2013Gohap1160 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

1. A;

2. B

Westerns (prosecutions) and Kim Sung-dong (public trial)

C Law Firm, Attorney D (for the defendant)

February 6, 2014

Defendants are not guilty.

The summary of the judgment against the Defendants is published.

1. The facts charged in this case

A. The defendants' identity and crime plan

Defendant A is a member of the Council of F Religious Organizations G (hereinafter referred to as the "G church") in Gwanak-gu in Seoul Special Metropolitan City, and Defendant B (one member H) is a person who has been engaged in the management of the fund of the G church from May 2012 to the head of the fiscal division of the G church.

At the G church around July 2010, Defendant A, who was a member of the church, was forced to leave the church, and discussed issues such as the scope of the payment of honorable treatment money, such as the support of the expenses for the construction of the new abuse school room in the operation of Defendant A. According to the Constitution of the F Religious Organization (hereinafter referred to as the "Liol Union Act"), the financial supervision at the church meeting, and the budget and settlement of accounts are in charge of the joint council, so the support of the honorable treatment of KRW 80 million at the G church, which was the size of KRW 1.3 billion per annum to KRW 2.4 billion per annum, requires a resolution of the party council and the joint council in accordance with legitimate procedures.

However, regarding the appropriate amount of the honorary treatment fees for Defendant A, I, J, K, L, M, M, N, P, Q, Q, R, T, T, and U (hereinafter “13 members”), among the members of the political party, expressed that the special reserve funds discussed with the honorary treatment fees are the money accumulated by the members for the purpose of the church facility fund, so it is difficult to make excessive payment. In so doing, the special reserve funds discussed with the honorary treatment fees for Defendant A were conflicting with the remaining members of the political party, including the Defendants who want to give sufficient honorable treatment as desired by Defendant A.

It is impossible to determine the amount of honorable treatment at the risk of opposite to 13 pages because the members of the church at the time are 26 persons (4 pastors and 22 persons). According to the church law, the church meeting can be held with the attendance of a majority of the members. Since the 13 persons opposing the payment of the honorable amount of KRW 800 million account for half of the members, it is impossible to determine the amount of honorable treatment at the risk of opposing the 13 persons. Accordingly, among the 13 persons, the Defendants deprived of the membership of the core force among the 13 persons, deprived of the membership of the membership of the core force, and deprived the Defendants of the membership of the party meeting, thereby excluding the proceedings for the resolution of the party meeting, and tried to make the Defendants favorable to the Defendants, to pay KRW

(b) Facilitation of crimes by making use of prosecution and judgment on authority;

On November 28, 2010, Defendant B submitted a complaint to the members of the church in violation of the church law procedure, i.e., to the members of the church, and Defendant A, the chairman of the church, at the same time, had a dispute between the members of the church, in violation of the church law procedure but could petition the entrusted trial to the members of the church trial division corresponding to the higher court in the church. On the same day, Defendant B, without the resolution of the church association, arbitrarily designated V to the head of the church, who followed himself/herself, as the chairperson of the prosecution, as the chairperson of the 13 persons and two prosecution members, and designated the remaining members of the party trial division as the members of the 3rd party trial division. On November 29, 2010, Defendant B, at the same time, appointed 13 persons and 2 persons except for the 13 persons, 3 persons and 2 persons who were subject to prosecution, entered the remaining qualifications of the 2nd party trial division, formation of the church organization, creation of the remainder, 10th party disciplinary council.

The Defendants, on July 24, 2011, required to hold a church meeting in Ansan-si, a non- damaged general meeting, and make a resolution to recruit seven members for the head of Defendant A. However, the Seoul Central District Court suspended the validity of the church resolution on October 11, 201 by a provisional disposition suspending its validity, and did not recruit new members (Supreme Court Decision 2012Da84363 Decided November 9, 2012; Supreme Court Decision 2012Da84363 Decided April 12, 2012; Supreme Court Decision 2012Da84363 Decided April 12, 201). On the other hand, the final judgment of the Seoul Central District Court rendered a final judgment of imposing a prosecution against the head of 13 persons in the country of the general meeting, which was the final judgment of the church trial, on April 12, 2012. However, the remaining decision of the Seoul Central District Court was still binding on the head 103 U.S. 2710.

C. Defendants’ commission of occupational embezzlement crime

In order to avoid the provisional disposition of suspending the validity of the above disciplinary judgment, and to deprive the core force of the status of the party member on the 13-party funeral, the Defendants filed a petition for review to the court of the general assembly on September 30, 2012 for the benefit of the 13-party funeral. On September 10, 2012, the Defendants were sentenced to a new trial on September 10, 2012 in the country of the general assembly trial, including the suspension from office, N, andO on the 13-party funeral. (In relation to this new trial, there was a disposition of suspending its validity on February 5, 2013 by the Seoul Central District Court Decision 2012Kahap3208 Decided February 5, 2013).

On October 12, 2012, the Defendants: (a) 22 persons, other than U and L, from among the heads of 26 members, retired from the first 26 members, were eligible for membership; (b) around 22:00 on the same day, from among the 13 members, those who were eligible for membership in the party room at the meeting room at the meeting of the G principal council at the meeting of the general meeting at the meeting of the general meeting at the meeting of the general meeting at the meeting of the general meeting at the meeting of the general meeting at the meeting of the general meeting at the meeting of the general meeting at the meeting of the general meeting; (c) excluding the whole number of those who were eligible for membership at the meeting of the political party at the meeting of the general meeting at the meeting of the general meeting; and (d) those who were 0, AAD, AC, V, AE, AF, and B, who attended the meeting with the Defendant A and held the meeting at the meeting of the general meeting at the meeting. Accordingly, the Defendants B made a decision to pay KRW 800 million to the Defendant on December 18.

As a result, the Defendants conspired and embezzled KRW 800,000 owned by the Victim Gents Association, which Defendant B was in custody.

2. Defendant and his defense counsel’s assertion

If the general assembly review decision of September 10, 2012 excluded the head whose membership is suspended by the ruling of the general assembly of September 10, 2012, 15 persons were qualified as party members as of October 12, 2012, and 9 persons who are the majority of the members were present at the meeting of the general assembly of October 12, 2012 and decided to pay 800 million won honorable treatment to Defendant A, the above resolution of the general assembly

Even if there are any defects in the above resolution of the party council, Defendant B merely executed the above resolution of the party council, and thus, it cannot be deemed that Defendant A had an intention of unlawful acquisition. In addition, Defendant A did not participate in the affairs of the G church since he retired at the end of 2010, and Defendants could not participate in each recommended decision of the association of the 13 members and the general meeting. Thus, the Defendants cannot be deemed to have committed the crime of embezzlement as stated in the facts charged of this case by using the authorized judgment.

3. Determination

(a) Facts of recognition;

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

1) According to the church law, the church hall(s) shall be held with attendance of a majority of the party members, and shall perform duties such as supervising finance (Article 66 and Article 68 subparag. 5), and the joint council(s) shall pass a resolution on the budget and settlement of accounts (Article 90 subparag. 5), and the direct council(s) shall pass a resolution on the budget and settlement of accounts (Article 90 subparag. 5), and the general balance budget and settlement of accounts concerning the finance (Article 91).

2) On August 8, 2010, the Joint Council of the G church decided to dismiss Defendant A as a senior pastor on August 8, 2010. On August 29, 2010, the Council decided to appoint five honorary members, including the head of AG, and to discuss the honorable treatment of senior pastors. At that time, 26 members of the G church including the Defendants and the 13 senior pastors.

3) Defendant B filed a complaint with the political party on November 28, 2010 on the grounds that the president constituted a private organization, etc. Defendant B, who was the president of the political party, determined the remainder of the party members except for V and W as the prosecution members without going through the resolution procedure of the party branch, 13 pages and the indictment members.

4) On December 27, 2010, on the 13th day of December, 2010, the trial court sentenced I, J, and K to the dismissal from office and withdrawal from office for each of them, L, M, N, andO for one year of suspension from office, and the remaining six copies for each reprimand (hereinafter referred to as "the judgment subject to the authority of the first instance trial").

5) Defendant A retired from the faculty members of the G church on December 31, 2010 and from the G church, was transferred to the faculty members of the G church, and the Honorable Treatment Committee issued a certificate of honorable treatment to the above Defendant. The above certificate of honorable treatment states that the above certificate of honorable treatment is honorable, but the amount is not written.

6) On November 17, 2011, the Ulsan High Court rendered a judgment dismissing an appeal to the 13 chief executive officer against the judgment of the first instance court (hereinafter referred to as the " judgment of the second instance court") (hereinafter referred to as the "decision of the second instance court").

7) On April 12, 2012, the 13th president appealed to the 13th president. On April 12, 2012, the 13th president appealed appealed to the 13th president of the 2nd instance court. On April 12, 2012, the 13th president of the 13th session, Defendant B submitted a written complaint to the 13rd president who was not the 13rd president of the 13th session, and the chairman of the 1st session constituted the 3th session at will, without the resolution of the 1st session, constituted the 1st session, and there is no concrete evidence of the facts of the offense by the person subject to the 1st session at the 2nd session. In the case of the 2nd session, 5 members of the 13th session, whose term of office has already expired as the 5th president of the 13th session, who was in violation of the principle of no punishment without the law and the principle of evidence trial.

8) On May 2012, AG retired from the Ministry of Finance and Economy, and Defendant B was appointed as the Minister of Finance and Economy. AG stated that the payment was postponed because there was a conflict of opinion in relation to the payment of the honorary treatment amount of KRW 800 million within the G church at the time when the head of the finance department was appointed by the investigative agency (each written statement about the AG).

9) On July 10, 2012, the Seoul Central District Court rendered a provisional disposition suspending the effect of the judgment with respect to the third instance judgment on the ground that there is a serious procedural defect in the judgment with the jurisdiction of the first instance court as of July 10, 2012, and such defect cannot be seen as being cured by the judgment with the authority of the higher court.

10) On September 10, 2012, the Assembly rendered a new trial on the judgment with the authority of the third instance on September 10, 2012 to I and K

In 11 months of each suspension, L, R, S, and T were subject to the submission of each letter of withdrawal from each private organization and submission of rebuttals, L, L, R, Q, and U, respectively, dismissed dismissal from each office (regument of reprimand) and the period of suspension from office and dismissal from each office was April 12, 2012 (hereinafter referred to as the "decision of dismissal from each office").

According to the ruling of re-examination authority, even if there is procedural defect in the ruling of re-examination authority of the first and second instances, the procedural defect was cured at the general meeting because the ruling of the first and second instances was reversed and sold, L is expected to retire as of the end of 2012, the J is required to be retired, and M has submitted a letter of early resignation, and M has been punished.

11) On September 26, 2012, the G Diplomatic Association adopted a resolution, such as having the J as a religious member, and having M receive a written petition for retirement (hereinafter referred to as “resolution on September 26, 2012”).

12) On October 12, 2012, G principal meetings deemed three pastors and 15 general members, including 12 presidents and 12 vice-presidents, were present at the meeting of the political party and held the meeting. 8 general members, among the 13 general members at the time, were not recognized as a party member, and 5 other members were recognized as a party member, but did not attend the meeting above.

At the above meeting of the political party, a resolution was made to implement the payment of KRW 800 million immediately on the basis of the honorary treatment certificate and the interpretation of the General Assembly Constitution ( November 18, 2011) delivered by the honorary treatment committee chairperson in accordance with Defendant B’s petition (see, e.g., Supreme Court Decision 1, Dec. 12, 2010), based on the honorary treatment certificate and the interpretation of the General Assembly Constitution (see, e.g., Supreme Court Decision 2000 million).

13) On October 21, 2012, Defendant B paid KRW 800 million to Defendant A according to the resolution of the instant political party.

14) The Seoul Central District Court rendered a judgment that confirmed the invalidity of the final judgment of the third instance on the grounds that there are procedural defects, such as the composition of the final subcommittee and the party concerned, and the violation of the principle of no punishment without the law, in the final judgment of the first and the second instance court, based on which the judgment of the Seoul Central District Court rendered a judgment of the Seoul Central District Court rendered that the final judgment of the first instance court is invalid on the grounds that such defects were not cured. In addition, the Seoul Central District Court rendered a judgment of the final judgment of the retrial, although it was missioned by the said judgment, although Article 73 subparagraph 7 of the Enforcement Rule of the church Act provides that the final judgment of the Seoul Central District Court involved in the original judgment of the Supreme Court cannot be a member of the final judgment of the first instance court of the 15th judgment of the first instance, including AH, and therefore, the judgment of the retrial is likely to be invalid, and therefore, the judgment of the third instance judgment is invalid.

15) However, in the above appellate trial, the Seoul High Court rendered a judgment dismissing the lawsuit on the ground that the filing of the lawsuit is not subject to judicial review, in principle, on June 21, 2013, in view of the fact that the first and the second appellate court's judgment was not subject to judicial review, even if there were procedural defects in the judgment, and that the judgment of the first and the second appellate court is subject to autonomous regulation inside the religious organization on these defects, such as the adjudication of the new trial is recommended, etc., and thus, the petition for confirmation of invalidation of the judgment of the third appellate court was dismissed on the ground that it is not subject to judicial review. The Supreme Court dismissed the final appeal on October 11, 2013 and became final and conclusive by the Supreme Court.

16) On December 2, 2012, the Joint Council of the GIST ratified the settlement of accounts of three years from 2010 to 2012 in accordance with Defendant B’s report, and agreed to the budget bill of 2013. According to the settlement table, the annual expenditure of the G church 2012 was approximately KRW 1.693 billion in total, and KRW 80 million in total was paid as honorary treatment money.

17) On February 5, 2013, the Seoul Central District Court rendered a provisional disposition order that the application for suspension of effect is dismissed on the ground that there is a lack of vindication of the necessity for preservation of L/W or J. M’s explanation of the necessity for suspension of effect. The Seoul Central District Court rendered a provisional disposition order that the application for suspension of effect is dismissed on the ground that the validity of the part against L/W, N, N, andO is suspended until the final judgment of the principal case is finalized.

18) From May 2013, 2013, 7 of the 13 pages I et al. filed a lawsuit with the Seoul Central District Court 2013Da33978, Sept. 26, 2012, claiming confirmation of invalidity of the six resolutions of the G church, such as the party council resolution and the instant party council resolution, etc. The decision was rendered without holding that the said six resolutions are null and void on July 26, 2013, by failing to submit a written response. The G school council appeals the above decision and continues to file a lawsuit seeking confirmation of invalidity of the said six resolutions as the Seoul High Court 2013Na55661.

B. Determination

According to the above facts, ① payment of 80 million won or less is required as a special budget for the above general meeting of 10 million won, ② The decision of the Seoul Central District Court on July 10, 2012 that suspends the membership of 7 members of the above general meeting of 10 million won is rendered on the 9th day of the same month. ③ The decision of the retrial authority was delivered by the 10th day after the 2nd day of the judgment of the first instance court and the 2nd day of the above provisional disposition of 10 billion won. The 1st day of the above provisional disposition of 2nd day after the 2nd day of the above provisional disposition of 10th day after the 2nd day of the above provisional disposition of 2nd day after the 13th day of the appeal, the 2nd day of the above provisional disposition of 2nd day after the 10th day of the above provisional disposition of 2nd day after the 13th day of the resolution of the 2nd day of this case.

However, in the crime of embezzlement, the intent of unlawful acquisition refers to the intent of a person who keeps another's property without authority to dispose of the property as if he/she were his/her own property for his/her own interest or for a third party's interest (see Supreme Court Decision 9Do3982, Feb. 8, 2000). In light of the following circumstances acknowledged by the above facts, the above facts alone do not constitute an intent of unlawful acquisition of KRW 80 million against Defendant B, and it cannot be deemed that Defendant A conspired with, or had an intention of unlawful acquisition of, the honorable treatment money by participating in the process of paying the honorable treatment money, and there is no other evidence to prove otherwise.

1) Defendant B, as the head of the finance division of the victim G church, executed the payment of honorary treatment money according to the resolution of the council of this case, so the above Defendant cannot be deemed to have paid honorary treatment money at will.

2) If the ruling of recommendation for review and the resolution of the political party on September 26, 2012 were null and void, it cannot be deemed that there is no possibility that the resolution of the political party in this case would be invalidated because it does not meet the requirements of a majority withdrawal. However, Defendant B would be deemed to have paid honorable treatment to Defendant A even if the ruling of the political party in this case is declared null and void in the lawsuit for nullification of invalidation of the ruling of the right to review (Seoul Central District Court 2012Kahap3208 dated February 5, 2013) or the resolution of the political party in this case, etc. before the lawsuit for nullification of invalidity of the ruling of the political party in this case is filed (Seoul Central District Court 2013Gahap33978 and Seoul High Court 2013Na5661).

3) On June 21, 2013, the Seoul High Court rendered a judgment dismissing a lawsuit on the ground that the lawsuit is not subject to judicial review in a lawsuit seeking nullification of the judgment on the authority of the third instance (Seoul High Court 2012Na96481). The above judgment became final and conclusive on October 10, 2013 (Supreme Court Decision 2013Da51124). In light of the foregoing, it is deemed that the final judgment on the authority of a general meeting of the F religious organizations to which the G church belongs was final and conclusive as a final judgment on the authority of a 13 principal, 13 principal, among 13 principal, at the time of the resolution of the instant party meeting based on the main text and reasoning of the judgment, and thus, the above party meeting does not constitute a arbitrary judgment to pay honorable treatment to Defendant A.

4) Although Defendant B paid honorable treatment money to Defendant A without a prior resolution of the joint council, the instant resolution of the church was presented as the ground for the interpretation of the General Assembly Constitution committee on November 18, 201 to the effect that the instant resolution can be paid with honorable treatment without undergoing a separate joint council, and was ratified after the joint council on December 2, 2012, it is difficult to deem that Defendant B paid honorable treatment money to Defendant A solely on the ground that the payment of honorable treatment money was not subject to prior resolution of the joint council.

5) There is no evidence to deem that the Defendants were in a position to exercise timely influence over the composition or result of the judgment of the State Council or on the judgment of the State Council of the second and third instances, or that they participated in the above judgment of the State Council of the State Council in any other way. Therefore, Defendant B accused 13 heads of the State Council of the State Council and Defendant A appointed the State Council of the State Council of the State Council, solely on the sole basis that Defendant A appointed the State Council of the State Council of the State Council of the State Council of the State Council of the Republic of Korea, the Defendants deprived 13 heads of the State Council of their membership for the purpose of embezzlement of honorable treatment money.

6) In addition, there is no evidence to acknowledge that Defendant A retired from the membership of the G church on December 31, 2010 and participated in the affairs of the church such as various lawsuits or the resolution of the church of this case. According to each protocol of suspect examination on Defendants, according to each protocol of suspect examination on Defendants, Defendant A appears to have been engaged in the crime of embezzlement of Defendant B, which was the person who has the custody of the honorable treatment fee of the victim G church, and there is no evidence to acknowledge that Defendant A conspired to commit the crime of embezzlement of Defendant B, which was the person who has the custody of the victim G church

4. Conclusion

Thus, the facts charged in this case constitute a case where there is no proof of crime, and thus, a judgment of innocence is rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act, and a summary of the judgment of innocence is publicly announced pursuant to

The presiding judge, senior judge;

Records of Judges

Judges Kim Jae-hee

1) The meeting minutes of the G church on December 12, 2010 indicate that the person who has the right to honor the senior pastors shall be entitled to be the honorary committee at the vertical council’s meeting to be the honorary committee. However, at the time of the vertical meeting on December 26, 2010, K et al. raised an objection to the purport that the above agenda was not resolved at the senior committee, and the meeting on December 12, 2010 was convened due to confusion within the chapter. On the other hand, the written report of the Committee on Honorable Treatment of the senior church on December 26, 2010 stated that the defendant shall pay the amount of KRW 80 million with the honorary treatment amount to the defendant A.

2) If a general meeting, G church, at the meeting of the political party on August 29, 2010 and the meeting of the political party, made the honorable activities of the senior pastor, and passed a resolution at the meeting to grant the honorable treatment to the Honorable Treatment Committee on the honorable treatment of the senior pastor, the church law interpretation was sought on whether the Honorable Treatment Committee can pay the honorary treatment to the senior pastor. Accordingly, the general meeting passed the resolution at the meeting of the political party and at the joint meeting of the Council on November 18, 201, and delivered the certificate of honorable treatment to the senior pastor, the meeting would not pass again through the joint meeting.

3) Although L was stated to have withdrawn at the time of the resolution of the instant political party, according to the entry in the judgment of the ruling of the right to review and the statement investigation records in each investigation agency of I and Defendant B, L appears to have withdrawn at the end of December, 2012, which is after the resolution of the said political party.