Defendant

Stack-in-house

Law Firm KEL, Attorneys Lee Jae-hwan et al.

A defendant shall be punished by imprisonment for two years.

However, the execution of the above punishment shall be suspended for three years from the date this judgment becomes final and conclusive.

It shall order the defendant to provide community service service for 80 hours for welfare facilities.

Of the facts charged in the instant case, each embezzlement and occupational embezzlement are acquitted.

From October 26, 1995 to October 26, 2004, the Defendant, as the representative director of the victim Nonindicted Co. 1 Company (hereinafter referred to as “victim Nonindicted Co. 1”; from the acquitted part, “Nonindicted Co. 1 Company”; from March 26, 2005 to October 2005, the Defendant took overall charge of the management of funds, etc. to the actual manager of the victim Nonindicted Co. 1 Company.

1. The Defendant lent the Defendant’s name, Nonparty 5, a representative director, to enter into a lease agreement with the victim Nonindicted Company 1 and the victim Nonindicted Company 1, on the ○○ Parking Lot (Area 1 omitted) located in Dongjak-gu Seoul Metropolitan Government (Area 1 omitted) and △△△△ Parking Lot (hereinafter “instant parking lot”) located in the same address 2 omitted (area 323.2m2 and the above two parking lots, combined with area 323m2). As such, as prescribed in Article 398 of the Commercial Act, the Defendant had a business duty to request the board of directors to approve the above lease agreement, a director’s own trader, as well as to avoid any act of putting a fiduciary relationship with the company by setting a reasonable rental period and rent when leasing the company’s company’s property to another place of business, despite of the business duty, the Defendant

On October 7, 2004, in violation of the duties of the board of directors, a lease agreement was concluded to set a rental period of five years for a period of less than the ordinary profit of the victim non-indicted company 1, which is less than the profit that the parking lot of this case gains every month, at the time, and to set the rent amount of two million won, which is less than the profit that the victim non-indicted 1 suffered, thereby obtaining the amount of property benefits and causing damage equivalent to the same amount.

2. The Defendant, as the representative director of the victim Nonindicted Company 1, is keeping the funds of Nonindicted Company 1 in custody for business purposes;

On October 25, 2004, the Korean National Bank, located in the Dong-dong branch of Yongsan-gu Seoul Metropolitan Government, withdrawn the sum of KRW 74,510,000,000,00 for the deposits and interests of the victim non-indicted 1 owned by the victim non-indicted 1, under the pretext of repaying the loans borrowed by the victim non-indicted 3, who is the father of the defendant,

3. Although the Defendant had a duty to use four copies of the victim Nonindicted Company 1’s corporate card for the victim Nonindicted Company 1 and to return it to the victim Nonindicted Company 1 and not use it any longer, the Defendant had a duty to return it to the victim Nonindicted Company 1.

On January 10, 2005, in violation of its duties at the offline store located in the Gangnam-gu Seoul Metropolitan Government, the payment of 500,000 won for the purchase price by the defendant's awareness that is unrelated to the business activities of the victim non-indicted 1 with the corporate bank card (the card number omitted) in violation of his duties, as well as the payment of 88,936,251 won in total with the corporate card for personal purposes from January 6, 2005 to December 6 of the same year by settling the amount of 88,936,251 won as shown in the attached list of crimes (1). It means the above victim's financial gain and loss equivalent to the same amount as the above victim.

1. Partial statement of the defendant;

1. Legal statement of the witness Nonindicted 5

1. Each statement made by Nonindicted 17 of the witness’s trial records in the second and third trial records in the witness Nonindicted 2 and fourth trial records in the witness Nonindicted 15, 19, and 10 trial records in the witness’s trial records in the second and third trial records.

1. Each statement made by the witness Nonindicted 2 and 15 in the third trial record of the case No. 2007 Godan6960 at this court

1. A report on investigation (a accompanying report, such as a director general, etc.);

1. A complaint, complaint, corporate register, real estate register, bond evaluation report, loan or payment status, receipts, details of loss, return on rent, etc. arising from a parking lot unfair contract, MMF withdrawal data, copy of passbook, copy of each transaction statement (Evidence No. 74,84 of 2008Dahap1040), copy of each substitute sheet (Evidence No. 75,77 of 2008Dahap1040), copy of each transaction statement (Evidence No. 75, 77 of the evidence list of 2008Dahap1040), copy of each account transaction statement, copy of each account bank, copy of each account ledger, copy of each citizen bank, copy of each receipt, application for change registration and minutes of general meeting of shareholders (Evidence No. 85 of the evidence list of 2008Gahap1040 of the case), copy of information provision statement statement, copy of each

1. Determination as to the assertion that the indictment in the case of 2008 Gohap1040 is unlawful

A. The assertion

According to the Prosecutor’s Office Act, only the complainant or accusers may file an appeal against non-prosecution disposition (the former part of Article 10(1) and the main sentence of Article 10(4)). In addition, according to Article 91(3)1 of the Rules on the Affairs of the Prosecutors’ Office, in a case where a person who is not the appellant has filed an appeal, the head of the High Prosecutor’s Office shall dismiss the appeal by decision. However, the filing of an appeal against non-prosecution disposition by the prosecutor on November 30, 2007 concerning the facts charged in the above case is an individual who is not the victim non-indicted 1, the complainant, and thus, the head of the High Prosecutor’s Office has to dismiss the appeal, even though he has to issue a second investigation order, which leads to the prosecution of the above case, and thus, the procedure for the filing of the appeal violates the provisions of the Act.

B. Determination

According to the statement in the written appeal, the indication of the appellant in the column for formal entries in the written appeal or the sign of the written appeal is written by Nonindicted Company 1, but the formal entries in the written appeal are written by Nonindicted Company 2, not the victim Nonindicted Company 1, and the complainant and the appellant can be found to be substantially the same. The reason for the appeal is as follows: “Nonindicted Company 1, a victim Nonindicted Company 1 (hereinafter “Appellant”)” was stated as “the appellant and the appellant are divided into “Nonindicted Company 2, a victim Nonindicted Company 1, a defendant,” and “an appellant.” In particular, in three pages of the written appeal, the appellant states that “* there is no suspicion of the charges as to the part of paragraphs 5 and 11, among the facts against which the prosecutor prepared a written opinion by the Prosecutor Prosecutor, the appellant must recognize and waive the original disposition by the prosecutor, and thus, the representative director of the written appeal cannot be seen to be unlawful at the time of the prosecution and the defendant’s defense counsel’s second appeal.

2. Determination on criminal facts under paragraph (1)

A. The assertion

Although the instant parking lot was directly operated by the victim Nonindicted Co. 1, however, many of the incidents, such as vehicle damage, etc., while when deducting various expenses from monthly sales, the victim Nonindicted Co. 1 could not actually raise profits. Accordingly, the Defendant was in fact leased KRW 2 million to Nonindicted Co. 5, who was the Defendant’s husband and the victim Nonindicted Co. 2, a major shareholder of Nonindicted Co. 1, at the time of the instant parking lot, who had aided the Defendant’s home at the time of the instant parking lot. Accordingly, the Defendant did not incur any damage to the victim Nonindicted Co. 1 by violating his duties.

B. Determination

1) In case of the crime of breach of trust, the term "when the act of breach of trust causes property damage" includes not only a real damage but also a case where the risk of actual damage to property has been caused, and the existence or absence of property damage should be understood from an economic point of view without legal judgment in relation to the property condition of the principal. Therefore, even if the act of breach of trust is null and void by legal judgment, if the act of breach of trust actually causes property damage to the principal or causes risk of actual damage to property, it constitutes a crime of breach of trust (see Supreme Court Decision 94Do3013 delivered on December 22, 1995, etc.).

2) First, as to whether the Defendant is the actual lessee of the instant parking lot, the following circumstances acknowledged by the evidence as seen earlier, namely, the Defendant’s statement to the effect that the Defendant did not enter into a lease agreement on the instant parking lot with the victim Nonindicted Party 1, in light of the relationship between the Defendant and Nonindicted Party 5, Nonindicted Party 5’s attitude of statement, and the content of the statement, etc., the Defendant could sufficiently trust the Defendant’s statement. ② The Defendant was the Defendant or the Defendant’s driver, most of the persons who received parking fees from the instant parking lot employees after the instant parking lot lease agreement was concluded, and brought about the said parking ticket to the bank or Maart purchased by depositing the parking ticket of the instant parking lot into the bank account in the name of Nonindicted Party 5 was the Defendant, not Nonindicted Party 5.

3) Furthermore, the following circumstances acknowledged by the first examination protocol of the prosecution against the defendant, namely, ① the defendant, on his own account, concluded a lease contract with the victim non-indicted 1, whose representative director was the representative director, despite having to obtain approval from the board of directors pursuant to Article 398 of the Commercial Act, the defendant intentionally avoided the lease contract from his own name despite having to obtain approval. ② The contents of the lease contract did not set the lease deposit at all, unlike ordinary cases, and the victim non-indicted 1 stated that the rent was less than the profit that the non-indicted 1 would have gained from operating the parking lot of this case at the time (the defendant stated at the prosecutor's office that the profit gained from the parking lot of this case would be about 3.5 million won, and the defendant stated at this court that about 4 million won would be able to gain profit from the parking lot of this case, and thus, the defendant did not clearly suffer losses from the defendant's occupational breach of trust and the defendant's losses from the defendant's occupational breach of trust (see, e.g., the defendant's losses from the defendant's occupational breach of trust). 2).

3. Judgment on the facts constituting the crime under paragraph (2)

A. The assertion

In around 2004, Nonindicted 2 requested the Defendant to secure additional cash in borrowing KRW 1.75 million from the victim Nonindicted Company 1. After that, the Defendant paid the Defendant the Defendant’s debt to Nonindicted Company 3 by borrowing KRW 70 million from the victim Nonindicted Company 1, and the Defendant agreed that the Defendant paid the Defendant the Defendant’s debt to Nonindicted Company 1 by borrowing KRW 70 million from the victim Nonindicted Company 1, and by paying the purchase price to Nonindicted Company 1, the Defendant and Nonindicted Company 2, who purchased both the land of approximately 24.4m2 and the 4m2 on that ground (hereinafter collectively referred to as “each of the instant real estate”). Accordingly, the Defendant did not have agreed that the Defendant paid the Defendant the said debt to Nonindicted Company 2 by offsetting the Defendant’s debt.

(b) basic facts;

Based on the above evidence, the following facts may be acknowledged.

1) On May 18, 2004, the victim non-indicted 1 sold each of the instant real estate to Non-indicted 6 in KRW 1.27775 million. At the time, Non-indicted 6 was the minor of Non-indicted 6 and the Defendant and Non-indicted 2 entered into a sales contract as his agent.

2) Meanwhile, the Defendant entered into a pre-sale agreement with Nonindicted 2, who was a minor Nonindicted 6 on the same day, to purchase the instant real estate from Nonindicted 6 for KRW 87.5 million. As to each of the instant real estate on the 24th day of the same month, the registration of ownership transfer in the name of Nonindicted 6 and the provisional registration of ownership transfer claim in the name of the Defendant based on the pre-sale agreement were completed.

3) On May 18, 2004, KRW 705,736,605 in the name of Non-Indicted Party 1’s national bank account (Account Number 1 omitted), and KRW 96,124,905 in the name of the Defendant on June 11, 2004, respectively.

4) On July 2, 2004, the Defendant withdrawn KRW 800 million from the above citizen bank account, and deposited it in the victim non-indicted 1's beneficiary certificate investment trust account (Account No. 2 omitted) opened at △△ branch of the National Bank of Korea, Defendant's home, but on July 5, 2004, redeemed KRW 100 million, and KRW 300 million on August 12, 2004, respectively. On August 13, 2004, the Defendant withdrawn KRW 402,274,377 upon cancelling the above account. The Defendant voluntarily stated the above KRW 100 million in the passbook of the above account that the Defendant paid KRW 100 million to the victim non-indicted 1's account document. On the other hand, the account document of the victim non-indicted 1 stated that the victim paid KRW 100 million as the increase in the lease deposit amount of the Dongjak-gu Seoul (hereinafter address No. 3 omitted) land leased by the non-indicted 2.

5) On August 13, 2004, the Defendant deposited KRW 702,274,377, out of the money withdrawn as of August 13, 2004, the remainder 702,274,377, excluding the increase in lease deposit, in the beneficiary certificates investment trust account (Account 3 omitted) of the victim non-indicted 1 corporation established at the Lee villageB Center of the National Bank. On September 10, 2004, the Defendant cancelled the account on September 10, 200 and withdrawn KRW 703,773,250, and immediately purchased the bonds with repurchase agreement of the national bank (interest rate 3.610%, maturity date, December 10, 2004) in the name of the victim non-indicted 1 corporation, and received KRW 703,773,575,75,75,700 deducted the principal and corporate tax before the maturity date.

6) On October 25, 2004, the Defendant paid KRW 700,000 to Nonindicted 3, his father, KRW 700,000 (Chapter 7 of KRW 100,000), and Nonindicted 3 deposited the above KRW 700,000 in his national bank account (Account Number 4 omitted) on October 27, 2004.

7) Meanwhile, as the incombustibility between the Defendant and the wife deepens, Nonindicted 2 held a temporary general meeting on October 19, 2004 and passed a resolution of the general meeting of shareholders refusing to approve the reappointment of the Defendant. Accordingly, the Defendant retired on October 26, 2004.

8) On July 2, 2004, the account books of the victim non-indicted 1 company stated that the defendant withdrawn KRW 800 million from the national bank account (Account No. 1 omitted) account on July 2, 2004, and deposited in the beneficiary certificate investment trust account (Account No. 2 omitted) of the victim non-indicted 1 company, but redeemed KRW 100 million on July 5, 2004, and used KRW 100 million as KRW 100 million for the increase in the lease deposit against the non-indicted 2. However, on the other hand, on December 31, 2005, the account books of the victim non-indicted 1 company on December 31, 2005, the defendant borrowed the deposit of KRW 700 million of the victim non-indicted 1 company on December 31, 2005.

C. Determination

위 기초사실 및 앞에서 든 각 증거를 종합하여 인정되는 다음과 같은 사정들, 즉 ① 피고인이 2004. 10. 25. 피해자 공소외 1 회사의 계좌에서 704,510,775원을 인출하였는데, 그 당시는 이미 피고인이 공소외 2에 의하여 피해자 공소외 1 회사의 대표이사에서 사실상 해임하기로 하는 주주총회 결의가 있은 이후이고, 피고인이 피해자 공소외 1 회사의 대표이사에서 퇴임하기 바로 전날인 점, ② 피고인은 위 금원 중 7억 원을 공소외 3에게 지급하였고, 공소외 3이 2004. 10. 27. 자신의 계좌에 입금하였는데, 공소외 3은 그 당시 피고인이나 공소외 2는 별론으로 하고 피해자 공소외 1 회사에 대하여는 아무런 채권이 없었던 점, ③ 이에 대하여 피고인은, 공소외 3이 공소외 2에게 이 사건 각 부동산의 매매대금으로 사용된 7억여 원을 빌려주었는데(공소외 6 명의로 입금된 자금이 바로 공소외 3이 빌려주었다는 자금이다), 피고인과 공소외 2가 2004. 6.경 위 7억 원의 변제방법에 대하여 논의하던 중 공소외 2가 피해자 공소외 1 회사로부터 7억 원을 차용하여 공소외 3에게 한꺼번에 변제하되, 그 변제시기는 추후 자금 상황을 고려하여 2004. 10.경에 변제하기로 하였고, 공소외 2의 피해자 공소외 1 회사에 대한 차용금은 공소외 2가 피해자 공소외 1 회사로부터 받을 임대료 채권과 상계하는 방식으로 변제하기로 하는 내용으로 합의를 마쳐 그와 같은 내용의 추가 약정서(수사기록 808쪽)를 피해자 공소외 1 회사의 직원인 공소외 18(2004. 7.경 피해자 공소외 1 회사에서 퇴사하였다)로 하여금 작성하게 하였다고 변소하고 있는바, ㉠ 피고인이 피해자 공소외 1 회사의 예금계좌에서 금원을 인출하여 2004. 7. 2. 및 2004. 8. 13. 자금을 맡긴 MMF(Money Market Funds) 수익증권투자신탁과 달리 피고인이 2004. 9. 10. 매수한 환매조건부채권은 그 만기 전에 해약할 경우에는 해약수수료 때문에 약정된 이자보다 훨씬 낮은 이자만 받을 수 있는데, 피고인이 2004. 10.경 위 금원을 변제할 예정이면서도 만기가 2004. 12. 10.인 위 채권을 매수한 것은 통념상 쉽사리 납득하기 어려운 사정, ㉡ 위 추가 약정서에서 공소외 2가 피해자 공소외 1 회사로부터 차용하는 금원은 7억 370만 원인데, 피고인이 공소외 3에게 지급한 금원은 7억 원이고, 이는 당초 공소외 3이 공소외 2에게 빌려주었다는 705,736,605원과도 일치하지 아니하는 사정, ㉢ 공소외 6 명의로 피해자 공소외 1 회사의 계좌에 입금된 금원은 705,736,605원인 공소외 6 명의의 증권계좌에서 이체된 금원인데, 그 금원이 공소외 3의 자금이라고 볼 만한 아무런 자료도 피고인이 제시하지 않고 있는 사정, ㉣ 피고인은 관련 민사소송에서는 공소외 3이 7억 원의 변제를 요구하여 예금을 인출하여 변제한 것이라는 취지로 주장한 바 있고, 수사기관에서는 회사자금이 정기예금으로 가입되어 있어 만기가 될 때까지인 2004. 10. 25.경까지 기다린 것이라고 진술하는 등 이 부분에 대한 진술이 일관되지 아니한 사정 등을 종합하면, 피고인의 위와 같은 변소를 쉽사리 믿기 어려운 점, ④ 피고인의 2004. 10. 25. 출금행위에 관련하여 피해자 공소외 1 회사는 아무런 회계처리를 한바 없고(피고인이 2005. 3. 25. 이후 피해자 공소외 1 회사의 사장으로 근무하면서도 이에 대하여 올바른 회계처리를 하지 아니하였다), 2005년도 회계장부에는 오히려 피고인이 2005. 12. 31.경 피해자 공소외 1 회사로부터 위 7억 원을 차용한 것으로 기재되어 있는 점(피고인은 공소외 2가 임의로 회계장부를 조작하여 위와 같은 내용으로 회계장부의 정리가 이루어졌다고 주장하나, ㉠ 공소외 2 측이 임의로 회계장부를 정리하였다면, 위 7억 원 이외에 피해자 공소외 1 회사가 피고인에게 보낸 2005. 12. 20.자 내용증명에서 피고인에게 원상회복을 요구한 다른 항목의 금원들도 함께 대여금으로 정리하였을 것으로 보이는데, 위 7억 원 부분만이 대여금으로 정리되어 있는 사정, ㉡ 피고인이 민사소송에서 제출한 공소외 8의 진술이 담긴 각 인증서에 의하면, 피고인, 공소외 2, 10 세무사가 2006. 3. 31.만나 2005년도 회계장부를 정리하던 과정에서 피고인과 공소외 2가 위 7억 원을 피고인의 대여금으로 정리하기로 합의하였거나 최소한 피고인의 급여나 법인카드 사용금액 등과는 달리 위 7억 원을 피고인의 대여금으로 정리하는데 별다른 이의를 제기하지 아니한 것으로 보이는 사정 등에 비추어 위 주장을 선뜻 받아들이기 어렵다), ⑤ 피고인이 공소외 3에게 7억 원을 지급한 뒤에도 이 사건 각 부동산에 관하여 경료된 공소외 6 명의의 소유권이전등기와 피고인 명의의 소유권이전청구권가등기가 말소되지 아니한 점 등을 종합하면, 피고인이 업무상 보관 중이던 피해자 공소외 1 회사의 예금 및 이자 합계 7억 451만 원을 횡령한 사실을 충분히 인정할 수 있으므로, 피고인 및 변호인의 이 부분 주장은 받아들이지 아니한다.

4. Judgment on the facts constituting the crime under paragraph (3)

A. The assertion

Since the Defendant used the corporate card with the consent of Nonindicted 2, which actually controlled the victim Nonindicted Company 1, the Defendant did not have the intent to commit a breach of trust.

B. Determination

As the existence of a separate legal personality cannot be the same person, even if a shareholder or a major shareholder is one person, a crime of breach of trust is established in cases where an executive officer of a company has committed an act of breach of duty to inflict damage on his own stock company. If an act of violation of his duty causes damage to the company by acquiring property benefits or letting a third party obtain them, it shall be established. It shall not be deemed that there was no damage to the company of his own own, or there was no intention to commit a crime of breach of trust (see Supreme Court Decision 2004Do7027, Nov. 9, 2006, etc.). Since the defendant used the corporate card for personal purposes without returning the corporate card after his retirement from the representative director of the victim non-indicted 1 company, and again used the corporate card for personal purposes unrelated to the victim non-indicted 1 company, even if the non-indicted 1 corporation substantially controlled the victim non-indicted 1 company, even if the defendant consented to the voluntary use of the card by the defendant and his defense counsel.

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

Articles 356 and 355(2) of the Criminal Act (the point of occupational breach of trust and the choice of imprisonment), Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 356 and Article 355(1) of the Criminal Act (the point of occupational embezzlement)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes with punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) with the largest punishment]

1. Discretionary mitigation;

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

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following factors shall be considered as being favorable for the Sentencing)

1. Social service order;

Article 62-2 (1) of the Criminal Act, Article 59 of the Act on Probation, etc.

In light of the fact that not only embezzled the amount of 700 million won or more which the defendant had been in custody in the course of his business but also served as the representative director or the president of the victim non-indicted 1, and thus, the quality of each of the crimes of this case that have inflicted considerable damage on the company by violating his duties is not good, and that the defendant has not yet taken any measures for the recovery of damage against the victim non-indicted 1.

However, there is still no history of punishment for the defendant, and the victim non-indicted 1 Company has been in fact under control of Non-indicted 2, who is the husband of the defendant, from around 200 to around 200, and the defendant maintained his livelihood with the defendant, such as the benefits received from the victim non-indicted 1. However, it appears that Non-indicted 2 could be prevented from committing the crime of embezzlement of this case in the manner that it would be forced by the victim non-indicted 1 to drive away by force from the victim non-indicted 2. The defendant is continuing a divorce lawsuit with Non-indicted 2, the defendant appears to have developed the company in good faith while working for the victim non-indicted 1 as before the crime of this case is committed, taking into account various sentencing conditions specified in the trial process of this case, the sentence shall be determined as ordered, the execution of the sentence shall be suspended, but community service shall be ordered to have more reflect time.

1. Facts charged;

The Defendant is the representative director of Nonindicted Company 1 from October 26, 1995 to October 26, 2004, and the actual manager of Nonindicted Company 1 from March 2005 to October 2005 to the actual manager of Nonindicted Company 1.

[208Gohap1040]

A. A. On March 2005, the Defendant, the representative director of Nonindicted Company 1, was paid only KRW 10 million in return for Nonindicted Company 1’s work, but around July 2005, the Defendant embezzled KRW 210 million in total from May 2005 to October 2005, as shown in the attached Table of Crimes (2), when he kept the funds of Nonindicted Company 1 with the president of Nonindicted Company 1 as the president of Nonindicted Company 1 and voluntarily used KRW 10 million in the difference for personal use.

B. 1) Around October 26, 2004, the Defendant retired from office as the representative director of Nonindicted Company 1, but could file a claim for retirement benefits only after the resolution of the general meeting of shareholders on the payment of retirement allowances, as prescribed by the articles of incorporation, but was in custody with the president of Nonindicted Company 1 as the president of Nonindicted Company 1, the Defendant withdrawn the total amount of KRW 43,674,00 as retirement allowances from April 19, 2005 to June 8, 2005, and embezzled it for personal use.

2) While the Defendant kept the funds of Nonindicted Company 1 as the president of Nonindicted Company 1, on June 8, 2005, he worked in spite of the fact that Nonindicted Company 9, who was the Defendant’s misleading, did not actually worked in Nonindicted Company 1, and disposed of as if he retired on or around May 7, 2005, and then withdrawn KRW 61.99 million as retirement allowance in the name of Nonindicted Company 9 and embezzled it for personal use.

[208Gohap1159]

C. On June 17, 2003, the Defendant withdrawn KRW 82,628,030 from the office of Non-Indicted Party 1 located in Dongjak-gu Seoul ( Address 1 omitted) for the short-term loan to Non-Indicted Party 2, the Defendant’s husband, and kept it for business purposes. Around that time, the Defendant arbitrarily used for the Defendant’s children’s expenses of studying abroad, etc. and embezzled them for the purpose of studying abroad, etc., as shown in the annexed crime list (3) from that time until October 27, 2004, the Defendant embezzled KRW 379,026,465 for the total amount of KRW 379,06,465 for the purpose of using

D. Around October 2002, the Defendant embezzled the said car by failing to return it without any justifiable reason, even though he returned the said car to Nonindicted Company 1, while he was in custody for Nonindicted Company 1 while using one IMB car at the above office (vehicle number omitted) at the market price of KRW 31 million.

E. Around January 2005, the Defendant received KRW 1,365,00 from the above office for the benefit of Nonindicted 13 and embezzled the Defendant’s voluntary use for his personal use at around that time, and embezzled KRW 14,150,000 from that time until December 2006, as indicated in the attached list of crimes (4).

F. Around March 4, 2005, the Defendant withdrawn KRW 10,000,000 from the above office as employee’s salary and kept it for business purposes, and around that time, embezzled the Defendant’s voluntary use for his personal use and embezzled it, and then embezzled the total of KRW 17,503,710 from October 17, 2005 to October 17, 2005, as shown in the attached List of Crimes (5).

2. Basic facts

Review of the records of this case reveals the following facts.

A. Nonindicted Co. 1 is a company established for the purpose of real estate leasing business, which has no particular profit in addition to the profit from the lease of the real estate owned by it. The shares issued are 62.07% by Nonindicted Co. 2, 70% by the Defendant’s pilot, and 7.03% by other Nonindicted Co. 2’s family members, etc. (i.e., 40% out of the shares of Nonindicted Co. 2’s co. 2’s co. 62.07% under the name of the Defendant, and (ii) the fact that Nonindicted Co. 2 was trusted in trust to the Defendant in a lawsuit for the transfer of

B. Around October 26, 1995, the Defendant was appointed as the representative director of Nonindicted Company 1 and was on duty as the representative director of Nonindicted Company 1. Around October 26, 2004, the Defendant was de facto dismissed in a manner that was rejected by Non-Indicted 2. After that, Non-Indicted 2 was appointed as the representative director of Nonindicted Company 1 on November 10, 2004.

C. After being de facto dismissed by Nonindicted 2, the Defendant was not allowed to participate in the management of Nonindicted Company 1 as his access by Nonindicted Party 2 was restricted by Nonindicted Party 2. Nonindicted Party 2 granted the Defendant the position that he is the president on March 25, 2005, and had Nonindicted Party 1 conduct the business of Nonindicted Party 1, and he handled all of the business of Nonindicted Party 1 as the president from around that time until October 2005.

D. On the other hand, since the Defendant was living separately with Nonindicted Party 2 on November 2000, the Defendant, alone, raises three children, and currently is pending in the divorce lawsuit due to Nonindicted Party 2’s divorce claim.

3. The assertion and judgment

A. As to embezzlement related to salary and bonus

1) The defendant and his defense counsel's legal counsel

The Defendant served as the president of Nonindicted Company 1 under the consent of Nonindicted Party 2, who is the representative director of Nonindicted Party 1, and received the instant benefits, etc. set in return for his service with the approval of Nonindicted Party 2. Therefore, the Defendant did not have embezzled the money owned by Nonindicted Party 1 for the purpose of paying wages, etc.

2) Determination

이 사건 기록에 의하여 인정되는 다음과 같은 사정들, 즉 ① 피고인은 2004. 10. 26. 공소외 1 회사의 대표이사에서 퇴임하였으나, 2005. 3. 25.경 개최된 공소외 1 회사의 주주총회에서 이사로 선임되었고, 그 무렵부터 공소외 1 회사의 대표이사인 공소외 2의 동의 아래 공소외 1 회사의 사장으로 근무하면서 공소외 1 회사의 제반업무를 실제로 처리하였던 점, ② 공소외 2는 그 무렵 피고인의 급여를 1,000만 원으로 정한다는 내용의 품의서에 직접 결재를 하였고, 나아가 자필로 ‘◇회장(공소외 2를 의미한다) 급여는 ☆회장(피고인을 의미한다) 구좌로 자동이체되게 할 것’이라는 기타 사항을 기재하였던 점, ③ 공소외 2는 횡령행위 등을 이유로 피고인을 2004. 10.경 대표이사에서 해임하였다고 주장하고 있는데, 이와 같은 이유로 피고인을 대표이사에서 해임하면서 직접 대표이사에 취임한 공소외 2가 피고인이 이 부분 공소사실 기재와 같이 급여 및 상여금 명목의 금원을 지급받음에 있어 아무런 제한도 가하지 않았다는 것은 쉽게 납득하기 어려운 점, ④ 공소외 2는 그가 대표이사로 있던 공소외 12 주식회사와 피고인과의 소송 등에서 공소외 1 회사가 피고인에게 2,000만 원씩을 급여로 지급하였다는 취지로 진술한 적이 있는 점 등을 종합하면, 검사가 제출한 증거들만으로는 피고인이 자신의 급여나 상여금 내지 공소외 2의 상여금 명목으로 공소외 1 회사 소유의 금원을 횡령하였다고 인정하기에 부족하고, 달리 이를 인정할 만한 증거가 없다.

B. As to embezzlement related to retirement pay

1) The defendant and his defense counsel's legal counsel

There was no fact that the Defendant participated in the calculation of retirement allowances. The Defendant and Nonindicted 9 merely received retirement allowances calculated by a certified tax accountant. Therefore, there was no fact that the Defendant embezzled the money owned by Nonindicted Company 1 as retirement allowances.

2) Determination

The following circumstances acknowledged in the records of this case, namely, ① the Defendant was appointed as the representative director of Nonindicted Company 1 on October 26, 1995, but retired on October 26, 2004. Nonindicted Company 9 was appointed as the director of Nonindicted Company 1 on May 27, 199, and retired on May 7, 2005. ② Nonindicted 10, who was in charge of Nonindicted Company 1’s business such as reporting of corporate tax, was requested by the Defendant and Nonindicted 9 to calculate the amount of tax related to Nonindicted Company 1’s retirement pay. At that time, Nonindicted Company 1 had already been in charge of Nonindicted Company 1’s retirement pay from Nonindicted Company 1 to Nonindicted Company 2’s general meeting of shareholders; ③ Nonindicted Company 1 was planned to pass the retirement pay from Nonindicted Company 1 to Nonindicted Company 3 under the direction of Nonindicted Company 1’s general meeting of shareholders, and ③ Nonindicted Company 10 was not subject to the Defendant’s dismissal of the amount of tax related to Nonindicted Company 2’s retirement pay from around 15, respectively.

[208Gohap1159]

C. As to Nonindicted 2’s occupational embezzlement in relation to short-term loans

1) The defendant and his defense counsel's legal counsel

This part of the short-term loan is the money lawfully borrowed from Nonindicted Company 1 in accordance with Nonindicted Company 2’s order to use it for the payment of taxes imposed on Nonindicted Company 2, expenses for studying children, etc., and accounting is recorded with the same content. Therefore, the Defendant did not arbitrarily use it for personal purposes.

2) Determination

In full view of the following circumstances acknowledged by the records of this case, ① the money indicated in the separate sheet (3) of the crime list (hereinafter “short-term loan”) is deemed to have been borrowed by Nonindicted 2. The amount of money indicated in the separate sheet (hereinafter “Nonindicted 2”) was KRW 1 billion on March 2, 2004, and KRW 750 million on April 19, 2004, which was normally accounted for as a short-term loan to Nonindicted 1’s account books in 2003 and 204, and the remaining amount of money, other than the above KRW 1.750 million, was collected from Nonindicted 2’s private loan and the Defendant’s private loan to Nonindicted 2 for the short-term loan to Nonindicted 1, 205, and there was no other evidence that was used by Nonindicted 2 in the separate sheet (hereinafter “Nonindicted 1, 200,000 won, which was found to have been embezzled by Nonindicted 2’s representative director prior to the appointment of Nonindicted Company 1 as the above representative Director.

D. As to occupational embezzlement related to automobiles

1) The defendant and his defense counsel's legal counsel

Defendant did not have received notification of dismissal from Nonindicted Company 1, and at the time of the instant case, the Defendant did not intend to obtain unlawful acquisition.

2) Determination

The following circumstances acknowledged by the records of this case, namely, ① the defendant retired from the representative director of Nonindicted Company 1 on October 26, 2004, but was appointed as a director at the general meeting of Nonindicted Company 1 on or around March 25, 2005, and thereafter worked as the president of Nonindicted Company 1 with the consent of Nonindicted Company 2, the representative director of Nonindicted Company 1, from around that time. ② Meanwhile, Nonindicted Company 2, on the one hand, stated in the letter of goods on the defendant’s salary, etc., that “vehicle is still in use (including the current vehicle number omitted)” and had the defendant continue to use the non-indicted 1’s vehicle (including the vehicle number omitted), which was used from the previous time. ③ Nonindicted Company 2, the representative director of Nonindicted Company 1, could not be deemed to have unilaterally prevented the defendant from attending the office through his employees around October 2005, and there was no evidence to deem that the defendant lawfully dismissed or notified the defendant at the general meeting of shareholders of this case on or around 200 years 200.

E. As to the occupational embezzlement related to the payment of Nonindicted 13

1) The defendant and his defense counsel's legal counsel

The payment of benefits to Nonindicted 13 was made upon Nonindicted 2’s request for registration of Nonindicted 13, the denied employee of Nonindicted 14, as an employee of Nonindicted 14, in order to additionally pay the benefits to Nonindicted 14, who was the employee of the ▽▽△△△△ Institute, the president of which was himself, on May 201. Even after Nonindicted 2 became unnecessary to pay additional benefits to Nonindicted 14, Nonindicted 13 was used as the expense of Nonindicted Company 1 in accordance with Nonindicted 2’s order, and there was no omission in the act of embezzlement, such as using it for personal purposes

2) Determination

In light of the following circumstances acknowledged in the records of this case, i.e., ① the Defendant started to work as the employee of Nonindicted Company 1 from May 2001 to pay the benefits to Nonindicted Company 13, ② Nonindicted 13 or Nonindicted 14 stated to the effect that the Defendant was paid the money in the name of Nonindicted Company 13 from May 2001 to May 2005; ③ Nonindicted 2 argued that the Defendant did not pay the money to Nonindicted Company 13 from January 2005 to Nonindicted Company 13 but began to withdraw the money under the name of Nonindicted Company 13; however, at that time, Nonindicted 2 was the representative director of Nonindicted Company 1; the Defendant could not be involved in Nonindicted Company 1’s business since he was dismissed from the representative director under the request of Nonindicted 2; ④ Nonindicted 13 withdrawn the money directly paid in the name of Nonindicted Company 13 and did not have any evidence to acknowledge the Defendant’s use of the money for the purpose of personal embezzlement or embezzlement.

F. As to occupational embezzlement such as employee pay

1) The defendant and his defense counsel's legal counsel

Each of the money listed in the annexed Table (5) does not constitute embezzlement of each of the money listed in the annexed Table (5) by the defendant as being lawfully used in accordance with the disbursement purpose or regardless of the defendant's expenses according to the approval of Nonindicted 2, the representative director at the time of the payment.

2) Determination

First of all, the following circumstances acknowledged by the records of this case regarding the Nos. 1 and 2 of the annexed crime list (3) are as follows: ① the defendant was prohibited from taking advantage of the fact that, around October 26, 2004, the defendant was retired from the representative director of the non-indicted 1's company from the office of the non-indicted 1 company until he was appointed from the regular general shareholders' meeting held on March 25, 2005, which was held on March 25, 2005, the non-indicted 2 could not participate in the work; thus, the above amount withdrawn on March 4, 2005 is deemed to have been withdrawn from the office of non-indicted 2's instruction or approval; ② The disbursement resolution on each of the above amount is legally recorded in the employees' wages and transportation expenses, and there is no evidence to acknowledge that the defendant embezzled this part of the amount.

Next, the evidence submitted by the prosecutor alone is insufficient to acknowledge that the defendant embezzled this part of the money, and there is no other evidence to acknowledge this differently, in full view of the following circumstances acknowledged by the records of this case, namely, ① the defendant denies the use of this part of the money, unlike other money, ② whether the defendant directly withdraws this part of the money and voluntarily used it for an individual purpose unrelated to the non-indicted 1 company, and there was no investigation into the use of the money.

4. Conclusion

Therefore, since each of the facts charged in the instant case constitutes a case where there is no proof of each crime, a not-guilty verdict is made pursuant to the latter part of Article 325 of the Criminal Procedure Act.

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

[Attachment]

Judge Han Jin-hun (Presiding Judge)