(영문) 서울중앙지방법원 2014.5.29. 선고 2013고합1336 판결

A person shall be punished by imprisonment with prison labor for not less than four years and by imprisonment for not more than six months for a crime set forth in the holding of the defendant.

Reasons

Criminal facts

【Criminal Power】

On May 23, 2007, the Defendant was sentenced to two years of suspended sentence of imprisonment for 8 months at the Seoul Central District Court on September 28, 2007, and the judgment became final and conclusive on September 28, 2007. On February 10, 2011, the Suwon District Court sentenced two years of suspended sentence of imprisonment for fraud at the Suwon District Court on February 18, 2011, and the judgment became final and conclusive on February 18, 201, and on April 12, 2011, the Seoul Southern District Court sentenced ten years of suspended sentence of imprisonment for 10 months and became final and conclusive on April 20, 2011.

【Criminal Facts】

Around April 2007, the defendant, as a OSP listed company, acquired D(D) stocks for the purpose of manufacturing and selling automobile products, textile and clothing export business, and branch distribution business (hereinafter referred to as "D") from 3 major shareholders, both J and K companies (hereinafter referred to as "FF", "H", "H", "H", "H", "H", and "F", and the management rights of related companies from the time of acquisition to 3,465,00 stocks of related companies and 1) and until July 25, 2007.

1. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes;

(a) Embezzlement 5.6 billion won for stocks-backed bonds owned by the LIMF;

On April 19, 2007, the Defendant agreed to take over the management rights of the KJ shares of the KJ and three major shareholders (total issued shares 30,495,430 shares) from the KJ and the KJ shares of the KJ to 11 billion won (the contract amount of KRW 1 billion, intermediate payment of KRW 2.9 billion, and the balance of KRW 7.1 billion). The Defendant paid the KJ shares to the KF bank account (the account in the name of the KF) in the form of deposit with the KF bank account (the account number: K) on April 19, 2007. Accordingly, the Defendant acquired the KF-listed company's assets by taking advantage of the fact that the KF-listed company and the KF-affiliated company's management rights, including the KF company and the K company's management rights.

On April 25, 2007, the Defendant provided 3,969,000 shares, which were held by the F Co., Ltd., at the time the pledge was cancelled, as collateral to the bond company (ju Co., Ltd.) and borrowed 5,631,972,275 won, and had the head of the planning office L Co., Ltd deposit the said amount into the above E Co., Ltd. in order to pay for the acquisition price of the management right of the Defendant, and used the said money to the J Co., Ltd. on or around April 4, 2007 by allowing the above amount to be paid to the K Co., Ltd. with the acquisition price of the management right.

Accordingly, the defendant embezzled the amount of 5,631,972,275 won of the victim fund in his/her business custody.

(b) Embezzlement 2.4 billion won of the funds of the company concerned;

The defendant, from among overseas bonds with warrant issued by the Bank of Korea D, the "investment company" holding 8,726,047 shares in the bonds with warrants, was removed from the defendant, and the defendant was willing to become the largest shareholder of the Bank of Korea, and the bonds with warrants were purchased from the "PPD" to protect the management rights of the defendant, and the defendant was willing to use the bonds with warrants to be purchased from the "PPPD" as collateral and to pay the purchase price for the above "PPPD" and to pay the purchase price for the bonds with warrants to be purchased at the time of exercising the preemptive rights of the bonds with warrants.

On May 2007, the Defendant publicly announced that the Defendant purchased overseas bonds with warrants that are entitled to receive D's 5,951,030 shares from the above D's 'PPP & Partnership' (hereinafter referred to as the "stocks to be acquired"), and that the seller 'PP & Partnership' sold 5,784,484 shares, new shares, which have the right to acquire 5,784 shares, to the seller.

The defendant, which is a bond company, borrowed 10,572,00,000 won as collateral for the bonds and the expected stocks to be acquired, and paid the purchase price for the above bonds with warrants as part of the loan, to the above 'burg and partnership'. On May 21, 2007, the defendant lent 6,409,275,000 won of the stock price to the loan account in the name of D in the name of L, etc. by lending 23 persons, including M, the right to acquire the stocks to be acquired, which was offered as collateral to the trust company, to the above 'burg and partnership'.

At around 10:56 on May 25, 2007, the Defendant: (a) handled the accounts of KRW 3 billion out of the paid-in capital of KRW 6,409,275,000, which he kept in his business to the foreign bank account in the name of the bank in the name of the bank in the name of the bank in charge of the settlement of accounts; (b) immediately deposited the money under the name of provisional payment; and (c) deposited it into the account in the name of the Defendant, and used KRW 2.4 billion among them for personal use.

Accordingly, the defendant embezzled 2.4 billion won of the funds of the LAD, which is the victim.

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

The defendant, as described in paragraph 1-b, has accounted for the amount of KRW 3 billion withdrawn from G, which the defendant had operated, as the provisional payment, and has been urged to use part of the funds arbitrarily, and has agreed to transfer the stocks and the management rights of the company and affiliated companies owned by the defendant to E-technology investment by the transfer of the stocks and the management rights of the company to E-Tech investment.

Around July 5, 2007, the Defendant: (a) prepared a written agreement that, around July 5, 2007, would transfer the right to manage all of the shares issued by the company in the company in the company in the company in the company in Guro-gu, Seoul, to the company in the company in the company in the company in the company in the company in the company in the company in question; (b) the amount of KRW 200,000,000, the par value of the Defendant’s preemptive right to new shares issued by the company in the company in the company in question; (c) the shares issued by the company in the company in the company in the company in question; and (d) the company in the company in the company in the company in the company in the company in the company in the company in the company in the company in the company in the company in Guro-gu, in order to secure the Defendant’s obligation to pay 700,000,000,000,000 won to the above company in the company in question.

Accordingly, the defendant acquired property benefits equivalent to KRW 2 billion and suffered damages equivalent to the same amount to the victim.

3. Forgery of evidence;

The amount of KRW 5,631,972,275 deposited in the national bank account in the name of the Dispute Resolution Co., Ltd. (K) around April 25, 2007, as set forth in paragraph (a) of Article 1-1-2, was deposited in the above account to pay the shares and management rights acquired by the Defendant to the KJ, and the Defendant was not a so-called so-called "pass-called" that the Defendant lent the shares and management rights acquired by the Defendant to the Dispute Resolution Co., Ltd., and the Defendant did not have a claim for refund equivalent to the above amount, and the Defendant did not have a claim for refund from the bank account in the name of the Dispute Resolution Co., Ltd. and the one billion won withdrawn on August 14, 2007, including KRW 4 billion,000,0000,0000,0000,0000,000 from the account in the name of the Dispute Resolution Co., Ltd., Ltd., and delivered the above amount to the Defendant.

Nevertheless, around August 2009, the defendant requested that the PP, which was investigated by the prosecution, for the suspicion of embezzlement of KRW 4 billion which was withdrawn from the account in the name of the Dispute Resolution Co., Ltd., prepare and falsely prepare materials related to the above 4 billion use place, which was withdrawn from the account in the name of the Dispute Resolution Co., Ltd., and the defendant accepted and submitted to the investigation agency the false receipt as if the defendant received the above 4 billion won of the withdrawal from P as the repayment of the deposit claim.

Therefore, the defendant confirmed that he was paid KRW 5,631,972,275 as of April 25, 2007 at P's office located in Q near Gangnam-gu, Seoul, between August 2009 and September 200, according to P's teachers, and received the above amount.

The receipt on August 10, 2007: AD : the receipt on August 10, 2007 and '1 billion won deposited in DD as of April 25, 2007, confirmed that he was paid and received the above amount as of August 14, 2007. The receipt on August 14, 2007: A : the receipt on August 14, 2007, which was sent by P, was prepared as it is, in accordance with the draft of the receipt sent by P, to prepare false explanatory materials as to the user's embezzlement amount, and each of the above receipts was submitted through a prosecutor on October 5, 2009.

Accordingly, the Defendant prepared false evidence and forged evidence regarding the investigation of another person's criminal case.

Summary of Evidence

【Court of Second Instance 1】

1. Defendant's legal statement;

1. Legal statement of the witness R;

1. The statements made by witnesses S and L in the third protocol of trial;

1. Each prosecutor's protocol against T or U;

1. A written statement in V and W;

1. One copy of investigation report (report on results of stock tracking), investigation report (the result of review of a contract for acquisition by transfer of stocks and management rights of a stock company D);

1. According to the records of the LAD account transactions, the records of the LAD account transactions, the records of the stock-backed loan and the loan agreement, receipts (in the form of KRW 1,00,00,000), one copy of the report on the holding situation of stocks, etc. as of April 25, 2007, one copy of the receipt cashier's checks, one copy of the report on the holding situation of stocks, etc. as of April 25, 2007, and one copy of the account transaction (in the form of each stock and management right transfer agreement, W, U's statement, etc. as of March 7, 2007 and April 25, 2007, the defendant seems to have been sufficiently aware that the stocks of the LAD bank to be offered as security by the LAF, which were owned by the LAF, were not acquired by the defendant from the KA).

【No. 1-B.】

1. Defendant's legal statement;

1. Each legal statement of the witness RR and X;

1. Statement made by a witness in the third protocol of trial;

1. An agreement;

1. Investigation report (report on the results of verification, such as the source of funds of three billion won or more embezzled as a suspect A);

1. Accounting data related to A provisional payments, detailed inquiries about details of transactions, issuance of cashier's checks, one copy of the data on financial transaction information sent by the Korea C&T Bank, one copy of the data on account tracking results, and data on provision of financial transaction information;

Each one copy of the account in the name of X and one copy of the transaction details.

[Judgment of the court below]

1. Partial statement of the defendant;

1. Legal statement of the witness R;

1. The statements made by witnesses S and L in the third protocol of trial;

1. Statement by the prosecution concerning the Z;

1. Agreements, minutes of the board of directors (No. 75 No. 5 of the evidence list), 100 million won cashier's checks, promissory notes (A, D);

【Fact 3 at the Time of Sales】

1. Defendant's legal statement;

1. Each prosecutor's protocol of examination of P;

1. Each prosecutor's statement made to AB and AC;

1. Receipts (three hundred million won), receipts (one hundred million won);

【Prior Records at the Time of Sales】

1. Criminal records, each of the court rulings (No. 68, 234, and 235 No. 5 of the evidence list), and references to agreements in each case;

Application of Statutes

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

Article 3(1)1 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 11304, Feb. 10, 2012; hereinafter referred to as the "former Act on the Aggravated Punishment, etc. of Specific Economic Crimes": Provided, That the upper limit of the punishment shall be governed by the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010; hereinafter the same shall apply). Article 3(1)1 of the same Act, Articles 356 and 355(1) of the Criminal Act, the selection of limited imprisonment.

Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes and Articles 356 and 355(1) of the Criminal Act

Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes and Articles 356 and 355(2) of the Criminal Act

○ Examination of Evidence: Article 155(1) of each Criminal Code; Selection of Imprisonment

1. Handling concurrent crimes;

Article 37 (latter part) and Article 39 (1) of the Criminal Act [Mutual Crimes of Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) and each judgment becomes final and conclusive, and

The crime of forging evidence is committed between August 18, 2009 and September 201, which was sentenced to a two-year suspended sentence of imprisonment at the Suwon District Court for fraud. However, the crime of forging evidence and each of the above crimes of forging evidence was committed before the judgment becomes final and conclusive on September 28, 2007, which was sentenced to a two-year suspended sentence of imprisonment at the Seoul Central District Court for the same crime (see, e.g., Supreme Court Decision 2007Do479, Mar. 27, 2014). Since the crime of forging evidence was committed before the judgment became final and conclusive on February 18, 201, the crime of forging evidence was committed before the judgment became final and conclusive on February 18, 2011 and each of the crimes of forging evidence became final and conclusive on February 18, 2011, the relationship between each of the above crimes of forging evidence and the latter part of Article 37 of the Criminal Act cannot be established from the beginning (see, e.g., Supreme Court Decision 2014Do4694, Mar. 27, 2014).

The crime of violation of each Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) are committed before the judgment is finalized on September 28, 2007. Since the crime of fraud, which was finalized on February 18, 201, was committed before the judgment was finalized on September 28, 2007, the crime of violation of each Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) is also a concurrent crime under the latter part of Article 37 of the Criminal Act.

○ The crime of forging evidence was committed before the judgment became final and conclusive on February 18, 201, and also the crime of false accusation, which became final and conclusive on February 18, 2011, was committed before the judgment became final and conclusive on February 18, 201, and each crime of forging evidence is a concurrent crime under the latter part of Article 37 of the Criminal Act.

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2 and Article 50 of the Criminal Act, violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), each violation of the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation), each of the violation of the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation), each of the violation of the Aggravated Punishment, etc. of Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation), the punishment is concurrent crimes with the punishment prescribed in the crime of the violation of the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) in relation to

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act / [In the case of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), consideration shall be given to the following favorable reasons for sentencing]

Judgment on the argument of the defendant and defense counsel

The defendant, as stated in paragraph (2) of the decision, received KRW 2 billion from the Danam Technology Investment, and delivered a promissory note with the face value of KRW 2 billion issued by the Da in the Dispute Resolution Co., Ltd., but it is argued that the defendant has no intention to commit a breach of trust since it was intended to use it as business expenses of the Da in the Dispute Resolution

In full view of the following circumstances acknowledged by the evidence duly adopted and investigated by this court, the above assertion is rejected, as it is sufficiently recognized that the defendant had an intention to commit a breach of trust.

① Around May 25, 2007, the Defendant received KRW 3 billion from G with the provisional payment, and at the time assumed the liability for the provisional payment to G, at the time. The Defendant paid KRW 2 billion, which was received from the Dispute Settlement Bank, to G, under the name of the refund of the provisional payment, around July 6, 2007. The Defendant paid KRW 2 billion, which was received from the Dispute Settlement Bank, to G, under the name of the refund of the said provisional payment.

R stated in this Court that the Defendant’s receipt of the down payment of KRW 2 billion from the technical investment is not for the settlement of the promissory note proposed to pay to the Bank of Korea, but for the purpose of paying the money brought by the Defendant in G.

③ At the time, S and D stated to the effect that “the Defendant received KRW 2 billion from technical investment in order to prevent the Note D Promissory Notes at the time.” However, if the Defendant repaid the Defendant’s provisional payment of KRW 2 billion from technical investment in the Chungcheongnam-Nam K AB, it is nothing more than the Defendant’s repayment of the Defendant’s personal property, and how the funds repaid to Schlage have been used is not an obstacle to recognizing the criminal intent of breach of trust.

Reasons for sentencing

The sum of damages arising from the instant embezzlement and the crime of breach of trust reaches KRW 10 billion. The damages of the Plaintiff, a victimized company, were not completely recovered, and the damages of the Plaintiff, a victimized company, were not partially recovered. The Plaintiff, at the time of the instant crime, was a company with the total sales amount of KRW 50 billion and the profits amount of KRW 3.5 billion, but the listing was eventually abolished due to the instant crime, and the Plaintiff was closed. Accordingly, creditors, including a number of financial institutions, shareholders, and shareholders, were also suffered secondary damages.

However, the defendant reflects his mistake. Promissory notes issued as a result of the crime of breach of trust in the name of the defendant did not recover and bring the victim's damage to the company, which is a victimized company, E, a company with the change of the trade name of the LAD, agreed with the defendant about the crime of embezzlement of KRW 2.4 billion of the D company's funds.

In addition, in consideration of all the circumstances shown in the arguments in this case, such as the health of the defendant and family relations, the punishment shall be determined as ordered.

The acquittal portion

1. Summary of the facts charged

The defendant, as described in Paragraph 1-b.(b) of the holding, purchased bonds with warrants from "influor white & partnership" and exercised the right to acquire them, and he remitted the stock price of KRW 6,409,275,00 to the account in the name of the Dispute Resolution D.

At around 10:56 on May 25, 2007, the Defendant, at the D office of the Dispute Resolution Co., Ltd. in Guro-gu Seoul Metropolitan Government, deposited 3 billion won out of 6,409,275,000 won of the paid-in capital of the above 6,409,275,000 won, into the foreign exchange bank account in the name of the company affiliated with the company, and embezzled 3 billion won of the funds of the Dispute Resolution Co., Ltd., which is a victim by using the personal purpose, such as immediately withdrawing it as provisional payment, and depositing it into the account in the name of the Defendant.

2. Determination

According to the records of this case, the above KRW 3 billion deposited in the defendant's account was divided into KRW 1.5 billion around June 7, 2007, KRW 900 million, and KRW 600 million, respectively, and the defendant ordered X to pay the above KRW 600 million to X on the same day, and the above KRW 600 million was treated as the return of the defendant's provisional payment in the accounting data of the bank of dispute resolution.

600 million won out of the above 3 billion won is not used for the personal purpose of the defendant, and the defendant's intent to illegally obtain the above 600 million won is difficult to be recognized, as it is returned to the StateG, which is the related company of the Corporation D.

Thus, among the above facts charged, the crime of embezzlement of the above KRW 600 million should be pronounced not guilty in accordance with the latter part of Article 325 of the Criminal Procedure Act because it falls under the case where there is no proof of criminal facts. However, as long as it is found guilty of the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) in the judgment of the victim-based

The defendant asserts that he returned to the company the additional KRW 900 million in addition to the above KRW 600 million.

AD made a statement to the effect that "the defendant ordered X to return the above KRW 1.5 billion out of the above KRW 3 billion to X." However, X prepared and submitted a statement to the effect that "the defendant returned the above KRW 1.5 billion to the defendant at the time of investigation by the prosecution," and stated in this court that "the above KRW 900 million shall not be memory at all at the time of the investigation by the prosecution."

The above statement of AD and X alone cannot be deemed that the defendant returned the above KRW 900 million to the Dispute Resolution Co., Ltd or the Dispute Resolution Co., Ltd. or used for AD).

Judges

Freeboard of the presiding judge and judge

Judges Park So-young

Judges, Senior Superintendent-General

Note tin

1) Shares means 20,000 shares, shares 75,000 shares, shares 20,000 shares of shares, or shares 20,000 shares.

2) The F has held 4,369,440 shares in the credit rating company, and the Defendant agreed to borrow KRW 8.3 billion from the credit rating company, which is a bond company, as collateral, around April 2007.