Defendant 1 and two others

Maximum pencil

Law Firm Shin & Yang, Attorneys Lee Jae-in et al.

Nonindicted Co. 1

Defendant 1 shall be punished by imprisonment for three years, and imprisonment for two years and six months, respectively.

The number of days of detention prior to the issuance of this judgment shall be 181 days per defendant 1, and 165 days shall be included in the above punishment against defendant 2.

An application filed by an applicant for compensation shall be dismissed.

Of the facts charged in the instant case, Defendant 1 and Defendant 2 are not guilty of occupational breach of trust and Defendant 3 are not guilty.

Defendant 1 is the head of the business division “(business name omitted)” of Nonindicted Co. 1 (hereinafter “Company”) and the head of the business division “Nonindicted Co. 1” and Defendant 2 are the persons who worked for the head of the company’s computer planning office, and Defendant 1 and Defendant 2 in collusion:

1. The fact is that there is no intention or ability to establish chain stores even if they receive money from others for the purpose of deposit in connection with the establishment of (business name omitted) chain stores, and in such a case, there is no authority to prepare a chain establishment agreement and a deposit slip in the name of the representative director of the company, regardless of the absence of any authority to prepare

A. On February 20, 2003, at the office located in Gangnam-gu, Seoul, Seoul, the office of the company where it was located. Defendant 1 committed as if the chain store was opened to Nonindicted 2, without authority, entered “(business name omitted)’s name in the column of store name” and “100 million won” in the column of transaction deposit money, and transferred it to Defendant 2. Defendant 2’s column of the “Party to the above transaction agreement (A)” in the name of Nonindicted 1 corporation’s representative director Nonindicted 3” and affixed the name of the company’s name, which is a private document’s name and duty, and forged one copy of the transaction agreement with Nonindicted 1 corporation’s name and duty, and subsequent Defendant 1 believed to exercise the trust agreement with Nonindicted 2, 200,000 won in the name of each company’s name and seal affixed to each of the above 700,000,000 won in the name of the representative director, 200,000 won in each column of deposit.

B. At the same place around February 20, 2003, Defendant 1 falsely speaks that the victim Nonindicted 2 will set up a Dobong Home Stacker store. The delivery of the forged transaction agreement and the execution of the normal chain store transaction agreement is the same as if the normal chain store transaction agreement was entered into, and it was obtained from the above Nonindicted 2 as the deposit money under the above chain transaction agreement, and acquired it by fraud from the victims 14 times in total from October 25, 2004, as shown in the attached list of crimes (2), from that time until October 25, 2004; and

C. At the same place around June 30, 2003, Defendant 1 told that he would open a chain store through relay to the above non-indicted 2. The defendant 1 delivered the forged transaction agreement and attempted to acquire KRW 50 million from the above non-indicted 2 as deposit money pursuant to the above chain store transaction agreement, while he attempted to acquire the above money from the above non-indicted 2 under the name of deposit pursuant to the above chain store transaction agreement. However, the above non-indicted 2 did not have the intent to deposit the above money into the corporate account of the non-indicted 1 corporation and did not do so, from that time until the beginning and after the end of January 2004, he did not receive KRW 290,000 from the victims four times in total, as shown in the list of crimes (3) from the victim from the beginning of January 2004, and did not carry out such intent and did not commit each attempted crime.

2. Around August 20, 2002 at the same place, Defendant 1 received one copy of the KRW 50 million check from Nonindicted 4, a chain store located in Busan, and kept it for the company. around that time, Defendant 1 embezzled and embezzled it by using it to repay personal debts at the seat of the city in Seoul, and from that time up to February 28, 2005, embezzled total of KRW 1,320,200,000 over 42 times, as shown in the List of Crimes (4).

1. Defendant 1’s legal statement and part of Defendant 2’s legal statement

1. Each legal statement of the witness, Nonindicted 5, Nonindicted 6, Nonindicted 7, and Nonindicted 8

1. Each statement of the suspect interrogation protocol prepared by the prosecutor on Defendant 1 (including the statement parts of Nonindicted 5, Defendant 2, and Nonindicted 6)

1. Statement of Defendant 1 in the suspect examination protocol of Defendant 3 prepared by the public prosecutor;

1. Statement of the second suspect interrogation protocol prepared by the public prosecutor on Defendant 2 (including Defendant 1’s portion of statement);

1. The first written statement of the suspect interrogation protocol prepared by the public prosecutor as to Defendant 2 (including Defendant 1’s portion of statement); and

1. Statement on Nonindicted 6’s written statement prepared by the prosecutor

1. Entry of each statement of the suspect interrogation protocol prepared by Defendant 1 in the preparation of judicial police assistant;

1. Each statement written by Nonindicted 5, Nonindicted 9, Nonindicted 8, and Nonindicted 10 on the preparation of a judicial police assistant.

1. Each description of the statements prepared by Defendant 1 and Nonindicted 4

1. A copy of the confirmation (No. 13), a copy of deposit certificate (No. 14 of the investigation record), a copy of the chain agreement (name omitted), a copy of the investigation report (No. 19 of the investigation record), a copy of the investigation report (No. 28 of the investigation record), a statement of embezzlement, etc. (No. 41 of the investigation record), a deposit certificate, a copy of written confirmation, a copy of written agreement (No. 44-99 of the investigation record), a victim confirmation, a written statement (No. 101-113 of the investigation record), a supporting document (No. 140-210 of the investigation record), a copy of the written agreement of transaction (No. 296 of the investigation record), a copy of the certificate (No. 366 of the investigation record), a copy of the written confirmation (No. 366 of the investigation record), a report on criminal investigation (No. 500 of the investigation record), a report on criminal investigation (No. 620 of the investigation record), a criminal suspect's);

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

Articles 231, 30 (the point of each private document, the choice of imprisonment), 234, 231, 30 (the point of exercising the respective private document, the choice of imprisonment), 347 (1), 30 (the point of fraud, the choice of imprisonment), 352, 347 (1), and 30 (the point of attempted fraud, the choice of imprisonment), Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 3 (1) 2 of the Criminal Act, Articles 356, 35 (1), and 30 (the point of occupational embezzlement, and the main sentence of Article 33 of the Criminal Act against Defendant 2) of the Criminal Act.

1. Commercial competition;

Articles 40 and 50 of the Criminal Code [Attachment 1] each of the offenses of uttering of a falsified investigation document referred to in [Attachment 1] Nos. 3, 6, 9 through 11, and 13 through 16 of the Criminal Code shall also be the same as above]

1. Aggravation for concurrent crimes;

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

1. Discretionary mitigation;

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

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Code

1. Application for compensation;

Article 32 (1) and (2) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings

1. Summary of the assertion

The Defendant conspired to commit the crime in the judgment with the above Defendant 1 and did not have any fact of participating in or dividing the profits therefrom, but only borrowed KRW 100 million from the above Defendant 1. In other words, the Defendant did not have any fact of sealing the seal in the name of the representative director in the transaction agreement, and the above Defendant 1 did not have any fact of lending the passbook in the name of Nonindicted 11 on the ground that it is necessary for the above Defendant 1 to receive the deposit money, and later, Defendant 1 was aware of the fact that the above Defendant 1 received the deposit money from Nonindicted 8, but it was believed that the above Defendant 1 knew of the fact that the passbook was used in the name of the above Defendant 1, and made several false statements to the above Nonindicted 8 at the request of the above Defendant 1. In addition, the Defendant borrowed money from the above Defendant 1, and was in the name of Nonindicted 12, and the Defendant was unaware of the money embezzled by the above Defendant 1.

2. Determination

살피건대, 앞서 든 증거들에 의하여 인정되는 다음과 같은 사정, 즉 ① 상피고인 1은 수사기관 이래 이 법정에 이르기까지, 피고인과 이 사건 사기, 횡령 등 범행을 공모하였고, 그에 따라 피고인은 평소 위조된 회사 대표이사 명의의 도장을 갖고 있으면서 위 피고인 1 자신이 거래약정서를 작성하여 가지고 갈 때마다 그곳에 위 도장을 날인하여 주었을 뿐 아니라 피해자가 의심하는 경우에는 피해자를 직접 만나 안심시키기도 하였으며, 이 사건 범행을 통해 얻은 이익은 술집에서 수표를 교환하는 등의 방법을 거쳐 서로 나누어 가졌는데, 피고인이 가져간 금액이 약 4~5억 원 정도 된다는 취지로 일관되게 진술하고 있는 점, ② 피고인은 검찰에 자수한 후 행해진 제1회 피의자신문에서 처음에는 범행 일체를 부인하다가 변호인(현재의 변호인과 동일한 변호인으로 보인다)을 접견한 다음에 사기 범행 전부 및 횡령 범행 일부를 시인하였고, 제2회 피의자신문에서는 판시 범죄사실을 모두 자백하였으며(이 때 피고인은 위 피고인 1이 수사기관에서 피고인이 대표이사 명의 도장을 소지하게 된 경위를 알지 못한다고 진술하였던 것과 달리 “2002년경 피고인 1과 함께 회사 근처의 도장가게에서 도장을 만들었다”고 진술하기도 하였다, 수사기록 제734면), 이 법정의 제1회 공판기일에서도 공소사실을 모두 인정한다는 취지로 진술하였던 점(범행을 부인하고 있는 현재에도 위 자백의 경위에 관하여 구체적인 해명을 하지 못하고 있다), ③ 피고인은 회사에 이 사건 범행이 알려진 후 위 피고인 1과 함께 약 2달간 숨어지면서 해결책을 모색하였고, 그 과정에서 피고인이 보관하고 있던 회사의 분식회계 자료를 가지고 회사와 협상을 시도하기도 하였으며, 심지어 위 피고인 1과 함께 인도네시아로 도피할 생각까지 하였던 점, ④ 피고인은 피해자 공소외 8로부터 회사에 예치금 제도가 있냐는 취지의 질문을 받았을 때 그런 제도가 있다면서 거짓말을 하여 위 공소외 8을 속였고, 2005. 3. 2.경 위 피고인 1이 위 공소외 8에게 피고인과 공모하여 범행을 저질렀다는 취지로 말할 때 옆에 있으면서 이를 수긍하는 듯한 태도를 보였으며, 위 공소외 8에게 “사장에게는 피고인 1이 혼자 범행한 것으로 보고하였으니 내가 회사에 남아서 돈을 찾게 해주겠다”는 취지로 말하기도 하였던 점, ⑤ 피고인은 2004. 초부터 회사 전산기획실에서 파견근무를 하였던 공소외 7에게 로또 번호가 수개 적힌 용지를 주면서 이를 위 피고인 1에게 전달하라는 심부름을 시켰고, 위 피고인 1은 피고인과 같이 있는 자리에서 위 공소외 7에게 적게는 200~300만 원, 많게는 400~500만 원씩 주면서 로또 등 복권을 구입하라는 심부름을 자주 시켰던 점, ⑥ 피고인은 사장의 신뢰를 받아 회사의 분식회계 자료를 보관하거나 사장이 원하는 업무 영역에서 경유 결재를 하는 등 회사 내부에서 실력자로 통하였고, 2001. 3.경 위 피고인 1의 부정행위를 직접 조사하는 등 실질적인 감사업무도 수행하고 있었으므로 회사의 내부 사정을 잘 알고 있었던 것으로 보이는 점, ⑦ 정상적인 상황에서는 보증금이 없는 체인점이 개설될 수 없음에도 불구하고 위 피고인 1이 체인점의 보증금을 횡령하는 바람에 2003. 6.경부터는 보증금이 납입되지 않은 체인점이 개설되기 시작하였는데, 당시 피고인은 전산을 통해 보증금이 납입되지 않은 체인점이 발생하고 있는 사실을 확인할 수도 있는 위치에 있었던 점, ⑧ 피고인은 자신의 아들 공소외 11 명의의 계좌가 위 범행에 사용된 것과 관련하여, 수사기관에서는 당시 위 피고인 1이 “개인적으로 송금받을 돈이 있는데 신용불량으로 인하여 통장개설을 할 수 없으니 통장을 하나 만들어 달라”는 부탁을 하였다고 진술하였다가, 이 법정에서는 위 피고인 1이 보증금을 받는데 필요하다고 하여 위 통장을 빌려주었던 것이라고 진술하는 등 그 진술에 일관성이 부족하고, 사실은 당시 위 피고인 1이 신용불량 상태에 있었던 것도 아니었으며, 보증금을 법인 통장이 아닌 개인 통장으로 받는다는 것 자체도 비정상적인 일로 보이므로 피고인의 위 진술을 그대로 믿기는 어려운 점, ⑨ 피고인은 2003. 7.경부터 2004. 12.경까지 위 피고인 1로부터 합계 1억 580만 원을 차용하였을 뿐이라고 주장하면서, 그 근거로 자신이 2004. 4. 7. 700만 원, 같은 해 5. 28. 2,800만 원을 위 피고인 1에게 각 송금한 사실을 들고 있으나, 피고인이, 당시 연봉이 불과 3,000~3,500만 원 정도에 불과하고 경제적으로도 상당한 어려움을 겪고 있었던 것으로 알고 있던 위 피고인 1로부터 1억 원이 넘는 돈을 빌린다는 것은 그 자체로도 선뜻 믿기 어려운 점 등에 비추어 위와 같이 위 피고인 1에게 송금한 것이 차용금을 변제한 것이라고 바로 단정할 수는 없는 점 등과 앞서 든 증거들을 종합하여 보면, 제2회 공판기일 이후의 피고인의 완강한 부인에도 불구하고 피고인이 위 피고인 1과 공모하여 판시 범죄사실과 같은 범행을 저지른 사실을 충분히 인정할 수 있다고 할 것이므로, 피고인 2 및 그 변호인의 주장은 이유 없어 받아들이지 아니한다.

1. Defendant 1

The facts that the defendant is the first offender and is expected to be divided into his mistake are favorable to the defendant. However, the defendant's crime of this case is committed in collusion with the first defendant 2, who is the head of the company's computer planning office, by acquiring KRW 700 million from the person who intends to become the chain store in collusion with the third defendant 2, who is the head of the company's computer planning office, and embezzled KRW 1.3 billion from the person who intends to become the chain store over 42 times, in light of the number of the crimes, the number of the crimes, the amount of the damage, etc., the damage amount is considerably heavy, and even until now, the damage amount is not completely recovered, and all of the sentencing factors, such as the defendant's age, character and conduct, circumstances after the crime, etc., shall be sentenced as ordered.

2. Defendant 2

The fact that the defendant has no criminal records other than minor fines, etc. is favorable to the defendant. However, as seen in the part concerning the above defendant 1, the fact that the crime of this case is considerably heavy, the damage has not been completely recovered until now, and all of the sentencing factors, such as the defendant's age, character and conduct, environment, and circumstances after the crime, etc., shall be sentenced to punishment as ordered.

1. Summary of the facts charged

The defendants conspired to transmit the goods to another chain store in the course of the company's computer processing, and the company should pay the price for the goods to the chain store. The "pre-sale price" means that the chain store receives the goods from another chain store and the company should recover the price for the goods from the chain store. When settling accounts of the pre-sale price and the pre-sale price items, the above pre-sale price and the pre-sale price are always zero (0). Since the pre-sale price are based on the premise of normal operation of the goods, the above pre-sale price and the pre-sale price are based on the premise of normal operation of the goods, and therefore the company is in violation of its duties, even if there was a occupational duty to avoid damage to the company by manipulating the computer system;

At the above (business name omitted) office around November 17, 2004, Defendant 1, as if he sent the above amount of money to other chain stores even though he did not know that the chain store in Busan (Nonindicted 4) in Busan was 76,652,273 won of the above amount of money, Defendant 1, as if he sent the above amount of money to other chain stores, had the chain store in Busan, obtain property benefits equivalent to the above amount of money by removing only the pre-purchase of the above other chain stores in computer system. Defendant 3 had the chain store in Busan, and suffered property damage equivalent to the above amount of money from the company from December 26 of the same year, from that time, he operated computer through the same method as shown in the list of crimes (5) in attached Form 12 until December 26 of the same year, thereby gaining financial profits equivalent to the above amount of money to chain stores and causing financial losses to the company.

2. Summary of the Defendants’ assertion

As to the above facts charged, Defendant 1 alleged that it was true that he engaged in electronic manipulation, but it was for the purpose of arranging the sales discount for chain stores, and that most of the amount of electronic manipulations also correspond to the amount that should be adjusted as sales discount, and thus, it cannot be deemed that he caused damage to the company. Defendant 2 asserted that there was no participation in the above electronic manipulations, and Defendant 3 did not know that there was a loss to the company's property. Defendant 3 did not know that there was a loss to the company.

3. Determination

In full view of the aforementioned evidence’s statements at the court and the investigative agency, when the company supplements the amount of damages due to the discount sale at the chain store, Defendant 1 was unable to process the amount of the outstanding amount to the chain store of the company by electronically processing it in accordance with due process. However, Defendant 1 was unable to process the amount of the outstanding amount to the company’s chain store normally due to lack of evidentiary materials for the reason that the data were not properly arranged, Defendant 2 conspired to resolve the above problem by means of an electronic pre-sale and manipulating the pre-sale price, and then, Defendant 3, upon receiving Defendant 2’s instructions, entered the pre-sale price into the market from the chain store to another chain store. Defendant 3, upon receiving Defendant 2’s instructions, entered the pre-sale price in the pre-sale price and deleted only the pre-sale price of the above other chain store through an electronic data processing method. In light of the aforementioned facts, in order to find the amount of the outstanding amount to each company, the amount of the company’s asset manipulation should be acknowledged.

However, Defendant 1 stated that, among the chain stores listed in the separate list of crimes (5), in the case of each chain store with the exception of the chain stores where Nonindicted 13 occupies, it is deemed that the amount of computerized manipulation coincides with the amount of lawful sale. Unlike other evidence to acknowledge that the amount of electronic manipulation by each chain store is higher than the amount of legitimate sale ( Nonindicted 5 stated at the time of prosecutorial investigation, the company made a statement that the total amount of 12 billion won or more is 250 million won or more than 30 million won. However, in this court, it is thought that the above statement at the prosecutorial office merely stated that the amount of electronic manipulation was less than the amount of electronic manipulation of the defendant 13 because it was merely a kind of abstract evidence to verify the amount of sale at the time of the defendant’s manipulation, and that there is no reasonable evidence to acknowledge that the amount of electronic manipulation at each chain store is less than the amount of electronic manipulation of the defendant 1.

Therefore, the facts charged that the Defendants committed property damage to the company by manipulating the computer system as shown in the attached list of crimes (5) fall under the case where there is no proof of crime, and thus, the acquittal is rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act.

It is so decided as per Disposition for the above reasons.

[Attachment Form 5]

Judges Kang Jong-ju (Presiding Judge) Kim Jong-Un