Defendant

Both parties

More than anything else (prosecutions), and scams (public trial)

Law Firm Maddd, Attorneys Yoon-Gyeong et al.

Seoul Central District Court Decision 2018Gohap663 Decided January 9, 2019

The guilty part of the judgment of the court below (including the acquittal part in the reasons) shall be reversed.

A defendant shall be punished by imprisonment for not less than two years and six months.

The prosecutor's appeal on the acquittal portion of the judgment below is dismissed.

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts and misunderstanding of legal principles (a breach of trust)

A) On June 14, 2016, when Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) managing the Defendant received KRW 1.8 billion for the acquisition price of convertible bonds from the victim, the Defendant agreed to set up a right to collateral security on the apartment (hereinafter “instant apartment”) owned by the Defendant (hereinafter “instant apartment”) as a joint and several surety of Nonindicted Co. 1 through the “written promise to provide collateral security” (hereinafter “written promise to provide collateral security”), which is a joint and several surety of Nonindicted Co. 1, and the agreement has the nature of the promise for payment in kind. As such, the victim exercised the right to collateral security (hereinafter “instant separate agreement”) to request the Defendant to set up a right to collateral security (hereinafter “instant separate agreement”) around September 13, 2016. The Defendant is not the Defendant’s business affairs nor the victim’s business affairs, and the Defendant did not constitute the crime of breach of trust against Nonindicted Co. 2 (hereinafter “Nonindicted Co. 2”).

B) Meanwhile, around September 12, 2016, the Defendant directed Nonindicted 3, an employee of Nonindicted Company 1, to deliver documents necessary for the creation of the instant apartment mortgage to the victim. After that, Nonindicted Company 2, a major customer of Nonindicted Company 1, strongly demanded the Defendant to set the right to collateral security around October 2016, the Defendant created the right to collateral security on the instant apartment in order to continue Nonindicted Company 1’s business. Thus, it cannot be said that the Defendant had the intention to breach of trust.

C) Even if the crime of breach of trust is established, the Defendant bears the obligation to establish a collateral security right only with respect to 80/100 shares of the Defendant out of the instant apartment, as stated in the instant promise to provide collateral, the written consent to provide collateral and the written consent to pledge (hereinafter “instant written consent to provide collateral and the written consent to pledge”) on September 13, 2016, and the text of the instant separate agreement, and thus, the Defendant’s property profit should be calculated on the basis of the agreement to establish a collateral security right on 80/100 shares

D) Nevertheless, the lower court recognized that the Defendant obtained pecuniary benefits equivalent to the loss amount of collateral value by setting up a collateral in violation of the duty of the victim to set up the collateral on the whole apartment of this case after the Defendant agreed to set up the collateral on the part of the victim. In so doing, the lower court erred by misapprehending the legal doctrine or misapprehending the legal doctrine.

2) Unreasonable sentencing

The punishment sentenced by the court below (one year and six months of imprisonment) is too unreasonable.

(b) Prosecutors;

1) Fact-finding and misunderstanding of legal principles (e.g., evasion of compulsory execution)

① The repayment date on February 7, 2017, which the Defendant drafted to Nonindicted 4 on February 28, 2017 on the Notarial Deed for Loan for Use of Money (hereinafter “Notarial Deed”) was made on February 28, 2017; ② Nonindicted 4 applied for seizure and assignment order on the Defendant’s claim on May 22, 2017 and May 24, 2017; ③ Nonindicted 4 attempted to enforce compulsory execution on the corporeal movables kept in the Defendant’s residence on May 29, 2017 with the title of execution; ④ Nonindicted 5 (hereinafter “Nonindicted 5”)’s deposit and provisional seizure claim on May 8, 2017; ⑤ Notwithstanding such circumstances, the lower court recognized that there was a lack of fear that the Defendant would be subject to compulsory execution on May 29, 2017, and kept them together with the Defendant’s photograph for the purpose of evasion of execution on the part of his/her property.

2) Unreasonable sentencing

The sentence imposed by the court below on the defendant is too uneasible and unfair.

2. Judgment on the grounds for appeal

A. As to the Defendant’s assertion of mistake and misapprehension of legal principles

1) The judgment of the court below

A) The Defendant’s agreement on the establishment of the instant apartment mortgage against the victim cannot be acknowledged as a promise for payment in substitutes. The Defendant’s arbitrary establishment of the instant apartment mortgage with respect to Nonindicted Company 2 without performing the duty to establish the right to collateral security against the victim constitutes a crime of breach of trust.

B) Considering that the Defendant’s act of breach of trust against the victim constitutes a management judgment for Nonindicted Company 1, the intent of breach of trust cannot be denied.

C) In light of the consistent statement of the victim, the subject matter of the first to fourth priority collective security established on the apartment of the instant apartment, the letter of the instant security offer, the letter of the security offer, and the written consent of the pledge, the Defendant should be deemed to have agreed on the whole apartment of the instant apartment

2) Determination of the immediate deliberation

A) The nature of the agreement to provide security for the apartment of this case

(1) The written promise of this case’s offer of collateral in the name of the Defendant stated as follows: “I would like to issue convertible bonds worth KRW 1.9 billion in total on June 14, 2016, and I would like to conclude a separate contract for each of the following: “I would like to establish the Seoul (location omitted) of the building under the name of the Defendant, the representative director of the non-indicted 1, as a collateral for convertible bonds; and will conclude a separate contract for each of the pledge for this purpose (Evidence No. 305 pages); and “I would like to provide the defendant with collateral and pledge in relation to the 5th convertible bonds issued on June 14, 2016 by the non-indicted 1 to ensure the safety of redemption of the bonds in relation to the 5th convertible bonds issued by the non-indicted 1, 2016.” (Evidence No. 310 pages of evidence record). The purport of this case’s offer of collateral security agreement and the right to collateral security is not clear whether the agreement of this case’s creation is an apartment bond.

B. However, on June 14, 2016, the victim consistently stated from the investigative agency to the court below that “the Defendant agreed to immediately create the right to collateral security on the apartment of this case to the victim.”

㈎ 피해자는 원심법정에서 ‘피고인은 이 사건 아파트의 시세가 50억 원 정도 되고, 거기에 38억 원 정도의 선순위 근저당권이 설정되어 있으니, 피해자에게는 12억 원 정도 근저당권을 설정해 주고, 그것으로 담보가 부족하니 주식도 담보로 제공하겠다고 했다’, ‘피고인이 이 사건 아파트에 처의 지분 20/100이 있어 처의 도장을 받아야 하는데 눈치를 보고 있다. 이야기가 되는 대로 바로 해 주겠다고 했다’고 진술하였다(공판기록 687, 688면).

㈏ 피해자는 경찰에서 ‘피해자가 돈을 빌려줄지 고민을 하니, 피고인은 「작년 실적을 기준으로 공소외 1 회사가 적자라서 걱정이 된다면, 피고인이 살고 있는 이 사건 아파트 담보가 있지 않느냐. 4순위 근저당을 설정해 주고, 공소외 1 회사 주식의 51.43%도 담보로 제공해 주겠다」고 했다’(증거기록 835면), ‘피해자가 근저당권설정을 독촉했음에도 피고인은 3개월 정도 미루다가, 9월경 주식을 받아가라고 했고, 피해자가 이 사건 아파트 담보부터 처리해 달라고 하자, 피고인은 처 명의 지분 20/100이 있는데, 각서를 써 주고 바로 처리하겠다고 했다. 2016. 9. 13. 공소외 1 회사 사무실에서 피고인 없이 공소외 3으로부터 공소외 1 회사의 주권과 담보제공을 약속하는 각서만 받았다’(증거기록 837면), ‘2016. 6. 14. 이 사건 아파트에 대한 담보를 설정해 주기로 확정되어 있었고, 주식도 실물주권이 발행되면 받기로 하였다’(증거기록 1484면)고 진술하였다.

Referencely, in light of the following circumstances recognized by the evidence adopted by the court below, the victim’s above statements are deemed to be reliable.

㈎ 먼저 ① 피고인은 피해자에게 이 사건 아파트의 가액 중 선순위 근저당권의 채권최고액을 공제한 나머지 부분을 담보로 제공하겠다고 제안하였는데, 그 담보가치의 액수가 피해자가 지급한 전환사채 인수대금에 훨씬 미치지 못한 점, ② 아래에서 보는 피고인의 진술에 의하더라도 피고인이 제공하는 주된 담보는 이 사건 아파트였으므로, 만약 피고인의 이 사건 아파트에 관한 담보제공약정을 단지 근저당권설정을 예약하는 취지로만 해석한다면, 피해자는 담보를 현실적으로 전혀 제공받지 않은 상태에서 거액의 전환사채 인수대금을 지급하는 셈이 되는 점, ③ 그런데 공소외 1 회사는 2014년부터 2016년까지 지속적인 적자 상태에 있었고(증거기록 169, 174면), 그럼에도 피해자는 피고인의 거듭된 부탁과 이 사건 아파트에 관한 담보제공약정을 받아들여 전환사채를 인수하기로 한 것인 점 등에 비추어, 피고인은 피해자의 전환사채 인수대금 지급시기에 이 사건 아파트에 관한 근저당권을 바로 설정해 주기로 약정하였다고 보는 것이 정황상 자연스럽다.

㈏ 이 사건 별도합의서에는 ‘공소외 1 회사는 2016. 6. 14. 총 19억 원 규모의 전환사채 발행과 관련되어 피고인 명의의 이 사건 아파트를 전환사채권자에게 담보로서 설정할 것이라는 점 및 이를 위하여 각 질권설정계약을 따로 체결할 것이라는 점을 확약한 바 있다. 본 담보설정은 제5차 전환사채계약에 대한 담보제공뿐만 아니라 본 별도합의서의 준수를 위해서도 담보제공됨을 상호 확인한다’고 기재되어 있는데(증거기록 81면), 이 부분은 ‘이 사건 아파트는 2016. 6. 14. 이미 그에 관한 담보설정이 확약되어 있었고, 2016. 9. 13. 작성된 이 사건 별도합의서상 의무의 이행을 위한 담보로서도 제공되는 것임을 확인한다’고 읽혀, 이 사건 담보제공확약서에 의해 이 사건 아파트에 관한 피고인의 근저당권설정의무가 확정적으로 발생하였다는 점은 당시 피고인과 피해자 가 전제하고 있었던 것으로 보인다.

㈐ 피고인의 지시에 따라 공소외 3은 2016. 9. 12. 피해자에게 ‘이 사건 아파트에 관한 근저당권을 설정해 주겠다고 하면서 이를 위해 주민등록초본과 도장이 필요하다’는 이메일을 보냈는데(증거기록 1018, 1030, 1908, 1909면), 이 점을 보더라도 피고인과 피해자 사이에는 그 이전에 이미 근저당권설정의 합의가 이루어져 있었다고 판단된다.

㈑ 피고인 스스로 공소외 1 회사의 법인회생사건에서 ‘이 사건 아파트에 관한 담보제공약정은 대물변제예약에 해당하지 않는다’고 주장한 바 있다(증거기록 577면). 위와 같은 주장이 피고인 개인이 아닌 공소외 1 회사 명의로 이루어지기는 하였으나, ① 피고인이 공소외 1 회사의 대표이사인 점, ② 공소외 1 회사와 피고인이 각자의 회생사건에서 작성한 보정서는 동일한 신청대리인이 작성한 점 등에 비추어, 공소외 1 회사의 위와 같은 주장에 피고인의 의사가 반영되었을 가능성이 매우 크다.

x) The defendant is not consistent with this issue or makes a statement contrary to objective facts, and it is difficult to believe it as it is.

㈎ 피고인은 ‘피고인과 피해자가 2016. 6. 14. 이 사건 아파트에 관한 대물변제예약을 하였고, 그 후 피해자가 2016. 9. 13. 근저당권을 설정해 달라는 내용의 예약완결권을 행사하였다’는 취지로 주장하고 있는데, 우선 대물변제예약을 한 후 근저당권을 설정해 달라는 예약완결권을 행사하였다는 관념 자체가 쉽게 받아들여지지 않을 뿐만 아니라, 이 사건 담보제공확약서의 문구가 향후 이 사건 아파트에 관한 근저당권설정을 예약하는 내용으로 읽히지도 않는다.

㈏ 피고인은 경찰에서 피해자와 대질조사를 받으면서 ‘2016. 6. 14.부터 2016. 9. 13.까지는 담보제공에 관해 상호 조율을 하였다’고 진술하였고(증거기록 1486면), 검찰에서 조사를 받으면서 ‘2016. 6. 14.에는 이 사건 아파트만 담보로 제공하기로 했는데, 이후 피해자가 공소외 1 회사 주식까지 요구해 그에 관해 협의하느라고 2016. 9. 13.까지 이 사건 아파트의 담보제공을 미룬 것이다‘라고 진술하였다(증거기록 1482, 1483면). 그러나 앞서 본 바와 같이 이 사건 담보제공확약서에는 ‘이 사건 아파트에 대한 담보설정’과 ‘질권설정’의 문구가 병존하여, 피고인의 위 진술과 달리 피고인은 2016. 6. 14.경 이미 피해자에게 이 사건 아파트와 함께 공소외 1 회사 주식도 담보로 제공하겠다고 약정한 것으로 보인다.

㈐ 한편 피고인은 ‘피해자가 근저당권설정에 필요한 서류를 구비하지 않아 이 사건 아파트에 관한 근저당권을 설정해 주지 못했다’고도 진술하였는데(증거기록 1489면), ① 피해자가 2016. 6. 14.경 이후 피고인에게 지속적으로 이 사건 아파트에 관한 근저당권설정을 요구해 온 점, ② 피해자는 수사기관에서 ‘공소외 3의 이메일을 확인하고 2016. 9. 13. 피해자의 도장뿐만 아니라 다른 전환사채권자인 공소외 6의 도장까지 챙겨가 공소외 3에게 건네주었고, 공소외 3이 이 사건 아파트에 관한 근저당권설정을 진행하겠다고 하기에 그 말을 믿고 나왔다’고 진술하였는데(증거기록 1490면), 실제로 피해자는 공소외 3으로부터 근저당권설정에 필요한 서류를 요구하는 이메일을 받고, 2016. 9. 12.과 2016. 9. 13. 피해자의 주민등록초본을 발급받은 사실이 인정되는 점(증거기록 1509, 1518) 등에 비추어, 피해자가 필요한 서류 등을 구비하지 않았다거나, 그 때문에 근저당권의 설정이 이루어지지 않았을 것으로 보기는 어렵다.

㈑ 피고인은 검찰에서 ‘2016. 9. 13. 공소외 3에게 근저당권설정을 지시하며 필요한 서류를 모두 주었기 때문에 그날 피해자 앞으로 근저당권이 설정된 줄 알았다. 이후 공소외 2 회사가 근저당권설정을 요구해 확인해 보았을 때 피해자에게 근저당권이 설정되지 않았음을 알게 되었다’는 진술도 하였다(증거기록 1910면). 그런데 피고인은 2016. 9. 13.경 공소외 3에게 이 사건 아파트의 등기필정보를 교부하지 않았고, 그 때문에 어차피 공소외 3은 피해자에게 근저당권을 설정해 줄 수 없었으므로(증거기록 1928, 주1) 1929면), 피고인이 피해자 앞으로 이 사건 아파트에 관한 근저당권이 설정된 것으로 알았다는 위 진술을 그대로 받아들이기 어렵다.

(v) Considering the letter of the instant security offer, the letter of security offer and the written consent of pledge, the contents of the separate agreement, the statement of the victim and the circumstances supporting it, etc., the Defendant appears to have immediately agreed to set up a right to collateral security on the instant apartment at the time of payment of the victim’s subscription price for convertible bonds. Therefore, the Defendant’s act of setting a fourth-class collateral security on the instant apartment to Nonindicted Company 2 in violation of his duty to manage the business of setting up a fourth-class collateral on the instant apartment for the victim constitutes a breach

B) Whether to recognize the intention of breach of trust

(1) As seen earlier, the Defendant agreed to set up the fourth priority collective security in the name of the victim with respect to the instant apartment after receiving KRW 1.8 billion subscription price for convertible bonds from the victim. In recognition of the Defendant’s obligation to set up the fourth priority collective security with respect to the instant apartment, the Defendant, despite having been aware of the Defendant’s obligation to set up the fourth priority collective security with respect to the victim, is deemed to have been intentional for the victim’s

B. As the Defendant asserted, even if the Defendant had set up a collateral on the instant apartment in order to continue the existence or operate the business of Nonindicted Company 1, the reason does not affect the establishment of a crime of breach of trust in relation to the victim, who is the other party to the duty to set up the collateral security, and the above circumstance cannot be a reason to deny the Defendant’s intention.

C) Scope of subject matter of the collective security agreement

The letter of the instant security guarantee, the letter of collateral security, the written consent of pledge, and the separate agreement stipulate the subject of the instant apartment under the name of the defendant. In light of the following circumstances, the defendant appears to have agreed to set the fourth priority mortgage on the whole apartment of the instant apartment to the victim.

(1) The victim consistently stated that “the Defendant agreed to set up a collateral on the entire apartment of this case on the basis that the market price of the apartment of this case is five billion won.” The Defendant had taken time to prepare a collateral on the entire apartment of this case, and delayed the continuation of the establishment of a collateral on the ground that the Defendant had taken time to prepare a collateral on the part of 20/100 shares in the wife (the trial record 695, 696 pages).”

According to the evidence adopted by the court below, the apartment of this case was 5 billion won at the market price around the time when the defendant provided the victim as collateral (Evidence No. 607 of the evidence record), and the fact that the maximum debt amount of senior collateral security established reaches 3.79 billion won in total. ① The remaining collateral value, even if calculated based on the value of the whole apartment of this case, was much less than 1.8 billion won in the victim’s claim amount, and ② the defendant agreed to provide additional collateral to the non-indicted 1’s shares, accords with the victim’s above statement.

Article 22(1) of the Civil Act provides that “If the value of the instant apartment was assessed against the Defendant, the value of the instant apartment was assessed against the Defendant, and the amount of the establishment of the right to collateral was assessed against the Defendant, the amount of the right to collateral security has been assessed against the Defendant.” (Evidence No. 1482)

Applicant, the Defendant set up the entire apartment of this case, both the first-third-third-class collateral security and the fourth-class collateral security set up in Nonindicted Company 2.

(v) In light of the fact that the Defendant’s share is not indicated in the instant letter of security offer, the letter of security offer and the written consent of pledge, and the phrase “the instant apartment under the name of the Defendant,” as indicated in the separate agreement, the victim appears to have paid the subscription price for convertible bonds in consideration of the fact that the Defendant was aware that he had real ownership or right to dispose of the entire apartment of this case.

D) Sub-determination

The judgment of the court below, which is the same purport, is just, and there is no error of misconception of facts or misunderstanding of legal principles that affected the judgment alleged by the defendant. The above argument by

B. Regarding the prosecutor's assertion of mistake and misapprehension of legal principles

1) The judgment of the court below

In light of the following circumstances, the evidence submitted by the prosecutor alone is insufficient to recognize that the defendant concealed art works and photographs owned by the defendant for the purpose of evading compulsory execution.

A) Nonindicted 4 stated in the lower court’s trial that “Non-Indicted 4 did not specifically state that it would enforce compulsory execution against the Defendant.”

B) around May 16, 2017, Nonindicted 4 applied for the attachment and assignment order, etc. against the Defendant and Nonindicted Company 1, but it appears that Nonindicted 4 had not been served on the garnishee and the Defendant prior to May 29, 2017 due to the circumstance such as withdrawal on the ground of error in the written application, etc.

C) On February 7, 2017, the period of repayment on the Notarial Deed between the Defendant and Nonindicted 4 was February 28, 2017, but Nonindicted 4 did not perform compulsory execution. On May 23, 2017, Nonindicted 4 prepared a notarial deed under a loan for consumption of money (hereinafter “Notarial Deed”) and on May 23, 2017, it was difficult for the Defendant to expect that the period of repayment was determined as June 16, 2017, that the Defendant had yet to be subject to compulsory execution.

D) While the Defendant’s place where art works and photographs were taken out is Nonindicted Company 1’s office, the place where Nonindicted 4 attempted to enforce enforcement on the same day was the Defendant’s residence.

E) Although Nonindicted Co. 5 filed an application for provisional attachment against the property of Nonindicted Co. 1, Nonindicted Co. 5, it did not actually proceed to compulsory execution.

F) On May 17, 2017, there seems to have been plans to move Nonindicted Company 1’s office around the Defendant’s change.

2) Determination of the immediate deliberation

A) According to the evidence adopted by the lower court, the following circumstances can be acknowledged to the purport that are different from the circumstances described in paragraphs (a) through (e) of the above 1.

(1) Nonindicted 4 stated in the lower court that “Around February 2017, Nonindicted 4 said that the compulsory execution was being reviewed to the Defendant, and that it was a situation in which compulsory execution would have to be conducted on or around April 2017” (the trial record 689, 690 pages).

B. On May 22, 2017 and May 24, 2017, Nonindicted 4’s attachment and assignment order, which was filed against the Defendant’s claim, was respectively accepted on May 26, 2017 and May 31, 2017 (Evidence Records 352, 357, 362 pages).

Article 26(1) of the Civil Act provides that the defendant shall not be obliged to pay the loan amount of KRW 1.9 billion on February 28, 2017 (Evidence 135), and that the defendant shall not be obliged to pay the loan amount of KRW 1.96 million on February 23, 2017, and that the defendant shall not be obliged to pay the loan amount of KRW 1.96 billion on June 23, 2017 (Evidence 1.6 billion on June 23, 2017), and Non-Indicted 4 requires the defendant to prepare a notarial deed of monetary loan for consumption on additional interest. Accordingly, the defendant prepared a notarial deed of KRW 200 million on June 16, 2017 on May 23, 2017 on the notarial deed of KRW 1.6 billion on May 23, 2017 (Evidence 315.4 billion on the notarial deed).

Recognizing that Nonindicted 4’s intent to enforce enforcement against Nonindicted 4 clearly expressed, Nonindicted 4’s attempt to enforce enforcement in the Defendant’s residence, other than the Nonindicted Company 1’s office, it cannot be deemed that there was no objective danger for the Defendant to enforce enforcement against art works and photographs kept in the Nonindicted Company 1’s office.

(v) the provisional attachment of Nonindicted Co. 5’s deposit claims and lease deposit claims is served on the garnishee on May 12, 2017, and was served on the Defendant on July 4, 2017. However, on June 16, 2017, prior to the date of service, the Defendant entered the provisional attachment in the application (Evidence 560 page). The Defendant also stated in the prosecutor that “the Defendant was known before May 29, 2017 to the Nonindicted Co. 7’s account and Nonindicted Co. 5’s account, a subsidiary of Nonindicted Co. 1, and Nonindicted Co. 1.” (Evidence 1981 page), and there is sufficient evidence to deem that the Defendant was aware of the provisional attachment of Nonindicted Co. 5’s account (Evidence 1981 page).

B) However, according to the evidence adopted by the lower court and the first instance court, the following separate circumstances were revealed when the Defendant’s transfer of art works and photographs stored in Nonindicted Company 1’s office to the outside.

(1) The Defendant asserted that “In the process of changing the representative director’s office of Nonindicted Company 1 to a public conference room, art works and photographs installed on the floor inside the representative director’s room were taken out and stored separately.” In fact, the Defendant ordered Nonindicted Company 1’s management support team employees to move the office following the organizational reorganization on May 17, 2017, and Nonindicted Party 8 sent the employment movement drawings to the Defendant (the trial record 109 pages).

through the written statement submitted to the lower court, Nonindicted 8 stated that “A number of pictures stored on the floor need to be moved to the storage room because it is necessary to move a number of pictures accumulated on the floor in accordance with the opinion that the representative director would be used as the conference room,” and that on May 23, 2017, the transporter and the schedule were set up and moved to the storage room on May 29, 2017 (the trial record No. 1111), and Nonindicted 1’s other employees and Nonindicted 9 stated that “the Defendant instructed the employees of the management support room to move the collections, such as pictures, in order to convert the representative director room into the conference room (the trial record No. 160),” Nonindicted 10 Co., Ltd. (hereinafter “Nonindicted 10 Co., Ltd.) was carried out with the investigative agency on May 23, 2017 (Evidence 1410 Co. 13, Sept. 13, 2017).

Non-Indicted 8 stated in the trial court that “The defendant sent an order to change the representative director office of the first floor of the building to the public conference room and the five-story warehouse to the office for the reorganization of the organization on May 17, 2017.” The defendant stated that the moving of the forest works, etc. in the representative director’s room was inevitable to change the purpose of the representative director’s office to the public conference room.”

The defendant stated in the investigative agency that "a compulsory execution against the dwelling of the defendant was conducted at around 12:00 on May 29, 2017, and the time when art works and photographs were taken out is at least 10:00 on that day (Evidence No. 929)." Thus, at least, the defendant did not take art works and photographs while recognizing the commencement of the compulsory execution by Non-Indicted 4, and there is no other circumstance to acknowledge the ex post facto relationship.

C) In addition to the circumstances examined in the above A, considering that the defendant installed several locking devices in his/her residence and carried out compulsory execution of corporeal movables in his/her residence until June 14, 2017, the defendant applied for corporate rehabilitation against Nonindicted Company 1 on June 16, 2017, and applied for personal rehabilitation against the defendant on June 22, 2017, it is strongly suspected that the defendant's transfer of art works and photographs kept in his/her custody in his/her office to the outside for the purpose of evading compulsory execution. However, as seen in the above B, it may not be completely ruled out that he/she entrusted the above art works and photographs to the storage warehouse in accordance with the plan for moving offices following the reorganization of the organization of Nonindicted Company 1, as long as it cannot be fully ruled out.

D) The conclusion of the lower court, which is the same purport, is justifiable, and there is no error of misunderstanding of facts or misunderstanding of legal principles that affected the judgment alleged by the public prosecutor. The prosecutor’s

C. As to the assertion of unreasonable sentencing by the Defendant and prosecutor

Upon receiving KRW 1.8 billion from the victim’s acquisition price of convertible bonds through Nonindicted Company 1, the Defendant agreed to set up a fourth-class collateral on the apartment of this case as collateral, but violated his duty to set up a fourth-class collateral on the apartment of this case with respect to the apartment of this case to a third party, thereby obtaining considerable pecuniary benefits, and suffered loss to the victim.

The defendant recovered KRW 460 million through compulsory execution against the property of the non-indicted 1 and the defendant, and the defendant remitted or deposited the total amount of KRW 65.3 million to the victim during the trial, and there are no circumstances favorable to the sentencing of the defendant, such as there is no criminal history or no criminal record exceeding the fine.

However, the Defendant, by committing an act in violation of his/her duty with a long trust relationship with the victim, gains a large amount of pecuniary advantage, repeats claims that are difficult to accept even if the victim suffered a large amount of property damage, and makes it difficult for the victim to do so, and does not have any further efforts to recover damage, and does not have any further efforts to prevent the victim from committing the crime, such as interfering with the victim’s legitimate attempt to enforce compulsory execution. The victim is trying to punish the Defendant with severe punishment.

Considering the aforementioned various circumstances against the defendant, such as the defendant's age, character and conduct, intelligence and environment, relationship with the victim, motive, means and result of the crime, and various factors of sentencing, such as sentencing guidelines determined by the Supreme Court's Sentencing Committee, the sentence imposed by the court below is deemed to be too uneasible and unfair. The defendant's above assertion is without merit, and the prosecutor's above assertion is with merit.

3. Ex officio determination on the calculation of the amount of profit of the defendant in breach of trust;

A. The court below found the defendant guilty of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) that the defendant acquired property benefits equivalent to KRW 1.25 billion from the breach of trust, which caused the non-indicted 2 company to set up the first priority right of maximum debt amount of KRW 1.25 billion, and the defendant acquired property benefits equivalent to KRW 1.25 billion, and found the defendant guilty of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation).

B. However, as seen earlier, the market price of the apartment at the time was 5 billion won, and the sum of the maximum debt amount of the senior mortgage established is 3.79 billion won (=the maximum debt amount of ○○ Bank 2.13 billion won + 1.3 billion won in ○○ Bank 1.36 billion won in ○○ Bank 360 million in △△ Mutual Savings Bank (Evidence record 299), and thus, the remaining collateral value of the apartment at the time was 1.21 billion won (=5 billion won – 3.79 billion won in - KRW 1.2 billion in 1.2 billion in property value). However, since the victim’s credit amount was more than 1.8 billion, the victim’s remaining collateral value was 1.2 billion won in 1.2 billion won in property value or 1.2 billion won in property value of the victim, the victim should be 1.2 billion won in property value (= the above remaining collateral value of the victim’s 1.2 billion won in property value).

The judgment of the court below on the calculation of the amount of profit in breach of trust by the defendant is erroneous in misunderstanding of facts or misunderstanding of legal principles [limited to the defendant on the violation of the Specific Economic Crimes Act (Misappropriation of trust) which the court below found the defendant guilty, and the prosecutor did not appeal on the violation of the Specific Economic Crimes Act (Misappropriation of trust) which the court below found the non-guilty verdict, but where the court of first instance found the defendant guilty on part of the facts charged which are a simple crime, the appeal can be judged on the non-guilty portion of the reasons (see Supreme Court Decision 2000Do500, Feb. 9, 2001).]

4. Conclusion

Since the prosecutor's appeal against the guilty part of the judgment of the court below is well-grounded, and the above ground for reversal ex officio as to the acquittal part of the reasoning exists, the judgment of the court below is reversed pursuant to Article 364 (2) and (6) of the Criminal Procedure Act, and the judgment below is determined through pleading.

The prosecutor's appeal on the acquittal portion of the judgment below is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act.

The summary of the facts constituting an offense recognized by this court and the summary of the evidence is as stated in each corresponding column except where the “475 million won” in the criminal facts column of the judgment of the court below (as stated in the judgment of the court below 2, 12 billion won) is deemed as “1.2 billion won,” and thus, it is acceptable in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes and Article 355 (2) of the Criminal Act

1. Discretionary mitigation;

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

In the above 2-C, the sentence identical to the order shall be determined by comprehensively taking into account the various sentencing conditions in the above 2-C.

Judges Cha Jae-ho (Presiding Judge)

(1) On December 2016, when the Defendant created a right to collateral security on the instant apartment in Nonindicted Company 2, the Defendant issued Nonindicted Company 3 the information on the completion of the registration of the instant apartment to proceed with the procedure (Evidence Records 1931 pages).

2) The Defendant made a series of meetings at an investigative agency that “the pressure of Nonindicted Company 2 to offer a collateral. In the inside of Nonindicted Company 1, whether to set up a collateral for the victim, and whether to set up a collateral for Nonindicted Company 2. It is natural that the victim would give the right to collateral first to the victim. However, in order to protect all investors and employees of Nonindicted Company 1, the Defendant stated that “the right to collateral for Nonindicted Company 2 had no choice but to first set up the collateral for Nonindicted Company 2” (Evidence record 1765 pages).