(a) Where securities, such as promissory notes, are acquired by deceit, the time when fraud is acquired against the amount equivalent to their par value;

(b) Where a final and conclusive judgment has been rendered on the embezzlement, which is an act which is an act which is not punishable in fraud, a judgment of acquittal on the charge of fraud;

A. In a case where a promissory note, etc. is acquired by deceit, the crime of fraud regarding the amount equivalent to its par value is established upon the receipt of such instrument, and some of the above promissory notes were refused for payment due to non-transaction, or some of them were kept without presenting payment at the victim’s request, etc. does not affect the establishment of a crime of fraud.

B. In a case where a summary order is notified by the court and the above order becomes final and conclusive on the ground that the defendant embezzled part of the money that he had been stolen by others by arbitrarily consumed and embezzled part of the money, the res judicata effect of the judgment shall extend to the part of the above embezzled amount of the crime of fraud of this case, which is the principal act, so the judgment of acquittal shall be sentenced in accordance with Article 326 subparagraph 1 of the Criminal Procedure Act.

A. Article 347(1) of the Criminal Act

[Plaintiff-Appellant] 85Do951 decided July 9, 1985 (Article 347-5 (56) of the Criminal Act, No. 496-1, No. 7591)

Defendant 1 and three others

Defendants and Prosecutor

Busan District Court (Supreme Court Decision 88Gohap284, 543, 566, 666, 733, 805)

The part concerning Defendant 1 and 2 in the judgment of the court below shall be reversed. Defendant 1 shall be punished by imprisonment for six months with prison labor for the crimes referred to in Articles 2-A-1, 3-A-1, 4-A, and 6-A-2, 3-2, 3-2, and 5 of the judgment, for two years and six months, and by imprisonment for two years and six months for the crimes referred to in Articles 1, 2-2-2, 3-2, 3-2, and 5 of the judgment.

The number of detention days prior to the pronouncement of the judgment of the court below shall be 35 days, and the number of detention days prior to the pronouncement of the judgment of the court below shall be 35 days, the number of defendants 1 shall be 1, 2-A-2, 3-A-2, 3-2 (2), 5-2, and the above punishment shall be included in

However, with respect to Defendant 2, the execution of the above sentence shall be suspended for four years from the date this judgment becomes final and conclusive.

Of the facts charged against Defendant 1 on August 18, 1987, the charge that embezzled KRW 120 million from among the purchase price of KRW 235 million, which was delivered to Nonindicted 1, the 67-1, 68-2, and 69-1 of the land of this case on August 18, 1987, 120 million to Nonindicted 2 and Nonindicted 3 without delivering it to the victim Nonindicted 3.

All appeals by Defendant 4 and prosecutor against Defendant 3 and Defendant 4 are dismissed.

1. Summary of grounds for appeal;

A. First ground of appeal by Defendant 1 and Defendant 1, 2, and 4

(1) As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Occupational Embezzlement) by Defendant 1 and 2 in the original adjudication:

Defendant 1, 2, and Defendant 4 temporarily lent KRW 835,212,40 (the sum of embezzlement amount of original recognition is KRW 730,000) to Nonindicted Incorporated Co. 5 (hereinafter “Nonindicted Co. 4”) which had been employed as a director, to Nonindicted Co. 5 (hereinafter “Nonindicted Co. 5”) who had been employed as a director, for the total amount of the apartment construction funds that the said company had been constructed at the time of its racing, to Nonindicted Co. 5 (the sum of embezzlement amount is KRW 730,020,00). At that time, Nonindicted Co. 5, who had been executing the said apartment construction, had Nonindicted Co. 4 loaned the land that was to be developed as amusement park from Nonindicted Co. 4 to the above apartment construction work, and had Nonindicted Co. 5 (the sum of embezzlement amount is KRW 730,000,00,000) enter the loan to be obtained from the Korea Housing Corporation, and had Nonindicted Co. 4 paid the money under the name of the Central Prosecutor’s Office to use.

(2) As to each violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud),

First, as to the part of paragraphs 2 and 1(1) at the time of Defendant 1’s original adjudication:

On May 23, 1986, Non-Indicted 70 Gab No. 70 3 239 of the land of this case: Non-Indicted 7 and Non-Indicted 4, the representative director of the prior owner development, forged his official seal and sold it to Non-Indicted 8; Defendant 1 sold it to Non-Indicted 9 on December 8, 1986, which was at the time of the sale of the land to Non-Indicted 9; however, he was aware of the above facts and ordered the return of the parcel of land received by the above Non-Indicted 7; and when concluding the contract with the above Non-Indicted 9, the ownership transfer registration relation on the contract was made with the completion of the cadastral adjustment and with the completion of the registration of transfer, and it did not constitute a double selling of real estate without notifying the buyer of the fact of fraud by no later than 20 times until March 15, 1986.

Second, as to the part of paragraphs (1) and (2) of Article 3-3 at the time of Defendant 1’s original adjudication:

In this part of the land of this case, the above non-indicted 7 and co-defendant 4 sold the land to the non-indicted 10 and non-indicted 11, etc. without knowledge of the defendant 1, and the above defendant sold the land to the victim non-indicted 12 and non-indicted 13, etc. The above defendant was aware of the fact that it had already been sold to the above defendant, and there was no need to notify the above non-indicted 12 and non-indicted 13, etc., and at that time, it was difficult to view that Non-indicted 4 was in a situation where it was impossible to sell the land of this case due to the lack of ability to conduct the business, such as the time of the original adjudication, because the non-indicted 4 deposited the land compensation amounting to 4.4 billion won or deposit it at the time of Ulsan, and as at that time, the land compensation amount was not properly raised and paid.

Third, as to the part of paragraph 3(b) at the time of the original adjudication by Defendant 1 and 2:

The above Defendants stated that the victim non-indicted 14 et al. "at least two times the purchase price is high, and the land price is high" as at the time of the original adjudication, and they concluded a sale contract after confirming all circumstances at the time when the victims directly come into a sales contract, and they stated the time of transfer registration in the sale contract, and at 259 no. 281 and no. 259 of the land of this case were agreed with the non-indicted 4 and the non-indicted 15 et al. (hereinafter referred to as the "non-indicted 15") for the purpose of securing the compensation deposit deposited at Ulsan for the non-indicted 4 and making the above provisional registration at the intervals of the above non-indicted 15, but the contents of the above agreement had been confirmed in a lump sum from the non-indicted 4 and the above non-indicted 15, and thus, they had no time to confirm the sale of the land at the time of the sale in lots.

Fourth, as to the part of paragraph 4(a) at the time of Defendant 1’s original adjudication:

Co-defendant 4 and the above Non-Indicted 78-2 of the land of this case forged his official seal on June 4, 1986 and sold it to Non-Indicted 16. Defendant 1 knew of this fact on July 1, 1986, and cancelled the above parcelling-out contract and made a full change in the damages incurred thereby, Defendant 1 could have lawfully sold the land to Non-Indicted 17. Defendant 1 was able to sell the land to the victim Non-Indicted 17. The above Non-Indicted 17 was not deceiving by any falsity at that time, and even as alleged in the above, even in this case, Defendant 1 did not have a duty to notify the victim of the first sale.

Fifth, with respect to each part of subparagraphs 5-A and 2 at the time of the original adjudication by Defendant 1 and 2:

Since the above Defendants deposited 4.4 billion won at the time of Ulsan Metropolitan City when they concluded a contract for the sale of shares by proxy and the transfer of shares between Jinjin Co., Ltd. and 18, the victim 100,000 won, it was possible to sell the land due to the nature of the private capital inducement project and at Ulsan City, and there was 30 parcels out of the land in this case were forged and sold in accordance with Do area. However, Defendant 1 knew that the above sales contract was entirely rescinded, and the compensation was made up for the total amount of damages. After concluding a contract with Jinjin Co., Ltd. 50, 1987, the Defendants did not know that 100,000 won was 50,000 won for the above 700,000 won for the above 100,000 won for the above 700,000 won for the above 180,000 won for the above 700,000 won for the above 10,0500,00.

Sixth, with respect to the part of paragraph 6 in the original adjudication of Defendant 1 and 4:

Defendant 1 was aware of the fact that four parcels of land in the conciliation protocol at issue in the instant case were invested from Defendant 4 to Nonindicted 4, but the land was disposed of to Nonindicted 19, Nonindicted 20, etc. on January 1, 1986. Defendant 4 did not know that the said land was disposed of to Nonindicted 21, and Defendant 4 was disposed of to Nonindicted 19, Nonindicted 22, Nonindicted 20, Nonindicted 23, and Nonindicted 24, etc. without knowing that it could not complete the registration of ownership transfer on the said land, and it cannot be said that the said Defendants had any criminal intent to commit any fraud.

(3) Regarding each violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement);

First, as to the part of Article 2-A, (2), and (1) at the time of Defendant 1’s original adjudication:

Defendant 1 did not register the ownership of the six lots of 820 square meters prior to 963, 733, Dongcheon-dong, Dongcheon-dong, 733-dong, 733 (hereinafter the instant racing real estate) and did not register the ownership transfer in the future for Defendant 1, Defendant 2 did not register the ownership transfer in the future. The above Nonindicted 9’s strong demands due to the transfer income tax to be imposed on the seller for the above Nonindicted 9 were adopted through a lawful resolution by the board of directors of Nonindicted 4. However, the above Nonindicted 5 had the above Nonindicted 5 completed the construction of the apartment on the above racing real estate again, and received a loan of 2.4 billion won from the Korea Housing and Commercial Bank to use it as the resources for land compensation to be paid by Nonindicted 4. Accordingly, it was an appropriate act of the lower court for Nonindicted 4 as the victim. Accordingly, it cannot be deemed that the above Defendant did not intend to acquire the ownership.

Second, as to the part of Paragraph 4(b) at Defendant 1’s original inquiry:

In this part of the land, when Nonindicted 25, Nonindicted 17, and Nonindicted 26, who had already been sold to Nonindicted 1, sold the said land to Nonindicted 1, it is merely a form of selling the said land to Nonindicted 4 for convenience. However, the remainder of the down payment and intermediate payment, excluding the money returned to Nonindicted 25, 6.2 million won, excluding the money returned to Nonindicted 25, was deposited into Nonindicted 4 under the understanding of Nonindicted 27, who was the actual disposal right holder of the said money, and the part of embezzlement of KRW 70 million against the victim Nonindicted 17, constitutes an act subsequent to the crime of fraud of Section 4 at the time of original adjudication.

(4) As to the violation of trust and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation);

First, with respect to each part of paragraphs 2-A(3) and 2-B at the time of Defendant 1’s original adjudication:

As for the crime of breach of trust under Article 2-A (3) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter "Act on the Aggravated Punishment, etc.") where the amount of profit exceeds 100 million won, it shall be limited to 53,50,00 won which was paid as part payment on January 15, 1987, and it shall be exempted from the application of Article 3 (1) 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter "Act on the Aggravated Punishment, etc. of Specific Economic Crimes"), as a person who has already decided to make an investment of one billion won in a development project, such as the Hansan Park, etc. of this case, and one hundred and sixty hundred and sixty billion won in the land of this case, which included a lot of land in the amusement park among the land of this case, shall be deemed to have been sold to the non-indicted 2, etc. for convenience, and it shall not be deemed to have been sold to the non-indicted 2, etc., as set forth in its reasoning 989.

(5) Nevertheless, the court below found the above charges guilty. The court below erred by misapprehending the facts by failing to exhaust all deliberation in the process of confirming the crime of fraud, etc., and by misapprehending the legal principles as to the elements for the establishment of embezzlement, fraud and embezzlement, or the intent of unlawful acquisition in embezzlement, and by erroneous application of the law, thereby affecting the conclusion of the judgment.

B. Ground of appeal No. 2 by Defendant 1 and Defendant 1, 2 and 4

Defendant 1, 2, and 4 caused each of the instant crimes, the progress of the instant development project, such as the Hansan Park, and the progress of the instant development project, and the decision to transfer the business rights to the development of the said amusement park after the instant case to Nonindicted 15, thereby making an agreement between Ulsan-si and Nonindicted 4, and Nonindicted 15-3, and the future prospects to be expected to continue the operation under Nonindicted 15, and the situation in which the Defendants are currently faced, etc., the sentence against the above Defendants is too unreasonable.

(c) Grounds for appeal by prosecutors;

First, there is no credibility of Defendant 1's prosecutor's office and part of the statement in the original court's court's court's indictment against Defendant 3, which are contrary to the above facts charged, and considering the objective circumstances at the time when the court below revealed each evidence and records of the reasons for innocence, the above facts charged can be fully acknowledged. However, there is no evidence to acknowledge the facts charged, and the court below rendered a verdict of innocence against Defendant 3, which affected the conclusion of the judgment by misconception of facts in violation of the rules of evidence.

Second, the court below held that among the charges of occupational embezzlement against Defendant 1 and 2, some of the above charges do not constitute a so-called "ex post facto crime" and the remainder of the charges were null and void in violation of the provisions of the indictment procedure. As to the part that embezzled KRW 59,837,642, which was sold to Nonindicted 29, etc. on October 26, 1987, and KRW 30,000,000,000 from among the sales proceeds received by the sale of the land to Nonindicted 29, etc. on October 29, 29, the part that was sold to the above Nonindicted 14, etc. was charged to the crime of fraud under Article 3-2 of the original adjudication. Thus, the court below erred in the misapprehension of legal principles as to embezzlement and embezzlement of land as to the above charges, which affected the conclusion of the judgment.

Third, in light of the scale of the damage of this case, each sentence of the court below on the defendant 1, 2, and 4 is too uneasible and unfair.

2. Determination on the grounds for appeal

A. Determination on the first ground of appeal by Defendant 1 and Defendant 1, 2, and 4

(1) First, with respect to the part of subparagraphs 1 and 2-A (2) at the time of original adjudication, comprehensive review is conducted in light of the records of various evidence duly adopted by the court below after the examination of evidence. In particular, the so-called intent to acquire illegal property, which is the requirement for the establishment of embezzlement, can be sufficiently recognized by the court below, and in the original adjudication, the so-called intent to acquire illegal property, which is the requirement for the establishment of embezzlement, refers to the intention to dispose of another person's property as its own property without authority against his duty, and it cannot be said that the possessor intended to preserve the illegal property at the time of the act without authority (Supreme Court Decision 80Do537 delivered on April 13, 1982). However, if the possessor uses or consumes the stored property for the owner's own interest not for his own interest, it is reasonable to view that the above Defendants' intent to acquire illegal property could not be found to have been found to have been in violation of the duty of the court below's finding that the above Defendants' act was against the owner' duty of sale of land in this case.

Second, considering the facts that Non-Indicted Party 1 had no record of Non-Indicted Party 1 and Non-Indicted Party 1 had no record of Non-Indicted Party 3 and Non-Indicted Party 1 had no record of their investment in the above 7th anniversary of the fact-finding process, the court below's conclusion that Non-Indicted Party 1 had no record of 80 million won in the above 4th anniversary of the fact-finding process, and that Non-Indicted Party 1 had no record of 40 million won in the above 7th anniversary of the fact-finding process of the above 8th anniversary of the above 4th anniversary of the fact-finding process that Non-Indicted Party 1 had no record of 8's investment in the above 4th anniversary of the above 100 million won in the above 4th anniversary of the fact-finding process, the court below's decision that Non-Indicted Party 4 had no record of 7's investment in the above 4th anniversary of the above 1000 million won in the above 1st century.

Third, in light of the records, the court below comprehensively reviewed the various evidences duly adopted by the court below as to the portion 5 at the time of original adjudication in light of the records, it can be recognized that the defendant 1 and 2 received 100 million won from the designated company of the victim corporation and the non-indicted 18 on July 13, 1987, and the amount of 150 million won on September 1, 1987 and the amount received from the non-indicted 18 on September 5, 1987 as a promissorysory note equivalent to the face value, and if the above defendants acquired negotiable instruments such as promissory note, the amount of fraud about the face value is established at the stage of delivery of the negotiable instruments, and the subsequent reasons as argued by the counsel cannot affect the establishment of fraud, and it can be sufficiently recognized that the above part of the court below's judgment was just, and there is no error in the law of fact-finding as to the above part of the 3000 million won.

(2) According to Defendant 1’s judgment on the part 4-B at the time of Defendant 1’s original trial, the facts charged by Defendant 1 are all acknowledged, but even according to the above facts, it cannot be deemed that Defendant 1’s voluntary consumption of the above money constitutes embezzlement since the amount of KRW 235 million, which the Defendant sold three parcels of land to Nonindicted 1 and received as down payment and intermediate payment, cannot be deemed as the property owned by the victim Nonindicted 17 and Nonindicted 26, which is the victim Nonindicted 17 and Nonindicted 26, and thus, the lower court convicted Defendant 1 of this part of the charge of embezzlement. In this regard, the lower court erred by misapprehending the legal doctrine on embezzlement, thereby adversely affecting the conclusion of the judgment.

(3) Defendant 1’s original adjudication: (a) health stand for the part of Article 2-A(3) and Article 2-2(b) of the above land at the time of the original adjudication; and (b) the evidence revealed by the court below, as of the time of original adjudication, the Defendants, as of December 15, 1986, sold 9-2-1 and 360 of the above land to the victim Nonindicted 9 on December 15, 1986; and (b) again agreed on October 29, 1987, to sell part of the above 360 of the above land to the victim’s minc, etc., again on December 10, 1987, the court below erred in the misapprehension of legal principles as to the above land’s investment bond against Nonindicted 4 and 360 of the above land, which affected the conclusion of the judgment by misapprehending the legal principles as to the crime of breach of trust or the crime of breach of trust at the time of the second sale of real estate (the judgment below did not reach the point of breach of trust.

(4) In light of the records, Defendant 1 comprehensively reviewed the above part of the above part of the crime, which was judged by the court below, and the evidence duly adopted by the court below after the examination of evidence, and there is no error of law as alleged in the process of fact-finding or legal application of this part of the court below. However, according to the summary order records compiled ex officio, the above defendant's money obtained from the victim non-indicted 17 of this case, 50,000 won, and 8 million won, while being kept together with the money obtained from the victim's non-indicted 17 of this case, and embezzled it for business purpose, and it was confirmed that the order of summary order was issued by the Seoul District Criminal Court on June 24, 1987, and the above part of the judgment of the court below which became final and conclusive as to the above part of the crime of embezzlement, which is a final and conclusive crime of 160,000 won, since it constitutes a final and conclusive crime of 200,000 won.

B. Determination on the first and second grounds for appeal by the prosecutor

First, it cannot be said that the charges of the above part of the charges are established as alleged by the prosecutor and the prosecutor, as seen in the judgment on the part concerning Defendant 4-B at the time of Defendant 1’s original adjudication, which was prosecuted as an accomplice, cannot be viewed as constituting embezzlement, because the judgment of the court below is just in the conclusion of the judgment, and therefore the above appeal by the prosecutor is groundless.

Next, the act of arbitrarily consuming the proceeds acquired by another person with respect to the part concerning Defendant 1 and 2 is not a separate crime of embezzlement as an act of misappropriation, and the act of arbitrarily consuming the proceeds acquired by the above Defendants from Nonindicted 14 and Nonindicted 29, etc. as stated in the facts charged in the above part of the case, is just in the judgment of the court below that the act of arbitrarily consuming the proceeds acquired by the above Defendants from Nonindicted 14 and Nonindicted 29, etc. is an act of misappropriation of 3-B fraud at the time of original adjudication and there is no violation

C. We examine the lower court’s sentencing against Defendant 4.

Examining in detail the motive, means and consequence of the crime of this case by the above defendant, the degree of damage, age, career, criminal record, intelligence and environment of the defendant, relationship to the victims, circumstances after the crime, etc., the sentencing of the court below against the defendant is deemed to be adequate, too heavy or unreasonable, and therefore, it is not reasonable to discuss the issue as it is not reasonable to consider the circumstances asserted by the defense counsel of the defendant or the prosecutor.

3. Conclusion

Therefore, the appeal by the above defendants 4, the main use of the prosecutor's appeal by the defendant 4, and the appeal by the defendant 4 is without merit. Thus, it is dismissed pursuant to Article 364 (4) of the Criminal Procedure Act, and the judgment of the court below by the defendant 1 and 2 is reversed in part of the criminal facts in relation to concurrent crimes under the former part of Article 37 of the Criminal Act, or the judgment of the court below against the above defendants should be reversed in whole because the above defendants' appeal should be accepted, and the judgment of the court below by the above defendants should be reversed in accordance with Article 364 (2) and (6) of the Criminal Procedure Act without examining the remaining grounds for appeal by the above defendants and the prosecutor against the above defendants.

A member who is a member

The facts constituting the crime against Defendant 1 and 2 shall be described as "1.8 December 8, 1987" in paragraph 2 (a) of the original head from the facts constituting the crime of the original judgment; 1.5 billion won shall be listed as "30,000 won"; 2.00,000 won shall be listed as "60,000 won for the last 50,000 won for the 730,000 won for the 7333,000 square meters prior to 733,000,000 won for each of the aforesaid paragraph; 3.5 billion won shall be listed as "4,00 won for the last 50,000 won for the 70,000,000 won for the 737,037,000,000 won for the 73334,000,0000 won for the 733,000,000 won for each of the aforesaid paragraph.

The summary of the evidence as to the above facts of crime is like that of the judgment of the court below, except for the fact that "a statement consistent with the facts of the judgment among the non-indicted 6's written judgments in Seoul District Court 89No1705 delivered on June 26, 1989" among the verification records of criminal case No. 89No1705 delivered by this court on June 26, 1989 as evidence of the facts of the judgment of the court below, since it is the same as that of the judgment of the court below.

피고인 1, 2의 판시 각 행위 중 피고인 1, 2의 판시 제1의 각 업무상횡령의 점은 포괄하여 특정경제범죄가중처벌등에관한법률(이하 특경법이라고 한다) 제3조 제1항 제2호 , 형법 제356조 , 제355조 제1항 , 제30조 에, 피고인 1의 판시 제2의 가의 (1), 제3의 가의 (1), (2), 제4의 가의 각 사기의 점은 형법 제347조 제1항 에, 피고인 1, 2의 판시 제3의 나의, 피고인 1의 판시 제6의 각 사기의 점은 형법 제347조 제1항 , 제30조 에, 피고인 1의 판시 제2의 가의 (2)의 횡령의 점은 특경법 제3조 제1항 제3호 , 형법 제355조 제1항 에, 피고인 1의 판시 제2의 가의 (3)의 배임미수의 점은 형법 제359조 , 제355조 제2항 에, 피고인 1, 2의 판시 제2의 나의 배임미수의 점은 형법 제359조 , 제355조 제2항 , 제30조 에, 피고인 1, 2의 판시 제5의 각 사기의 점은 특경법 제3조 제1항 제3호 , 형법 제347조 제1항 , 제30조 에 각 해당하는바, 피고인 1의 위 각 배임미수의 점은 1개의 행위가 수개의 죄에 해당하는 경우이므로 형법 제40조 , 제50조 에 의하여 법정이 무거운 판시 제2의 가의 (3)배임미수죄에 정한 형으로 처벌하기로 하고, 위 각 정해진 형 중 특경법위반(업무상횡령)죄에 대하여는 유기징역형을, 위 각 사기죄, 배임미수죄에 대하여는 징역형을 각 선택하고, 피고인 1의 판시 제2의 가의 (1), 제3의 가의 (1), 제4의 가, 제6의 각 사기죄는 판결이 확정된 판시 첫머리 업무상횡령등 죄와 형법 제37조 후단의 경합범관계에 있으므로 형법 제39조 제1항 에 의하여 따로 형을 정하기로 하고, 한편 피고인 1의 위 각 죄 상호간은 형법 제37조 전단의 경합범이고, 이와는 따로이 판시 제1, 제2의 가의 (2), (3), 제3의 가의 (2), 나, 제5의 각 죄와 피고인 2의 위 각 죄는 각 형법 제37조 전단의 경합범관계에 있으므로 형법 제 38조 제1항 제2호 , 제50조 에 의하여 피고인 1의 판시 제2의 가의 (1), 제3의 가의 (1), 제4의 가, 제6의 죄에 대하여는 범정이 보다 무거운 판시 제6의 죄에 정한 형에, 판시 제1, 제2의 가의 (2), (3), 제3의 가의 (2), 나, 제5의 죄 및 피고인 2에 대하여는 각 형이 가장 무거운 판시 제1의 죄에 정한 형에 각 경합범가중을 하고, 위 피고인들은 각 뚜렷한 전과가 없고, 그 잘못을 뉘우치고 있으며 피해자들 중 다수가 그들의 처벌을 바라지 않는 점 등 그 정상에 참작할 만한 사유가 있으므로 형법 제53조 , 제55조 제1항 제3호 를 적용하여 각 작량감경을 하여, 각 그 형기 범위내에서 피고인 1을 판시 제2의 가의 (1), 제3의 가의(1), 제4의 가. 제6의 죄에 대하여 징역 6월에, 판시 제1, 제2의 가의 (2), (3), 제 3의 가의 (2), 나, 제5의 죄에 대하여 징역 2년 6월에, 피고인 2를 징역 2년 6월에 각 처하고, 형법 제 57조 에 의하여 원심판결선고전의 구금일수 중 335일씩을, 피고인 1에 대하여는 판시 제1, 제2의 가의 (2), (3), 제3의 가의 (2), 나, 제5의 죄에 대한 위 형에, 피고인 2에 대하여는 위 형에 각 산입하되, 피고인 2는 앞서 본 정상외에도 이 사건 범행가담 정도가 비교적 경미한 점 등 그 정상에 참작할 만한 사유가 있으므로 형법 제62조 제1항 을 적용하여 이 판결확정일로부터 피고인 2에 대하여 4년간 위 형의 집행을 유예한다.

1. Of the facts charged against Defendant 1, as described in paragraph 4-B at the time and place of the original adjudication, the part of the judgment in question was already sold to Nonindicted 17 and Nonindicted 26, as stated in the judgment, in which the above Defendant conspireds with Defendant 3 on the part of the facts charged in this case against Defendant 1, and sold three parcels of land as indicated in the judgment at the time and place of the original adjudication, and as such, the part of the land in this judgment was already sold to Nonindicted 17 and Nonindicted 26, and thus, the 120 million won out of the sale price was first agreed with Nonindicted 30 million won at the intervals of Nonindicted 17 et al., giving priority to the sale price to Nonindicted 17 et al., so al., when receiving KRW 235 million as part of the sale price, 120 million out of them should be delivered to Nonindicted 17 et al., but it was embezzled by voluntary consumption and embezzlement in the above appellate brief.

2. Of the facts charged in the instant case, Defendant 1’s summary of the charge of the violation of trust against Defendant 1 and 2 is the following: (a) on December 15, 1986, the Young Real Estate Office agreed to sell the purchase price of KRW 9 B-1 and KRW 360 to the victim Nonindicted 9 at KRW 162,00,00; (b) on December 23, 1986, the agreement was made for the sale of the land at the same place as above; and (c) on January 15, 1987, the said real estate office received KRW 53,60,000 from the above real estate office to the intermediate payment; and (d) on December 28, 1987, if the above real estate office completed the instant amusement park development construction and completed the registration of ownership transfer for the above KRW 360,000,000, the above land was acquired from Nonindicted 360, and transferred the above land to the victim at the same time with the above confirmation of KRW 3600.

Defendant 1 and 2 jointly agreed to sell KRW 141,40,00 to the victim non-indicted 29, non-indicted 31, 32, and 33 at the same time as the same contract deposit, and KRW 30,000,00 won was received from the same place of intermediate payment around November 20, 1987, and the above 272,00,000 won was not identical to the above 30,000 won after completion of the amusement park development project and completion of the registration of ownership transfer to the above 30,000 won for the above 272, and each of the above facts charged were not identical to the above 270,000,000 won for the above 270,000 won, and there is no duty to obtain the above facts charged by the above 206,000,000 won, and thus, it violated the above duty, and thus, it shall not be found that the above 272,000,000,000 won of the above facts charged.

3. Of the facts charged against Defendant 1 and 2 of the instant violation of the Special Economic Act (Occupational Embezzlement), the same Defendants jointly conspired with Nonindicted 4 located in Ulsan-si on October 26, 1987, sold 281 land to Nonindicted 14, and received 60 million won as the down payment and intermediate payment, and sold 29 Do block to Nonindicted 29 and received 30 million won as the down payment and received 30 million won as the down payment to Nonindicted 34 on November 4, 198, and then embezzled 9,837 and 642 won as stated in the judgment of the court below, and thus, the remaining portion of the charges charged against Nonindicted 1’s embezzlement and embezzlement of 59,642 won as the first half of the charges of embezzlement and embezzlement of 14,000 won as the first half of the charges of embezzlement and embezzlement of 14,000 won as the first half of the charges of embezzlement and embezzlement of 3,000 won.

4. Of the facts charged against Defendant 1, as set forth in subparagraph 4(a) of Article 326 of the Criminal Procedure Act, with regard to the part that he sold double-sale 7 block 68-2 of the instant land to the victim non-indicted 17 on March 6, 1987 and received 50 million won as the down payment and the intermediate payment, and acquired it, the judgment of acquittal shall be rendered in accordance with subparagraph 1 of Article 326 of the said Criminal Procedure Act with respect to the part of the instant facts charged, as seen in the judgment on the grounds for appeal in the future. However, since it is against the conviction of fraud against the remainder 42 million won, which is part of the facts charged, a separate judgment of acquittal shall not be rendered in this order.

It is so decided as per Disposition for the above reasons.

Judges Kim Jong-tae (Presiding Judge)