2017 Highly 332 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), letter of apology

Forgery, uttering of a falsified private document, preparation of a certified private document, qualification

Any false entry and false entry into public electronic records, etc., shall be made;

Hy public electronic records events

A

Kim Sung-hun (public prosecution) and chip (public trial)

Law Firm B

Attorney C

November 3, 2017

A defendant shall be punished by imprisonment for two years.

However, the execution of the above punishment shall be suspended for three years from the date this judgment became final and conclusive.

Criminal History Office

The defendant is a major shareholder of the above company and the husband of E who is a representative director, who has overall control over the manufacturing of clothes and business of D, a company located in the GIC.

When the Defendant entered into a written agreement for divorce with E, the Defendant forged the document in the name of E and recorded it as the representative director of the said company, and attempted to acquire the funds of the said company.

1. Forgery of private documents;

On May 23, 2016, the Defendant prepared one copy of the minutes of the extraordinary general meeting of shareholders, stating that “A shall be appointed as a company director without authority,” and one copy of the minutes of the board of directors stating that “A shall be appointed as a joint representative director,” without authority, for the purpose of exercising the fact that no special general meeting of shareholders was lawfully held by the 138 Spanman Building 2nd in the 2nd in the 2nd in the 2nd in the 2nd in the 2nd in the 2nd in the 2nd in the 2nd in the 2nd in the 138rd in Seoul Seocho-gu, as the distribution of Seocho-gu, and that “A shall be appointed as a private representative director,” and forged one copy of the minutes of the board of directors, which is a private document related

2. Preparation of qualification specifications and private documents;

The defendant did not have the right to appoint an agent under the name of the joint representative director of the above company because he did not have any appointment as a joint representative director only forged the minutes of the temporary general meeting and the minutes of the board of directors as stated in

On May 23, 2016, the Defendant: (a) prepared a document stating that “A shall be designated as an agent for filing an application for registration of change to the said company by using a computer in the G office of a certified judicial scrivener office located in the third floor of the Seoul FF building in Gangnam-gu, Seoul, by using the computer; and (b) printed out as “A of a joint representative director,” and affixed the seal of D’s name, which the Defendant was holding in advance by the name of A.

Accordingly, the defendant, for the purpose of exercising, prepared a letter of proxy, which is a private document on rights and obligations, with the qualification of joint representative director of D Co., Ltd.

3. Exercising the above-mentioned investigative documents and private documents prepared for qualification;

On May 24, 2016, the Defendant submitted to the registry office of the Seoul Seocho-gu Seoul Central District Court the minutes of the temporary general meeting of shareholders, the minutes of the board of directors, and the minutes of the board of directors as described in paragraph (2) each of the public officials in charge of registration under the name of the person in charge of registration, as if they were duly formed documents, for the registration of change of the representative director D, as described in paragraph (1).

4. False entry, false entry, and electromagnetic records; and

On May 23, 2016, the Defendant requested a certified judicial scrivener H to register the Defendant as an internal director and a joint representative director at the above certified judicial scrivener office. On May 24, 2016, H submitted the application for registration of change to the above contents to the public official in charge of registration, and made the public official in charge not aware of such fact recorded the registration of change to register the Defendant as an internal director and a joint representative director on the same electronic record as the above corporation registry and kept the record.

Accordingly, the defendant had recorded false facts in the same electronic records as the original register of the authentic deed, and had the electronic records recorded with false facts be kept and exercised.

5. Forgery of private documents;

On May 30, 2016, the Defendant entered “I”, “I”, “2,52,50,000,000”, “I”, and “BD” in the column of deposit holders, and forged one copy of the withdrawal statement, a private document, which is a private document on the certification of the name of D, affixed the seal of E which was stolen in advance on the next page, with the intention to exercise at a point of six (6) points in the Bank of Korea located in Jung-gu, Seoul.

6. Uttering a falsified investigation document;

The Defendant, who was unaware of the forgery at the time and place specified in paragraph (5), submitted a forged monetary statement to a bank employee as if he were a document duly formed, as described in paragraph (5).

7. Violation of the Act on the Aggravated Punishment of Specific Economic Crimes;

As stated in paragraphs 1 through 4 above, the Defendant did not have the right to withdraw the money from the account under the name of the said company only when it was recorded as a joint representative director by forging documents, such as the minutes of temporary general meeting of shareholders of D Co., Ltd., and was not duly appointed as a joint representative director of the said company, and there was no fact delegated or permitted by E,

Nevertheless, at the date, time, at the place, as described in paragraph (5) and at the place, the Defendant presented a forged monetary account as described in paragraph (6) with the name of the bank employee as if he had the legitimate authority to withdraw the deposit from the corporate account with delegation or permission from E as the joint representative director of the said company, and he received KRW 2,342,50,000 from the corporate bank account in the name of the said company from the corporate bank account (Account Number) to the said corporate bank account in the name of the said company, and received KRW 2,552,50,500 from the said corporate bank account in the name of the said company, and received KRW 2,342,50,000,210,000 from the Defendant’s corporate bank account in the name of the said company.

Summary of Evidence

【Facts 1 to 4 at the Time of Sales】

1. Partial statement of the defendant;

1. Each legal statement of witness E, L, M, N, and0;

1. A copy of power of attorney, a copy of the minutes of a special general meeting of shareholders, and a certified copy of the minutes of the board of directors;

1. Full certificate of registered matters D, list of shareholders, agreement on divorce and division of property, articles of incorporation, notice of the Export-Import Bank's payment of insurance proceeds, case search (Seoul Western District Court Decision 2016Kahap50217, copy of each passbook, request for reservation of payment of compromise insurance proceeds, each page, request for change of registration of a stock company, copy of each page, application for change of registration of a company, copy of each resignation, copy of each letter of appointment, letter of delegation such as seal impression, certificate of personal seal impression, certificate of personal seal impression, report of gift tax return, etc., copy of notice of payment of insurance proceeds of economic cooperation business insurance, Seoul Western District Court Decision 2016Kahap37664,

【Facts 5 to 7 at the Time of Sales】

1. Partial statement of the defendant;

1. Each legal statement of witness E, L, and 0;

1. A copy of the statement of money;

1. Full certificate of registered matters, inquiry about details of deposit transactions, list of shareholders, agreement on divorce and division of property, notification of payment of insurance proceeds to the Export-Import Bank, case search (Seoul Western District Court Decision 2016Kahap50217), Supreme Court case (Seoul Western District Court Decision 2016Kahap50217), comparison of copies of each passbook, request for reservation for payment of compromise insurance proceeds, each page, each document of request for reservation for payment of competition insurance proceeds, each Kakao Kakao Kao Kakao am messages, suspect's name bank transaction statement, gift tax return, etc., copy of the official document of notification of payment of insurance proceeds for economic cooperation business and insurance, etc., Seoul Western District Court Decision 2016Gahap37664, each board of directors' resolution, each letter of

Application of Statutes

1. Article applicable to criminal facts;

Article 231 of the Criminal Act, Article 232 of the Criminal Act, Articles 234, 231 of the Criminal Act, Articles 234, 234, and 232 of the Criminal Act, Articles 234, and 232 of the Criminal Act, Article 228(1) of the Criminal Act, Articles 229 and 228(1) of the Criminal Act, Articles 229, and 228(1) of the Criminal Act, Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347(1) of the Criminal Act

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (the crime of the uttering of a falsified private document at the time of sale and the crime of the uttering of a falsified private document at the time of sale) (the punishment specified for the crime of uttering of a falsified private document due to the submission of the minutes of the board of directors with the largest degree of crime and circumstances)

1. Selection of punishment;

In regard to each crime of forging any private document, preparation of a qualification certificate, each crime of uttering of any private document, any false entry into public electronic records, any false entry into such private electronic records, and any exercise of any false entry into public electronic records, any choice of imprisonment;

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)]

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following grounds for sentencing has been repeatedly taken into consideration for favorable circumstances)

Judgment on the Issues

1. Summary of the defendant's assertion

A. On May 23, 2016, the Defendant agreed to become a joint representative director of E and D Co., Ltd. (hereinafter “instant company”) and did not forge documents in the corporate register or make false records in the corporate register, by preparing, submitting, etc. relevant documents with a certificate of personal seal impression and a certificate of personal seal impression obtained from E, etc. (Article 1 to 4).

B. The Defendant contributed to the establishment fund of the instant company and was in charge of final decision-making with regard to the overall business of the instant company. The Defendant has managed the said company as a substantial error. The mere fact is that E, a representative in the name of E, is likely to arbitrarily dispose of the company’s property as he requested divorce, and thus, withdrawal of the company’s deposits and keeping them separately as stated in its reasoning is not forged or acquired the company’s deposits (Articles 5 through 7 at the market).

2. Determination

A. As to paragraphs 1 through 4 of the holding

1) In full view of the evidence duly admitted and examined by this Court, the following facts or circumstances are revealed.

A) On May 23, 2016, the Defendant drafted a divorce and a division of property agreement with the wife E on May 23, 2016. According to the above agreement (hereinafter referred to as the “instant agreement”), the distribution of compensation and economic cooperation insurance money (hereinafter referred to as 'government compensation', 's insurance money' in sequential order) to be paid to the instant company on February 8, 2016 between the Defendant and E is terminated, and the Defendant is to be registered as a joint representative director of the instant company if the instant company is proceeding later. Until the instant agreement is drafted, the government compensation was not determined as being under investigation as the damage amount of current assets of the instant company located in the GIC, and the Gyeongsung insurance money was not deposited in the instant company upon the Defendant’s request for reservation.

B) Nevertheless, the Defendant prepared the minutes of provisional shareholders’ meeting containing the Defendant’s appointment of the Defendant as a company director with the seal impression affixed by E and the certificate of personal seal affixed thereto, and the minutes of the board of directors’ meeting containing appointment of the Defendant as a joint representative director, and the power of attorney for registration of change to the same purport, and submitted them to the public official in charge of registration and

C) As above, there is no reason to issue a seal imprint certificate and a seal imprint certificate to use them to take office as a joint representative director with the status of government compensation and border insurance money. Rather, in accordance with the instant agreement, E appears to have issued a seal imprint certificate and a seal imprint certificate to the Defendant who is engaged in affairs following the closure of the GIC in order to promptly receive government compensation and border insurance money in accordance with the instant agreement. On the other hand, the Defendant acquired the qualification as a joint representative director of the instant company, and subsequently, sought to withdraw border insurance money.

2) According to the above facts, even though E does not use his seal imprint and seal imprint as a joint representative director of the instant company, he can be fully recognized that the Defendant submitted the minutes of the temporary general meeting of shareholders and the minutes of the board of directors to prepare and change the minutes of the board of directors by using the above seal imprint and the seal imprint certificate.

B. As to paragraphs 5 through 7 of the holding

1) In full view of the evidence duly admitted and examined by this Court, the following facts or circumstances are revealed.

A) On January 1, 1995, the Defendant operated the clothing manufacturing business under the trade name of “P” and closed the business due to the IMF crisis. On October 1997, the Defendant changed the trade name to “D” and resumed the business under his own name instead of the Defendant, who is a bad credit holder, by inserting funds from E, around October 1997. Thereafter, the Defendant decided to convert D into a corporation, and paid KRW 50 million deposited from the bank account in the name of “E” as its capital, and the instant company was established.

B) As the representative director of the instant company, E was fully liable for joint and several loans to the Export-Import Bank, and participated in the execution of the company’s funds by keeping and managing the corporate passbook and the seal registered in the passbook of the said company.

C) Since the incorporation of the instant company, before the date of the entry into the register of shareholders on June 1, 2016, E continued to be 100% of the shares issued by the said company on the register of shareholders, and on June 1, 2016, E appears to hold 50% of the shares issued by the said company (E asserts from the current civil case (Seoul High Court 2017 4205120) to be its own ownership.

D) As above, in the situation where E is one-person shareholder of the instant company on the shareholder registry, the following was added: (a) on September 23, 2013, when E is one-person shareholder of the instant company; (b) L and Q were appointed as an internal director of the instant company; and (c) on August 8, 2014, the said company’s corporate registry requires the approval of the board of directors to transfer the company’s shares to any person other than the shareholder.

E) According to the instant agreement, the distribution of the government compensation and cooperation insurance proceeds between the Defendant and E is terminated, and the instant company’s shares are 50% shares of each of the Defendant and E in the event that the instant company is re-contributed later.

F) Meanwhile, as seen earlier, although the Defendant was granted immunity on August 25, 2009 (Seoul Central District Court 2009.5862) and the credit was restored to normal grade, E still bears the joint and several liability for the instant company’s loans as representative director.

2) In light of the contributions and roles of E at the time of the incorporation of the instant company, the status of ownership on the register of shareholders of the said company, and the contents of the instant agreement, etc., the Defendant voluntarily withdrawn the deposits of the said company against the intent of E, a major shareholder and representative director of the said company, as stated in its reasoning.

Reasons for sentencing

1. Scope of applicable sentences under Acts: Imprisonment for one year and six months to twenty-two years; and

2. Scope of recommendations according to the sentencing criteria;

[Determination of Punishment] Fraudulent Crime Group, General Fraud, Type 3 (at least 500 million won, but less than 5 billion won)

[Special Mitigation] If the risk of damage is not substantially realized;

[Special Person] Where the Criminal Code is very poor;

[Scope of Recommendation] Three to Six years of imprisonment (Basic Area)

3. Determination of sentence;

The crime of this case is that the defendant registered himself as a joint representative with the seal impression and a certificate of personal seal impression of the wife E, which is a major shareholder of the company of this case, and withdraws the amount equivalent to KRW 2.5 billion deposited in the company's bank account against E against his will. Not only the amount of damage, but also the nature of the crime and the circumstances are not easy in that he has lost trust by violating the contents agreed on the division of property. Furthermore, there exists a lot of unrepaid amount, and E still wishes to punish the defendant.

However, this case is ultimately caused by disputes such as divorce and division of property between the Defendant and E, and ultimately, it seems that it should be resolved in the civil and domestic area. The Defendant, based on professional skills and experience in the manufacture of clothing, led the instant company to the growth of the company, contributed significantly to the company. After committing the crime, the Defendant returned a certain amount of KRW 84 million to the company, and the remaining amount of KRW 1.74 billion has been recovered, and the remaining amount of KRW 1.74 billion has been in custody in the form of a bank loan in preparation for the resumption of the GIC or entry into Vietnam projects. In addition, according to the instant agreement, the part of the GIC insurance proceeds is originally reverted to the Defendant, and the part of KRW 683 million has been somewhat sub-consumed with the seal imprint and the seal imprint certificate have been created or expanded.

In addition to these various circumstances, the defendant's age, character, conduct and environment, motive and consequence of the crime, relationship with the victim, circumstances after the crime, etc. are considered, and the same type of punishment as the order is determined beyond the lower limit of the recommended sentencing criteria and the execution thereof is suspended.

The presiding judge and judges;

Judges Sung Jae-in

Judges' Index

1) Although the indictment is "no party has been duly appointed as a joint representative of the victim company", the indictment is just to supplement the contents of deception to the extent that it does not pose a substantial disadvantage to the exercise of the defendant's right of defense.