Defendant 1 and one other

Defendants

The completion of the filling-up, the encouragement of prosecution, and the public trial in the order of gambling.

Law Firm Jeongam et al.

Seoul Central District Court Decision 2015Gohap1046, 2016Gohap351 (Consolidated) Decided September 2, 2016

The judgment of the court below is reversed.

Defendant 1 (board: Defendant 1) shall be punished by imprisonment with prison labor for five years and by imprisonment with prison labor for four years.

Among the facts charged in this case against Defendant 1, the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Additional Economic Crimes) and the violation of the Aggravated Punishment, etc. of Specific Economic Crimes

The summary of the judgment of innocence shall be disclosed to the Defendants.

1. Summary of the Defendants’ grounds for appeal

A. Defendant 1

1) Note 1 misunderstanding of facts

A) Violation of the Specific Economic Crimes Act (Misappropriation)

The instant sales contract was rescinded on December 31, 2014, since the Defendant did not express his/her consent to the proposal made by the victims until December 31, 2014, which was specified in the notice of December 16, 2014, sent by the proxy of the victim Nonindicted 6 and Nonindicted 7 (hereinafter “victims”) (hereinafter “victims”). The Defendant explained that the demand for compensation by the victims cannot be accepted upon the arrival of the victims on April 8, 2015, with Nonindicted 8’s mediation that arranged the instant sales contract. The Defendant sold to Nonindicted 4 and Nonindicted 5 (hereinafter “Nonindicted 4, etc.”) on April 13, 2015, which was the agreement with the victims to cancel the instant sales contract, and completed the registration of ownership transfer. Therefore, this crime is not established.

The victims did not intend to maintain the instant contract. The victims did not take any measures such as disposal deposit and provisional disposal with respect to the building of ○○○○○ underground floor and the share in the land (hereinafter “instant real estate”) on April 13, 2015, without knowing that the Defendant sold the instant real estate to Nonindicted 4, etc. on April 21, 2015. The Defendant, at least, believed that the instant contract was rescinded, sold the instant real estate to Nonindicted 4, etc., and had no intention to commit a crime of breach of trust. Sales to resolve the instant real estate in a situation where the instant contract was not performed, should be deemed as one’s own business or as another’s business.

B) Violation of the Specific Economic Crimes Act (No. 2)

When the defendant and the defendant 2 purchased the bill of exchange of this case and paid the price, they agreed to divide the money and paid KRW 400 million to the defendant 2. In addition to the violation of the Act on the Aggravated Punishment of Specific Economic Crimes (Fraud), the crime of violation of the Aggravated Punishment of Specific Economic Crimes (Proof) cannot be established separately.

2) Unreasonable sentencing

The punishment sentenced by the court below (seven years of imprisonment) is too unreasonable.

B. Defendant 2

1) Meritorious legal principles: Violation of the Specific Economic Crimes Act (Acceptance of Property)

Since the defendant received KRW 400 million from the defendant 1 received part of the profits of KRW 5.2 billion due to the violation of the Specific Economic Crimes Act (Fraud), the crime of violating the Specific Economic Crimes Act is not established separately. In light of the financial condition or credit rating of the non-indicted 9 corporation (hereinafter "non-indicted 9 corporation") at the time, the defendant is unable or difficult to purchase the export bill. However, the defendant 1 conspired to receive part of the purchase price of the export bill, and then purchased the export bill and actually distributed KRW 400 million out of the purchase price of the bill of exchange from the defendant 1. Thus, the crime of violating the Specific Economic Crimes Act is not established separately from the crime of violating the Specific Economic Crimes Act (Fraud).

2) Unreasonable sentencing

The punishment sentenced by the court below (7 years of imprisonment, a fine of 400 million won, additional collection of 400 million won) is too unreasonable.

2. Determination

A. Judgment on the misunderstanding of facts and misapprehension of legal principles by the Defendants

1) Defendant 1's violation of the Specific Economic Crimes Act (Misappropriation of trust)

A) Summary of this part of the facts charged

피고인은 2014. 8. 20. 서울 금천구 (주소 2 생략) □□□□□□□□ ◇◇◇◇◇ 소재 ☆☆☆☆☆ 공인중개사 사무실에서 피해자들과 사이에, 피해자들에게 피고인 및 공소외 1, 공소외 2, 공소외 3 공동 소유인 이 사건 부동산을 매도하는 계약을 체결하였다. 피고인은 피해자들로부터 계약 당일 계약금 2억 원을, 2014. 9. 30. 중도금 6억 원을, 2014. 11. 30.에 이 사건 부동산에 관한 소유권이전등기에 필요한 서류와 상환으로 잔금 5억 8,000만 원을 지급받기로 약정하였다.

The Defendant received KRW 200,000 from the victims on the date of the contract pursuant to the above agreement to the head of the ▽▽△ bank passbook in the name of the Defendant, and received KRW 600,000 from the same account on September 30, 2014. As such, on November 30, 2014, the duty to receive the balance and to implement the procedure for ownership transfer registration of the instant real estate to the victims was incurred.

피고인은 위와 같은 임무에 위배하여, 2015. 4. 13. 서울 금천구 (주소 3 생략) 지하 1층 ◎◎◎◎◎ ◁◁◁◁공인중개사 사무소에서 공소외 4 등에게 대금 15억 원에 이 사건 부동산을 매도하고, 같은 달 17. 서울 구로구 공원로 21 소재 서울남부지방법원 구로등기소에서 이 사건 부동산에 대한 소유권이전등기를 마쳐주었다.

Accordingly, the Defendant acquired property benefits equivalent to KRW 110 million, which is the amount obtained by deducting the maximum debt amount of the right to collateral security established on the instant real estate at the time of the transfer of ownership from KRW 1.5 billion, from the market price of the instant real estate, and incurred damages equivalent to the same amount to the victims.

B) The judgment of the court below

The lower court, as indicated in its reasoning, determined that: (a) where the object of sale is real estate; (b) the seller is in the position of “a person who administers another’s business”; and (c) where a person in such position disposes of the object again to a third party, he/she shall be liable for the breach of trust; (d) the Defendant dually sold the object to Nonindicted 4, etc. on April 13, 2015 when he/she received the down payment and the intermediate payment from the victims; (b) the notification of the victims sent the victims to the Defendant on December 16, 2014 when he/she requested for an agreement on compensation for damages; (c) the seller could not be deemed as an expression of intent to rescind the instant sales contract; and (c) the victim’s non-indicted 6 attempted to lawfully sell the real estate under the premise that the agreement on the transfer of ownership was not concluded until April 15, 2015; and (d) the Defendant could not be deemed as having been aware that the instant sales contract had been terminated.

C) The judgment of this Court

[ 요지 : 상호 대립적인 지위에서 각자의 이익 추구를 목적으로 쌍무적인 거래관계를 형성한 당사자의 일방이 타방에 대하여 부담하는 계약상 채무를 이행하여야 하는 지위가 타인의 사무처리자에 해당한다고 보아 이를 배임죄로 처벌하기 위해서는 그 계약에 내포된 상대방의 재산상 이익의 보호를 배려할 신의칙상 의무를 넘어 그러한 보호, 배려 의무를 전형적, 본질적 내용으로 하는 신임관계가 형성되어 있고, 이를 위반하는 행위가 상대방의 계약상 권리 실현의 기회를 박탈하는 배신행위에 해당하여 그 위반행위에 대한 형벌법규의 개입을 정당화할 정도에 이를 것을 요한다고 보아야 할 것이다. 이는 동산 매매의 경우 쌍방이 그 계약의 내용에 쪼ㅈ은 이행을 하여야 할 채무는 특별한 사정이 없는 한 ‘자기의 사무’에 해당하는 것이 원칙임을 전제로, 매도인에게 자기의 사무인 동산인도채무 외에 별도로 매수인의 재산의 보호 내지 관리 행위에 협력할 의무가 있다고 볼 수 없다는 이유로 그 이중 매매에 따른 배임죄의 성립을 부정한 대법원 2008. 11. 17. 선고 2008도10479 전원합의체 판결 , 동산 매매의 경우와는 달리 소유권이전등기의무까지 수반되는 채권 담보를 위한 대물변제예약 사안에서, 계약상 채무의 자기 사무 여부에 관한 위와 같은 법리를 전제로 채무자가 대물로 변제하기로 한 부동산을 제3자에게 처분하였다고 하더라도 타인의 사무처리자로서 임무위배행위에 해당하지 않는다고 본 대법원 2014. 8. 21. 선고 2014도3363 전원합의체 판결 , 신임관계에 대한 배신이라는 점에서 배임죄와 본질을 같이하는 횡령죄의 성립이 문제된 중간생략형 명의신탁 약정 사안에서, 처벌대상이 되는 위탁신임관계는 형벌법규로서 보호할만한 가치 있는 신임관계에 의한 것으로 한정함이 타당하다는 이유로 수탁자의 신탁자에 대한 보관자 지위를 부정한 대법원 2016. 5. 19. 선고 2014도6992 전원합의체 판결 등 일련의 판례에 비추어도 그러하다. 매매계약을 임의로 해제할 수 없는 상태에 이르렀다는 사정만으로 언제나 매도인이 매수인을 위하여 소유권이전의무의 이행에 관한 사무처리자의 지위에 서게 된다고 볼 수 없고, 상호간 신임관계가 파탄에 이르러 각자의 권리의무관계에 기초한 민사적인 보전, 확보 내지 정산이 예상되고 그러한 민사적인 권리보전 등 절차의 진행에 특별한 장애 사유가 존재하지 아니하는 등 구체적인 상황에 따라서는 타인의 사무처리자 지위 내지 배임죄의 성립을 부정하여야 할 경우도 있을 수 있다. 이 사건의 경우, 피고인과 피해자들 사이의 이 사건 부동산 매매계약의 체결과 이행, 분쟁 및 교섭과 결렬의 경과와 내막 등 구체적인 사정에 비추어 볼 때, 피고인이 이 사건 부동산을 제3자에게 이중으로 매도할 당시 피해자들과 사이에 피해자들을 위한 형법상 보호가치 있는 사무처리자의 지위를 인정할 만한 신임관계가 존재한다고 보기 어렵고, 나아가 피고인에게 그러한 배임의 고의나 불법이득의 의사가 인정된다고 단정하기도 어렵다. 그 구체적인 논거 및 관련 사실관계는 아래와 같다. ]

(1) The crime of breach of trust is established when a person administering another’s business obtains pecuniary benefits from an act in violation of his/her duty and causes damage to another person, who is the subject of the business, so the subject of the crime must be in the position of administering another’s business. Here, in order to be “a person administering another’s business,” the subject of the crime should be in the position of administering another’s business. In order to be “a person administering another’s business,” the intrinsic content of the relationship between the parties should go beyond a simple obligation under a fiduciary relationship and be in protecting and managing another’s property based on a fiduciary relationship

In addition, a contract becomes effective when one of the parties agrees to transfer a property right to the other party and the other party agrees to pay the price thereof (Article 563 of the Civil Act). In principle, barring any special circumstance, the obligation that the other party has to perform in accordance with the terms and conditions of the contract constitutes “one’s own business”. In cases where the subject matter of sale is movable property, the seller has completed the performance of the contract by transferring the subject matter in accordance with the terms and conditions of the contract, and the buyer acquires the right to the subject matter of sale. As such, the seller is not obligated to cooperate with the seller in protecting or managing the buyer’s property, in addition to the obligation to transfer the movable property, in addition to his/her own business. Since the seller is not in a position to handle his/her business against the buyer, even if the seller disposes of the subject matter without delivering it to the buyer, it does not constitute a crime of breach of trust under the Criminal Act (see, e.g., Supreme Court en banc Decision 2008Do10

As stated in the Majority Opinion concurring with the above en banc Decision, interpreting penal provisions strictly and excessively or analogically in the direction unfavorable to the defendant is not permissible as it is contrary to the principle of no punishment without the law. Furthermore, enforcing discipline by penal provisions prior to the resolution of disputes by civil means in the area of economic activities governed by the principle of private autonomy is likely to infringe upon individual freedom by excessive intervention and incompetence, and as well as causing negative effects that may distort autonomous adjustment in the private sector. In general, in light of the fact that all contracts include the duty of the principle of no punishment with which the protection of the other party’s property interests should be considered as “a person who administers another’s business” as referred to in the crime of breach of trust, one party to a contract should not be deemed as bearing the above duty under the principle of no punishment without considering the other party’s duty to protect or manage the other party’s property, and thus, it should be interpreted that, even if one party to a contract disposes of another party’s property in the form of a trust relationship with the other party’s property, one party to a contract cannot be recognized as an intermediate payment.

The Supreme Court held that the crime of breach of trust is not established under the Criminal Act even if a debtor disposes of the real estate to be repaid in substitute to a third party in the pre-contract for payment in substitutes for bond security (see Supreme Court en banc Decision 2014Do3363, Aug. 21, 2014). It can be seen as a position to strictly interpret a person who administers another's business in the same context as the majority opinion of the en banc Decision 2008Do10479, supra.

Furthermore, barring any special circumstance, inasmuch as the seller’s obligation to pay the balance and the seller’s obligation to register transfer of ownership are concurrently performed, the buyer may expect to a certain extent to perform the seller’s obligation to register transfer of ownership through simultaneous performance defense. In order to avoid the risk of advance payment of part payments, an agreement between the seller and the intermediate payment is possible and where such agreement is possible, the risk of advance payment would be avoided). ② Even in cases where the buyer is liable to first pay part payments without the buyer’s ownership, provisional registration is completed to preserve the performance of ownership transfer registration after consultation with the seller at the time of payment of part payments, or where it is difficult to expect the seller’s cooperation, provisional registration is made solely upon receiving a provisional disposition order from the court (Article 89 of the Registration of Real Estate Act), or upon receiving a provisional disposition order from the seller (Article 89 of the Registration of Real Estate Act), it is difficult to view that the buyer can take measures to protect the seller from double sale on account of the cancellation of a sales contract against the seller, and thus, it is difficult for the seller to bear the burden of double payment of damages in light of civil law.

(2) Meanwhile, the intention of the crime of occupational breach of trust is established in combination with the perception that the person who deals with another's business would inflict property damage on the principal and that the intention of the person himself/herself or a third person's pecuniary gain is in violation of his/her duty. The subjective element of the crime of occupational breach of trust (such as intention, motive, etc.) lies in the case where the defendant denies his/her criminal intent by asserting that he/she committed an act at issue for his/her own interest, it shall be proved by the method of proving indirect facts having considerable relevance with the intention due to the nature of the object, and what constitutes indirect facts having considerable relation should be determined by the method of reasonably determining the link of facts based on the sound observation or analysis capacity based on normal empirical rule (see, e.g., Supreme Court Decisions 9Do334, Apr. 11, 200; 2008Do8356, Feb. 25, 2010).

(3) In light of the following circumstances acknowledged by the lower court and the evidence duly adopted and examined by this court, even though it is difficult to conclude that the Defendant received intermediate payments from the victims pursuant to the instant sales contract, and that the instant sales contract between the Defendant and the victims was objectively rescinded, and that the Defendant’s assertion was not ultimately accepted in the civil trial, it is difficult to conclude that the Defendant was in the position of a person in charge of another (victims)’s business, in view of the fiduciary relationship with the victims at the time of double sale, and that the instant sales contract was de facto or implicitly rescinded by the victims, and that there remains a problem of restitution and compensation for damages following the rescission of the instant sales contract, and it is difficult to conclude that the intention of double sale has been recognized. The evidence submitted by the Prosecutor alone cannot be deemed to have proven the status of a person in charge of another’s business, and there is no evidence to acknowledge otherwise. The lower court’s assertion that the Defendant’s intent of breach of trust or the intent of wrongful acquisition of another person’s business was erroneous.

① On August 20, 2014, the Defendant entered into a sales contract with the victims on August 20, 2014, and received intermediate payments on September 30, 2014 as the agent of Nonindicted 1, 2, and 3. The victims were aware of the purchase of the instant real estate with the economic motive to engage in restaurant business from the instant real estate, and the Defendant was also aware of this. At the time of the instant sales contract, Nonindicted 10 Co., Ltd. (hereinafter “Lessee”) was running a restaurant business on a deposit basis of KRW 25 million, rent, and KRW 6 million from the Defendant, and the victims were also aware of the fact that there was the said lessee. On November 20, 2014, the Defendant, who was handed over the instant real estate from the lessee at the expiration of the lease contract, was anticipated to be able to deliver it to the victims in accordance with the instant sales contract.

② Although the Defendant notified the lessee of the refusal to renew the contract, the lessee refused to deliver the instant real estate while disputing the validity of the refusal to renew the contract, and accordingly, the Defendant also was unable to deliver the instant real estate to the victims pursuant to the instant sales contract. On December 19, 2014, the Defendant filed a lawsuit against the lessee to request the delivery of the instant real estate on December 19, 2014, Seoul Central District Court 2014Da5349487, but the lessee asserted that the period was expired until December 22, 2017 or November 30, 2015, which was 1 year from the date when the first lease was made pursuant to the Commercial Building Lease Protection Act, and the lessee could not deliver the instant real estate until the expiration of the contract.

③ The Defendant was unable to deliver the instant real estate to the victims due to the dispute with the lessee, and the victims had failed to achieve the economic purpose of restaurant business in the instant real estate, as long as the dispute has not been settled. The benefit of maintaining the instant sales contract was not significant.

④ On December 27, 2014, the notification of December 27, 2014, which was sent to the defendant by the representative of the victims, would be cancelled the sales contract of this case and filed a claim for down payment and intermediate payment (return of down payment) and special damages by restitution to the original state, without accepting the terms and conditions of the request of the victims (the expected profit rate of KRW 202,50,000 through KRW 24,300,000 per month during the three-month grace period for the delivery of the real estate of this case). The Defendant considered that the demand was excessive compared to the monthly rent of KRW 6,00,000, which was received from the lessee of the real estate of this case, and did not accept the required conditions.

If a written notification does not accept the requirements, the instant contract will be rescinded, and if the Defendant did not make a decision by December 31, 2014, there was room to think that the victims did not intend to maintain the instant contract and would mainly discuss the issues such as restitution following the rescission of the instant contract and the form of compensation for damages. The Defendant stated that “the victim notified that he would terminate the instant contract if he did not accept the expected operating income with the content certification” (Evidence No. 100 pages).

⑤ During the process of litigation between the Defendant and the lessee, the victims were punished for negotiations with the Defendant, but the implementation of the instant sales contract has not been completed until April 2015. The victims revealed that ownership can be transferred due to the delay in delivery during the negotiation process. The victims sent their intent to file a lawsuit including the cancellation of the instant sales contract, and the Defendant expressed their intent to terminate the instant sales contract at the time of demanding mitigation of the amount of damages.

The statement of the relevant persons, including Nonindicted 11 and Nonindicted 8, also correspond to this. Nonindicted 11, an attorney representing the Defendant in the lawsuit, stated that “In the event that it is impossible to implement it in accordance with the notification sent by the buyer on December 6, 2014 and the buyer’s side, Nonindicted 11 sent the case to the buyer’s side (Buyer or the other party’s attorney) several times through himself that he/she would compensate for the amount invested in the leased income due to the absence of any intention to continue to exist,” and that “in the event of a dispute, he/she tried to compromise with each other, but failed to mediate, and if so, he/she would have to terminate the contract at the buyer’s side, he/she would have no choice but to fulfill any excessive condition” (Evidence record 140).

Nonindicted 8, who mediated the instant real estate and delivered the intent of the Defendant and the victims in the course of negotiations on March 10, 2015, told that “the victim would be no longer able to prepare for a lawsuit.” Before the victim’s litigation was delivered, the Defendant stated that “the victim would be no longer able to take any action at any time, but would respond to the case.” (see, e.g., Supreme Court Decision 2015) on March 8, 2015, the Defendant expressed that “the victims would no longer wait,” and that “the purchaser would go against the lawsuit.” If the purchaser was aware of the agreement or such agreement, it was said that he would have been able to terminate the contract by the lawsuit, but did not implement it (see, e.g., Supreme Court Decision 149, 150 pages), and that the Defendant did not reach an agreement with the lessee on April 8, 2015 that he would have received ownership transfer, or would have received the terms and conditions of the trial.”

(6) On April 2015, the Defendant expressed the victim’s intent to terminate the contract, including the rescission of the instant sales contract, through Nonindicted 8 at the beginning of April 2015, and the victim appears to have started to specifically devise countermeasures, such as lawsuits, which were caused by the rescission of the instant sales contract.

The Defendant stated that “Until the early April 8, 2015, the victims could not be performed in accordance with the notification sent by Nonindicted 8 and notified the termination of the contract” (Evidence No. 97 pages), and that “The evidence record No. 108 pages) would not be sold in any other place” (Evidence No. 108 pages). The victim Nonindicted 6 also appeared in the office of the Defendant and the broker on April 8, 2015. It was good if the agreement was reached, and it was in fact waiting for the victims to file a lawsuit, but the seller would be more willing to do so (the record No. 151, No. 152 of the trial record), and that the seller would not be able to take any advantage of the following facts: (a) the seller’s statement to the effect that it would not be able to take a provisional registration on April 18, 2015; and (b) the seller’s statement to the effect that it would not be able to take any advantage of the basic taxation principle of the safety device.

7) On April 13, 2015, immediately before double sale, the Defendant and the victims agreed to enter into negotiations, and the Defendant asserted that the instant contract was not entered into for the reduction of KRW 60 million. However, the victims refused negotiations upon the request of KRW 110 million.

As long as the content of the notification sent by the victims, the victims, and the defendant interpreted the terms of negotiation, etc. in favor of themselves, and did not intend to perform the original contract, and negotiation on the requirements has been concluded, it is possible to conclude that the instant contract was rescinded in accordance with the content of the notification, and that double sale was possible. The Defendant stated in an investigative agency that “The victim sent the notification, and that the contract was rescinded when the content of the notification is not fulfilled.” The Defendant stated that “The contract was rescinded when the victim sent the notification, and the contract was not fulfilled in accordance with the notification, and that the contract was destroyed,” and that he was aware of the fact that the contract was destroyed and the third party was discharged to the victim (Evidence 7 page).

At the time of double sale by the Defendant, unlike the anticipated circumstances at the time of the instant sales contract, the Defendant was in a position in which the lessee could not deliver the instant real estate from the lessee to the victims because the dispute arose over the validity of the refusal to renew the contract, and was unable to deliver the instant real estate to the victims at will, and the victims were in the position of not receiving transfer of ownership until accepting the required conditions, and thus, it is difficult to readily conclude that the Defendant and the victims maintained trust and expectation that transfer of ownership pursuant to the instant sales contract would be carried out, and that there was a duty under the good faith principle to cooperate in the victims’ acquisition of ownership.

8) On April 21, 2015, the victims filed a lawsuit including an expression of intent to cancel the instant sales contract on April 21, 2015, immediately after the double sale without knowing the Defendant’s double sale (Seoul Central District Court Decision 2015Gahap527576), and considering the time required for the preparation for litigation, there was a possibility that the instant sales contract would not have been terminated at the time of double sale because the Defendant could not have been able to maintain the instant sales contract at the time of double sale, and the victims did not take measures for the preservation of provisional disposition, etc., five weeks where the victims did not take measures for the prohibition of disposal) also made a decision that there was little practical benefit from the implementation of the instant sales contract

9) On April 27, 2015, immediately after double sale to Nonindicted 4, etc., the Defendant deposited the down payment and intermediate payment of KRW 800 million against the victims. Considering that the instant sales contract was rescinded, it is likely that the Defendant conducted deposit procedures to early adjust legal relations arising from the cancellation of the instant sales contract after double sale.

(10) In order to prevent double sale, the victims planned to compensate for damages as civil protective measures, and received damages therefrom by filing a lawsuit based on the aforementioned estimate of damages after double sale. The victims asserted that the contract of this case was concluded between the Defendant and the Defendant, and the scheduled amount of damages was equivalent to KRW 200 million as the scheduled amount of damages in the above lawsuit filed against the Defendant, and the court partially reduced the estimated amount of damages to KRW 150 million on the ground that the estimated amount of damages was unfairly excessive. The above lawsuit was dismissed and finalized around that time.

2) The defendants' violation of the Specific Economic Crimes Act (such as evidence, loss, etc.)

A) Summary of this part of the facts charged

(1) Defendant 1’s violation of the Specific Economic Crimes Act (Evidence, etc.)

피고인 1은 2015. 11. 25. ▽▽은행 ▷▷▷지점 주차장에서 피고인 2에게 ‘그동안 네고(어음 매입)하는데 수고했다’라는 인사와 함께 1억 원 권 자기앞수표 4장을 교부하였다.

Accordingly, Defendant 1 granted KRW 400 million to Defendant 2, who is an executive officer or employee of a financial company.

(2) Defendant 2's violation of the Specific Economic Crimes Act (Acceptance of Property)

피고인 2는 2015. 11. 25. ▽▽은행 ▷▷▷지점 주차장에서 위와 같이 피고인 1로부터 ‘그동안 네고(어음 매입)하는데 수고했다’라는 인사와 함께 1억 원 권 자기앞수표 4장을 교부받았다.

Accordingly, Defendant 2, an executive officer or employee of a financial company, received KRW 400 million from Defendant 1 in connection with his/her duties.

B) The judgment of the court below

The court below found Defendant 2 guilty on the grounds that taking account of the circumstances as stated in its reasoning, including the contents and form of the Defendants’ statement changes, the contents and form of the loan certificate, the use of KRW 400 million received by the Defendants, and whether the Defendants paid KRW 400 million, Defendant 2 received KRW 100 million cashier’s checks from Defendant 1, and it cannot be deemed as borrowing them.

C) The judgment of this Court

If the receipt of money received as a result of a joint fraud does not only constitute an internal distribution of money or property profits acquired by a crime between co-principals, the receipt of such money cannot be deemed to constitute a separate crime of giving and receiving property in breach of trust (see, e.g., Supreme Court Decisions 2015Do18795, May 24, 2016; 2015Do1835, May 26, 2016). Such a legal principle can equally apply to the relationship between the violation of the Act on the Aggravated Punishment of Specific Economic Crimes (Fraud) and the violation of the Aggravated Punishment of Specific Economic Crimes Act (Evidence, etc.).

원심이 적법하게 채택하여 조사한 증거들에 의하여 인정되는 다음 사정들, ① 이 부분 공소사실에 의하더라도 피고인 1은 피고인 2에게 피해자 ▽▽은행의 수출환어음 매입에 대한 대가로 4억 원을 교부하였다고 되어 있는 점, ② 피고인 1이 공소외 9 회사에 대한 기업신용평가를 좋게 받아 피해자 ▽▽은행으로 하여금 수출환어음을 매입하도록 하기 위해 2015. 10. 8.경 피해자 ▽▽은행 ▷▷▷지점에 공소외 9 회사에 관한 재무제표확인서를 위조하여 제출하였는데, 피고인 2는 이러한 사정을 알면서도 기업신용평가를 상향 평가하여 피해자 ▽▽은행으로 하여금 공소외 9 회사로부터 수출환어음을 매입하도록 하고 2015. 11. 19. 그 매입대금 미화 합계 450만 불을 공소외 9 회사 계좌에 입금하였으며, 상대은행의 어음 결제 여부를 확인하지 않고 1주일이 지나지 않은 2015. 11. 25. 위와 같이 입금된 돈을 인출해주면서 피고인 1에게 자기앞수표를 발행하였고, 곧바로 ▽▽은행 ▷▷▷지점 주차장에서 피고인 1로부터 인출한 1억 원권 자기앞수표 4장을 받은 점, ③ 피고인들은 당초 수사기관 및 원심에서는 주로 돈의 명목이 차용금이라고 주장하면서 편취범행의 대가성을 부인하기는 하였으나, 이 사건 수출환어음 매입 진행과정에서 일이 잘 진행될 경우 피고인 2가 피고인 1로부터 돈을 지급받기로 약정 내지 양해하였다고 볼 수 있는 진술을 한 주7) 점, ④ 피고인들은 당심에 이르러 수출환어음 매입대금의 대가를 미리 수수하기로 약정하고 매입대금이 공소외 9 회사에게 지급된 후 약정한 대로 돈을 받았다는 사실을 인정하고 있는 점, ⑤ 피고인 2가 위조된 재무제표를 이용한 비정상적인 방법을 사용하여 피해자 ▽▽은행이 공소외 9 회사에게 수출환어음 매입대금을 교부하였다가 회수가 불가능할 경우 감당해야 할 민, 형사상 책임을 감안한다면 자신의 실적 확보라는 동기에 그친다고 보기 어렵고 그 차원을 넘어 피고인 1과 수출환어음 매입대금 편취금에서 상당한 이익분배를 약정하고 그 이익을 기대하였다고 보는 것이 합리적인 점 등을 종합적으로 고려하면, 원심 판시와 같이 피고인 2가 피고인 1로부터 4억 원의 자기앞수표 상당 금원을 차용한 것이 아니라 수출환어음 매입 실행의 대가로 받은 것이라고 인정되지만, 그 대가 지급을 약정한 시기와 관련하여 피고인들이 공모하여 공소외 9 회사가 위조된 재무제표를 작성, 제출하여 피해자 ▽▽은행으로부터 수출환어음 매입대금 명목으로 미화 450만 불을 교부받아 편취하는 경우 피고인 2는 피고인 1과 묵시적으로나마 사전에 이 사건 수출환어음 매입으로 인하여 취득한 이득에 대한 대가를 나누기로 하는 약정이 있었다고 볼 수 있고, 그 공모(약정) 내용에 따라 수출환어음 매입이 실행된 후 실제 4억 원을 교부받았다고 봄이 상당하다. 결국 피고인 2가 피고인 1로부터 교부받은 4억 원은 공동의 사기 범행으로 취득한 돈 중 일부를 내부적으로 분배받은 것에 불과하고, 별도로 그러한 금품수수행위에 관하여 피고인들에게는 특정경제범죄법위반(수재등, 증재등)죄가 성립한다고 볼 수 없다. 원심은 편취한 돈의 분배행위의 성격에 관하여 사실오인 내지 법리오해의 잘못이 있다. 따라서 피고인 1의 사실오인 주장과 피고인 2의 법리오해 주장은 이유 있다.

3. Conclusion

Therefore, the defendants' appeal is justified. Thus, without examining the defendants' assertion of unfair sentencing, the judgment of the court below is reversed pursuant to Article 364(6) of the Criminal Procedure Act, and the following decision is rendered again through pleading.

The summary of the facts constituting an offense recognized by this court and the evidence thereof are as indicated in the corresponding column of the lower judgment, except for deletion of "2015 High Gohap351" and "2016 High Gohap351" and Article 3 and (4) of the "2016 High Gohap351" among the facts constituting an offense and the summary of the evidence. As such, it is consistent with Article 369 of the Criminal Procedure Act.

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

A. Defendant 1: Article 3(1)1 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 13719, Jan. 6, 2016; hereinafter the same) (amended by Act No. 13719, Jan. 6, 2016; hereinafter the same), Articles 347(1), 30 (Fraud, Selection of Imprisonment) of the Criminal Act, Article 231 of the Criminal Act (amended by Act No. 231, Jan. 1, 201; hereinafter the same shall apply), Articles 234

B. Defendant 2: Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347(1) and Article 30 of the Criminal Act (Fraud's point and Selection of limited imprisonment)

1. Aggravation for concurrent crimes;

Defendant 1: former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act [limited to concurrent crimes with punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) with the largest punishment within the scope of adding up the long-term punishments of each of the above crimes]

1. Discretionary mitigation;

Defendant 2: Article 53 and Article 55 (1) 3 of the Criminal Act (see, e.g., Supreme Court Decision 2007Da1448, Apr. 2

1. Defendant 1

(a) The scope of applicable sentences by law: Imprisonment for not less than five years nor more than 40 years; and

(b) Scope of recommendations based on the sentencing criteria: Crimes of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes;

[Determination of Punishment] Fraud>

[Special Aggravationd ] Aggravationd : In a case where the method of commission of crime is very poor 8)

[Scope of Recommendation] 6 years to 9 years (Aggravation)

(c) Determination of sentence;

According to the credit rating of Nonindicted Company 9, the Defendant, even though he was aware that he was unable to engage in a transaction with the victim △▽ bank and export bills of exchange, submitted a forged financial statement confirmation in collusion with Defendant 2, who is an employee in charge of the victim ▽▽△ bank, and acquired approximately KRW 5.2 billion as the price for the sale of the export bills. Not only is the amount acquired by the Defendant, but also the Defendant was aware or could have known that the above letter of credit could not be settled normally, but also the Defendant was aware or could have known of the fact that the said letter of credit could not be settled normally, the Defendant committed a crime in that he was unaware of the financial statement confirmation document by actively forging the financial statement and by deceiving the victim △▽ bank in return for the crime

On the other hand, there is no criminal conviction other than a minor fine, and the defendant has been recognized as committing a crime in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) in the first instance. The amount of profit actually acquired by the defendant due to the fraudulent act is not substantial.

After thoroughly checking the conditions of the credit, such as the SWIF MESAGE, the injured party was somewhat insufficient to take measures to avoid liability, such as amending the terms and conditions of the credit and purchasing export bills from the L/C issuing bank. The Defendant endeavored to pay damages by creating a collateral security right of KRW 990 million with respect to the real estate owned by the Defendant, and KRW 200,000,000,000,000,000 for the maximum debt amount, and KRW 146,60,000,000,000,000,000 won for the above collateral security and the name of the Defendant, and KRW 60,000,000,000,000 won for the retirement pension insurance. As a result of the deliberation at the trial at the trial, the Defendant was excluded from criminal facts due to lack of proof of guilt for the crime

In addition, the defendant's age, character and conduct, motive and circumstance of the crime of this case, means and result of the crime of this case, various sentencing factors as shown in the arguments of this case, such as the circumstances after the crime, and the scope of recommended sentencing guidelines shall be determined as per the order.

2. Defendant 2

(a) Scope of applicable sentences under law: Imprisonment for two years and six months to fifteen years; and

(b) Scope of recommendations based on the sentencing criteria: Crimes of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes;

[Determination of Punishment] Fraud>

【Special Convicted Person】

[Scope of Recommendation] 5 years to 8 years (Basic Area)

(c) Determination of sentence;

피고인은 피해자 ▽▽은행 ▷▷▷지점의 기업금융팀장으로 근무하면서 피고인 1의 피해자 ▽▽은행에 대한 사기 범행에 적극 가담하여 피해자 ▽▽은행에게 약 52억 원의 피해를 입혔고 이와 관련하여 4억 원을 수수하였다. 피고인은 외환업무에 20년 이상 종사하였던 자로서 신용장 사전검토결과를 통해 이 사건 각 신용장이 정상적이지 않고 지급거절될 수 있음을 알았거나 알 수 있었음에도 피고인 1의 편취범행에 적극 가담하여 위조된 재무제표임을 알면서도 허위로 신용등급을 평가하고 수출환어음을 매입하게 하였다는 점, 그 대가로 피고인이 수수한 금원이 4억 원에 이르는 점에서 그 죄질이 상당히 불량하다. 이는 피고인에게 불리한 정상이다.

On the other hand, the defendant does not seem to have reached the crime of this case, even though he had no record of criminal punishment until now, and was aware that each of the credit of this case would not be settled normally, and the defendant has faithfully worked for about twenty years in the victim ▽△ bank, and the defendant was subjected to disciplinary dismissal on May 26, 2016 as the case in this case (it appears that there is no difference in the outcome due to the part which was found guilty in the trial, but it seems that there is no difference in the outcome due to the request for reexamination).

In addition, the defendant's age, character and conduct, motive and background of the crime of this case, means and result of the crime, circumstances after the crime, etc., various sentencing factors as shown in the arguments of this case, and the scope of recommended sentencing guidelines, shall be determined as per the order.

1. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) against Defendant 1

The summary of this part of the facts charged against the defendant is as set forth in Article 2-A(1)(A), but as seen in Article 2-A(1)(c), the above facts charged constitute a case where there is no proof of crime and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act and the summary of the judgment of innocence is publicly announced pursuant to Article 58(2) of the Criminal

2. The defendants' violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Additional Economic Crimes, etc.)

The summary of this part of the facts charged against the Defendants is as stated in Article 2-A-2(a). However, as examined in Article 2-A-2(a)(2) of the Criminal Procedure Act, the above facts charged constitute a case where there is no proof of crime and thus, the Defendants are acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment of innocence is publicly announced pursuant to Article 58(2)

Judges Yang Woman (Presiding Judge)

1) In the statement of grounds of appeal, the Defendant argued the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) on the second day of the trial of the first instance, and withdrawn the grounds of appeal.

2) The Defendant asserted that Defendant 2, who had the right to voluntary retirement, received retirement benefits in the initial statement of grounds of appeal, lent KRW 400 million to Defendant 2, and that Defendant 2 did not grant KRW 400 million in relation to Defendant 2’s duties. On December 9, 2016, the Defendant asserted that the name of KRW 400 million was changed on the date of the second instance trial.

3) Upon consultation with the seller, a method for the buyer’s receipt of intermediate payment from the broker to receive intermediate payment and to simultaneously implement the transfer of ownership and the intermediate payment along with the remainder. However, the buyer’s withdrawal of intermediate payment at the time of the payment of the remainder after opening a bank account under the joint name of the buyer and the seller, and the intermediate payment is made at the time of the payment of the remainder, may also be seen as a method for the buyer’s withdrawal of intermediate

4) In a specific case, the seller’s receipt of any balance from the buyer to the buyer is a state of performing all the counter-payment for the transfer of ownership. As such, there is room to view that the seller’s strong expectations and trust relationship for the transfer of ownership has been formed, and

5) In the instant case, the victims paid intermediate payments, from September 30, 2014, to April 17, 2015, the Defendant had time to make a provisional registration or provisional disposition for more than seven months from September 30, 2014, which was completed the registration of ownership transfer with Nonindicted 4, etc., but did not have time to do so. Nonindicted 6 also recognized that there was time to make a provisional disposition (the trial record 115 pages).

(6) If a seller or buyer of the sales contract of this case fails to perform any of the terms and conditions of this contract, the other party may demand in writing the person who has defaulted and rescind the contract. In addition, the party to the contract may claim damages arising from the cancellation of the contract respectively to the other party, and the contract shall be deemed to be based on the contract deposit, unless otherwise agreed.

주7) 피고인 2는 원심에서 ‘이 사건 수출환어음 매입업무를 진행하는 과정에서 피고인 1에게 돈을 빌려줄 수 있느냐는 뉘앙스로 이야기를 했던 것 같고, 그와 관련하여 2015. 11. 25.경 수출환어음 매입금 450만 불을 환전하기 위해서 ▽▽은행에 내방했던 피고인 1로부터 4억 원을 차용한 것은 맞다’고 진술하였다(공판기록 430면). 피고인 1도 수사기관에서 ‘2015. 10.경 자신의 사무실에서 피고인 2로부터 4억 원의 대여요청을 받았고, 2015. 11. 18. 신용장을 ▷▷▷지점에 제출하면서 피고인 2로부터 다시 한번 4억 원에 대한 대여요청을 받고 피고인 2에게 4억 원을 주겠다는 확답을 하였다’(증거기록 1051-1054면), 원심에서 ‘피고인 2가 이 사건 신용장을 매입한 날짜 이전에 상담하면서 4억 원을 빌려달라고 하였다’(공판기록 437면), ‘(수출환어음 매입일인 2015. 11. 19.) 일주일인지 5일 전인지 그 전에 빌려줄 수 있는 여유가 있느냐고 분명히 이야기를 했다. 그래서 자신이 그냥 달라고 해도 줘야하는 상황이라 융통해서 빌려주려고 노력했다. 묵시적으로 될 것 같이 자신이 표현을 했다’(공판기록 454면), ‘2-3번 그런 이야기가 있었다. 2015. 10.경(에도) 자신이 운영하는 공소외 12 주식회사 사무실에서 피고인 2가 돈을 빌려달라고 했다’(공판기록 456면)는 취지로 진술하였다.

8) Since the crime of forging a private document is accompanied by the crime committed in the course of committing the fraud crime, the crime concerning the document shall not be treated as a majority crime, and shall be treated as a sentencing factor (where the method of committing the crime is very poor).

주9) 피고인은 2015. 6.경 공소외 14 주식회사(변경후 상호 주식회사 ♤♤♤♤♤♤♤♤, 이하 ‘공소외 14 회사’라 한다)와 무기향균제에 관한 물품공급계약을 체결하고 공소외 14 회사는 공소외 15 주식회사(이하 ‘공소외 15 회사’라 한다)와 물품제조계약을 체결하였으며 공소외 15 회사가 2015. 11. 11.경 공소외 9 회사 명의로 화물을 선적한 바 있기는 하다. 그러나, 공소외 9 회사의 등기부에 의하면 공소외 9 회사는 무기향균제와 같은 무기화합물 제조나 수출입을 목적사업으로 하고 있지 아니하고, 이 사건 이전에 무기향균제에 관한 거래를 한 바 없는 점, 피고인 및 공소외 14 회사 운영자인 공소외 16의 진술에 의하더라도 공소외 14 회사가 공소외 9 회사에 납품한 대금은 2억 1,000만 원 정도에 불과하고, 공소외 16의 진술에 의하면 공소외 16이 공소외 15 회사에 지급한 물품대금은 5,700만 원이라는 점, 공소외 9 회사와 공소외 14 회사 사이에 세금계산서가 발급된 바 없는 점, 피고인은 신용장 개설 성사의 대가로 일본의 공소외 17에게 외국환어음 매입대금으로 받은 450만 불의 60%에 해당하는 270만 불을 건넸고 공소외 17은 수입상인 공소외 18 외국법인에게 위 270만 불 중 상당 부분을 다시 건넨 것으로 보이는데, 신용장을 이용한 외국환어음이 무기향균제에 대한 거래대금 지급을 위한 것임을 볼 때 공소외 17에게 지급한 금액이 지나치게 크고 그중 상당한 대금이 수입상에게 건네가는 것도 이례적으로 보이는 점, 공소외 13은 피고인에게 ‘가격이 맞지 않는다. 너무 저렴하다. 상식에 벗어난다’는 말을 하였다는 점(공판기록 372, 375면), 공소외 15 회사가 선적한 화물내용물이 무엇인지 확인되지 않는 점, 신용장 안에 수출 물품이 무엇인지 기재되어 있지 않고, 공소외 9 회사가 신용장에 기재된 금액 상당의 어떤 물건을 수출하기만 하면 되는 것으로 되어 있는 점, 신용장에 기재된 SWIFT MESSAGE 조건은 통상 사용되지 않는 점 등을 고려하면, 이 사건에 사용된 신용장이나 무기향균제를 표방한 거래는 그 실질이 존재하는지 의심스럽다.