(영문) 부산지방법원 2015.2.6.선고 2013고합502 판결

From June 2, 2008 to September 20, 201, the Defendant served as an employee of accounting at victim E Co., Ltd. (hereinafter referred to as “victim Co., Ltd.”) located in Gangseo-gu Busan Metropolitan Government (hereinafter referred to as “victim Co., Ltd.”) and engaged in fund management and enforcement duties. The Defendant, who is managing the funds of the Victim Co., Ltd., embezzled the fact that he manages the funds of the Victim Co., Ltd. with the intent of

around August 28, 2008, the Defendant transferred KRW 6,617,50 from the bank account (G) in the name of the Defendant to the Agricultural Cooperative (H) account in the name of the Defendant in the name of the Defendant in the name of the victim company, and used it for personal purposes through Internet banking, and transferred KRW 139,858,810 in total by the same method over 57 times from August 31, 201 as shown in the List of Crimes (1) to the Defendant’s name, and without permission, deposited KRW 60,874,860 in cash from the bank account in the name of the victim company as shown in the List of Crimes in the attached Table (2). In addition, the sum of KRW 16,908,670 over 33 times as indicated in the List of Crimes (3) plus the sum of the money paid from the Defendant to the Defendant’s account in the name of the customer in the name of the Defendant’s name of 150 days in the attached Table (105 days).

On July 29, 201, the sum of KRW 8,400,000 is deposited in the account in the name of the victim, and on July 29, 201, the amount of the goods was returned to the account in the name of the defendant on August 8, 2011. On August 11, 2011, the victim deposited KRW 83,000,000 out of the account in the name of the victim company and embezzled the remainder of KRW 7,00,000 for personal use over 128 times in total.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of F, J, K, L, M, N,O, P, and Q;

1. Complaint;

1. A copy of the suspect's benefits list and each tax invoice;

1. The detailed statement of passbook of the victim company's Gyeongnam Bank; the current book of each corporation; the cash receipt and disbursement statement of each corporation; the defendant, R, S, and new bank in the name of T, Gyeongnam Bank, Nonghyup Bank, Nonghyup Bank, and enterprise bank account statement

1. Each investigation report (attaching a statement, etc.);

Application of Statutes

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

Articles 356 and 355(1) of the Criminal Act (generally, the choice of imprisonment)

Determination on the list of crimes in attached Form 1 (1)

Based on the evidence adopted and examined by this court, ① the amount of embezzlement in attached Table 1(1) in the indictment, ② the Defendant’s assertion on the amount of embezzlement, ③ the details and date of entry between the Defendant and the victim company, ④ the details of transfer by the Defendant to the person concerned of the victim company, ⑤ the Defendant’s assertion about the amount, and ④ the judgment on each of the Defendant’s arguments are shown in the table as follows.

A person shall be appointed.

(The part concerning the transfer between the victim company-Defendant and the defendant-Defendant (the part concerning the transfer details of the victim company) where there is no person to enter and withdraw the transfer details related to the transfer details between the victim company and the defendant (the part concerning the transfer details that the defendant transferred to persons related to the victim company): Where it is recognized that the relationship between the victim company is related, but the defendant does not have the part concerning the embezzlement part, and where there is no same amount among the transfer details that the defendant first paid from the victim company to persons related to the victim company (the part concerning the claim about the transfer details that the

In full view of the following circumstances acknowledged by the aforementioned table, namely, ① details of transfer from the account in the name of the victim company to the account in the name of the defendant, ② details of transfer from the victim company to the account in the name of the defendant, ② details of transfer from the victim company or related persons of the victim company were first paid to the victim company or the related persons of the victim company and returned from the victim company, but there was no circumstance that the remainder was used for the defendant company for the defendant company during the period before and after deposit into the account in the name of the defendant, the part of transfer from the account in the name of the victim company to the account in the name of the defendant

Determination on the list of offenses in attached Form 2 (2)

Comprehensively taking account of the following circumstances acknowledged by the evidence adopted and examined by this court, it is recognized that the defendant embezzled KRW 60,874,860 as shown in the annexed Table (2).

(1) The details of cash entry and withdrawal from the account in the name of the defendant (four (four) and the account recognized as managed by the defendant (three (three (five) accounts in the name of the defendant's mother S (five (five)), the account in the name of the defendant's father (one six)), the account in the name of the Dong R (one (one) and all of the above accounts; hereinafter referred to as "the account in the name of the defendant, etc.") are as shown in the attached Form cash entry and withdrawal.

② The details of cash entry and withdrawal include a period much much more than the amount of deposits than the amount of deposits within a similar period. This is the structure that requires additional cash revenues to the defendant.

③ In addition to the monthly wage of the victim company, the Defendant asserts that there was a revenue remitted to, or received in cash from, the account by taking part in the victim company’s monthly wage. However, the Defendant cannot explain the above additional cash revenue from the Kinn's house that has been employed only at night (in the case of the Defendant’s assertion, the revenue from the ben't t t t t t t t t t l t t t t t t t t t t t t t t t t t t t t g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g g.).

⑤ Meanwhile, in light of the details of cash deposit and withdrawal, the money deposited from the account held in the name of the Defendant, etc. is not deposited.

In full view of the above circumstances, the part on which cash has been deposited in the account in the name of the defendant such as the defendant on the day when the cash was deposited in the passbook of the victim company or within the short time, such as the attached list of crimes (2) is determined as the amount embezzled by the defendant.

Determination on the list of offenses in attached Form 3 (3)

Although the defendant and his defense counsel asserted that the amount of money transferred in addition to the payment is paid to the interest amount of the money that the defendant lent to the victim company, considering the following circumstances acknowledged by the evidence adopted and investigated by the court: ① there is the amount of money transferred in addition to the payment prior to the time that the defendant lent the money to the victim company; ② the amount of the money transferred in addition to the payment is difficult to be regarded as interest because it is not given every month; ③ a large amount of money transferred in addition to the payment is not considered as interest; ④ A large amount of money transferred in addition to the payment even after the defendant received all the principal amount of the money claimed to be lent to the victim company; ④ there is additional money transferred in addition to the payment even after the defendant received the payment.

Determination on the list of offenses in attached Form 4 (4)

The Defendant and the defense counsel asserted that a false tax invoice was made by F, the representative director of the victim company, and that the amount transferred from the customer, was paid to F. However, considering the following circumstances acknowledged by the evidence adopted and investigated by this court, the fact that the Defendant embezzled the transaction price by using a false tax invoice, such as the attached Form No. 1, when considering the following circumstances: (i) the customer president hearss the Defendant’s words upon F’s request; (ii) the customer president issues a false tax invoice; (iii) the victim’s direct transaction details at the time were not timely made; (ii) the victim’s company’s transaction price was transferred from the victim company to the account in the name of the Defendant; and (iii) there was no circumstance in which the money was paid to F.

Determination on the list of offenses in attached Form 5 (5)

The defendant and his defense counsel asserted that the defendant paid 4,300,000 won to the victim company by neglecting the amount he borrowed from the Customer AH on December 9, 2010.According to the evidence adopted and examined by the court, there was transaction details transferred from the account in the name of the defendant to the account in the name of the victim company (Seoul Bank G G). However, in light of the fact that the defendant received the amount equivalent to the above amount from the victim company on December 30, 2010, the defendant had the intention of unlawful acquisition at the time of receiving the above 4,300,000 won from his own account. Accordingly, this part of the defendant and his defense counsel's assertion is not acceptable.

Reasons for sentencing

[Scope of Punishment] Imprisonment from 1 month to 10 years

[Determination of Punishment] Embezzlement and Breach of Trust, Type 2 (at least KRW 100 million, less than KRW 500 million)

【Specially Convicted Persons】 In the event of intentional concealment of Criminal Proceeds (Aggravated Elements)

【General Convicts】 In the case of embezzlement (Aggravated Elements)

[Scope of Recommendation] Two to Five years of imprisonment

[Determination of Sentence] The crime of this case 3 years has been sentenced to imprisonment with prison labor for a long period of 3 years when the defendant was in charge of fund management and execution as an employee in charge of the victim company's accounting, and the crime of embezzlement of approximately KRW 300 million in total by 128 times for a long period of 3 years, and the nature and circumstances of the crime are very poor, and even though the victim's damage amount is enormous, the defendant did not agree with the victim or make no effort to recover from damage. Rather, the defendant intentionally conceals part of the amount caused by the crime of this case, it is inevitable to sentence imprisonment with prison labor for the defendant.

The sentence shall be determined as per the order, taking into account such circumstances as the defendant's age, character and conduct, environment, and circumstances after the crime, etc. as shown in the argument of this case.

The acquittal portion

1. Summary of the facts charged

Around August 28, 2008, the Defendant transferred KRW 6,617,50 to the Agricultural Cooperative (H) in the name of the Defendant through the Internet banking account in the name of the Defendant in the name of the victim company, and used it for personal purposes, and transferred KRW 268,198,941 in total to the account under the name of the Defendant for 79 times from August 31, 201 as shown in the separate crime list (6). The Defendant transferred KRW 235,534,860 to 103 times in cash from the account under the name of the victim company as shown in the separate crime list (7). The Defendant paid KRW 80,000 in total for 333 times in the name of the Defendant, 10,000 in the name of the Defendant, 200,700,000 in the aggregate for the purpose of 10,0000,000 won in the name of the Defendant’s account as stated in the separate crime list (8).

2. Defendant and his defense counsel’s assertion

In relation to the attached list of crimes (6) the defendant has received a return of money lent by the victim company, and the defendant has made a prior payment to related persons of the victim company and received a return from the victim company.

In relation to the attached list of crimes (7) of the victim's name, all cash withdrawn from the account in the name of the victim is not embezzled by the defendant.

3. Determination

A. As to the annexed list of crimes (6)

1) Attached Table 17, 18, 20, 25, 41, 42, 56, 68, and 70 of the amount loaned by the Defendant to the victim company is determined to have been returned. Thus, it is excluded from the amount of embezzlement.

2) The [Attachment 21] Nos. 21 in [Attachment 21] transfers from the account of the victim company to the account under the name of the defendant, and then transfers from the account under the name of the defendant to the account of the victim again, the amount of money transferred on the same day is excluded from the amount of embezzlement.

3) The [Attachment 35] Nos. 35 in the list of crimes (6) is part of the salary that the defendant received from the victim company and overlaps with the list of crimes (2). Thus, it is excluded from the amount of embezzlement.

4) Attached Table Nos. 38, 48, 55, 57, 63, 64, 67, 69, 72, and 77 shall be paid first to L, AD, Q, AM, AP, Q, Q, F,O, AV, and AY, and the amount returned from the victim company is determined as the amount of embezzlement. Thus, the number Nos. 72 in Attached Table No. 72 is excluded from the amount of embezzlement (as seen in the guilty part, only the remainder except the AL portion is excluded from the amount of embezzlement).

5) Since the [Attachment 62] Nos. 62 in [Attachment 62] overlaps with the list of offenses in [Attachment 62], it is excluded from the amount of embezzlement.

6) Since the [Attachment 13] Nos. 13 and 14 in [Attachment 14] are the amount that the defendant paid to the customer of the victim company, the amount of embezzlement excluded from the amount of embezzlement (However, No. 14 is excluded from the amount of embezzlement except the portion recognized as the defendant's embezzlement as set forth in the guilty part.

B. As to the annexed list of crimes (7)

1) As to the amount withdrawn from the Defendant’s passbook as embezzlement amount, barring any special circumstance such as the Defendant’s use of the above Defendant’s passbook in substance, it is difficult to view that the Defendant’s withdrawal of money from the Defendant’s passbook as unauthorized Withdrawal without permission (the content of the Defendant’s passbook appears not to have been withdrawn in cash on the date indicated as the date of withdrawal, but on the date indicated as the date of withdrawal).

2) Attached Table 1,2,5,7,8,11, 15, 16, 18, 19, 20, 22, 25, 27, 29 through 32, 36, 39, 43 through 46, 51 through 53, 57 through 59, 61, 66 through 72, 80 through 86, 90, 93, 96, and 97 are not deposited in cash in the account under the name of the defendant, etc. on the day when cash is withdrawn from the account of the victim’s passbook or within the short time period. Thus, it is difficult to conclude that the amount was embezzled by the defendant (a considerable amount may be deemed to have been deposited in the account under the name of the defendant, etc., such as the defendant, etc.). Attached Table 9, there is evidence submitted by the prosecutor as follows:

In full view of the fact that there is no details of transfer from the account in the name of BI from June 15, 201, and ③ the details of the account in the name of the defendant with respect to the transaction with BI on June 15, 2011, BI on June 15, 2011, the amount transferred to the defendant on June 15, 201 appears to have been settled by the defendant on the part where BI paid KRW 10,000 to the victim company on June 10, 201, the evidence submitted by the prosecutor alone can be deemed to have proved that the defendant embezzled money from the victim as shown in the No. 12 of the crime list by using a false tax invoice. There is no evidence to acknowledge otherwise.

A person shall be appointed.

4. Conclusion

Thus, since this part of the facts charged on the premise that the value of the property acquired by the defendant through the occupational embezzlement is more than 500 million won is a case where there is no proof of crime, it shall be sentenced not to the defendant under the latter part of Article 325 of the Criminal Procedure Act. However, the above facts charged include the facts constituting the crime of occupational embezzlement as stated in the judgment, and as long as it is found guilty,

Judges

The new judge, new judge and new judge

Judge To call

Judges Il-il

Note tin

1) Although the facts charged in the instant case are written as “2010.”, this is deemed as a clerical error in the record, and thus, it is corrected.

2) The number Nos. 13 and 14 in the indictments are 10,00,000 won paid in connection with the contacts and the name AA in the account under the name of the defendant on July 22, 2009.

Inasmuch as the details transferred to his account have been recognized, the amount of embezzlement is recognized within the scope exceeding 10,000,000 won (amount of embezzlement: 725,000 won).

3) The 72 column in the indictment asserts that the Defendant first paid AP, AV, and AL and received a return from the victim company. The acquitted portion is not guilty.

as seen so, the part concerning AP and AV is excluded, but the payment to AL was made after the transfer of No. 72 of the number in the indictment.

Therefore, the amount of embezzlement is recognized as embezzlement (amounting to 529,200 won).

4) The AZ, the Nonghyup Bank, the H, the Corporate Bank BA, the Corporate Bank BB.

(v) new bank BD, Gyeongnam Bank BE, Gyeongnam Bank BF

6) Nonghyup Bank BG

7) New Bank BH

8) Although the facts charged in the instant case are written as “2010.”, this is deemed as a clerical error in the record, and thus, it is corrected.

참조조문

-특정경제범죄 가중처벌 등에 관한 법률

-형법 제355조 제1항

-형법 제356조

-형사소송법 제325조

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