(영문) 서울중앙지방법원 2017.9.22. 선고 2017고합359 판결

around November 2014, the Defendant is a foreigner of the U.S. nationality, and the victim E (E, representative F, hereinafter referred to as the “victim”) is a U.S. corporation established by the California law of the United States for the purpose of selling cosmetics and medical appliances. The Defendant is a U.S. corporation with an office in Bo Angeles G.

From November 2014, the Defendant served as an employee of the victimized Company, and was in charge of the overall management and financing management of the Company, and kept funds deposited in the bank account (bank OF America) account H, I, and J) of the victimized Company for business purposes.

(1) On May 10, 2016, the Defendant released USD 870.91 ($ 1,019,836) from 25 U.S. dollars to 15 U.S. dollars 27.5 ($ 1,000) and voluntarily consumed it for personal purposes, using 30 U.S. dollars 16 to 25 U.S. dollars 17.5 ($ 1,07 U.S. dollars 16 to 36 U.S. dollars 28, 17 U.S. dollars 16 to 47 U.S. dollars 16, 17 U.S. dollars 28, 263 through 303, 17 U.S. dollars 16 to 17.6 U.S. dollars 28, 201, 16 to 37 U.S. dollars 16, 206 to 18.6 U.S. dollars 16.7, 206.0

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of the witness K and F;

1. A protocol of examination of part of the defendant by prosecution;

1. The part concerning the statement of K and F in the police interrogation protocol against the defendant

1. Each police statement to K;

1. A written statement;

1. The details of the complaint, the document of arranging LIST in a U.S. corporation, the certified transcript of corporate register, the certificate of business registration, the articles of incorporation (U.S. corporation), the copy of the U.S. driver's license report, the document proving the LITS in a U.S. corporation, the resident registration copy, the resident registration copy, the resident registration copy, the entry report, each entry report, each entry data (A, K), the electronic data on the crime committed by embezzlement in the U.S. corporation, text message, the text message, the printed data on the account in the name of the suspect, the printed data on November 2015, the document of the suspect's savings account, each electronic mail transfer document, each electronic mail printed document, the written opinion of the counsel, the document proving the entry and departure, the document providing additional data on the statement of profits and losses (15, 15, 16.7.), the document comparing the reported amount of funds, the data comparing the account balance, the records of the members' account, the e-mail account linked data paid to the U.

1. To attach a report on investigation (Bank OF America and separate rights, such as data on account details, attach data on the suspect's resident registration, resident registration, copy and abstract of the suspect A, verify and attach data on details of entry and departure of the suspect A, and attach

| 피의자 발송 문자메시지 및 L와 주고받은 전자메일, 피의자 A의 국적 및 처벌근거 확인, 익스피디아 사이트 화면 출력물 첨부, 피의자 일부 범죄사실 부인 내용 확인, 범죄일람표 일부 수정, 참고인 L로부터 2차 이메일 답변 회신)

Application of Statutes

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

Articles 356 and 355(1) of the Criminal Act (generally, the choice of imprisonment)

1. Suspension of execution;

Article 62(1) of the Criminal Act (Considering favorable circumstances among the reasons for sentencing below):

Judgment on the issue 1)

1. As to the jurisdiction over the facts charged in this case, since the defendant as a U.S. citizen at the time of the crime in this case is a foreigner and the injured company is a foreign corporation and the place of crime is either a U.S. or a foreign country, the jurisdiction over the charges

A. Where the defendant embezzled the funds of a victimized company in the Republic of Korea for business purposes (attached Form 1 5 through 195, 212 through 23, 263 through 303, 54 through 58, 60 through 62, 71 through 81, 83, 87 through 89, 91 through 93, 105, 110, 112 through 115, 118 through 147, and 129 through 1344)

Since the Criminal Act of the Republic of Korea applies to nationals and foreigners who have committed a crime within the territory of the Republic of Korea (Article 2 of the Criminal Act), the charges of this part of the charges committed by the defendant during the period of entry into the Republic of Korea (from November 26, 2015 to December 3, 2015), from May 6, 2016 to May 15, 2016; from May 29, 2016 to June 2, 2016; from June 23, 2016 to June 23, 2016; from June 23, 2016 to June 24, 2016; from June 29, 2016 to July 13, 2016) may be exercised under Article 2 of the Criminal Act.

B. Where the defendant embezzled funds from a foreign country for business purposes (attached Form 1 5 through 174, 196 through 211, 224 through 262, 304 through 3152), attached list of crimes (2) 1 through 39, attached list of crimes (3) 1 through 53, 59, 63 through 70, 823), 84 through 86, 90, 94 through 104, 106 through 109, 1111, 16, 117, attached list of crimes (4) 1 through 128, 1354)]

1) According to the provisions of Articles 5 and 6 of the Criminal Act, where a foreigner commits a crime in a foreign country, the Criminal Act of the Republic of Korea is applied only when the foreigner commits a crime against the Republic of Korea or a national of the Republic of Korea in addition to the crimes listed in subparagraphs 1 through 7 of Article 5 of the Criminal Act.

2) This part of the facts charged is that the defendant, who is a foreigner, has embezzled money from a foreign country such as the United States, for business purposes, and there is no jurisdiction over the Republic of Korea since it does not fall under Articles 5 and 6

2. Determination of the Defendant and defense counsel’s assertion

A. As to the annexed list of crimes (3) 143 and 145

1) Summary of the assertion

The defendant did not use the physical card of the victimized company in relation to the above sequence.

2) Determination

The following facts and circumstances acknowledged by the evidence duly adopted and investigated by this court, i.e., (1) on July 13, 2016, using the e-mail card (N) of the victimized Company on the website of the Republic of Korea Espidiia and settled US$ 83.90 with the payment of US$ 2,796.71 and the fee (number 43,47 (Evidence No. 9 of Evidence)) from the bank account of the victimized Company on July 14, 2016; (2) the above e-mail card was managed by the Defendant alone on the date when the said e-mail card was left the Republic of Korea; and (3) on the date when the Defendant left the Republic of Korea on July 11, 2016, the Defendant golded cash from Samsung Dong-dong, Pwho, and HHro-ro (attached Form 1 294 through 303) on July 26, 2016.

[Attachment Table (3) Nos. 146, 147, and 43 (Evidence List Nos. 9) of the crime log 146, 147, and 43) of Hong Kong, such as withdrawing cash using the above physical card (attached Table Nos. 304 through 307) around that time, and there is no reason to see that the use of the above physical card is unrelated to the defendant as an officer's business trip, etc. (3) otherwise, the victim company's check the use of the above card and did not have any reason to include it in the details of the damage, and the defendant did not have any reason to see that the above payment was made by the above 4th of May 16, 2016 using the above physical card No. 1304 to 307 of the crime log No. 167 of the victim company's account no more than 70 of the victim company's account no more than 16th of the above e-mail reply.

Therefore, this part of the defendant and defense counsel cannot be accepted.

B. As to Nos. 130, 131

1) Summary of the assertion

Each remittance to L [Attachment 4] [Attachment 130] and S [Attachment 131] is not a defendant.

2) Determination

(5) On July 7, 2016, the court lawfully adopted and investigated the following facts and circumstances, i.e., ① transferred USD 2,500 from the bank account (Account Number) to the online banking, and on the same day, transferred USD 3,00 from the above bank account via online banking [number 9]. ② At the time, the defendant was authorized to transfer money to the victim company’s general manager, such as fund management, logistics management, and membership management. ③ The above L was operated as an employee of the victim company and its customers, and the defendant did not know that there was no possibility that the defendant would have been able to transfer money to the victim company’s own account regardless of the defendant’s instructions, and there was no possibility that the defendant would have been able to do so for the above 7th anniversary of the fact that the defendant would have been able to receive money from the above 7th anniversary of the fact that the defendant did not have been in charge of embezzlement of the victim company’s funds. Meanwhile, the defendant did not appear to have been in accordance with the above direction of the victim company’s payment of profits.

Therefore, we cannot accept this part of the defendant and his defense counsel.

Reasons for sentencing

1. The scope of punishment by law: Imprisonment with prison labor for one month - ten years;

2. Scope of recommended sentences according to the sentencing criteria;

[Determination of Punishment] Type 1 (less than KRW 100,00) for Embezzlement and Breach of Trust

【Special Exploitor 【Special Exploitor Doctrine 8)】

[Recommendation and Scope of Recommendations] Reduction Area, Imprisonment from one month to ten months

3. Determination of sentence: Imprisonment with prison labor for ten months and two years of a stay of execution; and

The crime of this case is not likely to be committed in the course of occupational embezzlement by withdrawing cash for personal purposes, such as living expenses, entertainment expenses, etc. which are irrelevant to the company from the bank account of the company, using a physical card, or remitting it to the defendant's account, while controlling the overall business of the damaged company's business in the U.S., and managing the funds and physical cards of the victimized company. The total amount of damage is more than 80 million won, and the victimized company wants to be punished against the defendant.

However, in order to recover the damage of the 1.1 billion won who was prosecuted by the defendant, deposited for the damaged company a total of KRW 470 million for the purpose of recovering the damage, and the damaged company received the above money and thereby exceeding KRW 800,000,000 which is the total amount of the damage determined to be convicted of the defendant in this case. Considering the circumstances favorable to the defendant, such as the defendant's initial offender, the defendant's age, character, character, environment, family relationship, motive and circumstance of the crime in this case, and the circumstances after the crime, the punishment shall be determined as ordered by the order, comprehensively taking into account various sentencing conditions stipulated in Article 51 of the Criminal Act,

Public prosecution part - Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

1. Summary of this part of the facts charged

The defendant is a foreigner of the U.S. nationality who works as an employee E (E and representative F) of the victimized Company E (E and representative F) of the U.S., and has kept funds deposited in the deposit account of the victimized Company for business purposes.

피고인은 ① 2015. 1. 21. 미국 로스앤젤레스에 있는 ATM에서 피해회사 은행계좌(계좌번호 I)와 연결된 체크카드를 이용하여 미화 500달러(한화 541,850원 상당)를 인출하여 개인적인 용도에 임의 소비한 것을 비롯하여 그 무렵부터 2016. 7. 15.까지 사이에 별지 범죄일람표(1) 순번 1 내지 174, 196 내지 211, 224 내지 262, 304 내지 315 기재와 같이 241회에 걸쳐 업무상 보관 중인 피해회사 자금 합계 미화 124,178.54달러 (한화 145,385,320원 상당)를 로스앤젤레스, 라스베이거스 등지에서 인출하여 임의 소비하고, ② 2015. 5. 27. 미국 로스앤젤레스에 있는 피해회사 사무실에서 피해회사 업무와 무관하게 피해회사 은행계좌(계좌번호 I)에서 지급하는 액면금 미화 2,727달러(한 화 3,012,790원 상당), 수취인 피고인(A)으로 하는 수표를 발행하여 위 계좌에서 수표금을 지급 받은 것을 비롯하여 그 무렵부터 2016. 5. 4.까지 사이에 별지 범죄일람표 (2) 순번 1 내지 39 기재와 같이 39회에 걸쳐 미국 로스앤젤레스 등지에서 합계 미화 146,243.75달러(한화 168,753,816원 상당)의 수표를 발행하여 업무상 보관 중인 피해회사 자금에서 지급되게 하고, ③ 2015. 3. 26. 미국 로스앤젤레스에서 피해회사 은행 계좌(계좌번호 I)와 연결된 체크카드를 이용하여 T에서 개인적 용도로 미화 1,000달러 (한화 1,106,200원 상당)를 결제한 것을 비롯하여 그 무렵부터 2016. 6. 28.까지 사이에 별지 범죄일람표(3) 순번 1 내지 53, 59, 63 내지 70, 82, 84 내지 86, 90, 94 내지 104, 106 내지 109, 111, 116, 117 기재와 같이 85회에 걸쳐 로스앤젤레스, 라스베이거스 등지에서 위 체크카드로 합계 미화 69,941.52달러(한화 81,908,430원 상당)를 결제하여 임의 사용하고, ④ 2015. 7. 20. 미국 로스앤젤레스에서 피해회사 은행계좌(계좌번호 J)로부터 개인적인 용도로 'S' 계좌에 미화 2,412달러(한화 2,785,860원 상당)를 송금한 것을 비롯하여 그 무렵부터 2016. 7. 12.까지 사이에 별지 범죄일람표(4) 순번 1 내지 128, 135 기재와 같이 129회에 걸쳐 로스앤젤레스, 라스베이거스 등지에서 합계 미화 581,730.45달러(한화 685,411,593원 상당)를 임의 송금함으로써, 2015. 1. 21.부터 2016. 7. 15.까지 피해회사를 위하여 업무상 보관 중인 피해회사 자금 합계 미화 922,094.26달러(한화 1,081,459,159원 상당)를 횡령하였다.

2. Determination

As examined in the above 1.B., the facts charged in this part of the facts charged are as follows: (a) where the defendant, a foreign corporation, has embezzled funds of the victimized company overseas for business purposes; and (b) has no jurisdiction in the Republic of Korea; and (c) has to dismiss the public prosecution pursuant to Article 327 subparagraph 1 of the Criminal Procedure Act; (d) as long as the defendant found that he/she was guilty of occupational embezzlement as stated in the judgment regarding such

Judges

Judge of the presiding judge;

Judge Jin-hun

Judges Park Jong-chul

Note tin

1) As seen below, there are parts that are found guilty of the facts charged in this case and that are determined as rejection of prosecution, and in order to help understanding, this part also states in this paragraph.

2) In the case of [Attachment 304/307] Nos. 304 through 307, the day of the crime is July 13, 2016, which is the day when the defendant left Korea from Korea, and is obviously withdrawn from Hong Kong due to the details of the crime. Thus, the place of the crime is a foreign country.

3) In the case of [Attachment 82] Nos. 82, the date of the crime is June 2, 2016, which is the date of the defendant's departure from a foreign country, and appears to have used the check card in a foreign country according to the details of the use.

4) The date and time of the crime in the annexed list of crimes (4) Nos. 122, 124, and 135 (BMF remittance details) falls under the period of entry of the defendant into the Republic of Korea. However, this is because at the time when the defendant entered into a lease contract in the United States in the United States, M, a lessee, was paid each month by automatic transfer using information from the account of the damaged company delivered by the defendant (hereinafter referred to as the "number of evidence Nos. 710 (Evidence 47)), the place of the crime is still a foreign country.

5) Meanwhile, the prosecutor appears to have instituted the instant public prosecution on the premise that it has jurisdiction over some of the criminal acts related to the general crime in Korea, and whether there is jurisdiction over several acts constituting the sale crime shall be determined by each individual act (In Seoul High Court Decision 2011/2354, Feb. 10, 2012, the Seoul High Court examined whether there is jurisdiction over each individual act when determining that the criminal defendant, who is a foreigner, received the investment money directly or through the local bank account in a foreign country, received the investment money through the domestic bank account, and received the investment money through the domestic bank account, respectively.).

6) In order to run the cosmetic wholesale and retail business, the damaged company is a company established by making the representative F as F. 1, 25. 10% of the shares of the victimized company, P. 10% of the shares of the victimized company. The victimized company holds 40% of the 0% of the Co., Ltd., 40% of the 0, Q Q as the president of Q as the 0% company, 40% of the 20% of the 21-22 (Evidence No. 4), number of Q’s spouse, 1138-143 (Evidence No. 83)).

7) On the other hand, it was confirmed that USD 946.30, which the Defendant settled in Hysia on June 6, 2016, 6, and 1, was related to Q Q’s visit to 0 Chairperson Q.

8) Based on the amount of damage equivalent to KRW 84,519,183 on the judgment of conviction on the recognition of jurisdiction, not the total amount of embezzlement instituted.