Defendant

Appellants (prosecutions) and Escarcitys (public trials)

Attorney Noh Jeong-hwan

A defendant shall be punished by imprisonment for not less than two years and six months.

Of the facts charged in the instant case, the charge of occupational embezzlement is acquitted.

【Institution of Sanctions】

The Defendant is a real operator of Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) and Nonindicted Co. 5 (hereinafter “Nonindicted Co. 5”) established for the purpose of retailing aggregate.

The Defendant, while establishing and operating Nonindicted Company 1 on January 3, 2012, had a promissory note claim against Nonindicted Company 7 and △△△ Factory, which is the business partner. However, around October 2014, Nonindicted Company 7 was unable to recover the said claim, and the Defendant began from the end of the end of the 2015, making it difficult to operate Nonindicted Company 1.

Accordingly, in order to create the profits of the above company, the defendant decided to install a shower, which is a aggregate production device, in the above non-indicted 7 company factory.

【Criminal Facts】

1. Breach of trust;

On December 1, 2015, the Defendant: (a) obtained a loan of KRW 150 million from the victim bank to the victim bank; (b) entered into a contract with the victim bank to provide the victim with the above shower as security until the payment of the loan in full. (c) The Defendant purchased the “Sasaw 4230,000 (hereinafter “Sasaw”) at the market price of KRW 290,000,000 (hereinafter “Sasaw”); and (d) concluded a contract with the victim to provide the victim with the said shower as security.

Therefore, the Defendant had a duty to keep and manage the above shower in good faith so that the victim can achieve the purpose of transfer for security.

Nevertheless, on March 21, 2016, the Defendant violated the above duties and sold part of the above shower in the general industrial complex construction site located in Yong-gun, Chungcheongnam-gun ( Address 5 omitted) and the above shower to △△△ Company in KRW 55 million. On the same place on the 24th day of the same month, the Defendant sold part of the above shower to Nonindicted 8 in KRW 100 million, thereby obtaining pecuniary benefits of KRW 150 million in total and causing damage equivalent to KRW 150 million in the above loan to the victim.

2. Fraud against the victim Nonindicted 3

On May 27, 2016, the Defendant: (a) purchased the instant real estate in the amount of KRW 4,40,000,000,000,000 from the Certified Judicial Scriveners Office in Busan Special Metropolitan City, Busan Special Self-Governing Province on May 27, 2016; (b) the victim Nonindicted 3 purchased the instant real estate in the amount of KRW 89,000,00,00,000, located in Busan Special Metropolitan City ( Address 6 omitted); and (c) the victim Nonindicted 3 purchased the instant real estate in the amount of KRW 7,00,000. The Defendant paid the down payment amount of KRW 40,000,000,000,000,000,0000,000,000,0000,000,000,000,000,000 won.

However, in fact, the Defendant’s business losses amount to approximately KRW 1.4 billion, and even if the Defendant received the instant real estate from the victim, he did not have the intent or ability to pay the balance, and there was no intention or ability to pay the balance of KRW 100 million.

Ultimately, on June 8, 2016, the Defendant, by deceiving the victim as above, acquired the instant real estate equivalent to KRW 2.40 million from the victim to the registration of ownership in Nonindicted 4’s name. On the 21st day of the same month and the 23th day of the same month, the Defendant acquired the real estate by transfer from the victim, and acquired it respectively.

3. Fraud against the victim non-indicted 6

(a) Fraud related to the cancellation of provisional seizure;

On October 2016, the Defendant provisionally attached the victim non-indicted 6 to the victim non-indicted 6 by telephone (one hundred thousand won on the day, ten million won on the day, two million won on October 25, 2016, and two million won on October 30, 2016, including dump trucks, trucks, and equipment (construction machine number 1 omitted), (construction machine number 2 omitted), (construction machine number 3 omitted), (construction machine number 4 omitted), (construction machine number 5 omitted), (construction machine number 6 omitted), (construction machine number 7 omitted), and (construction machine number 7 omitted). The Defendant concluded that the Defendant would make a false statement to the victim non-indicted 6.

However, the Defendant did not have the intent or ability to repay the above obligation to the victim even if the victim had cancelled provisional seizure because the operation of Nonindicted Company 1, like the statement in Paragraph 2, was difficult.

As above, the Defendant, by deceiving the victim and deceiving the victim, had the victim cancelled the above provisional seizure on November 25, 2016, thereby acquiring property profits equivalent to KRW 115 million due to the failure to repay the above debt to the victim.

(b) Borrowing;

On November 2016, the Defendant made a false statement to the effect that “The Defendant would repay the above victim a loan of KRW 50 million to him,” and that “The Defendant would transfer the amount of money that he would receive from Nonindicted Company 5 to the victim, out of KRW 40 million,00,000,000,000,000, out of the remainder of the debt that he would be repaid when the provisional attachment of Nonindicted Company 1 was revoked, and transfer the amount of money that he would receive from Nonindicted Company 5.”

However, Nonindicted Co. 5, which the Defendant actually operated, was in difficult to operate because there was almost little lack of sales, and the Defendant thought that Nonindicted Co. 5 would use the money that the Defendant would receive from the customer as its operating fund, and there was no intention or ability to pay the said money even if he received the money from the victim.

After all, the Defendant, as above, by deceiving the victim as above, obtained KRW 50 million from the victim on November 10, 2016, and acquired it by deception.

1. Partial statement of the defendant;

1. The legal statement of the witness, Nonindicted 3, 10, and 6

1. A protocol concerning the examination of suspect against the defendant and the non-indicted 10 (including the part concerning the statement of the non-indicted 3)

1. The police suspect interrogation protocol against Nonindicted 11

1. Statement of the police statement on Nonindicted 10, Nonindicted 4, Nonindicted 3, Nonindicted 6, and Nonindicted 12

1. A petition, a real estate sales contract, and a certificate to be registered;

1. The suspect's written opinion, standard financial statements, the list of sales electronic tax invoices, etc.;

1. A copy of verification of financial statements;

1. A criminal investigation report (referring to 70 million won as a bond for pension and sales price-related documents), account transaction statement, etc.;

1. Certificates, details of transactions, etc.;

1. Documents to be submitted by the complainant, including the complainant and certified copy of the register;

1. A sales contract;

1. Each complaint;

1. Investigation report (Nonindicted 14 telephone investigation by the representative of Nonindicted 13 Company);

1. Copy of the judgment;

1. Copy, etc. of the certificate;

1. Each construction machinery register;

1. A copy, etc. of content certification;

1. A complaint filed, a statement of calculation of claims, etc.;

1. Investigation report (verification of the fact of selling showers);

1. Copy of the judgment;

1. Investigation report (Attachment of details of transactions related to construction machinery proceeds);

1. The part on fraud against the victim non-indicted 3

A. Summary of the defendant's assertion

A person who actually purchased the instant real estate from Nonindicted 3 is Nonindicted 10. The Defendant did not defraud the instant real estate and KRW 100 million from the victim Nonindicted 3.

B. Determination

According to the evidence of the first instance judgment, the fact that Nonindicted 10 introduced the Defendant to the victim, as stated in paragraph (2) of the crime, that the Defendant paid 40,000 won to Nonindicted 3 as stated in paragraph (2) of the crime, and paid expenses related to the transfer of registration (influence 289 of the investigation record), that the Defendant entrusted the name to Nonindicted 4 in coloring the real estate registered titleholder, and that the Defendant borrowed and used the real estate as security (influence 720 of the investigation record). According to the above fact-finding, according to the above facts of fact-finding, it can be recognized that the Defendant deceiving the victim as stated in paragraph (2) of the crime and acquired the real estate of this case and KRW 100 million by deceiving

2. The part on fraud against the victim non-indicted 6

A. Summary of the defendant's assertion

There has been long money transactions between the Defendant and the victim non-indicted 6 for a long time, and criminal fraud is not established on the grounds that the Defendant did not have any intent to pay or ability to pay for the Defendant, such as transferring a provisional registration of the land owned by the non-indicted 13 Co., Ltd. [356m2, 356m2, 356m2, 324m2, 224m2, 879m2, 3m2, 879m2, 3m2, etc. of the same Ri] in order

B. Determination

According to the evidence of the court below, the defendant can be found to have obtained property benefits equivalent to KRW 15 million from the victim by making a false statement without the intent or ability to repay his/her debt to the victim as stated in the crime No. 3-A and B-B, and acquired and fraudulently acquired KRW 50 million from the victim. The defendant shall repay part of the money to the victim after the time of the deception (including KRW 10 million from November 1, 2016, KRW 5 million from November 10, 2016, KRW 5 million from November 27, 2000), and KRW 5 million from November 10, 201 of the same year, and KRW 7.5 million from the time of the transfer of the registration of the ownership transfer right to the land. Thus, the defendant's assertion is without merit.

(A) The registration of the right to claim ownership transfer on the above land is difficult to recognize the validity of the obligation repayment or security because there is a dispute over the validity between the defendant and Nonindicted Company 13.

1. Article applicable to criminal facts;

Articles 355(2) and 347(1)(Fraud), 355(2)(Misappropriation), 347(1)(Fraud), and choice of imprisonment

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Breach of trust (at least KRW 100 million, but less than KRW 500 million);

- If the risk of damages is not substantially realized, penalty costs shall not be imposed.

- The mitigation area (from six months to two years);

2. Fraud (at least one hundred million won, and less than five hundred million won);

-in the case of serious damage to the injured party, the same sentence shall be imposed;

-the area of aggravation (2 years to six years);

3. Criteria for handling multiple crimes;

- From 2 years to 7 years (=6 years + 2 years x 1/2)

4. Determination of sentence;

- Taking into account partial recovery of damage (for the victim non-indicted 3, approximately KRW 150 million and approximately KRW 55 million to the victim non-indicted 6)

- Imprisonment of two years and six months;

[Facts of Prosecution]

1. Occupational embezzlement;

On June 23, 2016, the Defendant established a non-indicted 5 Company and would become a representative director. While the Defendant actually operated the said Company, Non-indicted 3 deposited KRW 490 million in the account in the name of Non-indicted 5 Company on July 26, 2016, the Defendant transferred KRW 40 million on the same day and KRW 400 million on the following day to the ○○ Bank account in the name of Non-indicted 1 Company and embezzled it for the Defendant’s personal use.

[Judgment]

1. The prosecutor bears the burden of proving the existence of an act of embezzlement as an act of realizing the intent of unlawful acquisition, and the proof ought to be based on strict evidence with probative value that leads to a judge to have no reasonable doubt, and in the absence of such evidence, even if there is no doubt as to the defendant's guilt, it should be determined with the benefit of the defendant.

Meanwhile, in a case where there is a lack of evidence to support the fact that the defendant used money in the place of use claimed by the defendant for other purposes, such as failure to explain his/her whereabouts or place of use, or disclosure that the funds used in the place of use claimed by the defendant were appropriated for other funds, etc., even though the defendant had no money in his/her custody under his/her consignment, if there are sufficient evidence to support that the defendant used the money for personal purposes, it may be presumed that the defendant embezzled the money with the intent of unlawful acquisition. However, if there are evidence to support the existence of the intention of unlawful acquisition, the defendant provided an explanation about the location or place of use of the money for the reason that it is difficult to recognize the existence of the intention of unlawful acquisition, and there are other materials corresponding thereto, it cannot be deemed that the defendant used the money entrusted by him/her for other purposes without permission, unless it is recognized that the defendant used the money for other purposes,

In addition, the intent of unlawful acquisition in the crime of embezzlement refers to the intention that the custodian of another's property intends to dispose of the owner's own property (including the rejection of return) without authority contrary to the purpose of the entrustment. Thus, if the custodian disposes of it for the benefit of the owner, not for the benefit of himself/herself or a third party, it cannot be recognized unless there are special circumstances to the contrary (see Supreme Court Decision 2009Do495, Apr. 23, 2009).

2. In the instant case, according to the evidence submitted by the prosecutor, the Defendant was found to have transferred the sum of KRW 4,40,000 among the funds of Nonindicted Co. 5 on July 26, 2016 and July 27, 2016, to the account in the name of ○○ Bank under the name of Nonindicted Co. 1, the Defendant operated. Meanwhile, according to the records, the Defendant purchased equipment necessary for aggregate extraction business of Nonindicted Co. 5 (three for dump trucks, one for 1 for dump trucks, one for 3 for dump trucks, and three for 3 for dump trucks) from Nonindicted Co. 1 on July 2016, and purchased the land for aggregate extraction [356m24m2, 224m2, 379m2, 40,000,000 won in forests and fields omitted). The Defendant appears to have used the above dump of the construction machinery, the payment of the documents, and the payment of the construction machinery, etc.

Thus, since it is difficult to view that the Defendant embezzled the funds of Nonindicted Co. 5 with his intention to acquire unlawful acquisition, solely with the evidence presented by Nonindicted Co. 3’s statement and prosecutor, this part of the facts charged constitutes a case where there is no proof of crime, and thereby, acquitted under the latter part of

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