2017Gohap18 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Partial Misappropriation)

Authorized crime, occupational breach of trust), perjury

A

He/she shall file a prosecution for his/her status, and shall hold a trial for his/her status.

Law Firm B

C. Attorney C.

Law Firm D

Attorney E, F

October 25, 2017

A defendant shall be punished by imprisonment for three years.

Criminal facts

【Criminal Power】

On June 14, 2014, the Defendant was sentenced to two years of suspension of the execution of imprisonment with prison labor for violating the Labor Standards Act at the Suwon District Court on October 14, 201, and the judgment became final and conclusive on November 13 of the same year.

【Basic Facts】

The Defendant, as the representative director of G (hereinafter referred to as “G”), acquired KRW 70,00 (2.39% of the total issued and outstanding shares) of J (hereinafter referred to as “J”) in KRW 2.49,00,000 of the shares of the non-listed corporation, a company acquisition expert, around 2009. However, around May 2012, the Seocho Accounting Corporation, a company audit corporation, prepared the quarterly business report in 2012 and recognized the value of the shares as KRW 6,605,00, the value of the shares was assessed as KRW 2,393,395,000 as losses.

On the other hand, according to the relevant provisions of the Korea Exchange around March 2012 due to the continuous business profit reduction, G was designated as a management issue on the grounds that the continuous business loss incurred prior to the deduction of excess corporate tax 50% of the equity capital of the two business years during the previous three business years, and as such, the risk of delisting was clearly realized by recognizing the value of the J as the loss from damage to the value of the stocks for three consecutive years.

【Criminal Facts】

1. Occupational breach of trust due to high-priced acceptance of J stocks;

Around August 2012, the Defendant knew that H, who worked as the planning office at K, etc. operated by the Defendant, was planning to take over a listed corporation L(hereinafter referred to as “L”) and requested H to prevent the delisting from purchasing J’s shares at a high price, and H accepted it.

On November 2012, 2012, the Defendant was appointed as a vice president or a financial director of L to take over L and caused the company to be maliciously, the Defendant promoted the business to purchase the J shares of G operated by the Defendant in accordance with the agreement with H as above. H purchased the J shares at a reasonable price to prevent the delisting of G and ordered M to pay the price to G operated by the Defendant for advance payment even before the conclusion of the sales contract. However, H is the real owner who has taken over the management right of L. M is the vice president and financial director, and M is the vice president and financial director, and if the Plaintiff acquires the shares of other company by using the company’s funds, it is required to perform the business with the care of a good manager; the possibility of success in the business run by the company; the possibility of development of the company; the recent trading trend and immediately preceding transaction price of the relevant shares; and to prevent the company’s loss and to seek the company’s profit by thoroughly assessing its value.

Nevertheless, the Defendant ordered H to purchase the J shares at a high price as above, and H/M, etc., despite the fact that the sales contract was not actually concluded under the Defendant’s direction, however, transferred a total of KRW 2.1 billion from November 26, 2012 to December 17, 2012 with L company’s funds to G for the purchase of the said J shares as an active deposit. From December 27, 2012, a written contract was prepared to purchase the said J shares at KRW 4.3 billion between L and G for the period of up to December 27, 2012, around December 31, 2012, paid a total of KRW 4.3 billion as the purchase price of the shares in the attached list of crimes, such as remitting the remaining KRW 2.2 billion to G, etc.

As a result, the Defendant conspired with H and M to purchase the J shares as above, thereby having the Defendant gain pecuniary advantage in the amount of money in collusion with H and M, and thereby having L inflict a loss equivalent to the amount of money.

2. The value of the overseas voting tickets in G of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation 2) due to the purchase of the overseas voting tickets in the electronic voting period was not verified due to sale, etc., and L has no way to utilize it even if it purchased the above overseas voting tickets due to the lack of the overseas business network.

Nevertheless, the Defendant asked H to additionally support KRW 500 million for G’s transition. Accordingly, H, M, etc. violated their duties and decided to purchase the above overseas voting tickets from L’s standpoint, although there is no value to acquire and utilize the said overseas voting tickets, and around December 31, 2012, by paying KRW 500 million to G in the name of the said overseas voting right deposit for the said electronic voting period. Around December 31, 2012, the Defendant obtained property benefits equivalent to KRW 500 million in G, and suffered damage equivalent to the same amount.

3. A perjury;

around April 2012, the Defendant filed a complaint against H with the Seoul Mapo Police Station on the charge of embezzlement, etc., and H was not detained for embezzlement with the Seoul Western District Court around September 27, 2012. The gist of the facts charged in the instant case is that “H is still under the suspension of execution, and “H shall receive KRW 50 million out of the down payment of KRW 1 billion from the Defendant while deciding to accept the 0,000,000,000,000, out of KRW 1.5 million, which was entrusted by the Defendant, etc., and embezzled by discretionary disposal on or around January 31, 2012.”

On January 22, 2013, immediately after receiving help from H, the Defendant appeared as a witness of the Defendant in the embezzlement case No. 1928 of the Seoul Western District Court No. 407 of the Seoul Western District Court, and testified as follows.

First of all, the defendant testified that "the defendant would pay KRW 190 million to the company in the form of a monetary reward because the defendant has contributed to the successful sale of the shares held in G in recent years, and the defendant testified that "I would like to give up about KRW 1.9 billion to the company," and "I would like to give testimony to the question of "I would like to pay KRW 100 million to the company because the defendant has contributed to the interest of KRW 1.9 billion to the company because the defendant would have contributed to the interest of KRW 1.9 billion in the claim to be received from the witness," and the defendant testified that "I would like to answer the question of "I would not work as the head of the planning office operated by the witness."

In addition, the defendant testified to the question of "When the defendant sells the company's assets at any time from November to the end of 2012", and "It is necessary to sell the company's shares at KRW 2.4 billion at the end of 2009, and the defendant testified to "I give testimony to the question of "We now have given my testimony to "I would have sold the company's assets at the end of 2012" and "I would like to say that I would have sold the company's shares at KRW 4.3 billion at the end of 2012, and I would like to conclude the whole statement of "I would like to contact I would have "I would like to sell the company's shares at the end of 200,000 won", and "I would like to give my testimony to the question of "I would like to do so."

As such, the Defendant testified to the effect that H had been engaged in the J transaction as the head of G planning office operated by the Defendant at the time of testimony, but fact H did not work as the head of G at the time of the testimony.

Accordingly, the defendant testified falsely after being sworn in court.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of the witness M, Q, R, S, T, U, H and N;

1. Each interrogation protocol of the prosecution of V, W, X;

1. Statement by each prosecutor's office of the Y, Z, AA, and AB;

1. Inquiries of inquiries into the family affairs accounting corporation, the certified transcript of corporate register, G's quarterly report in March 2012, L's quarterly report in January 2012, L's semiannual report in year 2012, L's semiannual financial statements, L's quarterly report in March 2012, and an assessment opinion by each outside appraisal organization;

1. Each investigation report and analysis report, details of each account, each statement of transactions, each certificate of balance, each recording book, each indictment, and each written judgment;

1. Previous convictions: Investigative inquiries into crimes and investigation records, each written judgment (such as violation of the Labor Standards Act and the Supreme Court Decision 2014Do879 Decided December 1, 2014, etc.);

Application of Statutes

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

Articles 356, 355(2), and 30 of the Criminal Act (as a whole, the crime of occupational breach of trust due to the high-priced acquisition of J shares, and the defendant does not have any status to manage another person's business, and thus, the defendant does not have any status to manage another person's business, the punishment prescribed in the proviso to Article 33 and Article 55(2) and (1) of the Criminal Act pursuant to the proviso to Article 50 of the Criminal Act, Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356, 355(2), and 30 of the Criminal Act, Articles 152(1) of the Criminal Act (including the crime of occupational breach of trust due to the purchase of overseas voting tickets

1. Handling concurrent crimes;

The latter part of Article 37 and Article 39(1) of the Criminal Act

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, Article 50, and the proviso of Article 42 of the Criminal Act [Aggravation of concurrent crimes with the punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust

Judgment on the argument of the defendant and defense counsel

1. As to occupational breach of trust due to the high-priced acceptance of shares as set forth in paragraph (1) J

A. Summary of the defendant's assertion

The Defendant’s trading of shares with H, M, etc. (hereinafter “this case’s stock transaction”) does not constitute an act of breach of trust because it entered into a normal acquisition by transfer at a reasonable price. Moreover, it is difficult to compute the adequate amount of shares at the time of the instant stock transaction, and there is no proof of damages due to the act of breach of trust.

B. Relevant legal principles

In the context of breach of trust, property damage means a case where the representative director, etc. of a company inflicts property damage on the company in a comprehensive manner. As such, it is reasonable to deem that the amount of damage incurred by the company is equivalent to the difference between the market price and the sales price of the stocks of another company in a case where the company has made the company buy the stocks of the other company at a higher price. In addition, in the case of trading unlisted stocks, the market price should be evaluated by considering the transaction price as the market price in a case where there is a normal example of transactions that reflects the objective exchange value properly. However, in the absence of such a transaction case, the relevant laws and regulations governing the evaluation method should always be determined by comprehensively considering the application of different standards according to the purpose of each enactment, and it shall not be determined reasonably by taking into account the situation of the relevant unlisted company and the trading party at the time of the transaction, the characteristics of the relevant business type, etc. (see, e.g., Supreme Court Decision 2005Do856, Apr. 29,

C. Determination

1) Whether the instant stock transaction was made at a reasonable price

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court, it is reasonable to view that the instant share transaction was conducted in collusion with the Defendant, H, and M, etc. for the purpose of preventing the delisting of G, and that the said price was calculated based on the necessary funds in G, and that the said transaction was conducted at a higher price than the actual share price.

① At the time of the instant stock transaction, AC accounting corporation evaluated the instant shares as KRW 4.163 billion to KRW 4.75 billion ( KRW 59,466 billion to KRW 67,925 per share). However, the accounting company of AC accounting corporation in charge of the said stock assessment stated at an investigation agency that L’s acquisition of shares was 4.5 billion under the premise that L’s acquisition of shares was made, and that L’s acquisition amount was 4.3 billion won, and L’s acquisition of shares was 73 billion to KRW 4.3 billion. The appraisal statement also states that L’s acquisition of shares was 4.3 billion won. Thus, the said appraisal statement is not a general share value assessment statement as to what is 70,000 won of J’s shares, but it is difficult to view that the amount was 730,000 won of J’s shares at the time of the instant appraisal as an objective appraisal statement as to whether the amount was determined by the appraisal request is reasonable.

② Also, the method of assessing the corporate value of AC accounting corporation is likely to vary depending on the method of discounting estimated future cash flow at discount rates. Specifically, the AC accounting corporation recorded large scale deficit and recorded the financial structure from the above AC accounting statement to the date of establishment of the J every year from the date of establishment of the AC accounting corporation, and stated that there is a possibility that liquidity risks may be reduced due to low sales increase and possibility of creating cash flow in a short term, but excluded from consideration of liquidity risks. Furthermore, while evaluating the above, AC accounting corporation confirmed data on the assertion of L on the source technology owned by J, but did not examine the validity and appropriateness of the assertion. Accordingly, the above evaluation statement has a realistic limitation to assessing the corporate value on the basis of data submitted by L, and there is a realistic problem that failed to verify the authenticity of the documents related to sales submitted by the company.

③ The witness N who worked in G from December 2008 to May 16, 2016, in this court, “AC accounting corporation that prepared the evaluation statement of the instant shares is recommended by G, and the materials related to J are also known to be provided by G to AC accounting corporation,” and the witness M also states to the same effect as the witness N’s statement. According to such a statement, AC accounting corporation’s stock value evaluation was likely to intervene in G’s opinion, it is difficult to view it as an objective evaluation of the appropriate stock price at the time.

④ From November 12, 2012 to July 2013, the instant stock transaction was conducted since L’s vice president and a financial director from November 12 to July 2013, 2013. Accordingly, L was aware that “this case’s stock transaction was conducted, and H was urged due to the cash borrowed from the Defendant,” and G was faced with the situation where it would be de-listing at the time of receiving the accounting audit at the end of the period of December 2012. In such a situation, G would be able to make profits from the sales proceeds because it would have been possible for L to make profits from the sales proceeds. Since H had already decided to purchase the instant stocks, L acquired L, this would have been aware that L would naturally acquire the instant stocks from L. As such, whether the actual stock price or not the price of the instant stocks was the first issue, and H would have continued to make the instant advance payment after the entry into a large amount of money between 3 billion to 3,500,000 won.

At the time, the purchase price of the instant shares is known to be determined by H in consultation with G. The stock transaction of the instant case was conducted in accordance with H’s instruction upon request by the Defendant, and the stock price is determined by the method of responding to the hostile width of G.

⑤ In addition, H stated in an investigative agency that “at the time, the Defendant would have become aware of the fact that she would have become aware of the fact that she would not refuse to refuse or take over the instant shares because she requested for assistance while she would have been able to de-listing (see, e.g., 3256-3257)” (see, e., e., Investigation Record). In this court, G operated by the Defendant was aware of the fact that it was difficult for the Defendant to take over her preemptive right bonds in the process of acquiring her management right at the time. around 2009, there was an acquisition of her preemptive right bonds during the process of acquiring her management right, and the Defendant was de-listing before the conversion of her preemptive right bonds, thereby causing damage to KRW 2.5 billion.” Accordingly, it would suffice for the Defendant to purchase the instant shares with a view to preventing an imminent pecuniary damage caused by H.

6) Of the instant share purchase price of KRW 4.3 billion paid by G from L, KRW 1.1 billion was paid to AE, and this KRW 1.1 billion was again paid to L. This appears to be the flow of an exceptional fund different from ordinary share purchase and sale. This also appears to be a situation supporting the fact that the instant share purchase and sale was carried out in an abnormal price and method for the purpose of preventing the cancellation of listing G.

2) Whether there is an example of normal transaction of J shares

As the Defendant asserts, the fact that 833,333 shares issued by J on April 29, 2014 was accepted from AF as KRW 24,99,990,000 per share (30,000 per share). However, the following circumstances acknowledged by the evidence duly adopted and investigated by the court, i.e., (i) the aforementioned transaction is likely to change its value due to a change in the status of the J’s business or financial status from November 2 to December 12, 2012, as the transaction was conducted after approximately one year and five months elapsed, and (ii) there is no evidence showing that AF acquired shares based on any of the criteria and could not be seen as constituting a normal transaction that reflects the objective value of the transaction, and there is no other evidence supporting the existence of a normal transaction.

3) Whether the instant stock transaction causes losses to L due to the instant stock transaction

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court, it is reasonable to view that the Defendant committed the instant stock transaction in collusion with H, M, etc. in order to prevent delisting as stated in the facts constituting the crime No. 1 in the judgment, and thereby, caused L to acquire the instant shares at a higher level than the actual value, thereby obtaining pecuniary benefits in the amount, and causing damage to L to the amount equivalent to the actual value.

① Around 2009, G acquired the instant shares in approximately KRW 2.4 billion. At the time of the instant stock transaction, the account book, which is an external auditor, stated in the audit report that the value of the instant shares was KRW 6,605,00,000, thereby recognizing the loss that was damaged by KRW 2,393,395,00 (see, e.g., Investigation Record 1648). In this court, U.S. witness of AG accounting corporation, which is a external auditor, stated in this court that “The adequacy of the acquisition value of the instant shares was doubtful, and J was an enterprise at a research stage where sales related to bio are rare, and thus, he could not present a reasonable opinion on the feasibility and appropriateness of the instant transaction.” As such, the financial situation of J at the time of the instant stock transaction is not good, it is also uncertain that the instant share acquisition was the occurrence of profits due to the instant share acquisition.”

② As examined below, even if it is difficult to compute specifically the adequate value of the shares at the time of the instant stock transaction, based on the method of assessing the shares under the Inheritance Tax and Gift Tax Act, which forms the basis of the instant facts charged, it appears that G did not appear to have any reason to purchase the shares at a lower price than the reasonable value at the time of acquisition of the shares at KRW 2.4 billion, and such amount appears to have been an appropriate value reflecting the objective exchange value of the shares at the time of the instant transaction. The instant stock transaction was conducted at KRW 2.4 billion by reflecting the aforementioned 2.4 billion increase in the value of the shares at KRW 4.3 billion, it is reasonable to view that it was not adequate to verify the cause of the rapid increase in the value of the shares as above at the time of the instant transaction. Rather, it is reasonable to view that the aforementioned increase in the value of the shares at KRW 1.4 billion by 2.4 billion per year, based on the annual increase in the value of the shares at KRW 1.4 billion to 2.4 billion per year after its establishment.5 billion.

③ In this court, the witness Q Q, who was a representative director of L, stated in this court that “J was almost every company with little sales, and the value on the account books of the instant stocks was 6 million won, and opposed to the acceptance of stocks without being assessed to an external institution, and that AH was retired on December 26, 2012.” The L, which was the regular director of L’s management support team, stated that Q resigned from the instant stock transaction by stating that “W, who opposed to the acquisition of the instant stocks with Q, but should be acquired by H,” was unreasonable notwithstanding the aforementioned opposition by the existing L management.” In the end, the Defendant and H appears to have been engaged in the instant stock transaction.

A As indicated in Paragraph 3 of the holding, at the Seoul Western District Court (Seoul Western District Court Decision 2012Ra1928) submitted a written opinion and a written application that “I have contributed to raising approximately KRW 1.90 million to G through the stock transaction in this case,” and it is reasonable to deem that from L’s perspective, the circumstance that “H, a purchaser of the instant stock transaction, acquired the instant shares in order to raise G’s profit, would result in deeming the damage to the amount of profit earned by G as a result of the instant stock transaction.”

5) Furthermore, as seen in the foregoing paragraph 1, considering that the instant share transaction was conducted to prevent the Defendant from delistinging the G, the acquisition price of the instant shares seems to have been determined based on the amount of the funds required in G, not on a reasonable price, as well as on the acquisition price of the instant shares, the Defendant appears to have fully recognized that the acquisition of the instant shares may cause damage to L by acquiring the instant shares.

4) Sub-committee

In full view of each of the above circumstances, 1) at the time of the Defendant’s transaction of the instant shares with H and M, the J, as an extraordinary funeral business, was an enterprise at the research stage where the net asset amounting to KRW 900,000 (the end of 2012) was almost rarely accrued, and thus, even if the Defendant acquired the shares of the said company, whether the said company would yield profits from its investment in the said company. 2) At around 2009, G acquired 2.39% of the J shares at KRW 2.49 billion, but there was a fact that G acquired the shares amounting to KRW 6,605,00 by deeming that there is no value thereafter, and (3) at that time, there was a bad financial situation due to frequent outflow of cash assets, and there was a lack of funds.

Nevertheless, the Defendant had L take over the instant shares at a higher level than the actual price in order to prevent G from delisting. It is reasonable to view that the Defendant conspired with H and M to take part in the act of occupational breach of trust.

Therefore, we cannot accept the above argument of the defendant and his defense counsel.

2. Regarding the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) through the purchase of overseas voting tickets in paragraph (2) of the judgment;

A. Summary of the defendant's assertion

L borrowed KRW 500 million for the down payment from G at the time of purchasing the overseas ticket for the electronic voting period from G. Since the above sales contract was cancelled, L's above loan obligation and the claim for the refund of down payment are offset and the damage did not occur as a result, it does not constitute an act of breach of trust.

B. Relevant legal principles

In the crime of breach of trust, "when the act of breach of trust causes property damage" includes not only a case where a real damage is done but also a case where a risk of property damage is caused, so long as the damage is caused later, it does not affect the establishment of the crime of breach of trust even if the damage is recovered later, and the judgment on the existence of property damage should be judged based on an economic perspective in consideration of the whole property condition of the principal. Thus, even if the act of breach of trust is null and void by a legal judgment, where the act of breach of trust in question causes a real damage or a risk of actual loss of property from an economic perspective, it constitutes a case where property damage is done (see, e.g., Supreme Court Decisions 9Do82, Nov. 24, 200; 201Do4857, May 14, 2004).

C. Determination

1) According to the evidence duly adopted and examined by the court, the following circumstances are acknowledged: (a) the Defendant and H agreed to trade the stock transaction in addition to the stock transaction in G after the instant stock transaction; (b) there was no way to apply the electronic voting period business at the time; (c) there was no internal opposition from L at the time, but there was no funds from the company at the time; and (d) H concluded a sales contract for the electronic voting period on the ground that H would not be a new purchase and sale after lending funds from G; and (c) the Defendant and H agreed to cancel the said sales contract, and set off the down the down payment amount of KRW 500 million and the down payment to be returned to L.

2) In full view of the legal principles as seen earlier, it is reasonable to view that the Defendant and H trading the overseas sales tickets of the electronic voting machine with no value to be utilized at all L in order to reduce the hostile width in G’s account books, and that L has already suffered property damage at the time when L paid the down payment in G. As asserted by the Defendant, even if L borrowed the above electronic voting machine sales contract amounting to KRW 500 million from G but borrowed the above overseas sales contract amount and offsets the above borrowed money and the claim for the refund of the down payment, it is reasonable to deem that the crime of occupational breach of trust does not affect the establishment of the crime of occupational breach of trust even if the Defendant claimed that L

Therefore, we cannot accept the above argument of the defendant and his defense counsel.

Reasons for sentencing

1. The scope of applicable sentences by law: Imprisonment for not less than three years nor more than 45 years;

2. Non-application of the sentencing criteria (a concurrent offense under the latter part of Article 37 of the Criminal Act);

3. Determination of sentence: Three years of imprisonment; and

The Defendant recognized part of the instant crime and reflects on the fact that each of the instant crimes is concurrent crimes under the latter part of Article 37 of the Criminal Act with regard to the violation of the Labor Standards Act, etc. for which punishment becomes final and conclusive, and thus, it is necessary to determine punishment in consideration of equity with the case to be adjudicated at the same time. In order to prevent the delisting of G operated by the Defendant, the Defendant used L’s funds of KRW 4 billion for a purpose contrary to the company’s interest and led the instant crime for a purpose contrary to the company’s interest, and the nature of the crime is very poor, and thus, requires a heavy punishment corresponding thereto. The Defendant provided a perjury at court for H in the extension of occupational breach of trust; the Defendant committed the instant crime, such as the Defendant, and H, which resulted in enormous property damage to many minority shareholders due to the instant crime such as the Defendant and H, and the damage was not recovered, and thus, the Defendant was subject to a strict punishment against the Defendant, and the Defendant has the power to be punished by imprisonment more than ten times, etc.

In addition, the judgment as ordered by comprehensively considering the defendant's age, occupation, character and conduct, family relation, circumstances after the crime of this case, and all of the sentencing conditions specified in the records and arguments, such as the records of this case and the circumstances after the crime of this case. Since it is necessary to give the victims such as L's shareholders, etc. an opportunity to recover from damage caused by the crime of this case, the defendant

The acquittal portion

1. Summary of this part of the facts charged

In collusion with H and M, the Defendant, while making the instant stock transaction as indicated in the facts constituting the crime of the crime in its holding, acquired the pecuniary benefits equivalent to KRW 4,293,935,000 (= KRW 4,300,000 - 6,605,000), which is the difference between the purchase price of the said stock transaction and the book value of the said stock transaction in G, and suffered a loss equivalent to the same amount.

2. Relevant legal principles

Since the crime of violation of Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter referred to as "amount of profit") is one of the constituent elements of the crime that the value of the profits acquired is more than 500 million won or more than 5 billion won, and the punishment is very aggravated depending on the amount of profit, in applying Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, the principle of balance between crimes and punishment should be strictly and carefully calculated, so that appropriate balance between crime and punishment should be achieved, but the principle of responsibility should not be damaged (see, e.g., Supreme Court en banc Decision 2005Do7288, Apr. 19, 2007). Therefore, Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes cannot be applied where the value of the profits acquired through occupational breach of trust can not be calculated specifically even if there is any property profits acquired through occupational breach of trust (see, e.g., Supreme Court Decision 2012Do52020, Aug.).

3. Determination

A. According to the above legal doctrine and the above legal doctrine on the method of calculating the reasonable price of unlisted stocks as seen earlier (see, e.g., Supreme Court Decision 2005Do856), the evidence duly adopted and examined by this court is comprehensively considered as follows. Even according to all evidence submitted by the prosecutor, it is difficult to deem that the difference between the acquisition price of the instant shares and the reasonable acquisition price is more than 500 million won without any reasonable doubt, and there is no other evidence to acknowledge this portion of the facts charged. Ultimately, the value of the pecuniary profit acquired by the Defendant due to the breach of trust committed by the Defendant in collusion with H, M, etc

① Although the book of the accounting corporation, which is a external auditor, stated that the value of the instant shares under the Inheritance Tax and Gift Tax Act was KRW 6,605,00,00 and 2,393,395,000 (see, e.g., Investigation Record 1648), it is acknowledged that the said value was assessed on the basis of the financial statements by not receiving all data related to the J’s finance from G at the time of the appraisal of the value of the said shares (see, e.g., Supreme Court Decision 201Da1648). However, according to the witness, S, U, etc.’s statement, the said value was assessed on the basis of the financial statements by failing to receive all the data related to the J’s finance at the time of the appraisal of the shares, such factors as the major industry, competitor’s status, market and customer status, management’s career and reputation, past transaction outlook, past transaction details, and market actual preference were not reflected at all.

② The J is established around May 200 by the I doctoral degree to aim at research and development of bio-materials materials, production and sale, production of somatic-cell cloning-cell cloning-type animals by the development of somatic-cell cloning-cell cloning-type animals, and treatment of rare incurable diseases. Since the I doctoral degree application and acquisition of AI-related patents are actively underway, there is a possibility that the value of stocks will be increased if the above research and development success in commercialization. Thus, if G submitted specific data on the business activities, details of research and development, etc. of J to external auditors at the time of calculating the value of the above stocks, it is possible to change the value of stocks.

③ The prosecutor asserts that the value of the shares at the time of the instant case is KRW 6,605,00. The method of evaluation under the above law is based on the provision of the law, and it is evaluated as the past data, so it is possible to verify that the possibility of distortion of evaluation results is low by excluding subjective judgment of an evaluator, and thus, there is objective advantages. On the other hand, since it is dependent on past data and excludes future value, it seems that it is inappropriate to evaluate the value of the shares of this case because it is accompanied by research and development, such as bio-company, and it does not adequately reflect the expected growth.

(4) In addition, J made contributions to the AJ Foundation of I doctoral degree KRW 1.35 billion to clarify that when acquiring the shares of this case, G will support the research and development project of I doctoral degree in a long-term manner by adding the acquisition price to KRW 2.4 billion. In addition, the actual valuation of the shares of this case should also be taken into account.

⑤ Since the J has an intangible asset based on research and development as a bio-company, it is reasonable to assess the value of the company depending on how to estimate the future value. In this respect, applying the cash flow method to assess the value of the stocks by assessing the future cash flow. However, in the instant case, it is difficult to view that objective and reasonable grounds and materials to assess future value, i.e., the materials to determine the factors to be considered in the process of assessing the corporate value (such as future cash flow, discount rate, continuing business value, etc.) are sufficiently presented.

B. Therefore, inasmuch as this part of the facts charged constitutes a case where there is no proof of criminal facts, a not-guilty verdict should be pronounced pursuant to the latter part of Article 325 of the Criminal Procedure Act, but inasmuch as the conviction of occupational breach of trust is found in the judgment related to the crime

The senior judge of the presiding judge;

Judges Shin Sung-sung

Judges Kim Gin-ho

1) The prosecutor stated in the indictment that "the defendant sent G's legal team leader N to L to perform the work related to the assessment of J shares", but the witness N stated in this court that "no person has conducted any work, such as recommending L accounting firm or providing J-related data to the accounting firm in connection with the assessment of the above shares," which is contrary to the above facts charged. The evidence submitted by the prosecutor alone is insufficient to recognize that the defendant was involved in the determination of the purchase price of the above shares by the above method, and there is no other evidence to acknowledge this differently, and thus, part of the facts charged is revised as stated in the facts charged.

2) According to the evidence duly adopted and examined by the court, the prosecutor charged the charge of occupational breach of trust due to the high-priced acquisition of J shares as stated in paragraph (1) of the judgment holding that the purchase of the electronic voting machine was an occupational breach of trust due to the purchase of the overseas voting ticket, but the above electronic voting machine sales contract was concluded according to the need to increase additional sales on the account book separate from the above stock transaction, and the payment method of the purchase price also differs from the above stock transaction in terms of L’s lending of the purchase price from G. In full view of these circumstances, it is reasonable to view that both crimes are in a substantive and competitive relationship.

A person shall be appointed.