2010Gohap375(Separation) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (public conflict)

1. A;

2. B

3. C

Yucheon fever

Law Firm D (for Defendant A)

Attorney E, F, and G

Law Firm H (for Defendant B)

Attorney I, J

Law Firm K (for Defendant C)

Attorney L

April 28, 2011

Defendants are not guilty.

The summary of this decision shall be published.

1. Summary of the facts charged in this case

(a) All facts;

The Defendants are operators of each lending company, who are engaged in the business of lending money to companies listed on KOSDAQ and acquiring the interest accrued therefrom. M is an expert in corporate acquisition and merger of companies listed on KOSDAQ and capital increase with capital stock, and M is a person who has been engaged in public relations and stock price management of the company listed on KOSDAQ as well as Defendant A.

Defendant A entered into a joint management agreement with the purport that: (a) the representative director of N Co., Ltd. (N; (b) the director of P Co., Ltd. (hereinafter referred to as “N”); (c) the N Co., Ltd. (hereinafter referred to as “Co., Ltd.”) introduced P Co., Ltd. to provide N Co. (hereinafter referred to as “N”); and (d) on May 19, 2009, N Co., Ltd. (hereinafter referred to as “N”) decided to provide general public offering of KRW 595 per share; (b) the number of outstanding shares to be issued; (c) KRW 30 million per share; and (d) the number of outstanding shares to be issued; and (d) KRW 300,700,000 per share (hereinafter referred to as “the total number of issued shares”); and (e) KRW 300,50,000 per share after the completion of the general public offering; and (e) KRW 300,700,000 per share (the total number of issued shares);

On July 27, 2009, the Defendants and M participate in the offer when the subscription for the above 30 billion won was less than the above 3.0 billion won, and planned M to lend funds necessary for the N-head office to M for the purpose of inducing subscription and holding shares, and M to July 29, 2009, borrowed 3 billion won from Defendant B to Defendant B, borrowed 3 billion won from Defendant B to 4, and deposited 2 billion won in the next borrowed 2 billion won from Defendant C on July 31, 2009, deposited 2 billion won in the 200 billion won (hereinafter “N-head office”) account, and M to acquire 2 billion won (hereinafter “N-head office”) from Defendant C to transfer 200 billion won (hereinafter “N-head office shares”) to the 200 billion won (hereinafter “N-head office shares”) account. M to this, M transferred 200 billion won (hereinafter “N-head office shares”).

However, at around 15:00 on July 31, 2009, when it is anticipated that N's subscription price will not be lost due to the lack of 1.3 billion won prior to the closing of subscription, the Defendants, including M, P, and M, obtained a collection scheme for KRW 2 billion prior to the Defendants’ success in a large-scale subscription, and the Defendants agreed to acquire profits equivalent to the difference between the subscription price (1.145 won) and the share price (2,015 won) at the time. Defendant A requested N's N representative director to extend the closing time of subscription; Defendant A transferred KRW 16.5 billion to the account in the name of 7 billion M, including Q, 1.41 billion, but the Defendants agreed to receive the lower limit of KRW 1.5 billion from 7 billion to 7.5 billion to 1.5 billion to 7.5 billion to 15 billion to 18.5 billion to 165 billion to 16.5 billion to 7.5 billion to 18.5 billion.

B. The Defendants’ co-principal

On August 3, 2009, the day immediately before the withdrawal of shares, M opened an account in the name of the Defendants at each salary point of the National Bank, the principal bank of the Defendants, and opened a seal and a certificate of payment of shares to the 1st floor of the T hotel located in Gangnam-gu Seoul. At around 17:00 on the same day, Defendant A participated in the capital increase to 0 and P. The amount of capital increase to 2 weeks is to be kept. P, as the P refuses it, 'the company will leave 400, 00, 000, 000, 0000, 0000, 0000, 0000, 000,0000 won, 000,000 won, and 00,000 won, 00,000,000 won, 00,000 won, 00,000 won, 00,000 won.

2. The gist of the defense counsel's defense counsel

The Defendants recovered KRW 16.5 billion from P andO for the most advanced payment that was lent to P and M on May 29, 2009 at the time of issuing new shares, and received the repayment of KRW 2.0 billion from P andO for the most advanced payment that was lent to P and M on May 29, 2009. Accordingly, P andO did not have any property damage, and Defendants did not have any intention to obtain illegal gains, and they did not have any desire to take a bath to P andO, or notified harm by making a director resignation, and ③ even if the Defendants were to use a somewhat verbal abuse at T and T hotel, P andO were not made out by the Defendants’ intimidation, but because they were returned because they were the money to be returned as the most advanced payment, it cannot be viewed as a threat of harm and injury, and there is no causation between verbal abuse and the payment of check at KRW 18.5 billion, and ④ the Defendants cannot be viewed as unlawful since they do not deviate from the scope of abusive language for legitimate exercise of rights.

3. Facts of recognition;

According to the records of this case, the following facts are recognized.

(a) Exercising management rights of 0 and P;

1) On November 14, 2008, P was selected and appointed as each director at the temporary general meeting of shareholders of N, and on the same day, the N Council was appointed as U representative and joint representative. At the time, N was a major shareholder of N, who offered N 4.54 million shares as security to W, who was the creditor, but V had been subject to the opposite trade as a result of failure to repay the debt, and there was 2 million shares among them. P and P around January 2009, after receiving a written statement from W that P would pay KRW 1.7 billion in total and KRW 3 billion in total to W, and would not interfere with N’s management right, the P andO exercised N’s management right.

2) The O was selected and appointed as a sole representative on January 9, 2009, and the internal operation and business related to N management were in charge of P with respect to the external business related to N management, including interest and capital increase with respect to new stocks, and was actually operated in the form of joint management.

3) P andO did not own N’s shares prior to the instant capital increase increase. The total number of N’s shares prior to the instant capital increase increase was 17,133,72 shares.

(b) N’s financial status;

1) At the time of acquiring management rights of P and 0, N did not pay not only KRW 18 billion to financial institutions, etc. but also failed to pay the principal and interest of bonds, etc. Accordingly, X et al.’s creditors were making provisional seizure, seizure and request for auction of N’s head office and factory building and its site. The total amount of debt amount of N’s auction on April 2009 was about KRW 9 billion.

2) In order to prevent the auction of the N and P, the said building and the said land were to be loaned by the financial institution as collateral, but the financial institution refused to lend the said building and the said land on the ground that there was a provisional seizure. From January 2009, P asked Defendant A to lend money for resolution of the said provisional seizure and seizure. Accordingly, Defendant A borrowed money by acquiring bonds with warrants in an amount equivalent to nine billion won issued by N with the funds of himself/herself and Defendant B, but thereafter, if the said land and the building were to be loaned from the financial institution as collateral, the principal of the bonds shall be immediately repaid, and the interest was to be paid KRW 900,000,000,000,000.

3) As of May 7, 2009, N issued 6th bonds with warrants equivalent to KRW 9 billion. Defendant A, B, etc. accepted them in the name of Y operated by Defendant B. On May 7, 2009, N paid off the obligees’ debt amounting to KRW 9 billion and ordered the release of attachment and provisional attachment.

4) On May 8, 2009, N agreed to obtain a loan of 16 billion won in total from the first mutual savings bank of Japan and the second mutual savings bank of Korea on May 8, 2009, and N jointly and severally agreed to obtain a loan of 8 billion won in total, and P.O and P jointly and severally agreed to the N’s loan obligations. On May 14, 2009, the first mutual savings bank and the second mutual savings bank of Japan agreed to pay 4 billion won in total from the above loans until July 8, 2009, after the general public offering scheduled to be conducted by N was made, and if N fails to pay 4 billion won in total, it was extended on July 7, 2009 to August 8, 2009, as N extended the payment period of 4 billion won in total.

5) On May 14, 2009, P received a loan of KRW 16 billion from the Japanese Savings Bank and the Japanese Second Savings Bank, and immediately repaid KRW 9 billion to Defendant A, etc. A. On June 23, 2009, Y prepared a receipt to the effect that N was paid the total amount of the principal and interest of the bonds of KRW 9 billion, and issued it to N on the same day, and N issued a receipt to verify that it was paid the total amount of the principal and interest of the bonds of KRW 9 billion.

C. On May 19, 2009, NNF decided to issue 30 million common shares and to provide new shares through public offering for the purpose of urgent financing and improvement of the financial structure, and the expected issue value was determined to be 680 won. After which NF adopted a resolution on July 17, 2009 as follows: (a) the date of subscription was extended in the course of receiving a request for submission of a registration statement and for supplementation of data three times from the Financial Supervisory Service; (b) the scheduled date of subscription was July 30, 2009; (c) the date of payment of shares was August 3, 2009; and (d) the scheduled date of listing was August 12, 2009; and (e) the issue value on July 27, 2009 was 1,145 won (a total of 34.5 billion won of the issued value).

(d) Joint management agreement of P and M;

1) Agreement on Joint Management;

A) On May 2009, P entered into a contract on the joint management of N with M as a joint management of N among M as a witness of capital increase in the Ham KOSDAQ market, and that divided N into half of its profits by selling it to a third party at the time of success of capital increase in the future.

B) On June 11, 2009, M demanded P to prepare a new contract for the above joint management contract and drafted it again. The main contents and purport of the contract are similar to the above Haman contract on May 2009. However, unlike the previous contract, M stated N as a joint guarantor, affixed an objection to the qualification of the representative director (hereinafter referred to as the "joint management agreement of this case"), and the main contents of the pertinent case are as follows.

(1) P shall issue bonds with warrants equivalent to KRW 5 billion in the name of the N within 3 days after the conclusion of the contract, and bonds shall be repaid in full after the completion of the bonds with general subscription, and bonds shall be owned by the N, both P and M. The new bonds with warrants shall be purchased at KRW 166,340 of the shares of AA owned by the Z (Z) at KRW 5 billion. P shall be treated as advance payment in the accounts of N. N. The public notice of N’s acquisition of shares may be given only on the date designated by M, and P and N shall not be disclosed to third parties except P and M (Article 1).

(2) Recognizing that P, upon borrowing KRW 1 billion from M, is in the position of N Joint Management Authority with P, and P may proceed with the board of directors with M’s consent before completion of N’s stock and management right sale (Article 2).

(3) P and M sell N’s shares and management rights to a third party upon mutual consultation after the completion of public offering for new stocks issued by N on May 19, 2009. From the sale price, P and M promptly sell N’s shares and management rights to the third party. ① The amount of redemption of N’s borrowed money from Nil Mutual Savings Bank, etc.; ② KRW 2 billion used by P to arrange N’s account; ③ KRW 3 billion borrowed from N L; ④ the amount of redemption of the above bonds with warrants; ⑤ KRW 5 billion borrowed from M; ⑤ KRW 3 billion borrowed from P; ④ the amount calculated by deducting N’s allocation of new stocks to a third party and interest expenses paid for the payment of new stocks to N’s new stocks and management rights under this Agreement; ② the management of the general public offering price shall be jointly managed by P and M (Article 3) through an agreement with P and M in accordance with the method determined by P and M.

(4) P and M are mutually able to proceed with the sale of the largest shareholder company that will be changed to N prior to the completion of N’s capital increase by mutual consultation, but in principle, N and the sale schedule of the largest shareholder company will be the success of N’s capital increase by issuing new shares (Article 6).

(5) P confirms that P actively cooperates in the publication of news reports and disclosures that may take place in N at the request of M (Article VIII).

(ii) the implementation of joint management agreements;

A) In order to jointly manage M and PN, M on May 27, 2009, paid a debt of KRW 500 million to N largest shareholder V by subrogation, and jointly and severally guaranteed a debt of KRW 2.7 billion to V.

B) On May 28, 2009, N issued the 7th bonds with warrants worth of KRW 5 billion on May 28, 2009, M accepted them on the part of M, and the payment was remitted to the account of Z under the pretext of purchase of shares in AA owned by the Z.

C) In addition, M, on May 29, 2009, borrowed KRW 2 billion from Defendant B to deliver to P a check equivalent to that amount. At the time, M, P, on the copy of the check, prepared a cash custody certificate stating that “B, by June 19, 2009, shall keep the amount of money fixed on the copy of the check, and return it to P by June 19, 2009 (after completion of public offering payment).”

D) On August 3, 2009, N published on August 3, 2009, that the AB doctoral degree was to appoint the Z in which the AB doctoral degree was a major shareholder and 5.67% of the shares of the AA as a management manager, and explained to the media that the purpose of the appointment of the manager is to promote the bio-project.

(iii) promoting joint management with respect to AC;

M, after the agreement with P on June 23, 2009, in order to secure the shares of AC in which P was participating in accordance with the agreement with P on June 23, 2009, M entered into a monetary loan agreement with the content of transferring all of the rights to the account, such as the securities account card, seal, and password in the name of AD and AE, and participating in the third party allocation of capital from the Defendant B in the name of the branch, and repayment of the principal and interest of the loan to the Defendant B until July 1, 2009.

(e) Opening of a borrowed-name account and borrowing of funds;

(1) Opening of a borrowed-name account for stock management and borrowing of funds;

A) M intended to borrow certain funds for the issue of capital increase and set up a borrowed-name securities account during the period of capital increase and planned to manage the borrowed-name securities account during the period of capital increase. On July 28, 2009, Q intended to create four borrowed-name securities account to be used for the issue of capital increase and to use for the issue of capital increase from August 28, 2009 (the actual operation of Q was to work from August 2004 to May 2009, and it discontinued AG as a result of M’s proposal around May 2009, and Q was to start up the new-name securities account in the name of the AI (the main employee who supported NN’s duties under the NN’s control as at the time of N’s major shareholder), and to directly establish the pertinent AH account under the name of P& 4 employees and the pertinent documents.

B) M demanded Defendant B and C to borrow a loan of KRW 5 billion for N’s share price management in relation to the capital increase with the instant capital increase for new shares. Accordingly, Defendant B loaned KRW 3 billion on July 29, 2009, and Defendant C lent KRW 2 billion on July 31, 2009 to M.

C) On July 29, 2009, Defendant B lent KRW 3 billion to M., the debtor’s name to Q, AH, AI, and AJ respectively, lent KRW 750 million to the above debtor at 2% interest rate from July 29, 2009 to August 28, 2009. For securing the principal and interest of the loan, each debtor prepared four copies of the monetary loan loan, four copies of the note (hereinafter referred to as “money loan agreement for the share price management”), stating that he/she would transfer all of the rights of the securities account, including the securities account card, account number, seal, and password, in the name of the debtor of the right to guarantee the principal and interest of the loan, to the defendant B, who is the creditor. For each of the above money loan contract, M directly signed and sealed the guarantor’s column, and his/her name and seal affixed his/her seal impression to P&A’s name and seal impression in advance.

D) M used the total amount of KRW 3 billion deposited in the borrowed name account for the management of each share price to trade N Shares.

2) Opening of a borrowed account for subscription to capital increase and borrowing of funds

A) On July 29, 2009, M directed Q Q Q to create a borrowed-name securities account for the offering of capital increase with respect to the instant investment securities, which are the main company of capital increase with respect to capital increase, and Q delivers Q’s instruction to R, who is a cost book for the implementation of capital increase with respect to the said M. R requested R to open a borrowed-name account for the land AK, AL, and AM, who has worked in AG. Accordingly, R and K opened a closed-end investment securities account on July 29, 2009, and on July 30, 2009 and thereafter, AM opened a closed-end investment securities account.

B) Pursuant to the direction of M on July 29, 2009, Q borrowed 2 billion won (one billion won in part of the contract) from Defendant B from Defendant B to Defendant B, obligor disturbance, and each of the loans (one billion won in part of the contract) from July 30, 2009 to August 30, 2009, with interest of 2% from July 30, 2009. As security, N issued 1,746,000 shares (one share in part, one of four), among the shares listed on August 12, 2009, each debtor subscribed to 1,746,00 shares for each of the securities accounts (873,362 shares), including the card, account number, seal, password, etc., to be transferred to Defendant B, who is the creditor.

C) On July 30, 2009, R, K, AK, L, and AM directly signed and sealed each debtor column of the said monetary loan agreement. M directly signed and sealed each of the above monetary loan agreement, and attached a certificate of personal seal impression, and attached a copy of the resident registration certificate to Q’s joint guarantor 2. Q called P to P and sent his/her seal seal impression to AI. As Q calls to P and left his/her seal impression to AI, P would incur a seal affixed to AI, and obtain a copy of the above monetary loan agreement’s name, seal, and certificate of personal seal impression, and driver’s license from AI.

D) On July 30, 2009, Defendant C delivered KRW 2 billion to R at the station of the Sojin Investment Securities Station on the 30th day of YY 30,009, and R deposited KRW 2 billion in the account of Sojin Investment Securities in its own name and subscribed to new shares with capital increase in the instant case equivalent to that amount.

(iii) opening of a borrowed name account for additional subscription and borrowing of funds;

A) Around July 31, 2009, Q received an order from M to open a borrowed account for subscription to capital increase with several orders from M, and requested R to N. The request was made by R to AO who worked for AG, and Q, N and AO opened a flexible investment securities account in Q, N and AO on the same day.

B) On July 31, 2009, Q, N, and AO signed and sealed each of KRW 2 billion from Defendant B on July 31, 2009, from July 31, 2009 to August 30, 2009, three copies of the monetary loan agreement on the same conditions as the monetary loan agreement for consumption and the security account agreement (the Q’s name is 873,000 shares) (hereinafter referred to as the “money loan agreement for consumption”) with the same conditions as the money loan agreement for consumption for use from July 31, 2009 to August 30, 209, and signed and sealed only M. as a joint guarantor.

4) Around that time, M’s preparation and acquisition of a monetary loan contract for consumption and borrowing of funds for subscription was accompanied by a monetary loan contract for consumption and borrowing of 16.5 billion won from AP, an employee of Defendant B, at its own name, to 1.5% interest, on the condition that the securities and listed stocks equivalent to 150% of the said amount are offered as security to creditors from July 30, 2009 to August 29, 2008, one copy of the monetary loan contract for consumption and borrowing of 5 billion won from Defendant B, and a certificate of personal seal impression was attached thereto.

(f) Subscription for new stocks issued;

1) The N’s subscription amount for capital increase with new shares was up to 16 billion won around July 31, 2009, and around 15:00 and around 3 billion won were revoked, and the amount was up to 13 billion won until around 15:20,000, which was 15:20,000 won prior to the closing hour.

2) On July 31, 2009, the Defendants, M, P, etc. arrived at the Cheonga Bank Cheonga Bank Cheong, and from that point to 16:03, from that point, the remitter deposited KRW 2 billion with the borrowed name account in Q Q’s name, ② KRW 2.5 billion with the borrowed name account in the name of AK, N, AL, AM, and A0, and ③ KRW 500 million with the R’s account in the name of 16:03, respectively. R. Q subscribed to new shares in the amount of KRW 2.5 billion with the previous account in the case of the R’s account.

3) Q and R thereafter revised each of 2.5 billion won (in Q’s name agreement, KRW 1.5 billion), 2,183,000 (in the case of Q’s name agreement, KRW 1,310,00) to the actual amount acquired under each of the monetary loan agreements on July 30, 2009 and July 31, 2009, respectively, and delivered each of the revised portions to Defendant C around August 5, 2009. The sum of shares acquired with the borrowed name account as above, approximately KRW 16.5 billion, the number of shares, and KRW 14,408,000 (in the case of Q’s name agreement, KRW 1.5 billion), and the check was not used for the capital increase after the subscription was made.

(g) Withdrawal of N Capital increase;

1) The reasons before withdrawal

A) The total amount of shares paid for new shares issued by N on August 3, 2009 (i.e., 29,102,877,200 won (=1,145 won x 25,417,360 shares)

B) On August 3, 2009, at around 13:00, Defendant B opened an account of the point of the payment of the national bank in N in the name of N on August 3, 2009, “O.D.” with the stock-related documents and up to 5:00 p.m. at the hotel in Seoul, and directed the employees of the company, and opened an account of the point of payment of the national bank in the name of N in the name of N on August 3, 2009.

C) M promised to offer T hotel business studio from August 3, 2009 to 20:00 on August 3, 2009, and Defendants, M, P, andO were operated at the above business room on the same day.

2) The circumstances at the time of withdrawal

A) Around 10:00 on August 4, 2009, the day following the end of the session, theO called N, and ordered N to transfer KRW 29.1 billion paid-in capital for capital increase to the account of each salary branch of the National Bank. Of the above transfer amount, theO withdrawn KRW 20.5 billion out of the said transfer amount as several checks and delivered KRW 18.5 billion to A and to M.

B) On August 4, 2009, when paying KRW 18.5 billion to Defendant A, etc., the check shall be paid in the form of “written confirmation” and this check shall be paid in the form of return of the loan, and shall not be subject to any act such as loss, theft, etc. After stating that Defendant A is the N representative Director, the signature and seal was affixed next thereto.

3) Details after the withdrawal

A) On August 11, 2009, theO issued to Defendant C a certificate of balance by showing the actual check amounting to KRW 18.5 billion to the account manager. Thus, it is demanded to bring this change. Defendant C cited the instant check to the N head office and delivered it to Defendant C, but theO confirmed the instant check and returned it to Defendant C again.

B) On August 12, 2009, P andO requested Defendant B to grant a temporary loan equivalent to KRW 5 billion to the N account, separately from the share offering price of this case. After the balance certificate, P andO immediately returned the funds as a copy of the check, and immediately returned the check as the repayment of the loan, and if the company concerned did not perform all the act of loss, theft, etc., it is confirmed that it will be held liable for civil and criminal liability.

C) On August 20, 2009, theO confirmed that the check paid to M was withdrawn, and reported an accident on the instant check paid to the Defendant A, etc. in an amount equivalent to 18.5 billion won.

A. On August 21, 2009, the declaration was withdrawn, and at the time, the written withdrawal submitted is zero names and signatures.

H. The whereabouts of the check of this case and new shares issued

1) Details of the check of this case

The Defendants kept the instant check by August 24, 2009. The Defendant C deposited all the instant check amounting to KRW 18.5 billion in its national bank account on the same day, and immediately deposited the check in a different amount, and the instant check was disposed of in full. On September 3, 2009, the amount equivalent to KRW 17 billion out of the newly issued check was endorsed under the name of A Q Q, Defendant C’s relative student, and exchanged KRW 17.0 billion in KRW 1.7 billion in KRW 1 billion in KRW. The remainder of KRW 1 billion in KRW 1 billion in KRW 1.7 billion in KRW 1 billion was deposited at the company’s private interest, and the rest of KRW 1.5 billion in KRW 5,000 in KRW 10,000,000 was deposited at the national bank’s salary in the name of AR, and thereafter, the Defendant B was transferred to AS by Defendant B to the Defendant.

2) A total of 14,408,00 shares issued through a borrowed account for subscription for new shares issued with capital increase was released in kind on August 12, 2009 by KRW 7 million among the total N& 14,408,00 shares allocated through a borrowed account for subscription for advanced investment securities. Among them, 4 million shares were returned to another securities company account in the name of AM and AO on August 17, 2009 and 19 on August 2009, and 1 million shares were returned to KRW 500,000,000 shares were returned to AT and AU account on August 24, 2009 and the total of 12,208,008,000 shares, including the shares re-issued, and the total of 1,201,141,14,160 shares were sold in kind.

(iii)the return of securities cards and seals;

M after the completion of the subscription on July 31, 2009, M served to Defendant C with each of the following securities cards and seals on the borrowed-name account for subscription for investment securities through Q as a collateral for the borrowed-name account for the use of funds. On August 2009, M returned them through R, and after disposing of all of the N shares of each account and withdrawing sales price, M returned them to the holders of each borrowed-name account through R and closed the account.

I. Examining N's trends in N's share price, the closing price of May 19, 2009, which was 790 won for the first time, issued public notice of capital increase, and the closing price of July 30, 2009, which was the date of subscription for capital increase, was 2,000 won for the last price of July 30, 2009, and 2,015 won for the last price of July 31, 2009, but was 1,715 won for the last price of August 3, 2009, the lower limit was 1,715 won for the last price of August 4, 2009 and August 5, 2009, the lower limit was 1,460 won for the last price of August 30, 209, and the decline after that, the closing price was 1,460 won for the last price of August 30, 209, 209.

(j) the commencement of an investigation and M locked, and delisting of N;

1) The police investigation of this case was initiated on October 2009 upon the 0th report of M to the United States, after his departure from the Republic of Korea and diving.

2) M was arrested on Dec. 10, 2009 and was arrested on Dec. 10, 2009, in the process of being investigated into the instant case, the whereabouts of M is unknown as it was re-locked overseas.

3) After that, N was delisting due to the instant leakage of subscription price for new shares.

4. Determination

A. The nature of the fund granted by the Defendants

1) The important part of the facts charged of the instant case is that the Defendants paid N's subscription for new shares equivalent to KRW 16.5 billion on July 30, 2009 and the following day, but the Defendants changed their mind on August 3, 2009, thereby raising N's subscription for new shares. On the other hand, the Defendants' specific change in the contents of P's subscription for new shares is ① on July 30, 2009, or about KRW 2 billion following the following day, leading the general public to not use the P's subscription for 9.5 billion if the Defendants lost their rights, but the Defendants were to request 205 billion won to prepare for the maximum amount of KRW 7.5 billion on the 9 billion on the 9.5 billion on the 19.5 billion on the 19.4 billion on the 200 billion on the 205 billion on the 19.4 billion on the 2000 on the 1000 on the 2000 on the 14.

2) According to the evidence submitted by the prosecutor, it is doubtful that the Defendants’ assertion that they lent the disguised payment to P and M was partially incomplete, and that the Defendants’ assertion was made by the police that the Defendants did not make the disguised payment of the Defendants’ funds in the process of capital increase with respect to the capital increase, there is doubt that the Defendants’ assertion is false and actually participating in the capital increase with respect to the capital increase with respect to the capital increase, and that the funds would not be re-convened through intimidation.

However, in full view of the above facts and the records of this case, the following circumstances can be recognized.

A) The need for P and M to success in capital increase with capital increase even through the prepaid payment

① 이 사건 공동경영합의상 P, M은 이 사건 유상증자 완료 후 제3자에게 N의 주식 및 경영권을 매각하기로 하였고, 그 과정에서 AB 박사가 대주주로 있는 AA의 지분을 N이 인수하게 하고, 이를 M이 지정하는 일시 전에는 제3자에게 공개하지 않을 것을 약정한 바 있는 점(이에 대하여 P은 이 사건 공동경영합의가 가계약에 불과하고 아무런 이행이 이루어지지 않았다고 주장하나, 당사자의 날인이 이루어진 계약서를 법적 효력이 없는 문서라고 볼 근거가 없을 뿐만 아니라, 실제로 위 계약에 근거하여 M의 대위변제, N의 제7회 신주인수권부사채 발행, AA 지분 인수, P의 2009. 5. 29. 20억 원 차용, Z의 경영지배인 선임 등 업무가 추진된 점에 비추어 P의 위 진술은 신빙성이 없다), ② P, M의 계획에 대하여 2009. 10. 9. N 사외이사로 선임된 AV는 이 법정에서 'M이 N 주가를 6,000원까지 올려서 속칭 찍기로 생긴 주식을 매도하여 P과 이익금을 반반씩 나누고 회계처리는 속칭 펼이라고 불리우는 비상장법인을 붙여서 하기로 하였는데, M이 주가를 올리지 않고 찍기로 생긴 주식을 팔아버리고 P과 정산도 하지 않은 채 행방을 감춰 버렸다.'고 진술하고, N 부회장 AW도 이 법정에서 'P은 당시 유상증자에 실패하면 그동안 사채를 쓴 것도 정리가 안 되고 속칭 찍기라도 해서 주식을 부양시켜서 마지막수를 둬야 하는 순간이었으며, 당시 P이 공시를 올려놓고 일반 청약이 안 들어오니까 피고인 A, B에게 자금을 찍어달라고 급하게 부탁을 한 것이고, M이 P의 파트너로서 주가를 올려서 팔아 찍기한 자금을 채워넣어야 되는데 M과의 관계가 무너진 것이다.'라고 진술하고 있는데, 위 AV, AW의 진술은 아래에서 보는 다른 객관적 사정들과 부합하고, 사채업 관련자들이 아닌 N 임원진이라는 점에서 그 신빙성이 있어 보이는 점, ③ P, M의 2009. 11. 19. 통화 내용에 관하여 P이 수사기관에 제출한 녹취록을 보아도, M은 속칭 '주포'2)인 투자자 AX이 투자하기로 하였으므로, 주식을 털고 나갈 때가 되었다는 취지로 말하고 있는 점, ④ AA 주식을 N이 취득하였음에도 이를 공시하지 않고 있으면서, 유상증자 납입이 끝난 2009. 8. 3.경 주식 시장에서 AA의 주주로 인식되고 있던 Z의 N 경영지배인 취임 사실만을 공시하여 주가상승의 분위기를 조성하기 시작한 점 등에 비추어 볼 때, P, M의 계획은 AB 박사가 대주주로 있다는 비상장법인 AA 지분 취득을 재료로 하여 N 주가를 상승시켜 보유 주식에서 시세차익을 얻는 한편, 제3자에게 N의 나머지 주식 및 경영권을 매각하여 이익을 얻고자 했던 것으로 보이고, 따라서 P, M으로서는 시세차익을 취하고 안정적인 경영권을 확보하기 위하여 가장납입의 방법을 사용해서라도 이 사건 유상증자 과정에서 다량의 주식 지분을 확보할 필요성이 있었으며(경영권 확보의 필요성에 대하여 P도 검찰에서 자신은 지분을 전혀 보유하고 있지 않고 단지 N 지분을 보유하고 있는 사람들로부터 경영권에 간섭을 하지 않겠다는 약정을 하고 경영을 하고 있는 것으로 상당히 불안정한 상태라고 할 수 있다고 진술한다), 0도 이 사건 공동경영합의 계약서에 N을 대표하여 날 인한 이상 P, M의 계획에 대하여 충분히 인식하였을 것으로 보인다.

B) Whether the Defendants expressed their intent to acquire N shares

① The Defendants are corporate financial and corporate bond companies with high interest rate of 1.5 billion won which are received by borrowing large amounts of money to shareholders in KOSDAQ-listed companies, etc. (the same shall apply to cases where funds are collected within one day) and have a business type of giving safe recovery of interest and funds through short-term lending. The Defendants’ direct acquisition of shares with 16.5 billion won or funds and burden of risk to the company for a long time is difficult in light of the Defendants’ ordinary business type. (In particular, it is difficult to consider that corporate financial and corporate bond companies’ funds were ordinarily mobilized from the third party’s total amount of 16.5 billion won by investing large amounts of money to 16.5 billion won (i.e., 14,408,7220 + 30,000,000 shares of existing shares issued by the Defendants, and thus, it is difficult to view that the Defendants were 16.5 billion won or more of existing shares issued by the company’s subscription to new shares and investment shares.

(c) an actual ownership of the borrowed-name account for subscription;

① The nominal holders who become the shareholders of N in form through the borrowed name account for subscription to capital increase with the order of M are all interested persons who participated in the business of Q and M who were engaged in M with the order of M. The employees who were actually engaged in the business. ② The Defendants, a bond business operator, stored each securities card and seal of the borrowed name account for subscription, but returned them to M., and M actually controlled the above accounts by selling or selling the stocks deposited in the borrowed name account through M R and Q, and withdrawing the price therefrom. As such, it is reasonable to view M as the actual owner of the borrowed name account for subscription. Furthermore, M had the objective of seeking profits from the acquisition of shares through N’s participation in management rights and capital increase with the basic interest of the Defendants, which ordinarily aims to profit from the lending of funds, and in light of the fact that the Defendants, as the bond business operator, had no interest in the management right holder and the shares of the PP account as well as the interests in the PP account in the management of the PP account.

D) Defendants, M, and P behavior of capital increase issued date

P on July 31, 2009, during the process of offering for capital increase by the Defendants to the Cheong Bank Cheong Bank Cheong Bank Cheong (hereinafter “B”)’s Cheong Bank Cheong Bank Cheong Bank Cheong Bank Cheong, and considering the video of the CCTV recorded at the time, P and the Defendants are either at a location readily able to verify the form of preparing documents and handling the affairs in the bank counter, and immediately deliver it to the person who requested identification cards, and eventually, the remitter of the amount of money equivalent to 15 billion won in the borrowed account for 7 subscription is also P. If the Defendants were to participate in capital increase by themselves, there is no reason to believe that P would have participated in the payment procedure in the bank. (B) Although the Defendants presented their identification card directly to P bank and offered the next account for subscription, it seems that the Defendants could not be aware of the fact that the Defendants made the most favorable deposit of the funds in the name of the PE to receive the funds in question, it appears that there was no clear fact that the Defendants made the statement to the effect that it was made in its name.

E) On July 30, 2009, P.M. entered and sealed 70 billion won as suretys. On July 31, 2009, it appears that P.M. entered and sealed 30 billion won as suretys. On July 31, 2009, if the Defendants actually participate in the instant loan as alleged in P and 0, there is no reason to prepare a disposal document that lends money equivalent to the subscription price for capital increase to 30 billion won. P. On this point, P. 1 was allowed to affix the seal on P.P. 30, 700, 700, 700, 300,000 won, 70,000 won: 20,000 won, 70,000 won, 70,000 won, 70,000 won, and 30,000,000 won, 20,000 won, 70,000 won, respectively.

F) Statement of performance of a copy of the check

C. On August 4, 2009, at the time of the delivery of the instant check to the Defendants, the check is paid as a copy of the check, and this check is not an act of loss or theft, etc. After which the N representative Director stated 'O', it appears to be a statement that the instant check is to be paid to the Defendants in order to repay the fictitious payment funds borrowed from the Defendants who are the bond company, and the P andO stated that it would be an obstacle to the conclusion of the corporation in order to indicate that it was made by intimidation and forcibly, but it is difficult to view the Defendant B as a copy of the check as a result of the temporary return of funds equivalent to KRW 5 billion for proof of balance, and that it would not interfere with the credibility of the check in light of the circumstances that the Defendant B would not be subject to any other criminal acts such as theft and loss of the check.

G) Defendant C, in kind of N Shares released from the borrowed-name securities account for subscription, had received 600,000 won shares from M as a collateral for the share purchase loan of KRW 5,000,000 from M, paid a substantial portion of interest, M, and P returned 4,000,000 shares from N to P as a collateral for the share purchase loan of KRW 5,000,000,000,000,000,000,000,000,000 won. However, Defendant C’s assertion that P was necessary for the sale of N’s third party, as the N’s remaining 2,000,000 shares were distributed to P. 1 to 200,000 shares issued by P. 1 to 5,000 shares with 4,000 shares issued by P and 200,000 won,000 shares issued by 2 to 300,000 won.

H) Circumstances before the act of intimidation as stated in the facts charged

On August 3, 2009, the Defendants entrusted with the registration of capital increase at several times, and at the time of the request of the Defendants, AY did not appear to have carried out the registration of capital increase. It appears to have been carried out by the Defendants at the time of the request of the Bank No. 13:30, on August 4, 2009, that “it is good that N’s employees AZ would have to carry out the registration of capital increase at the time of the issuance of the shares payment certificate at the point No. 13:00, and that the Defendants would have received the orders from the Bank No. 20, and that the Defendants would have received the orders from the Bank No. 30, and that the Defendants would have received the orders from the Bank No. 1. 206, and that the Defendants would have received the orders from the Bank No. 9, and that they would have received the orders from the Bank No. 1, 2009.

I) The credibility of P’s statement

P was satisfied with the offer of about 16 billion won immediately before the completion of the subscription for capital increase with consideration in this case, the defendant made a statement to the 0th director of the board of directors by telephone to inform the 0th director of the fact that it can postpone the closing of 30 minutes of the subscription, and it is difficult to believe that the defendant A confirmed an extension of monitoring the extension of the subscription for capital increase with consideration to the company with consideration to a certain extent without any confirmation as to what extent the amount of the subscription would be paid for a small amount immediately before the completion of the subscription for capital increase with consideration in this case, without simply confirming that the defendant A would merely make an investment.

Furthermore, on July 29, 2009, P stated that M borrowed KRW 3 billion from the Defendants had never known that it borrowed money from KRW 3 billion for the share price support, and that the seal affixed on the money loan contract for the share price management on July 29, 2009 was not a seal but a forged. However, in light of the following: ① AV, who worked as N outside directors, was against the legal statement of Qua that dealt with practical affairs, such as the opening of a borrowed account at the time, is also against P and telephone communications with P from time to time; ② It is difficult to see that the Defendants’ P and P and P accounts were opened as its employees under the direction of P and P Contracts; ② it is difficult to recognize that the four persons, the name-based name-based name-based name-based name-based name-based name-based name-based name-based name-based name-based name-based name-based name-based name-based name-based name-based name-based name-based name-based name-based name-based name-based name-based name-based name-based name-based name-based name-based name-based name-based name-based name-based name-based name-based relationship.

(j) The statement NV outside directors stated in this court that "BA made P and telephone calls before the Haman's capital increase before the Naman's capital increase before the Na on July 2009, and that if the defendant A was unable to get early, BA would request the head of the Gangnam-gu 'BB' to take advantage of the circumstances that "BC was made." At the coffee shop "BC located in Gangnam-gu on July 31, 2009, at around 12:00, P and P were allowed to take advantage of the 'BC', and the 'BC' was entered into the 'BC' with the defendant'. The '2 billion won was deducted from the 200 billion won, and the 'BD' and 'the 2 billion won was disposed of as well as other 'the 'the 200 billion won was disposed of' and the 'the 2 billion won was disposed of as security' and the 'the 2 billion won was disposed of as security'.

On the other hand, in accordance with the facts charged in this case, M’s statement to the effect that the amount paid by the Defendants is not the most advanced payment is completely inconsistent with the first statement made by the Defendants in detail with the specific process of the most advanced payment and the content of the agreement between the parties, and that the statement was not the most advanced payment at the time of the second statement made by the police that began to reverse the statement, but the statement was not the most advanced payment. In addition, the statement was not consistent because it was re-written by the investigator questioning about the circumstances related to the money lending loan contract for the purpose of subscription at the time of July 30, 2009, and it was hard to view that the statement was not the most advanced payment again and agreed with N, and it was hard to view that there was no objective evidence and position of management as a whole, as well as the objective evidence and position of the victim, even though it appears that the Defendants were under the control of M’s shares.

3) Ultimately, considering these circumstances comprehensively, the nature of the capital of KRW 16.5 billion that the Defendants paid to the NF’s NF’s payment account is highly likely to have borrowed funds from NN’s joint management (P and M) to secure shares through the instant capital increase with a view to obtaining new shares, and immediately returned the funds to the bond-based company as if the funds were actually paid, and as if the funds were actually paid to the bond-based company.

B. Determination as to the appearance

1) As to whether P andO delivered the instant watermark to the Defendants with the appearance of intimidation by the Defendants, the following circumstances can be acknowledged in full view of the facts of recognition and the records of the instant case.

A) As seen earlier, the nature of the funds of KRW 16.5 billion that the Defendants paid to the NB’s NB payment account is highly likely to be the funds temporarily borrowed from the Defendants, a bond business entity, and P borrowed KRW 2 billion from May 29, 2009 in relation to the joint management agreement with M., and the due date was determined after the completion of the instant joint management agreement. P andO paid the said debt to the Defendants. As such, P andO were required to pay the said debt, it appears that they paid the instant checks to the Defendants.

B) In relation to intimidation such as abusiveism, intimidation, etc., even based on the charge charged on the charge of robbery itself, does not constitute a crime of robbery to the extent that, unlike the crime of robbery, the other party’s resistance or the other party’s failure to resist. Furthermore, P andO had experience as a representative director and director of AC operating online electronic settlement business in addition to management of N, and had experience in participating in the management of various companies, including (i) prior experience in jointly promoting online electronic payment business; (ii) considerable intellectual level, knowledge, business experience, and (iii) large amount of capital increase with capital increase in KOSDAQ; and (ii) in such a case, it can be sufficiently known that management at the time of the crime could be held liable for heavy civil and criminal responsibility first, and (iii) it is hard to say that there is no obligation to inform 150 million won or more, such as abusiveism, as stated in the facts charged in this case.

C) As to the portion of intimidation made by using the director's letter of resignation, P, as 0. P, bears the comprehensive collateral obligation of 22.4 billion won against N, and P, if she resigns from the position of N director, she would impose his/her obligation on him/her and would not normally operate the company, and thus, she was removed from the position of N director. However, the argument that she was removed from the position of 18.5 billion won, which is a portion of the company's subscription price for new shares issued, is difficult to easily understand the fact that she was removed from the position of 5.0 billion won, solely because she would have a high risk of causing more criminal liability than that of her own. ② As alleged in P and 0, it is difficult to understand the fact that Y, as at the time of acquiring N bonds issued by Defendant B on May 7, 2009, received the same director's letter of resignation and waiver of management rights against the intention of 15.5 billion won, it is difficult to understand the above documents issued for the purpose of 3.

D) As to the circumstances subsequent to intimidation, the facts charged of the instant case are subject to intimidation of 20 billion won or more on August 3, 2009, and this case’s check was issued to the Defendants and the National Bank 200 billion won following the following day. Since M who has been in charge of subscription for capital increase was departing from the United States on October 2009, the Seoul Central District Public Prosecutor’s Office’s tax investigation division and drug investigation division’s inspection were conducted directly with a lawyer’s request, and 20 billion won or more did not directly withdraw from the office of 00 billion won after the date on which the 200 billion won or more passed after the date on which the 200 billion won or more was reported (the 200 billion won or more after the date on which the 200 billion won or more was reported, and the 200 billion won or more was notified to the police by delegation of a proxy to the 200 billion won or more of the 200 billion won or more, and the 200000 Korean or more of the Defendants’s opinion.

E) Examining the call content of P and M on November 2009, P and the call content of P and M are natural dialogueing M and A, such as joining M and A as a punishment, and whether or not N should be sold to a third party.

The discussion about the financing resolution method, etc. of KRW 20.5 billion leaked from the company, ② The discussion about the funding resolution method, etc. to solve this problem, including the following: (a) whether to make a fictitious payment by lending 10.5 billion won to the Defendants only twice a day; (b) whether to make a lump sum payment by raising funds equivalent to KRW 20.5 billion; (c) how to raise funds by acquiring warrant certificates in connection with manipulation of market price prices; (d) how to process funds to 0; (b) how to immediately change the representative director if it is resolved with the highest payment; and (d) how to make a statement to 20.5 billion won prior to the investigation into this case, it is difficult to conclude that the perpetrator’s statement and statement to the effect that the perpetrator’s life had been delayed, as well as his statement and statement to the effect that it was a threat to the victim’s life, and that it was difficult to expect the victim’s statement and statement to the effect that the perpetrator’s statement were made in advance.

F) The Defendants kept without using the instant check in an amount equivalent to 18.5 billion won until August 24, 2009, and the Defendants are obliged to present it to the accounting officer on August 11, 2009, and bring about the Defendant’s check to N and returned it to N. However, it is difficult to believe that the O returned it to the Defendants without any measures even if they were to receive a refund of the said check.

G) Some statements that correspond to the facts charged in the instant case by M, P, and 0 are difficult to believe in light of the interests and circumstances as seen earlier, and are contrary to the aforementioned various objective circumstances and circumstances concerning the nature and appearance of the Defendants’ funds, and there is no credibility.

2) Ultimately, considering these circumstances comprehensively, even though there may have been some disputes about the size, time, method, etc. of the return of the amount of the capital increase in the hotel business room, it cannot be ruled out that the sum of KRW 2 billion borrowed on May 29, 2009 and KRW 16.5 billion borrowed from the Defendants for the purpose of the disguised payment, etc., of KRW 18.5 billion borrowed from the Defendants for the purpose of the disguised payment, etc., under an agreement with the Defendants, and therefore, it cannot be concluded that the check of this case was forced to the Defendants due to the threat of harm and injury to the Defendants.

C. Conclusion

Therefore, the facts charged in this case are not sufficient to acknowledge the guilty only with the evidence submitted by the prosecutor, and there is no other evidence to acknowledge this differently, and thus, the court shall render a verdict of innocence against the Defendants under the latter part of Article 325 of the Criminal Procedure Act, and publish the summary of the judgment against the Defendants under Article 58(2) of the Criminal

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

The presiding judge, the Korea Judge Judge;

Judges Kim Jae-hwan

Judge Maximum number of questions

1) The loan market refers to the fund borrowed in the form of a temporary loan from the bond company to use the funds for the pre-payment of the company's capital increase for new stocks and return the funds immediately after withdrawing the funds.

(ii) the means of the stock market that refers to investors who raise large-scale funds that have a great influence on the share price of the company;