[1] In a case where the representative director of a corporation who withdraws the company's money and uses it fails to present evidentiary documents about its place of use and fails to explain it to obtain it, whether it can be inferred the intention of unlawful acquisition, which is an element of crime of embezzlement in the course of business (affirmative)

[2] The case denying the establishment of the crime of breach of trust on the ground that it is difficult to conclude that the act of breach of trust is an act of breach of trust against the acquired and acquired company since it includes the intent to repay the obligation of the acquired loan with the assets of the acquired and acquired company after the merger, without disregarding all the legal and economic effects of the merger

[1] In the crime of embezzlement, the term “an intention of unlawful acquisition” refers to an intention to dispose of property of another person in violation of his/her duties for the purpose of pursuing the benefit of himself/herself or a third party, such as his/her own possession. If the representative director of a corporation withdraws and uses the company’s money, and fails to present evidentiary materials as to the place of such withdrawal and payment, and fails to provide reasonable explanation as to the place of use, such money may be presumed to have been withdrawn and used for personal purposes by withdrawing the company’s money with the intent of unlawful acquisition.

[2] The case denying the establishment of the crime of breach of trust on the ground that it is difficult to conclude that the act of breach of trust is an act of breach of trust against the acquired and acquired company because it includes the intent to repay the acquired loan with the assets of the acquired and acquired company after the merger, without disregarding all the legal and economic effects of the merger

[1] Articles 355(1) and 356 of the Criminal Act / [2] Articles 355(2) and 356 of the Criminal Act

[1] Supreme Court Decision 2003Do2807 decided Aug. 22, 2003 (Gong2003Ha, 1982) Supreme Court Decision 2007Do9250 decided Mar. 27, 2008

Defendant 1 and two others

Hani son et al.

Law Firm Woo and 7 others

Defendant 2 shall be punished by a fine of KRW 5,000,000 (O million).

Where a defendant 2 fails to pay the above fine, the above defendant shall be confined in a workhouse for the period calculated by converting 60,000 won into one day: Provided, That a fractional amount shall be one day.

The 76 days of detention before the sentence of this judgment shall be included in the period of detention in the workhouse for defendant 2.

To order the provisional payment of an amount equivalent to the above fine against Defendant 2.

Of the facts charged in this case against Defendant 2, the charge of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) and the charge of giving property in breach of trust, and Defendant 1 and Defendant 3 are acquitted, respectively.

Defendant 2 is the head of ○○ Group’s restructuring head from September 2001 to March 2007, and from March 30, 2004 to March 30, 2004, Defendant 2 works as a director of Nonindicted Company 6 (the concurrent office of representative director from April 1, 2007) who is a holding company of ○○ Group from March 30, 204.

Defendant 2 entered into a contract with Nonindicted Co. 6 and 32 to vest KRW 5,00 per share of KRW 1,925,00 in the name of Nonindicted Co. 6’s shares, including Nonindicted Co. 12. However, when the share price increases, Defendant 2 entered into a contract to vest approximately 35% of the difference in Nonindicted Co. 6’s shares in Nonindicted Co. 6’s name.

As the share price of the above shares increases in KRW 6,750 per share, around November 2006, there was a total of KRW 3,368,750,000 transaction profit by disposing of the above shares of KRW 1,925,00 per share, and KRW 1,179,062,50,000 corresponding to approximately 35% of such profit accrued to Nonindicted Co. 6, Defendant 2 attempted to raise and use the "non-indicted 6's "non-indicted 6's "non-indicted 6's" by means of business keeping in the account in the name of the above non-indicted 12, etc. for the non-indicted 6 corporation.

Accordingly, the Defendant made a credit card under the name of the above Nonindicted Co. 12, etc., and embezzled by using KRW 141,235,482 in total by using the credit card for personal use, such as the oil price, etc. from May 2007 to June 2008, or by lending it to his relative.

1. The defendant 2's partial statement

1. Each prosecutor's protocol of examination of Defendant 2 (the first and second time)

1. Each prosecutor’s statement concerning Nonindicted 45, 47, and 36

1. Each investigation report (the attachment report of data related to the management of funds, the attachment report of the passbook, the attachment report of the copy of the register of Nonindicted Co. 11, the attachment report of the register of Nonindicted Co. 12, etc., and the attachment report of the agreement related to the creation of the funds

1. Details of settlement of marginal profits from the sale of stocks, such as Nonindicted Co. 12, and each written agreement on management consulting (○○○ Investment);

Judgment on Defendant 2’s defense counsel’s assertion

1. Chief;

The above defendant's defense counsel: (1) the defendant's officers and employees of ○○○○○ Group 3 and 12 were holding 180,000 shares of the overseas subsidiary 6's 10% of its shares; (2) the defendant's 100 shares of 6's 30 shares shares were sold to 40's 6's 6's 8's 6's 6's 4's 6's 6's 6's 9's 6's 6's 1's 6's 6's 4's 6's 6's 1's 6's 6's 8's 6's 6's 1's 6's 6's 6's 1's 6's 6's 6's 6's 6's 6's 1's 6's 6'''''''''''''''''''''''''''''''''''s 6'''''''''''''''''s 1's 6''s 3's 6'.

2. Determination:

A. According to the evidence mentioned above, it is true that it is difficult to conclude that the money deposited in the account under the name of Nonindicted Co. 12, etc. was directly entrusted to the defendant with the explicit intention. However, the money in the above account is originally created from the profits accrued in the process of disposing of the shares of Nonindicted Co. 6, which were liquidated through restructuring as 100% of the subsidiaries of Nonindicted Co. 6, which were initially liquidated, and its neighboring members can be deemed as assets of Nonindicted Co. 6, and according to the share swap contract with Nonindicted Co. 35 and Nonindicted Co. 33 (Evidence No. 4152 of the Evidence No. 4152 of the Record), although the signature or seal was signed by Nonindicted Co. 6 as “Nonindicted Co. 6’s senior director Co. , Ltd.” and the main sentence of the contract stipulates that the Defendant would have been responsible for managing the above amount as a 6’s representative director’s business or the above 6’s total account manager, considering the fact that the Defendant would have been responsible for managing the above 6’s account.

B. The Defendant asserts that all of the above funds were used by the Defendant himself, Nonindicted 34, and executives and employees of ○○○ Group affiliate companies as business expenses, business promotion expenses, event expenses, and meeting expenses for executives and employees. However, there is no persuasive evidence supporting the use of internal accounting data, such as Nonindicted 6 corporation, etc., or disbursement-related documents, receipts, and so on. In addition, even if it is based on the statement of Nonindicted 34 in the written statement (Evidence No. 39) of ○○ Group, Nonindicted 34 was working in ○○ Group, and it is difficult to view that the Defendant used credit card corporations within the scope of KRW 2 million per month in return for providing information on construction-related projects to the Defendant, and that it is difficult to view that it is an official business activity in itself, and that it is difficult for the Defendant to use the above written statement to find that it is difficult for the Defendant to use it under the name of Nonindicted 6 corporation or its affiliate company’s own name, even if it actually becomes difficult for the Defendant to do so.

C. The intent of unlawful acquisition in the crime of embezzlement refers to an intention to dispose of another person's property in violation of his/her duties for the purpose of pursuing his/her own interest or a third party, and if the representative director of a corporation withdraws and uses the company's money, and does not present evidentiary materials about the place of use, and if there is no reasonable explanation to be able to obtain payment concerning the reasons for withdrawal and the place of use, such money can be inferred to be used for personal purposes by withdrawing the company's money with the intent of unlawful acquisition (see Supreme Court Decision 2007Do9250, Mar. 27, 2008, etc.). In light of all the above circumstances based on the above legal principles, it is sufficiently recognized that the facts charged that the defendant arbitrarily used and embezzled the company's funds 141,235,482 won, which were deposited in the above account, were used for personal purposes. Thus, it is difficult to accept the above assertion by the defense counsel.

1. Relevant Article of the Act and the choice of punishment for the crime;

Articles 356 and 355(1) of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. The taking of property in breach of trust by Defendant 1 and the taking of property in breach of trust by Defendant 2 and 3

A. Summary of the facts charged

Defendant 1 is the vice president of Nonindicted Co. 1 who was in the process of legal management around October 18, 2006 and retired on or around March 2008. Defendant 2 is the head of ○○ Group’s restructuring from September 2001 to March 2007, and from January 26, 2007 to February 29, 2008, the ○ Group was the representative director of Nonindicted Co. 7 established around December 13, 2006, from around February 6, 2007 to around May 13, 2008, and from around March 30, 2004 to around June 30, the ○ Group’s overall duties including the ○○ Group’s managing director’s managing director’s managing director’s managing director’s 2001 to June 30, 207, and the ○○ Group’s managing director’s managing director’s 3006.1.6.

Defendant 1 came to know that, around July 2006, the legal administrator of Nonindicted Co. 1 was employed by Nonindicted Co. 2 and was employed by Nonindicted Co. 1 as the vice president of Nonindicted Co. 1 in the process of being employed by Nonindicted Co. 1 as the vice president of Nonindicted Co. 1, the disclosure and sale of Nonindicted Co. 1 would soon be made to the third party, and that there was a reservation of approximately KRW 170 billion cash assets that could be immediately used without any condition inside the Nonindicted Co. 1.

Defendant 2 received a proposal from Defendant 1 to November of the same year that “The ○○ Group will assist the acquisition of Nonindicted Co. 1 by means of introducing Nonindicted Co. 2, as the legal manager of Nonindicted Co. 1 was well aware of Nonindicted Co. 2, and recommending the ○○ Group as the person subject to acquisition of Nonindicted Co. 1, 2006,” through Nonindicted Co. 5, the team leader of Nonindicted Co. 4’s corporate acquisition and merger team (M&A team).”

Defendant 2, around that time, reported the above situation to Defendant 3, who is the president of ○○○ Group and the director of 6 Co., Ltd., and received instructions from Nonindicted Co. 1 to conduct an inspection on the financial structure, asset value, etc. of Nonindicted Co. 1, Defendant 2 prepared a principal preparation for acquisition and merger of Nonindicted Co. 1 by means of formulating a financing plan from financial rights, etc. in order to acquire and merge Nonindicted Co. 1. On December 13, 2006, Defendant 2 was appointed as the representative director of Nonindicted Co. 7 Co. 1, a document established to acquire and merge Nonindicted Co. 1, a document that was established to acquire and merge Nonindicted Co. 1, and eventually, Nonindicted Co. 7 was selected as the subject of preferential negotiations on December 26, 2006.

On the other hand, as a director of Nonindicted Co. 1, Defendant 1 is a person who has a duty to perform his duties in good faith solely for the interest of Nonindicted Co. 1 and its shareholders, and when Nonindicted Co. 1 becomes subject to acquisition by another company, the assets and financial soundness of Nonindicted Co. 1 are protected to the maximum extent, and in the process, he has a duty to perform his duties in good faith by performing his duties as a good manager so that the interests of the shareholders of Nonindicted Co.

Nevertheless, Defendant 2 agreed to deliver KRW 2.1 billion in return for Defendant 2’s activities to be beneficial to Nonindicted Co. 7, such as giving an opportunity to select Nonindicted Co. 6 in the alpha building located in Jongno-gu Seoul (hereinafter omitted) as eligible for preferential negotiations on acquisition of Nonindicted Co. 1, as above, and in the future, Defendant 1 wired KRW 30 million to the account in the name of Nonindicted Co. 56, which is the next account designated by Defendant 1, and Defendant 2 transferred KRW 50 million in total from April 20, 2007, around April 23, 2007, to Defendant 1: (a) giving materials and information so that Nonindicted Co. 7 may continue to purchase Nonindicted Co. 1’s shares; and (b) giving relevant advice; and (c) granting KRW 2.1 billion in return, around 5 billion in total from June 30, 2007 to KRW 50 million in the name of Nonindicted Co. 56, the next account designated by Defendant 1; and (d) Defendant 2505 billion.

As a result, Defendant 2 and Defendant 3 conspired to make an illegal solicitation in relation to the performance of another’s business and delivered to Defendant 1 a sum of KRW 1,937,777,50 in return. Defendant 1 received money and valuables equivalent to the same amount from Defendant 2 in return for an illegal solicitation in relation to the performance of one’s business.

(b) Markets:

(1) Comprehensively taking into account the Defendants’ partial legal statements, Nonindicted 5, and 2’s respective legal statements, each prosecutor’s protocol of interrogation of Defendants 1, 2, and 3, each prosecutor’s protocol of interrogation of Defendants 5, 9, 2, and 8, each prosecutor’s investigation report, each head of passbook, each head of passbook’s investigation report, Nonindicted Co. 1 Company 1 Company 1 Company 1 Company 1 Company 1 Company 1 Company 1 Company 1 Company 1 Company 1 Company 1 Company 1 Company 1 Company 1 Company, each copy of the loan contract, each copy of the loan contract, each account transaction agreement, and the relevant evidence submitted by the prosecutor regarding management consulting agreement

(2) The crime of giving and receiving property in breach of trust under Article 357 of the Criminal Act provides that a person who administers another person's business shall be punished when he acquires property or financial benefits in violation of his duty, and a person who provides property in addition to such solicitation. In the crime of giving and receiving property in breach of trust, "illegal solicitation" refers to a violation of social rules and the principle of trust and good faith. In determining this, a comprehensive consideration of the contents of the solicitation and the amount of the property delivered or provided in relation thereto, form, and integrity of the business manager, who is the legal interest protected, should be comprehensively considered, and such solicitation should not be explicitly stated (see Supreme Court Decision 9Do2165, Apr. 9, 2002, etc.).

(3) The facts charged discussed that ① Defendant 1 reserved the cash assets available to Nonindicted Co. 1 through Nonindicted Co. 5 to the extent of KRW 170 billion, offered information that disclosure sale to Nonindicted Co. 1 is expected to be soon available, introduced a statutory manager, recommended ○○ Group to be eligible for priority negotiation on the disclosure and sale process of Nonindicted Co. 1, and ② Nonindicted Co. 7 assisted Nonindicted Co. 7 to be selected as eligible for priority negotiation on the disclosure and sale process of Nonindicted Co. 1, and ② Nonindicted Co. 7’s materials and information to be able to purchase shares of Nonindicted Co. 1, and ③ continued to receive money and valuables from Defendant 2 upon request from Nonindicted Co. 1, and received money and valuables from Nonindicted Co. 7, such as related advice, and thus, Defendant 1’s crime of misappropriation was established. In addition, Defendant 1’s prosecutor’s provision of information to Nonindicted Co. 1, 700,000,000 won, including information disclosed during the acquisition process, and Defendant 1’s offering such information to Nonindicted Co.

(4) 우선, ‘ 공소외 7 주식회사가 우선협상대상자로 선정되도록 도움을 준 것에 대한 사례’라는 점에 관하여 보건대, 배임수증재에 있어서 반드시 부정한 청탁과 재물의 수수가 시간적 순서로 이행되거나 실제로 부정한 행위가 있음을 요건으로 한다고 볼 수는 없으나, 공소사실과 같이 과거의 행위에 대한 사례로 금전이 지급된 경우(검찰은 공소외 7 주식회사가 우선협상대상자로 선정된 2006. 12. 26. 이전에 부정한 청탁이 있었다고 기소하지 않았을 뿐만 아니라, 그 전에 사례지급약정이 있었다는 점을 인정할 만한 증거도 없다)를 배임수증재 행위로 평가할 수 있기 위해서는 그 과거의 행위로서 실제 타인의 사무를 처리하는 자의 임무에 위배되는 부정한 행위가 있어야 할 것인바, 공소외 1 주식회사에 입사하여 이사가 된 2006. 10. 18. 이전 시점에서의 피고인 1은 공소외 1 주식회사의 사무를 처리하는 자가 아님이 분명하여, 설령 그 당시의 행위가 공소외 1 주식회사의 이익에 부합하지 않는 것이라 하더라도( 공소외 1 주식회사 이사로서의 임무가 당해 행위시점으로 소급되지 않는 한) 이사취임 이후 그 이전 행위에 대한 사례금을 지급받거나 지급하였다는 이유로 배임수증재죄로 처벌할 수 없음은 법리상 당연하다 할 것이다. 한편, 2006. 10. 18. 이후부터 경영자문에 관한 합의서가 작성된 2007. 2. 9.경까지 피고인 1의 행위로서 배임수증재 여부가 문제되는 것은, 공소외 1 주식회사가 공개매각 예정이고, 현금성 자산 약 1,700억 원 상당이 있다는 정보를 사전에 제공하였다는 점과 ○○그룹을 인수회사로 추천하였다는 점 등인데, 피고인들의 각 법정진술, 증인 공소외 2, 5, 37의 각 법정진술 및 피고인 1, 2에 대한 각 검찰 피의자신문조서, 공소외 2에 대한 검찰 진술조서 등 검찰 제출의 각 증거들과 회사정리계획 변경계획, 공소외 1 주식회사 2005년 감사보고서 및 2006년 반기보고서, 매각주간사가 배포한 공소외 1 주식회사ＩＭ 등 변호인 제출의 자료들을 종합하여 보면, 피고인 1이 공소외 1 주식회사의 이사가 되기 이전인 2006. 9. 28. 이미 공소외 1 주식회사에 대한 매각주간사선정 공고가 있었던 사실, 매각주간사였던 법무법인 태평양과 딜로이트안진회계법인이 작성하여 배포한 공소외 1 주식회사에 대한 자료에는 공소외 1 주식회사가 마산 부지를 매각하여 현금성 자산이 풍부하다는 사실을 부각시켜 홍보한 사실, 공소외 1 주식회사에 현금성 자산 1,700억 원이 있다는 것은 금융감독원 전자공시시스템(DART)에 의하여 누구든지 알 수 있었던 정보였던 사실, 공소외 1 주식회사의 공개매각이 결정된 무렵 법정관리인이었던 공소외 2를 비롯하여 공소외 1 주식회사의 이사들은 공소외 1 주식회사가 유리한 조건으로 인수될 수 있도록 홍보를 하고, 인수할 회사를 적극적으로 추천하기도 했던 사실 등을 인정할 수 있고, 이에 의하면 2006. 10. 18. 이후의 시점에서 공소외 1 주식회사가 공개매각될 예정이고 공소외 1 주식회사 내에 현금성 자산 1,700억 원이 있다는 정보는 특별히 가치가 있다고 보기 어려워 과연 ○○그룹에게 제공할 필요가 있는 것인지 의문일 뿐만 아니라, 이러한 정보를 ○○그룹 또는 피고인 2에게 제공하였다 하여 공소외 1 주식회사에 해가 된다거나 공소외 1 주식회사의 이사로서의 임무에 위배된다고 보기는 어렵다 할 것이다. 또한, 공개매각이 결정된 공소외 1 주식회사 이사들이 인수회사를 추천하는 것은 오히려 공소외 1 주식회사에 유익한 행위라 할 것이므로, 피고인 1이 ○○그룹을 인수회사로 추천한 행위를 두고 부정한 행위라고 평가하기도 어렵다. 따라서 피고인 1이 매각공고일, 인수의향서제출마감일 등 구체적인 매각일정을 다른 인수희망자들 몰래 미리 알려 주는 등 ○○그룹에게만 일방적으로 유리하도록 정보를 제공하였다거나, ○○그룹과 공모하여 공소외 1 주식회사에 해를 가할 의사로 ○○그룹을 추천하였다는 등의 부정한 행위를 하였다고 인정할 만한 아무런 증거가 없는 이상, 공소외 7 주식회사가 우선협상자로 선정되기 전 피고인 1의 어떠한 행위에 대한 사례로 피고인들 간에 금원이 수수되었다는 사정만으로 배임수증재가 성립된다고 보기는 어렵다 할 것이다.

On the other hand, there is no evidence to acknowledge that Defendant 1 provided internal information on the extra debt, internal management status, and attitude of the members of the non-indicted 1 corporation to the non-indicted 7 corporation, which is not necessary for the success of the M&A. However, there is no evidence to acknowledge it.

(5) As to the solicitation that “non-indicted 7 corporation may purchase the shares of the non-indicted 1 corporation,” the director of the corporation has a duty to faithfully perform his duties on behalf of the company. If the company protects its property and is assigned a duty to faithfully perform its business, and thereby the company performs its duties accordingly, it is protected that the shareholders have interests in the entire company’s property. Private profits related to the shares such as whether certain shareholders own or sell shares of a certain shareholder do not constitute an interest that should be protected as a director’s duty. As such, it is irrelevant to the company’s personal interest because whether to sell shares owned by some shareholders, including other shareholders, and how to set the sale price in the sale price is irrelevant to the company. Thus, even if Defendant 1 arranged the sale of shares by the minority shareholders of the non-indicted 1 corporation, it is difficult to view it as an act of conflict between the interests of the company and the shareholder. Accordingly, it is difficult to view that there is an intention to freely purchase and sell shares of the non-indicted 1 corporation as an unlawful solicitation.

(6) As to the solicitation that “after the time of continuing to serve as a benefit to Nonindicted Co. 7, such as related advice,” the content of requesting consultation and profit-making activities for Nonindicted Co. 7 cannot, by itself, be deemed to have been specified in the facts charged because its contents are unclear. Moreover, it is difficult to interpret that Nonindicted Co. 1’s director’s request for consultation and profit-making activities for Nonindicted Co. 7 is in breach of the duty of director of the Nonindicted Co. 1, and it is difficult to interpret it as the request for consultation that would cause unfavorable acts to Nonindicted Co. 1, and thus, it is difficult to interpret it as an unlawful solicitation. Rather, under the relevant evidence such as Defendant 1 and 2’s statement, witness’s statement at each court and each prosecutor’s examination of the above Defendants, the reasons why Defendant 1 became a member of Nonindicted Co. 11, Nonindicted Co. 38, and Nonindicted Co. 3’s examination of the prosecution against the said Defendants, which would have become more likely to cause disputes to be resolved by Defendant 17’s order to resolve the above dispute.

(7) Even based on the above circumstances and determination, it is difficult to find that Defendant 1, who was not a director of Nonindicted Co. 1, appears to have expressed a significant amount of KRW 1.9 billion in connection with the merger. Of the above amount, it may be suspected that there was an illegal solicitation or an act contrary to the good faith and social norms on the ground that KRW 6.5 million was paid from the non-capital invested account managed by Defendant 2, or that there was an act contrary to the Defendants’ respective legal statements and prosecutor’s evidence and materials submitted by the defense counsel. However, considering the following circumstances, Defendant 1 need to act as a person in charge of negotiations on construction rights between Nonindicted Co. 1 and Nonindicted Co. 3, even after the acquisition due to expertise and influence in the construction industry, it is difficult to find that there was a considerable amount of KRW 700 million in the loan and the remaining amount of the loan to be paid to Nonindicted Co. 1, 200,000 in consideration of the fact that it was difficult to recognize that there was a considerable amount of 700 billion won in the loan and other than Defendant 1000.

C. Conclusion

As seen above, even according to the evidence submitted by the prosecutor, it is insufficient to recognize that the Defendants made an illegal solicitation or committed an unlawful act contrary to the good faith principle and social norms, and there is no other evidence to acknowledge it otherwise.

On the other hand, in addition, with regard to Defendant 3's conspiracy with Defendant 2, the evidence submitted by the Prosecutor's Office alone is sufficient to acknowledge a public-private partnership with Defendant 2 even if Defendant 2's crime of giving property in breach of trust is recognized, and there is no evidence to acknowledge a specific public-private partnership with Defendant 2, and there is no other evidence to acknowledge a specific public-private partnership.

Thus, the above facts charged should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act, since there is no proof of crime.

2. The defendant 2 and 3's violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

A. Summary of the facts charged

Defendant 2 reserved the level of KRW 170 billion in cash available as part of the proceeds from the sale of Masan-si grain site to Nonindicted Co. 1, and obtained in advance the information that the open sale to Nonindicted Co. 1 would soon be made. Also, ○○ Group would receive proposals from Nonindicted Co. 1 to assist the acquisition of Nonindicted Co. 1. In spite of the fact that Nonindicted Co. 6 did not have sufficient funds to acquire Nonindicted Co. 1, a large company with a large amount of KRW 374.5 billion in the size of its assets, Defendant 3, along with Defendant 3, raised funds necessary for the acquisition of Nonindicted Co. 1, a large company with an external loan, and subsequently acquired Nonindicted Co. 1’s cash assets through a merger, and planned closely from the process of acquisition to repay the loan by using the cash assets of Nonindicted Co. 1.

In other words, Defendant 2, along with Defendant 3, established a document-based Nonindicted Co. 7 Company, and raised a large amount of acquisition funds from Nonindicted Co. 1 Company on the condition that the loans were repaid through the merger with Nonindicted Co. 1 Company from Nonindicted Co. 57 banks, etc., or raised the acquisition fund from Nonindicted Co. 6 to the funds offered through the issuance of corporate bonds and the investments made by ○○ Group affiliate, etc., and acquired the management right and major shareholder status of Nonindicted Co. 1 Company through Nonindicted Co. 7 by participating in the capital increase through using such money. After acquiring the management right and major shareholder status of Nonindicted Co. 1 Company through Nonindicted Co. 7, Defendant 2 did not redeem the funds borrowed by Nonindicted Co. 7 for the acquisition of Nonindicted Co. 1 Company’s equity capital or assets, rather than using the assets of Nonindicted Co. 1 Company after the acquisition

Accordingly, Defendant 2, on December 13, 2006, assumed office as the representative director of Nonindicted Co. 7 Company on the documents established by Defendant 3 as the representative director of Nonindicted Co. 7 Company, followed Nonindicted Co. 1 Company’s open sale and acquired the status of priority negotiation subject to the condition that Nonindicted Co. 7 would accept the public sale of the new shares and debentures of Nonindicted Co. 1 Company at KRW 500,228,641,90 on December 26, 200

In particular, even though Defendant 2 was ultimately planned in advance to merge Nonindicted Co. 1 for the repayment of loans as above, around January 30, 2007, Defendant 2 entered into an agreement between Nonindicted Co. 2 and Nonindicted Co. 1’s chairman of the Trade Union, Nonindicted Co. 21, 22, and 5 on continuous business maintenance, etc. and maintaining Nonindicted Co. 1 as a continuing company, instead of recovering the investment money by means of incineration of new shares of Nonindicted Co. 1 acquired by Nonindicted Co. 2 and Nonindicted Co. 1’s chairman, etc., and submitted it to the 11st Civil Register of Changwon District Court, a company reorganization procedure for Nonindicted Co. 1.

After that, Defendant 2, along with the conclusion of the acquisition contract for Nonindicted Co. 1 on January 31, 2007, paid approximately 300,228,641,90 won, including KRW 130,000,000,000, which was prepared through the issuance of corporate bonds of Nonindicted Co. 6 and KRW 1,30.2 billion, among KRW 4,66.7 billion, borrowed from three banks, including Nonindicted Co. 57 banks, in the name of Nonindicted Co. 7, a document, in order to raise the acquisition fund, and acquired the status of a major shareholder by securing approximately 62.6% of the shares of Nonindicted Co. 1’s company by a third party allocation method.

In addition, around February 6, 2007, Defendant 2, as part of the plan implementation to use approximately KRW 170 billion of short-term cash assets previously held in Nonindicted Co. 1, as part of the above Nonindicted Co. 7’s financial institution’s loan repayment, was assigned to the ○○ Group’s directors, including Nonindicted Co. 23, 24, 25, and 27, as a registration director of Nonindicted Co. 1.

Since the economic purpose of corporate mergers is to rationalize the management through corporate mergers, improve the financial structure, etc., the director of the non-indicted 1 corporation and another company in determining the mergers with the non-indicted 1 corporation has a duty to properly manage and preserve the company's assets, such as making a decision on whether to obtain production and positive effects of mergers, economic benefits, and losses due to the mergers, and making a decision on the mergers through sufficient discussions and resolution procedures at the board of directors or the general meeting of shareholders to ensure that the mergers do not cause property damage to the company.

On the other hand, as of December 31, 2007, immediately before the merger, the assets of Nonindicted Co. 1 were about KRW 468 billion, the liabilities were about KRW 33.1 billion, and the capital was about KRW 43.1 billion, while the assets of Nonindicted Co. 6 at the same time were about KRW 167 billion, the liabilities were about KRW 73.5 billion, and the liabilities were about KRW 73.5 billion, and the capital was much more solid in light of the debt ratio as the assets ratio, etc. of Nonindicted Co. 1 was about KRW 332 billion, and in particular, it was difficult or difficult to continue to operate the existing business as it is as it was, and there was no special need for management of Nonindicted Co. 1, immediately after the merger with Nonindicted Co. 1.

Nevertheless, Defendant 2, according to the direction of Defendant 3, who is the highest decision-making authority of the ○○○ Group, prepared the minutes of the board of directors’ meeting with the intent to merge Nonindicted Co. 1 with the cash assets reserved in Nonindicted Co. 1 with the assets reserved in Nonindicted Co. 7 in order to repay the loans of Nonindicted Co. 1. On December 24, 2007, multiple directors including Defendant 2 did not actually attend the meeting, but passed a resolution of merger with a unanimous payment. On the same day, the board of directors of Nonindicted Co. 1 made a formal preparation of the minutes of the board of directors’ meeting with the effect that the directors of Nonindicted Co. 6 Co. 2, including Defendant 2, but did not actually attend the meeting. Despite the debate and decision-making on the necessity of merger among the directors, the board of directors of Nonindicted Co. 2, Ltd. did not have prepared the minutes of the board of directors’ resolution on the merger with Nonindicted Co. 6 Co. 3, 2008.

Accordingly, Nonindicted Co. 6 merged Nonindicted Co. 1 and, at the same time, used cash assets previously held by Nonindicted Co. 1 to repay all of the loans that were borrowed from financial institutions as above.

Ultimately, Defendant 2 and Defendant 3, the highest decision-making authority of the ○○ Group, in the process of acquisition by transfer and merger of Nonindicted Co. 1, who are officers of Nonindicted Co. 1, performed their duties in good faith on behalf of Nonindicted Co. 1 and its shareholders. In the event that the above Nonindicted Co. 1 is subject to acquisition by transfer and merger of another company, Defendant 2 made efforts to maintain the asset soundness of Nonindicted Co. 1 to the maximum extent possible, and during that process, he performed his duties in good faith with the directors of Nonindicted Co. 1, including the representative director of Nonindicted Co. 1 and the 28, etc. who are in the same occupational duty, and in collusion with Nonindicted Co. 1, the financial structure to redeem the debt borrowed in the process of acquisition of Nonindicted Co. 1, for the purpose of using the cash assets of Nonindicted Co. 1, as well as to merge with Nonindicted Co. 1 and its poor financial structure compared thereto, thereby having Nonindicted Co. 6 gain property profits equivalent to KRW 18 million and gain property damage equivalent to the same amount.

(b) Markets:

(1) Comprehensively taking account of Defendant 2 and 3’s respective legal statements, Nonindicted 39, 40, 29, 29, 5, 30, 27, 22, 41, 38, 42, 37, 28, and 44’s respective legal statements, the fact-finding inquiry results on the Namsan of this court and the prosecutor’s examination protocol on the defendant 2 and 3, the suspect examination protocol on the defendant 1, the prosecutor’s office protocol on the defendant 45, 46, 47, 36, 36, 9, 8, 28, 5, 30, 23, 29, 21, 22, and 39, the general prosecutor’s statement on the loan of Nonindicted 1 and Nonindicted 44, the general prosecutor’s report on the acquisition of the shares of Nonindicted 6 Co. , Ltd. and the general prosecutor’s report on the completion of the merger and the electronic report on the acquisition of Nonindicted Co. 16.

In addition, according to the above evidence, the non-indicted 1 corporation was established as a document for the first acquisition of the non-indicted 1 corporation (SPC) and the non-indicted 70 billion won for the non-indicted 1 corporation to whom the non-indicted 70 billion won was settled, and the non-indicted 1 corporation was released from 70 billion won for the above non-indicted 1 corporation to whom the non-indicted 6 corporation was released from 70 billion won for the first time, and the non-indicted 1 corporation was released from 70 billion won for the above non-indicted 1 corporation to whom the non-indicted 6 corporation was released from 70 billion won for the non-indicted 1 corporation to whom the non-indicted 6 corporation was released from 70 billion won for the above non-indicted 1 corporation to whom the non-indicted 6 corporation was released from 70 billion won for the non-indicted 1 corporation to whom the non-indicted 6 corporation would be held as a collateral for the non-indicted 1 corporation's loan and the non-indicted 2 corporation's affiliates 707.

(2) Prosecutions asserted that ① the acquisition price of Nonindicted Co. 1 and Nonindicted Co. 1 were merely the acquisition price of the assets of Nonindicted Co. 6 and the acquisition price of the assets of Nonindicted Co. 1 were merely the acquisition price of the assets of Nonindicted Co. 6 and immediately repaid on February 15, 207. According to the “H project” documents, Nonindicted Co. 1 were planned to provide the acquisition price of the assets within the first place, and Nonindicted Co. 1 and Nonindicted Co. 1 were merged with Nonindicted Co. 6 on the premise that the acquisition price of the assets of Nonindicted Co. 1 and Nonindicted Co. 1 were not carried out at the time of the conclusion of the loan contract with Nonindicted Co. 6, the acquisition price of the assets of Nonindicted Co. 1 and the acquisition price of the assets of Nonindicted Co. 6, the acquisition price of Nonindicted Co. 1 and Nonindicted Co. 6, the acquisition price of the assets of Nonindicted Co. 1 was no more than 7, 2007.

(3) The prosecutor’s assertion (1) is insufficient to recognize that ○○ Group’s acquisition and merger of the company’s property (hereinafter “Nonindicted Company 1’s acquisition and management”) solely with cash assets worth KRW 170 billion within Nonindicted Company 1 solely with intent to acquire and manage Nonindicted Company 1’s acquisition and loan, and there is no other evidence to acknowledge this otherwise.

한편, ① ○○그룹이 회사채 인수대금 2,000억 원을 인수 직후 조기상환하기는 하였으나, 공소외 1 주식회사의 법정관리인이었던 공소외 2의 진술에 의하면 유상증자로 충분한 현금성 자산이 유입된 공소외 1 주식회사가 뚜렷한 투자계획 없이 이자만 가중되는 회사채 인수대금을 굳이 계속 보유하고 있을 필요성은 적었다고 보이고, 공소외 46의 진술에 따르면 공소외 7 주식회사와 함께 인수과정에 참여했던 ◇◇그룹도 마찬가지로 회사채를 조기상환하여 대출금을 변제할 계획이었던 것으로 보이며, 공소외 30의 진술에 의하면 정리회사 M＆A에 있어 통상 회사채는 인수 후 상환하는 것이 사실상의 관례인 것으로 보이는 점 등에 비추어 보면, 회사채 인수대금을 조기상환하였다고 하여 ○○그룹이 공소외 1 주식회사를 인수, 합병할 경영상 목적이 전혀 없었던 것이라 단정하기는 어렵다 할 것이다. ② 정리법원에 제출하기까지 한 계속기업유지계약을 이행하지 않고 공소외 1 주식회사와 공소외 6 주식회사를 합병하였으므로 경영 목적이 없는 인수·합병이라는 검찰의 주장은, 공소외 7 주식회사가 공소외 1 주식회사 노조와 체결한 ‘고용보장 및 계속기업유지에 관한 협약서’는 공소외 1 주식회사 근로자의 고용을 5년간 보장하겠다는 계약으로서, 청산이나 제3자에 대한 영업양도 등으로 협약상 의무가 영업양수인에게 승계되지 않는 상황이나 유상감자나 자사주소각으로 인해 고용보장의무를 회피하여서는 안된다는 내용으로 의무를 부담한다는 것일 뿐 공소외 1 주식회사를 합병하지 않겠다는 계약으로 볼 수는 없다 할 것이고, 전 공소외 1 주식회사 노조구성원들의 현황 및 입장에 비추어 협약을 위반한 것도 아닐 뿐만 아니라, 합병동기를 의심케 하는 간접정황에 해당된다고 보기도 어렵다. ③ 검찰은, 공소외 6 주식회사 및 공소외 1 주식회사의 합병관련 이사회 결의에 중대한 하자가 있다는 점을 들어 공소외 6 주식회사와 공소외 1 주식회사의 합병이 무효라고 하면서, ○○그룹이 공소외 1 주식회사를 합병한 동기가 인수차입금채무의 상환이 유일한 목적인 것처럼 주장하나, 앞서 든 증거들에 의하면 위 각 회사의 이사들이 이미 사전에 합병관련 보고를 받고 그에 동의는 하였으나 실제 출석하여 토의를 하지 않았다는 것으로, 이사회 결의에 절차상 하자가 있는 것은 사실이지만 이사회 결의의 무효확인소송은 대세적 효력이 없고, 특히 합병의 무효는 형성의 소로서 반드시 소로써만 그 무효의 확인을 구할 수 있어, 합병무효의 판결이 확정되기 전에는 유효하고 판결이 확정되더라도 소급효가 없으므로( 상법 제240조 , 제190조 본문 등), 판결로써 무효가 확정되지 않은 상태에서의 공소외 6 주식회사와 공소외 1 주식회사의 합병은 여전히 유효하다 할 것이다. 또한, 이사들이 출석하지 않은 경위 등에 비추어 보면, 그러한 이사회 결의의 하자가 있다는 점이 합병의 동기가 유일하게 인수차입금채무의 상환이었다는 것을 추단하게 하는 간접사실이라고 보기도 어렵다. ④ 공소외 6 주식회사는 부채비율이 300%가 넘어 자산상태가 훨씬 건전한 공소외 1 주식회사가 공소외 6 주식회사와 합병할 아무런 경영상의 이유가 없었다거나, 공소외 27 사장이 6개월 만에 공소외 28로 전격 교체되었다거나, 공소외 1 주식회사를 인수하기 위하여 공소외 7 주식회사가 대출받았던 4,667억 원은 합병 직후 대부분 상환되었고 ○○그룹이 인수과정에서 실질적으로 부담하거나 지출한 비용이 거의 없다는 검찰의 주장은, 전체 자산 규모, 경영 능력, 계열사 관계 등을 전혀 고려하지 않고 단순히 부채비율이 적을수록 우량기업이라는 등식은 성립하기 어렵다는 점, 공소외 6 주식회사는 ○○그룹 주력 계열사들을 실질적으로 소유하고 있는 ○○그룹의 핵심 기업이며, ○○그룹은 2007년 기준으로 그룹 총자산 25조, 총매출액 6조 원, 자기자본 3조 5,000억 원, 관리고객 금융자산 65조 원인 재계서열 약 28위의 재벌기업으로서, 부채비율은 낮고 자산은 건전하였지만 매년 적자를 보며 법정관리 중에 있던 공소외 1 주식회사와 비교할 수 없을 정도의 경제력을 가진 기업이라 할 수 있는 점, 피고인 2, 증인 공소외 27, 28의 각 법정진술 등에 비추어 공소외 27 사장이 교체된 이유가 문책성 인사라고 보기는 어려운 점, ○○그룹이 공소외 1 주식회사를 인수하면서 1,000억 원에 가까운 자기자본을 투자한 점 등에 비추어 모두 타당하다고 볼 수 없다. ⑤ 또한, 앞서 든 증거들에 의하면 ○○그룹이 공소외 1 주식회사를 합병하여 법인격을 소멸시킨 직후 1주일 만에 다시 공소외 1 주식회사 법인을 설립한 것은 공소외 1 주식회사가라는 브랜드 상호를 타사가 사용하지 못하게 하기 위해서는 형식적인 법인이라도 설립되어 있어야 하는 법제상 부득이한 경영상 조치였다고 인정되므로, 이 점을 들어 ○○그룹이 오직 공소외 1 주식회사의 자산을 빼내어 인수차입대금을 상환하기 위해서만 공소외 1 주식회사를 합병한 것으로 보아야 한다는 검찰의 주장도 받아들이기 어렵다.

(4) Meanwhile, even if the ○○○ Group did not participate in the open sale procedure only for the purpose of acquiring Nonindicted Co. 1’s cash assets with the intention of acquiring them as a debt for acceptance and loan, without any business reasons, and did not acquire or merge Nonindicted Co. 1’s stock company by participating in the open sale procedure, it appears that the ○○ Group had been seeking to raise the acquisition fund of Nonindicted Co. 1 under the first LBO method “H project” but intended to modify the loan contract after being pointed out by Nonindicted Co. 57 bank according to the Supreme Court precedents; it was premised on the merger between Nonindicted Co. 7 and Nonindicted Co. 1 while concluding the contract for acquisition price loan; it was presumed that it did not invest cash assets worth KRW 300 billion which was reserved until the time of acquisition and merger of Nonindicted Co. 1; at the same time, it appears that the ○○ Group had been using the cash loan worth KRW 180 billion which was the assets of Nonindicted Co. 1 and used for the repayment of the acquired loan.

However, it is difficult to conclude that the acquisition company and the acquired company are in breach of trust against the acquired company without disregarding all the legal and economic effects of the merger, on the grounds that the motive of the merger includes the intent to repay the acquired loan with the assets located in the acquired company after the merger. As a result, the acquisition company and the acquired company are incorporated as a personal combination, and the property of the acquired company and the acquired company after the merger cannot be separated as a mixed one, since it is used for the repayment of the original debt that the acquired company continued to exist in the assets held by the acquired company after the merger, it is difficult to regard it as a special distinction from the internal and autonomous fund management act of the acquired company or a different nature because it is combined with the managerial reason that was the main or other motive of the merger, and thus, it is difficult to regard it as an internal and autonomous fund management act of the acquired company.

In accordance with the prosecutor's argument, even if it is recognized that ○○ Group's merger of this case was to use the reserved cash assets of Nonindicted Company 1, the crime of breach of trust under Article 355 (2) of the Criminal Act is established when the person who administers another's business in violation of his duties obtains pecuniary benefits and causes loss to the principal. In this case, there is no evidence to specifically recognize what kind of loss to Nonindicted Company 1 may be incurred to Nonindicted Company 1. If a merger with a very poor financial structure of the company subject to the merger would result in property loss, the merger would result in a problem of whether the director who led the merger. However, in the case of this case, compared to the merger with Nonindicted Company 1 as the holding company of ○○ Group, the economic power of which is superior to that of Nonindicted Company 1, it is difficult to view that the merger occurred with the Nonindicted Company 1, or that such merger would seriously be economically unfavorable to Nonindicted Company 1.

Since two corporations are merged, one party’s losses and one party’s interests cannot be conceptualized after the merger, and the infringement of rights by the extinguished company, shareholders, creditors, etc. cannot be conceptualized. As long as the merger is effective by relevant statutes, repayment of the debt of the surviving company with deposits, etc., which were assets of the surviving company at the same time as the merger is not subject to autonomous business judgment of the surviving company. Due to the effect of the merger, repayment of the debt of the surviving company with the assets that were owned by Nonindicted 6 Company after the merger and repayment of the debt with the assets that were owned by Nonindicted 1 Company is entirely identical to legal and economic aspects.

As long as the legal system of merger is recognized and effective under the relevant laws, it cannot be said that there is a loss to the merged company only by the normative evaluation of the motive that the merger is inconsistent with the economic concept or that is contrary to the motive of the merger. Therefore, in reality, it should be viewed that the merged company (the shareholder, creditor) actually suffers property loss or the risk of losses. On the basis of the normative evaluation of the motive that the motive to pay the acquired loan by using the assets of the non-indicted 1 company is illegal, the Supreme Court precedents recognizing the crime of breach of trust regarding the cases where the risk of losses was incurred by providing the acquired assets as collateral for the acquired loan obligation without paying compensation. After offering the assets of the acquired company as collateral, it is difficult to establish only the form of the merger without creating the appearance of the acquired company as collateral for the merger, and using the acquired assets as collateral for the purpose of the merger is not only the same as that of the non-indicted 1 company to realize the legal structure of the merger, but also it is also difficult to say that the legal motive and logic of the merger should be established at least as well-founded.

(5) Meanwhile, in the event that Nonindicted Co. 7 and Nonindicted Co. 1 were merged, if Nonindicted Co. 7 were to be in fact a formal company with little capital, the Nonindicted Co. 1 did not have any room to deem that the crime of breach of trust may be established as a result of having only borne the loan obligations of Nonindicted Co. 7 without any substantial increase of assets. However, as in the case of this case as seen above, it is difficult to deem that Nonindicted Co. 6, etc. invested more than KRW 100 billion in Nonindicted Co. 7 on January 207, and it is difficult to deem that there was no increase in assets against Nonindicted Co. 1. In addition, Nonindicted Co. 7 was established as a company established by the necessity for acquiring Nonindicted Co. 1 in ○○ Group, i.e., ○○○ group, and considering the legal and economic effects as seen earlier, even if it was presented in the loan contract, it is difficult to establish the crime of breach of trust even if it was merged with Nonindicted Co. 7 and Nonindicted Co. 1.

C. Conclusion

As examined above, even based on the evidence submitted by the prosecution, it is insufficient to recognize the crime of breach of trust of the above Defendants, and there is no other evidence to acknowledge it otherwise.

Therefore, the above facts charged constitute a case where there is no proof of crime, thereby not guilty under the latter part of Article 325 of the Criminal Procedure Act.

3. The violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) against Defendant 2

A. Summary of the facts charged

(1) Use of Non-Indicted 50’s account for non-Indicted 50

Defendant 2 planned to merge Nonindicted Co. 51, who is an employee holding company of the company, around December 2004, when ○○ Group Restructuring Director and the director of Nonindicted Co. 6 work for Nonindicted Co. 6, Defendant 2 was scheduled to use the shares of Nonindicted Co. 52, which were owned by Nonindicted Co. 51, as they belong to Nonindicted Co. 6 as they are, to the situation where the shares would be retired. As such, Defendant 2 was able to create the so-called “non-funds” of Nonindicted Co. 6 by inserting them into one’s own account in the name of 50,00 and using them in the name of 50,000,000 won. around December 14, 2004, when Nonindicted Co. 6 kept the above shares in business for Nonindicted Co. 6 Co. , Ltd., Ltd., and paid KRW 300,000,000 won to the vice president of Nonindicted Co. 1, who is a separate account.

(2) Use of an account in the name of Nonindicted Co. 12, etc.

Defendant 2 entered into a contract with Nonindicted Co. 6 and 32 to acquire KRW 1,925,00 per share of Nonindicted Co. 6 in the name of Nonindicted Co. 12 Co. 6 and to vest approximately 35% of the difference in the stock price at the above Nonindicted Co. 6 Co. 6 upon the increase of KRW 6,750 per share price. After that, upon the increase of the share price at KRW 6,750 per share price, there was a transaction profit of KRW 3,368,750,00 after disposing of all of the above shares around November 206, and KRW 3,179,062,50 equal to approximately 35% of the profit accrued to Nonindicted Co. 6 Co. , Ltd., and that KRW 1,179,062,50 for this purpose continued to use KRW 60,000 for each of the above Nonindicted Co. 6 Co. , Ltd., Ltd., and Defendant 1 and Nonindicted Co. 507.

(b) Markets:

(1) According to the evidence submitted by the prosecution and duly adopted by this court, the basic facts stated in the above facts charged are recognized.

(2) However, as seen earlier, the sum of KRW 650 million paid to Defendant 1 is KRW 650 million, and as seen earlier, Defendant 2 agreed with Defendant 1 as a director of Nonindicted Co. 6, and paid with Defendant 3’s general consent, so long as it cannot be deemed that it was used for the crime of giving property in breach of trust, it shall be deemed that Defendant 2 had a criminal intent of embezzlement. Thus, it is difficult to deem that Defendant 2 had a criminal intent of embezzlement in using it.

(3) Meanwhile, comprehensively taking account of the above evidence and the defendant 2's legal statement, the prosecutor's statement about the non-indicted 36,5 million won, and the statement of the non-indicted 31 (Evidence No. 40-1), the non-indicted 53, and 54's written confirmation (Evidence No. 40-2, 30-3), the following circumstances are as follows: while working for the non-indicted 20 corporation, the non-indicted 31 et al. as an affiliate to the non-indicted 6 group, who was issued to the non-indicted 11 corporation around February 2008 and worked for the non-indicted 6 corporation as an affiliate to the non-indicted 6 corporation, it is difficult to view that the non-indicted 11 corporation sold to the non-indicted 55 corporation, and that the non-indicted 2 corporation did not have a legal relation to the above company's corporate restructuring, unlike the first promise to the non-indicted 5 corporation.

C. Conclusion

Thus, the above facts charged should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act because it falls under the case where there is no proof of crime. However, as long as it is found guilty of occupational embezzlement in the judgment that is related to such a comprehensive crime, the judgment of

Judges Kim Jae-soo (Presiding Judge)