[1] The case affirming the judgment of the court below which held that where the settlement of accounts for the pertinent fiscal year is proper, the act of receiving loans from financial institutions from financial institutions constitutes a crime of fraud after preparing a so-called separate settlement of accounts as if the actual loss incurred in order to avoid difficulties in receiving government-funded construction contracts or lending from financial institutions in the next year

[2] The meaning of the concealment in the crime of embezzlement and evasion of compulsory execution as a constituent element of embezzlement, and in the case where the custodian of another's property conceals the property in custody with the intent to acquire it, whether it constitutes a separate crime of evasion of compulsory execution in addition to the crime of embezzlement (negative)

[1] The case affirming the judgment of the court below which held that where the settlement of accounts for the pertinent fiscal year is proper, the act of receiving loans from financial institutions is a crime of fraud after preparing the so-called window dressing settlement statement as if there were losses incurred in order to avoid the difficulty of lending from the government-funded corporation or financial institutions after the next year

[2] An act of embezzlement as a constituent element of embezzlement refers to the act of a person who keeps another's property without authority to acquire the property as if he/she owns it or to realize his/her intention to dispose of it legally against the intent of entrustment for the purpose of seeking a benefit of himself/herself or a third party, and the crime of evading compulsory execution refers to the act of making it impossible or difficult for a person who executes compulsory execution to discover the debtor's property for the purpose of evading compulsory execution. If a property was transferred by intention, even if it was conducted for the purpose of evading compulsory execution and causing disadvantages to the creditor, it does not constitute a false transfer or concealment of the crime of evading compulsory execution. In light of the elements of the crime of evading compulsory execution and the concept of the crime of evading compulsory execution, if the person who keeps another's property has concealed the property with the intent to acquire it, it constitutes a crime of embezzlement, and it does not constitute a separate crime of evading compulsory execution by bringing about the result of evading compulsory execution by the creditor.

[1] Article 347 (1) of the Criminal Code, Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes / [2] Articles 327 and 355 (1) of the Criminal Code

Defendant

Defendant

Attorney Lee Yong-soo et al.

Busan High Court Decision 99No1006 delivered on March 22, 2000

Of the crimes of Section 1, 2, 3, and 4-A. (c) and Section 4-D. in the judgment of the court below, each of the crimes of Section 1, 2, 3, and 4-A. (e) of the judgment of the court below and the crimes of Section 4-D. of Section 6. 1 through No. 79, Section 127, Section 137, Sections 140 through 190, Sections 265, No. 350 through 356, No. 367, No. 421, and Section 46 of the judgment of the court below, each of the crimes of Section 1, 2, 3, and 4-A. (c) of the judgment of the court below, are reversed, and this part of the case is remanded to Busan High Court. The remaining appeal

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

A. According to the reasoning of the judgment below, the court below acknowledged that the non-indicted corporation (hereinafter referred to as "non-indicted corporation") had the capacity to pay its loans in 196 and the non-indicted corporation's losses of 3.4 billion won in 197 (20 billion won in aggregate of cumulative losses as of the end of 1997). In light of the above records, it was hard to find that the defendant's act of using the above non-indicted corporation's accounting director to conduct an investigation into the above non-indicted corporation's financial statements in 1995, 1,659,044 won in 196, 197, and 2,439,634,216 won in 19, and it was hard to find that the non-indicted corporation's act of using the above financial structure and the non-indicted corporation's financial statements was an act of using the above non-indicted corporation's financial statements to secure its creditability, and that the defendant's act of receiving new financial statements from the above company's company's new financial statements and investment statements.

As alleged in the ground of appeal, the court below did not err by misapprehending the rules of evidence or failing to exhaust all necessary deliberations, as otherwise alleged in the ground of appeal.

B. The court below's decision that the above loan was made by Dongnam Bank based on its own management policy decision and that it was not a loan by the defendant's deception with respect to the additional loan amounting to four billion won as of April 17, 1998 among the facts charged, and that the court below's decision that the defendant cannot be held liable for the crime of fraud (However, the court below's decision on April 1, 1998's 30th 7th 7th 1998's misunderstanding in writing's misunderstanding as of April 17th 1998's misunderstanding of the facts charged, as pointed out in the ground of appeal that the court below's decision of not guilty was made, it appears that it was erroneous in its statement itself, and in this case, it can be corrected through the correction procedure of the court decision, and it cannot be said that the judgment below's legitimate ground of appeal is inconsistent with the legitimate ground of appeal. All of this part of the grounds of appeal are without merit.

2. As to evasion of compulsory execution and embezzlement of April 30, 1998

According to the reasoning of the judgment of the court below, the court below acknowledged that the non-indicted company's first default on April 15, 1998, and the non-indicted company was exempted from the final payment due to the Dongnam bank's emergency financial assistance, but the defendant was notified by the Dongnam bank on the 30th day of the same month that the non-indicted company would not avoid the final payment between her maturity and would lead to a compulsory execution by creditors, such as financial institutions, etc., and at the same time, the defendant avoided compulsory execution and embezzled the non-indicted company's funds by ordering the accounting officer, etc., ordering the non-indicted company, etc. to keep the corporate funds of 1,080,595,170 for the purpose of evading the compulsory execution and embezzlement the non-indicted company's assets.

An act of embezzlement as a constituent element of embezzlement refers to an act of a person who keeps another's property, namely, an act of realizing, without authority, the intent to dispose of such property as if he/she owns it, in violation of the purpose of entrustment for the purpose of seeking the benefit of himself/herself or a third party. On the other hand, the crime of evading compulsory execution refers to an act of making it impossible or difficult for a person who executes compulsory execution to discover the debtor's property for the purpose of evading compulsory execution. If a property was transferred by intention, even if it was conducted for the purpose of evading compulsory execution and causing disadvantages to the creditor, it does not constitute a false transfer or concealment of the crime of evading compulsory execution.

In light of the elements of these crimes and the concept of concealment in the crime of evading compulsory execution, if a person who keeps another's property conceals it with the intent to acquire the property in his custody, it constitutes embezzlement and it does not constitute a separate crime of evading compulsory execution by bringing about the result of evading compulsory execution by the creditors.

Although the court below should have examined whether the defendant's act of having the above company funds deposited into the borrowed account was based on the intent of unlawful acquisition, and whether the creditor's compulsory execution against the company was committed in order to escape, the court below, without examining necessary matters, determined that the above act constitutes a crime of evading compulsory execution and at the same time the above act constituted a crime of evading compulsory execution, and did not err in the misapprehension of the legal principles as to embezzlement and concealment in the crime of evasion of embezzlement and compulsory execution, which led to the failure to exhaust all necessary deliberation or the violation of law in the light of the reasoning. The argument in the grounds of appeal assigning this error is with merit.

3. Meanwhile, the Defendant filed an appeal against the remaining convictions, but there is no indication of the grounds for appeal in the petition of appeal, and the appellate brief submitted within the legitimate period for submission does not present any grounds for appeal.

4. Therefore, as long as the part of the judgment of the court below on the crime of evading compulsory execution and the crime of embezzlement as stated in 2. B. judgment of the court below is reversed, the part on the crime of evading compulsory execution and the crime of embezzlement as stated in the former part of Article 37 of the Criminal Act shall be sentenced to one punishment for concurrent crimes as stated in the former part of Article 37 of the Criminal Act.C. 3, 4-2. E. Each of the crimes as stated in subparagraph 1 through 79, 127, 137, 140, 140 through 190, 265, 350 through 356, 367, 421, and 446 of the judgment of the court below, and the part on the crime as stated in subparagraphs 1 through 219 of Article 37 of the Criminal Act among the crimes as stated in the judgment of the court below and the crime as stated in subparagraph d. of Article 4-2 of the judgment below shall be reversed and remanded to the remaining part of the judgment below.

Justices Song Jin-hun (Presiding Justice)