Defendant

Both parties

Lee Jae-dae (Court) (Court of Second Instance), Kim Young-young, and Song-Gyeong (Court of Public Trial)

Attorneys Kim Jong-soo et al.

Seoul Central District Court Decision 2016Gohap720 Decided January 19, 2017

The part of the judgment of the court below against guilty (including the part not guilty) shall be reversed.

A defendant shall be punished by imprisonment for two years.

Of the facts charged in the instant case, the charge of taking property in breach of trust from Nonindicted Co. 2 via Nonindicted Co. 1 is acquitted.

The summary of the judgment of the acquittal shall be disclosed.

The prosecutor's appeal on the part not guilty (excluding the part not guilty) in the judgment of the court below shall be dismissed.

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts and misapprehension of legal principles

A) The receipt of property in breach of trust from Nonindicted 4 (Nos. 1 to 8 of the list of crimes in the lower judgment, and No. 2 of the list of crimes in the lower judgment)

The Defendant did not receive the revenue from Nonindicted 4’s store in △△△△△△△△. The Defendant received the revenue from the store in △△△△△△△△, the store in △△△△△, the store in △△△△△, and the store in △△△, but received the revenue after entrusting Nonindicted 4 with the management of the store. As such, the Defendant did not receive the revenue in return for an illegal solicitation. Even if the charge was found guilty,

B) The point of taking property in breach of trust from Nonindicted Co. 2 via Nonindicted Co. 1

Nonindicted Co. 1 (hereinafter referred to as “Nonindicted Co. 1”) entered into a normal consulting agreement with Nonindicted Co. 2 (hereinafter referred to as “Nonindicted Co. 2”) and received fees, not being paid for illegal solicitation. Nonindicted Co. 1’s receipt of consulting fees from Nonindicted Co. 2 cannot be said to have received.

2) Unreasonable sentencing

The punishment of the court below (three years of imprisonment) is too unreasonable.

(b) Prosecutors;

1) misunderstanding of facts and misapprehension of legal principles

A) The receipt of property in breach of trust from Nonindicted 4 (Nos. 1 9 through 57 of the judgment of the court below)

Non-Indicted 5, who is his father and wife, was economically dependent on the defendant. Since Non-Indicted 5 received money and thereby exempted the defendant from expenditure, it can be evaluated as the same as the defendant received directly. This part of the crime of taking property in breach of trust is recognized to the defendant.

B) The receipt of property in breach of trust from Nonindicted Company 2 (No. 3 No. 1 to No. 20 of the judgment of the lower court)

Non-Indicted 10’s statement is consistent with the core part of the statement and there is no reason to make a false statement. According to Non-Indicted 10’s statement, it is recognized that the Defendant was aware that Non-Indicted 10 was receiving money from Non-Indicted 2 in return for a solicitation for the movement of cosmetics. The Defendant conspired with Non-Indicted 10 to commit this part of the crime of embezzlement.

C) The point of taking property in breach of trust from Nonindicted Co. 16

Nonindicted Co. 16 (hereinafter “Nonindicted Co. 16”) paid money to the Defendant through Nonindicted Co. 1 in return for an illegal solicitation called ○○ duty-free shop occupant. Even if Nonindicted Co. 1 performed some consulting services on behalf of Nonindicted Co. 16, insofar as money was given and received in return for an illegal solicitation, the entire amount constitutes a consideration for illegal solicitation. The Defendant is recognized to have committed the crime of taking property in breach of trust.

2) Unreasonable sentencing

The sentence of the court below is too unhued and unfair.

2. Determination

A. Judgment on the mistake of facts and misapprehension of legal principles by the defendant

1) The receipt of property in breach of trust from Nonindicted 4 (Nos. 1 to 8 of the list of crimes in the lower judgment, and No. 2 of the list of crimes in the lower judgment)

A) Whether the Defendant received the revenue of △△△△△△ branch

In the investigation agency and the lower court’s court, Nonindicted 4 stated that “The first day, at the △△△△△△△△△△, the Defendant was the head of the Defendant and the Nonindicted 5 later, but the business operator’s name was changed from the corporation to the individual in order to pay the revenue, and that the period was 2007.” Although Nonindicted 4 was unable to clearly memory the specific timing and amount of payment of the revenue, it appears that the statement is consistent in the core part as mentioned above, and that there is little possibility that the Defendant made a false statement in light of the Defendant’s relationship. Nonindicted 4’s statement is reliable. On January 207, 2007, the name of the business operator was changed from Nonindicted 7, which was the fraud of Nonindicted 4. In light of the foregoing circumstances, it is recognized that the Defendant received the revenue from the △△△△△△ from February 2, 2007, when the name of the business operator

B) Whether the Defendant entrusted Nonindicted 4 with the management of the △△△△△△△△△△△△△△△△△△△△△△△△△△

The Defendant did not acquire the ownership of, or the right to operate, the △△△△△△△△△△△△ branch, the △△△△△ branch, and the store store from Nonindicted Co. 3 (hereinafter “Nonindicted Co. 3”). The Defendant cannot be deemed to have acquired the ownership or the right to operate the store owned by Nonindicted Co. 3 on the ground that he had the intention of holding the ownership or the right to operate the store as an executive officer of Nonindicted Co. 3, or obtained personal permission from Nonindicted Co. 6, the president of the ○○ Group General Chairperson. The Defendant did not conclude an operating contract with Nonindicted Co. 3 in his own name.

It does not seem that the Defendant was involved in or involved in the operation of funds or efforts at the location of the store in which the Defendant was located, the store in Seoul Special Metropolitan City, the store in Seoul Special Metropolitan City, the △△△△△△△△△△△, etc., and there is no circumstance that the Defendant entered into an agreement with Nonindicted 4 on the operation of the store. The Defendant was unable to memory the number of stores claimed to have been entrusted to Nonindicted 4 by the investigative agency. The Defendant did not have any right or qualification to receive the store revenues from Nonindicted 4. Considering that the Defendant and Nonindicted 4 were the Defendant’s share of the store, the fact that the Defendant

(C)the computation of the amount of loss;

(1) The lower court calculated the amount received by the Defendant from Nonindicted 4 in the following manner:

○ △△△△△△: Specific details that Nonindicted 17 provided to the Defendant among the details withdrawn in cash from the △△△ management account in the name of Nonindicted 7.

○○ △△△△△△ branch, △△△ branch, △△△ branch, △△ branch: Net profit by store (=net profit by store - income tax, etc. - KRW 3% of sales) - Nonindicted 4 high-ranking expenses (minimum KRW 40 million)

(2) However, according to the evidence adopted and examined by the lower court and the lower court, the following circumstances are recognized.

① Nonindicted 4 did not have objective data, such as account books with which Nonindicted 4 knew of the details of the profits that he delivered to the Defendant.

② Nonindicted 4 is unable to specifically memory the details of the profits that it delivered to the Defendant. Of the details of cash withdrawals from the △ Point account, Nonindicted 17 is also unable to clearly memory the details thereof. Nonindicted 4 is Nonindicted 4 and Nonindicted 17 does not seem to have been aware of the details by being involved in the process of delivery.

③ The money withdrawn in cash from the location of the place of residence, the point of residence, the point of △△, the point of △△, and the △△△ point account was not divided by each store, and Nonindicted 4 stored the said money together and delivered it to Nonindicted 4 on an irregular basis. Nonindicted 4, Nonindicted 17, and Nonindicted 18 were not aware of the details that the said money was delivered to the Defendant. The said money cannot be deemed to have been delivered to the Defendant.

④ Nonindicted 4, etc. stated that they delivered the Defendant the amount excluding taxes and various expenses from net income. However, Nonindicted 17 stated in the court below’s ruling that “The amount of sales was deducted from 2 through 3% as the expense, whichever was now 6%.” Meanwhile, Nonindicted 20, who was in office as a director of Nonindicted Company 19 since 2004, stated in the court below that “The amount of sales was 8% when there are many expenses for the preparation of sales, and 3% when there were only 8% when there were small amounts of expenses for the preparation of sales, and 5% and 6% ordinarily.” The sales amount, which serves as the basis for the calculation, was the total sales amount before deducting the fee paid to the department store.”

⑤ At the court of the court below, Nonindicted 4 stated to the effect that “In the case of the Defendant, Nonindicted 4 gave a certain amount of money from his profits to his high expense, which would have been deducted. 5 million won each time every year. When there are a large amount of money, Nonindicted 4 stated to the effect that “The amount was KRW 30 million to KRW 40 million.”

(3) In light of the above circumstances, it is insufficient to recognize that the evidence submitted by the prosecutor alone is the same as the stated in the facts charged, and it is not possible to compute the amount of the received money in detail.

D) This part of the judgment of the court below is erroneous in misunderstanding of facts and misunderstanding of legal principles. This part of the defendant's assertion is with merit.

2) The point of taking property in breach of trust by Nonindicted Company 2 through Nonindicted Company 1

A) Relevant legal principles

Even if a person who administers another person's business has received an unlawful solicitation in connection with his/her duties, and has other person acquire property or property benefits, the crime of taking property or property in breach of trust shall not be established: Provided, That in cases where there is a relationship that can be assessed equally by social norms, such as where a person who has received an unlawful solicitation receives property or property benefits, receives property or property benefits from another person as a private person or representative of a person who has received an unlawful solicitation, or where a person who has received an unlawful solicitation bears the living expenses, etc. of a third person or bears the obligation to a third person, such as where the person who received property or property benefits from another person is exempted from expenditure, etc., and where the person who received an unlawful solicitation has a relation that can be assessed equally as having received property or property benefits from the social norms (see Supreme Court Decision 2008Do1321, Mar. 12, 200)

B) Whether the receipt by Nonindicted Company 1 is the same as the receipt by the Defendant

(1) The judgment of the court below

Nonindicted Co. 1 holds 100% of the shares of Nonindicted Co. 8, who is the Defendant, and did not participate in the management due to health reasons, and the Defendant appears to actually run the business by ordering Nonindicted Co. 9 to the representative director. In the employees of Nonindicted Co. 1 and the duty-free shop industry, Nonindicted Co. 1 was known to be the Defendant Company. The Defendant appears to have traded in the name of Nonindicted Co. 8 with Nonindicted Co. 8 seals and passbooks. The money received from Nonindicted Co. 1 was mixed with other money in the account, and the amount of KRW 1.4 billion was deposited into Nonindicted Co. 8 account. Comprehensively considering these circumstances, it can be seen that Nonindicted Co. 1 received money from Nonindicted Co. 2.

(2) Judgment of the court below

(A) However, solely based on the circumstances stated by the lower court, it cannot be evaluated that the Defendant received money from Nonindicted Company 1 as the Defendant’s letter of intent or proxy or exempted the Defendant from paying the money.

(B) Rather, according to the evidence adopted and examined by the lower court and the lower court, the following circumstances are recognized.

① Nonindicted Co. 1 was established in 194, and as of 2016, the capital amount was approximately KRW 1.6 billion, and sales amount was KRW 74.3 billion. The shares of Nonindicted Co. 1 are owned by both Nonindicted Co. 8, who is the Defendant, and the Defendant was not a shareholder or an executive officer of Nonindicted Co. 1. The Defendant did not receive benefits, etc. from Nonindicted Co. 1. There is no circumstance that the Defendant did not pay the operating expenses, etc. of Nonindicted Co. 1, and that Nonindicted Co. 1 was discharged from liability to the extent that he was paid by Nonindicted Co. 2 due to the burden of Nonindicted Co. 1.

② The money that Nonindicted Company 1 received from Nonindicted Company 2 was deposited into Nonindicted Company 1’s account. There is no circumstance that the money deposited in the account was paid to the Defendant.

③ From September 4, 2014 to April 8, 2016, the money deposited from Nonindicted Company 2 to Nonindicted Company 1’s account is approximately KRW 7.6 million. During the foregoing period, approximately KRW 1.4 billion was remitted from Nonindicted Company 1’s account to Nonindicted Company 8’s account. However, during the said period, the money deposited from Nonindicted Company 1’s account falls short of KRW 214.8 billion in total, and KRW 213.5 billion in total. Nonindicted 8 received considerable benefits and dividends as a shareholder of Nonindicted Company 1 as an executive of Nonindicted Company 1, and it is difficult to view that the money deposited from Nonindicted Company 2 to Nonindicted Company 8 was paid after the money was deposited from Nonindicted Company 2. In light of this, it is difficult to view that Nonindicted Company 2’s money deposited from Nonindicted Company 1’s account was paid to Nonindicted Company 8.

④ Nonindicted 8 is independent of the Defendant and his family. Nonindicted 8 owns a considerable amount of property, and is receiving a considerable amount of benefits and dividends from Nonindicted Company 1, etc. Nonindicted 8. There seems to be no circumstance that the Defendant assumed Nonindicted 8’s living expenses, etc. in the ordinary book.

(C) Taking into account the aforementioned circumstances, it cannot be deemed that Nonindicted Company 1 acquired money from Nonindicted Company 2 as the Defendant’s private person or agent, or that the Defendant exempted the Defendant from paying the said money, thereby being identical to that of the Defendant directly received by social norms. Furthermore, even if the Defendant received benefits, such as holding membership rights, such circumstance alone cannot be deemed the same as the Defendant received. Even if Nonindicted Company 8 received benefits and dividends as an officer of Nonindicted Company 1 as a shareholder, it cannot be deemed that it was the same as the Defendant received. This part of the judgment of the court below is erroneous in the misapprehension of legal principles and in the misapprehension of legal principles. This part of the Defendant’s assertion is with merit.

B. Judgment on the prosecutor's misconception of facts and misapprehension of legal principles

1) The receipt of property in breach of trust from Nonindicted 4 (Nos. 1 9 through 57 of the judgment of the lower court)

A) The judgment of the court below

(1) According to the evidence, the following circumstances are recognized:

① Nonindicted 5, who is a child of the Defendant, has husband and two children (the birth year omitted), and the Defendant is living independently.

② 공소외 5는 (상호 1 생략) 스파를 관리하면서 공소외 21 주식회사로부터 2011. 1.부터 2016. 4.까지 매달 1,000만 원∼1,500만 원씩 합계 15억 5,400만 원을 받았다. 공소외 5는 (상호 2 생략) ◎◎◎점, ◁◁점 및 ▷▷점을 운영하였고, 2012. 6.까지 전주비빔밥 매장을 운영하였다. 공소외 5의 남편인 공소외 22는 공소외 1 회사의 고문으로서 임원에 준하는 급여를 받으면서 해외 계약서 검토 등의 업무를 수행하였다

③ Nonindicted 5 owned approximately KRW 6.13 billion in total, including the shares of approximately KRW 587 billion, and the bank deposits of approximately KRW 5.543 billion.

(2) As above, Nonindicted 5 and Nonindicted 22 had a considerable amount of income through economic activities, and had considerable property in addition to the property received as a result of the instant crime. There is no evidence to support that the formation of the said property was entirely carried out by the Defendant’s help without Nonindicted 5 and Nonindicted 22’s efforts. Considering these circumstances, it is difficult to recognize that the evidence submitted by the prosecutor alone was that Nonindicted 5 received the income directly by the Defendant, as long as it is deemed that the Defendant and Nonindicted 5 shared economic interests.

B) Determination of the immediate deliberation

In light of the records, a thorough examination of the judgment of the court below is proper and there is no error of misunderstanding of facts and misunderstanding of legal principles. This part of the prosecutor'

2) The receipt of property in breach of trust from Nonindicted Company 2 (Nos. 3 to 20 of the list of crimes in the judgment of the lower court)

A) The judgment of the court below

(1) Upon receiving the request from Nonindicted 10 to change the location of Nonindicted Company 2, the Defendant accepted the request, and ordered the change of the location of the store. However, since the payment for the change of the location of the store was Nonindicted 10, in order to establish the crime of taking property in breach of trust against the Defendant, the Defendant must be aware that Nonindicted 10 would receive the fee in return for the change of the location of the store, or that Nonindicted 10 would receive the fee when ordering the change of the location of the store at least.

(2) However, Nonindicted 10’s statements are difficult to believe in light of the following circumstances.

① Nonindicted 10 made a statement at an investigative agency that “ Nonindicted 10 made it difficult for the Defendant to receive 5% or 3% of the sales amount in return for the movement of store from Nonindicted 11, and Nonindicted 10 made the statement from the Defendant that it was written by Nonindicted 10 with priority, and that it was written by dividing it into KRW 50 million with Nonindicted 23, who is the second father.” However, Nonindicted 10 made a statement to the effect that “The Defendant would have received 5% or 3% of the sales amount,” as in the court of the lower court, as in the investigative agency, it was stated in the lower court that “The Defendant did not have received 5% or 3% of the sales amount.” Nonindicted 10’s statement is not consistent. Nonindicted 10’s statement that read the sales amount of Nonindicted 2, as much as Nonindicted 10 was the Defendant, and that it was consistent with Nonindicted 23’s phone number received from the husband.

② Nonindicted 10 stated to the effect that “In spite of Nonindicted 10 asked the Defendant to transfer the store location twice, it was rejected, and that it was difficult to obtain the consent thereafter.” In such circumstances, it is doubtful whether the Defendant told the Defendant that he would receive the fee for the store transfer.

③ Nonindicted 10 stated in the lower court’s trial that “When Nonindicted 10 speaks that the Defendant would receive a fee, it would give 3% to the Defendant, and thus, I would like to see it as the party in charge.” However, if the Defendant agreed in advance to receive Nonindicted 10 and a fee, it is difficult to understand that Nonindicted 10 would have an interest in the amount of the fee, and that he would have 3% more than 5% more than 5% more than 3% more of the fee.”

④ In the court of the court below, Nonindicted 10 made a statement that “I would have asked the number of Nonindicted 23 to the Defendant, but I would like to see why I would like to see why I would like to give money prior to giving money.” However, it is doubtful that the Defendant responded to Nonindicted 23 as above. It is doubtful whether there was a need to ask the account number of Nonindicted 23 in advance, even if the commission did not exceed KRW 50 million. It is doubtful whether there was a need to ask the account number of Nonindicted 23 in advance. In fact, the commission that Nonindicted 10 received is not in excess of KRW 50 million.

⑤ Nonindicted 10 only remitted money received from Nonindicted Company 2 to a branch or used it in the Gangseoland casino, and did not deliver it to the Defendant. However, Nonindicted 10 said that Nonindicted 10 paid the full fee to the vice president of Nonindicted Company 2 and Nonindicted 14.

(3) Other evidence submitted by the prosecutor alone is insufficient to recognize that the Defendant and Nonindicted 10 conspired to receive fees from Nonindicted Company 2.

B) Determination of the immediate deliberation

In light of the records, a thorough examination of the judgment of the court below is proper and there is no error of misunderstanding of facts and misunderstanding of legal principles. This part of the prosecutor'

3) The point of taking property in breach of trust from Nonindicted Company 16

A) The judgment of the court below

According to evidence, the following circumstances are recognized.

Nonindicted Co. 1 concluded a consulting contract with Nonindicted Co. 16 and received fees. In relation to ○○ duty-free shop, Nonindicted Co. 1 actually performed duties, such as new shop occupants, employment of employees, and shop construction, on behalf of Nonindicted Co. 16. Nonindicted Co. 16 appears to have performed duties of newly selling at ○○ duty-free shop and performing duties as a consulting contract. There is no evidence to find out what intention Nonindicted Co. 24, the representative of Nonindicted Co. 16, concluded a consulting contract with Nonindicted Co. 16.

In light of these circumstances, it is difficult to recognize that the evidence submitted by the prosecutor alone was that the commission that Nonindicted Company 1 received from Nonindicted Company 16 was paid in return for an illegal solicitation against the Defendant.

B) Determination of the immediate deliberation

In light of the records, a thorough examination of the judgment of the court below is reasonable and there is no error of misunderstanding of facts or misunderstanding of

In addition, the fact that Nonindicted Company 1 received fees cannot be evaluated the same as that of the Defendant directly. This part of the Prosecutor’s assertion is without merit.

3. Conclusion

Since the defendant's appeal is partly well-grounded, pursuant to Article 364(6) of the Criminal Procedure Act, without examining the argument of unfair sentencing by the defendant and the prosecutor, the part of conviction (including the part of innocence) among the judgment below is reversed, and the defendant's appeal against the part of innocence (excluding the part of innocence) among the judgment below is dismissed in accordance with Article 364(4) of the Criminal Procedure Act, since the prosecutor's

The summary of the facts constituting an offense and the evidence acknowledged by this court is as follows, except for the change of the summary of the facts constituting an offense and the evidence in the judgment below, and therefore, it is consistent with Article 369 of the Criminal Procedure Act.

Pursuant to the judgment of the court below, 4th 10th 11th , and 11th : Change of “○○ department stores and ○○ department stores” into “○○ department stores.”

From February 207 to December 207, the lower court’s 5th 15 to 6th 7th : “The Defendant received 59,960,000 won in total from February 2, 2007 to December 2007, and received 66,000 won in total from April 2008 to May 2016, 1 to 300,000 won in return for the changes in the amount of 5,960,000 won from 1 to 3660,000 won in cash, and the Defendant received 5,000,000 won in cash from 1 to 366,000 won in a way of directly collecting the proceeds of the store from the store from 1 to 8th 2,000,000 won in return for unjust solicitation in relation to his/her duties, and the Defendant received 5,960,000 won to 1 to 25,207.27.

○ From 6th to 7th: Deleted.

○ From 12th to 14th: Deleted.

○. Attached Table 1, 2, and 2 of the lower judgment

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

Article 357(1) of the Criminal Act (the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the Act on the Aggravated Punishment, etc. of Specific Economic Crimes) (the Act on the Aggravated Punishment, etc. of Specific Economic Crimes) (the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the Act on the Aggravated Punishment, etc. of Specific Economic Crimes for Non-Party 1), Articles 356, 355(2), and 30 (the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the Act on the Aggravated Punishment, etc. of Specific Economic Crimes for Non-Party 25) (the Act on the Aggravated Punishment, etc. of Specific Economic Crimes) (the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the Act on the Aggravated Punishment, etc. of Non-Party 21), Articles 356, 355(1), and 30 [the Act on the Aggravated Punishment for Non-Party 365(1)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Concurrent Punishment of Specific Economic Crimes (Embezzlement)]

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (The following circumstances considered as favorable to the reasons for sentencing)

The Defendant received illegal solicitation related to salesroom occupants, etc. from Nonindicted 4, and received compensation from the Defendant. The Defendant served as the president and vice president of Nonindicted Company 3. While the Defendant was in the position of reporting and approving the important matters of the ○○○ department store as an internal director, he was in a fair and transparent position to select a business shop occupant and received compensation for solicitation for a long time. Up to the trial court, the Defendant asserted that the relevant store was received from the head of Nonindicted 6 General Assembly, and the Defendant did not seem to have any reflectiveness. The Defendant appears to have not yet discarded the way of thinking that the right to operate the department store was in mind of the company.

The Defendant entered a child who does not work in the company as a director or auditor, paid remuneration, registered false employees, and embezzled wages. The amount of damages caused by embezzlement and breach of trust reaches approximately KRW 4.7 billion. Such fact is disadvantageous to the Defendant.

The Defendant deposited or returned all the amount of property in breach of trust, the amount of embezzlement, and the amount of breach of trust. The victimized Company is both a company in which the Defendant and his family members own all shares. There is no history of criminal punishment against the Defendant. The Defendant is an old age and is not good health. These are favorable circumstances for the Defendant.

The punishment as ordered shall be determined in consideration of all the sentencing conditions shown in pleadings, such as these circumstances and the age, character and conduct, the environment, the circumstances and result of the crime, and the circumstances after the crime.

1. The point of taking property in breach of trust from Nonindicted 4

A. Summary of the facts charged

The Defendant received, from Nonindicted 4, a sum of KRW 62,30,010,00 in total, once every three months from February 2, 2007 to May 2016, KRW 62,3010,00, and one to three months from April 2008 to May 2016, in return for the provision of convenience related to the salesroom, including the sales store occupants and the renewal of the sales contract of △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, in which the Defendant received the total of KRW 53,66,00,00, including KRW 115,366,00,00 in a way of directly collecting the proceeds from the sales store from April 2008 to May 206.

B. Determination

Of this part of the facts charged, the part received through Nonindicted 5 among the charges is without proof of crime as seen in Article 2-2(b)(1), and the part received by the Defendant as seen in Article 2-2(a)(1)(C) and thus there is no proof of crime, and thus the Defendant should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, inasmuch as it is found that the Defendant was guilty of the crime of taking advantage of trust from

2. The point of taking property in breach of trust from Nonindicted Company 2

A. Summary of the facts charged

The Defendant received 84,7670,232 won from Nonindicted Company 2 through the account in the name of Nonindicted Company 1 from September 2014 to May 2016 in return for the illegal solicitation to transfer the location of the cosmetics store of Nonindicted Company 2 within the ○○ duty-free shop.

B. Determination

As seen in Article 2-2(a)(2) of the Criminal Procedure Act, this part of the facts charged constitutes a case where there is no proof of crime, and thus, the judgment of innocence is rendered in accordance with the latter part of Article 325 of the Criminal Procedure Act and the summary of the judgment of innocence is publicly announced in accordance with

3. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) against Nonindicted Co. 25

The prosecutor applied Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 356, Article 355(2), and Article 30 of the Criminal Act to the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes with regard to the violation of trust against Nonindicted Co. 25. However, this part of the amount of damage is less than KRW 234 million, which is less than KRW 50 million, and Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes cannot be applied. This part of the facts charged constitute a time when there is no proof of a crime, and thus, should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, but is not acquitted separately from the order, so long as it is found that the crime of occupational breach of trust

Judges Kim Jong-dae (Presiding Judge)