(영문) 서울중앙지방법원 2012. 4. 13. 선고 2010고합1437,2010고합1473(병합),2010고합1541(병합),2011고합336(병합),2011고합1255(병합) 판결

Defendant 1 shall be punished by imprisonment with prison labor for three years and by imprisonment for six years (Defendant 2 of the judgment of the Supreme Court and Defendant 4 of the judgment of the appellate court).

Of the facts charged against Defendant 1, the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) due to a monetary loan to a policeman on August 2008, and Defendant 2 and Defendant 4 (Defendant 3 of the Appellate Trial) are acquitted, respectively.

Criminal facts

1. 【2010 Highest 1437】

Defendant 1 is a manager of Nonindicted Company 1 from July 17, 2008 to November 24, 2009, and a person who served as a representative director of the same company from September 16, 2008 to January 7, 2010.

Defendant 1, on July 2008, when Nonindicted 2, who was the former manager of Nonindicted Company 1, experienced difficulties in managing the company, Defendant 1 decided to take over and manage the said Nonindicted Company 1 without compensation from the said Nonindicted 2, but succeeded to KRW 1.8 billion of personal debt against Nonindicted 9, who was assumed by Nonindicted 2.

On July 16, 2008, the defendant 1 received KRW 1 billion from the above non-indicted 1 company's account from the defendant 3 as the passbook of the above company and embezzled the above money from the non-indicted 9 by voluntarily using it by withdrawing it by a cashier's checks equivalent to the same amount and paying it to the non-indicted 9 in order to use the personal debt repayment for the non-indicted 9 he acquired from the non-indicted 2. The above non-indicted 1 company's note 30 million won borrowed from the defendant 3 as the passbook of the above company, and then he was in custody for the above company's business, and then withdrawn the money and paid it to the non-indicted 9.

2. Estuna 2010 high-level 1473

Defendant 1, on July 2008, when Nonindicted 2, who was the former manager of Nonindicted Company 1, experienced difficulties in the operation of the Company, Defendant 1 decided to take over and manage Nonindicted Company 1 without compensation from said Nonindicted 2, but succeeded to KRW 565 million of the personal debt against Nonindicted 10, which Nonindicted 2 assumed.

On the other hand, on August 2008, Defendant 1 was engaged in the duty of preserving and properly managing the company's assets as the management manager and the de facto representative director of the above non-indicted 1 as well as the management supervisor of the company.

Nevertheless, around August 29, 2008, Defendant 1 violated the above business duties at the Seoul office of Nonindicted Company 1 located in Gangnam-gu Seoul (hereinafter address omitted) and gave to Nonindicted 10 a promissory note in the name of Nonindicted 1 Co. 10 in order to secure the repayment of personal debt to Nonindicted 10 acquired by him from Nonindicted 2, thereby allowing Nonindicted 10 to obtain property profits equivalent to the above amount, and let the said Nonindicted 10 gain property profits, and caused the said Nonindicted 1 to incur damages equivalent to the same amount.

3. 【201-Gohap336】

Defendant 3, the actual owner of Nonindicted Co. 5, at the same time, was a registration director of Nonindicted Co. 1, a KOSDAQ-based company that is engaged in underground resources development business, energy, and raw material business from September 16, 2008 to February 2, 2009, and Defendant 1 was a person who served as the representative director of the said Nonindicted Co. 1, from September 16, 2008 to January 7, 2010.

Defendant 1, as the representative director of the above non-indicted 1 company, has a duty to faithfully manage and preserve the assets owned by the non-indicted 1 company. However, Defendant 3 demanded that the above non-indicted 1 company take over the above company from the non-indicted 2, registered his acquisition fund as a registration director, registered his office in the company with the name of the chairman, and received the above non-indicted 3 corporation's accounting status from time to time by having the director of the non-indicted 1's office located in the company so that the director of the non-indicted 3 corporation under his direction can report on the financial status of the above non-indicted 1 company. The defendant 1 has a great influence on the management of the company, such as having the director's corporate seal impression, personal seal impression, and deposit passbook, regardless of the above non-indicted 1 company, and the defendant 1 offered joint and several surety for the above non-indicted 3 corporation without any justifiable reason.

Accordingly, on September 22, 2008, Nonindicted Co. 3 entered into a “money lending contract as of September 18, 2008,” with the purport that it had a debt to Nonindicted Co. 5 with the above amount, the Defendants are jointly and severally guaranteed on the said monetary lending contract without having the said Nonindicted Co. 1 receive any security or payment. To secure the performance thereof, Nonindicted Co. 3 issued to Nonindicted Co. 5 and issued to Nonindicted Co. 3 Co. 1 for a promissory note as of September 22, 2008 and issued to Nonindicted Co. 1 for a joint and several guarantee, and Defendant 3 received the said promissory note as of the same day.

피고인 3은 그 과정에서 2008. 9. 19. 01:16경 위 공소외 4에게 위 금전대차계약서 초안을 이메일로 보내면서 『약속어음 경과 이자 2,500만 원이 빠져 있어 계산해 넣었습니다. 그리고 유리(공소외 3 주식회사를 지칭) 이사회 결의서에는 ”공소외 11 이사 빼고“, △△(공소외 1 주식회사로 개명 전의 명칭) 이사회 결의서에는 “저는 빼고”, 피고인 1, 피고인 1 동생, ☆이사, ▽전무, ◎상무 이번에 새로 선임된 이사들을 넣으세요.』라고 지시하는 등 공소외 3 주식회사 이사회 의사록 외에 공소외 1 주식회사 이사회 의사록 초안까지 자신의 지침에 따라 만들도록 구체적으로 지시하고, 위 공소외 4는 같은 날 위 지침대로 금전대차계약서와 공소외 1 주식회사 이사회 의사록 초안을 피고인 1에게 이메일로 일방적으로 통보하고, 이후 같은 방식으로 수차 수정하여 2008. 9. 22. 피고인 3의 최종 지시에 따라 “마지막 수정분(금일 공증자료)”임을 명시하여 피고인 1에게 송부한 후 같은 날 같은 내용으로 공소외 1 주식회사의 이사회 결의 없이 위 금전대차계약서와 공소외 1 회사 이사회 의사록이 공증되게 하였다.

Then, around August 2009, when Nonindicted Co. 1 conducted capital increase in the amount of KRW 30 billion in total on the KOSDAQ market, Defendant 3 applied for the seizure and collection order of KRW 9.6 billion in total including KRW 6.3 billion in the name of the Daejeon District Court, Daejeon District Court’s Incheon District Court’s Branch on August 24, 2009, where Nonindicted Co. 1 made capital increase in the amount of KRW 30 billion in total on the securities market, and received a written notice of decision. On August 31, 2009, Defendant 3 executed the payment amount of capital increase in the passbook for capital increase in Korea on August 31

In addition, on September 2009, Defendant 3 agreed not to raise any objection against Defendant 1 and the above Nonindicted Company 1 on the seizure and collection of claims with a view to preventing Nonindicted Company 1 from raising an objection.

As the representative director of Nonindicted Co. 1, Defendant 1 entered into a joint and several guarantee without compensation and an agreement related thereto.

Accordingly, the Defendants conspired to obtain property benefits equivalent to KRW 6.3 billion from Nonindicted Co. 5 and caused property damage equivalent to the same amount to the said Nonindicted Co. 1.

Summary of Evidence

Criminal Claim 1 【2010 Gohap1437】

1. Statements of Defendant 1 in part of the second protocol of trial;

1. The statement made by the defendant 3 in the third protocol of trial;

1. The statement made by Nonindicted 9 in the fifth trial record

1. The entries of the witness in each statement made by the defendant 4 in the protocol of trial at least 11 and 12 times;

1. The statement made by Nonindicted Party 2 in the 13th trial record

1. A protocol concerning the examination of suspect against the defendant 1 (four times);

1. A protocol concerning the examination of suspect against Nonindicted 2

1. Statement of the defendant 3

1. Each written statement of Nonindicted 12, Nonindicted 12, Nonindicted 13, and Nonindicted 14, and 9

1. A letter of certification (loan), each performance letter, each transfer certificate, each share transfer certificate, each share transfer and takeover contract, each of the board of directors' meetings minutes, each loan certificate, each registration statement (main activities of the board of directors), non-indicted 1 chairman non-indicted 2 chairman of the non-indicted 1 company, the current status of changes in the director registration of the non-indicted 1 company, the non-indicted 1 corporation register, the check copy, the check copy, the minutes of the board of directors' meeting, and the investigation report (the confirmation that the non-indicted 2 3 billion won

Criminal No. 2 【2010 Gohap1473】

1. Statement made by Defendant 1 in the second protocol of the trial;

1. A protocol concerning the examination of suspect against the defendant 1;

1. Protocol concerning the examination of suspect by the police against the defendant 1 (Articles 3 and 4);

1. A protocol concerning the examination of suspect against Nonindicted 2 (third time)

1. Each police statement made against Defendant 3 and Nonindicted 9

1. The statement of Nonindicted 2

1. Proxy letter, transaction statement, investigation report (report attached to the case of request for seizure collection order), case search output, promissory note, investigation report (report attached to the documents related to transfer of management rights by non-indicted 2) by the Supreme Court Na, takeover contract, investigation report (report attached to the document related to transfer of management rights by non-indicted 2), copy of the decision to permit the auction of cargo, copy of the document of request for the auction of cargo, copy of the document of receipt of request for the permit for the auction of cargo, copy

Criminal No. 3 【2011 Gohap336】

1. Statements made by Defendant 1 in the seventh trial records;

1. Statement of the witness in each protocol of the fourth and nine times by the witness;

1. In each protocol of the 4th and 17th trial, some of the statements made by the witness Nonindicted 4;

1. The statement made by Nonindicted 9 in the fifth trial record

1. The statement made by the defendant 2 in the ten-time protocol of the trial;

1. The entries of the witness in each statement made by the defendant 4 in the protocol of trial at least 11 and 12 times;

1. The statement made by Nonindicted Party 2 in the 13th trial record

1. Each statement made by Nonindicted 12 and 15 of the 14th trial records;

1. Each statement made by Nonindicted 13 and 14 of the 15th trial records

1. Each protocol concerning the examination of the suspect against the defendant 3 and 1 by the prosecution (including each part concerning the examination of the suspect);

1. Statement made by the prosecution against the defendant 4 and 2 (the second, the second, the second, and the second);

1. Each prosecutorial statement concerning Defendant 4, Nonindicted 4, 12, 14, 15, 13, 16, 2, and 7;

1. Statement on Nonindicted 2’s statement

1. Each written statement of the defendant 1 and 3;

1. Each written statement of Nonindicted 2, 15, 13, 14, 17, 12, 4, 18, Defendant 4, Nonindicted 19, 20, and 7

1. 법인등기부, 피고인 3이 사용한 공소외 1 주식회사 회장 명함, 금전대차계약서(인증서), 각 투자계약서, 이사회의사록(공소외 3 회사), 이사회의사록(공소외 1 회사), 각 약속어음(공정증서), 각 채권압류 및 추심명령 신청서, 각 채권압류 및 추심명령 결정서, 피고인 3이 피고인 1에게 보낸 휴대전화 문자메시지, 지급명령, 피고인 3이 자신의 부하인 공소외 4에게 보낸 이메일, 위 이메일에 첨부된 금전대차계약서, 공소외 4가 피고인 1에게 보낸 이메일과 그 첨부문서, 공소외 4가 그 후 피고인 1에게 다시 보낸 이메일과 그 첨부문서, 공소외 4가 또 다시 피고인 1에게 보낸 이메일과 그 첨부문서, 2008. 10. 22.경 공소외 4가 피고인 1에게 보낸 이메일과 그 첨부문서, 2008. 10. 24. 인증서(채무금이행계약서, 경영자문 및 투자컨설팅 계약서, 공소외 3 회사 이사회의사록, 공소외 1 회사 이사회의사록), 채무금이행계약서, 경영자문 및 투자컨설팅 계약서, 공소외 3 회사 이사회의사록, 공소외 1 회사 이사회의사록, 각 확인서, 차용 확인서, 공정증서, 배당표, 각 약정서, 피고인 3 문자메시지, 공소외 2와 피고인 1 간의 계약서, 공소외 12 진술서의 첨부자료(이메일과 그 첨부파일), 피고인 1이 피고인 3에게 보낸 이메일, 수사자료(추가) 제출, 공소외 3 회사로부터 △△△△에 3억 원이 입금된 통장사본, 수사자료 제출(피의자 피고인 3 주장에 대한 허위사실 입증), 공소외 1 회사와 공소외 3 회사 간의 무담보 연대보증 사례, 각 임시주주총회결과, 피고인 1이 피고인 3에게 보낸 공소외 1 회사 업무관련 이메일 내용, 피고인 1, 3, 피고인 3의 친형 공소외 22 간의 이메일 내역, 채무부존재확인서, 각 인증서, 내용증명 우편물(통보서), 채권양도 통지서, 위임장, 인감증명서, 재직증명서, 각 금전대차계약서, 경영권 양수도양해각서, 이사회의사록, 대법원 사건진행내용, 공소외 3 회사자금계획, 각 이체확인증, 일반발행사채 사용 내역, 각 통장사본, 각 거래내역조회, 텔러거래건별 상세조회, 주요경영사항 신고, 2008. 9. 18. 금전대차계약서 정산내역, 정정신고(보고), 약속어음(6억 6천) 사본, 소액공모 공시서류, 위탁계좌 타사대체출고 확인증, 이전 사건 피고인 1 피의자신문조서, 공소외 23 주식계좌, 공소외 4 주식 대체내역서, 피고인 3 이메일, 피고인 3 문자메시지, 피고인 4 각서, 이행각서, 거래내역 통장사본, 각 차용증, 사실확인서, 공소외 10 확인서, 거래내역 통장사본, 2008. 7. 16. 이사회의사록, 공소외 12가 공소외 4에게 보낸 이메일, 회사보유통장 및 잔액현황(2008. 7. 17. 기준), 일일자금 입출금 현황 및 지출계획, 등기사항전부증명서(현재사항), 등기사항전부증명서(말소사항 포함), 피의자신문조서(제2회), 피고인 3 증인조서, 공소외 24 주식회사 공시자료, 공소외 25 증인조서, 자료설명 및 진술서, 수사보고(피고인 4 공소외 1 회사 급여수령현황 첨부), 공소외 1 회사 급여수령현황 1부, 이메일(피고인 1이 공소외 2에게 보냄), 각 계약서, 수사보고(공소외 12 이메일 발송 내역 첨부), 공소외 12 G메일 발송내역, 경영권 양수도계약(초안), 참고자료 제출, 각 이사회 의사록, 유동성 거래내역 조회, 각 인도네시아 석탄 관련 선급금 내역, 거래내역 조회, 개인별 출입국 현황, 수사보고(전표 사본 첨부), 우리은행 계좌 거래내역, 각 차입증, 판결문( 10고합81, 225, 448 중앙지법 ), 문자메시지, 피고인 1이 피고인 3으로부터 받은 휴대폰 문자메시지, 공소외 4가 피고인 1에게 보낸 온 이메일, 공소외 21 주식회사계약서를 첨부하여 보내온 이메일, 하나은행 거래내역, 2008. 7. 31. 문자메시지, 사실확인서(공소외 26), 각 증인신문조서(공소외 26), 신주인수권행사가액의 조정, 신주인수권부사채 발행결정, 증인신문조서(공소외 25), 증인신문조서 2부(피고인 3), 공소외 3 회사 계좌거래내역, 전표 2장, 금전소비대차계약서, 증인신문조서(공소외 27), 회계전표 2장(1장은 피고인 2 사인 누락, 1장은 피고인 2 사인이 되어 있음), 각 공소외 3 회사 법인 계좌, 회계원장, 60억 원짜리 약속어음 공정증서, 80억 원짜리 약속어음 공정증서, 이메일 내역 3창, 금전대차계약 인증서, 종합매매거래내역(장기보관), 피의자신문조서(피고인 1), 법인명의사용 확인서 인증서, 공소외 28 주식회사 명의의 공문 2부, 금전대차잔액확인서, 2008. 5. 6. 계약서, 2008. 5. 20. 약정서, 2008. 5. 30. 공증계약서, 2008. 6. 11. 이행각서, 2008. 7. 16. 이사회의사록 2부, 2008. 7. 25. 차용증, 2008. 7. 30. 차용증, 2008. 8. 14. 투자계약서, 2008. 5. 9. 차입증, 약속어음 공정증서 2부, 임시주주총회결과(2008. 6. 27), 임시주주총회결과(2008. 9. 16), 법인등기부등본(공소외 29 주식회사, 공소외 30 주식회사, 공소외 31 주식회사, 공소외 5 회사), 유상증자 일정표, 신고서 작성을 위한 준비서류, 명함사본(공소외 32, 33, 25), 유상증자 결정, 주요사항보고서/거래서 신고의무사항, 정정신고(보고), 등기사항전부증명서(공소외 1 회사), 경영권양수도계약(초안, 2008. 10. 17.), 채무금이행계약서 초안(2008. 10. 22.), 채무금이행계약서(2008. 10. 24.), 임시주주총회결과 공시자료, 사외이사 중도퇴임, 임원 및 직원 등에 관한 사항, 수협통장 사본, 각 증빙자료 제출, 각 사진, 각 증인신문조서(피고인 3), 불기소장(2009형제134313호), 수사보고(고소인 공소외 2 제출 자료 첨부), 사건기록(2009형제134313호) 사본 1부, 불기소장, 고소인 진술조서, 피고인 3, 1 각 피의자신문조서(대질), 피고인 3에 대한 각 경찰피의자신문조서, 피의자 추가 진술서, 고소인 진술서, 피고인 2 진술서, 공소외 3 주식회사 진술서, 미국유전수익지분 배당현황, 미국유전수익지분 직접수령 현황, 차입금 정산내역, 피고인 3 사주인 회사 현황, 통보서(피고인 3 증거조작 입증 자료), 답변서(피고인 3 증거조작 반박 자료), 명함, 법인카드 사용내역, 토지매입 어음발행 내역, 토지등기부등본, 법인등기부등본, 50억 원 수표번호, 공증계약서, 재무컨설팅 용역계약서, 송금 영수증, 양해각서, 각 자기앞수표 사본, 통장사본 공소외 34 주식회사, 각 영수증, 수표번호, 입금 영수증, 요구불 거래내역 의뢰 조회표, 각 회계전표, 세금계산서, 각 거래내역 명세표, 업무 위임 계약서, 사업자등록증, 입출금표, 통장사본(하나은행), 어음발행내역, 약속어음 사본, 공소외 3 회사 통장거래내역 집계표, 각 유동성 거래내역조회, 기업자유거래 명세표, 당좌예금, 2008. 8. 14. 공소외 35 법무법인 공증번호 480호, 2008. 9. 1. 공소외 3 회사 임시주총 소집결의(금융감독원 전자공시시스템 출력) 및 2008. 10. 20. 공소외 3 회사 임시주총결과 공시(금융감독원 전자공시시스템 출력), 2008. 11. 17. 차용확인서, 2008. 11. 29. 고소인(이메일 주소 1 생략)이 피고소인 메일(이메일 주소 2 생략)로 보낸 자금스케줄 계획서, 2009. 9. 24. 대전지방법원 천안지원 2009타기898호 사건 출력물, 2009. 9. 29. 고소인과 피고소인이 합의한 약정서, 2009. 9. 20. 금융감독원 전자공시, 서울동부지방법원에 지급명령(채무자 공소외 1 회사) 신청, 차용확인서 사본, 정산내역 사본, 합의서 사본, 채권양도계약서 사본, 피고인 3, 1 피의자신문조서(대질), 공소외 19 진술서, 경영권양수도 양해각서, 2008. 5. 9. 이체확인증, 후일 2008. 6. 27. 작성된 금전소비대차계약서, 2008. 6. 27. 이체확인증, 금전소비대차계약서, 2008. 9. △△과 공소외 3 정산서, 공소외 8에 발행한 약속어음 1,500,000,000원 사본, 중앙지방법원 2009가합13404호 사건진행내역서, 2008. 7. 30. 660,000,000원 차용증, 출금전표, 2008. 8. 4. 공소외 3 회사 발행 약속어음(공소외 6 주식회사), 공소외 6 주식회사 차입 결과 보고, 차용금 증서, 2008. 8. 5. 작성된 공소외 3 회사와 △△△△ 정산서, 2008. 10. 24. 인증서, 자동차 시설대여(리스)계약서, 주식담보대출약정서(공소외 36 주식회사 공소외 7의 채무자 피고인 2, 4의 공소외 3 회사 인수대금 차입), 2009. 8. 20. 공소외 1 회사 공시 및 확인서(피고인 1, 공소외 12), 공소외 28 주식회사(피고인 3), 피고인 2, 1 3인 간에 작성했던 차용확인서(6,000,000,000원), 2008. 10. 1. 투자계약서(변경), 2008. 9. 24. 송금내역서(291,658달러 40센트), 2009. 6. 16. TEXAS 유정판매대금 정산서, 2009. 6. 1. Partial Assignment of oil and gas lease(Pat#1), 발행처 : Fayette County, Texas, 2009. 6. 1. Partial Assignment of oil and gas Grant leases(Grant 1H), 발행처 : Montague County, Texas, 2009. 6. 3. Partial Assignment of oil and gas lease Threadgill#1 leases(Threadgill #1), 피고인 3, 1 피의자신문조서(2회, 대질), 고소인 진술서, 공소외 59 주식회사 유정등기 및 배당현황에 대한 확인서, 2009. 9~11. 공소외 37 주식회사 유정수익 배당현황, 인증서(등부 2010년 제247호), 각 고소대리인 의견서 첨부자료, 고소인 진술서 첨부자료, 각 피고인 3 변호인 의견서 첨부자료, 증거자료 제출 설명서

Application of Statutes

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

A. Defendant 1

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 356 and Article 355 (1) of the Criminal Act [Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010)] Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 356 and Article 355 (2) of the Criminal Act [the maximum of the punishment shall be governed by the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010); Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 10259, Apr. 15, 201); Article 35 (2) and Article 301 of the former Criminal Act shall apply mutatis mutandis.

B. Defendant 3

Article 3 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 356, Article 355 (2), and Article 30 of the Criminal Act [Selection of Imprisonment with prison labor, and the upper limit of the punishment shall be governed by the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010)]

1. Aggravation for concurrent crimes;

Defendant 1: former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Aggravated Punishment, etc. of Specific Economic Crimes (Aggravated Punishment, etc. of Specific Economic Crimes (Aggravated Punishment of Breach of Trust) for the sake of the largest joint and several sureties)

1. Discretionary mitigation;

Defendant 1: Articles 53 and 55(1)3 of the Criminal Act (see, e.g., the confession of the crime of lending, the primary crime, and the victim's not wanting to be punished)

Judgment on the assertion of Defendant 3, 1 and each defense counsel

1. Facts of recognition;

According to the above evidence, the following facts are acknowledged.

A. The acquisition by Defendant 4 and 2 of Nonindicted Co. 3

1) On March 208, Defendant 4: (a) decided to take over Nonindicted Co. 3, a KOSDAQ-listed company (hereinafter “Nonindicted Co. 33”) along with Nonindicted 39, etc. to take over the acquisition fund for the purpose of acquiring the shares of Nonindicted Co. 38 (hereinafter “Nonindicted Co. 38”) holding gold mines and hotels, etc. in Gunnia; and (b) requested Defendant 4 to lend the acquisition fund to Defendant 3, a bondholder; and (c) Defendant 4 provided explanation of the said gold business to Defendant 4 as the acquisition fund cycle with Defendant 4.

2) However, unlike the plan, Nonindicted 39 did not raise funds, and Defendant 4 suggested that Defendant 2 would acquire the Nonindicted Company 3 together with Defendant 2, and Defendant 2 accepted it. Defendant 2 entered into a contract for acquisition of shares and management rights with Nonindicted 8 and Nonindicted 34 Co. 3 (hereinafter “Nonindicted 34”) who is the former representative director of Nonindicted Company 3 (hereinafter “Nonindicted 34”) on May 8, 2008, and paid 18 billion won in price to acquire shares and management rights.

3) Since Defendant 2 and Defendant 4 had little amount of funds, the above acquisition price was ① KRW 7.5 billion from Defendant 3, ② Nonindicted Co. 40 (hereinafter “Nonindicted Co. 40”) borrowed KRW 6.5 billion (the loan interest KRW 500 million from Defendant 3) as the acquisition fund as security from Nonindicted Co. 3’s stocks from Nonindicted Co. 40 (hereinafter “Nonindicted Co. 40”) and ③ the remaining KRW 4 billion was treated as borrowing KRW 9 billion from Nonindicted Co. 8 as security and acquired Nonindicted Co. 3’s stocks from KRW 4 billion.

4) On May 8, 2008, Defendant 2 acquired 3 million shares of Nonindicted Co. 3, which were held by Nonindicted Co. 8, in its own name, at KRW 15.5 billion. On May 30, 2008, Defendant 2 acquired 60,615 shares of the above shares in Defendant 4 and Nonindicted Co. 15 in the name of Defendant 4 and Nonindicted Co. 15 billion. On June 27, 2008, Nonindicted Co. 3 held a temporary general meeting of shareholders on June 27, 2008, and resigned Nonindicted Co. 8 in the representative director, and Defendant 2 appointed Defendant 2 as a director, Nonindicted Co. 41, 42, and Nonindicted Co. 43 and 44 as auditors. Defendant 2 took overall control of Nonindicted Co. 3’s business as the largest shareholder or manager (the largest shareholder, etc. of Nonindicted Co. 3’s business type) and was actually involved in the management of the company.

5) In relation to the acquisition of Nonindicted Co. 3, around April 2008, Defendant 4 borrowed KRW 5 billion from Defendant 3 as the fund for acquiring the shares and the management right of Nonindicted Co. 3 (the amount including KRW 2 billion as the contract deposit provided from April 15, 2008, and the consulting cost is deducted from the consulting cost. The above amount was repaid until the date one month has elapsed from the date of this contract for acquiring the shares and the management right of Nonindicted Co. 3. In addition, Defendant 4 concluded an agreement with Defendant 3 to participate in the name of Nonindicted Co. 3 (1.5 billion won) in the capital increase issued by a third party of Nonindicted Co. 29 (the designation of Defendant 3) or to purchase the common shares equivalent to KRW 1.5 billion held by the shareholders of Nonindicted Co. 29 (the designation of Defendant 3) in the name of Nonindicted Co. 3.

6) On May 6, 2008, Defendant 4 borrowed KRW 3.5 billion (including KRW 2 billion as the above contract deposit) from Defendant 3 as the largest shareholder and the managerial right holder of Nonindicted Co. 3 as funds necessary for acquiring the shares and the management right of Nonindicted Co. 3. Defendant 4 made a total of KRW 5.5 billion to Defendant 3 (=3.5 billion + interest KRW 500 million + interest KRW 1.5 billion + unpaid fees related to M&A sexual company 1.5 billion) until May 8, 2008, and the remainder of KRW 4.5 billion until May 29, 2008. Defendant 4 and Nonindicted Co. 39 (the largest shareholder in the form of notice to the largest shareholder) concluded a notarized promissorysory note with Defendant 4 in relation to the above joint and several debt obligation of Defendant 4 and Defendant 39 (the management manager of Nonindicted Co. 3’s company until the date of the provisional shareholders’ meeting).

(7) On May 8, 2008, Defendant 2 provided 2.7 billion shares of Nonindicted Co. 3 as collateral from Nonindicted Co. 40, a person who was a person holding a pre-registered bonds, and provided 6.6 billion won due on June 7, 2008, and agreed to preferentially repay 2 billion won until May 19, 2008.

8) After May 27, 2008, Defendant 2 offered 2.7 billion won of the shares of Nonindicted Co. 3 as security by Nonindicted Co. 36 (hereinafter “Nonindicted Co. 36”) and borrowed 7 billion won as of August 26, 2008 at the due date for repayment. On the same day, Defendant 2 paid 6.13 billion won of the above borrowed amount as of August 26, 2008 to Nonindicted Co. 40 in the name of repayment of the above principal and interest.

Article 5 of the agreement with the above non-indicted 36 of the agreement provides that “Defendant 2 shall maintain the collateral maintenance ratio at least 110% of the borrowed amount on the basis of the closing price of each day until the borrowed amount is repaid, and shall be supplemented by the following day at the time of shortage (in cash or stocks). If the debtor 2 fails to comply with it, the creditor non-indicted 36 may sell the mortgaged stocks immediately without prior consent and preserve the principal and interest of the bond.”

9) On May 30, 2008, Defendant 2 withdrawn KRW 5 billion from the transfer of Nonindicted Co. 24 to the account of Nonindicted Co. 45 to Nonindicted Co. 38 for advance payment or deposit money for KRW 4,000 (shares 40%), and Defendant 4 deposited KRW 5 billion out of Defendant 2 and Defendant 4’s debt, such as loan money, etc., to Defendant 3, with Defendant 2 and Defendant 4.

10) On May 30, 2008, Defendant 3 transferred KRW 2.5 billion to the account of Nonindicted Company 34 with the acquisition price for Nonindicted Company 3’s shares 6,635 shares on May 30, 2008 in the name of Defendant 4 and Nonindicted Company 15 (director of Nonindicted Company 1) from among KRW 5 billion remitted as above on May 30, 2008, Defendant 3 used KRW 600 million to repay the same amount of debt to Nonindicted Company 3’s bond business operator (Nonindicted Company 46) on behalf of the same amount of debt.

On the other hand, Defendant 2 received KRW 1.5 billion from Defendant 3 as a check, and paid the above shares of Nonindicted Company 3 (three million shares) and the acquisition of management rights to Nonindicted Company 3 as part of the balance of the contract around June 11, 2008.

11) On May 30, 2008, Defendant 2 and 4: (a) borrowed KRW 5.488 billion from Defendant 3; and (b) out of the principal and interest of KRW 6.03 billion, KRW 2.5 billion shall be repaid by June 16, 2008; (c) the remaining KRW 3.53 billion shall be paid by June 30, 2008; (d) the entire passbook, corporate seal impression, and other seal impression and passbook of Nonindicted Co. 3 shall be managed by Defendant 3 or Defendant 3’s representative until the total amount of principal and interest is repaid; and (e) written contract in which Defendants 2 and 4 affixed the above debt of Nonindicted Co. 3; and (e) written contract in which Nonindicted Co. 3’s personal seal and seal were affixed to Defendant 2, who is not Nonindicted Co. 3, 300,000; and (e) written written contract in which the above written contract was notarized.

From June 27, 2008, Nonindicted 4 kept the corporate seal impression, employee identification, bank passbook, and bill book book book of Nonindicted 3 from around June 27, 2008 (the date of the appointment of the representative director of Nonindicted 3 Company by Defendant 2). Under the above agreement, Nonindicted 4 dealt with the affairs related to the funds of Nonindicted 3 as his representative

12) On June 11, 2008, Defendant 4 and 2 paid KRW 7 billion to Defendant 3 under the name of Defendant 2, who is the management manager of Nonindicted Company 3, with the payment of the principal and interest of KRW 6.3 billion up to June 16, 2008, including KRW 2.5 billion, and KRW 1/2 of the warranty against Nonindicted Company 24 owned by Defendant 3 without compensation, until June 30 of the same month, including KRW 2.5 billion, and KRW 6 billion, which added KRW 970 billion to KRW 7 billion, and Defendant 4 prepared a letter of performance that the said debt is jointly and severally guaranteed.

13) Around July 8, 2008, Defendant 2 entered into a contract on the management of the issuance of new shares with Nonindicted Company 47 and the representative of the issuance of the private equity bonds with Nonindicted Company 47 (hereinafter “Nonindicted Company 47”) upon Defendant 3’s introduction, and received the transfer of the subscription price of KRW 5.5 billion from Nonindicted Company 47 on July 9, 2008 to Nonindicted Company 25 (hereinafter “Nonindicted Company 47”). Nonindicted Company 47 planned the subscription price for new shares and the representative of the issuance of the private equity bonds: Provided, That since the replacement of Nonindicted Company 3’s factory equipment in Gangwon-do is urgently needed, Defendant 2 acquired the private equity bonds with KRW 5.5 billion, and paid the subscription price of KRW 5.5 billion from Nonindicted Company 47 on July 9, 2008.

Defendant 2 remitted the amount of KRW 5 billion from among them to one bank account of Nonindicted Co. 48 (Defendant 4 in fact controlled by Defendant 4), and Nonindicted Co. 4, upon receiving Defendant 4’s order, withdrawn a total of KRW 5 billion from the said account of Nonindicted Co. 48 on the same day, and remitted the amount of KRW 5 billion from Defendant 2 and Defendant 4 to the account of △△△ 3 on the same day, and repaid KRW 5 billion out of the amount of debt, such as the borrowed money, against Defendant 3.

14) On July 11, 2008, Defendant 2 and Defendant 4 paid the unpaid debt KRW 1.8 billion as of July 11, 2008 (i.e., remaining debt KRW 400 million + interest KRW 700 million on the acquisition price of forfeited stocks deposited in Nonindicted Company 47 + KRW 700 million) up to September 8, 2008. Nonindicted Company 3 jointly and severally guaranteed the above debt, and issued and delivered a promissory note of KRW 1.8 billion at the face value of Nonindicted Company 3 to secure the performance of the above debt. Nonindicted Company 3 concluded a joint and several surety agreement with Nonindicted Company 3 on September 47, 2008, with Nonindicted Company 3’s personal and several surety’s checks (amount and KRW 400 million) to which Nonindicted Company 3 will pay for new shares issued from Nonindicted Company 4.3 billion, Defendant 3’s personal and several surety, Defendant 31 and Defendant 380 billion’s personal and joint surety.

B. Paid-in capital increase of Nonindicted Co. 3

1) As seen earlier, on July 8, 2008, Defendant 2 entered into a contract for total acceptance of forfeited shares and a contract for underwriting of unsecured shares worth KRW 5.5 billion between Nonindicted Company 47 and Nonindicted Company 47 on the introduction of Defendant 3, after Nonindicted Company 3’s allocation of forfeited shares to Nonindicted Company 3, and received KRW 5.5 billion from Nonindicted Company 47 on July 9, 2008. Nonindicted Company 3 announced capital increase through a resolution of the board of directors on July 8, 2008 (the scheduled date of payment of forfeited shares September 5, 2008).

In relation to this, the non-indicted 25, who was in charge of the non-indicted 47 company financing team at the time, was present as a witness of the related case (Seoul Central District Court Act 2010Dahap81). around May 20, 2008, the non-indicted 47 was requested by the defendant 3 to be in charge of the representative director of the non-indicted 3 company's capital increase. Accordingly, since June 27, 2008, the non-indicted 2 was appointed as the representative director, the non-indicted 3, 2, and 4 entered the time, amount of capital increase, and the method of capital increase. In particular, the non-indicted 47 company's capital increase was stated with the defendant 3 and 4 as to the above 5.5 billion won of the above 47 company's capital increase, the defendant 3 was in charge of the above 5.5 billion won of the capital increase, and the defendant 25.35 billion won of the above 5.455 billion won of the money increase.

2) On August 27, 2008, Defendant 2 loaned KRW 2.7 billion from Nonindicted 7 to the major shareholder’s subscription for capital increase with respect to Nonindicted 3’s capital increase (Defendant 2, 4, and Nonindicted 15’s share 7) (the household payment form, so-called “the household payment form,” and so-called “the household payment”).

3) After September 8, 2008, Nonindicted Co. 3 transferred the amount of KRW 8.7 billion paid for capital increase to Nonindicted Co. 3’s company to Nonindicted Co. 3’s corporate passbook (pass. 1 omitted). On the same day, Nonindicted Co. 3 transferred the amount of KRW 2.912.5 million equivalent to the amount of the debt to Defendant 3, who jointly and severally guaranteed on July 11, 2008 (=the remaining debt amount of KRW 2.582.5 billion + the additional amount of KRW 30 million + the additional amount of KRW 30 million + the additional amount of KRW 30 million) to Nonindicted Co. 5 (the previous company’s mutual name before the change), and on the same day, the said amount was returned to Nonindicted Co. 3’s account (S.C. 2. 2.5 billion omitted) again, and the said amount was transferred to Nonindicted Co. 3’s account again. 3 (S. 2.38388).

Defendant 2 and Defendant 4 paid KRW 5 million to the said money received from Defendant 3 on August 27, 2008 (the principal 2.7 billion + interest KRW 270 million + interest KRW 270 million) borrowed from Nonindicted 7 to Defendant 1 on August 27, 2008 (the withdrawal of the said money by Nonindicted 4).

4) At the time, Nonindicted Co. 3’s handbook was kept by Defendant 3 (on July 11, 2008 between Defendant 2, 4, and Defendant 3) pursuant to a monetary lending contract between Defendant 3 and Defendant 3, and there was no signature from Defendant 2 on the account slip related to the withdrawal on September 8, 2008 (on September 8, 2008, evidence No. 8, evidence No. 3875, 3876, evidence No. 201, evidence No. 3366), and such transfer and withdrawal were deemed to have been made by Nonindicted Co. 4. In this court, Nonindicted Co. 4 stated that the above process was conducted through consultation between Defendant 4, 2, and 3.

Meanwhile, in relation to the audit of Nonindicted Co. 3’s accounts, Defendant 4, 2, and 3, etc. on September 2008, in relation to the remittance of KRW 2.58,250,000 to Nonindicted Co. 5, Nonindicted Co. 3, etc., recorded the account of lending Nonindicted Co. 3 to Nonindicted Co. 5 (e.g., September 30, 2008) and the minutes of the board of directors, and recorded the minutes of the board of directors. On September 26, 2008 and September 29, 2008, the above KRW 2.582,50,00 from Nonindicted Co. 5 to Nonindicted Co. 3, and the said money was immediately transferred to the account of Nonindicted Co. 28 under the pretext of advance payment.

In addition, Nonindicted Co. 47 withdrawn the principal amount of KRW 5.5 billion and interest from the above subscription price for capital increase.

5) The contents of Nonindicted Co. 47’s internal goods made up at the time of issuing new shares with respect to Nonindicted Co. 3’s incentives of Paragraph 7 include “PS 47: Nonindicted Co. 31, Nonindicted Co. 498) and matters of contribution: Matters of contribution: “A decision making on the conclusion of a contract with Nonindicted Co. 3, a issuing company (Evidence 5, 2513, 2514, Evidence No. 2011, 5, 2513, and 2514)” (Nonindicted Co. 31 is a company operated by Defendant 3).

6) On July 2008, if the forfeited stocks were to be held between Nonindicted Company 47 and Nonindicted Company 47, Defendant 3 decided to accept all forfeited stocks within the limit of 3.5 billion won deposited in Nonindicted Company 47, according to an agreement, around September 5, 2008, pursuant to the agreement, Defendant 3 acquired forfeited stocks at KRW 2.47 billion per share ( KRW 1,350 per share) in the name of △△△△, and became two shareholders of Nonindicted Company 3 (the disposal date of new stocks shall be September 16, 2008; September 18, 2008).

(7) Even after July 11, 2008, Defendant 3 lent money several occasions to Nonindicted Co. 3 (Evidence 6:3047-305 pages). Defendant 3 additionally lent KRW 60 million to Nonindicted Co. 3 on September 9, 2008, and KRW 3.15 billion (= KRW 2.915 billion loan on September 8, 2008 + KRW 170 million loan on September 5, 2008 + interest 170 million + interest 17,450,000 won). The said promissorysory note was delivered to Nonindicted Co. 5 and Nonindicted Co. 3 as a collateral for the instant loan lending contract. The said promissorysory note was returned to Nonindicted Co. 5 and Nonindicted Co. 3 after September 18, 2008.

C. The acquisition of Nonindicted Co. 1 by Nonindicted Co. 2

Nonindicted Co. 1 (formerly, △△△△△△△ Company; hereinafter “Nonindicted Co. 1”) was listed on the KOSDAQ market around June 2006, when it was engaged in the production of L CD and semiconductor inspection equipment and resources development business. Nonindicted Co. 2 entered into a contract with Nonindicted Co. 50 to acquire Nonindicted Co. 1 according to Defendant 4’s proposal and to take over the management right of Nonindicted Co. 1’s shares at KRW 4.1 million between Nonindicted Co. 1 and Nonindicted Co. 50, who was the former largest shareholder of Nonindicted Co. 1, around October 29, 2007.

The above acquisition fund was entirely raised by Nonindicted 2, and Defendant 4, from January 2008, did not take full charge of the coal development project in Indonesia at the above company, and was given instructions from Nonindicted 2 on duty.

D. Defendant 1 and Defendant 3’s acquisition of Nonindicted Company 1

1) From April to May 5, 2008, Defendant 1 and Defendant 3 came to know each other through the introduction of Defendant 4. Defendant 4 told Defendant 3 that Nonindicted Company 1 went to the M&A market, and Defendant 1 started to set the ratio between Nonindicted Company 2 and the actual owner of Nonindicted Company 1 from the end of June 2008, in accordance with Defendant 3’s proposal that Defendant 1 would provide operational funds after the acceptance.

On the other hand, around June 4, 2008, Nonindicted Co. 1 supplied to Nonindicted Co. 51 Company due to poor quality of coal, which was insufficient funds to terminate the contract (2206 pages of evidence No. 201 Gohap336). Nonindicted Co. 2 offered Nonindicted Co. 1’s stocks as security at the time of acquiring Nonindicted Co. 1’s bonds from Nonindicted Co. 50 at the time of acquiring Nonindicted Co. 1’s bonds from Nonindicted Co. 2, who failed to repay corporate bonds, was subject to the opposite trade from the bondholder.

2) Defendant 1 conducted an actual inspection of Nonindicted Company 1’s obligations to acquire Nonindicted Company 1 (report on the progress of the inspection to Defendant 3), Defendant 1 is responsible for Defendant 2’s existing obligations in the course of discussions on the terms and conditions of acquisition with Nonindicted 2, Defendant 9, etc. invested in Nonindicted 2 is immediately refunded in cash, and Defendant 1 discussed ways to pay KRW 3 billion to Nonindicted 2 at the cost of transfer of management rights (the amount of additional transfer proceeds) after one year (the amount of transfer proceeds is not paid).

3) Around August 28, 2008, Defendant 1 and Nonindicted 2 concluded a contract for acquiring Nonindicted Company 1 with the end 9). Under the above contract, ① (i) the Nonindicted Company 1’s shares 4.1 million shares and management rights held by Nonindicted Company 2 were transferred to Defendant 1 as of July 16, 2008, and ② (ii) the Nonindicted Company 2 succeeded to the obligation to repay the borrowed money in the name of the company or an individual’s name when acquiring the Nonindicted Company 1, and then repaid the borrowed money until December 30, 2008 (the debt was KRW 9.1.8 billion and KRW 1.565 million (the debt was not a personal debt of Nonindicted Company 2, but it was not related to Nonindicted Company 1’s personal debt, and Defendant 1 succeeded to Nonindicted Company 1’s general meeting of shareholders as of July 16, 2008, and the auditor was appointed by Nonindicted Company 31.5 billion won and the auditor of Nonindicted Company 21.28 billion.

As to the above acquisition agreement, in this court, Non-Indicted 2 stated that the above contract with Defendant 1 was not an ordinary acquisition of management rights, but rather a somewhat exceptional contract (including acquisition of personal debts) for which he received management rights premium (including acquisition of stocks), and that Non-Indicted 1’s shares were not held by the bonds company at the time of the above contract, and that he did not own the shares of Non-Indicted 1’s previous shares at the time of the above contract, and he was aware that he again recovered the shares for which he was traded by the bonds company and opened them in his name. Since the acquisition of management rights with Defendant 1 was carried out after the contract, he did not have any relation to the shares he held in his name.

On the other hand, around July 23, 2008, there was a disturbance, such as the misunderstanding of gender between Defendant 3 and Nonindicted 2, on the grounds that the management premium demanded by Defendant 1 and Nonindicted 2 in the process of concluding the contract between Defendant 2 and Nonindicted 2 was excessive.

4) Defendant 1 became the manager of Nonindicted Company 1 from July 17, 2008, and was elected as the representative director of Nonindicted Company 1 at the general meeting of shareholders on September 16, 2008. Defendant 1 resigned from Defendant 1 on the recommendation of Defendant 1, Nonindicted 52 (Resignation on November 17, 2009), Nonindicted 54 (Resignation on March 31, 2009), and Nonindicted 52 (Resignation on March 11, 2009), and Nonindicted 53 (Resignation on December 11, 2009) (Resignation on November 23, 2009), Nonindicted 1, Nonindicted 12 (Resignation on September 23, 2009), Nonindicted 54 (Resignation on March 31, 2009), and Defendant 1 resigned from his office on the recommendation of Defendant 1.

On the other hand, after the election of directors, Defendant 3 confirmed that the registration of directors was made to Nonindicted 14 employees of Nonindicted Company 1.

5) After the above general meeting of shareholders, Defendant 1, Nonindicted 12, 15, and 53, among the directors of Nonindicted Company 1, work full-time in Nonindicted Company 1, Defendant 4 still remains disadvantageous to the nominal chairperson and completed the coal supply work for Nonindicted Company 51. Defendant 3 also handled necessary work in Defendant 4’s office room from July 2008 to November 12, 2008 (the evidence record No. 201541, Nov. 1, 2008).

E. Financial transactions between Defendant 3 and Nonindicted Company 1

1) On March 24, 2008, Defendant 3 was engaged in money transactions between both parties, including lending KRW 800 million to Nonindicted Company 1. However, on May 23, 2008, Defendant 3 and Nonindicted Company 1 decided to repay the remaining obligations of Nonindicted Company 1 up to June 17, 2008, with the total of KRW 1.5 billion. In that case, Nonindicted Company 1 notarized the promissory note in the name of Defendant 3’s mother.

2) On June 16, 2008, Nonindicted Co. 1’s non-indicted 2, which was apprehended to be unable to observe the above repayment period, requested the extension of repayment by delivering to Defendant 3 a letter of performance to repay the above debt amount in full by July 2, 2008 through Defendant 4. As to the above debt, Nonindicted Co. 2, Defendant 2, and Defendant 4 jointly and severally guaranteed by Non-Indicted. 2, Defendant 2, and 4, but did not pay money by the above payment period.

3) After July 16, 2008, Nonindicted Co. 1 borrowed additional KRW 1 billion from Defendant 3 on or around 16, 2008. Regarding this, △△△ Group 2.8 billion (i.e., the existing debt amount of KRW 1.5 billion + interest KRW 1.5 billion + interest KRW 300 million) entered into a monetary lending contract with Nonindicted Co. 1 (i) to lend money to Nonindicted Co. 16, 2008; (ii) to report the daily situation and deposit status of Nonindicted Co. 1’s company (Article 7); (iii) to deposit money accounts with Nonindicted Co. 1 (Account No. 4 omitted); and (iv) to deposit money accounts with Nonindicted Co. 3 (Account No. 4 omitted); (iii) to deposit money accounts with Nonindicted Co. 1, 2008 (Case No. 1,780 million) and to deposit money accounts with Nonindicted Co. 1, 2008 (Case No. 1,7800 billion won).

Accordingly, on July 16, 2008, Defendant 3 remitted KRW 1 billion to Nonindicted Company 1 (New Bank, Account Number 4 omitted).

4) Thereafter, Defendant 3 transferred KRW 20 million on July 25, 2008, and KRW 600 million on July 30, 2008 to the head of the above new bank in the name of Nonindicted Company 1, and additionally lent additional loans. As to Defendant 3’s loans of KRW 600 million (interest KRW 60 million) on July 30, 2008, Nonindicted Company 1 decided to immediately repay the coal payment from Handong (Nonindicted Company 51), and Defendant 3, Defendant 4, and Defendant 1 jointly and severally guaranteed the above monetary lending contract.

Meanwhile, Defendant 1 received money from Defendant 3, and withdrawn money from Nonindicted Company 1’s account, and paid KRW 1.6 billion to Nonindicted 9 as the recovery of the investment amount (one billion won as of July 16, 2008). Defendant 1 used the remaining money as the fund for the company’s operation.

5) Accordingly, Defendant 3 held the claim amounting to KRW 3.66 billion against Nonindicted Company 1 (i.e., the claim amounting to KRW 2.8 billion up to July 16, 2008 + KRW 2.2 billion on July 25, 2008 + KRW 660 million on July 30, 2008). In this regard, Nonindicted Company 1 agreed to make an investment contract with Nonindicted Company 28 billion on August 14, 2008 with Defendant 3 and agreed to pay the investment amount to KRW 4.7 billion (the above claim shall be the investment amount, and the remaining KRW 1.04 billion shall be paid separately until July 16, 2008) to Nonindicted Company 1 within the period of KRW 333 billion on July 25, 2008, and upon Nonindicted Company 1’s demand to withdraw the investment amount to Nonindicted Company 28 billion within the period of 3.8 weeks.

On the other hand, Defendant 3 received 45% of the shares of Grant Ma1, Thakl Ma1, and Pat 59 Co., Ltd., which are the oil actually produced at the end of June 2009, and received 329,262.51 dollars over six times from October 30, 2008 to April 13, 2009.

6) As seen earlier, on May 27, 2008, Defendant 2 borrowed KRW 7 billion from Nonindicted Company 36 as collateral for 2.7 billion of the shares of Nonindicted Company 3. When Nonindicted Company 3’s share price continuously droped to 12), the representative of Nonindicted Company 36 demanded additional security to Defendant 2. Upon consultation with the Defendants, Nonindicted Company 1 issued private equity bonds worth KRW 7.56 billion around September 9, 2008. Nonindicted Company 7 decided to acquire the above private equity bonds entirely, and deposited KRW 7.56 billion with Nonindicted Company’s account (Account Number (5 omitted) as collateral price) around August 13, 2008. Nonindicted Company 1 and 3.75 billion of the share offering with evidence agreed to have been repaid to Nonindicted Company 371 and 25.75 million of the share offering with Nonindicted Company 1 and 375 million of the share offering (hereinafter “Nonindicted Company 25.5 billion of the share offering”).

Around August 12, 2008, the day before the deposit date, Nonindicted Co. 1 and Nonindicted Co. 3 issued a promissory note of KRW 8 billion in common as security for the issuance of Nonindicted Co. 1’s bonds to Nonindicted Co. 23 (Many children of Nonindicted Co. 7). At the time, Nonindicted Co. 3 was accompanied by Nonindicted Co. 4’s accounting division at the time.

Since Nonindicted 7 lent it as a so-called "plplicker", 30% of the above 7.5 billion won (in fact, the amount of KRW 3 billion) returned to Nonindicted 7 on the pretext of payment fee, and the remaining money was provided to Nonindicted 7 as additional security for Defendant 2's obligation or used as the operating fund of Nonindicted Company 1.

F. Joint and several sureties for Nonindicted Company 1’s obligations on September 18, 2008

1) As seen earlier, around September 5, 2008, Defendant 3 subscribed to KRW 1540,000 per share of KRW 2 billion (1,350 per share) that occurred at the time of capital increase with respect to Nonindicted Company 3’s capital increase.

2) Around September 22, 2008, Defendant 3 (Nonindicted Co. 5) and Nonindicted Co. 3 concluded a loan agreement of KRW 5.29,782,60,00 with Defendant 3 against Nonindicted Co. 3 (i.e., KRW 3., KRW 3.12.45 million + KRW 60 million with respect to the loan of KRW 10 million on September 9, 2008 + KRW 10 million with respect to the loan of KRW 3,50,000 + KRW 360,000 with interest rate of KRW 2,5379,60,000 + KRW 1,500 with respect to the loan of KRW 1,50,000 with Nonindicted Co. 3’s new collateral obligation (hereinafter “No. 1617, Sept. 18, 2008”), the Defendant Co. 3’s new collateral obligation of KRW 1500,000.

3) After October 1, 2008, the debt amount of Nonindicted Co. 5 and Nonindicted Co. 28 (in addition to a joint creditor) was KRW 4.86,325,636,00 (i.e., the debt amount of the instant monetary lending contract in 5.29,7829,600,000 + interest of KRW 18,5420,036 + interest of KRW 18,5420,036 + additional loans of KRW 180,000 on October 1, 2008 - repayment of KRW 80,000,000).

4) On October 24, 2008, the joint and several surety of Nonindicted Co. 3, 199, Nonindicted Co. 5, the joint and several surety of Nonindicted Co. 3, 2008, the amount of Nonindicted Co. 3’s debt 4.98,1713,000 won and the amount of Nonindicted Co. 1’s debt 168,000 won on October 18, 2008, both were jointly and severally repaid to Nonindicted Co. 5, but the amount of KRW 5.14,9717,513 (in the case of Nonindicted Co. 3’s debt repayment, the amount of debt 4.98,17,513 won of Nonindicted Co. 3’s debt 5’s debt , which was the joint and several surety of this case, was transferred to Nonindicted Co. 3 in relation to the repayment of the above debt, and the amount of deposit is the amount equivalent to the above debt 4.98,513 won of Nonindicted Co. 3’s debt 206.

around October 22, 2008, Nonindicted 4 (e-mail address 3 omitted) sent the draft of the instant obligation performance agreement to Defendant 1’s e-mail (e-mail address 1 omitted) (Evidence 2:122-125 pages of evidence No. 201Dahap3366), and the draft was without the same wording as Article 5(3)(iv) of the instant obligation performance agreement, and the said phrase was added following a subsequent revision.

5) On November 17, 2008, Defendant 3 (Nonindicted Co. 28), Nonindicted Co. 3, and Nonindicted Co. 1 determined Nonindicted Co. 28 as the representative creditor of Nonindicted Co. 5 and Nonindicted Co. 28 as the representative creditor of Nonindicted Co. 28 on November 17, 2008, and determined the base debt amount as of November 17, 2008 against Nonindicted Co. 3 Co. 28 as KRW 11 billion. It was repaid until December 16, 2008, but Nonindicted Co. 1 concluded a monetary lending contract with its joint and several sureties, and Nonindicted Co. 1 passed a resolution of the board of directors approving the above contract on the same day.

In addition, Defendant 3 received a written confirmation to the effect that the obligation to be paid by Nonindicted Co. 1 to Nonindicted Co. 28 is KRW 6 billion, and that the obligation to be paid by Nonindicted Co. 1 to Nonindicted Co. 28 and the obligation related to Nonindicted Co. 59 and Nonindicted Co. 21 is separate.

6) Around August 2009, Nonindicted Co. 1 conducted capital increase in the amount of KRW 30 billion in the KOSDAQ market. Of this, the amount of KRW 19.2 billion excluding the money borrowed from the so-called “the early” was actually paid, and around February 5, 2009, Defendant 3, who prepared for the collection of claims against Nonindicted Co. 1 with the execution clause granted on or around August 24, 2009 of the above capital increase for capital increase, which included KRW 4.25 billion in the current investment principal of Nonindicted Co. 59 and KRW 9.3 billion in the instant joint and several sureties’s joint and several sureties’s amount of KRW 6.3 billion, to the extent that Nonindicted Co. 3 and Defendant 1 agreed on the seizure and collection order issued in the name of Nonindicted Co. 5 in the Daejeon District Court’s name, thereby resolving the issue of KRW 15.5 billion in this case’s normalization to the maximum extent possible.

7) Around January 8, 2010, Nonindicted Company 1 was suspended from trading stocks on the grounds of embezzlement, breach of trust, etc. by Defendant 1, a representative director, and finally abolished listing around March 18, 2010 after the examination of de-listing quality.

2. Determination on Defendant 1’s assertion (related to Paragraph (1) 2010 high-priced1437)

A. Summary of the assertion

Defendant 1 paid the funds of Nonindicted Company 1 to Nonindicted Company 9 for personal debt repayment. However, this is because Defendant 3 loaned KRW 1.8 billion to Nonindicted Company 1 and said Defendant 3 promised to repay the debt to Nonindicted Company 9 with the money. After that, Defendant 1 attempted to exempt Nonindicted Company 1 from the obligation when acquiring the management right of Nonindicted Company 1. Accordingly, Defendant 1 did not have any intention to illegally acquire the company’s funds useful.

B. Legal principles

The intention of illegal acquisition in embezzlement refers to the intention to dispose of another person's property in violation of his/her duty for the purpose of pursuing the benefit of himself/herself or a third party as his/her own property, and even if he/she has an intention to return, compensate, or preserve it later, it does not interfere with recognizing the intention of illegal acquisition (see Supreme Court Decision 2004Do5167, Nov. 10, 2006, etc.).

C. Determination

1) According to the facts found above, the following circumstances are recognized.

A) Defendant 1’s obligation to return the investment amount to Nonindicted 9, who succeeded from Nonindicted 2, was the personal obligation of Nonindicted 2 unrelated to Nonindicted Company 1 from the original point of view (acquisition in return for the management right premium).

B) On July 16, 2008, Defendant 3 additionally lent KRW 1 billion to Nonindicted Company 1, and set forth the penalty to resign Nonindicted Company 9 by July 17, 2008 as a matter of penalty, and Nonindicted Company 1 was also subject to a resolution of the board of directors.

C) Defendant 3 additionally lent KRW 20 million on July 25, 2008 and KRW 600 million on July 30, 2008 to Nonindicted Company 1. Defendant 1 withdrawn money from the account of Nonindicted Company 1 and paid KRW 1.6 billion to Nonindicted Company 9 for the recovery of investment money. The remainder was used as the company’s funds.

D) Around July 2008, Defendant 1 stated in the investigative agency that the money that Defendant 3 lent to Nonindicted Company 1 was for the purpose of refunding the investment amount of the investors to Nonindicted Company 2, and that Defendant 3 and Nonindicted 2 were aware of the above contents (the evidence records No. 2010Dahap14733) and Defendant 1 and Nonindicted 9 paid KRW 1 billion to Nonindicted Company 9 among the July 2008, Defendant 1 and Nonindicted 9 received a resignation letter from Nonindicted Company 9.

E) Around July 2008, Defendant 3’s loan of KRW 1.8 billion to Nonindicted Company 1 was reflected in both Nonindicted Company 1’s debt, and on August 14, 2008, Defendant 3’s loan of KRW 3.66 billion was transferred to Defendant 3 for repayment of the above claim. Nonindicted Company 1 transferred KRW 333% of the U.S. suspended portion owned by Nonindicted Company 59, its subsidiary, to Defendant 3.

F) Meanwhile, Defendant 3 stated that there is no promise to exempt Defendant 1 from the obligation of Nonindicted Company 1.

2) Considering the above circumstances, even if it is difficult to recognize the fact of Defendant 3’s agreement on the exemption of obligation as alleged by Defendant 1, as well as even if there was such agreement, Defendant 1’s arbitrary withdrawal of Nonindicted Company 1’s funds and use them for the repayment of his personal debt constitutes a disposal of Nonindicted Company 1’s funds as if they were owned by the Nonindicted Company 1 (the intention of unlawful acquisition of Defendant 1’s funds is not excluded on the ground that Defendant 3’s intervention existed in the process). Even if Defendant 3 was exempted from the obligation after Defendant 3, this is merely an ex post facto preservation, and thus, it does not interfere with

3) Ultimately, Defendant 1’s intent of unlawful acquisition of this part of the crime is recognized.

3. Determination as to Defendant 3’s assertion (related to Paragraph (3) of the facts of crime No. 2011 and 336)

A. As to the assertion that the person who acquired Nonindicted Company 1 on the ground of Defendant 1 is Defendant 4

1) Summary of the assertion

A person who, on the ground of Defendant 1, took over Nonindicted Company 1 from Nonindicted Company 2 on or around July 8, 2008, actually controlled both Nonindicted Company 1 and Nonindicted Company 3 as the owner of Nonindicted Company 3, is not Defendant 4 but Defendant 3.

2) Determination

A) Considering the above facts recognized as well and the following additional facts, the following circumstances are recognized:

(1) Since Defendant 1 was a person who has failed to have a career as his own capital or professional manager, it is practically difficult to acquire the listed company as such with Nonindicted Company 1 without any help from any other person. However, Defendant 1 was believed to have trusted Defendant 3’s financial support and made a contract for acquisition of Nonindicted Company 1, and thus, it was difficult for Defendant 3 to run the Nonindicted Company 1 without any help (the fact that Defendant 1 succeeded to Nonindicted Company 2’s personal obligation, or that Defendant 1 was subject to the suspension of Nonindicted Company 59, which was the main business of Nonindicted Company 1, was the expectation of Defendant 3’s financial support). Defendant 3 and Nonindicted Company 1 made a statement that he had discussed regularly on the management of the Nonindicted Company 1.

In addition, the former owner of Nonindicted Co. 1 stated that Nonindicted Co. 2 finally decided the terms and conditions of sale of Nonindicted Co. 1 in this court was Defendant 3, and Nonindicted Co. 7, a bondholder, had visited Nonindicted Co. 1’s office in order to demand repayment of KRW 7.56 billion, which he lent to Nonindicted Co. 1 on August 13, 2008 from this court, from August 13, 2008. At that time, Defendant 3 had the ability to repay money, and Defendant 3 had been only two to three times.

(2) 공소외 1 회사 인수 계약 체결 과정에서 피고인 1이 2008. 7. 23. 공소외 2에게 보낸 이메일 중에는 ‘ 주13) 계약서 만들었습니다. 사장님이 주신 계약서에서 5조 2항은 삭제하였고요, 2조 9항과 10항은 삽입했는데요, ◁회장이 원하는 것인데 별 무리가 없는 것 같네요...(이하 생략)’라는 문구가 있는데( 2011고합336호 증거기록 3권 1645쪽), 여기서 ‘사장님’은 공소외 2를, ‘◁회장’은 피고인 3을 지칭하는바, 인수 조건에 관하여 피고인 3의 의중이 반영되었음을 알 수 있다.

(3) As seen earlier, Defendant 3 lent KRW 1 billion to Nonindicted Company 1 on July 16, 2008 on the condition that Nonindicted Company 9 and 58 shall resign and pay the penalty if it is violated, on the condition that it shall be disposed of with respect to Nonindicted Company 1’s directors Nonindicted 9 and 58. This shows that Defendant 3 was in mind of securing the management right of Nonindicted Company 1.

On the other hand, in order to borrow KRW 1 billion from Defendant 3, Nonindicted 2 made the minutes of the board of directors meeting on July 14, 2008, and Defendant 3 was unable to lend money without any terms of resignation from Nonindicted 9, and Nonindicted 4 re-drawed the minutes of the board of directors meeting on July 16, 2008, including the contents thereof, and Defendant 3 loaned money (Evidence 9, 4650, evidence No. 201, Jul. 14, 2008) and the minutes of the board of directors meeting on July 16, 2008 were different forms (Evidence 3650, 201, 5, 250, 251, 252). Nonindicted 4 made the minutes of the board of directors meeting on July 201, 208 (Evidence 4, 2010, 3650, 251, 252, 2552).

In addition, between Nonindicted 2 and Defendant 1, 208 and each acquisition by transfer of management rights as of July 23, 2008, the confirmation of Defendant 3’s amount of claims under each acquisition by transfer of management rights as of July 23, 2008 (Evidence 3: 1646-1648 pages, 1652-16 pages) shows that Defendant 3 is a direct interested party to the above contract.

(4) On September 16, 2008, when amending the articles of incorporation of Nonindicted Company 1, Defendant 1 stated that Defendant 3 instructed the same contents as those of several Nonindicted Company 1’s business objectives, which Defendant 3 operates, to put them into the business purposes of Nonindicted Company 1. In fact, Nonindicted Company 1’s business purposes were added to 13 as of September 16, 2008, and Nonindicted Company 2 stated that the medical instruments and lottery businesses are entirely irrelevant to the previous Nonindicted Company 1, and rather, Defendant 3’s business (medical instruments: Nonindicted Company 29, Nonindicted Company 201, 3385, and rehabilitation business: Nonindicted Company 30, Nonindicted Company 201, 336, and 4387, evidence evidence records) are similar to the previous Nonindicted Company 1.

(5) From December 17, 2007 to September 23, 2009, Nonindicted 12, who was an employee or director of Nonindicted Company 1, sent the current status of Nonindicted Company 1 to Nonindicted 4, the accounting director of Nonindicted Company 3, from July 2008 to September 16, 2008 (this point was due to the agreement related to the lending of Nonindicted Company 1 to July 16, 2008). Nonindicted 4 was the representative designated by Defendant 3. Nonindicted 14, 2010, 55, 2010, 1541, 1541, 18, 201, 3361, 207, and 1541, 203, and 345-13, 201, 36, and 146, 30,000,000 won among Defendant Company’s employees, who were Defendant 1 and Nonindicted Company 4 were also the chairman of Nonindicted Company.

(6) As seen earlier, Defendant 1 had conducted an inspection of Nonindicted Company 1’s obligations while preparing for acquisition of Nonindicted Company 1, and reported it to Defendant 3, Defendant 3 appears to have been aware of the overall status of Nonindicted Company 1’s obligations (the provisional attachment, etc. on coal unloaded to Nonindicted Company 51). Defendant 1 was reported through Nonindicted Company 4 until his representative director was appointed, and Defendant 1 confirmed the current status of Nonindicted Company 1 by means of receiving a report directly from Defendant 1 (Evidence 8, 4250, 4251).

(7) 피고인 1이 2008. 11. 29.경 피고인 3의 요구에 따라 피고인 3의 이메일(이메일 주소 2 생략)로 보낸 공소외 1 회사 및 공소외 3 회사의 자금스케줄 계획서 하단에는 “ 주16) 형님 도 지금까지처럼 많이 도와주십시오.. 제 회사가 형님 회사 아닙니까.. 영원한 회장님인데요..^^”라는 내용이 기재되어 있는 점( 2011고합336호 증거기록 1권 456~457쪽), 피고인 3은 자신의 처가 살던 여의도 아파트에 피고인 1이 거주할 수 있도록 한 점(실제로는 피고인 1의 후배들이 거주함), 피고인 3과 피고인 1은 수시로 여러 내용의 문자메시지를 주고받으며 연락한 점( 2011고합336호 증거기록 1권 111쪽, 5권 2590~2592쪽) 등을 고려하면, 피고인 3은 공소외 1 회사의 경영지배인 및 대표이사였던 피고인 1과 사적으로나 공적으로 밀접한 관계를 맺고 업무를 처리해 왔던 것으로 보인다.

(8) 피고인 1이 2008. 8. 8.경 피고인 3에게 공소외 59 주식회사 유정지분의 양도와 관련하여 경영지배인 단계에서의 주요 자산 처분에 관한 배임 문제를 언급하면서 변호사의 자문을 받아보자는 취지로 말하자, 피고인 3은 피고인 1에게 “변호사 같은 놈이 나와 괜한 쓸데없는 소리 지껄이면 피곤하니 월요일 꼭 해라”는 취지의 문자메시지를 보냈고( 2011고합336호 증거기록 1권 52쪽), 이후 공소외 1 회사와의 2008. 8. 14.자 투자계약서가 작성된 점, 공소외 29 주식회사(피고인 3이 운영한 회사) 직원 공소외 16과 공소외 59 주식회사 측 공소외 61 및 공소외 1 회사 공소외 15 사이에 주고받는 이메일의 횟수와 내용( 2011고합336호 증거기록 3권 1380~1418쪽 등 참고), 피고인 3은 스스로 공소외 59 주식회사 유정지분에 관한 현황 파악을 위해 공소외 1 회사의 등기이사가 되었음을 자인하고 있고, 이사 선출 후 수차례 이사 등기여부를 확인한 점 등을 고려하면, 피고인 3은 위 유정지분에 상당한 관심이 있었고, 이와 관련하여 자신의 채권 회수를 위한 범위 내에서 공소외 1 회사의 경영에까지 개입하려는 의도를 가지고 있었던 것으로 보인다.

On the other hand, in relation to the preparation of the investment contract as of August 14, 2008 and the election of the directors of Defendant 3 on September 16, 2008, Defendant 1 stated in this court that “(Defendant 3) first took place as security for the suspended portion, and later changed to the situation where he takes over the suspended portion on August 14, 2008 and takes it over.” The witness (Defendant 1) thought that it would change from the list of directors of Defendant 3 on one occasion because of the change of the intention of Defendant 3, the witness did not appear to have been appointed from the list of directors, on the day of the announcement, with Nonindicted Company 3’s desire and intimidation on the telephone, and the witness received his desire to cooperate or intimidation from the witness on the day of the announcement to Defendant 1 to his non-indicted 3’s non-indicted corporation’s non-indicted corporation’s non-indicted corporation’s non-indicted corporation’s non-indicted corporation’s participation in the business.”

(9) On July 16, 2008, Defendant 3 already concluded a contract with Defendant 1 to take over 33% of the suspension of Nonindicted Co. 59, a main business of Nonindicted Co. 1, which was the main business of Nonindicted Co. 1, and left room for involvement in the decision-making authority of the representative director of Nonindicted Co. 1, such as having the authority to keep the corporate seal of Nonindicted Co. 1 to a person who designates the corporate seal of Nonindicted Co. 1.

(A) Meanwhile, on July 14, 2008, Nonindicted Co. 59 transferred 30,000 USTex PPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPP holding 78,00 US$ 787,000 (see, e.g., exchange rate of KRW 1,022, KRW 797,000,000) to USD 1978,000 (as at the time, USD 201, KRW 3366, KRW 4,1975, KRW 8284-6, KRW 875,00,00,000, KRW 97575,000,000, which was initially transferred to Nonindicted Co. 62, Ltd.) to Nonindicted Co. 3785,5785,000

(B) The total amount of investment in Nonindicted Company 1 is USD 1,30,579 30,000 (201 Gohap 362, 612) and Defendant 3 is finally entitled to KRW 45% of the shares in all mining areas of Nonindicted Company 59, and the shares subject to acquisition with Nonindicted Company 1 and Defendant 3 are assessed as KRW 500,000 (360,000,000,000,000,0000) KRW 1 and KRW 5065,000,000,000,00 KRW 1 and KRW 1 and KRW 506,000,000,000 (see, e.g., Supreme Court Decision 206Da150630,000,000,000,000,000,000 KRW 1 and KRW 1 and KRW 505,005,00,00).

Defendant 33% of the total amount of equity investment in Nonindicted Co. 59 contained in the main sentence, Defendant 3’s purchase amount of KRW 4.39 billion, KRW 2.69 billion, KRW 40 billion, KRW 5.333 billion, KRW 3.66 billion, KRW 4.3 billion, KRW 4.5 billion, KRW 5.998 billion, KRW 3.66 billion, KRW 3.6 million.

(C) Meanwhile, since the remaining relics except for Gat1 and Gat1 in the above Pat2 and Gat2443.30 x 1,000 x 300 x 1,000 x 300 x 1,000 x 300 x 1,000 x 1,000 x 300 x 100 x 306 x 106 x 28,000 x 1,000 x 1,000 x 1,000 x 300 x 5,000 x 1,000 x 1,00 x 5,00 x 1,000 x 25,000 x 1,000 x 6,000 x 1,000 x 25,00 x 208 x 208.

(10) Defendant 3 demanded Nonindicted 15 to Nonindicted Company 15, which was related to the suspended portion of Nonindicted Company 59. Nonindicted 15 refused it, and thereafter Defendant 1 called Defendant 15’s order to Nonindicted 15 and said that he would no longer take charge of the business related to the floating business, and Nonindicted 15 did not actually perform the floating business (Evidence 7, 3598, 3739, 3787).

(11) On August 1, 2009, Defendant 3 sent a text message to Defendant 1, stating, “Around August 1, 2009, Defendant 3 sent to Defendant 1 a text message stating, “I can see that the Defendant 4 was only the Defendant 1 was his own company and that the Defendant 1 was divingd. I can see that the Defendant 4 was his own company, and then may come up to the issue of management right.” (Article 111 of the evidence record No. 201536). Accordingly, Defendant 3 also told Defendant 4 that Defendant 4 was left to Defendant 1 as his own company, and Defendant 1 was the Defendant (this case’s assertion is basically consistent with Defendant 3’s assertion).

(12)In light of the following circumstances with respect to Defendant 4, i.e., Nonindicted Company 1, Nonindicted Company 2, who was unable to know that Nonindicted Company 1 was Nonindicted Company 3 and Nonindicted Company 4 was at the time of Nonindicted Company 1’s entry into Nonindicted Company 3 and Nonindicted Company 2’s entry into an office with Nonindicted Company 4 and Nonindicted Company 1, who was in fact at the time of Nonindicted Company 1’s entry into the office of Nonindicted Company 3 and Nonindicted Company 2’s entry into the office of Nonindicted Company 4 and Nonindicted Company 6’s entry into the office of Nonindicted Company 1, Nonindicted Company 4, and Nonindicted Company 1, Nonindicted Company 1, Nonindicted Company 2, Nonindicted Company 3, and Nonindicted Company 2, Nonindicted Company 4, Nonindicted Company 6, and Nonindicted Company 1, Nonindicted Company 4, Nonindicted Company 6, and Nonindicted Company 1, Nonindicted Company 6, and Nonindicted Company 2, Nonindicted Company 6, Nonindicted 4, and Nonindicted Company 1, Nonindicted Company 2, and Nonindicted Company 4 and Nonindicted Company 2.

B) Conclusion

Comprehensively taking account of the above circumstances, Defendant 3 participated in the acquisition of Nonindicted Company 1 while lendering funds to Defendant 1, and thereafter, he seems to have interfered with the management of Defendant 1, who was the representative director of Nonindicted Company 1.

B. As to the assertion that Defendant 3 was not in the position of a business manager of Nonindicted Company 1 and was not at all involved in Defendant 1’s breach of trust

1) Summary of the assertion

A) Defendant 3 is not in the position of a person who administers the business of Nonindicted Company 1, and thus cannot be the subject of the crime of breach of trust. Defendant 3’s registration as a director of Nonindicted Company 1 was made by Defendant 3 (from September 16, 2008 to February 2, 2009) and did not aim to take part in the business related to Nonindicted Company 1’s funds or the business management.

B) Defendant 3 did not have fully participated in Defendant 1’s breach of trust. However, Defendant 3 requested an extension of the time limit for KRW 3.1 billion to be immediately paid when providing the joint and several surety of Nonindicted Company 1, which is the debtor of Defendant 3, and requested to lend KRW 3.1 billion to Nonindicted Company 3’s shares equivalent to KRW 2.1 billion, and Defendant 3 was merely acceptance of the above proposal at the end of the 2.1 billion consideration, which was a reasonable decision by the creditor.

In this regard, Defendant 3 disposed of the promissory notes issued by Nonindicted Co. 3 and the shares issued by Nonindicted Co. 3 in the amount of KRW 3.1 billion and the amount of KRW 1.5 million, and could recover his claim, so there was no reason to request the joint and several surety of this case for Nonindicted Co. 1. Rather, the joint and several surety of this case is natural and normal transaction days conducted according to Nonindicted Co. 3 and Nonindicted Co. 1’s profit-making purpose and management needs.

2) Legal principles

A) As the subject of the crime of breach of trust, “a person who administers another’s business” refers to a person who is acknowledged to have a fiduciary relationship to handle the business in light of the principle of trust and good faith with another person, and does not necessarily require the existence of the right of representation with respect to the business in an external relationship with a third party. The basis for the business in the crime of breach of trust is not limited to any of the statutes, contracts, and customs, but also includes de facto and de facto (see, e.g., Supreme Court Decision 2004Do5167, Nov. 10, 2006). “a person who administers another’s business” as the subject of the crime of breach of trust refers to a person who acts as an agent for another’s property or cooperates in the preservation of another’s property on the basis of a bilateral fiduciary relationship (Supreme Court en banc Decision 2003Do7645, Jun. 17, 2004).

B) In the case of a type of a breach of trust requiring the opposite existence of an opposite contractual party’s act, the opposite contractual party is basically an independent transaction with an interest separate from the one executing the act of breach of trust and against the opposite contractual party. In view of the opposite contractual party’s active participation in the act of breach of trust by inducing the other contractual party to commit the act of breach of trust or participating in the entire process of such act of breach of trust, and thus a contract with the executor of the act of breach of trust becomes null and void as it constitutes an anti-social juristic act, the other contractual party may be deemed as an intermediary or a joint principal offender (see Supreme Court Decision 2005Do4915, Oct. 28, 2005, etc.). However, even in the case where a person without an identity is processed into an offense by a person executing the act of breach of trust, the other contractual party may be punished as a joint principal offender who satisfies the subjective and objective requirements of the act of crime through a functional control based on his/her common intent (see, e.g., Supreme Court Decision 2010Do3

3) Determination

Considering the above-mentioned facts and the additional facts to be considered below, the following circumstances are recognized:

A) Defendant 3’s intervention in and influence over the acquisition of Nonindicted Company 1

This is as seen earlier.

B) The influence of Defendant 3 on Nonindicted Co. 3

(1) Around September 2008, Nonindicted 25 team leader of Nonindicted Company 47, who was the main supervisor of Nonindicted Company 3’s capital increase with capital increase, testified as follows in the relevant case (Seoul Central District Court Decision 201Dahap81, 2011; 524, 5251 pages).

“A deposit does not normally be made at the time of concluding a contract for acquisition of total amount of paid-in capital: Provided, That the reason why Nonindicted Co. 3 deposited KRW 3.5 billion in relation to capital increase with issuing-in capital is that the governance structure was not clean, and many people were involved. Defendant 3 is also involved, Defendant 4 is also involved, Defendant 2 is also involved, and Defendant 2 demanded deposit of KRW 3.5 billion in the event of mistake because it is the position to manage the company upon delegation by two persons. Defendant 3 is also aware that it is deposited to facilitate the smooth operation of the company.”

(2) As to the acquisition of Nonindicted Co. 3, Defendant 4 and Defendant 3 on April 2008, the letter of agreement (No. 18 on April 2008) (No. 2010Dahap1541) contains the following: “Defendant 4 did not amend the articles of incorporation of Nonindicted Co. 3 without Defendant 3’s consent; Defendant 3, after the acquisition of Nonindicted Co. 3, has the authority to appoint Nonindicted Co. 4 as the auditor (Article 3); “Until the collection of Defendant 3’s funds is completed, Defendant 3 may participate in the business of Nonindicted Co. 3’s manager and Defendant 4; and the manager and Defendant 4 are obligated to actively cooperate therewith (Article 4).”

(3) Defendant 3 also worked as the president in and out of Nonindicted Company 3 (Evidence 2010 senior Gohap1541, 232, 2011 senior 336, and evidence records 13 rights 6713). Nonindicted 68, one of his wife, was appointed as the director of Nonindicted Company 3’s overseas business headquarters. Nonindicted 20, who was employed as the director of Nonindicted Company 3’s planning and management division, was employed by Nonindicted Company 3 upon the request of the regular director of Nonindicted Company 47 who was the director of Nonindicted Company 25 who was the director of Nonindicted Company 3’s capital increase in Korea (Evidence 201 senior Gohap36, evidence No. 10, 5241).

(4) As seen earlier, Defendant 3 lent funds to Nonindicted Co. 3’s acquisition of Nonindicted Co. 4 and 2; Defendant 3 appropriated large amount of money as it is for the repayment of his own bonds; added items that are excessively appropriated as the fee to increase the amount of debt to enter into a monetary lending contract; Defendant 2 and 4 also refused Defendant 3’s demand regarding Nonindicted Co. 3’s acquisition.

(A) Defendant 3 appropriated all of the amount of KRW 5 billion received as advance payment from Nonindicted Co. 24 and KRW 5 billion out of the amount borrowed from Nonindicted Co. 47 as advance payment (However, KRW 5 billion received from Nonindicted Co. 24, but most of the amount of KRW 5 billion borrowed from Nonindicted Co. 3).

(B) On April 208, Defendant 4 entered into an agreement with Defendant 3 to preferentially deduct KRW 500 million for consulting expenses when borrowing money from Defendant 3. The third party’s capital increase issued by Nonindicted Co. 29 Co. 29 operated by Defendant Park Jong-il to participate in the name of Nonindicted Co. 3 (in the amount of KRW 1.5 billion) or to purchase common shares equivalent to KRW 1.5 billion held by the shareholders of Nonindicted Co. 29 Co. 3 (the designation of Defendant 3) in the name of Nonindicted Co. 3.

(C) Defendant 4 borrowed a total of KRW 5.5 billion from Defendant 3 on May 6, 2008. At that time, the above KRW 5.5 billion included M&A fee in KRW 1.5 billion related to sexual history (the evidence records No. 2011Gohap3366).

(D) On June 5, 2008, Defendant 3 included KRW 600,000,000 in Defendant 2’s amount of credit as a consulting fee for KRW 5 billion in the amount of investment made by Nonindicted Company 24 on June 5, 2008. This was the introduction fee that Defendant 3 introduced Nonindicted Company 24 to Nonindicted Company 3 (Evidence 10,5314,5443).

(E) On June 11, 2008, Defendant 3 testified that, in addition to KRW 6030,000,000 of the existing principal and interest of the non-indicted 24 corporation, the total amount of the non-indicted 3 corporation added KRW 970,000,000 to KRW 7,000,000,000 in return for the gratuitous transfer of 1/2 of the warranty against the non-indicted 24 corporation owned. As seen earlier, the representative director of the non-indicted 24 corporation testified that the non-indicted 26 corporation did not have agreed that he would not exercise the above warranty in the relevant case, this would also be unreasonable

(F) On July 11, 2008, Defendant 2, Defendant 4, and Defendant 3 set the unpaid obligation at KRW 1.8 billion. As seen earlier, the remaining obligation KRW 400 million is the sum of the interest KRW 700 million on KRW 3.5 billion deposited by Defendant 3 in Nonindicted Company 47, and the cost of acquiring forfeited shares is KRW 700 million (Evidence 10,5315 of the evidence record No. 20136). The fee and interest, which are excessively counted as much as Defendant 3 voluntarily deposited KRW 3.5 billion in order to receive the above fee, seems to be the fee and interest.

(G) In addition, at the time of issuing new shares, Defendant 3 was to receive KRW 600 million in return for introducing Nonindicted Company 47 to Nonindicted Company 3 at the time of Nonindicted Company 3’s offering of new shares, and in fact, received all of the above fees (No. 2011 high-class 336 pages 12, 6126 pages of evidence).

(5) On October 208, 2008, Defendant 3 opposed to the appointment of four new directors recommended by Defendant 1 at the temporary shareholders’ meeting of Nonindicted Company 3, Defendant 2, as Defendant 2 opposed to Defendant 1’s appointment, was able to exercise violence, such as kneeing Nonindicted Company 1’s office (Evidence 11, 5893, 12, 6371, etc.).

(6) As seen earlier, the investment contract was prepared on August 14, 2008 with Nonindicted Co. 1 and Nonindicted Co. 28 and authenticated it. At that time, Nonindicted Co. 3’s agent was notarized by Nonindicted Co. 4 as the representative director of Nonindicted Co. 28 and Nonindicted Co. 49. After the occurrence of legal disputes between Defendant 1, 2, 4, and Defendant 3, Nonindicted Co. 4 delivered the accounting documents related to Nonindicted Co. 3 to Defendant 3 (the Nonindicted Co. 4 stated in this court that he was bringing about a reproduction of the accounting documents of Nonindicted Co. 3 while withdrawing from the office after the death of Nonindicted Co. 3, and that he was transferred to Defendant 3), and Nonindicted Co. 4, including Nonindicted Co. 3 and Nonindicted Co. 1, who was prepared by Defendant 1 and Nonindicted Co. 4, were involved in the business related to the Defendant’s funds.

(7) 피고인 1은 수사기관에서 “공소외 3 회사의 유상증자와 관련하여 피고인 2는 공소외 3 회사의 최대 주주로서 200만 주가량을 자신의 명의로 인수해야 하는 상황이었는데, 피고인 박상 철이 자신에게 ‘피고인 2 저 병신 같은 새끼가 그 인수자금을 어디에서 구하겠느냐, 네가 좀 알아봐줘라’고 말하여 자신이 공소외 7에게 소위 ‘찍기’ 자금을 부탁하였고, 공소외 7은 돈을 빌려줄 테니 피고인 2가 인수하게 될 주식을 추가로 담보제공해 줄 것을 요구하였으며, 위 내용을 피고인 3과 상의한 후 동의를 구해 진행하게 되었다. 그 무렵 피고인 3은 공소외 7이 공소외 3 회사의 주가 하락으로 인해 추가 담보를 요구한다는 사실, 추가 담보가 없을 경우 반대매매를 하겠다고 말한 사실을 잘 알고 있었다.”( 2011고합336호 증거기록 11권 5588~5590쪽)고 진술하였고, 또한 앞서 본 바와 같이 공소외 3 회사의 회계 감사와 관련하여 2008. 9. 하순경 피고인 4, 2, 3 등은 공소외 3 회사의 공소외 5 회사에 대한 25억 8,250만 원의 송금과 관련하여 이를 공소외 3 회사가 대여하는 것(변제기 2008. 9. 30)으로 회계처리하고 이사회 의사록도 작성하였고, 이후 2008. 9. 26. 및 같은 달 29. 양 일에 걸쳐 위 25억 8,250만 원이 공소외 5 회사로부터 공소외 3 회사 계좌로 입금되어 전액 변제된 것으로 처리되었으며, 위 돈은 즉시 인도네시아 관련 선급금 명목으로 공소외 28 주식회사 계좌로 이체되었는데, 이처럼 피고인 3은 공소외 3 회사 대표이사의 자금 조달 및 회계 처리 등 제반 문제에도 개입하였다.

(8) Sub-decisions

Considering the above circumstances, Defendant 3 appears to have been in a position to interfere with management issues while exercising considerable influence on Defendant 2 and Defendant 4, who is the representative director, in order to collect his claim against Nonindicted Co. 3 in the position of creditor against Defendant 2 and Nonindicted Co. 4, or actively taken advantage of the embezzlement and breach of trust of Defendant 2 and Nonindicted Co. 4 (i.e., Nonindicted Co., Ltd.’s 270,00 shares of Nonindicted Co. 3 as security, Defendant 3 was involved in the management’s decision to recover his claim).

C) Details of the joint and several guarantee of this case and issuance of promissory notes

(1) Defendant 1 demanded that Nonindicted Company 1 order the joint and several surety of this case for Nonindicted Company 3’s obligation, and he stated that Nonindicted Company 1 took over Nonindicted Company 3 when she mentioned the possession of breach of trust, and stated that there was no possession of breach of trust if the payment of the acquisition price was substituted for the joint and several surety of this case for Nonindicted Company 3’s obligation. At the time, Defendant 1 was dependent on Defendant 3 in the operation of Nonindicted Company 1, and became a joint and several surety of this case. Defendant 3 continuously mentioned the issue of breach of trust after the joint and several surety of this case. Defendant 3 sent the draft of the debt performance contract of this case through Nonindicted Company 3’s accounting division Nonindicted Company 4, but Defendant 3 stated that there was a stipulation on the issue of acquisition of Nonindicted Company 3 and 1’s obligation (joint evidence No. 336, Nov. 31, 201 and evidence No. 6011-27, Feb. 6, 2027).

(2) Defendant 3 entered into a joint and several surety agreement with Nonindicted Co. 3 on December 9, 2009, with Nonindicted Co. 1, 2009 (Seoul Eastern District Court Decision 2009 tea13062, which was applied on December 9, 2009. The reason for applying for the payment order was that “Nonindicted Co. 28 has the amount of claims, such as loans, against Nonindicted Co. 3 on or after May 2008. However, Nonindicted Co. 28 and Nonindicted Co. 1 agreed that Nonindicted Co. 3 was liable for the debt of Nonindicted Co. 1506, regardless of the fact that Nonindicted Co. 1 would actually secure the shares of Nonindicted Co. 3, 209, the joint and several surety agreement was concluded between Nonindicted Co. 1 and Nonindicted Co. 1500, Nov. 17, 2008.

In addition, Nonindicted 4 also stated that Defendant 4, 1, and 3 were aware that the issuance of the instant joint and several sureties and promissory notes was made on the one hand.

(3) Considering the following facts, Defendant 3 attempted to eliminate the possession of breach of trust while directly involved in the preparation of the minutes of the board of directors of Nonindicted Company 1, and Nonindicted Company 3’s non-indicted 4’s repeated revision of the minutes of the board of directors under the direction of Defendant 3, thereby continuing to send e-mail to Defendant 1 before entering into the instant monetary lending contract.

(A) On September 19, 2008, Defendant 3 sent the draft of the instant monetary lending contract via e-mail to Nonindicted 4, and notified Nonindicted 1 of the content of the amendment of the resolution of the board of directors related to the instant monetary lending contract, and Nonindicted 4 sent it again to Defendant 1. The purport of the amendment of the resolution of the board of directors is to exclude Defendant 3 himself from the directors who participated in the resolution of the board of directors and to include only Defendant 1’s directors. The time, contents, accompanying documents, etc. of e-mail sent between Defendant 3, 1, and Nonindicted 4 until before the conclusion of the instant monetary lending contract and joint and several sureties contract are as listed below (Evidence 1, 59-83 pages of evidence evidence No. 2011 and No. 3366).

본문내 포함된 표 발신인 수신인 발신시각 제목 및 본문내용 첨부파일 피고인 3 공소외 4 2008.9.19. 01:16:16 제목: 수정 금전대차계약서 (공소외 5 회사)[1].hwp 본문내용: 약속어음 경과 이자 2,500만 원이 빠져 있어 계산해 넣었습니다. 그리고 공소외 3 회사 이사회 결의서에서는 공소외 11 이사 빼고, △△(공소외 1 회사) 이사회 결의서에는 저는 빼고, 피고인 1, 피고인 1 동생, ☆이사, ▽전무 , ◎상무 이번에 새로 선임된 이사들을 넣으세요. 공소외 4 피고인 1 2008.9.19. 13:26:14 제목 : 금전대차 수정분 및 이사회의사록 금전대차계약서 (공소외 5 회사)[1]. hwp(주20), 이사회의사록(△△△△).hwp 본문내용 : 수정사항 검토하여 주시기 바랍니다. 이사회 의사록은 제가 간단히 작성하였습니다. 공소외 4 피고인 1 2008.9.19. 13:37:47 제목 : 금전대차 및 이사회 의사록 최종분 금전대차계약서(공소외 5 회사)[1].hwp, 이사회의사록(△△△△-공소외 5 회사).hwp 본문내용 : 없음 공소외 4 피고인 1 2008.9.22. 09:24:27 제목 : 유전지분 반영 금전대차 및 이사회 공증자료 금전대차계약서(공소외 5 회사)2.hwp, 이사회의사록(△△△△-공소외 5 회사)2.hwp 본문내용 : 없음 공소외 4 피고인 1 2008.9.22. 15:16:03 제목 : 마지막 수정분(금일 공증자료) 금전대차계약서(공소외 5 회사)2.hwp, 이사회의사록(△△△△-공소외 5 회사)2.hwp 본문내용 : 없음

Note 20) hwp

According to the text of the above e-mail and the attached documents, ① in the e-mail sent by Defendant 3 to Nonindicted 4 on September 19, 2008, Defendant 3 and Defendant 4 considered the problem of breach of trust. ② Nonindicted 4, upon Defendant 3’s request, made the minutes of the board of directors meeting of Nonindicted 1 on September 19, 2008, and sent them to Defendant 1 along with the draft of the monetary lending contract sent by Defendant 3 on September 19, 2008, and ③ thereafter, each document attached to the e-mail sent by Nonindicted 4 to Defendant 1 on September 22, 2008 was added to the contents of the instant monetary lending contract and the minutes of the board of directors’ meeting to 40% on August 14, 2008.

(B) The minutes of each of the board of directors of Nonindicted Company 3 and Nonindicted Company 1 with respect to the instant monetary lending contract and joint and several liability are identical in size, such as the size, type of preparation, letter, size, etc. (see, e.g., Supreme Court Decision 201Da336, Apr. 1, 201; Supreme Court Decision 201Da3366, Apr. 1, 201). It appears that Nonindicted Company 3’s non-indicted 4 prepared the minutes of the board of directors in accordance with the aforementioned intervention of Defendant 3, and Nonindicted Company 4 concurrently held the office of Nonindicted Company 5, the creditor, and Nonindicted Company 3, the debtor (Evidence 30-36, Jan. 36, 201).

(4) Considering the following circumstances, it is difficult to deem that Defendant 3 could have fully recovered its claim against Nonindicted Company 3 by disposing of promissory notes of KRW 3.1 billion and shares of KRW 1.5 million which were held at the time.

(A) As seen earlier, around September 8, 2008, Defendant 3 remitted KRW 2.912.5 billion out of the subscription price for new shares deposited with Nonindicted Company 3 to Nonindicted Company 5. On the same day, the said money was returned to Nonindicted Company 5, and KRW 2.915 billion, plus KRW 2.5 million, via Nonindicted Company 28’s account on the same day, again returned to Nonindicted Company 3’s account. As to this, Nonindicted Company 28 was treated as re-loaned to Nonindicted Company 3.

① In this regard, Defendant 3 did not have any reason to borrow money to Nonindicted Co. 3 as above. Defendant 2 and 4 demanded to repay the money borrowed from Nonindicted Co. 7 on August 27, 2008, and again borrowed money. Defendant 1 also claimed that Defendant 1 and the joint and several surety of Nonindicted Co. 1 made a loan with money again.

② Considering the facts found earlier and the following additional facts, the following circumstances are recognized:

As seen earlier, around September 2008, Defendant 1 stated that Defendant 2’s borrowing of the maximum shareholders’ acquisition amount with respect to Nonindicted Co. 3’s offering of new shares was requested to Nonindicted Co. 7 by stating that Defendant 3 would lend funds instead of Defendant 3 (No. 11 of evidence No. 2011 and No. 558-5590 of evidence No. 201). As such, Defendant 3 also knew that Defendant 2 borrowed funds prior to Nonindicted Co. 7.

In addition, as seen earlier, Defendant 3 accepted KRW 154,00 of the shares of Nonindicted Company 3 on September 5, 2008 in accordance with the agreement on the acceptance of forfeited shares with Nonindicted Company 47. The date of disposal of the said shares was September 16, 2008, and thus, there was a situation in which capital was temporarily accumulated until the said date until September 16, 2008, and the Financial Supervisory Service’s actual inspection, which may occur when the failure to repay the amount was made, and Nonindicted Company 3’s pressure on the opposite trade (at that time, the share price of Nonindicted Company 3 fell within KRW 1,550,00,000). Considering that Nonindicted Company 3’s disposal of the said shares was made on September 16, 2008, it was practically difficult for Defendant 3 to take advantage of Nonindicted Company 3’s failure to repay the amount to KRW 7.

Financial transactions between Nonindicted Co. 3, Nonindicted Co. 5, and Nonindicted Co. 28 on September 8, 2008 with capital increase on the same day, and both the passbook of Nonindicted Co. 3 and the passbook of Nonindicted Co. 3 who received money from Nonindicted Co. 28 (SCB) are different banks (Defendant 2 stated that the SCB bank account of Nonindicted Co. 3 is the account that Nonindicted Co. 4, the representative director of the board of directors, and that it was made by Nonindicted Co. 4 (Evidence 6121). Such an act was conducted by Nonindicted Co. 4 (direct withdrawal of the above money, and the money was presented to Defendant 1). On the other hand, Defendant 3, 4, and 2 et al. were deducted from the above accounts due to changes in the method of accounting as above (see, e.g., Supreme Court Decision 2011Da33361, Apr. 2, 2008).

As seen earlier, around May 30, 2008, Defendant 2 and Defendant 4 borrowed KRW 5.488 billion between Defendant 3 and Nonindicted Company 3 (management supervisor Defendant 2) from Defendant 3, and Defendant 2 and Defendant 4 drafted a joint and several surety contract for Nonindicted Company 3’s debt and notarized it. The above contract was signed with Defendant 2, not the corporate seal of Nonindicted Company 3, and the personal seal of Defendant 2, not the corporate seal of Nonindicted Company 3, was affixed (before Defendant 2 becomes the representative director of Nonindicted Company 3).

③ Considering the above circumstances, Defendant 3 also appears to have been difficult to refuse to repay the debt owed to Nonindicted 7, and thus, there was no choice but to return the money received from Nonindicted 3. However, even if there was little difference in the amount of KRW 8.7 billion paid for capital increase with Nonindicted Company 47 (in the amount of KRW 5.5 billion and interest at KRW 5.7 billion) and Nonindicted Company 7 (in the amount of KRW 2.7 billion and interest), Defendant 3 deposited money with the account of Nonindicted Company 3 that was created by Nonindicted 2 following the company it operated by Defendant 3, and Nonindicted 4 directly withdrawn the money and paid the money to Defendant 1, and Nonindicted 7 had intention to make Defendant 2 and 4’s personal debt with the debt owed to Nonindicted Company 3 (affirmative 4, Defendant 2 also had such intention, and Defendant 3 actively accepted the money).

(B) The financial situation of Nonindicted Co. 3 at the time of the issuance of the instant joint and several sureties and Promissory Notes is as follows.

① Around September 8, 2008, Nonindicted Co. 3 consumed most of the subscription price for new shares paid for Nonindicted Co. 47 and Nonindicted Co. 7 as debt repayment.

② immediately after the issuance of small amount of convertible bonds, Nonindicted Co. 3 did not have any participant, and Defendant 3 remitted KRW 500 million from the account of Nonindicted Co. 28 on September 11, 2008 to the account of Nonindicted Co. 23’s bank (Account No. 6 omitted), Nonindicted Co. 23 paid KRW 500 million to the subscription price of small amount of convertible bonds on September 12, 2008, and Defendant 3 immediately withdrawn the said money (Evidence No. 12, No. 12, 6133, 6140, 6141, and 6185).

③ Nonindicted Co. 3 issued a small amount of convertible bonds on September 23, 2008 and procured KRW 1.49 billion. However, in this regard, Defendant 3 transferred KRW 600 million from the account of Nonindicted Co. 28 Stock Company to Nonindicted Co. 69, a bondholder’s account on the same day. Nonindicted Co. 69 deposited KRW 1.5 billion in total of the above KRW 600 million into Nonindicted Co. 3’s account on the same day. Defendant 3 received KRW 600 million from the above KRW 1.5 billion to Nonindicted Co. 69 (Evidence 336), and Defendant 3 received KRW 40 million (Evidence 1840, 12, 6133), and the actual amount used was KRW 890,000,000.

④ On September 26, 2008, Nonindicted Co. 3 procured KRW 1.999 billion through a small amount of contribution, but in this regard, Defendant 3 sent KRW 800 million from the account of Nonindicted Co. 28 on September 26, 2008 to the account of Nonindicted Co. 23 (former National Bank Account) from September 26, 2008, and Nonindicted Co. 23 paid KRW 2 billion on the same day as the price for subscription. Defendant 3 found KRW 800 million among them (Evidence 12, 6134, 6140, 6141, 6186 of the evidence record No. 20136), and the amount actually usable was KRW 1190,90 million.

In other words, funds actually used by Nonindicted Co. 3 through the issuance of additional bonds and the increase of capital as above are KRW 2 billion (=total amount of KRW 3.489 billion - Defendant 3’s withdrawn funds amount of KRW 1.4 billion). This is in line with the repayment of loans (1.3 billion KRW, KRW 1.3 billion KRW, KRW 89 billion KRW, KRW 1.4 billion) against Nonindicted Co. 6, which was scheduled to be repaid at the end of September 2008, and the settlement of promissory notes of KRW 3.1 billion by Defendant 3 was insufficient.

⑤ Around September 2008, Defendant 2 and Nonindicted 7, a bond company, stated that Nonindicted 3’s sole issuance of a bill was a situation in which the discount of the bill itself was not well-grounded in the old old bonds market (Evidence 4, 1783, 1784, 11, 5907), and Nonindicted 7, around September 2008, did not have funds to the company that immediately increased the capital, and there was no funds to the company that continued to extend the exchange of bills. At first, Defendant 2 decided that the additional allocation of shares would be 1.6 million won upon the issuance of new shares by Nonindicted 3 on September 2008 (Evidence 1, 2013, 1784, 11, 5907). Nonindicted 3 did not have the right to collateral the above shares (Evidence 2, 2013, 301, 501, 501, 1961, 5016, 19616).

In addition, Nonindicted 7 stated in the investigative agency that “The bills of exchange issued by Defendant 3 at a certain discount, i.e., the bills of exchange at the time when the bills of exchange are discounted, i.e., the bills of exchange, which were issued by Defendant 3 for certain financing needs, are well discounted. In view of whether the credit of Nonindicted Company 3 is good and thus the bills of exchange should be based on the bills of exchange made against many unspecified people in the nominal market, and it is apparent that the financial situation of the company is good for financing by obtaining a guarantee from other companies or people for a certain amount of money (see, e.g., Supreme Court Decision 201Da336, 5907, Nov. 1, 2011).”

④ At the time of the issuance of the instant joint and several sureties and Promissory Notes, Defendant 4 stated that there was a situation in which Nonindicted Co. 3 continued to occur and difficult, and Defendant 3 also was well aware of such circumstances through Nonindicted Co. 4 (Evidence No. 11, 5892, 5893).

(C) As seen earlier, Defendant 3 was not in good condition at the time of Nonindicted Company 3, as long as it should not return money again to Nonindicted Company 3 on September 8, 2008. Thus, the promissory note amounting to KRW 3.1 billion held by Defendant 3 against Nonindicted Company 3 was difficult to pay. The disposal of Nonindicted Company 3’s shares, which Defendant 3 owned, was 1.5 million of the daily trading volume ( KRW 700,000 from March 208 to September 2008, KRW 30,000) of Nonindicted Company 3, and KRW 21,000,000 of the U.S. Investment Bank Holdings around September 15, 2008, and KRW 278,000,000,000,000,000 were 375,000,000 shares of Nonindicted Company’s shares, and it appears that there was a high possibility for Defendant 3 to sell the above shares as collateral.

(D) Rather, Defendant 3, along with the circumstance that Nonindicted Co. 3 did not perform more compulsory execution against the instant promissory note, stated that Nonindicted Co. 7 was in progress of the large-scale capital increase on September 2008, it was time for Nonindicted Co. 1 to confirm it and that he lent KRW 7.56 billion among August 2008 (Evidence 11, 5905, evidence No. 2011, No. 3366), Defendant 1, and Defendant 3 also had known of the process of issuing capital increase from the acquisition of Nonindicted Co. 1, 2011, 336, evidence No. 11, 6030-6031, Korea’s actual investment securities at the time, as well as that Nonindicted Co. 1’s share increase in the total amount of KRW 1606,000,000,000,000,000 won (Evidence 3616,36166, etc., of evidence No. 2016166666, etc.).

(5) As to the assertion that Defendant 3’s joint and several guarantee of this case was the management judgment of Nonindicted Company 1’s management for acquiring Nonindicted Company 3 (the non-indicted 1’s management right was taken over by Nonindicted Company 3 in return for the instant joint and several guarantee of this case) and his demand or proposal was not entirely involved, considering the facts acknowledged earlier and the additional circumstances considered below, the acquisition of Nonindicted Company 1 by Nonindicted Company 3 was merely a countermeasure taken after Defendant 3 created to eliminate the possession of breach of trust due to the issuance of the instant joint and several guarantee and promissory note, and it seems that Defendant 3 participated in the process.

(A) Defendant 1 mentioned the issue of breach of trust with Defendant 3 even after the issuance of the instant joint and several sureties and promissory note. Defendant 1 subsequently revised the draft management right transfer agreement between Nonindicted Company 3 and Nonindicted Company 1 on October 17, 2008, and sent Defendant 3 (2 omitted) e-mail around October 17, 2008. Defendant 3 confirmed the above e-mail around 20:58 (3) around 2008, around 17, 2008 (3:47, 6348, 6393). Meanwhile, Defendant 3 also asserted that the management right of Nonindicted Company 3 was transferred to Nonindicted Company 20 and Nonindicted Company 31, 207, and the above e-mail was not transferred to Nonindicted Company 3, 2008 to Nonindicted Company 3, 207, 206, 36393).

(B) As seen earlier, around October 22, 2008, Defendant 1 entered into the instant debt repayment contract with Nonindicted Company 4 to the effect that, regardless of the acquisition of Nonindicted Company 1 by Nonindicted Company 3 and Nonindicted Company 1, Defendant 1 was liable for the instant joint and several liability as a joint and several liability.

If Nonindicted Co. 1’s joint and several sureties was established according to the management judgment, regardless of the circumstances leading to the joint and several sureties with respect to Nonindicted Co. 5, which is the creditor, there is no reason for Nonindicted Co. 1 and Nonindicted Co. 3 to continuously verify against Nonindicted Co. 5 the fact that the joint and several sureties of the instant case is irrelevant to the acquisition of Nonindicted Co. 3 through the debt performance contract, minutes of the board of directors, etc. Therefore, this circumstance reveals that Defendant 3 participated in the process of concluding the joint and several sureties

(C) At the time of the instant joint and several sureties, Defendant 4 stated that he was well aware of her fluencies between Defendant 3 and Defendant 1 (Evidence No. 2011Da3366 and No. 5886). Defendant 3 stated in this court that prior to the instant joint and several sureties, Defendant 3 did not mention Nonindicted Co. 1’s acquisition of Nonindicted Co. 3, and Defendant 3 did not completely mention the case in which Nonindicted Co. 1 filed a complaint against himself as a litigation fraud and the initial investigation of the instant case. As seen earlier, there was no agreement between Nonindicted Co. 3 and Nonindicted Co. 1 on stock and management right transfer between Nonindicted Co. 1 and Nonindicted Co. 1 until the time of the instant joint and several sureties.

(D) ① On October 208, 208, Nonindicted Co. 3’s temporary meeting of shareholders of Nonindicted Co. 2 (including partial revision of the articles of incorporation) was newly elected as directors of Nonindicted Co. 1, 71, 72, and 73 (outside directors). At the time of the above, Nonindicted Co. 3’s internal directors including 7 and 3 outside directors were three (2) evidence No. 594-596, 606, 1258, 457), ② Nonindicted Co. 1, 208, Nonindicted Co. 3’s temporary meeting of shareholders of Nonindicted Co. 2 and Nonindicted Co. 2’s non-indicted Co. 3’s non-indicted Co. 6’s non-indicted Co. 2’s non-indicted Co. 3’s non-indicted 6’s non-indicted Co. 3’s non-indicted Co. 1’s non-indicted 6’s non-indicted Co. 2’s non-indicted 3’s non-indicted 12’s non-indicted 3’s non-indicted 3’s.

(6) As Defendant 3’s non-indicted 1 and non-indicted 3 have been conducting mutual security joint and several surety and money lending, the issuance of the instant joint and several surety and promissory note also appears to have been conducted for the purpose of raising funds between Nonindicted Company 1 and the non-indicted 1 and the payment of the proceeds to the business partner (see, e.g., evidence No. 2011Gohap3366 and evidence No. 563 to 575). The case does not find any joint and several surety, such as the issuance of the instant joint and several surety and promissory note, while bearing a large amount of debt corresponding to KRW 6 billion from the standpoint of the non-indicted 1, as well as for the issuance of the instant non-indicted 1.

Rather, before Defendant 1 becomes the manager of Nonindicted Company 1 on July 17, 2008, the Nonindicted Company 3 and Nonindicted Company 1 did not mutually stand the joint and several sureties (on July 11, 2008, Nonindicted Company 1 did not stand the joint and several sureties with respect to the joint and several sureties of Defendant 2 and 4 on July 11, 2008; Nonindicted Company 1 did not stand the joint and several sureties; on entering into a monetary lending contract with Defendant 3 on July 16, 2008, Nonindicted Company 3 did not stand the joint and several sureties; on behalf of the contents related to the suspension of payment; until Defendant 3 became the representative director of the Nonindicted Company (on June 27, 2008, the representative director of Nonindicted Company 2 and 4 came to be an individual joint and several sureties who was in the management status of Defendant 2 and 3, and the two joint and several sureties were deemed to have been in the position of joint and several sureties between Defendant 1 and Defendant 306.

(7) On the other hand, considering the following circumstances, Defendant 3’s assertion is difficult to credibility.

(A) Defendant 3 asserted that the joint and several surety in the instant case was returned to Nonindicted Company 1 and Nonindicted Company 3’s creditors who jointly and severally guaranteed mutual security until the case in which Nonindicted Company 1 filed a complaint with Defendant 3 as lawsuit fraud, and the investigation of the instant case, and Defendant 3 asserted that the joint and several surety in the instant case was the price for acquiring Nonindicted Company 1’s non-indicted 3 in the subsequent investigation procedure (Evidence 11 and 5874, etc. of evidence No. 2011 and evidence No. 3366), and that the said joint and several surety in the instant case was the price for acquiring Nonindicted Company 1’s non-indicted 1’s non-indicted 3. As seen earlier, it is inconsistent with the assertion itself in light of the fact that Defendant 3 prepared a management right transfer contract between Nonindicted Company 3 and the non-indicted Company 1 in consideration of the problem of breach of trust

(B) ① Defendant 3 asserted the following as follows on the 20th trial date.

Defendant 3, on September 18, 2008, listed Non-Indicted 3’s commercial shares on the same day, and concluded a sales contract at the price of KRW 1,580 per share on September 18, 2008, at the price of KRW 155,540 per share on September 18, 2008, sold at KRW 155,540 per share to KRW 1,374 above the price of subscription, which was the volume exceeding 40% of the total trading volume.

(C) Around September 19, 2008, Defendant 3 purchased 148,680 shares of Nonindicted Company 3 at KRW 1,397 per share (see, e.g., evidence 160 by Defendant 3’s defense counsel).

C. However, Defendant 3 ceased selling around September 18, 2008 due to the fact that at that time, Defendant 3 reached an agreement to lend 1.5 million shares to Nonindicted Co. 3 at that time, and Defendant 3 re-purchases shares to Nonindicted Co. 3 by taking charge of the next loss and then lends them to Nonindicted Co. 3.

② However, in the written statement prepared and submitted by Defendant 3 to an investigative agency, Defendant 3 stated, “1.5 million Won (2.1 billion won) held by the person who made a statement possible to dispose of from September 16, 2008 from September 18, 2008, which was leased to Nonindicted Co. 3, 2008 to September 23, 2008, the stock price of Nonindicted Co. 3 was above 100 won per share, and thus, there was no difficulty in disposing of it, but the person who made a statement did not dispose of it at least one share. However, in light of the fact that the person who made a statement had already been agreed to lend 1.5 million Won at the time of September 16, 2008 to Nonindicted Co. 3 (Evidence 336, Evidence No. 39922)”, and the circumstances leading up to the conflict between Defendant’s statement and the point of sale of shares at the time of agreement after each of the above statements were made.

(C) After receiving the Promissory Notes at an investigative agency, Defendant 3 stated that the shares of Nonindicted Co. 3 were deposited in the securities account designated by Defendant 1 (Evidence No. 336, 3, 1548, 4, 1821). The issue date and notarized date of the Promissory Notes at September 22, 2008 or Defendant 3 (Defendant 3’s children) transfer the shares of Nonindicted Co. 3 to the Nonindicted Co. 47’s account of Nonindicted Co. 23 (Nonindicted 7’s children), the time and quantity of the transfer of the shares of Nonindicted Co. 3 to the Nonindicted Co. 47’s account of Nonindicted Co. 18, 2008, ② Nonindicted Co. 30,99, 2008, ③ Nonindicted Co. 201, 2030, Sept. 23, 2008’s new shares transferred to Nonindicted Co. 31, 2014.

In addition, Defendant 3 made a statement from Nonindicted Company 47 to the effect that it was not aware of the fact that KRW 5.5 billion was deposited from July 2008 (Evidence 10, 5131, 5132). However, this is not only against Nonindicted Company 47’s testimony at the time of Nonindicted Company 47, but also against Nonindicted Company 25’s receipt of large-amount subscription fees (60 million won) or forfeited subscription fees (1.4 billion won). Thus, there is doubt that the fact that it was unfavorable to Defendant 3 is not intentionally denied.

(8) Sub-decisions

Considering the above circumstances, Defendant 3 actively demanded Defendant 1 to issue the instant joint and several surety and promissory note to collect his own claim, and participated in the preparation of the minutes of the board of directors of Nonindicted Company 1 with respect thereto. In order to eliminate the possession of breach of trust, Defendant 3 was able to prepare a management right acquisition agreement between Nonindicted Company 3 and Nonindicted Company 1 and a contract for the performance of the instant debt payment. However, even in the above contract, Nonindicted Company 1 could not escape from the responsibility for the instant joint and several surety regardless of whether Nonindicted Company 3 acquired or not, and was able to be involved in the process of the execution thereof.

4) Conclusion

A) First of all, Defendant 3 was a registered director of Nonindicted Company 1, but there was no independent office, and there was no specific business, and rather, Defendant 3 was basically a creditor’s status, such as entering into several monetary lending contracts with respect to the money lent to Nonindicted Company 1, and, rather, Defendant 3 would have been transferred the suspended portion to accord and satisfaction. Therefore, it is difficult to view that Defendant 3 had a fiduciary relationship with Nonindicted Company 1, in light of the principle of trust and good faith, or was in charge of the management or preservation of property based on the management or preservation.

B) However, considering all the above circumstances, Defendant 3 requested Defendant 1, the representative director of Nonindicted Company 1, to issue joint and several surety and promissory note without any justifiable reason or any corresponding consideration, based on the de facto influence that Defendant 3 could be involved in the decision-making of the management of the two companies and Nonindicted Company 1, who lent money. Defendant 3 took measures to intervene in the preparation of the minutes of the board of directors of Nonindicted Company 1 or to cope with Nonindicted Company 1’s acquisition of Nonindicted Company 3, in order to eliminate the possession of breach of trust, and prepare ex post facto a contract for acquisition of management right and a contract for performance of the debt of this case (However, in the above contract, Nonindicted Company 1 would have no choice but to perform the obligation of the United Nations joint and several surety). Defendant 3, who increased the total amount of the debt to Nonindicted Company 3 by converting the shares acquired in relation to capital increase with the issuance of new stocks of Nonindicted Company 3, made Defendant 1’s joint and several liability jointly and severally liable for all of the above joint and several liability.

C. As to the assertion that the issuance of joint and several surety and promissory note in this case is null and void, crime of breach of trust

1) Summary of the assertion

In accordance with the Supreme Court precedents, since the legal act of the representative director of the company is null and void, there is no risk of damage, and therefore, the crime of breach of trust is not established. Even if all of the facts charged in this case are recognized, since the act of issuing joint and several sureties and promissory note is actively involved in the act of the representative director's breach of trust, and all of them are null and void,

2) Legal principles

In the case of breach of trust, property damage includes not only a case of causing a real loss but also a case of causing a risk of actual damage to property. Determination as to the existence of property damage must be based on the legal judgment in relation to the property status of the principal, not on the legal judgment. Even if the act of breach of trust is null and void by a legal judgment, in a case where the principal has actual damage or is causing a risk of actual damage to property due to the act of breach of trust, it constitutes a case where property damage has been inflicted (see Supreme Court Decision 94Do3013, Dec. 22, 1995, etc.).

3) Determination

According to the above, Defendant 3 actively participated in Defendant 1’s act in breach of trust, and there may be room to view that the act of issuing joint and several surety and promissory note in this case constitutes null and void through a anti-social juristic act. However, since Defendant 3, from the creditor of Nonindicted Co. 1, attempted to receive the suspension of the principal business from the creditor of Nonindicted Co. 59, it constitutes a case where Defendant 1’s issuance of joint and several surety and promissory note in this case for Defendant 3 caused the risk of actual damage to the property of Nonindicted Co. 1. In addition, since Defendant 3 actually collected the amount of KRW 9.6 billion out of the amount of capital increase for new shares issued by Nonindicted Co. 1, Defendant 3, based on this, it shall be deemed that there was a real damage

Therefore, Defendant 1 and 3 are liable to commit the crime of breach of trust, regardless of the invalidity of the act of breach of trust, since Defendant 1 and 3 inflict a realistic loss on Nonindicted Company 1 from an economic point of view.

Parts of innocence

1. A summary of each of the facts charged against Defendants 1-2 and 4 (related to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) and Defendants 2 and 4 due to the lending of money in August 2008 (related to 2010Gohap 1541, 201Gohap 12555)

From July 17, 2008 to November 24, 2009, Defendant 1 was the manager or representative director of Nonindicted Company 1, and from September 16, 2008 to January 7, 2010, Defendant 4 offered that Defendant 2 jointly take over Nonindicted Company 3, and offered that Defendant 4 took over the management right with Nonindicted Company 8, who is the former representative director of Nonindicted Company 3, and received the management right by paying the price, and Defendant 2 was the de facto manager or representative director of the said company from May 8, 2008 to October 15, 2009, and Defendant 4 was the substantial shareholder of Nonindicted Company 3 and was involved in the overall business of the said company.

Defendant 2 and Defendant 4 conspiredd to have Defendant 1, a management manager of Nonindicted Company 1, make a loan of KRW 2.62 billion from Nonindicted Company 1 in the name of the said Nonindicted Company 3 (hereinafter “instant loan”). At the same time, Defendant 1, a management manager of Nonindicted Company 1, conspired to have the said money repaid immediately to Defendant 2 and 4’s creditors.

A. Defendant 1

Defendant 1 was on August 2008 and was engaged in the business of preserving the company’s property as the management manager and the de facto representative director of the above non-indicted 1’s company and managing it appropriately. Nevertheless, at that time, Defendant 1 requested that Defendant 2 pay KRW 2.62 billion out of the company’s funds received and kept in custody as the name of the issuance of preemptive right bonds for the above non-indicted 1’s company, Defendant 1 received KRW 7.56 million from Defendant 2 to “I will pay back if I will participate in the capital increase in Ghana” without securing any collateral, and let the above non-indicted 1 borrow the company to the above non-indicted 3 company with the above non-indicted 1’s monetary profit equivalent to the same amount without securing any collateral.

B. Defendant 2, 4

Defendant 2 and Defendant 4, as the representative director and the largest shareholder of each of the above Nonindicted Co. 3 in August 2008, have been on duty to manage the company as a whole, preserve the company's assets, and manage them properly.

Nevertheless, Defendant 2 and Defendant 4 borrowed the above KRW 2.62 billion from the above Nonindicted Company 1 in the name of the above Nonindicted Company 3 in order to use it for the repayment of personal debt to the above Nonindicted Company 3, and at the same time, Defendant 1 had Defendant 2 and Defendant 4 pay the debt to the above Nonindicted Company 3 by having Defendant 4 pay the debt immediately to Defendant 2 and Defendant 4. Accordingly, Defendant 2 and Defendant 4 violated the above occupational duties, thereby acquiring a property interest equivalent to the same amount and causing damage equivalent to the same amount to the above Nonindicted Company 3.

2. Summary of the defendant 2 and 4's assertion

A. Defendant 2

Non-Indicted 3’s lending of KRW 2.62 billion from Non-Indicted 1 to Non-Indicted 1, and there was no fact that the amount corresponding thereto exceeds the amount of money from Non-Indicted 1 to the bondholder. However, around August 13, 2008, Non-Indicted 7 deposited KRW 7.56 billion in the Non-Indicted 1’s Busan Bank’s account, and immediately withdrawn KRW 3.0 billion with the so-called “plicker” fund. Defendant 1 merely asserts this part as the money lent by Non-Indicted 1 to Non-Indicted 3.

B. Defendant 4

There is no knowledge of how Nonindicted Company 7 deposited money in Nonindicted Company 1 was used, and there is no knowledge that Nonindicted Company 3 borrowed money from Nonindicted Company 1.

3. Legal principles

A. In the case of breach of trust, property damage includes not only a case of causing a real loss but also a case of causing a risk of actual damage to property. Determination as to the existence of property damage must be based on the legal judgment in relation to the property status of the principal, not on the legal judgment. Even if the act of breach of trust is null and void by a legal judgment, where the principal actually suffers a loss or risk of actual damage to property is recognized from an economic point of view, and where the act of breach of trust causes a property damage (see Supreme Court Decision 94Do3013, Dec. 22, 1995, etc.).

B. However, in a case where a company’s representative or employee violates his/her duty and thus has no legal effect as a contract for debt burden under the name of the said corporation violates relevant Acts and subordinate statutes, such act may not be deemed as causing any loss to the corporation. Therefore, barring special circumstances such as where the corporation is liable for tort or for employer liability under the Civil Act, the act of such representative or employee does not constitute a crime of breach of trust (see, e.g., Supreme Court Decisions 2004Do771, Apr. 9, 2004; 2010Do6490, Sept. 30, 2010).

C. Article 393(1) of the Commercial Act provides that the resolution of the board of directors shall be made by the disposal and transfer of important assets of a company, and the execution of business of a company such as large-scale borrowing of assets, etc. Therefore, the board of directors of a stock company shall have the power to make a decision on the execution of business of the company. Therefore, not only the disposal of important assets of a company, the act of borrowing large-scale assets, but also important business that is not subject to the general and specific delegation by the board of directors to the representative director, which is not subject to the resolution of the board of directors (see Supreme Court Decision 2009Da55808, Jan. 14, 201

4. Determination

(a) Facts of recognition;

According to each evidence submitted by the prosecutor, the following facts are recognized.

1) On August 13, 2008, Nonindicted 7 deposited KRW 7.56 billion in the subscription price for the private equity bonds of Nonindicted Company 1 into the Busan Bank account of Nonindicted Company 1. Among them, KRW 3 billion was brought back to Nonindicted 7 by plucking, plucking, and the remainder was offered to Nonindicted 7 as additional security or used as the operation fund of Nonindicted Company 1.

2) Defendant 1 loaned KRW 2.62 billion to Nonindicted Co. 3, 2008, out of the funds for issuing the preemptive rights of Nonindicted Co. 1’s preemptive rights to new shares in August 2008 at the order of Defendant 3 (the Defendant 1 lent money to Nonindicted Co. 3). At the time, Nonindicted Co. 3 was preparing for offering new shares, the representative director of Nonindicted Co. 3 was in the process of preparing for offering new shares, and Defendant 2 was likely to oppose the purchase of shares of Nonindicted Co. 3’s company, which was entrusted as security by Nonindicted Co. 36, the representative director of Nonindicted Co. 3, who was the representative of Nonindicted Co. 7, the Nonindicted Co. 3, who was in the process of selling the shares of Nonindicted Co. 3 as security, was directed to Defendant 3 himself (one right 164 pages of evidence No. 2010, 1541). Defendant 2 and 3 stated that they repaid the shares with the price of issuing new shares of Nonindicted Co. 3 (Evidence evidence).

However, Defendant 1 stated at an investigative agency that he did not enter into a contract for the above lending of money with Nonindicted Company 3, and that he was in charge of accounting in the form of loan (Evidence 1541, No. 2010, No. 1541, Nov. 1, 201).

3) Defendant 1 stated at the investigative agency on August 18, 2008 that 2.62 billion won was immediately deposited from the account of Nonindicted Company 1 to the account of Nonindicted Company 1 and paid to Nonindicted Company 7 (2.62 billion won in the evidence record No. 1541) (2.66, 877 of the evidence record No. 2010). Defendant 1 stated at the investigative agency that around August 13, 2008, Defendant 2 received KRW 2.62 billion from Defendant 2 as a security for the borrowed stocks as to the borrowed stocks of management right, and that around September 18, 2008, Defendant 1 returned KRW 50 million to Nonindicted Company 3 (2.66, 8777 pages of the evidence record No. 2010, No. 1541).

4) Defendant 2 stated in the written statement prepared and submitted to the investigative agency that Nonindicted Co. 3 borrowed KRW 2620 million from Nonindicted Co. 1 (Evidence 1, 279, 279, and 903). Defendant 2 stated that Nonindicted Co. 3 issued a promissory note with KRW 8 billion as security against the issuance of Nonindicted Co. 1’s bonds as security, and that Nonindicted Co. 3 would pay it after the capital increase for new shares of Nonindicted Co. 3 (Evidence 2, 1541, Evidence 2010, 1549, 279, and 90-903). In the interrogation of the prosecution, Nonindicted Co. 3 stated that Nonindicted Co. 3 paid its debt to Nonindicted Co. 7 out of the funds for new shares issued by Nonindicted Co. 1’s bonds (Evidence 2010, 894, 900-903).

5) On December 2008, Nonindicted 12 instructed that Defendant 1 lent KRW 2.62 billion to Nonindicted Company 3 at the investigative agency, and ordered that Defendant 1 take account of the loan contract. To this end, Defendant 1 took the loan contract bearing the seal of Nonindicted Company 3, and Defendant 1 stated that the contract was completed with the seal of Nonindicted Company 1, and that Defendant 1 was in charge of accounting after completing the contract with the seal of Nonindicted Company 1 (Evidence 10-1541, Evidence No. 10-1541, Evidence No. 808).

B. Whether Defendant 1 delivered 2.62 billion won to the bond company

1) This part of the facts charged is examined as follows: Defendant 1 lent 2.62 billion won to Nonindicted Company 3; Defendant 2 and Defendant 4 demanded Defendant 1 to pay the above money to Defendant 1 to the bondholder who is his creditor. Thus, we examine whether Defendant 1 delivered the above KRW 2.62 billion to the bondholder.

2) Considering the above facts recognized as well and the following additional facts, the following circumstances are recognized:

A) Defendant 1 stated in the investigative agency on August 2008 that he deposited the amount of KRW 2.62 billion from the account of Nonindicted Company 1 to the check, and paid it to Nonindicted 7. However, it is not consistent with the statement on the method of drying and delivering the money, stating that the amount remaining after the above passbook 2.6 billion is the same as the amount of the check, and the statement on the method of delivering the money is not consistent.

B) In the statement and the prosecutorial statement submitted to the investigation agency on August 13, 2008, Nonindicted 7 also stated that Defendant 2 received KRW 2.62 million from Defendant 2 for the purpose of securing loans for management right stocks. However, the above statement and the prosecutorial statement submitted to the investigation agency were not prepared by himself, but they responded to the investigation agency by denying the contents of the statement and the prosecutorial statement submitted to the investigation agency. On August 13, 2008, it was merely that the above statement and the prosecutorial statement were signed and sealed, and there was no money different from the money brought out as so-called so-called “balplation” among the money deposited into the Busan Bank account of Nonindicted Company 1 on August 13, 2008. However, in the second half of 209, it was paid KRW 2.620 million with the capital increase of stocks issued by Nonindicted Company 1 and repaid it in the name of the investigation agency, which was not Defendant 2 and Nonindicted Company 1’s debt repayment.

In addition, Defendant 1 and Nonindicted 7 stated that the shortage of collateral ratio due to the decline in the share price of Nonindicted Company 3 in this court was resolved by Nonindicted Company 3 and Nonindicted Company 1 to jointly issue promissory notes on August 12, 2008.

C) According to the reply to the request for the provision of financial transaction information by this Court, the following facts are recognized.

(8) On August 13, 200, non-indicted 1 Company 1 Company (Account Number 5 omitted) and 7.6 billion won deposited in the Busan Bank account on August 13, 2008: Non-indicted 1 Company (Account Number 5 omitted) ② on August 13, 2008, the remitter of KRW 1.95 billion on August 13, 2008: Non-indicted 753 and KRW 4.4 billion on August 13, 2008 (Account Number 1 omitted); Non-indicted 8.7 billion on June 8, 2008 (Account Number 1 omitted); Non-indicted 4.7 billion on August 13, 2008; 6.8 billion won on June 8, 2008 (Account Number 2 omitted).

(1) According to the above table, among the KRW 7.560 million deposited into the Busan Bank account of Nonindicted Company 1, KRW 1.955 billion, Nonindicted 7 remitted to Nonindicted Company 74, and KRW 4.5550 million in the check, and KRW 1.66 billion in the balance of the account to the new bank account of Nonindicted Company 1 is recognized to have been transferred to the new bank account of Nonindicted Company 1. In addition, among KRW 4.55 billion in the face of the check, KRW 90 million in the face of KRW 4.55 billion in the face of the check to the new bank account of Nonindicted Company 1, the remaining check amount was transferred to the new bank account of Nonindicted Company 1, and thereafter, the remaining check amount was used.

(2) The statements made by Defendant 1 and Nonindicted 7 in this Court regarding the issuer and remitter of the check are as follows.

(A) Nonindicted 7 stated that this court is between Nonindicted 75 and ASEAN, and Nonindicted 74 corporation borrowed M&A acquisition fund and stated that the company, or the others, including Nonindicted 76, are gathering at all.

(B) In this court, Defendant 1 stated that Nonindicted 78 was the child, Nonindicted 79 was the latter, and that other people were ambiguous.

(3) According to the above table and the statements by Defendants 1 and 7:

(A) The amount of remittance to Nonindicted Co. 74 appears to have been withdrawn and used by Nonindicted Co. 7 (the amount of remittance to Nonindicted Co. 74 was KRW 1.95 billion).

(B) Since a person who remitted money to Nonindicted 76 is Nonindicted 77, who is an employee of Nonindicted Company 1, it is also insufficient to recognize that he was related to Nonindicted Company 1 and that he was used by Nonindicted 7 (the foregoing table ④ KRW 1 billion).

(C) Since Nonindicted 78 and 79 are the subsidiaries of Defendant 1, it is also difficult to recognize that they were related to Defendant 1 or Nonindicted Company 1 and that they were used by Nonindicted 7 (the foregoing marks ⑤, and the relevant KRW 200 million).

In other words, the sum of KRW 1 billion remitted to Nonindicted 76 and KRW 200 million paid to Nonindicted 78, and KRW 200 million remitted to Defendant 1 is deemed as used in relation to Defendant 1 or Nonindicted Company 1, and it is difficult to recognize that Nonindicted 7 used it.

(D) There is no evidence to deem that each KRW 100 million related to Nonindicted 80 and 81 was used by Nonindicted 7 (the foregoing table 7, 80 million won).

(E) Meanwhile, the aforementioned table (4) KRW 2.5 billion in the withdrawal amount of the remaining check excluding the sum of KRW 1.6 billion to the sum of KRW 1.6 billion (i.e., KRW 3., KRW 3.65 billion - KRW 1.6 billion) was used for any purpose; however, there is no data on the records as to which the amount deposited by Nonindicted 7 was used, but it appears that Nonindicted 7 brought KRW 3 billion out of the amount deposited by it to a pluck up or pl up the amount, and thus, it seems that it was used for a considerable portion for this purpose (the amount of KRW 1.5 billion if the remittance amount to Nonindicted 74

(4) Thus, if the non-indicted 7 excludes KRW 1,050,000,00,000, which is presumed to have been brought by plucking and plucking funds, out of the remaining amount of check withdrawal amount of KRW 3.65 billion, the amount of KRW 2.6 billion (including the sum of KRW 1.60,000,000,000,000) remains, it is difficult to view that the defendant 1 delivered it to the non-indicted 7 or that the non-indicted 7 used it in a stuff related to him.

3) Ultimately, even based on each evidence submitted by the prosecutor, it is insufficient to acknowledge that Defendant 1 delivered KRW 2.62 billion to Nonindicted 7, and there is no other evidence to acknowledge this.

C. Whether the damage occurred to Nonindicted Co. 3

1) Even if Defendant 1 delivered KRW 2.62 billion to Nonindicted 7, Defendant 1, the following circumstances that can be acknowledged by the above legal principles and facts, i.e., Defendant 2’s use of KRW 2.620 million that Nonindicted Company 3 borrowed in the repayment of personal debt to Nonindicted 7, and thus, Defendant 2’s act of borrowing in this case is strong aspects of pursuing the interests of Defendant 2, and ② the amount of debt that Nonindicted Company 3 owes to KRW 2.62 billion due to the above borrowing exceeds KRW 2.62 billion, Defendant 2’s act of borrowing in this case constitutes an important business that is not part of the representative director’s daily business and must undergo a resolution of the board of directors of Nonindicted Company 3 pursuant to Article 393(1) of the Commercial Act. However, even according to the evidence submitted by the Prosecutor, Defendant 2’s lawful resolution related to the act of borrowing in this case is not recognized. Thus, Defendant 2’s act of borrowing in this case constitutes a legal invalidation).

2) However, in the case of the crime of breach of trust, the term "when the act of breach of trust inflicts property damage" includes not only a real damage but also a case where the risk of actual damage to property is caused, and even if the act of breach of trust is null and void by legal judgment, in the case where the act of breach of trust actually inflicts property damage on the principal or the risk of actual damage to property is caused by the act of breach of trust by understanding it from an economic point of view, it constitutes property damage (see Supreme Court Decision 94Do3013, Dec. 22, 1995, etc.). It is examined whether the act of the loan in this case causes the risk of actual

According to the witness’s statement in the 18th trial record, the details of Non-Indicted 20, the submission of inspection, and other details of bad debt depreciation expenses (the evidence No. 2010Dahap1541, the evidence No. 1541, the evidence No. 66). Non-Indicted 1 did not urge Non-Indicted 3 to repay the above claim. Non-Indicted 1 to compensate for bad debt, which is the equivalent amount to the above claim against Non-Indicted 3 as of the end of 2008, it can be acknowledged that Non-Indicted 1 dealt with bad debt depreciation because of the occurrence of loans for coal purchase for the joint coal business, which is the amount equivalent to the above claim against Non-Indicted 3 as of the end of the 2008. In light of the fact that Non-Indicted 1 did not request repayment of the above claim to Non-Indicted 3, the procedure for recovery of the claim was not commenced, and on the contrary, it is difficult to recover the bad debt.

3) Ultimately, even based on each evidence submitted by the prosecutor, it is difficult to acknowledge the fact that Nonindicted Co. 3 suffered loss due to the instant borrowing act, and there is no other evidence to acknowledge it otherwise.

D. Conclusion

Therefore, it is insufficient for Defendant 1 to recognize that the funds 2.62 billion won for Nonindicted Co. 1 was directly presented to the bonds company, so it is difficult to view that Defendant 1 lent the above amount to Nonindicted Co. 3. In addition, in the case of Defendants 2 and 4, it is unclear whether there was actual act of borrowing the funds in this case as above, and even if there was such act of borrowing, it is difficult to deem that Nonindicted Co. 3 suffered losses due to the act of borrowing the funds in this case conducted without the resolution of the board of directors. Other evidence submitted by the prosecutor alone is difficult to recognize each of the above charges. Ultimately, the above charges against Defendant 1, 2, and 4 constitute the case where there is no proof of crime, and thus, they are acquitted pursuant to the latter part of Article 325

Grounds for sentencing

A. Defendant 1

[Scope of Punishment] Imprisonment with prison labor for not less than 2 years and 6 months but not more than 11 years and 3 months;

[Special Person] When a large number of victims (including workers, shareholders, creditors, etc.) has been caused, or when a serious damage has been caused to the victim

[Special Mitigation] Ad hoc Inspector

[Multiple Crime Criteria] Selection of a range of types and sentences in consideration of the total amount of each profit and all the circumstances

[Extent of Recommendation] Type 4 (at least 5 billion won, at least 30 billion won), basic territory;

From 4 to 7 years of imprisonment;

[General Mitigation] Where a person fails to consume most of criminal proceeds and fails to retain them;

No history of criminal punishment

[Pronouncement Decision] Defendant 1 violated his/her duty to preserve and manage the company’s assets as a manager and representative director of Nonindicted Co. 1, who was a corporation listed on KOSDAQ, thereby appropriating funds amounting to KRW 1.6 billion and causing damage to the company through the issuance of promissory notes amounting to KRW 7 billion. Also, due to the misappropriation and breach of trust by the representative director, the examination of delisting quality of Nonindicted Co. 1 was conducted on the ground of misappropriation and breach of trust, causing damage to the company’s officers and employees, multiple shareholders, and creditors. The above act by Defendant 1 lacks the principal duty to promote the development of investors and creditors, and as a manager to pursue profit-making, it was inevitable to punish Defendant 1, who did not have been subject to criminal punishment. However, it was difficult to view that Defendant 1’s above act was committed by Nonindicted Co. 1, who was already aware of his/her initial demand to intervene in the company’s capital or to take over the company’s funds from Nonindicted Co. 1 in the process of reliance and acquisition of Nonindicted Co. 1’s liabilities.

B. Defendant 3

[Scope of Punishment] Imprisonment with prison labor for not less than five years but not more than 15 years

[Special Person] When a large number of victims (including workers, shareholders, creditors, etc.) has been caused, or when a serious damage has been caused to the victim

Where the Criminal Code is extremely poor;

[Extent of Recommendation] Type 4 (at least 5 billion won, at least 30 billion won), the area of aggravation;

From 5 to 8 years of imprisonment;

[General Mitigation] In the case of not occupational embezzlement or breach of trust

[Pronouncement Decision] Defendant 3 provided a critical cause to de-listing Nonindicted Company 1 by reliance on the financial support of Nonindicted Company 1 and having Defendant 1 conduct business for the benefit of Defendant 3, not Nonindicted Company 1. In addition, Defendant 3 actively demanded Defendant 1’s breach of trust and actively participated in the crime in general, and had Nonindicted Company 1 waive an objection against compulsory execution by taking account of the fact that Defendant 1’s collection of claims based on the Promissory Notes, and again, Defendant 3 had Nonindicted Company 1 withdraw the performance of duties of Nonindicted Company 1’s management, and thus, Defendant 3’s withdrawal of the order and punishment by taking into account the following circumstances: (a) Nonindicted Company 1’s withdrawal of the order by Nonindicted Company 1’s executive officer and creditors, which expect a reasonable management judgment of the management of the KOSDAQ-listed company; and (b) Defendant 3’s withdrawal of the order and punishment by taking into account the aforementioned circumstances; and (c) Defendant 3’s withdrawal of the order and punishment by the Defendant 1’s unlawful act.

Judges Shin Young-chul (Presiding Judge)

Note 1) The “○○○○○” of the indictment is apparent that it is a clerical error in the “Nonindicted Company 1” and thus it is corrected.

Note 2) The first part was indicted as “the withdrawal by a cashier’s check equivalent to the same amount and the payment to Nonindicted 9.” However, there is insufficient evidence to acknowledge that Defendant 1 released KRW 600 million by a cashier’s check and sent it to Nonindicted 9. However, Defendant 1 stated that he withdrawn KRW 600 million from the passbook of Nonindicted Company 1 and paid it to Nonindicted 9. Nonindicted 9 also stated that Defendant 1 received KRW 600 million from Defendant 1 around the above temporary date, and that the fact-finding as indicated in its reasoning does not interfere with Defendant 1’s right to defense. Thus, Defendant 1’s criminal facts are acknowledged ex officio without changing the indictment.

(3) From March 27, 2008 to July 17, 2008, Defendant 2 also held office as a director of Nonindicted Company 1 (former mutually owned company △△△△△△△), a director.

Note 4) According to the above agreement, Nonindicted Co. 3’s share price shall be at least KRW 2,852 on the basis of the closing price. [Calculation Form] 2,852 won x 2.7 million note = 7.4 billion won (the rent of KRW 110% is KRW 7.7 billion)

(5) Defendant 3’s operating company is Nonindicted Co. 29, △△△ Incorporated Co., Ltd. (formerly, Nonindicted Co. 5), Nonindicted Co. 28, Nonindicted Co. 31, Nonindicted Co. 30, and Nonindicted Co. 37 (Local Co., Ltd., Ltd., Co., Ltd., Ltd., Ltd., hereinafter referred to as “Nonindicted Co., Ltd.”).

6) Nonindicted 26, the representative director of Nonindicted 24 Company, was present as a witness in the related case (Seoul Central District Court Decision 2010Dahap81, Seoul Central District Court Decision 2010Dahap81, and Defendant 3 testified that there was no agreement that Defendant 3 would not exercise the warranty as above (Evidence 8, 201Dahap336, No. 803-406).

Note 7) In this court, Nonindicted 15 loaned his name upon Defendant 4’s request that he borrowed his name in connection with the acquisition of Nonindicted Company 3, and the latter was made by Defendant 4.

8) Defendant 3’s relative.

9) The acquisition agreement between Defendant 1 and Nonindicted 2 was concluded twice on July 18, 2008 and July 23, 2008, but both parties decided to invalidate all the contracts previously concluded on August 28, 2008. Nonindicted 2 was in management after the conclusion of the contract as of July 23, 2008, but the status of the registered director and the nominal largest shareholder was maintained until the end of March 2009, and was returned to the management manager of Nonindicted 1 on October 2009 (Evidence 345, 346, 2010Gohap14, Evidence No. 930, 130, 28-28, 2901, 2014, 1301, 204, 1301, 2014, 2014, 1351, 2014, 2015, 2014, 15315, 13614, 1514

10) Nonindicted Company 1 did not disclose the fact that the largest shareholder was changed.

11) In fact, Nonindicted 9 and Nonindicted 58 resigned from Nonindicted Company 1’s director on July 17, 2008.

12) Since June 30, 2008, the share price of Nonindicted Co. 3 was continuously diminished (201 high-class 336,51, 2466-2). The approximate share price trend was KRW 3,880 on June 27, 2008, KRW 300 on July 17, 2008, KRW 29,920 on July 29, 2008, KRW 840 on July 30, 2008, KRW 2,840 on August 14, 2008, KRW 2,420 on August 14, 2008, KRW 640 on August 26, 2008, KRW 200 on August 26, 2008, KRW 200 on July 28, 208, KRW 75,208 on July 28, 2008.

13) On July 23, 2008, between Nonindicted 2 and Defendant 1 refers to a contract for acquisition by transfer of management rights between Nonindicted 2 and Defendant 1.

14) The articles of incorporation of Nonindicted Party 1: (Purpose) Article 2 (Purpose) 1-13; (Omission; hereinafter the same shall apply); 15. Real estate development, sale, lease, sale, supply, consulting, etc.; 17. The development and operation of domestic and overseas resort facilities; 18. The development and operation of clothing, precious metals, liquid dust, leather, manufacture, sale, and distribution of leather; 19. Export and Import of Goods; 20. The manufacture and sale of advertisements and advertisement on 23. 24. The business related to the lottery on 24. 25. Management of management and brokerage business related to the lottery business on 26.

(15) Since September 17, 2008, Defendant 1 brought the corporate seal, etc. of Nonindicted Company 1 to the inside of the company (the period managed by Nonindicted Company 4 for two months).

Note 16) Defendant 3 refers to Defendant 3.

(17) ① The Investment Contract dated July 16, 2008: the purchase of 33% of the shares in Nonindicted Company 59 in KRW 2.8 billion. ② The Investment Contract dated August 14, 2008: the purchase of 33% of the shares in Nonindicted Company 59 in KRW 4.7 billion (the actual amount of claim at that time is KRW 3.6 billion) ③ The monetary lending contract of this case (as of September 18, 2008: the purchase price is the same (the actual amount of claim at that time is the same as the investment contract as of August 14, 2008); the purchase price is the same (as of August 14, 2008), the shares is changed to 40%; 4.66 billion shares in KRW 3.6 billion (as of October 14, 2008, 201; 3.6.36777-1389, 2013, evidence evidence 20036136.361.

Note 18) The above arrangement was invalidated by Nonindicted 39’s waiver of investment, which had attempted to acquire Nonindicted Company 3 with Defendant 4 at the beginning.

Note 19) The joint and several sureties of this case is named.

Note 20) Of the instant monetary lending contract, the part concerning the borrowed money was finalized as stated in the document appended to the said note.

Note 21) around September 16, 2008, Nonindicted Co. 3’s share price of KRW 1,420, KRW 1,520 on the 17th day of the same month, KRW 1,295 on the 18th day of the same month (Evidence 1, 294 on the 1st day of the same month).

Note 22) 38 pages of the 17th trial record on the examination of witness Nonindicted 4

Note 23) During the period of August 2008, Nonindicted Co. 4 stated from this Court that Nonindicted Co. 1 did not account for lending KRW 2.62 billion to Nonindicted Co. 3, 2008, and Nonindicted Co. 3 did not contain any money, and Nonindicted Co. 1 did not have any money borrowed.

심급 사건

서울중앙지방법원 2012.4.13.선고 2010고합1437,2010고합1473(병합),2010고합1541(병합),2011고합336(병합),2011고합1255(병합)

-서울고등법원 2012.11.29.선고 2012노1232

-대법원 2013.4.11.선고 2012도15890

본문참조판례

-10고합81, 225, 448 중앙지법