2017Gohap358 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement),

Non-Obstruction

A

Kim Yong-ran (prosecution), chip (public trial)

Law Firm Epins

Attorney Lee Ji, Lee Dong-soo, Counsel for the defendant

November 24, 2017

A defendant shall be punished by imprisonment for not less than one year and six months.

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

Criminal 1)

【Basic Facts】

The defendant and B are pro-friendly, simplified, and C are the external third villages of the defendant and B, and D is the relationship between the defendant and the wife of the defendant.

around June 24, 2008, E Co., Ltd. (hereinafter referred to as “E”) is a corporation established for the purpose of drug wholesale business, etc. in Jongno-gu Seoul Metropolitan Government F, and is in office as joint representative director of B’s wife G and C on June 24, 2016, C was dismissed from the representative director on or around June 24, 2016, G resigned on or around July 14, 2016, and B was in office as a sole representative director until now.

Meanwhile, around 2012, 5, and 23, H Co., Ltd. (hereinafter referred to as “H”) was established for the purpose of drug wholesale business, etc. in Jongno-gu F, and C has been registered as an in-house director from May 2012 to the present date, and B has actually been operating.

【Criminal Facts】

1. Interference with business;

On June 1, 2015, the Defendant: (a) died on June 1, 2015, the Defendant was suffering from the inherited property dispute over H’s property between B and B; (b) on June 13, 2016, the Defendant thought that B transferred KRW 2.65 billion in the H’s account to E in order to repay the existing loan debt of H to E; (c) on the other hand, the Defendant changed the corporate sense of H; (d) changed the password of H’s corporate card; and (e) changed the password of H account to the exclusive right to manage the said account by changing the password.

Pursuant to the above public offering, around 12:00 on June 14, 2016, C was unable to approve the K bank account password in the name of H at the Seocho-gu Seoul Central District Court registry office of Seocho-gu Seoul, Seocho-gu, Seoul Central District Court, and H’s corporate identification card, but it was lost to the public official in charge of the registry office, and upon the registration of a new corporate identification card after submitting an application for re-issuance of H’s corporate identification card to the effect that it was lost to the public official in charge of the registry office, even though it was not lost, C was re-issued upon the registration of a new corporate identification card for B or the employee in charge of funding, who is the actual operating authority of H, and the Defendant, C, and D continued to change the identification number of H bank account account in the name of H at the K Bank Denb office located in Gangnam-gu Seoul Metropolitan Government J on the same day at will, thereby making it difficult for B or the public official in charge of funding to pay wages to his employees, pay the prices, etc.

Accordingly, in collusion with C and D, the Defendant interfered with the operation of the victim H and the execution of funds by force.

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

On June 15, 2016, the Defendant, in collusion with C and D, voluntarily withdrawn KRW 680,000,000,000 from the K Bank Account in the name of Songpa-gu Seoul Metropolitan City, at the 1st floor of K Bank (Seoul) to the K Bank Account under the name of H, and transferred the deposit amount of KRW 680,00,000 to the K Bank Account under the name of H. On the same day, around 14:31 on the same day, the Defendant transferred the above KRW 680,000 to the K Bank Account under the name of D, and then transferred it to the account under the name of the next Defendant.

After December 15, 2016, the Defendant, C, and D transferred KRW 680,000,000,000, which was transferred to the account under the Defendant’s name, to the Mbank account under H, and used at will as H-related litigation costs that are not related to E at will around that time.

Accordingly, the defendant, in collusion with C and D, embezzled the victim E's property for business purpose.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of witness B, N andO;

1. The details of each detailed statement of transactions, (E) transaction statement, transaction counterpart director, E2012, interest account statement on H loans, E 2013-2015, E-2013-2015, E-standard financial statement certificate, H standard financial statement certificate, interim prepayment and payment statement of corporate tax for 2016, B passbook (payment on behalf of corporate tax), copy of the passbook of K Bank and the KP Bank of the E company (Evidence No. 57,60), copy of each passbook of K Bank and the KP Bank of Korea of the E company, copy of the passbook of H company M Bank, D name passbook ( KRW 680,00,00), non-prosecution, non-prosecution statement, statement of opinion, H account statement, and statement paid by B as personal money of H employee monthly wage;

1. Each investigation report (No. 2016-type 61005, accompanying documents, such as a non-prosecution, and verification of the use of 680 million won for embezzlement);

Application of Statutes

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

Articles 314(1) and 30 (Interference with Business, Selection of Imprisonment), Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356 and 355(1), 30 and the main sentence of Article 33 of the Criminal Act (Embezzlement)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act shall be more severe penalty provided for in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following grounds for sentencing has been repeatedly taken into consideration for favorable circumstances)

Grounds for conviction

1. Summary of the defendant's assertion

The defendant registered a new corporate identification of H and changed the password of H account, and transferred KRW 680 million deposited in the E account to H account as stated in its reasoning.

However, E and H are corporations established and operated by the Defendant and B’s division I (hereinafter “the deceased”), and they transferred the deposit of KRW 2.650,000,000 to the account under the name of E in fact in which the actual operator was closed, not the actual operator, while having gone through the dispute with B, with H, which is an inherited property after the attachment, and the Defendant transferred the deposit of KRW 2.65,000,000 to the account under the name of E in which he was actually closed. In order to preserve the inherited property and prevent additional embezzlement, the Defendant changed the H’s corporate sense and password to return KRW 680,000,000,000

Therefore, the Defendant did not intend to interfere with H’s business, and the above KRW 680 million was not owned by E, and even if owned by E, there was no intention to obtain unlawful acquisition since it transferred to C with E, a joint representative director.

2. Relevant legal principles

A. In the establishment of the crime of interference with business, it does not require the actual occurrence of the result of interference with business, and it is sufficient that the occurrence of the risk of interference with business would result in the occurrence of the risk of interference with business, and the “disorder with business” includes not only interference with the execution of business itself but also wide interference with the management of business (see, e.g., Supreme Court Decision 200Do3231, Mar. 29

B. For embezzlement to be established, a person who holds another’s property should be in the position of a custodian of another’s property, and the issue of whether to grant another’s property ought to be determined by the Civil Act, the Commercial Act, and other substantive laws (see, e.g., Supreme Court Decision 2009Do1373, May 13, 2010). The intent of unlawful acquisition in the crime of occupational embezzlement refers to an intention to dispose of another’s property, such as its own property, in fact or by law, that a custodian of another’s property violates his/her occupational duty for the purpose of seeking the benefit of himself/herself or a third party (see, e.g., Supreme Court Decision 2002Do5439, Feb.

3. Determination

A. In full view of the various evidence duly admitted and investigated by the court, the following facts and circumstances can be revealed.

1) On May 15, 2012, the Deceased withdrawn KRW 1 billion from his account on the 22th of the same month, and on the 23th of the same month, nine persons, including B, etc., invest each of KRW 45 million, and C, a total of KRW 115 million on the 23th of the same month, establishing H with the capital of KRW 520 million (Evidence Records 379, 380, 385). H engages in the business of supplying medicines to three Qu Pharmaciess (RA, SU, and TU).

2) From December 6, 2012 to January 7, 2013, E loaned a total of KRW 2.95 billion to H, and from April 22, 2016, there was a loan claim amounting to KRW 2.65 billion to H by receiving a total of KRW 300 million from H nine times until April 22, 2016. E paid interest income tax on KRW 592,252,417 from December 2012 to June 2016 on the loan’s recognition interest rate of KRW 592,252,417, and H bears interest costs equivalent to the same amount (Evidence record 52-90 pages).

3) On June 13, 2016, B directed H’s accounting staff N who manages H’s account and E’s account, and transferred the amount of KRW 2.65 billion in H account to H account as the repayment of short-term loans. Even after the transfer, there existed approximately KRW 1.235 million deposits in H account (Evidence 390 pages).

4) On June 14, 2016, C known of the above transfer, entered the Defendant and then registered a new corporate identification number of H in the registry office of the Seoul Central District Court and re-issued a corporate identification card, and subsequently changed the password of H account at the H account at the point of the pressure control region of the K Bank.

5) On June 15, 2016, B heard the words that H’s corporate identification number and password of the K bank account were changed from N, and transferred KRW 2 billion out of the above KRW 2.65 billion to the E bank account (the above KRW 2 billion has been transferred to U.S. corporation established by oneself). The Defendant and C transferred KRW 680 million, which had been in the K bank account of E on the same day, to H account. The Defendant and C transferred KRW 2 billion to D and the Defendant deposited each account under the name of each of the Defendant and the Defendant in sequential order. After the police investigation was commenced upon the complaint of B, they disbursed it as litigation costs, etc.

6) The Defendant paid H’s salary for the employee on June 2016, based on the details of H’s salary (Evidence No. 744, 745), but did not inform H employees of the new corporate identification number or the changed account identification number. Accordingly, B paid corporate tax, value-added tax, employee’s salary, and four major insurance premiums for the year 2016 from July 2016 to March 2017 (Evidence No. 245, 246, 663), and H employees did not receive retirement allowances after their withdrawal from office on November 2016.

B. Determination on interference with business

In light of the following circumstances as indicated in the above facts, it is reasonable to view that the Defendant, as stated in its reasoning, was aware of or admitted at least that the above company’s corporate identification number and account password might hinder the management of the company when changing the ownership of the assets of E, H, and two companies, at least after the deceased died, and that the Defendant did not inform the H’s corporate identification number and account password to the employees of B as well as H, and that the Defendant did not inform the other employees of H of the change; and (3) thereby, it would interfere with the execution of funds, such as the payment of employee benefits or medicine charges.

C. Judgment on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

In full view of the aforementioned facts and the records and arguments, in particular, the amount of KRW 2.65 million borrowed from HO E in the form of short-term loans on the account book, and the Defendant was also aware of them; ② the Defendant transferred KRW 680 million in the E account to H account without a resolution of the board of directors or other joint representative director (G) together with C in the status of retaining the property in the course of business E; immediately thereafter, the Defendant transferred funds to D and the Defendant’s name in succession; ③ thereafter, the Defendant disbursed the above KRW 680 million for purposes not related to E; even if the Defendant used the above KRW 2.65 million in the operation of the company for a long-term period of time, it shall be deemed that the Defendant acquired ownership by receiving the above money in accordance with the loan contract between corporations; and the Defendant can be recognized as having obtained ownership for the purpose of unlawful acquisition, unless he withdraws the money without due authority.

Reasons for sentencing

1. Scope of recommendations according to the sentencing criteria;

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

[Determination of Punishment] Type 3 (at least KRW 500 million but less than KRW 5 billion)

[Special Convicted Persons] Reduction element: Substantial one company or family company

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

B. Interference with Business

[Determination of Types] 1 (Interference with Business) interference;

[Special Convictd Persons] Mitigations: motive for committing a crime to be considered.

[Scope of Recommendation] Imprisonment from one month to eight months (Discretionary Zone)

C. Imprisonment with prison labor for 1 year and 6 months to 3 years and 4 months (=3 years + 8 months + 1/2)

2. Determination of sentence;

The crime of this case committed by the Defendant, South Korea, after the establishment of a wholesaler of medicines (E and H) was deceased, changed the H’s corporate reduction and password, which actually operated by B, from among those conflicts arising between B and inheritance, to interfere with the business of the said company without permission, and arbitrarily transfer and use the deposit amount of KRW 680,000,000 to E.

However, in a situation where the ownership relationship with H, etc. is not clearly organized, the Defendant came to know that B moved the company’s funds to A, thereby resulting in the instant crime in the course of returning them to the original state, and seems not to have consumed or retained the said KRW 680 million for personal purposes. In addition, B submitted a written withdrawal of complaint to the prosecution on April 5, 2017, and revoked the Defendant’s complaint.

In addition to these various circumstances, the defendant's age, character and environment, relationship to victims, circumstances after the crime, etc. are determined within the scope of the recommended sentencing guidelines and the execution of the sentence is suspended.

The presiding judge and judges;

Judges Sung Jae-in

Judges' Index

1) To the extent that the facts charged and basic facts are identical to the facts charged and there is no concern about substantial disadvantage to the defendant’s exercise of his/her right of defense, the defendant’s specific act, etc

2) The remaining amount of KRW 2 billion transferred from the above KRW 2.65 billion is about KRW 650 million and KRW 30 million in the previous balance of the above account.