(영문) 서울중앙지방법원 2018.6.15. 선고 2018고합244 판결

In the United States, six months of imprisonment already executed shall be included in the above sentence: Provided, That the execution of the above sentence shall be suspended for five years from the date this judgment becomes final and conclusive.

Reasons

Criminal facts

From February 1991 to May 1993, the Defendant, while working as the New York branch office of the Victim E Co., Ltd. (hereinafter referred to as the “victim E”) located in New York, has overall control over the business of lending and guaranteeing payment of the said branch office. At that time, two responsible persons, including the Defendant, etc., shall sign the payment guarantee letter of at least 5,00 U.S. dollars in accordance with the general foreign exchange business rules of the Victim Bank, and the duty transfer agreement, shall be signed by two responsible persons of at least 5,000 U.S. dollars in the case of the Victim Bank’s general foreign exchange business rules and the duty transfer agreement. In the event of a payment guarantee, the Defendant, as the head of the branch office of the Victim Bank, shall follow the above internal procedures of the Bank, as well as the obligor’s financial ability, credit standing, etc. who applied for the payment guarantee, and shall take appropriate measures, such as acquiring sufficient collateral, and shall execute the payment guarantee after obtaining the payment guarantee.

1. On April 9, 192, the Defendant, at the New York Branch, in violation of the above occupational duties, issued a payment guarantee letter with a single signature in violation of the internal provisions of the Victim Bank and issued a payment guarantee letter in excess of USD 9,500,000 to the Promissory Notes issued from F’s representative G for the purpose of discount at H, without taking necessary measures, such as closely examining G’s self-sufficiency and credit conditions or acquiring a security equivalent to the above Promissory Notes’s face value, without obtaining approval from the board of directors and obtaining approval from the board of directors, thereby obtaining pecuniary benefits of USD 9,50,000 to G and causing financial losses equivalent to the same amount to the victim bank.

2. Around September 29, 1992, the Defendant issued a guarantee certificate with a signature without obtaining approval from the president and the board of directors of the victim bank in violation of the above occupational duties, and then re-issued a guarantee certificate of payment that extends the payment guarantee period for loans on March 12, 1993, thereby obtaining US$ 10,200,000 (limited to US$ 8.16,000,000) to the victim bank (limited to US$ 8.16,000,000), and without taking necessary measures such as making a thorough examination of G’s financial resources and credit standing or acquiring security equivalent to the above loans, and then, issued a guarantee certificate with a single signature without obtaining approval from the president and the board of directors of the victim bank.

Summary of Evidence

1. Defendant's legal statement;

1. Statement to the prosecution of I;

1. A complaint;

1. Application of the Acts and subordinate statutes of the English payment guarantee, the translation of payment guarantee certificate, the general provisions for foreign exchange business, and the rules for discretionary actions;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Each of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 11304, Feb. 10, 2012); Article 3(1)1 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes; Articles 356 and 355(2) of the former Criminal Act (Amended by Act No. 5057, Dec. 29, 1995); the main text of Article 42 of the former Criminal Act (Amended by Act No. 10259, Apr. 15, 2010);

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (limited to concurrent crimes with punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) of September 29, 1992)

1. Discretionary mitigation;

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

1. Imposition of sentence executed abroad;

Article 7 of the Criminal Act (Inclusion of six months among the punishments executed in the United States of America in the sentence)

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)

1. Reasons for sentencing: Imprisonment with prison labor for a period of two years and six months from June to 11 March;

2. Scope of recommendations according to the sentencing criteria;

[Determination of Punishment] Type 4 of Embezzlement(Embezzlement at least KRW 5 billion but less than KRW 30 billion)

【Special Convicted Person】

[Recommendation and Scope of Recommendations] 4 to 7 years (Basic Area)

3. In the case of a decision to sentence sentence, it is not good that the Defendant issued a large amount of payment guarantee issued in violation of the obligation to take appropriate measures, such as complying with the internal procedures of the bank as the head of the branch office of the victim bank, and closely examining the debtor’s financial ability, credit standing, etc. In the instant case, the victim bank suffered enormous property damage. This is the circumstances unfavorable to the Defendant.

However, the Defendant is the primary offender, and all of the instant crimes are recognized and contradictory to the Defendant. Moreover, the Defendant does not directly acquire profits from the instant crime, but the Victim Bank appears to have received part of the amount of damage from the Defendant, etc. through civil litigation, etc. The Defendant had already been subject to criminal punishment in the United States due to the same criminal facts as the instant case, and was voluntarily entering the Republic of Korea and submitted a self-denunciation to the investigation agency before the voluntary entry into the Republic of Korea. Furthermore, the Defendant is suffering from diseases, such as urology, closure and compromise of urology at the age of the aged. Such circumstances are favorable to the Defendant.

In addition, in comprehensive consideration of various circumstances such as the age, character and conduct, environment, and motive, means and methods of the crime of the defendant, the punishment which is lower than the lower limit of the recommended punishment according to the sentencing guidelines shall be determined as ordered.