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The judgment of the court below is reversed.
Defendant
A shall be punished by a fine for negligence of KRW 3,000,000 and by a fine of KRW 1,00,000.
Reasons
1. Summary of grounds for appeal;
A. In the course of the administrative litigation against the revocation of permission to establish a social welfare foundation E (hereinafter “E”) for the attempted fraud of Defendant A and the revocation disposition, Defendant A transferred KRW 150 million to the account of Defendant B at the request of Defendant B and lent it to the account, but the Defendants conspired to borrow KRW 150 million and dealt with it, and the judgment of the court below which found Defendant A guilty of this part of the facts charged was erroneous and adversely affected the conclusion of the judgment.
B. Defendant B’s assertion of misapprehension of the legal principles as to the Defendants’ qualification-based document preparation and exercise of the same, expressed his intention to resign from the E representative director on October 25, 2009, but his successor was not selected, and Defendant B is the only representative of E and thus, Defendant B may act as representative of the corporation.
The judgment of the court below which determined all acts after the resignation of Defendant B as an act of qualified employment is erroneous in the misapprehension of legal principles, which affected the conclusion of the judgment.
C. The sentence (Defendant A: a fine of seven million won, Defendant B: a fine of two million won) imposed by the lower court on the Defendants is too unreasonable.
2. Determination
A. According to the evidence duly admitted and examined by the lower court as to the assertion of mistake of facts as to attempted fraud, the following facts can be acknowledged.
(1) On May 26, 2005, Defendant B deposited KRW 447,601,612 in the account of the Industrial Bank of Korea in his own name and then released KRW 437,650,000 among them on May 27, 2005, in order to create a certificate that Defendant B would establish E and hold cash to contribute to E.
(2) Defendant B was selected and appointed as E’s representative director at the General Meeting of Promoters on June 25, 2005, and on June 30, 2005, Defendant B was operated as his basic property E’s site and building and cash 104.