Defendant 1 and 20 others

Defendant 1 and 11 others and the Prosecutor

Mackn-ray

Law Firm Han-gu, Attorneys Cho Jong-sik et al.

Daejeon District Court Decision 2009Gohap19, 22 (combined), 30 (Joint), 47 (Joint), 51 (Joint), 60 (Joint) Decided February 12, 2010

The respective convictions against Defendant 1, 3, 5, 6, 7, 8, 12, 13, 14, 15, 16, 17, and 18 among the judgment of the court below and the part against Defendant 21 shall be reversed, respectively.

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

However, with respect to the defendant 21, the execution of the above punishment shall be suspended for two years from the date of the final judgment.

A penalty of KRW 30 million from Defendant 21 shall be additionally collected.

Among the facts charged in this case against Defendant 1 and 3, each violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), violation of the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlements), occupational embezzlement listed in paragraph (4) of the judgment of the court below, violation of the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlements) among the facts charged in this case against Defendant 12, violation of the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlements) from among the facts charged in this case against Defendant 5, 7, and 8, violation of the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlements), violation of the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlements) from among the facts charged in this case against Defendant 6, violation of the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlements) from among the facts charged in this case against Defendant 6, violation of the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlements) from among the facts charged in this case against Defendant 13, 14, 16,16, 17 and

The prosecutor's appeal against the defendant 1, 3, 5, 6, 7, 8, 12, 13, 14, 15, 16, 17, and 18 in the judgment of the court below against the defendant 2, 4, 9, 10, 11, 19, and 20 shall be dismissed.

1. Summary of grounds for appeal;

A. Defendants

1) Defendant 1

A) misunderstanding of facts or misapprehension of legal principles

(1) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) (hereinafter “Special Economic Crimes Act”)

The Defendant’s establishment of an open trading system within ○○○○○○○○ Depository (hereinafter “ safe”) is not for embezzlement of the money of a credit cooperative, but for a higher benefit by attracting a large amount of deposits from customers and efficiently managing the funds so created. Thus, the open trading system is not linked to the system of the ○○○ Federation of Ma terms and Conditions (hereinafter “Federation”), even if it is not connected with the system, it shall be deemed an official fund management method of the credit cooperative. Therefore, the deposit managed by the open trading system is deemed as the ownership of the credit cooperative. Therefore, the Defendant’s act of arbitrarily withdrawing the deposit deposited in the open trading system rather than the Defendant’s act of arbitrarily withdrawing the money of a credit cooperative, and it cannot be deemed that the Defendant did not constitute embezzlement of the money of the credit cooperative, but the Defendant did not constitute embezzlement, and thus, the lower court found the Defendant guilty of this part of the facts charged. In so doing, the lower court erred by misapprehending the legal doctrine on embezzlement or by misapprehending the legal doctrine on embezzlement.

(2) Violation of special law (private financial intermediary, etc.)

Since money deposited in the off-the-counter transaction system is owned by a credit cooperative, the act of the defendant lending money managed by the off-the-counter transaction system to the members of a credit cooperative is not only a loan by the defendant's calculation or the account of a third party, other than a credit cooperative, but also does not constitute a crime of private financing brokerage, etc., but also does not constitute a crime of private financing brokerage. However, the court below found the defendant guilty of this part of the facts charged. The court below erred by misapprehending the legal principles on private financial brokerage, etc. which affected

(3) The point of occupational embezzlement (Article 4 of the Criminal Act as indicated in the judgment of the court)

The Defendant did not directly engage in embezzlement as stated in the lower judgment, and there is no fact that Defendant 3, 7, and there was no conspiracy with Defendant 3, and even if not, it does not constitute the crime of embezzlement because the deposit in the foreign transaction system merely owned by a credit cooperative and did not constitute embezzlement because it does not constitute embezzlement because it does not constitute embezzlement of money of the credit cooperative itself. However, the lower court convicted this part of the facts charged. In so doing, the lower court erred by misapprehending the facts or misapprehending the legal doctrine on embezzlement, thereby adversely affecting the conclusion of the judgment.

(4) Forgery of private documents, uttering of falsified investigation documents, and embezzlement of occupational duties (criminal facts stated in the judgment of the court)

Since Nonindicted 1 and 2 agreed on the Defendant’s receipt of a loan from the treasury by preparing a loan-related document in their own name, this part of the charges for forging private documents is not established, but the lower court found the Defendant guilty of this part of the charges. In so doing, the lower court erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

(5) Fraud

As the Defendant had been aware of money transactions with Nonindicted 3 and 4 for a long time, the Defendant was unable to fully repay all other obligations and repay only the obligations indicated in the facts charged. Therefore, it cannot be said that there is a criminal intent to obtain fraud, and thus, the lower court found the Defendant guilty of this part of the facts charged. In so doing, the lower court erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

B) Unreasonable sentencing

The sentencing of the court below (eight years of imprisonment) is too unreasonable.

2) Defendant 3

A) misunderstanding of facts

(1) Violation of the special law (Embezzlement) and the occupation of occupational embezzlement (Article 4 of the criminal facts in the judgment of the court)

In addition to the fact that the Defendant did not take part in the overseas trading business of a credit cooperative, and did not embezzled the money of a credit cooperative related thereto or conspired with Defendant 1, etc., the lower court found Defendant guilty of this part of the facts charged. The lower court erred by misapprehending the facts, thereby affecting the conclusion of the judgment

(2) Violation of special law (private financial intermediary, etc.)

The defendant's act of lending money to the members of the credit cooperative using a borrowed account in the off-to-face transaction system was conducted as part of the affairs of the credit cooperative, and the revenue therefrom was treated as the revenue of the credit cooperative, so the defendant did not have intention to engage in private financial mediation, etc., but the court below found the defendant guilty of this part of the facts charged. The judgment of the court below is erroneous

(3) point of occupational breach of trust

The Defendant, according to the orders of Defendant 1, the de facto president of the credit cooperative, at the time, changed the collateral by submitting one promissory note as collateral and cancelling the collateral security established on the ○○○○○○○○ (number 1 omitted) and four parcels (hereinafter “instant real estate”). Thus, the Defendant cannot be deemed to have committed an intentional breach of trust, and the lower court found the Defendant guilty of this part of the facts charged. In so doing, the lower court erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

(4) Forgery of private documents, uttering of falsified investigation documents, and embezzlement of occupational duties (criminal facts stated in the judgment of the court)

Although Defendant 1 did not have participated in the crime of this part of this case as a co-principal, the court below found Defendant 1 guilty of this part of the facts charged. The court below erred by misapprehending the facts and affecting the conclusion of the judgment.

B) Unreasonable sentencing

The sentencing of the court below (four years of imprisonment) is too unreasonable.

3) Defendant 5, 17, and 18

Defendant 5 did not take charge of the receipt and disbursement while serving in a credit cooperative, and the Defendants did not have any awareness of the embezzlement by Defendant 1, the principal offender, and even if not, the Defendants had already been employed in the foreign transaction system before entering the credit cooperative and there was no possibility of expectation of lawful act. Thus, Defendants’ act did not constitute the crime of embezzlement and aiding and abetting, or the crime of aiding and abetting private financing, etc. (Defendant 5). However, the lower court determined that the Defendants’ act did not constitute the crime of embezzlement and aiding and abetting, or aiding and abetting private financing, etc. (Defendant 5). Thus, the lower court erred by misapprehending the legal doctrine on the possibility of expectation of lawful act, thereby affecting the conclusion of the judgment.

4) Defendant 7, 8, 12, 13, 14

A) misunderstanding of facts or misapprehension of legal principles

(1) Violation of special law (Embezzlement) (Defendant 12)

Since the defendant deposited the customer's deposit by using the foreign transaction system into the treasury account, the defendant's above act cannot be deemed as the intention of embezzlement or illegal acquisition, and thus the defendant's above act does not constitute embezzlement. However, the court below found the defendant guilty of this part of the facts charged. The court below erred by misapprehending the legal principles on embezzlement or embezzlement, which affected the conclusion of the judgment.

(2) Violation of special law (Embezzlement) (Defendant 7, 8, 13, 14)

In addition, the principal offender’s act does not constitute embezzlement, and even if not, the Defendants did not have the principal offender’s awareness of or intent to assist in the principal offender’s crime. Therefore, the Defendants’ act does not constitute embezzlement, but the lower court applied this part of the facts charged against the Defendants as the crime of embezzlement. In so doing, the lower court erred by misapprehending the legal doctrine on mistake of facts or aiding and abetting, thereby adversely affecting the conclusion of the judgment.

(3) An act of aiding and abetting a violation of special law (private financing brokerage, etc.) (Defendant 7, 8)

Defendant 1 and 3 merely use the bank's extra transaction system and do not lend money for their own account, and thus Defendant 1 and 3's act as a principal offender does not constitute private financing brokerage, etc., and even if not, Defendant 7 and 8 did not have the principal offender's awareness of and aiding and abetting and abetting the principal offender's crime. Thus, Defendant 7 and 8's act did not constitute private financing brokerage, etc., and thus, Defendant 7 and 8's act did not constitute private financing brokerage, etc., but the court below applied this part of the facts charged against Defendant 7 and 8 as the crime of aiding and abetting private financing, etc.

(4) Occupational embezzlement (Defendant 7)

Since the Defendant only carried out the mechanical work according to the commercial instruction and did not have the intention of embezzlement or illegal acquisition, the Defendant’s act does not constitute an occupational embezzlement. However, the lower court found the Defendant guilty of this part of the facts charged. In so doing, the lower court erred by misapprehending the legal doctrine on embezzlement or embezzlement, thereby adversely affecting the conclusion of the judgment.

B) Unreasonable sentencing

The sentencing of the lower court (defendant 7, 8: 2 years of imprisonment, 3 years of suspended execution, 12: Imprisonment with prison labor, 3 years of imprisonment, 13 and 14: Each of the imprisonment with prison labor, 1 year and 6 months of suspended execution, 2 years of suspended execution) is too unreasonable.

5) Defendant 16

The defendant entered a high school before graduation and worked for one year, and most of the regular deposits were deposited at the request of the customers of the existing regular deposits, and did not intend to assist the defendant in embezzlement. Thus, the defendant's act did not constitute the crime of embezzlement and aiding and abetting the principal offender's embezzlement. However, the court below erred by misapprehending the facts, which affected the conclusion of the judgment.

6) Defendant 21

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

(b) Prosecutors;

1) misunderstanding of facts or misapprehension of legal principles

A) The part not guilty

(1) Violation of the Act on the Regulation and Punishment of Criminal Proceeds Concealment (Defendant 1, 3, 12)

In light of the following circumstances acknowledged by the prosecutor's evidence, i.e., monetary withdrawal from the borrowed name account for the management of the off-the-counter transaction deposit managed by the defendants, and the money with which the defendant 1's source of payment is unknown is constantly deposited in cash other than the passbook for the management of the off-the-counter transaction deposit, and the money stated in attached Table Ⅲ of the crime log III as stated in the decision of the court below among the money deposited from the borrowed name account for the management of the off-the-counter transaction deposit, it can be fully recognized that this part of the facts charged against the defendants can be found. However, the court below acquitted the defendants. The court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment.

(2) The point of occupational breach of trust (Defendant 2)

In full view of the following circumstances acknowledged by the prosecutor’s evidence, namely, the Defendant directly implemented the procedure for termination of the right to collateral security on the instant real estate under his name according to the orders of Defendant 1, his father, and the Defendant was aware that the right to collateral security was established and the right to collateral security was terminated without debt repayment, the lower court found the Defendant not guilty of this part of the facts charged. In so doing, the lower court erred by misapprehending the legal doctrine on the intention of conspiracy or breach of trust, thereby adversely affecting the conclusion of the judgment.

(3) An act of aiding and abetting a violation of special law (Embezzlement) or a violation of special law (Embezzlement) (Defendant 4,9,19,20)

In light of the following circumstances acknowledged by the prosecutor’s evidence, i.e., both the Defendants are employees who were employed in a financial institution after receiving education at a commercial high school or a university, the Defendants asserted that the existence of the borrowed account was not known, and that the purpose of use was the management of the borrowed account, the Defendants demanded the employees in charge of the collection and receipt of the borrowed account each day to deposit the borrowed account into the borrowed borrowed account, and the Defendants also had the employees in charge of the collection and receipt of the borrowed account at all times allowed the details of the borrowed account to be seen and the balance of the borrowed account was short of the borrowed account at all times, the Defendants could sufficiently recognize the fact that the Defendants participated in the embezzlement of Defendant 1, etc. at least in the joint principal offender or at least aiding and abetting, but the lower court acquitted the Defendants of all the primary and conjunctive charges, which erred by misapprehending the facts or by misapprehending the legal principles on the conspiracy or aiding and abetting the judgment.

(4) Occupational embezzlement, fabrication of private documents, and uttering of private documents (Defendant 10)

In light of the following circumstances acknowledged by the prosecutor’s evidence, i.e., Defendant 1, the chief director of the credit cooperative, was an employee who directly executed the loan without confirming the loan documents under Defendant 1’s name, and the amount of the loan was directly stated and delivered to Defendant 3, and the Defendant knew that the loan was made under another’s name in order to compensate for losses even prior to the Defendant’s offering of the loan. As such, Defendant appears to have been aware of the circumstances where the loan was made without comparison with Defendant 1 and 3, the Defendant could sufficiently recognize the fact that the loan documents under another’s name were forged and embezzled the loan money to the debtor. However, the lower court acquitted Defendant of all of the facts charged. In so doing, the lower court erred by misapprehending the facts or misapprehending the legal doctrine on public offering, thereby adversely affecting the conclusion of the judgment.

(5) Violation of special law (Embezzlement) or violation of special law (Embezzlement) or violation of special law (Embezzlement), violation of special law (private financing brokerage, etc.) or violation of special law (private financing brokerage, etc.) (Defendant 11)

According to the evidence submitted by the prosecutor, even though the defendant did not direct or operate the extra transaction system, the defendant was found to have taken office under the name of the chief executive officer upon the request of the defendant 1 with the knowledge of the fact that the chief executive officer was suspended due to the charge of embezzlement, fraudulent loan, etc., and the defendant 1 took office under the name of the chief executive officer by using his/her seal and had the defendant 1 act as the chief executive officer of the credit cooperative outside the board of directors or the general meeting of shareholders. Thus, the defendant was found to have been in the functional control over the act of embezzlement of the customer deposit by using the extra transaction system or intentionally assisted the act of embezzlement of the customer deposit at least, or intentionally assisted the act of aiding and abetting it. However, the court below acquitted all of the main and ancillary charges. Thus, the court below erred by misapprehending the legal principles on the intention of the joint principal offender or aiding and abetting

(6) Violation of special law (private financing brokerage, etc.) (Defendant 12)

In the case of an inclusive crime, since the accomplice who has participated in part of the crime is liable for the whole act, the defendant is liable for the crime as accomplice unless he has actively obstructed or suspended the crime after he retired from his imprisonment without prison labor (after July 31, 2003), and in addition, the defendant was actually involved in the business of the imprisonment without prison labor directly or indirectly after his retirement, and led the employees to engage in the business of the imprisonment without prison labor. Thus, either mother is the accomplice, and the defendant is the accomplice of the act of private financing brokerage, etc. of this case, but the court below acquitted the defendant of this part of the charges. Thus, the court below erred by misapprehending the legal principles on accomplice in a single comprehensive crime, which affected the conclusion of the judgment.

B) The non-guilty portion

(1) The primary charge [Defendant 5, 6, 7, 8, 13, 14, 15, 16, 17, 18] and violation of special law (private financing brokerage, etc.)];

According to the evidence submitted by the prosecutor, since the fact that the defendants shared the act of embezzlement of this case or private financing brokerage with Defendant 1, etc., all of them are co-principal relations, the court below acquitted all of the facts charged. Thus, the court below erred by misapprehending the legal principles as to co-principal relations, which affected the conclusion of the judgment.

(2) Part of the ancillary charge [Defendant 5, 6, 7, 8, 13, 14, 15, 16, 17, and 18] of the conjunctive charge (Defendant 5, 6, 6, 7, 8, 13, 14, 15, 16, 17, and 18]

In the case of a blanket crime, since the accomplice who has participated in part of the crime is liable for all acts, the defendants are liable for aiding and abetting part of the principal offender's crime, which is a single comprehensive crime, which has not been directly involved. However, the court below acquitted part of the conjunctive charges. The court below erred by misapprehending the legal principles on accomplice in the comprehensive crime, which affected the conclusion of the judgment.

2) Unreasonable sentencing

The lower court’s sentencing against Defendant 21 is too unhued and unreasonable.

2. Judgment on misconception of facts or misapprehension of legal principles

A. Judgment on the Defendants’ assertion

1) Violation of special law (Embezzlements) (defendants 1, 3, and 12) and violation of special law (Embezzlements) (defendants 5, 7, 8, 13, 14, 16, 17, and 18)

A) Summary of this part of the facts charged

The summary of this part of the facts charged is as stated in the judgment of the court below.

B) The judgment of the court below

The lower court found the Defendant guilty of this part of the facts charged by comprehensively taking account of the evidence duly admitted and examined.

C) The judgment of this Court

(1) Facts of recognition

The following facts are acknowledged according to the evidence duly adopted and examined by the court below and the court below.

(A) The Defendants’ status and duties at their safes

1. Defendant 1, 3, and 12

Defendant 1 served as the chief executive officer from May 1, 1979 to June 24, 1985, and from June 25, 1985 to June 9, 2004 upon receipt of an order to improve executive officers of the Federation, Defendant 11 was transferred to the chief executive officer on the pretext of the date when the credit cooperative is dissolved, and actually exercising the power of the chief executive officer from September 17, 2008. Defendant 3 was employed on May 1, 1992 to be in charge of dispatched, borrowed, deducted, and cash transportation; Defendant 1 was promoted to the chief executive officer from June 25, 198 to June 10, 200 to the end of June 10, 200 to the end of June 14, 200 to the end of 197.

(2) Defendants 15 and 6

Defendant 15 was in charge of receipt and receipt affairs from October 19, 198 to early 2005 (the final revenue exceeds the final payment, as seen below, after adding each employee in charge of receipt from the counter to the electronic transmission of the transaction details of regular deposits on the day from the day to the former table, along with the former table, and then, he was in charge of receipt and receipt affairs. Defendant 15 was in charge of receipt and receipt affairs from the early 2005 to the latter, and Defendant 6 was in charge of receipt and receipt affairs from August 14, 2005 to the latter. The latter is a person who was in charge of receipt and receipt affairs from August 27, 2003 to January 1, 2008. The latter is a manager from September 17, 2008.

③ Defendant 14, 13, 16, 17, 18, 5, 7, 8,

㉮ 피고인 14는 1999. 4. 1.경부터 2002. 4. 5.경까지, ㉯ 피고인 13은 2000. 12. 2.경부터 2004. 10. 8.경까지, ㉰ 피고인 16은 2002. 10. 2.경부터 2003. 10. 31.경까지, ㉱ 피고인 17은 2002. 3.경부터 2005. 5. 말경까지, ㉲ 피고인 18은 2003. 8. 27.경부터 2005. 12. 31.경까지, ㉳ 피고인 5는 2005. 6. 25.경부터 2008. 9. 17.경까지, ㉴ 피고인 7은 2006. 1. 2.경부터 2008. 9. 17.경까지, ㉵ 피고인 8은 2006. 4. 1.경부터 2008. 9. 17.경까지 각 수납 및 출납업무를 담당한 사람이다.

(4) Defendants 4, 9, 19, and 20

Defendant 4: (a) from the end of December 2005 to February 5, 2006; (b) from July 1, 2007 to September 17, 2008; (c) from the end of February 1, 2007 to the end of February 2006, Defendant 19, who caused the occurrence of a disaster, to the end of February 2006; and (d) Defendant 20, who was in charge of the receipt of the duties from April 2006 to the beginning of May 2007.

(B) The background and operational status of the introduction of the foreign trading system

① From the 1980s at the beginning of the establishment of a credit cooperative, Defendant 1 and 12 made and operated an off-the-counter trading system that does not receive supervision from the federation in order to attract more regular deposits by paying the interest higher than the interest on commercial banks to customers, namely, the higher interest rate exceeding the interest rate on regular deposits determined by the federation (hereinafter “ordinary trading system”).

② As the integrated computer network opened through the computerization of the business process method of the Federation around May 1998, Defendant 1, 3, and 12 requested the production of a separate computer program similar thereto, installed a separate computer device that loaded it on the counter, and used it to conduct off-the-counter transactions.

③ After that, around January 2006, Defendant 1 and Defendant 3: (a) stored a program of off-the-counter trading system in the name of the Federation’s integrated computer network and had it used in connection with the terminal of employees of the counter; and (b) operated both the normal trading system in accordance with the integrated computer network and the off-the-counter trading system in the treasury’s own computer network.

④ The system of off-the-counter transactions is not online business, and there was a difference between customers of the off-the-counter trading system and customers of the off-the-counter trading system. However, in transactions through the off-the-counter trading system, the same business as transactions through the normal trading system, such as new opening, termination, payment of interest, loan within the scope of deposits, payment of deposits, installment savings, loan within the scope of deposits, issuance of passbooks, printing out of the list of deposits, and closing of daily business.

⑤ In the normal trading system, since the limit of non-taxation was more than 20 million won and the non-taxation benefits were granted to the customer without any restriction, the normal trading system up to 20 million won when the customer deposits a fixed deposit. The excess amount was much more than the case where Defendant 12 and 3 actively deposited the fixed deposit into the off trading system, and then he handled it as the off trading, and the customer handled it as the off trading. On the other hand, it was distinguished from the fact that Defendant 12 and 3 actively deposited the fixed deposit through the counter and the customer did not deal with it as the off trading.

6. On the other hand, since the asset account of a credit cooperative has the item of "cash account", it is necessary to manage the cash reproduction of the integrated computer network on the account and its own computer network, the operation of the off-the-counter transaction system has been introduced with the following unique business process.

The cash was stored in combination without distinguishing whether it is managed by the normal transaction system or managed by the foreign transaction system.

(C) The integrated computer network opened a borrowed-name account (Defendant 1, 2, Nonindicted 5, 6, etc., not the actual deposit owner) as the regular deposit account of the customer of the off-the-counter transaction system.

Accomponent employee in charge of receipt and disbursement has settled accounts of cash deposits received or paid in off-the-day transactions on the same day and has deposited the difference in the borrowed account, and if there is more than the deposit amount, the difference has been deposited in the borrowed account respectively (if any, repeated deposits and withdrawals have been made in the borrowed account before the closing of 2 to 3 times a day), and when returning the deposit with maturity or terminated interest to the off-the-counter transaction system customer or paying the loan, it has been counted that the same amount has been withdrawn in the borrowed account while settling accounts as above.

In the event that the balance is insufficient for the remaining account, the remaining balance was handled by Defendant 1 and 3’s order to obtain a processed loan in the name of a third party on the integrated computer network, or by making personal money by Defendant 1 and 3, and then deposit the balance of the borrowed account in the borrowed account, if the balance of the borrowed account is increased later, then the remaining amount was withdrawn again, or deposited into the account of the National Agricultural Cooperative, the principal bank of the credit cooperative, ○○○○ branch of the National Agricultural Cooperative (hereinafter “○○ Agricultural Cooperative”), which is the principal bank of the credit cooperative (hereinafter “○ Agricultural Cooperative”), by means of deposit in the above account, etc.

(C) Loss of credit cooperatives, flow of deposit transactions and installment transactions by Defendant 1;

① Defendant 1, 3, and 12, since the 1980s, when the business loss of a credit cooperative was accumulated due to the failure of the business in the old market, the increase of non-performing loans due to the delay of the principal and interest of loans, and the payment of high interest to customers in the off-board transaction system, etc., Defendant 1, 3, and 12 operated the off-board transaction system for the purpose of compensating for such business loss mainly after 2003. The funds raised through the off-board transaction system were used only for paying the interest or principal of the fixed deposit to customers in the off-board transaction system until February 2008, and began to be used for the credit loan of high interest rate only from February 208.

② Around May 8, 2008, the Federation: (a) confirmed the fact that a credit cooperative has operated the off-the-counter trading system and the fact that the money of the credit cooperative continued to be transferred to other financial institutions; and (b) filed a complaint with an investigative agency on charges of embezzlement, etc., with a copy of the passbook issued by a credit cooperative to the effect that it does not withdraw money; (c) received a copy of the passbook by facsimile; and (d) confirmed the fact that the credit cooperative operated the off-the-counter trading system; and (e) filed a complaint with the former, present, and employees of the credit cooperative, including Defendant 1, for embezzlement.

③ In the account books related to the extra transaction of a credit cooperative, a specified amount of the off-the-counter transaction fund is transferred to Defendant 1 or Nonindicted Incorporated Association 7 (a corporation operated by Defendant 1; hereinafter “agricultural Cooperative”)’s account in the name of Defendant 1 or Nonindicted Incorporated Association 7 (a corporation established for the purpose of operating the concentrated industry; hereinafter “agricultural Association”) or Defendant 1 borrowed money necessary for the extra transaction fund as collateral.

④ Meanwhile, Defendant 1 opened one account in the name of ○○ Agricultural Cooperative and two accounts in his name, and deposited proceeds from farm management, such as the sale of pigs, with the check, deposited them into the account in the name of ○○ Agricultural Cooperative, and opened the deposit transaction results in the ○○ Agricultural Cooperative by remitting it again to the ○○ Agricultural Cooperative’s account. As can be seen, in a case where the ○○ Agricultural Cooperative deposited the ○○ Agricultural Cooperative’s check issued, it would be possible to collect money only 14:00 after the following day if the ○○ Agricultural Cooperative deposited it into the ○○ Agricultural Cooperative’s account. Thus, when the customer collected money, the ○○○ Agricultural Cooperative could not pay money from time to time due to the shortage of cash, and thus, in such a case, the ○○○ Agricultural Cooperative issued a statement of cash transfer.

⑤ As a result of the special inspection by the Federation, the amount of loss of a credit cooperative due to an outdoor transaction was about KRW 12.6 billion around July 22, 2003, and around May 9, 2008, the amount increased to KRW 16.6 billion. As to the difference between the above period and the amount equivalent to KRW 4.6 billion, both Defendant 3 and Nonindicted 8, who is an employee of the Federation in charge of the special inspection of the said period, are presumed to have been paid as interest to the ordinary deposits in the overseas trading system.

④ On July 22, 2003, Defendant 1 and 12 issued to Defendant 3 a certificate that Defendant 1 and 12 would not be held liable for the loss (including approximately 12.6 billion won) of a credit cooperative due to the above side transactions and would not resign from the credit cooperative, and that they will continue to be responsible for the entire loss. However, Defendant 1 and 12 did not actually compensate for the said loss.

(D) Defendant 7 and 8’s embezzlement and repayment of funds

Defendant 7 and 8 have voluntarily withdrawn the money of the credit cooperative while in office and consumed it for personal purposes. After the special inspection of the Federation, the Federation repaid the amount equivalent to the amount of embezzlement to the credit cooperative.

(2) Determination

(A) Relevant legal principles

① The crime of embezzlement is established when a person who keeps another’s property embezzleds such property. Embezzlement as a constituent element of the crime of embezzlement refers to any act that realizes the intent of unlawful acquisition, and the crime of embezzlement is established when there is an objective act that can be perceived from the outside. The prosecutor must prove that there is an act of realizing the intent of unlawful acquisition. The proof should be based on strict evidence with probative value that leads to a judge to the extent that there is no reasonable doubt. If there is no such evidence, even if there is no doubt as to the defendant’s conviction, it shall be determined as the defendant’s profit (see Supreme Court Decisions 2004Do5904, Dec. 9, 2004; 2002Do5130, Nov. 26, 2002, etc.).

② Meanwhile, in a case where an operator or a manager of a corporation, not for the purpose of a corporation, but for the purpose of returning funds to a corporation without any connection with a corporation or for personal purposes, and separately created funds, the intent of unlawful acquisition was realized by the act of creating the corporation itself. In such a case, whether the act was intended to bring back the funds of the corporation shall be determined by comprehensively taking into account all the circumstances such as the nature of the corporation and the motive, method, size, period, method and method of raising funds, method of safekeeping funds, method of actually using the funds (see Supreme Court Decision 2006Do694, Feb. 12, 2009).

(B) Whether the act of making the customer’s regular deposit deposit into the off-the-counter transaction system itself constitutes embezzlement against the depository

Defendant 1, 3, and 12’s act of having a bank account manager deposit with a bank’s employees deposited in the off-the-counter transaction system in itself should be established for the purpose of embezzlement. ② If a bank’s regular deposit is deposited in a bank without any connection with a bank’s own or personal purpose, the bank’s deposit should be kept and managed separately from the bank’s regular deposit, and the bank’s act of keeping and operating the bank’s own funds cannot be seen as having the same nature as a non-deposit separate from the bank’s official funds. According to the above developments leading up to the introduction and management of the off-the-counter transaction system, the bank account system was created to attract more regular deposits by paying interest than the bank’s interest, and thus, the bank account management system is not established for the purpose of embezzlement, i.e., newly opening, termination, payment of interest, lending within the scope of deposits, printing out of the bank’s own account, etc., and thus, it cannot be seen as having been established by the bank’s own account management system.

(C) Whether the crime of embezzlement and aiding was established

Inasmuch as Defendant 1, 3, and 12 who was prosecuted as a principal offender does not constitute embezzlement, Defendant 5, 7, 8, 13, 14, 16, 17, and 18, who is an employee in charge of the receipt and receipt of a credit cooperative charged with aiding and abetting, as well as Defendant 5, 7, 8, 13, 14, 16, 17, and 18, who is an employee in charge of the receipt and receipt of a credit cooperative charged with aiding and abetting, also does not constitute a crime of embezzlement against the credit cooperative, regardless of the fact that Defendant 7 and 8 voluntarily withdraws money from the credit cooperative and consume

(3) Conclusion

Thus, this part of the facts charged should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act because it constitutes a case where there is no proof of a crime. However, the court below found the defendant guilty of this part of the facts charged. The court below erred by misunderstanding of facts or misunderstanding of legal principles as to embezzlement, thereby affecting the conclusion of the judgment. Therefore, this part of the court below's allegation is with merit.

2) Violation of special law (private financial brokerage, etc.) and infringement of special law (private financial brokerage, etc.) (the preliminary charges against Defendant 5, 7, and 8)

A) Summary of this part of the facts charged

The summary of this part of the facts charged is as stated in Paragraph 2 of the facts charged in the judgment of the court below.

B) The judgment of the court below

The lower court found the Defendant guilty of this part of the facts charged by comprehensively taking account of the evidence duly admitted and examined.

C) The judgment of this Court

(1) The crime of private financing brokerage, etc. under the Special Economic Crimes Act is established when an officer or employee of a financial institution provides a loan of money, guarantee or acceptance of a debt, or arranges such lending for his own interest or a third party's interest other than the financial institution to which he belongs, by taking advantage of his status (Article 8 of the Special Economic Crimes Act). As seen earlier, the act of having a customer deposit a regular deposit entrusted to him into an off-the-counter trading system cannot be deemed as embezzlement against a credit cooperative. Thus, the money deposited into an off-the-counter trading system belongs to a credit cooperative. Thus, the act of Defendant 1 and 3 lending such money to its members cannot be deemed as lending a loan to a third party's account other than a credit cooperative, and therefore, the crime of private financing brokerage, etc. under the Special Economic Crimes Act is not established.

(2) As long as Defendant 1 and 3’s act prosecuted as a principal offender does not constitute a crime of private financing brokerage, etc., Defendant 5, 7, and 8’s act prosecuted as an aiding and abetting offender is not constituted a crime of aiding and abetting private finance.

(3) Thus, the court below found the defendant not guilty under the latter part of Article 325 of the Criminal Procedure Act since this part of the facts charged constitutes a case where there is no proof of crime. Thus, the court below erred by misunderstanding the facts or misunderstanding the legal principles on private financing brokerage, etc. which affected the conclusion of the judgment. Therefore, the defendant 1, 3, 5, 7, and 8's assertion on this part is justified.

3) Occupational breach of trust (Defendant 3)

The court below, based on the evidence duly admitted and examined, set up a collateral on the instant real estate after Defendant 1 took out a loan of KRW 80 million from a credit cooperative, i.e., the establishment of a collateral on the instant real estate. Upon accepting the instant real estate as a site for ○○ Terminal on May 9, 2008, Defendant 3 demanded the termination of the collateral security in order to receive compensation. Accordingly, Defendant 3 provided documents for the termination of the collateral without any specific objection, and Defendant 1 provided the documents for the termination of the collateral security to Defendant 1. ② The special prosecutor began with the Federation’s organizational act of a credit cooperative and the special prosecutor was discovered, and Defendant 1 escaped, Defendant 3 was inspected on the basis that Defendant 1 was provided with a promissorysory note of KRW 200,000,000,000,000,0000,000,0000,000 won, which was received from Defendant 1, and Defendant 3 had no reason to acknowledge this portion of the collateral.

4) Occupational embezzlement (Defendant 1, 3, 7)

A) Summary of this part of the facts charged

The summary of this part of the facts charged is as stated in paragraph (4) of the facts charged in the judgment below.

B) The judgment of the court below

The lower court found the Defendant guilty of this part of the facts charged by comprehensively taking account of the evidence duly admitted and examined.

C) The judgment of this Court

(1) As seen earlier, Defendant 1, 3, and 7’s act of having customers deposit their regular deposits into the off-the-counter transaction system cannot be deemed as embezzlement against the credit cooperative. As such, Defendant 1, 3, and 7’s act as stated in this part of the facts charged does not constitute occupational embezzlement.

(2) If so, this part of the facts charged should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act because it constitutes a case where there is no proof of crime. However, the court below found the defendant guilty of this part of the facts charged. The court below erred by misapprehending the legal principles on mistake of facts or embezzlement, which affected the conclusion of the judgment. Therefore, this part of the defendant 1, 3

5) Forgery of private documents, uttering of falsified investigation documents, and the occupation of occupational embezzlement (criminal facts as indicated in the judgment of the court, 1, 3)

In light of the following circumstances acknowledged by the lower court and the first instance court’s duly adopted and examined evidence, i.e., (i) Nonindicted 1’s statement that it will be used in preparing loan-related documents from Nonindicted 9, the head of the farm; (ii) merely because it is a corporate body and monthly income requires a certified copy of resident registration and a certificate of personal seal impression, etc.; and (iii) Nonindicted 2 also did not hear that it is used in preparing loan-related documents from Nonindicted 9; and (iv) delivered the certificate of personal seal impression, a certified copy of resident registration, and a certificate of personal seal impression to Nonindicted 9 with the knowledge that it was required to submit documents necessary for membership; and on August 3, 2006, Defendant 1 et al. requested that the above loan-related documents be prepared by Nonindicted 2, the nominal owner of the loan-related documents and stated that the loan-related documents were not attached to each of the Defendant’s loan-related documents without the consent of the second instance court; and (iv) Nonindicted 2, the nominal owner of the loan-related documents.

6) The point of fraud

According to the statement at the trial of Nonindicted 3 and the fact-finding report of the △△ Bank, it is recognized that Defendant 1 paid KRW 200,000 as interest per month from June 2006 to April 2008 to the victim Nonindicted 3, but on the other hand, the following circumstances acknowledged by the court below and the evidence duly adopted and investigated by the court below, i.e., Defendant 1’s asset status at the time of borrowing money from the victims at the market price of KRW 10,000,000,000, but it was extremely difficult for the victims to pay compensation money to the victims at KRW 2,70,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,00,000 won.

B. Determination of the Prosecutor’s argument

1) As to the assertion on the part not guilty of the disposition

A) Violation of the Act on Regulation and Punishment of Criminal Proceeds Concealment (Defendant 1, 3, and 12)

Criminal proceeds refers to any property generated by a criminal act corresponding to a serious crime prescribed in the attached Table of the Act on Regulation and Punishment of Criminal Proceeds Concealment, or any funds or property related to such criminal act as provided for in subparagraph 2 (b) of Article 2 of the same Act (Article 2 subparagraph 2 of the Act on Regulation and Punishment of Criminal Proceeds Concealment). As stated in this part of the facts charged, Defendant 1, 3, and 12 deposited regular deposits of customers into a borrowed-name account for customer deposits in the off-going trading system and managed them again, they again deposited them into the account under the name of the incorporated farming association. Although Defendant 1 and the incorporated farming association transferred them to the ○○ Agricultural Bank account in the name of the incorporated farming association or deposited money of the treasury in cash transfer from the borrowed-name account under the name of Defendant 1 and the incorporated farming association to the ○○○○○ bank account in the name of the incorporated farming association, so long as embezzlement is not established, Defendant 1 and 2 cannot be deemed to constitute a crime of embezzlement.

The court below found the defendant 1 and the agricultural partnership bank not guilty of this part of the facts charged on the ground that it is insufficient to recognize that the source of money transferred to each ○○ Nonghyup account in the name of the defendant 1 and the agricultural partnership bank was the borrowed-name account that managed the deposits embezzled through the off-the-counter transaction, on the premise that the customer's act of having the deposited regular deposits in the off-the-counter transaction system itself constitutes embezzlement. The court below found the defendant not guilty of this part of the facts charged on the ground that there is no other evidence to acknowledge it. Although the judgment of the court below states differently from the judgment of the court

Therefore, the prosecutor's argument on this part of the facts charged is without merit.

B) The point of occupational breach of trust (Defendant 2)

In light of the circumstances revealed in the facts of recognition, the court below determined that even though Defendant 2 becomes a debtor of the right to collateral security on the registry, Defendant 2 was not involved in the loan process, and that Defendant 1 was not aware of all legal acts regarding the real estate of this case, such as the establishment of the right to collateral security or the selection of ○○ Terminal site, and thus Defendant 1 was treated by Defendant 1, and thus, Defendant 1 was not accurately aware of the credit and debt relations between Defendant 2 and Defendant 1. In such circumstances, in collusion with Defendant 1 and Defendant 3 on the sole ground that Defendant 2 received a document termination of the right to collateral security from Defendant 3 and submitted it to Hongsung-gun upon Defendant 1’s instruction, it cannot be readily concluded that Defendant 2 intended to inflict damage on the credit cooperative by cancelling the right to collateral security without paying the secured obligation, and otherwise there is no evidence to acknowledge Defendant 2’s conspiracy with Defendant

Examining the reasoning of the lower judgment in comparison with records, the lower court’s fact-finding and judgment are correct.

Therefore, the prosecutor's assertion on this part of the facts charged is without merit.

C) Violation of special law (Embezzlement) or violation of special law (Embezzlement) (Defendant 4, 9, 19, 20)

As seen earlier, Defendant 4, 9, 19, and 20 as stated in the main and ancillary facts charged do not constitute a crime of embezzlement as well as embezzlement under the Act on the Aggravated Punishment, etc.

The court below found Defendant 4, 9, 19, and 20 on the premise that the act of the customer to deposit a fixed deposit in the off-the-counter transaction system itself constitutes embezzlement. The court below found Defendant 4, 9, 19, and 20 on the ground that there is no evidence to find that there was an intention of illegal acquisition as to Defendant 1, etc., and there was no intention of embezzlement, nor that Defendant 1, etc. engaged in the business with the intent to facilitate embezzlement. The court below acquitted all of the primary and conjunctive charges on the ground that there is no evidence to find that the embezzlement with Defendant 1, etc.

Therefore, there is no reason for the prosecutor's argument on the main and ancillary facts.

D) Occupational embezzlement, fabrication of private documents, and uttering of private documents (Defendant 10)

The court below acknowledged the facts as stated in its reasoning after comprehensively taking account of the admitted evidence, and requested the defendant 1 to complete some of the loan documents in its name without the consent of the non-indicted 1 and 2, and to execute the loan to the above person. The defendant 3 ordered the defendant 10 who is a subordinate employee to complete the loan documents without confirming the intention of the non-indicted 1 and 2, and issued the above documents to the non-indicted 10; the defendant 10 supplemented the interest rate adjustment list in which the loan staff was actually written (at that time, the name of the lender was already signed and sealed) and carried out as a working person; the defendant 10 conspireds the loan to the non-indicted 1 and the non-indicted 2's executive officer's statement to the non-indicted 1 and the non-indicted 3's executive officer's statement to the non-indicted 1 and the non-indicted 1's executive officer's statement to the court below that the defendant 1 and the non-indicted 2's executive officer's statement made by the loan to the defendant 1's own name and the loan.

Examining the reasoning of the lower judgment in comparison with records, the lower court’s fact-finding and judgment are correct.

Therefore, the prosecutor's assertion on this part of the facts charged is without merit.

E) Violation of special law (Embezzlement) or violation of special law (Embezzlement) or violation of special law (Embezzlement), violation of special law (private financing brokerage, etc.) or violation of special law (private financing brokerage, etc.) (Defendant 11)

As seen earlier, Defendant 11’s act in this part of the facts charged is not only a crime of embezzlement or aiding and abetting funds, but also a crime of aiding and abetting funds or aiding and abetting funds, etc. under special circumstances, since it cannot be deemed that the act of lending such money to the union members belongs to the treasury. Thus, Defendant 11’s act in this part of the facts charged is not a crime of embezzlement or aiding and abetting funds or aiding and abetting funds, etc. under special circumstances, since it cannot be deemed that the act of lending such money to the union members belongs to the treasury. Thus, Defendant 11’s act is not a crime of embezzlement or aiding and abetting funds, etc. under special circumstances.

The court below held that Defendant 11 lent only the name of the president to Defendant 1 upon Defendant 1’s request, Defendant 1 et al., or Defendant 1 was not aware of the fact that Defendant 1 et al. made and operated a separate installment transaction system in addition to the federation’s computer network. Thus, it is not reasonable that Defendant 11 conspired with Defendant 1 et al. for embezzlement or loan to union members by using a customer’s regular deposit system, and there is no evidence to acknowledge that Defendant 11 conspired with the above embezzlement and private financing brokerage. Further, Defendant 11 did not recognize the fact that Defendant 1 et al., the principal offender, embezzled customer deposits or provided funds to union members. Furthermore, Defendant 11 did not understand that Defendant 1 et al. was not guilty of this part of the facts charged on the ground that Defendant 1 et al. was not guilty on the ground that Defendant 1’s act of aiding and abetting the contents of this part of this case as the chief executive officer’s request.

Therefore, there is no reason for the prosecutor's argument on the main and ancillary facts.

F) Violation of special law (private financial brokerage, etc.) (Defendant 12)

As seen earlier, it cannot be said that embezzlement is established solely on the ground that the act of the customer to deposit a fixed deposit in the off-the-counter transaction system is not sufficient to establish the crime of embezzlement against the credit cooperative. Therefore, the act of lending such money to the union members shall belong to the credit cooperative. Thus, it cannot be deemed that the act of lending it to the union members cannot be deemed as lending it to the defendant's account or a third party's account other than the credit cooperative, and therefore, the act of Defendant 12 as stated in this part of the facts charged cannot be deemed as constituting a crime of private financing brokerage, etc.

The court below found Defendant 12 not guilty of this part of the facts charged on the ground that it is difficult to view that Defendant 12 was not guilty on the ground that Defendant 12 was involved directly or indirectly in the business of lending money deposited in the off-the-counter transaction system to union members after July 31, 2003, and Defendant 12 was trying to realize his own intention by using lending money under Defendant 1 and 3’s off-the-counter transaction system, on the premise that the act of having the customers deposit the fixed amount of money deposited in the off-the-counter transaction system itself. Although the court below stated different contents from the judgment of this court for the reason of innocence, it is just in its conclusion.

Therefore, the prosecutor's assertion on this part of the facts charged is without merit.

2) As to the allegation on the non-guilty portion

A) The non-guilty portion of the primary charge [Defendant 5, 6, 7, 8, 13, 14, 15, 16, 17, 18] and violation of special law (private financing brokerage, etc.)]

As seen earlier, Defendant 5, 6, 7, 7, 8, 13, 14, 15, 16, 17, and 18’s act as stated in this part of the facts charged does not constitute a crime of embezzlement or private financing brokerage under the Special Economic Act, since it cannot be deemed that the act of having a customer deposit the fixed deposit in the open transaction system belongs to the treasury. Accordingly, the money deposited in the open transaction system belongs to the treasury. Thus, the act of lending such money to the union members cannot be deemed as lending a loan to the Defendant’s account or for a third party’s account, and thus, the act of Defendant 5, 6, 7, 8, 13, 13, 14, 15, 16,

The court below found the above defendants not guilty of all the primary facts of this part on the ground that there is no other evidence to acknowledge it, on the premise that the act of the defendants to deposit the regular deposit in the off-the-counter transaction system itself is established as embezzlement against the credit cooperative. The evidence submitted by the prosecutor alone cannot be readily concluded that the above defendants intended to realize their intent by public offering and private participation in the embezzlement of the regular deposit through the off-the-counter transaction system. The court below found the defendants not guilty of all the primary facts of this part on the ground that there is no other evidence to acknowledge it. Although the court below stated the different contents

Therefore, there is no reason for the prosecutor's argument about the main facts of this part.

B) Part of the conjunctive facts charged [Defendant 5, 6, 7, 8, 13, 14, 15, 16, 17, 18] of the Act on Special Economic Measures (Defendant 5, 6, 7, 8, 13, 14, 15, 16, 17, 17, and 18]

As seen earlier, Defendant 5, 6, 7, 8, 13, 14, 15, 16, 17, and 18’s act in this part of the conjunctive facts charged is not a crime of embezzlement against a credit cooperative solely on the basis of having a customer deposit in the open transaction system, and therefore, the money deposited in the open transaction system belongs to a credit cooperative. Thus, the act of lending such money to a member cannot be deemed as lending a loan to a third party other than the Defendant’s account or a credit cooperative’s account. Thus, the act of Defendant 5, 6, 7, 8, 13, 13, 14, 15, 16, 17, and 18’s act in this part is not a crime of embezzlement or aiding and abetting

Under the premise that the act of having customers deposit regular deposits into the off-the-counter transaction system itself constitutes embezzlement, the court below held that this part of the charges added by the prosecutor is not directly processed by the off-the-counter transaction system, but by other employees who worked together for the same period. Although the above Defendants had dolusent intent to assist the above Defendants, and the other Defendants who work together with the above Defendants knew of the fact that they are managing customer deposits through the off-the-counter transaction system, it is difficult to view that the Defendants 1, 3, and 12 were involved in the off-the-counter transaction that they did not directly handle, and aiding and abetting the above Defendants 1, 1830, 1831, and 17, and that the above Defendants did not have any other evidence to acknowledge that the above Defendants did not have any intention to commit the above in-the-counter transaction between 30, 297-2977, and 17, and the above Defendants did not have any other evidence to acknowledge that the above Defendants did not have any intention to commit the above.

Therefore, the prosecutor's assertion on some of the ancillary charges is without merit.

3. Determination on the assertion of unfair sentencing (Defendant 21)

Defendant 21 in collusion with Defendant 1 to give a bribe of KRW 50 million to Nonindicted 10, in order to ensure that the instant real estate owned by Defendant 1 is selected as the site of ○○ bus terminal. On the other hand, Defendant 21’s act of receiving KRW 30 million from Defendant 1 under the pretext of arranging Nonindicted 10 and other public officials is very heavy in the nature of the crime and thus, it is necessary to impose a heavy punishment on Defendant 21. However, Defendant 21’s assertion that the act of receiving KRW 30 million from Defendant 1 is not a site of ○○ bus terminal due to Defendant 21’s solicitation, and the leading responsibility of offering of a bribe seems to exist in Defendant 1; Defendant is deemed to have no specific criminal records other than the previous offense; Defendant is currently against Defendant 21’s depth and behavior; Defendant 21’s age, character and environment; Defendant 21’s situation and circumstances after the crime is too unfair. Thus, Defendant 21’s assertion of unfair sentencing is without merit.

4. Ex officio determination

(a) Object of adjudication on appeal;

1) Article 342(1) of the Criminal Procedure Act provides that “Appeals may be made against a part of the judgment,” thereby allowing a part of appeal in principle, and Article 342(2) provides that “An appeal against a part of the judgment shall have an effect on the part which is indivisible relation with that part of the judgment.” Therefore, in a case where only a part of the judgment indivisible is the object of appeal, the effect of appeal shall be limited to the whole defendant's case in accordance with the principle of no appeal, and the whole appeal shall be transferred to the appellate court. In such a case, some appeals constitute an indivisible relation with the main order of the defendant's case, part of the offense, and one sentence against concurrent crimes (see Supreme Court en banc Decision 2008Do5596, Nov. 20, 2008).

2) The effect of the filing of an appeal against a part of the primary and primary facts charged extends to the remainder of the facts charged, and where the application of the applicable provisions of Acts inconsistent with each other concerning the same facts is primarily and reservely sought, it shall be deemed that only the conjunctive facts charged is guilty and the appeal against the part is also included in the primary facts charged (see Supreme Court Decision 2006Do1146, May 25, 2006).

B. Of the facts charged in this case against Defendant 6 and 15, the subject of the judgment of this court

1) The court below found Defendant 6 guilty of evasion of compulsory execution among the facts charged in the instant case, the violation of the Act on the Special Economic Crimes (Embezzlement) and the aiding and abetting of the Act on the Special Economic Crimes (Embezzlement, etc.), the primary facts charged, the violation of the Act on the Special Economic Crimes (Embezzlement, etc.), the violation of the Act on the Special Economic Crimes (Embezzlement, etc.), and the violation of the Act on the Special Economic Crimes (Embezzlement, etc.), the violation of the Act on the Special Economic Crimes (Embezzlement, etc.) and the aiding and abetting of the Act on the Special Economic Crimes (Embezzlement, etc.). The court below found Defendant 15 guilty of part of the remainder of the charges charged in the instant case against Defendant 15, and acquitted the remainder of the charges of the violation of the Act on the Special Economic Crimes (Embezzlement, which are the primary facts charged, and the aiding and abetting of the Act on the Special Economic Crimes (Embezzlement, etc.), which are the primary facts charged, and appealed against

2) According to the aforementioned legal principles and the above facts of recognition, even if the prosecutor appealed on the part of the main facts charged and the ancillary facts charged against Defendant 6,15, which were found not guilty among the facts charged in the instant case, the part of the ancillary facts charged against the above Defendants are also included in the subject of the judgment of this court, and the part of the conjunctive facts charged against Defendant 6 is also included in the subject of the judgment of this court, and since one of the facts charged in the instant case against Defendant 6 is concurrent with the primary and conjunctive facts charged, it is deemed that the evasion of compulsory execution above is included in the subject of the judgment of this court.

C. Parts of the ex officio reversal

1) Part of the aiding and abetting the Violation of the Special Economic Act (Embezzlement) which is the ancillary charge against Defendant 6 and 15, and aiding and abetting the Violation of the Special Economic Act (private financing brokerage, etc.)

As seen earlier, it cannot be deemed that the act of customers to deposit a fixed deposit in the off-the-counter transaction system alone constitutes a crime of embezzlement against a credit cooperative. Accordingly, the money deposited in the off-the-counter transaction system shall be reverted to a credit cooperative. Thus, the act of lending such money to members cannot be deemed as lending a loan to the defendant's account or a third party's account other than a credit cooperative, and thus, it cannot be deemed that the crime of private financing brokerage, etc. under special circumstances is established. Of the facts charged against the defendant 6 and 15, some of the charges of this case against the defendant 6 and 15, which are the ancillary charges that the court below found guilty, constitute a case where there is no proof of a crime, and thus, it cannot be maintained as they are.

2) The charge of evading compulsory execution against Defendant 6 of the facts charged of the instant case

A) Summary of this part of the facts charged

The summary of this part of the facts charged is as stated in Paragraph 6 of the facts charged in the judgment below.

B) The judgment of the court below

The lower court found the Defendant guilty of this part of the facts charged by comprehensively taking account of the evidence duly admitted and examined.

C) The judgment of this Court

(1) The crime of evading compulsory execution under Article 327 of the Criminal Act is a creditor's right, which is the basis of compulsory execution, is a creditor's right, that is, the existence of a claim, shall be the elements for the crime of evading compulsory execution, and therefore, if the existence of the claim is not recognized, the crime of evading compulsory execution is not established (see, e.g., Supreme Court Decisions 2007Do3005, Jul. 12, 2007; 2008Do198, May 8, 2008).

(2) As seen earlier, the act of a customer to deposit a regular deposit into the off-the-counter transaction system cannot be deemed as embezzlement against the credit cooperative. The evidence submitted by the prosecutor alone is insufficient to recognize that Defendant 6 voluntarily withdraws the money of the credit cooperative and used it for personal purposes. Since there is no other evidence to recognize otherwise, it is difficult to recognize the existence of the credit cooperative’s damage claim due to embezzlement against Defendant 6, this part of the facts charged cannot be deemed as satisfying the requirements for establishment.

(3) Therefore, this part of the facts charged which the court below found guilty shall be sentenced not guilty under the latter part of Article 325 of the Criminal Procedure Act because there is no proof of crime.

5. Conclusion

Therefore, among the convictions against Defendant 1 and 3 in the judgment below, each specific law violation (Embezzlement), violation of special law (private financing brokerage, etc.), and violation of the special law, and the part concerning occupational embezzlement as stated in paragraph (4) of the judgment of the court below as to the defendant 5, 7, 8, 12, 13, 14, 16, 17, and 18, and each of the above defendants' appeals against the defendant 21 are justified. Thus, each of the above parts can no longer be maintained.

However, the court below sentenced Defendant 1 to a single punishment on the ground that each of the above criminal facts and the remaining criminal facts as stated in Articles 3, 5, 7, 8, 9, 10, and 11 as stated in the judgment of the court below and each of the criminal facts as stated in paragraphs 3 and 5 as stated in the other criminal facts and the remaining criminal facts as to Defendant 3 are concurrent crimes as stated in the former part of Article 37 of the Criminal Act. Thus, the part of the judgment of the court below against Defendant 1 and

Therefore, without further proceeding to decide on the assertion of unfair sentencing by Defendants 1, 3, 7, 8, 12, 13, and 14, the entire guilty part against Defendants 1, 3 and 5, 8, 12, 13, 14, 16, 17, and 18 of the judgment below under Article 364(6) of the Criminal Procedure Act and the part against Defendants 21 of the judgment below as to the guilty part against Defendant 6 and 15 are reversed. On the other hand, since the conviction part against Defendant 6 and 15 of the judgment of the court below is a ground for ex officio reversal as seen above, it shall be entirely reversed pursuant to Article 364(2) and (6) of the Criminal Procedure Act, and it shall be again decided after pleading, and the prosecutor's appeal against Defendant 1, 3, 5, 6, 7, 8, 12, 13, 14, 15, 16, 17 and 14 of the Criminal Procedure Act.

The criminal facts against Defendant 1 (occupational Breach of Trust, Forgery of Private Document, Forgery of Private Document, Occupational Embezzlement, Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, Violation of the Road Traffic Act, Bribery, Bribery, Fraud, Violation of the Act on the Control of Illegal Check, Violation of the Act on the Registration of Real Estate under Actual Titleholder's Name, Violation of the Labor Standards Act, Violation of the Act on the Registration of Real Estate under Actual Titleholder's Name, Violation of the Act on the Registration of Real Estate under Actual Titleholder's Name), and the summary of

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

A. Defendant 1

Articles 356, 35(2) and (1), 30(2) of the Criminal Act, Article 355(1), Article 30(2) and (3) of the Criminal Act, Article 356 of the Criminal Act, Article 355(1) and Article 30(2) of the Criminal Act, Articles 231 and 30(a) of the Criminal Act, Articles 234, 231, and 30(a) of the Criminal Act, Articles 231, and 30(a) of the Criminal Act, Article 5-3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 268(a) of the Criminal Act, Article 35(2) of the Criminal Act, Article 150(2) of the Criminal Act, Article 150(1) and (3) of the former Road Traffic Act (amended by Act No. 950 of Apr. 1, 2009), Article 14(1) of the Criminal Act, Article 30(1) of the Act.

B. Defendant 3

Articles 356, 355(2) and (1), 30 (the occupation of occupational breach of trust, the choice of imprisonment), 356, 355(1), and 30 (the occupation of occupational embezzlement at the time of sale, the choice of imprisonment), Articles 231, and 30 (the occupation of each private document at the time of sale, the choice of imprisonment), Articles 234, 231, and 30 (the occupation of each private document, the choice of imprisonment), Articles 234, 231, and 30 (the occupation of the exercise of each private document at the time of sale, the selection of imprisonment) of the Criminal Act

C. Defendant 21

Articles 133(1), 129(1), and 30 (Taking of Bribery at Time of Sales) of the Criminal Act, Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes (Aggravated Punishment, etc. of Specific Crimes and Selection of Imprisonment)

1. Aggravation of concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (In case of Defendant 1, the aggravated punishment provided for in the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. of which punishment is the most severe, the aggravated punishment provided for in the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. against Defendant 3, the aggravated punishment provided for in the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. of which punishment, the nature of the crime,

1. Suspension of execution (Defendant 21);

Article 62(1) of the Criminal Act

1. Collection (Defendant 21);

Article 13 of the Act on the Aggravated Punishment, etc. of Specific Crimes

1. Defendant 1, 3

The main facts charged (the point of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the point of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes)) are to be acquitted; the reason why the act of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes was committed; the degree of participation in the act of crime; the method of recovery from damage; the nature of the crime committed by the defendant 1; and other crimes committed by the defendant 1 (the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the crime of fraud, the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes)); and

2. Defendant 21

In full view of the various circumstances as seen in the above 3. Paragraph (Judgment on Undue Practices), Defendant 21’s sentence shall be determined as ordered.

Of the facts charged in this case against Defendant 1, 3, and 12, the summary of each of the facts charged in this case against Defendant 5, 6, 7, 8, 13, 14, 15, 16, 17, and 18 of each of the facts charged in this case constitutes a violation of the Special Economic Act (Embezzlement) as stated in the judgment of the court below. Of the facts charged in this case against Defendant 1, 3, the summary of each of the facts charged in this case against Defendant 5, 6, 7, and 8 of each of the facts charged in this case constitutes a violation of the Special Economic Act (private brokerage, etc.), and the summary of each of the facts charged in this case against Defendant 1, 3, and 7, the summary of each of the facts charged in this case constitutes a violation of the Special Economic Act (private brokerage, etc.) as stated in the judgment of the court below, and the summary of each of the facts charged in this case against Defendant 2 and 4 of the above facts charged as stated in the judgment below.

Judges Lee E-Beg (Presiding Judge)