2017Gohap283 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

A

Kim Ho-ho (Court) (Court of Second Instance), Qho-ho (Court of Second Instance, Court of Second Instance)

Law Firm (LLC) B

Attorney C, D, and E

Law Firm (LLC) F

Attorney G, H, I, J, K, L

December 28, 2017

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of the facts charged

【Basic Facts】

The Defendant was the representative director of M from January 2, 2012 to September 24, 2013. N was the director in charge of finance of P from June 1, 2003 to March 31, 2012 (the managing director in charge of finance of M was concurrently held from February 2012), P was the head of the zero financial team from around 204, 1,26 to March 31, 2012. M was the parent company of M around March 29, 2012, and owned 100% of shares issued by P, around March 29, 2012, and owned 196,000 shares issued by Q, Inc. (the former changed: R: the former changed company) and owned 30% of shares issued by P, and Q, which correspond to 190,000 shares issued by P, 307,070 shares issued by P, and Q Co., Ltd.

M Co., Ltd. was about KRW 100 billion on March 29, 2012, and the debt amount was about KRW 100 billion on two consecutive years ( KRW 89.4 billion in 201, KRW 28.5 billion in 2012). In order to avoid default, M Co., Ltd. was required to repay the debt amount paid in other places.

[Specific Facts charged]

(a) Crimes against the victim corporation 0;

The Defendant, as the representative director of M Co., Ltd., the parent company of the victim 0, and N and P had occupational duties to preserve the assets of the victim company and manage them with the care of a good manager as a director in charge of finance or head of the finance team of the victim company, and thus, in case where M Co., Ltd. provides the stocks of Q Co., Ltd., which the victim company owns, as a security to borrow money, there was a duty to secure sufficient security from M Co., Ltd.

Nevertheless, in collusion with N and P, the Defendant borrowed KRW 3.5 billion from T in order to raise funds to repay the debt, etc. of M in bad faith, at around March 29, 2012, the Defendant offered 137,200 shares issued by Q Q& 137,200 shares at the market price owned by the victim company, without a resolution of the board of directors of the victim company, and offered 4.2 billion shares as security to T in excess of the market price owned by the victim company, as M& did not repay the above KRW 3.5 billion, the Defendant acquired the above shares by exercising the security right on May 30, 2012 by exercising the security right and thereby acquiring the above shares, thereby causing property damage equivalent to the same amount to the victim company.

B. Crimes against the victim Qua corporation

On May 30, 2012, the Defendant agreed to acquire 137,200 shares issued by Q Q Co., Ltd. and transfer them in KRW 4 billion to U.S. In relation to the transfer of the above shares, M Co., Ltd. does not need to pay performance guarantee money to U.S. In addition, as Q Q Co., Ltd. was a second-tier company of M Co., Ltd., and the Defendant had a duty to preserve the company’s assets and to manage them with the duty of due care as a good manager, and thus, the Defendant leased the amount of the victim company to M Co., Ltd., the Defendant had a duty to secure sufficient collateral from M Co., Ltd. and to lend it.

Nevertheless, the Defendant, in collusion with N and the representative director, V of the victim company, did not secure any security from M in the office of the victim company located in Seongbuk-gu, Seongbuk-gu, Sungnam-si, without securing any security from M in relation to the transfer of the above shares, made the victim company to lend KRW 2.5 billion to M in the name of funds of KRW 2.5 billion to M in relation to the transfer of the above shares, thereby having the victim company acquire any property profit equivalent to KRW 2.5 billion in the amount of money to be paid by M in 2.5 billion in relation to the transfer of the above shares. The victim company suffered any property loss equivalent to the same amount

2. Judgment on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) against victim 0

A. Summary of the defendant and defense counsel's assertion

The name of "stock company" (hereinafter referred to as "stock company") was owned by Q 137,200 shares of Q 137,200 shares (hereinafter referred to as "the shares of this case"), and thus, the shares of this case were provided as collateral and did not cause damage to 0 as a result. Such act of offering collateral cannot be deemed to have violated the defendant's duty, and there was no perception or acknowledgement that it violated the defendant's duty. In particular, there was no fact that the defendant offered the shares of this case with N, P about the provision of collateral.

(b) Fact of recognition;

According to the evidence duly adopted and examined by this Court, the following facts are recognized.

1) On March 29, 2012, X, the Defendant’s birth, owned 9.9% of the Y’s shares, and Y was the largest shareholder holding 23.3% of the Y’s shares. Y, M,0, Q, and 2 were so-called a so-called “group,” while establishing the Z, and, since the end of 201, companies, such as M, etc. came to fall into serious financial difficulties, and M was decided to raise operating funds by selling 0 subsidiaries to AA.

2) On January 11, 2012, M acquired bonds with preemptive rights equivalent to KRW 20 billion issued by A and AA M, and ② M offered as collateral the 555,600 shares (shares 100%) of this stock held by A, and entered into a memorandum of understanding that grants preferential purchase rights to the said stocks and management rights (hereinafter “instant memorandum of Understanding”). The main contents of the instant memorandum of Understanding are as follows.

Jeon Soo-chul

B. The company holds 55,600 shares of registered ordinary stocks (100% of shares) issued by the company (hereinafter referred to as "subject company") which has its head office in Nam-gu Incheon Metropolitan City AB (hereinafter referred to as "subject company").

(Omission) M will provide the subject shares as security to AA in order to secure the redemption of the bonds at the same time as the subscription price for the bonds of this case.

M means, where AA exercises a preferential right in accordance with this Understanding, it is intended to sell the subject stocks to A, and AA is intended to acquire the right of management of the subject company by purchasing the subject stocks from B. In the event that A exercises a preferential right in accordance with this Understanding, M and AA are to proceed with the negotiations on this case in a formal manner.

Accordingly, the parties agree to stipulate the terms and conditions agreed between the parties as well as the rights and obligations of each party in connection with this transaction, and to establish the procedures and guidelines for the conclusion of a fixed contract on this transaction (hereinafter “stock sales contract”) as follows.

Article 2. Subscription to the Bonds and Grant of Preferential Purchase Rights

2.4The persons who grant a preferential purchase right, designate AA or AAO shall, at the same time as the conclusion of this Understanding and the payment for the subscription price for the bonds, have the right to request M to purchase the management rights of the stocks and the company subject to the preferential purchase right (hereinafter referred to as "priority purchase right"), provided that a person designated by AA or AA may freely decide whether to exercise the preferential purchase right, and that person shall not bear any obligation to exercise the preferential purchase right.

Where the preferential purchase right has been exercised in accordance with the MOU of the conclusion of the Stock Sales Agreement, M and A or AA, unless otherwise agreed, M and a person designated by M shall enter into a share sales contract that reasonably reflects all the contents of this MOU within two weeks from the date on which the preferential purchase right has been exercised (Provided, That where three months have not elapsed from the date of the conclusion of this MOU, by the date on which the said three months have elapsed). (hereinafter omitted) The sale of shares subject to Article 4

4.1 대상주식의 매매. 우선매수권을 행사한 AA 또는 AA이 지정하는 자(이하 “매수인”)가 본 양해각서에 따라 우선매수권을 행사하여 주식매매계약이 체결되고 동 계약상의 조건이 성취됨을 전제로. 거래종결일에 새는 대상주식읗 어떠한 부담 및 제한도 없는 상태로 AA 에 매각하고 AA은 이를 서로부터 매수하기로 한다.

4.2 매매대긍. 매수인이 대상주식을 매수하기 위하여 M에 지급할 긍원（이하 “0H매대금’, ）은 총 일백팔십억（18.000,000.000）원으로 하되, 제4.4항에 마라 조정됲 수 있다. M와 매수 인은 본조의 매매대금이 다음 각 호에 규정된 대상회사와 M（또는 계열사） 간의 채권채무 관계 및 지분관계가 모두 해소됨을 전제로 하여 정한 금액임을 인정하고, 새는 그 책임 하에 거래종결일까지 다음 각 호의 채권채무관계 및 지분관계을 모두 해소하여야 한다. 다만, 시가 다음 각 호의 채권채무관계 및 지분관계를 해결하는 데에 필요한 구체적인 방 법을 제시하는 경우 매수인은 합리적인 사유가 없는 한（매수인에게 법B적 또는 경제적 으로 5리한 영향으 미치는 경우 합리적인 사유가 있는 것으로 봄） 이에 응하기로 한다. （1） 본 양해각서 체결일 현재 대상회사가 시에 대하여 미지급한 배당긍 250억 원 （2） M 또는 그 계열사가 대상회사에 지급하여야 할 대여금 기타 채무금 약 220억 원（단, 정상적인 영업쫨동에 따른 상거래채무는 제외함）

（3） 대상회사가 보유하고 있는 새의 관계회사 지분（장부가액 기준 233억 원）（동 지분은 M 또는 시가 지정하는 자에게로 이전되는 것으로 하며. 동 지분 이전과 관련하여 발생 하는 이익은 시에 반환되는 것으로 함）

4.4 매매대금의 조정. 제4.2항의 매매대긍은 새가 제공한 대상회사의 2011년 9월 30일 기준 재무자료가 대상회사의 자산과 부채에 대한 적정한 평가원칙에 따른 합리적인 평가에 기 반하였윰을 전제로 한 것이며, 다웜 각 호의 금액이 발생하는 경우 매수인은 때애대금

Before payment, a claim for reduction of the purchase price may be made in the amount equivalent to the relevant amount, and a claim for the refund of the relevant amount may be made in M after payment of the purchase price (it may be applied in duplicate as follows):

Article 5 Termination of Transactions

5.1The date of the termination of the transaction, if the buyer exercises the preferential purchase right in accordance with this Understanding, this transaction shall, unless otherwise specified in the stock sales contract. The date on which the preceding conditions set out in Articles 9 and 10 (hereinafter referred to as “prior conditions”) are all satisfied or are deemed satisfied, provided that in no case it is completed at a place determined by agreement between the parties on the date of exercise of the preferential purchase right, within two months from the date of exercise of the preferential purchase right.

Article 8. Matters agreed upon by the Parties

8.2 이사 선임 등. 서와 대상회사는 본건 양해각서 체곃 및 본건 사채인수와 동시에 대상회사 의 이사회 및 주주총회를 개최하여 AA이 지명하는 이사가 대상회사의 이사 총수의 반수 （몬 양해각서 체결읾 기준으로는 2명）가 되도록 하여야 하고. M이 지명하는 이사가 대 상회사의 공동 최고재무책임자（CF0）가 되도록 하여야 한다. （이하 생략）

8.3 지급보증의 해소. 본 양해각서 체결일로부터 3개월이 되는 날까지（단, 거래종결일이 그 전에 도래하는 경우에는 거래종결일까지）. 시와 대상회사는 멸첨 가. 기재 M 또는 그 계 열사（세법상 특수관계인 포함）를 위한 대상회사의 지급보증채무가 모두 해소되도록 하고 이를 증빙하는 서류를 AA에 제줄하여야 한다. （이하 생략） 제9조 AA의 의무이행의 선행조건 AA이 본 양해각서에 따라 우선매수권을 행사하여 주식매매계약이 체결된 경우, AA의 거래종결 의무는 아래의 각 사항 및 당사자들의 합의에 따라 주식매매계약에 추가로 규정되는 사함들이 각 거래종곃일 혹은 그 이전에 충족될 것읖 조건으로 한다. AA은 그러한 조건의 전부 또는 일부를 포기할 수 있다.

9.1 의무의 이행, M 및 대상회사는 거래종결일까지 본 양해각서 및 주식매매계약상 이행 또는 준수하여야 하는 의무사항 잋 조건을 이행하고 준수하였다.

제11조 면책, 손해배상 및 위약벌 11.3 위약벌. 각 당사자의 진술 및 보장사항의 위반으로 인하여 제12조에 따라 본 양해각서 가 해제되는 경우 또는 약정사항 위반 기타 본 양해각서 위반시, 위반 당사자는 본조에 따은 손해배상책임과 별도로 상대방 당사자에게 위약벌로 금 삼십억（3,000,000,000）원 을 지급할 의무푤 부담한다.

3) On March 26, 2012, in accordance with the letter of understanding of the instant case, AA and M entered into a share acquisition agreement with M and the said O shares for the first time on April 2012 by exercising the preferential right to purchase the O shares of 55,600 shares (10%) and the management rights of the O. After doing so, A and M entered into a share acquisition agreement with M and M on September 20, 2012. The main contents of the share acquisition agreement are as follows.

Article 2 Trading of Subject Shares

2.2.2. The buyer’s prides. The buyer’s price for the purchase of the subject shares shall be the total amount of no more than 18,000,000 won. It shall be the deduction and adjustment in accordance with the terms and conditions set out in paragraphs 2.4 and 6.3 of this Agreement and in this Note.

2.4. Adjustment of the purchase price in Section 2.2 is based on the premise that, as of September 30, 201, the financial data, as of September 30, 201, of the company subject to the provision of the note, were against reasonable evaluation in accordance with the principle of adequate evaluation of its assets and liabilities. In the event that any of the following amounts occurs, the consignee may file a claim for reduction of the purchase price in the amount corresponding to that amount before the payment of the purchase price, and may file a claim for return of the amount corresponding to M after the payment of the purchase price in the substitute, which may be applied in duplicate to the following

Article 3 Termination of Transactions

3.1Date of the termination of the transaction, this transaction shall be closed on the date of this contract, subject to the satisfaction of all the terms and conditions set out in this letter of Understanding and of the preceding terms and conditions set out in this contract (hereinafter referred to as “pre-execution terms”), and shall be closed at the principal location of the AA.

Article 6 Agreement of the Parties

6.3 Removal of payment guarantee;

(1) 2012년 4월 11일까지 슈와 대상회사는 본건 양해각서 멸첨 가. 기재 M 또는 그 계열사(세 법상 특수관계인 포항)를 위한 대상회사의 지급보증채무가 모두 해소되도록 하고 이를 증빙 하는 서류를 M에 제줄하여야 한다. 위 지급보증채무 미해소로 인하여 대상회사 또는 매수인 이 채당 채무됼 대지급하게 되는 경우 어는 지체없이 대상회사에 대한 구상의무(새의 계열사가 부담하는 구상의무를 포함항)를 오두 이행하여야 하여 대상회사 또는 매수인에 대하여 어쩌 한 이의도 제기하지 아니한다. M은 해당 대지급금을 위에 서면 동보함으로써 제2.2조에 따른 매매대금에서 차감할 수 있다.

6.4 자금거래의 해소. 본 계약 체결일 이후 M, AA 및 대상회사는 대상회사와 대상회사의 계 열사(세법상 폭수관계인 포함) 간의 채권채무관계 및 자금거래가 모두 해소되도록 하여 야 한다. 위와 AA은 (2) 및 (3)의 대여금 기타 채무금에 해당하는 채권 및 관계회사 지분 을 M(M가 지정하는 경우에는 그 계열사)가 승계하도록 함으로써 (1)의 배당금은 지급된 것으로 간주하며. 사와 M의 채권채무관계는 전부 소옇된 것으로 한다.

(1) As of the date of the conclusion of this contract, dividends payable to the Company at issue 25 billion won as of the date of the contract

(2) M 또는 그 계열사가 대상회사에 지급하여야 할 대여금 기타 채무긍 약 240억 원 (2012년 2월알 기준. 단, 정상적인 영업힙동에 따른 상거래채무는 제외함)

(iii) the shares of M-related companies held by the subject company (the book value as of the date of conclusion of this Ordinance of Understanding 23.3 billion won (this shares shall be transferred to a person designated by M or M, and the benefits arising in connection with the transfer of these shares shall be returned to a person designated by M or M);

(4) If some or all of the shares in M-related companies held by the subject company is sold by the effort of M prior to the date of the closing of transaction, the proceeds of sale shall be treated as the payment of the outstanding dividends to M at the same time as the proceeds of sale are received by the

Article 7. AA’s obligation to terminate a transaction under the preceding conditions of the performance of the obligation of the AA is subject to the condition that the transaction will be met either on or before the date of the termination of the transaction. A may waive all or part of such conditions:

7.1Performance of obligations, M and subject companies have fulfilled and complied with this Understanding and the obligations and conditions to be fulfilled or complied with under this Agreement not later than the closing date of transactions.

Article 9 Exemptions, Compensations, and Penaltys for Breach of Contract 9.3: In the event of the cancellation of this Part of this Understanding, or in accordance with the violation of the provisions of this Part of this Understanding, the provisions of this Agreement, or other provisions of this Part of this Agreement, the open penalty shall not be terminated separately from the execution of this Agreement, the termination of transactions under this Agreement, or the liability for damages under this Section 9.

4) Meanwhile, under Article 8.2 of the MOU of this case, AE, the president of AC Group, was appointed as an internal director of theO on January 27, 2012, and AD was appointed as the representative director on February 16, 2012, and AF, the party of AC Group, was in charge of the AFO’s finance as CFO.

C. Determination on whether an act of breach of duty and an intentional act of breach of trust exists

In addition to the above facts acknowledged by the evidence duly adopted and examined by the court, the following facts and the circumstances that could be inferred from them, namely, the contents of the understanding of this case and the share acquisition agreement on the method of disposing of the shares of affiliated companies such as Q, etc., the subject of the instant understanding and the share acquisition agreement, and the attitude of AA after the offering of the instant shares after the offering of collateral, etc., M was deemed to have the authority to dispose of the instant shares in accordance with the instant agreement, and thereby, N was deemed to have offered the instant shares as collateral while borrowing KRW 3.5 billion from T. Furthermore, there is no evidence to prove that the Defendant, as the parent company, violated the duty as the representative director or accepted the act of breach of trust as the parent company, and there is no other evidence to prove that there was no reasonable evidence to prove that the Defendant, as the evidence submitted by the prosecutor, in relation to this part of the facts charged, violated the duty as the parent company, or accepted the act of trust.

1) As of December 31, 201, as M’s subsidiaries, theO owned 449,99 shares of AG, 1,000 shares of AH, 325,00 shares of AH, 118,580 shares of R, 165,00 shares of R, 165,00 shares of Z, 9,00 shares of Z (ordinary shares) and 382,50 shares of AJ (State shares).

2) AA decided to take over 0 shares and management rights while acquiring bonds with warrant equivalent to KRW 20 billion from M with aggravated financial standing. To this end, in light of the contents of the MOU and the share acquisition agreement prepared by agreement between M and AA, the subject of acquisition of AA is all 0 shares owned by M. and therefore, it seems that the method of resolving all the equity relationship, claim and payment guarantee relationship formed between affiliates of the group to exercise full management rights to AA0 after acquisition of the instant MOU or share acquisition agreement is determined to resolve all the equity relationship, claim and payment guarantee relationship formed between affiliates of the group until the closing of transaction of the instant share acquisition agreement. In other words, M is obligated to take specific measures to resolve all the equity relationship, claim for adjustment of share purchase price, and claim for 3 billion won as a penalty apart from the claim for damages. Paragraph 36(3) of the instant MOU and Paragraph 38(4) of the instant 4 and Paragraph 38(3) of the instant 4 of the same Article.

3) In particular, Article 4.2 of the MOU of this case provides for the relationship of shares formed by M among its affiliates and the method and procedure for resolving the claim and obligation. In the event M presents a specific method for disposing of the shares of affiliates of the group held by M, such as the instant shares, to the extent that it does not have any legal or economic influence, AA shall comply with it, and further, Article 4.2 (3) of the MO and Article 6.4 (3) of the MOU of this case provide that "the shares of the M affiliate held by M shall be transferred to the person designated by M or M, and the profits arising from the transfer shall be returned to M."

In light of the above provisions, M bears the duty to resolve the share relationship between the Plaintiff and Q, which is an affiliate of the group, in accordance with the instant MOU and the share acquisition agreement, and for this purpose, M naturally has the authority to dispose of the instant shares held by M by 0 by selling them, offering them as security, etc.

4) AC Group Chairperson and AE, who were the chief executive officer of AC Group at the time of the instant case, took overall control of 0 underwriting affairs under AD and AC Group, shall be present at this Court as a witness and obtain the consent of AA in order to offer the instant shares as security based on the proviso to Article 4.2 of the MOU of this case. AA stated to the effect that “AA may refuse the transfer of 0 assets, such as the instant shares, and settle contingent obligations with the said assets.” For this purpose, AD and AE shall be appointed as a director of AE.

However, as seen earlier, the subject of acquisition of AA under the instant memorandum of Understanding and the instant share acquisition agreement is the entire shares owned by the O and M under the entire resolution of the equity relationship, obligation and payment guarantee relationship formed between the affiliates of the group. M must dispose of the instant shares of this case, which are the connection and interest relationship formed between Q and the affiliate of the Z group, unless there is any reasonable ground, such as where it has a legal or economic disadvantage to AA, and the profits arising therefrom must be attributed to or returned to M. Meanwhile, if there is any contingent liability, AA may claim for the said disposal of the instant shares by adjusting the purchase price under Section 4.4 of the instant share acquisition agreement, or by adjusting the purchase price under Section 2.4 of the instant share acquisition agreement, or by adjusting the sales price under Section 2.3 of the instant share acquisition agreement, and by Article 9.3 of the instant share acquisition agreement. In light of such circumstances, it is difficult to view that the instant proviso of the instant share acquisition agreement is a prior consent to each of the instant shares acquisition agreements.

5) While AC Group’s AD and AE knew that the instant shares were offered as collateral for a loan claim against T M, they did not raise any objection against it until a civil lawsuit and criminal complaint was filed on or around 2013. Accordingly, as to the offering of the instant shares as collateral, unlike the fact that N was at issue by the AC Group’s side with respect to the preparation of a promissory note as joint and several sureties’s debt without a resolution of the board of directors at issue, it may be deemed that the AC Group side had ratified it ex post facto, even though there was no resolution of the board of directors in the process.

A) While promptly borrowing KRW 3.5 billion from T, M created a pledge on the instant shares as a security, as well as the establishment of a pledge on the said shares, and the said shares were jointly and severally guaranteed for the said obligations and issued and prepared a promissory note Notarial Deed equivalent to the said money. At the time, AD and AE, who was the 0 representative director at the time, was aware of the fact of the offering of the instant shares as well as the preparation of a deed of joint and several sureties’s pledge and promissory note No. 10 in early April 2012. Nevertheless, AD and AE did not raise any objection against the offering of the instant shares as security, and only raised an objection against the preparation of a deed of joint and several sureties and a promissory note No. 1 under this name without authority.

B) Accordingly, on April 6, 2012, P affixed the corporate seal impression in the name of AK, which is the representative director of 0 another, on April 6, 2012, P affixed the seal impression of P without permission. In this context, P sent a written request for processing of the invalidation of the joint and several surety act in the name of 0 persons, which has no validity. The said written request is accompanied by “a confirmation of invalidity of the joint and several surety act in the name of 0” and “a confirmation document”. The said written confirmation expressly states that “only the certificate of joint and several surety and promissory note deed shall be null and void, and it is valid to offer the instant shares in the name of 0.”

C) On April 29, 2012, T deleted this from the joint guarantor and the issuer of promissory note, upon such0 request, around April 29, 2012, and prepared a new monetary loan agreement with the content that the part of the instant stock offering as is, and deleted this part in the existing joint and several sureties note and promissory note.

6) On the other hand, on February 9, 2012, after the formation of the instant memorandum of Understanding, M borrowed KRW 119,760,000 from AL (trade name before the modification: AM) as collateral, and offered 119,760,000 out of the shares of this case. However, AD and AE did not raise any objection thereto. Since then, M repaid 3.5 billion won from T.

7) In addition, on April 29, 2012, after the completion of the instant memorandum of Understanding, M borrowed KRW 6 billion operating funds from N and offered real estate owned by AO and AP as security to N. In order to secure the restoration of the said real estate, M offered as security the conversion priority week of 165,00 shares of the Z issued owned by AO and AP, but this did not stand as joint and several sureties for the said obligation. As such, AD and AE did not raise any objection against the security of stocks, such as Z owned by this case.

8) The audit report of 2012 with respect to 0 states that "the shares in the AH, etc. were transferred to M in accordance with the whole agreement with M which is a parent company. The shares in the instant case were provided as security for M which is a parent company, and was transferred to M during the current period." As of December 31, 2012, there is no shares of group affiliates holding zero ownership as of December 31, 2012. In addition, the audit report stated that "the company has paid 200 million won for unpaid dividends to M during the current period, and collected 200,64 million won for loans and attempted dividends to M which were collected. In addition, the company transferred equity securities and loans to M in return for payment of unpaid dividends of KRW 50 million,000,000,000,000 for M which is a result that M&A has implemented paragraph 6.4 of the instant stock acquisition contract."

AD signed and sealed as 0 representative director on the audit report of January 25, 2013 as of January 2013, 2013, and it seems to have become aware of all the above contents of the audit report around that time.

9) According to Articles 4 and 4(2)(3) of the MOU of this case, and Article 6.4(3) and (4) of the share acquisition agreement of this case, profits arising from the disposal of shares by affiliates of the Z Group, which were held by theO, shall not be deemed to belong to M, but the shares of the above Z Group affiliated companies of the above Z Group are not subject to acceptance under the agreement of share acquisition. Thus, even if M offered the shares as collateral, it shall not be deemed to have caused any damage to 0 that A had been subject to acquisition.

D. Determination as to whether a public offering is offered

1) On July 15, 2016, N made a report on the following: “On the basis of the Defendant’s, P, and a large-scale survey conducted by the prosecution, N made it necessary to provide the Defendant with a security of Q stocks owned by 1.0, 2.0, 3. X’s joint and several liability guarantee, 4. Q’s joint and several liability guarantee, and 3.0 on the condition of borrowing KRW 3.5 billion from T at home,” and entered “P, at the direction of the Defendant, instructed P to prepare for the conclusion of a monetary loan agreement between T and M and the provision of R stocks and for the preparation of a certificate of personal seal impression.”

2) However, at the time of the survey on the foregoing confrontation, the Defendant made a statement stating that “A is unable to associate with the above contents, but N has reported this content to B as the Chairperson.” In addition, on January 15, 2015, the Defendant stated that “A public prosecutor made a monetary loan agreement between T and M on March 29, 2012 and provided the instant shares as collateral, which was later reported by N. at the time of the fact that the Defendant entered into the said monetary loan agreement between T and M, and subsequently, received a report from N. At the time of the negotiations. As N negotiation, the specific conditions are good. (b) The Defendant found the method with N, and ordered N to prevent the performance of the obligation, the repayment period of which arrives, and it did not participate in the decision-making to provide the instant shares as collateral and to borrow money.”

N also appeared as a witness in this Court and stated that "the defendant primarily made a construction of steel systems in the mountain, port, or luminous inside which M factories are located. So, there has been no money to prevent the president, N, and I would be free from the bill. It will be able to prevent any money from being borrowed on one hand. I would like to prevent this loan from being made on one hand. I would like to prevent this one time. I would like to prevent this money from being borrowed. I would like to say that I would not have to report a call, because it is extremely urgent situation." In addition, on October 14, 2015, N would have provided the defendant with a joint and several surety on February 29, 2012, and would have provided the defendant with a loan amounting to KRW 118,760 billion and borrowed money from the bank as collateral and later, I would like to have provided the defendant with the loan amount of KRW 3500,000,0000.

In light of the above Defendant and N’s statement, it is difficult to believe that N’s instruction was given to the Defendant regarding the provision of the instant shares, among the contents written by N’s prosecutor’s statement on July 15, 2016 and N’s written confirmation on September 27, 2013.

3) In addition to these circumstances, insofar as there is no evidence to acknowledge the Defendant’s intentional act of breach of duty and intent of breach of trust, the evidence submitted by the prosecutor alone is insufficient to deem that the Defendant conspireds to commit an act of breach of duty, such as N, P and the summary of the facts charged, to the extent that there is no reasonable doubt, and there is no other evidence to prove otherwise.

3. Determination as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) against the victim Q Q

A. Summary of the defendant and defense counsel's assertion

M was not a second-tier company of Q from Q to borrow KRW 2.5 billion. M, which is only one of the parties to a monetary loan contract, does not have a legal obligation to secure repayment or provide security to Q, which is the other party. Therefore, the Defendant does not constitute “a person who administers another’s business”, who is the subject of the crime of breach of trust.

Even if not, M offered sufficient security for Q, and the Defendant did not commit an act of breach of duty, such as the description in Article 1-2(b) of the summary of the facts charged, or conspired with N, V.

B. Determination as to whether a person who administers another's business constitutes "a person who administers another's business"

1) Relevant legal principles

In the case of breach of trust, “a person who administers another’s business” refers to a person who is in a position, as a typical and fundamental substance, to protect and manage another’s property interest, etc. in accordance with a fiduciary relationship that administers another’s business in light of the principle of trust and good faith. However, even if the handling of such business is not necessary to protect and manage solely another’s interest, and even if there are also the nature of promoting one’s own interest, it constitutes “a person who administers another’s business” (see Supreme Court Decision 2010Do3532, May 10, 2012).

2) According to the evidence duly adopted and examined by this court as to whether Q Q is a second-tier company, it can be acknowledged that, according to the instant memorandum of Understanding, AA, on March 26, 2012, executed a share acquisition agreement with M and the said0 shares for the first time around April 2012 by exercising the preferential right to purchase 55,60 shares issued on or around March 26, 2012, and the right to purchase management thereof. After the amendment of the terms and conditions of the agreement between A and M, it can be recognized that A and Q have entered into the instant share acquisition agreement with M to purchase the said 0 shares for 18 billion won from M on September 20, 2012. In light of this, A and Q still acquired the shares and management rights for the last time from M on September 20, 2012.

M is still a second-tier company of M since Q borrowed KRW 2.5 billion from Q around May 2012, 2012, Q was still a second-tier company of M. Accordingly, the Defendant and the defense counsel’s assertion against this is rejected.

3) As to whether M is merely one of the parties to a monetary loan contract

As seen earlier, at the time of borrowing KRW 2.5 billion from Q, the Defendant appears to have held both the status of representative director of Q and the parent company, as the borrower, and the status of representative director of M.

It cannot be deemed that the Defendant, who had dual status as above, merely borrowed money from Q, is a party to a monetary loan agreement, and it is reasonable to deem that the Defendant, as a representative director of Q as the parent company, has the duty to take measures to prevent damage to Q by securing sufficient collateral when lending money to Q, which is a second-tier subsidiary. Accordingly, the Defendant and the defense counsel’s above assertion are rejected.

C. Determination of breach of duty and conspiracy

In full view of the following facts acknowledged by the evidence duly adopted and examined by the court, and the circumstances that could be inferred therefrom, it is insufficient to view that the evidence submitted by the prosecutor alone was insufficient to prove that Q Q, a second-tier subsidiary, obtained a loan of KRW 2.5 billion to M without securing any security in collusion with N, V, etc., and there is no other evidence to acknowledge it.

1) On the records of this case, there is no evidence suggesting that Q from N, V, the Standing Director in charge of Finance, TNR, TNR, and Q from lending KRW 2.5 billion to M without securing any security or that Q from borrowing KRW 2.5 billion to N without offering any security to Q.

2) Since M failed to pay KRW 3.5 billion borrowed from T on March 29, 2012, T acquired the instant shares by exercising a pledge on the instant shares on May 30, 2012. Around May 30, 2012, T entered into a contract with U and the instant shares transfer the purchase price of KRW 4 billion.

However, since U.S. Standing Director may incur contingent liabilities to Q Q, the de facto seller demands payment of KRW 2.5 billion as performance guarantee money in order for M to secure damages caused by the contingent debt for one year, which is the de facto seller, and even if the performance guarantee money is not paid, the instant shares cannot be accepted. As N refuses to pay performance guarantee money on the ground of M’s financial standing, the above A Q would have lent Q Q to M to lend KRW 2.5 billion as performance guarantee money.

M. N at the time: ① the acquiring of the instant shares by U appears to have accepted the said request of Q Q, taking into account the fact that the extension of the pledge right on the instant shares by T, would be 3.5 billion won, and that M would have to be able to repay the obligation of M to T through the extension of the pledge right on the instant shares; ② there is a multiple loan of the operating funds from T even before M, and there is a need to request M to increase the operating funds in the future; ③ there is a need to maintain a good relationship with T, and ③ since the performance guarantee amount of KRW 2.5 billion demanded by U is a loan from Q, not a loan of KRW 2.5 billion, but a loan from Q, which is not a loan of the performance guarantee amount of KRW 2.5 billion. At the time, the Defendant was not required to report such circumstances.

According to the foregoing agreement, M borrowed KRW 2.5 billion from Q on May 29, 2012 as interest rate of KRW 6.9% per annum, overdue interest rate of KRW 24% per annum, and due date of repayment of redemption on November 29, 2012. On the same day, M paid KRW 2.5 billion to U as performance guarantee. On May 30, 2012, M entered into a performance guarantee agreement with the effect that U and M will pay KRW 2.5 billion to U for six months.

3) Meanwhile, in order to secure the principal and interest obligation amounting to KRW 2.5 billion borrowed from Q, M transferred the performance bond (the remaining amount after deducting it in the event M bears the performance guarantee obligation to U according to the above performance guarantee contract) equivalent to KRW 2.5 billion held by Q to U by the above performance guarantee contract. Furthermore, as seen in paragraph (4) below, in light of the situation where M appears to have sufficient U by the time as seen in paragraph (4), it can be deemed that the said assignment of credit provides adequate security for the obligation amounting to KRW 2.5 billion for Q by the above performance guarantee contract.

Then, around March 26, 2014, M returned KRW 2.5 billion from U, and around March 26, 2014, M repaid KRW 86,958,904, interest in arrears, and interest in arrears, KRW 790,684,932. As such, the delayed repayment of the above obligation was due to the fact that AA’s M sold the instant shares through the offering of collateral, etc. by M was due to the fact that U had no choice but to observe the trend of the situation.

In light of the fact that Q received an adequate security through the transfer of claims from M and received subsequent repayment of the leased principal, interest, and interest in arrears, it is difficult to deem that Q suffered a loss equivalent to KRW 2.5 billion as stated in Article 1-2(b) of the summary of the facts charged.

4) At the time of U’s acceptance of the instant shares, U deposited KRW 18,63,175,114 in the U.S. Industrial Bank of Korea account, and KRW 5,015,925,220 in the treatment securities account. U held securities equivalent to KRW 4,253,930,445 in the Korea Investment Securities. Q borrowed KRW 2.50 million from the Industrial Bank of Korea at 6.61% interest rate per annum. In light of the U’s financial capability as seen above, U is difficult to recognize the motive or necessity for U to acquire the instant shares by receiving KRW 2.5 billion borrowed from Q, the acquired company, as a performance guarantee, as it was at the risk of having to bear the liability for occupational breach of trust for acquiring the instant shares.

4. Conclusion

Thus, since each of the facts charged in this case constitutes a case where there is no proof of criminal facts, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment in this case shall be publicly announced under Article 58(2)

The presiding judge, judge Kim Jong-tae

Judges Kim Gin-han

Support for judges' organization

1) Although the facts charged are indicated as “as of May 5, 2012,” it appears to be a clerical error in the facts found by the evidence duly selected and investigated by the court.” However, in light of the facts established by the evidence duly selected and examined by the court, it appears to be “as of May 30, 2012.”