to cancel the instant sales contract as the notification.

③ From April 15, 2015, Defendant 1 sold the instant real estate twice to April 15, 2015, the victim Nonindicted 6 attempted to enter into an agreement on the amount of compensation for damages with Defendant 1 on the premise that ownership of the instant real estate was transferred according to the sales contract. Defendant 1 also seems to have sufficiently known the intent of the said victim (as to the record, 125 pages of evidence, 23, 24, 25, and 2, 10, 14 pages of the examination record of witness Nonindicted 8).

④ Nonindicted 8, who arranged the instant sales contract between Defendant 1 and the victims, stated that the instant real estate was not terminated before the instant sales contract was sold to Nonindicted 4 and Nonindicted 5 on April 13, 2015 (the second page of the record of Nonindicted 8’s examination of witness).

⑤ Although Defendant 1, at the time of the conclusion of the instant sales contract, intended to be responsible for the receipt of the instant real estate from the lessee, Defendant 1 was not even ordered by the lessee until April 13, 2015, as well as the remainder of the sales contract. Accordingly, Defendant 1 appears to have failed to perform the instant sales contract normally.

(b) Whether it constitutes another person's business;

In a case where the object of sale is real estate, the seller is in the position of “a person who administers another’s business,” who is the subject of the crime of breach of trust, inasmuch as the performance of a contract takes place through the receipt of intermediate payment from the buyer, etc. and the performance of the obligation becomes impossible at will, barring any special circumstances, the seller is in the position of “a person who administers another’s business,” which is the subject of the crime of breach of trust, and the seller is in the position of “a person who administers another’s business,” who disposes of the object again to a third party, thereby making it impossible for the first buyer to perform the registration procedure for transfer of ownership due to the receipt and redemption of the remaining price (see, e.g., Supreme Court Decisions 8Do750, Dec. 13, 198; 2008Do3766, Jul. 10, 208).

If the object of sale is a movable property, the seller’s duty to deliver the object in accordance with the contract is merely the seller’s own business and cannot be deemed as having a duty to cooperate with the seller in the protection or management of the buyer’s property (see Supreme Court en banc Decision 2008Do10479, Jan. 20, 201). However, unlike the movable property in the method of giving public notice of changes in real rights, the procedure of registration by both parties to the sales contract is required in the method of joint application, unlike the movable property, and the real property requires special protection because its economic value much exceeds its economic value compared to the movable property (see, e.g., Concurrence with the Majority Opinion in the above en banc Decision). In light of the reality of the sale and purchase of real estate in Korea, the legal guarantee for the buyer to acquire the object of sale, even though the buyer paid the purchase price in advance, is insufficient (see, e.g., concurrence with the Dissenting Opinion in the above en banc Decision).

Meanwhile, the obligation of an obligor to implement the procedure for the registration of ownership transfer of real estate pursuant to the promise of accord and satisfaction with regard to real estate does not constitute “a third party’s business” to protect or manage an obligee’s property based on a fiduciary relationship as stated in the crime of breach of trust (see Supreme Court en banc Decision 2014Do3363, Aug. 21, 2014). However, unlike a sales contract, the principal purpose of a contract is to secure the performance of a loan repayment obligation rather than the transfer of ownership of real estate, and the obligor’s obligation to implement the procedure for the registration of ownership transfer of real estate is merely an incidental content, the same cannot be seen as the case

Therefore, Defendant 1’s assertion on this issue is rejected.

" 2016, 351"

1. As to the facts No. 1 of the holding

A. The assertion

Since Defendant 1 submitted to Defendant 2 a forged written confirmation of Nonindicted 19’s financial statements, it does not constitute the crime of uttering of a falsified investigative document.

B. Determination

위조사문서행사의 범죄사실은 피고인 1이 위조한 재무제표확인서를 피고인 2에게 제출하였다는 것이 아니라 피고인 2를 통하여 위조된 정을 모르는 ▽▽은행 ▷▷▷지점 지점장인 공소외 20에게 교부하여 행사하였다는 것이다. 한편 이 사건 각 수출환어음 매입을 결정할 권한을 가진 자는 피고인 2가 아닌 지점장 공소외 20이므로 피고인 1은 이를 공소외 20에게 교부할 의사를 가지고 있었다고 보이고, 실제로 공소외 20이 위조된 재무제표확인서를 교부받았으므로(증거기록 1278~1279쪽), 피고인 1의 위 주장은 이유 없다.

2. On the facts No. 2 of the holding

A. The assertion

1) Defendant 1

Defendant 1 was normally issued each of the instant L/C and the export transaction, which is the basis of each of the above L/C, is also known as a normal transaction, so there is no intention to commit fraud.

2) Defendant 2

In the case of the purchase of the export bill by the method of credit, the fact that the L/C has purchased the export bill knowing that the L/C would not be settled normally can be recognized, but as Defendant 2 is aware that each of the instant L/C would be settled normally, there is no criminal intent of defraudation. In addition, Defendant 2 is judged that the purchase of each of the instant export bills of this case would be beneficial to the ▽△ bank, Defendant 1 trusted Defendant 1 who is a long representative of the transaction party and purchased each of the instant export bills of this case, and Defendant 1 was admitted as joint and several sureties, there is no criminal intent of defraudation to Defendant 2.

B. Determination

1) The facts charged regarding the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) are established if the defendants conspired to buy two copies of export bills of exchange issued by non-indicted 9 and acquired the purchase price through the appraisal of BB + grade with the false financial statements with respect to the non-indicted 9 company which is unable to conclude a foreign exchange transaction contract due to the poor financial condition such as sales and net losses. If it is acknowledged that the fact that the non-indicted 1 was aware at the time of the conclusion of the foreign exchange transaction contract and the purchase of export bills of exchange, if it was impossible or difficult to purchase the above export bills of exchange, then the crime of fraud was established in itself (see Supreme Court Decisions 2002Do7262, Apr. 29, 2005; 2006Do1813, Jun. 1, 2007). If it was found that there was no direct awareness that there was fraud or fraud of each of the above circumstances in the letter of credit.

2) First of all, we examine whether the Defendants’ act related to the financial status and credit rating of Nonindicted Company 9 constitutes a deception and constitutes a causal relationship with the purchase of the export bills of exchange by the ▽▽ bank. In full view of the following circumstances acknowledged by the evidence duly adopted and investigated by this court, the conclusion of a foreign exchange transaction agreement and the purchase of bills of exchange by Nonindicted Company 9 would have become impossible or difficult, if the ▽▽ bank knew that the financial statements of Nonindicted Company 9 were forged at the time of the conclusion of the foreign exchange transaction agreement and the purchase of the export bills of exchange, or knew of the credit rating duly assessed accordingly, and thus, the Defendants’ act constitutes a deception, and the causal relationship is

① Nonindicted Company 9 did not sell all years in 2013 and 2014, and net losses occurred. The debt amount in 2013 was approximately KRW 27 million, and the debt amount in 2014 was approximately KRW 96 million (Evidence Records 209-211). The credit rating of Nonindicted Company 9 duly assessed is CCC rating (Evidence Records 384).

② ▽▽은행 내규인 외국환업무취급지침 제59조에 의하면 기업금융팀 Ⅲ영업점에 해당하는 ▽▽은행 ▷▷▷지점은 ‘신용장방식 하자없는 수출환어음으로 건당 또는 동일자 매입누계금액이 미화 50만 달러 상당액을 초과하는 경우이거나 신용장방식 수출환어음 미결제금액이 본건을 포함하여 미화 200만 달러 상당액을 초과하는 경우에는 원칙적으로 심사역협의회의 승인을 받도록 하면서, 예외적으로 신용등급 BB- 이상 중소기업으로서 건당 또는 동일자 매입누계금액이 미화 1,000만 달러 이하인 경우에는 영업점장의 전결로 처리할 수 있다’고 정하고 있다(증거기록 481쪽). 공소외 9 회사의 정당한 신용등급인 CCC등급의 경우 건당 미화 50만 달러를 초과하는 이 사건 각 수출환어음 매입은 영업점장 전결로 처리할 수 없고 심사역협의회의 승인을 받아야만 처리할 수 있다. 한편 피고인 2가 2015. 9. 24., 2015. 10. 12. 두 차례에 걸쳐 받은 신용장 사전검토결과 통보서에는 이 사건 각 신용장의 46A 조항에 인증된 스위프트 메시지(Swift Message)를 요구하는 부분을 확인하고 가급적 조건변경을 받으라고 기재되어 있는 점(증거기록 787~788쪽)에 비추어 보면, 위 조항의 조건변경이 없는 상태에서 심사역협의회의 승인을 받는 것은 불가능하거나 상당히 곤란하였다고 보인다.

③ 피고인 2는 검찰에서 ‘지침 주1) 59조 에 따라 BB-등급 이상이 되어야 ▷▷▷지점 전결로 수출환어음 매입이 가능하고, 실제 재무제표에 근거하여 가장 높게 평가가 가능한 등급인 B-로도 공소외 9 회사는 본건 거래를 하지 못하였던 것이지요’라는 질문에 대하여 ‘예, 맞습니다’라고 대답하여 이를 수긍하였다.

④ 외국환업무취급지침 제58조는 ‘신용장방식 수출환어음을 매입시 신용장 개설은행이 채권보전대상에 해당하는 경우에는 관련 여신규정 및 지침 등을 준용하여 담보가액 범위 내에서 취급하거나 적격연대보증인의 보증 후 취급하여야 하고, 다만 매입신청인이 신용등급 BB- 이상 중소기업인 경우에는 위 담보 취득 또는 적격연대보증인의 보증이 생략된 경우에도 취급할 수 있다’고 정하고 있다(증거기록 480쪽). 이 사건 각 신용장의 개설은행인 Bank ▲▲▲▲▲는 채권보전대상에 해당하므로 공소외 9 회사의 정당한 신용등급인 CCC등급의 경우 이 사건 각 수출환어음을 매입하기 위하여는 담보 가액 범위 내에서 취급하거나 적격연대보증인의 보증이 있어야 한다. 한편 피고인 2의 진술에 의하더라도 위 규정 중 적격연대보증인의 보증을 통하여 매입하는 경우는 실무상 존재하지 아니하고, 위 규정에 따라 매입을 하려면 물적 담보가 있어야 한다(증거기록 748쪽). 피고인 2는 이 사건 각 수출환어음을 매입하면서 피고인 1이나 공소외 9 회사로부터 물적 담보를 제공받은 사실은 없다.

⑤ Article 57 of the Foreign Exchange Business Directive provides that “When the documents presented are intended to purchase defective export bills of exchange in accordance with the L/C method applicable to cases where the documents are inconsistent with the terms and conditions of the L/C on their face, they shall be handled within the collateral value or shall be handled after the guarantee of qualified joint and several guarantors by applying the relevant credit regulations, guidelines, etc. However, if the negotiating applicant is deemed to have a good credit rating of at least B-small and medium enterprises or the negotiating applicant whose credit rating is higher than B, due to the good credit condition and due diligence, repayment ability, security condition, etc., if recovery of claims is deemed certain, the above collateral acquisition or the guarantee of qualified joint and several guarantors is omitted,” and each of the L/C of this case provides that “46A of this case constitutes a defective bill of exchange certified by the issuing bank under the e-mail or facsimile stating that the shipping was certified by the owner/beneficiary, and thus, Defendant 2 did not request that Defendant 1’s each of the above e-mails bill of exchange within the designated limit.”

6) If each of the instant letters of credit is refused to pay by the issuing bank, the bank that purchased each of the instant letters of credit and the export bills may claim reimbursement of the purchase price against Nonindicted Company 9, the negotiating party, in accordance with Article 10 of the Foreign Exchange Transactions Agreement. If no physical security is established to secure this, the issue of whether the ▽△△ bank is entitled to receive reimbursement of the purchase price is entirely dependent on Nonindicted Company 9, the negotiating party. Therefore, in the transaction of foreign exchange transaction agreements and export bills of exchange, the financial status and credit rating of Nonindicted Company 9, the negotiating party, are important matters in determining whether to trade.

3) Meanwhile, in light of the following circumstances, if the Defendants knew of the fact that the financial statements were forged and the fact of evaluating the unfair corporate credit rating, the Defendants appears to have intended to purchase each export bill of this case with full knowledge that the purchase of each export bill of this case was impossible or difficult, and thus, the intent of defraudation is recognized.

① around October 2015, Defendant 1: (a) considered the true financial statements of Nonindicted Company 9 on the financial statements of Nonindicted Company 2; (b) “The enemy company is prohibited from engaging in a transaction of purchasing export bills of credit; (c) referring to the internal re-making of the eye reduction test; and (d) the receipt of the financial statements of Nonindicted Company 9 from Defendant 2, referring to the receipt of the financial statements of other companies (Evidence No. 1060-1063, 1073, 1132, and Nonindicted 16-2 witness’s witness examination record); (c) Defendant 2 was in charge of foreign exchange affairs for at least 20 years; and (d) around October 2015, it was well known that Nonindicted Company 9’s financial position could not engage in the export bill of credit purchase transaction; and (d) Defendant 1 was also aware from Defendant 2.

② Defendant 1 delivered written confirmations of the financial statements of Nonindicted Company 9 to Defendant 2, and Defendant 2 rejected financial statements to the effect that the number of the forged financial statements does not coincide with that of Defendant 2, and Defendant 1 re-established them and submitted them to Defendant 2 (No less than 1069 pages, 1343 pages, and the transcript of the witness’s examination of witness 16 pages).

③ 공소외 13은 2015. 8.경 ■■은행, ◆◆은행, 공소외 25 회사, 공소외 26 주식회사에 이 사건 각 신용장의 매입을 의뢰하였으나, 담보나 연대보증이 필요하다고 하거나 이 사건 각 신용장이 신뢰할 수 없는 신용장이라는 취지의 말을 들었고, 피고인 1도 공소외 13으로부터 이를 들어 알고 있었다. 그럼에도 피고인 1은 공소외 13과 합의서를 작성한 후 신용장 거래를 추진하였다(증거기록 882쪽, 894쪽, 증인 공소외 13의 증인신문 녹취록 30쪽).

④ Prior to the negotiation of each export draft of this case, Defendant 2 was well aware of the application of Articles 58 and 59 of the above foreign exchange transaction guidelines through a written notification of the result of the prior review of the credit. Defendant 2 knew that the provision of each of the instant letters of credit demanding a certified Switzerland message may be rejected on the ground of a very unfavorable provision to the beneficiary (Evidence No. 787-788 of the evidence record).

3. As to the facts listed in the judgment Nos. 3 and 4

A. The assertion

Although Defendant 1 issued four copies of KRW 100 million cashier’s checks to Defendant 2, Defendant 2 merely borrowed from Defendant 1 and did not receive them from Defendant 2, or Defendant 1 did not offer them to Defendant 2.

(b) Relevant legal principles;

Where an executive or employee of a financial company, etc. that received money or valuables claims that he/she actually borrows money while receiving such money, he/she shall comprehensively take into account all the objective circumstances revealed by evidence, such as the motive for, reasons for, and method of delivery of the money, relationship between the recipient and the money or valuables, the duties and career of both parties, the need for borrowing money, the possibility of borrowing money from a person other than the donor, the amount of borrowed money or his/her work and career, the need for borrowing, the economic situation of the donor, the amount of anticipated economic benefits related to the provision of money or valuables, whether the lender has provided security, whether the principal and interest have been repaid or not, whether the recipient has provided the principal and interest, and the possibility of compelling the donor at the time of default and compulsory execution (see, e.g., Supreme Court Decisions 2009Do4386, Sep. 30, 2010; 201Do7261, Nov. 10, 2011; 2011Do1606, Feb.

C. Determination

Comprehensively taking account of the following circumstances acknowledged by the evidence duly admitted by this Court, Defendant 2 cannot be deemed to have received KRW 100 million cashier’s checks from Defendant 1 and borrowed them.

1) Defendant 2: (a) recognized that Defendant 1 received KRW 100 million from Defendant 1 at the time of the internal audit and examination of the prosecution once, as follows; and (b) stated that Defendant 1 also at the time of the internal audit of the ▽▽△ bank, Defendant 2 provided that Defendant 2 did not complete the said audit and inspection with KRW 100 million paid to Defendant 2. The Defendants reversed the statement to the effect that KRW 400 million was borrowed, but it is difficult to believe it as it is.

A) Defendant 2’s statement

① 피고인 2는 2016. 3. 7. ▽▽은행 내부감사과정에서 진술할 당시에는 이 사건 각 수출환어음 매입과 관련하여 금품수수 및 접대 등의 부당행위는 전혀 없었다고 진술(증거기록 249쪽)하였으나, 2016. 3. 8.에 진술할 때, “2015. 11. 25. 피고인 1 사장한테 1억 원을 은행 주차장에서 수출환어음 매입 후 고객에게 감사인사로 받았습니다“라고 진술(증거기록 263쪽)하였다. 피고인 2는 2016. 3. 8.자로 자필로 작성한 경위서(증거기록 272쪽)에서 ”2015. 11. 25. 피고인 1 대표가 자기앞 수표 1억 원을 ▽▽은행 ▷▷▷지점 피고인 2에게 건네주었고 당시 피고인 1 대표는 그동안 네고하는데 수고했다며 수고비조로 건네주었고 본인은 아무 생각도 없이 얼떨결에 수수하게 되었습니다“고 기재하였다. 이후 2016. 3. 10.에 ▽▽은행 감사역에게 진술할 당시에는 위 돈을 ”주차장에서 빌려달라고 했습니다“라고 진술하였으나, 곧바로 ”피고인 1이 1억 원을 주면서 갚아도 되고 안 갚아도 된다고 이야기하면서 주었다고 하는데 맞냐“는 질문에 ”맞습니다“라고 수긍하였다(증거기록 269쪽). 피고인 2는 ▽▽은행 내부감사 당시에는 피고인 1로부터 1억 원을 차용한 것이 아니라 1억 원을 수수하였음을 인정하였다.

② On November 25, 2015, Defendant 2, at the time of the interrogation of the suspect, borrowed KRW 100 million from Defendant 1 on November 25, 2015, with the loan period of KRW 100 million as one year and interest rate of KRW 5%, and on the same day, Defendant 2 stated that Defendant 1, at the time of the interrogation of the suspect, gave up the loan certificate of KRW 100 million on the same day, and received money from the prosecutor after being asked by the prosecutor. Defendant 2, at the same time, stated that Defendant 1, when receiving KRW 100 million on November 25, 2015, Defendant 2, at the Nonindicted Company 9’s office, made a statement that the loan certificate was drafted, instead of borrowing money. In addition, Defendant 1, when receiving KRW 100 million on November 25, 2015, he stated that Defendant

③ Defendant 2 stated that Defendant 1 borrowed KRW 400 million from Defendant 1 by reversing the existing statement that he received KRW 100 million from the three-time prosecutor’s office to the examination of suspect under this law.

④ Defendant 2 alleged that he was given KRW 100 million on the grounds that the statement was reversed, rather than that he borrowed KRW 400 million, and that he would be subject to disciplinary action against a bank. However, even if the assertion itself is contrary to the empirical rule and made confessions at the time of interrogation of the prosecution once, it does not seem reasonable in light of the fact that the statement itself was made contrary to the empirical rule.

B) Defendant 1’s statement

① ▽▽은행 내부감사 당시에 ▽▽은행 감사역인 공소외 27이 작성한 피고인 1 진술의견에 의하면 조사 당시 피고인 1은 “피고인 2가 돈을 빌려달라고 요구하자, 금전적인 여유도 생겨서 대가성이라고 생각하기보다는 동 업무를 진행하는 동안 고생을 많이 한 피고인 2에게 자기앞수표(본인은 현금으로 줄 수도 있었지만 근거를 남기며 떳떳하기에 수표로 건넸음) 1억 원을 건넸으며, 여유가 되면 갚고 돈이 없으면 안 갚아도 된다고 하였다”고 진술한 것으로 보인다(증거기록 501쪽).

② According to Nonindicted 22’s prosecutor’s statement, Nonindicted 22, who was in charge of the internal audit of the ▽▽▽△ bank, stated that at the time of the internal audit, Nonindicted 22 made a statement to the effect that at the time of the internal audit, Defendant 1 lent KRW 100 million to Defendant 2, but Defendant 2 was harming Defendant 2’s repayment (Evidence 222 pages).

③ Unlike the statement at the time of interrogation of the suspect, Defendant 1 stated to the effect that, at the time of Defendant 2’s interrogation, the loan of KRW 400 million was requested from Defendant 2, but only KRW 100 million was given, and Defendant 2 was able to fully repay the above KRW 100 million, but he did not have to pay it (Evidence No. 700, 713-718 of the evidence record).

④ Defendant 1 reversed his statement that lent KRW 400 million to Defendant 2 from the date of interrogation of suspect three times to the prosecution.

C) In light of the fact that Defendant 2 changed his statement that he borrowed money from Defendant 1 at the time of an unmanned meeting with his wife Nonindicted 28, Yong-Nam 29, and Nonindicted 30, and dialogueed to the effect that Defendant 1 would borrow money from Defendant 1 (the page 3, 9 pages of the record No. 180 of the evidence list) with Defendant 1, it is difficult to believe the Defendant’s statement that the above KRW 400 million is the borrowed money as it is.

2) The Defendants were unable to make a statement or to make a proper statement as follows with respect to the terms and conditions of borrowing KRW 400 million and the details of the preparation of the loan certificate.

가) 피고인 2는 검찰 1회 피의자신문 당시에 1억 원을 수수한 것임을 인정하면서 검찰 피의자신문 약 1주일 전에 공소외 9 회사 사무실에서 똑같은 차용증을 두 장 작성하였다고 진술하였다(증거기록 756쪽). 그러나 피고인 2는 검찰 3회 피의자신문부터는 2015. 11. 25.에 피고인 1로부터 4억 원을 빌리면서 2016. 11. 25. 4억 2,000만 원을 지급하는 조건으로 하는 차용증을 당일에 ▽▽은행 ▷▷▷지점 주차장에 있던 피고인 1의 차량 안에서 작성하였고, 1억 원의 차용증은 검찰조사를 대비하여 2016. 3. 9. 내지 18.경 이후에 작성하였다고 진술하였다(증거기록 968쪽, 977~978쪽, 1030쪽, 1035~1038쪽, 1331쪽).

B) Defendant 2 stated that Defendant 1 received a loan certificate of KRW 400 million at the beginning of February 2016, as follows, and that Defendant 2 again reversed the statement on the date on which the loan certificate was drawn up, so that he/she would coincide with Defendant 1’s statement on November 25, 2015, not in the parking lot, but in the last order (section 2 of the record of Defendant’s examination against Defendant 2).

C) On November 21, 2015, Defendant 1 stated that Defendant 2 loaned KRW 400 million to Defendant 2, but did not lend KRW 100 million around November 25, 2015, and Defendant 1 stated that KRW 100 million was paid at the beginning of December 2015, and that Defendant 2 was given a full payment of KRW 10 million at KRW 50 million at the time of interrogation of suspect (one-6th day after the date of the interrogation of suspect). However, Defendant 1 borrowed KRW 150 million at KRW 15 billion on the second day after the date of the interrogation of suspect (one-6th day after the date of the above interrogation of suspect) and that Defendant 2 was given a false statement at KRW 150 million on the date of borrowing KRW 400 million at KRW 15 billion on the date of the interrogation of suspect (one-6th day after the expiration of the three-year examination of suspect). Defendant 2 was given a false statement on KRW 15000 billion on the date.

D) From this court to February 2016, Defendant 1 stated that Defendant 1 first requested Defendant 2 to obtain a loan certificate of KRW 400 million, and that Defendant 1 received a loan certificate of KRW 400 million without any special opportunity. In real money borrowed, it is common to lend money and receive a loan certificate at the same time. As such, Defendant 1’s statement that Defendant 1 received a loan certificate without any special reason at the time when 3 months have elapsed from the time of lease is insufficient.

E) The loan certificate of KRW 400 million is written as of November 25, 2016 by the date of repayment, and Defendant 2 stated as of November 25, 2016, but Defendant 1 stated as of November 25, 2016. However, Defendant 1 stated as of April 2016 or around July 2016 that the date of repayment was different from the statement on the date of repayment and did not clearly set the date of repayment.

3) According to the Defendants’ final statements, the 400 million won borrowed should have been already prepared prior to the internal audit of the ▽▽△ bank. However, the Defendants stated that, at the time of the internal audit of the ▽▽△ bank, the Defendants did not have made any statement on the above borrowed money, did not have any fact that the borrowed money was submitted, and the Defendants received KRW 100 million at

4) In light of the above-mentioned usage of KRW 400 million, it is difficult to view that Defendant 2 borrowed KRW 400 million to Defendant 1.

A) Defendant 2 received KRW 40 million from Defendant 1, and donated KRW 80 million among them to Nonindicted 24 who had internal relations (Evidence No. 132 pages), and KRW 200 million to Nonindicted 23 on November 30, 2015, and used Defendant 2’s personal debt repayment of KRW 120 million.

B) Nonindicted 23 stated that the loan period of KRW 200 million borrowed from Defendant 2 was four years (Evidence No. 954 pages).

5) The loan certificate of KRW 400 million and the loan certificate of KRW 100 million are not accompanied by the borrower’s certificate of personal seal impression or identification card of Defendant 2. In addition, since each of the above loan certificates is extremely similar in appearance, Defendant 2’s statement made on the same day as before the prosecution investigation seems to have credibility.

6) The fact that Defendant 2 paid to Defendant 1 part of the principal and interest of the above KRW 400 million prior to the commencement of the internal audit of the ▽△ bank or the instant investigation.

1. Defendant 1

(a) The scope of applicable sentences under law: Imprisonment for not less than five years nor more than 45 years; and

(b) Scope of recommendations based on the sentencing criteria: Imprisonment with prison labor for up to six years up to June 12.

1) Basic crime: Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

[Determination of Punishment] Fraud>

[Special Aggravationd Persons] Aggravated Punishment: A person who commits a fraudulent crime by deceiving the court in a trial proceeding is extremely poor or by deceiving the court in a trial proceeding.

[Scope of Recommendation] 6 years to 9 years (Aggravation)

2. The first concurrent crime: the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes.

[Determination of Types] Securities and Financial Crime> > 10 million won or more (Type 4) for executive officers and employees of financial institutions.

[Special Aggravation] Aggravations: Where the details of solicitation are related to illegal or unjust business operations.

[Scope of Recommendation] Three to Five years (Aggravated Zone)

3. Second Crimes: Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation).

[Determination of Punishment] Embezzlement and Breach of Trust

[Special Sentencings] Mitigations: If punishment is not granted or a significant damage has been recovered;

[Scope of Recommendation] Imprisonment of 1 year and 6 months to 3 years (Mitigation)

4) Scope of recommending punishment based on the standards for handling multiple crimes: Imprisonment of not less than six years to 12 years (the maximum of the sentence scope of the basic crime + the maximum of the sentence scope of the first concurrent crime + 1/2 + the maximum of the sentence scope of the second concurrent crime)

(c) Determination of sentence: Seven years of imprisonment; and

As the credit rating of Nonindicted Company 9, the Defendant, even though he was aware that he was unable to engage in the purchase transaction of export bills with the ▽△ bank, in collusion with Defendant 2, who is an employee in charge of Defendant 2, who is a staff member of the ▽▽△ bank, and acquired approximately KRW 5.2 billion as the price for the sale of export bills. Not only is the amount acquired by the Defendant, but also the Defendant was aware or could have known that the said letter of credit could not be settled normally, it is very poor in that the Defendant, even though he knew or could have known that the said letter of credit could not be settled normally, he actively forged the written confirmation of financial statements

The defendant does not seem to reflect his mistake, such as stating that it was caused by the victim's error in handling the business affairs of the ▽▽▽ bank on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), but the victims of the violation of the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

However, the Defendant does not have any criminal record other than the minor criminal record of a fine. In relation to the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), the Defendant made efforts to pay damages to the Defendant by creating a collateral on the real estate owned by the Defendant to the victim Ⅳ-bank, and by making efforts to pay damages through each collateral security and deposits in the name of the Defendant. In relation to the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation), the Defendant appears to have deposited the victims with the down payment, intermediate payment and legal interest therein, and most

In addition, considering the fact that the amount of profit actually acquired by the defendant due to the fraud, the age, character and conduct of the defendant, the motive and background of the crime of this case, the means and consequence of the crime of this case, and the circumstances after the crime, the punishment as ordered shall be determined by comprehensively taking into account various factors of sentencing as shown in the records and arguments.

2. Defendant 2

(a) The scope of punishment by law: Imprisonment for a period from five years to 22 years, and a fine of 400 million won to 1 billion won;

(b) Scope of recommendations based on the sentencing criteria: Imprisonment with prison labor for up to 16 years; and

1. Basic crime: the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

[Determination of Punishment] Securities and Financial Crime>

[Special Aggravationd ] Aggravationd : In the case of unjust business handling or arranging in connection with a flood, or of causing substantial damage to a financial institution;

[Scope of Recommendation] 9 years to 12 years (Aggravated Field)

2. Concurrent Crimes: Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud);

[Determination of Punishment] Fraud>

【Special Convicted Person】

[Scope of Recommendation] 5 years to 8 years (Basic Area)

3) Scope of recommendations according to the standards for handling multiple crimes: Imprisonment for 9 years to 16 years (the scope of sentences for basic crimes + the upper limit of the range of sentences for concurrent crimes)

(c) Determination of sentence: Imprisonment with prison labor for 7 years and fine for 400 million won; and

피고인은 ▽▽은행 ▷▷▷지점의 기업금융팀장으로 근무하면서 피고인 1의 피해자 ▽▽은행에 대한 사기 범행에 적극 가담하여 피해자 ▽▽은행에게 약 52억 원의 피해를 가하였고 이와 관련하여 4억 원을 수수하였다. 피고인은 외환업무에 20년 이상 종사하였던 자로서 신용장 사전검토결과를 통해 이 사건 각 신용장이 정상적이지 않고 지급거절될 수 있음을 알았거나 알 수 있었음에도 피고인 1의 편취범행에 적극 가담하여 위조된 재무제표임을 알면서도 허위로 신용등급을 평가하고 수출환어음을 매입하게 하였다는 점, 그 대가로 피고인이 수수한 금원이 4억 원에 이르는 점에서 그 죄질이 상당히 불량하다. 나아가 금융기관 임직원이 직무와 관련하여 금품을 수수한 행위 등을 처벌하는 특정경제범죄 가중처벌 등에 관한 법률 제5조 의 입법취지가 금융기관은 특별법령에 의하여 설립되고 그 사업 내지 업무가 공공적 성격을 지니고 있어 국가의 경제정책과 국민경제에 중대한 영향을 미치기 때문에 그 임직원에 대하여 일반 공무원과 마찬가지로 엄격한 청렴의무를 부과하여 그 직무의 불가매수성을 확보하고자 하는 데 있는 점( 대법원 2000. 2. 22. 선고 99도4942 판결 등 참조) 등을 고려할 때, 피고인에게는 그 책임에 상응하는 엄한 처벌이 필요하다.

The defendant is not simply disputing the fact of acceptance of the crime in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, but is actively trying to conceal the crime by preparing a false loan certificate after the fact, submitting it to the investigation agency and the court.

However, the defendant does not seem to have reached the crime of this case, even though he had no record of criminal punishment, and even knowing that each of the credit of this case would not settle normally, considering the circumstances favorable to the defendant.

In addition, the benefits received by the defendant due to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) shall be determined as ordered in comprehensive consideration of various sentencing factors shown in the records and arguments of this case, such as the age, character and conduct of the defendant, the motive and circumstances of the crime of this case, the means and results of the crime, the circumstances after the crime, etc.

Judges, vibrations (Presiding Judge) Park Jae-nam

Note 1) The first interrogation protocol of Defendant 2 by the prosecution (Evidence No. 744 of the evidence record) is written as Directive No. 58, but it appears to be a clerical error in Article 59.