Defendant 1 and five others

No. 50

Attorneys Hong-soo et al. and 22 others

Defendant 2 shall be punished by imprisonment with prison labor for not less than two years and six months, and by imprisonment with prison labor for not more than one year and six months.

However, the execution of the above punishment shall be suspended for four years for Defendant 2 from the date this judgment became final and conclusive, and for three years for Defendant 5.

A penalty of KRW 946,58,223 shall be additionally collected from Defendant 5.

Defendant 2 shall order each community service for 160 hours and 120 hours to Defendant 5.

Defendant 1, 3, 4, and 6 are not guilty.

Defendant 2 worked as the head of the Busan branch office from November 200 to June 30, 2005, while exercising overall control over the accounting and management of the Busan branch office. From July 1, 2005 to June 2010, Defendant 2 worked as the legal manager or the representative director of Nonindicted Company 1, while exercising overall control over the accounting and management of the entire accounting and management of Nonindicted Company 1.

Defendant 5, as a Korean subsidiary of Nonindicted 5, a shipping company located in the People’s Republic of China in the People’s Republic of China (hereinafter “Nonindicted 5”) of Nonindicted 5, a shipping company located in the People’s Republic of China, (hereinafter “Nonindicted 5”) select a company to inspect containers loaded with the company that Nonindicted 5 would load and unload and store the containers transported to the Republic of Korea and enter into a contract with that company with Nonindicted 5, or enter into a direct contract with the loading and unloading and storage company or tallying company in Korea on behalf of Nonindicted 5, and participates in the management of Nonindicted 2, a corporation established in Korea by Nonindicted 5 (hereinafter “Nonindicted 2”) from March 199 to September 28, 2005, and as a full-time director from March 199 to September 28, 2005, respectively.

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1. Defendant 2’s occupational embezzlement;

Defendant 2, around July 2005, knew that Defendant 4, the president of the Busan branch of Nonindicted Company 1, deposited in the Japanese bank account (Account Number 1 omitted) in the name of Nonindicted Company 1's Busan branch office, which was kept in custody for the company, deposited out the funds of Nonindicted Company 1 in the name of shipping company, loading and unloading expenses, container loading and unloading expenses, etc., and ordered Defendant 4 to directly provide Defendant 2 with the name of the payment for the conclusion of the loading and unloading contract with Nonindicted Corporation 6, the shipping company, the head of the Busan branch office of the Busan branch office (hereinafter "Nonindicted Corporation 6") and the payment for the renewal of the loading and unloading contract with Defendant 2.

Defendant 2 paid USD 10,00 per month to Nonindicted 4, who is the president of Nonindicted Company 1’s head office from August 2006 to November 2006, and from January 2007 to October 2007, in return for the conclusion and renewal of the contract with Nonindicted Company 6 for a total period of 14 months, Defendant 2 paid USD 10,00 per month to Nonindicted Company 3’s head office (hereinafter “the U.S. dollars”) to Nonindicted Company 3’s head office (hereinafter “Nonindicted Company 3”) and paid Switzerland to Nonindicted Company 6’s head office in Switzerland, or the head office in the Asia regional head office in Singapore, and paid a refund to Nonindicted Company 6’s head office in Switzerland, and received USD 2,80,00 per month from the above Defendant 4, but did not pay USD 140,00 per month in total to Nonindicted Company 4 for the above period.

Defendant 2, thereby, embezzled USD 140,00 in total of the funds owned by Nonindicted Company 1 by the victim, in violation of his occupational duties.

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2. Each violation of trust by Defendant 5

A. At the time of December 9, 2004, Defendant 5 received KRW 18,367,420 from Defendant 2, who was the head of the Busan branch office of Nonindicted Company 1, the driver of the Busan branch office of Nonindicted Company 5, to transfer KRW 18,367,420 to the Korean bank account (Account Number 5 omitted) in the name of Defendant 5, and used KRW 778,550,223 in total over 33 times until August 17, 207, as shown in the list of crimes (1) in the attached Form of Crimes (1), as shown in the list of crimes (1).

Defendant 5 received the above money from the above Defendant 2 in exchange for an unlawful solicitation, such as the purport that Nonindicted Company 1 enters into or renews the operation contract between Nonindicted Company 5 and Nonindicted Company 2, which is the domestic agent of Nonindicted Corporation 5 or Nonindicted Company 5, and the purport that the delivery of more quantity of the cargo among the transshipment cargo handled by Nonindicted Company 5 via Busan Port and that it can be operated by Nonindicted Company 1.

Defendant 5 thereby acquired KRW 778,550,223 from Defendant 2 along with an illegal solicitation.

B. On December 1, 2004, Defendant 5 received KRW 910,000 from Nonindicted 43, the representative director of Nonindicted 42 Co. 42, the container inspection company, to transfer KRW 910,000 from the above Nonindicted 24 bank account, and received KRW 76,468,000 in total over 57 occasions, as indicated in the separate crime list (2) by September 1, 2009.

Defendant 5 received the said money from the above Nonindicted 43 and from the foregoing Nonindicted 5 to the tallying company of containers transported by Nonindicted 5, in exchange for an illegal solicitation that Nonindicted 42 Company was selected by Nonindicted 2 Company and continued to provide services in the future.

Defendant 5 thereby acquired KRW 76,468,00 from Nonindicted 43 along with an illegal solicitation.

C. On December 1, 2004, Defendant 5 received KRW 1,000,000 from Nonindicted 45, the representative director of Nonindicted 44 corporation, the container tallying company, to the above Nonindicted 24 bank account in the above Nonindicted 24 name, and received KRW 55,00,000 in total over 55 times until September 2, 2009, as indicated in the separate crime list (3) as shown in the attached crime list (3).

Defendant 5 received the said money from the above Nonindicted 45 and from the foregoing Nonindicted 5 to the tallying company of containers transported by Nonindicted 5, in exchange for an illegal solicitation that Nonindicted 44 Company was selected by Nonindicted 2 Company and that it was possible to continue to provide services in the future.

Defendant 5 thereby acquired KRW 55,00,000 from Nonindicted 45 along with an illegal solicitation.

D. On December 2, 2004, Defendant 5 received a total of KRW 3,420,000 from Nonindicted 47, a director of Nonindicted 46 Co. 24, a container gambling company, to transfer KRW 3,420,00 from the said bank account in the above Nonindicted 24’s name until September 7, 2005, as shown in the list of crimes (4) in the attached Form No. 36,570,000, as shown in the list of crimes (4).

Defendant 5 received the said money from the above Nonindicted 47, and from the above Nonindicted 5’s high stuff in containers to be transported by Nonindicted 46, the above Nonindicted 46 Company was selected by Nonindicted 2 and the service was provided continuously in the future.

Defendant 5 thereby acquired KRW 36,570,000 from Nonindicted 47 along with an illegal solicitation.

3. Each gift of breach of trust by Defendant 2

A. As set forth in paragraph (2) A of the above Article 2, Defendant 2 granted KRW 237,320,005 to the above Defendant 5 on a total of ten occasions, such as the list of crimes (6) in attached Table 2-A.

B. Defendant 2: (a) around December 2006, at the president’s office located in Seoul Jung-gu (hereinafter address 3 omitted); (b) around December 3, 2006, at Nonindicted Co. 4, the president of the said Nonindicted Co. 3, 10,00 US dollars.

Defendant 2: (a) concluded or renewed a container operation agreement between Nonindicted Company 1 and Nonindicted Company 3; (b) concluded or renewed the container operation agreement with Nonindicted Company 4; (c) the purport of Nonindicted Company 3’s transshipment cargo handled in Korea by Nonindicted Company 6; and (d) the purport of Nonindicted Company 3’s transshipment of the cargo transport to Nonindicted Company 6; and (c) made the said money with an unlawful solicitation, such as Nonindicted Company 3’s use of the ○ Terminal used by Nonindicted Company 1 in lieu of Nonindicted Company 12, in transshipment of the cargo transport to Nonindicted Company 6.

Defendant 2, thereby, granted USD 10,00 to the above non-indicted 4 with an illegal solicitation.

C. When Defendant 2 entered into a container operation agreement with Nonindicted Co. 7 (hereinafter “Nonindicted Co. 7”) and received a request for container operation services from Nonindicted Co. 7, Defendant 2, along with the illegal solicitation that Nonindicted Co. 7’s representative director Nonindicted Co. 8 and the accounting director Nonindicted Co. 7 continued to receive and carry out the container operation services from Nonindicted Co. 7, Defendant 2 decided to deliver in return for the convenience of Nonindicted Co. 7’s receipt of a request for the container operation services from Nonindicted Co. 48.

Defendant 2: (a) around November 24, 2006, at the office of Nonindicted Company 1 located in Jung-gu, Seoul (hereinafter address 1 omitted); (b) in relation to the performance of container operation services, the planning team Defendant 3 of Nonindicted Company 1’s Busan Busan District Planning Team transferred KRW 15,970,690 to Nonindicted Company 19, a borrowed-name account managed by Nonindicted Company 7’s accounting director Nonindicted 48, under the name of “bebert” in return for the foregoing unlawful solicitation; and (c) from around that time until around September 16, 2009, Nonindicted Company 2 transferred money to Nonindicted Company 19, a borrowed-name account managed by the said Nonindicted Company 48, a borrowed-name account (hereinafter address 1 omitted); and (d) transferred money equivalent to KRW 438,90,690 in total, 66 times in total, under the name of “Ibe”.

Defendant 2, thereby, granted KRW 438,901,690 to the above Nonindicted 8 along with an illegal solicitation.

【Fact of Paragraph 1 at the Time of Sales】

1. The defendant 2's partial statement

1. The defendant 3's partial statement

1. Statement of the fourth suspect interrogation protocol against Defendant 2 (2009Gohap1198 pages of investigation records of the case 588) by the prosecution

1. Non-indicted 4's statement and part of the defendant 2's statement in the second interrogation protocol of the prosecution against the defendant 2 (2009Gohap1314 of investigation records of the case 1323)

1. Each statement of the defendant 4 and 3 in the second interrogation protocol against the defendant 4 (2009 high-class 1198 investigation records of the case 528 pages)

[The facts of each of the paragraphs 2 and 3 at the time of the market]

1. The defendant 2's partial statement

1. The entry of each part of the defendant 2 and 5 in the third protocol of trial;

1. The defendant 3's legal statement (limited to the defendant 2);

1. In the fourth trial record, each part of the witness’s statements made by Nonindicted 23, 51, and 52;

1. Each part of the witness’s statements in the fifth trial record

1. Defendant 2’s statement or entry in the fifth protocol of interrogation of suspect suspect (121 pages of investigation records of the case in 2009Gohap1314), the fourth protocol of interrogation of suspect as to Defendant 2 (78 pages of investigation records of the case in this case in this case), the first protocol of interrogation of suspect as to Defendant 2 (976 pages of investigation records of the case in this case in this case in the second protocol of interrogation of suspect as to Defendant 2 in the prosecutor’s office (1323 pages of investigation records of the case in this case in this case in this case in the second protocol of interrogation of suspect as to Defendant 2 in the prosecutor’s office (1323 pages of investigation records of the case in this case in this case in this case in this case),

1. Entry of Defendant 5 in the first and third suspect interrogation protocol (253 pages, 638 pages of the investigation records of the case of the case of the case of the case) by the prosecution against Defendant 5 and entry of each statement by Defendant 5 and 2 in the second suspect interrogation protocol (329 pages of the investigation records of the case of the case of the case) by the prosecution against Defendant 5

1. Defendant 4 and each statement made by Defendant 4 and 3 in a copy of the second protocol of examination of suspect suspect against Defendant 4 by the prosecution (40 pages of the investigation records of the case in question);

1. The entry of Defendant 3 and 4 in the fifth protocol of interrogation of the suspect suspect against Defendant 3 in the prosecutor's office (129 pages of the investigation records of the case of this case) and each statement of Defendant 3 in the prosecutor's office's first and second protocol of statement (201 pages, 222 pages of the investigation records of the case of this case)

1. Each part of Non-Indicted 4’s statements in the first and second suspect interrogation protocol of Non-Indicted 4 (298 pages, 321 pages of the investigation records of the above case)

1. Each statement made by the prosecutor about Nonindicted 43 and 45 in the suspect interrogation protocol (the investigation records of the case at issue, the 717 pages, 1012 pages)

1. Each statement in the first, second, and third protocol of interrogation of Nonindicted 48 (1639 pages, 1669 pages, 202 pages of the investigation records of the case in question)

1. Each statement in the first and second written protocol of interrogation of Nonindicted 8 (1896 pages, 1923 pages of the investigation records of the case in question) by the prosecution against Nonindicted 8

1. Statement of Nonindicted 54 made by the prosecution (1354 pages of the investigation records of the case in question)

1. Each description of the loading and unloading contract (116 pages of the investigation records of the above case), the full certificate of registered matters (169 pages of the investigation records of the above case), MEMORDUM (Contract), Schedula 390 pages, 391 pages of the investigation records of the above case), deposit transaction certificate (623 pages of the investigation records of the above case), deposit transaction records (623 pages), non-indicted 55, deposit into Non-indicted 47, deposit into Non-indicted 47 (658 pages, 660 pages, 663 pages of the above investigation records), certificate No. 2 (container terminal contract of the above case), and certificate No. 2 (container terminal contract of the above case)

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

A. Defendant 2: Articles 356 and 355(1) (in all the cases of occupational embezzlement) of the Criminal Act; Articles 357(2) and 357(1) of the Criminal Act (in all the cases of giving rise to breach of trust, and all the persons who suffered injury) of the Criminal Act; each of them shall be punished by imprisonment)

B. Defendant 5: Article 357(1) of each Criminal Code (in the case of imprisonment with prison labor, including, but not limited to, each person who bears the burden of proof)

1. Aggravation for concurrent crimes;

(a) Defendant 2: the former part of Article 37, Article 38 (1) 2, and Article 50 of each Criminal Act (Aggravation of concurrent crimes with the punishment determined for the most severe crime of occupational embezzlement);

(b) Defendant 5: the former part of Article 37, Article 38(1)2, and Article 50 of each Criminal Act (Aggravated Punishment for Concurrent Crimes of Breach of Trust and Misappropriation committed by Defendant 2 who is the largest offense)

1. Suspension of execution;

Defendants: each of the favorable circumstances described in the sentencing grounds under Article 62(1) of the Criminal Act

1. Social service order;

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

1. Additional collection:

Defendant 5: the latter part of Article 357(3) and Article 357(1) of the Criminal Act

1. Judgment on Defendant 2’s assertion of occupational embezzlement (209Gohap1198 case)

A. Organization of issues

Of the ancillary charges against Defendant 2, the part concerning the period in which Defendant 2 served as the statutory administrator or representative director of the headquarters of Nonindicted Company 1 (from July 2005 to October 207) was embezzled by receiving a part of the extracurricular funds created from Defendant 4, who was the president of the Busan Busan Branch, from Defendant 2, as the president of the Busan Branch, for the maintenance of the president’s dignity, the conclusion of the contract with the trader or the payment for renewal of the contract. Here, from among them, Defendant 2 embezzled 1,40,00 out of the above extracurricular funds ($ 1,000 from August 11, 2006 to October 207) from Defendant 4 for the conclusion of the contract with Nonindicted Company 3 and the payment for renewal of the contract with Nonindicted Company 4.

B. Summary of defendant 2 and defense counsel's assertion

From July 2005 to October 2007, Defendant 2 received USD 20,00 per month from Defendant 4. Of the above 20,000 dollars, Defendant 2 paid KRW 10,00 to the president of Nonindicted Company 3 or the president of Nonindicted Company 3 as the payment for the conclusion of the contract or the renewal of the contract. Defendant 2 paid KRW 10,00 per month to the president of Nonindicted Company 3 for the period from July 2005 to July 2006. From around August 2006, Nonindicted Company 26 paid USD 10,00 per month to the representative director of Nonindicted Company 3 from August 3, 206, Nonindicted Company 6 maintained part of the amount of Nonindicted Company 3’s refund to Nonindicted Company 3’s representative director for the purpose of obtaining approval through the process of Nonindicted Company 1’s internal approval and the process of obtaining approval from Nonindicted Company 3’s representative director, Defendant 2 did not have any further been determined for the purpose of embezzlement.

C. Determination

(1) In order for embezzlement to be recognized, the intent of the custodian of another’s property to dispose of the property without authority should be recognized as having the intent to dispose of it as his own property, and this does not change if the custodian of the company’s secret funds uses secret funds. Meanwhile, as to the use of secret funds, whether the main purpose of the use of secret funds can be deemed to be for the personal purpose of the defendant, or whether the existence of the intent to acquire secret funds can be recognized should be determined by comprehensively taking into account the timing, circumstances, and result of the use of secret funds (see Supreme Court Decision 2009Do6634, Apr. 15, 2010).

(2) The act of Defendant 2’s payment of money to Nonindicted 4 to the president of Nonindicted Company 3 upon making an illegal solicitation that he would receive convenience in order to renew the contract with Nonindicted Corporation 6 and to secure the volume of the contract constitutes an act of giving property in breach of trust as described in Article 3-2(b) of the Criminal facts stated in the judgment.

However, even if Defendant 2 received part of the extra capital funds of Nonindicted Company 1 for the purpose of giving property in breach of trust, if the content of “illegal solicitation” of the capital in breach of trust with Nonindicted Company 1 and Nonindicted Corporation 6 and the content of “illegal solicitation” is for the renewal of the contract with Nonindicted Company 1 and Nonindicted Company 6 and securing the quantity of loading and unloading of the freight of Nonindicted Company 1, it cannot be deemed that Defendant 2 had an intention to obtain illegal gains on Nonindicted Company 1’s capital. Thus, Defendant 2 should be proved that Defendant 2 used the extra capital received from Nonindicted Company 3’s president for the purpose other than giving property in breach of trust, such as personal use, but it can be recognized as Defendant 2.

(3) Therefore, from around August 206 to October 207, Defendant 2 stated that Nonindicted Co. 4 was 6: (a) Nonindicted Co. 1’s statement of approximately 10,000 dollars 1 to 6: (b) Nonindicted Co. 4, 206, and Nonindicted Co. 1’s statement of approximately 6: (c) Nonindicted Co. 4’s monthly payment of 10,000 dollars ; and (d) Nonindicted Co. 4’s monthly payment of KRW 10,000 for Nonindicted Co. 4’s monthly payment of KRW 6: (c) Nonindicted Co. 2, 2006; (d) Nonindicted Co. 1’s statement of approximately 6: (e) Nonindicted Co. 4, 200; and (e) Nonindicted Co. 2, 206’s statement of KRW 10,000 for KRW 20; and (e) Nonindicted Co. 4, 2008.

In full view of the above statements, Defendant 2 paid USD 10,00 per month to the president of Nonindicted Co. 3 from August 2006 to October 2007, under the pretext of paying USD 10,00 per month to the president of Nonindicted Co. 4 for the cost of the renewal of the contract with Nonindicted Co. 6 and the refund for securing the volume, Defendant 2 may be recognized as having not returned to Nonindicted Co. 1 without paying USD 140,00 per month during the above period, but only paid USD 10,00 per month to Nonindicted Co. 4 on December 206 during the above period, and the remainder of 14 months (from August 2006 to November 207, 2007, to October 2007). On the other hand, Nonindicted Co. 1 did not return to Nonindicted Co. 1 without paying USD 146,00 per month for the renewal of the contract with Nonindicted Co. 26.

(4) If so, Defendant 2 could be presumed to have continued to pay USD 140,00 per month to the president of Nonindicted Company 3 without paying USD 140,00 per month, and used the above USD 140,00 continuously from Defendant 4 for purposes other than the refund against Nonindicted Company 4, such as personal use, etc. Therefore, Defendant 2’s intent to illegally obtain the above USD 140,00 out of the total amount received from Defendant 4 as the compensation for the renewal of the contract with Nonindicted Corporation 6 may be recognized.

D. Sub-committee

Therefore, we cannot accept the above argument of the defendant 2 and the defense counsel.

2. Determination as to Defendant 5’s assertion on the part of taking property in breach of trust by Defendant 2

A. The defendant 5 and his defense counsel's arguments

(1) It was true that Defendant 5 received money from Defendant 2 as stated in the crime No. 2-A, but Defendant 5, as the representative director of Nonindicted Co. 13, a multimodal transport business entity, received only the payment for the freight forwarding business from Nonindicted Co. 1. Since the contract between Nonindicted Co. 5 and Nonindicted Co. 1 is the head office of Nonindicted Co. 5 in China, Defendant 5, a director of Nonindicted Co. 2, has no authority to conclude and renew the contract. Accordingly, Defendant 5 cannot be the subject of the crime of breach of trust.

(2) Terminal contracts between the shipping company and the loading company are automatically renewed unless there is a special reason. From September 2007, even though Defendant 5 did not receive the money from Defendant 2, the terminal contracts between Nonindicted Company 1 and Nonindicted Corporation 5 have been continuously renewed. Therefore, there is no "illegal solicitation".

B. Determination

(1) Whether Defendant 5 is the principal agent of the crime of taking property in breach of trust

(A) As the principal agent of the crime of taking property in breach of trust, "a person who administers another's business" means a person who is deemed to have a fiduciary relationship in light of the principle of trust and good faith with another person, and does not necessarily require that the person has a fiduciary relationship to handle the business in an internal relationship with a third party. In addition, it does not require that the business is an entrusted business, and the ground for the conduct of the business, i.e., the occurrence of a fiduciary relationship, may arise through the statutory provisions, legal acts, customs, or business management. In the crime of taking property in breach of trust, "the conduct of the business" refers to the business entrusted by a person who administers another's business, but it includes not only the principal business due to the entrustment relationship, but also the business within the scope closely related to the former, but also the person who performs the business directly or indirectly as his subsidiary (see Supreme Court Decision 2005Do6433, Mar. 24, 2006, etc.).

(B) The gist of the evidence reveals that Nonindicted Co. 2 was established by Nonindicted Co. 5 on or around March 199 for the purpose of handling the affairs in Korea, and Defendant 5 was in fact holding 24.5% of the shares of Nonindicted Co. 2 through Nonindicted Co. 13. The representative director from the time of incorporation of Nonindicted Co. 2 to September 2005, and Defendant 5 was working for each of Nonindicted Co. 37. Defendant 5 introduced Nonindicted Co. 5’s head office to Defendant 2 for the first time to the effect that Nonindicted Co. 5 and Nonindicted Co. 1 did not have any influence on Nonindicted Co. 3’s domestic agent’s domestic agent’s investigation (the head office of Nonindicted Co. 5 and the head office of Nonindicted Co. 3). The meaning of Nonindicted Co. 5 and the head office of Nonindicted Co. 3 were to have been delegated to Nonindicted Co. 5 for the investigation and unloading of the case at the time of signing the contract on June 7, 2000.

(C) In full view of the above facts, Defendant 5 is the representative director or director of Nonindicted Co. 2 who performs the agency business in Korea of Nonindicted Co. 5, and in the internal relationship with Nonindicted Co. 5, Defendant 5 is deemed to have a fiduciary relationship that directly or indirectly deals with the conclusion and renewal of the loading and unloading contract between Nonindicted Co. 5 and the Korean ship company, and the decision on the volume of transshipment goods in Busan Port of Nonindicted Co. 5. Thus, Defendant 5 constitutes “a person who administers another’s business.”

(2) Whether there was an unlawful solicitation

(A) In the crime of giving and receiving property in breach of trust, “illegal solicitation” refers to solicitation against social norms and the principle of trust and good faith. In determining this, a comprehensive consideration of the contents of solicitation, the types, amounts and forms of assets or pecuniary gains acquired in relation thereto, the method and manner of providing property benefits, and the integrity of transactions, which are the legal interests protected by the law, should be comprehensively considered. The solicitation is not necessarily required to be explicitly or explicitly made (see, e.g., Supreme Court Decision 2010Do3399, May 27, 2010).

(B) According to evidence revealed in the summary of the evidence, the loading and unloading contract concluded between Nonindicted Co. 1 and Nonindicted Co. 5 is one year, and there is no written objection between Nonindicted Co. 2 and 60 days prior to the expiration of the contract (Evidence 2), however, Nonindicted Co. 39, Nonindicted Co. 40, Nonindicted Co. 11, and Nonindicted Co. 12 may enter into a contract with Nonindicted Co. 5 without renewal of the contract with Nonindicted Co. 1 (the 262 pages, 334 of the investigation record of the above case) with the head office of Nonindicted Co. 2, the Defendant Co. 5 (the head office of the Defendant Co. 3, Ltd.) to the effect that the amount of money paid to Nonindicted Co. 5 to Defendant Co. 2 from the end of 200 to the Busan High Co. 5 (the number of Nonindicted Co. 5’s head office of the Defendant Co. 2, Ltd.) to the effect that the amount of money paid to Defendant Co. 5 would increase the number of money paid to Defendant Co. 3.

(C) In light of the facts found in the above facts, Defendant 2’s request to the effect that “The convenience is given to the conclusion or renewal of the loading and unloading contract with the non-indicted 1 and the non-indicted 5 corporation, and the increased cargo operated by the non-indicted 1 corporation is increased by increasing the cargo transshipped through the Busan port,” which the non-indicted 5 corporation requested to the effect that “the cargo operated by the non-indicted 1 corporation is increased,” which was made by the defendant 5, constitutes an illegal solicitation contrary to the social rules and the principles of good faith even from one of the parties who received money

C. Sub-committee

Therefore, we cannot accept the above argument of the defendant 5 and his defense counsel.

3. Determination on Defendant 2’s assertion as to each of the misappropriations

A. The defendant 2 and his defense counsel's arguments

Defendant 2 paid a refund to Defendant 5, Nonindicted 4, and 8 as indicated in the facts charged in the judgment of the lower court, but this is not the consideration for the conclusion of the contract, but the consideration for the maintenance of the contractual relationship. It is merely an ordinary business activity of the company to request the continued maintenance of the contract and the increase in the volume of the disposal of the contract to the customer. Thus, the crime of giving property in breach of trust is not “illegal solicitation”.

B. Determination

(1) The part on the charge of giving property in breach of trust to Defendant 5

Defendant 2’s solicitation made by Defendant 5 to Defendant 5 constitutes “illegal solicitation” in the crime of giving and receiving evidence in breach of trust as seen in the above 2.b. (2).

(2) The portion on the charge of giving property in breach of trust to Nonindicted 4

According to the evidence presented in the summary of the evidence, Nonindicted Co. 3 was established around October 199 in order to carry out the agency business in Korea of Nonindicted Co. 6. Nonindicted Co. 6 held all shares; Nonindicted Co. 1 entered into the loading and unloading contract with Nonindicted Co. 6 on June 24, 2003; Nonindicted Co. 4, the representative director of Nonindicted Co. 3, signed the contract on behalf of Nonindicted Co. 6 (307 pages of the investigation record of the above case); the period of the loading and unloading contract between June 24, 2003 and December 31, 2004; the fact that the contract period of the loading and unloading contract was automatically renewed every year without giving written notice by 90 days prior to the expiration of the contract (119 pages of the investigation record of this case); Nonindicted Co. 12 or Nonindicted Co. 11, etc. in Korea, and Nonindicted Co. 27 and Nonindicted Co. 28, etc., paid for convenience of transshipment to Defendant 26 months including the contract of this case.

In light of various circumstances, such as Defendant 2 and Nonindicted 4’s interests, the legal administrator of Nonindicted Company 1, who can be known through the above recognition, and Nonindicted Company 3’s president’s interests, the content and nature of Nonindicted Company 4’s affairs handled by Nonindicted Company 3’s president, and the contents and nature of solicitation, and the amount of money and valuables received, etc., Defendant 2’s solicitation made while granting USD 10,00 to Nonindicted Company 4 constitutes an illegal solicitation contrary to social rules and the principle of good faith.

(3) The portion on the charge of giving property in breach of trust to Nonindicted 8

According to the evidence revealed in the summary of the evidence, Nonindicted Company 8, the representative director of Nonindicted Company 7, and Nonindicted 48, the accounting director of Nonindicted Company 7, paid rebates to the shippers in order to arrange for a favorable position in the aggregate competition with other shipping companies, and received rebates from the transportation company or the tallying company in order to raise the funds for rebates, etc. (1645 pages, 1902 pages). Accordingly, Nonindicted Company 7 demanded the payment of rebates equivalent to 3% of the cost of container operation from around 193 to Nonindicted Company 1 as the price related to the conclusion, re-contract or renewal, etc. of the container operation contract, and Nonindicted Company 1 demanded the payment of rebates to Nonindicted Company 7, the head office of Nonindicted Company 7, the head office of which was designated by Nonindicted Company 7, and the amount equivalent to 19, 56, 49, and 198, which was the Busan District Association’s planning and treatment of the amount of rebates from September 16, 2009.

In light of various circumstances such as the interests of Defendant 2 and Nonindicted 8, the legal administrator or representative director of Nonindicted Company 1, who can be known through the above recognition, and the interests of Nonindicted Company 7, Nonindicted 8’s representative director, and the contents and nature of the business that Nonindicted Company 8 and 48 handle within Nonindicted Company 7, the contents and nature of the solicitation, the size and period of the received money and valuables, the method and manner of providing money and valuables, etc., Defendant 2’s solicitation made by Defendant 2 while granting 3% of the container operating expenses to Nonindicted 8 via Defendant 3, etc. constitutes an illegal solicitation contrary to the social norms and

C. Sub-committee

Therefore, we cannot accept each of the above arguments of Defendant 2 and the defense counsel.

1. Defendant 2

【Scope of Penalty Surcharge】

From 1 to 15 years of imprisonment;

[Special Convicted Persons] - With respect to the crime of occupational embezzlement as a basic crime

(1) Persons under special relationship: Where the method of crime is extremely poor (where many persons commit a crime on a systematic basis by sharing the roles of them, and where the methods of manipulation in books, window dressing accounting, etc. are actively mobilized to commit a crime).

(2) Special mitigations: No penalty surcharge shall be imposed.

【Scope of Recommendation】

(1) The scope of recommendations for basic crimes: The aggregate of types No. 2 (at least 100 million won, but less than 500 million won) among the group of embezzlement and breach of trust crimes, two years to five years of imprisonment.

(2) Application of criteria for multiple crimes: Since multiple crimes are concurrent crimes between those for which the sentencing criteria have not been set, only the lower limit of the scope of sentence on the sentencing criteria for basic crimes, two years to 15 years from imprisonment.

【General Convicts】

person in general: in the case of embezzlement;

[Grounds for Suspension of Execution]

(1) Grounds for major reference to suspended execution.

- positive reasons: If significant damage has been recovered, non-exclusive

- For negative reasons: where the method of crime acceptance is very poor;

(2) Reasons for general reference in probation.

- positive reasons: clear social relationship, and there are no criminal records of suspended execution or more.

-For negative reasons: Cumulative roles as criminal and accomplices;

【Determination of Sentence】

Two years and six months of imprisonment, four years of suspended execution;

The crime of occupational embezzlement of this case was committed by Defendant 2, who was a legal manager of Nonindicted Company 1, on the pretext of the payment for the contract renewal with the trading company for the transaction company as part of the extra funds created in the Busan branch of Nonindicted Company 1. The crime of embezzlement of this case was committed without using USD 1,40,00 among them for its intended purpose. Each of the crime of embezzlement of this case was committed by Defendant 2, with the convenience of Defendant 2 to renew the contract with Nonindicted Company 1 to the business manager of the transaction company of Nonindicted Company 1, while making an illegal solicitation to the effect that it is possible to secure more quantity for Nonindicted Company 1, part of the extra funds raised in the Busan branch of Nonindicted Company 1.

In light of the fact that from November 200 to June 30, 2005 to June 30, 2005, Defendant 2 was the head of Busan branch office, the largest size of which was the branch office, and from July 1, 2005 to June 2010, Defendant 2 was the chief executive officer who was working as the statutory administrator or the president of the representative director. Defendant 2, who was in such position, was directly led by Defendant 2 for about six years, used 687 million won for the illegal purpose of giving evidence of breach of trust, thereby disturbing the order in trading, and 140 million Won was withdrawn from the outside fund under the pretext of offering it for evidence of breach of trust, and embezzled it without using it for that purpose, Defendant 2’s liability is not less than that of Defendant 2.

However, Defendant 2 did not have any previous conviction except that sentenced to a fine for violating the Occupational Safety and Health Act in around 2002, and Defendant 2 paid KRW 230 million to the victim non-indicted 1, which is the amount that Defendant 2 recognized by himself as difficult to order the use of the funds out of the funds that he was given to him, and the victim wanted to have the prior wife of Defendant 2. Although Defendant 2’s crime of giving property in breach of trust is criticized in that it undermines the integrity of the person who administers another’s business and disturbs the transaction order, even though Defendant 2’s crime of giving property in breach of trust, Defendant 2 committed an act for the business of non-indicted 1, not personal interest. The payment of rebates to the trader was done through marine transportation business through a long time, and thus, it appears that the payment of rebates to be caused to the above crime without the awareness of big crimes. In addition, Defendant 2’s age, family environment, health conditions, the method and circumstances of each of the instant crimes, etc., within the scope of sentence after the trial.

2. Defendant 5

The crime of taking property in breach of trust in this case was received from Defendant 5, an executive officer of Nonindicted Co. 2, who is a Korean subsidiary of Nonindicted Co. 5, a Chinese shipping company, and who is an executive officer of Nonindicted Co. 5, and from a trader who wants to conclude and renew a contract with Nonindicted Co. 5, in return for an illegal solicitation to the effect that it takes advantage of convenience in the conclusion, renewal, etc. of a contract for a long period. It is not only an act that disturbs the order of trade as well as an act that disturbs the order of trade, such as the crime of taking property in breach of trust, but also an act that damages integrity to be kept as an executive officer of Nonindicted Co. 5, and that the amount received is a large amount of money. Therefore, Defendant 5’s criminal liability

However, there are no particular criminal records with Defendant 5, and the facts that each of the crimes of this case is divided, and there is no reason to believe that the actual damage to Nonindicted Corporation 5 was inflicted on each of the crimes of this case. Defendant 5 also appears to have caused the crime of this case without the awareness of a large crime, since the number of rebates was customaryized in the shipping industry, and as such, Defendant 5 appears to have caused the crime of this case without the awareness of a large crime. In addition, Defendant 5’s age, family environment, the specific developments and methods of each of the crimes of this case, and the circumstances after the crime, etc., shall be determined as ordered by the order, taking into account all the conditions of the punishment

In this case, I will examine the following facts: ① the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) against Defendant 1, 2, 3, and 4 (2) the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement 2009Gohap 1182, 1198) and ② the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes against Defendant 4 and the violation of trust against Defendant 6 (2).

I. Of the facts charged in this case, the summary of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) against Defendant 1, 3, and 4, the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) which are the main facts charged against Defendant 2, and

From July 199 to December 15, 2005, Defendant 1 worked as the head of the Busan Planning Team of Nonindicted Company 1 established for the purpose of cargo transportation, cargo loading and unloading, warehouse business, etc., and took charge of the accounting of revenues, expenditures, etc. of the Busan Branch by assisting Defendant 2, who is the head of the Busan Branch. From December 16, 2005 to December 2010, Defendant 1 worked as the head of the Mapo District Branch Office of Nonindicted Company 1.

From November 1, 200 to June 30, 2005, Defendant 2 worked as the head of the Busan branch office from Non-Indicted Party 1, and took overall charge of the accounting and management of the Busan branch office. From July 1, 2005 to June 10, 2010, Defendant 2 took overall charge of the accounting and management of Non-Indicted Party 1’s entire accounts and management.

After Defendant 4’s behind the above Defendant 2, from July 1, 2005 to October 15, 2007, Defendant 4 worked as the Busan branch office of Nonindicted Company 1, and was in charge of the accounting and management of the Busan branch office in accordance with the operation guidelines of Defendant 2, the president of the headquarters.

Defendant 3, following Defendant 1’s behind the head of the planning team of Nonindicted Company 1’s Busan branch office, followed up to December 16, 2005 to October 15, 2007, supported Defendant 4, who was the head of the Busan branch office, and took overall charge of the accounting, such as the revenue and expenditure of the Busan branch office.

1. Defendant 1

A. Main facts charged

On July 2, 2001, Defendant 1 released KRW 11,842,00,678 in total on 954 times in total, on the basis of the name of ship loading and unloading charges, container loading and unloading charges, etc. as shown in the attached Table (9 week 3) by December 15, 2005, including the withdrawal of KRW 11,842,00 of the company funds deposited in the Japanese bank account (Account No. 1 omitted) in the name of the head of Busan branch office at the time at the Busan branch office of the Busan branch office of the Busan branch office of the Busan branch office of the Busan branch office of the Busan branch office of the Busan branch office of the non-indicted 1.

Defendant 1 and the above Defendant 2 withdrawn that the above company funds will be used for loading and unloading fees, container loading and unloading expenses, but they did not intend to use the above funds as above from the beginning. Rather, they used the above funds as the stock investment price of Defendant 1 and Defendant 2, or exchanged them with USD or Hun-Ba check (a check received from a trader through a transactional relationship) in return for the conclusion of a contract, paid to the trading company in return for the conclusion of a contract, paid to the president of the headquarters of Nonindicted Party 1, paid to the president of the headquarters of the above Defendant 2 and his wife and relatives, provided for personal use, or used them as living expenses by depositing them in the account in the name of Defendant 1.

Defendant 1, in collusion with the above Defendant 2, embezzled KRW 17,027,230,678 of the Company’s funds owned by Nonindicted Company 1.

B. Preliminary charges

On July 2, 2001, Defendant 1 withdrawn KRW 11,842,00 of the company funds deposited in the Japanese bank account (Account No. 1 omitted) in the name of the Busan branch office of the above non-indicted Party 1 at the time, in accordance with the direction of Defendant 2, who was the head of the Busan branch office of the above non-indicted Party 1, pursuant to the order of the head of the Busan branch office, and withdrawn KRW 17,027,230,678 in total over 954 times on December 15, 2005, including the withdrawal of KRW 11,842,00 of the company funds in the custody of the company for the purpose of the company under custody, as stated in the crime list Nos. 1 through 954 until December 15, 2005.

Defendant 1 and the above Defendants 2 and 4 have withdrawn the above company funds to be used for loading and unloading expenses, container loading and unloading expenses, but they had no intention to use them from the beginning. Rather, they used the said funds to pay the price for concluding a contract, the stock investment expenses of Defendant 1, the said Defendant 2 and their wife to the trading company, the cash, USD 10 to the president of the headquarters of the above Defendant 4 and Nonindicted 1, and the executives and employees, and the payment of the constitutional checks.

Defendant 1, thereby, embezzled KRW 17,027,230,678 of the Company’s funds owned by the victim Nonindicted Company 1 by inviting the above Defendant 2 or the above Defendant 4 and Jeju 5).

2. Defendant 2

A. Main facts charged

On July 2, 2001, Defendant 2 released KRW 22,90,789,928 in total over 1,380,00 as shown in the attached Table of Crimes (10), together with Defendant 1, Defendant 4, and Defendant 3, etc., as well as Defendant 1, Defendant 4, and Defendant 3, etc., on a total of 1,380 times in total, as shown in the attached Table of Crimes (10), which were deposited in the Busan branch office of Nonindicted Company 1 in the name of the Bank account (Account No. 1 omitted) in the name of the Busan branch office of the said Nonindicted Company 1.

Defendant 2, Defendant 1, Defendant 4, and Defendant 3 released the above funds of the company to use them for ship loading and unloading charges, and container loading and unloading charges. However, from the beginning, there was no intention to use them for the above purposes, and withdrawal of money under the above pretext was intended to use the corporate funds of Nonindicted Company 1 for free by the president of Nonindicted Company 1, the Busan Branch President, etc. without the court’s control under the court’s management and supervision in the legal management status. In fact, Defendant 2, etc. used the above funds for the stock investment proceeds of Defendant 2 and the above Defendant 1; provided them for personal use; paid them to the president of Nonindicted Company 1’s head office before Defendant 2; paid them in advance to the president of the head office of the former Nonindicted Company 1; paid the company funds deposited by the said Defendant 4 for a private purpose by voluntarily using, exchanging the withdrawn funds with USD or checks in return for the conclusion of the contract.

Defendant 2, thereby, embezzled KRW 22,90,789,928, which is the sum of the company funds owned by Nonindicted Company 1 in collusion with Defendant 1 or 4, Defendant 1, Defendant 4, and Defendant 3 in collusion with or in succession with Defendant 3.

B. Preliminary charges

(1) Embezzlements during the period in which Defendant 2 served as the Busan branch office

Defendant 2 withdrawn KRW 11,842,00 from the office of Busan branch office of the above non-indicted 1 corporation on July 2, 2001, the above defendant 1 deposited in the bank account (Account No. 1 omitted) in the name of the Busan branch office of the non-indicted 1 corporation, and deposited KRW 11,842,00 for the non-indicted 1 corporation in custody for the company, and withdrawn KRW 15,52,00 for the total amount of 843 times in the name of the defendant 1 and the defendant 2, until June 29, 2005, for the period of service as the Busan branch office of the non-indicted 1 corporation, as shown in No. 1 or No. 843, the list of crimes (No. 11) No. 1 to No. 843, as stated in the attached Table No. 843.

Defendant 2 and the above Defendant 1 released that the above funds of the company would be used for shipping and unloading charges, container loading and unloading charges, but from the beginning, they did not have any intent to use them as above, and the withdrawal of money under the above name was intended for Defendant 2 to arbitrarily use the corporate funds of Nonindicted Company 1 under the court management and supervision in the court under the statutory management situation, without the court’s control. Defendant 2 provided the above amount of money KRW 7.96 billion under the pretext of paying for the conclusion of the contract to the trading company, approximately KRW 3.13 billion under the pretext of paying the above money to Nonindicted Party 10, the president of the headquarters of Nonindicted Company 1, and approximately KRW 912 million under the pretext of paying for the personal credit card settlement charges used by Defendant 2 and the remaining amount to be used for Defendant 2 and the above Defendant 1’s wife and their personal consumption.

Defendant 2, in collusion with the above Defendant 1, embezzled the sum of KRW 15,526,98,678 of the company funds owned by Nonindicted Company 1.

(2) Embezzlement 6) Defendant 2’s head office’s legal manager or representative director’s embling

Defendant 2, around July 2005, knew that Defendant 4, the president of the Busan Branch of Nonindicted Company 1, who was the head of the Busan Branch, continued to create the extra capital in Busan Branch in the above way, ordered Defendant 4 to directly provide part of the extra capital created in Busan Branch to Defendant 2 each month under the name of “the maintenance cost of president” and “the cost of concluding a contract with Nonindicted Company 6, a foreign trader of Nonindicted Company 1, and a foreign corporation 9”.

Defendant 2 received 1.6 billion won per month from the office of the head office of the non-indicted 1 to the above defendant 4, 1.3 million won per month from the day of July 2005 to October 2005, and entered into a contract with the non-indicted 1 to the minimum of 70 million won per month from November 2005 to December 2006, and 1.6 million won per month from January 2007 to October 2007, 2000 won per month, including 5.6 billion won per month from January 2007 to October 2007, and 2.7 million US from July 2005 to October 27, 2007; and 3.6 million US per month from July 2, 2005 to October 206 to the renewed contract.

Defendant 2, in collusion with the above Defendant 4, embezzled KRW 1.6 billion in total and USD 7 billion in total and USD 1.5 billion in company funds owned by the victim non-indicted 1, and embezzled KRW 2.45 billion in total and KRW 1.5 million in total.

3. Defendant 4

A. Main facts charged

On July 6, 2005, Defendant 4 withdrawn KRW 12,917,00 from the office of Busan branch office of Nonindicted Party 1 in total 537 times in total under the name of container loading and unloading charges and KRW 7,463,801,250 in the name of container loading and unloading charges and KRW 12,917,00 in the name of Nonindicted Party 1 corporation, which was kept in the custody of the company for the above bank in the name of Busan branch office of the Busan branch office of the above Nonindicted Party 1, as well as the withdrawal of KRW 12,917,00 in the name of container loading and unloading charges until October 15, 2007.

Defendant 4 worked as the head office of Nonindicted Company 1, who was appointed as the president of the head office on July 1, 2005, received the method of withdrawing the company funds from the above Defendant 2 to provide rebates to the trading company. Defendant 4 instructed Defendant 1, the head office of the Busan planning branch, and Defendant 3, the head office of the Busan planning branch, to withdraw the company funds as above.

Defendant 4 and the above Defendants 2, 1, and 3 released the company funds of the above Nonindicted Company 1 that they would use them for loading and unloading fees and container loading and unloading expenses. However, they did not have any intent to use them as above from the beginning. Rather, they provided said Defendant 2 with the said money without the court’s control, paid the said money in return for concluding a contract with the trading company, paid the money of KRW 100 million per month to the trading company or using the said money in the cost of living, such as the settlement of credit card usage fees by Defendant 4.

Defendant 4, in collusion with Defendant 2, Defendant 1, or Defendant 2 and Defendant 3, thereby embezzlement of KRW 7,463,801,250 of the company funds owned by Nonindicted Company 1.

B. Preliminary charges

On July 6, 2005, Defendant 4 withdrawn KRW 12,917,00,00 from the office of Busan branch office of the above non-indicted Party 1 in the name of the Busan branch office of the non-indicted Party 1, and withdrawn KRW 12,917,00 as the expenses for loading and unloading of containers until October 15, 2007, as stated in the [Attachment Table 11] Nos. 844 through 1380, total of KRW 7,463,80,250 in total, as the expenses for loading and unloading of containers and the expenses for loading and unloading of ship.

Defendant 4 worked as the head office of Nonindicted Company 1, who was appointed as the president of the head office on July 1, 2005, received the method of withdrawing the company funds from the above Defendant 2 to provide rebates to the trading company. Defendant 4 instructed Defendant 1, the head office of the Busan planning branch, and Defendant 3, the head office of the Busan planning branch, to withdraw the company funds as above.

Defendant 4 and the above Defendants 1 and 3 released the company funds of the above Nonindicted Company 1 on the ground that they will be used for loading and unloading charges and container loading and unloading charges. However, they did not have any intent to use them as above from the beginning. Rather, Defendant 2 used approximately KRW 1.6 billion to Defendant 2 under the pretext of maintaining the dignity of the president of the headquarters of Nonindicted Company 1 from July 2005 to October 2007, and KRW 340,000,000,000 per month, including USD 366,600,000 per month under the pretext of concluding a contract with a foreign trading company and Nonindicted Company 6, a foreign trading company, and KRW 1,50,000,000,000 per month under the pretext of payment for the contract or renewal of the contract with Nonindicted Company 7, etc., and used the remaining amount for personal consumption by Defendant 4, etc.

Defendant 4 conspireds with the above Defendant 1 or the above Defendant 3 and the above Defendant 7) and embezzled KRW 7,463,801,250 for the company funds owned by the victim Nonindicted Company 1.

4. Defendant 3

A. Main facts charged

On December 21, 2005, Defendant 3 withdrawn KRW 5,963,262,250 in total on 425 occasions as stated in [Attachment Table (10] Nos. 956 through 1380, including the withdrawal of KRW 21,89,00 of the corporate funds of Nonindicted Company 1 in the name of the Busan Busan branch office of the above Nonindicted Company 1, and withdrawal of KRW 21,896,00 in the name of the container loading and unloading expenses, as stated in [Attachment Table (10] Nos. 956 through 1380, from October 15, 2007.

Defendant 3 had worked as the head office of Nonindicted Company 1 in Busan on July 1, 2005, and had been appointed as the head office president of the head office on July 1, 2005, paid monthly money to said Defendant 2, and paid monthly money to said Defendant 4 in cash or in a unconstitutional check. The method of withdrawing the company’s funds in order to offer rebates to the traders was given and handed over in order from said Defendants 2, 4, and 1, and the company funds were withdrawn as above.

Defendant 3 and the above Defendants 2 and 4 withdrawn the company funds of the above Nonindicted Company 1 by using them for loading and unloading charges, container loading and unloading charges, but did not intend to use them for the aforementioned purposes from the beginning. Rather, without the court’s control, they voluntarily consumed the said money by providing them to the above Defendants 4 and 2, or by paying them in return for concluding a contract with the trading company.

Defendant 3, in collusion with the above Defendant 2 and Defendant 4, embezzled KRW 5,963,262,250 of the company funds owned by Nonindicted Company 1.

B. Preliminary charges

On December 21, 2005, Defendant 3 withdrawn KRW 5,963,262,250 in total on 425 occasions as stated in the attached Table of Crimes (11) Nos. 956 through 1380, as well as the withdrawal of KRW 21,89,00 of the corporate funds of Nonindicted Company 1, which were in custody for the company, from the office of Busan branch of the above Nonindicted Company 1, in the name of the Busan branch of the Busan Busan branch of the company, and withdrawal of KRW 21,896,00 in the name of container loading and unloading expenses, as stated in the attached Table No. 956 to No. 1380, Oct. 15, 2007.

Defendant 3 had worked as the head office of Nonindicted Company 1 in Busan on July 1, 2005, and had been appointed as the head office president of the head office on July 1, 2005, provided the money to be paid in cash or in a unconstitutional check to the said Defendant 4, and withdrawn the company’s funds in order to offer rebates to the traders. The method of withdrawing the company’s funds was given and transferred in order from the said Defendant 4 and Defendant 1, and the company funds were withdrawn as above

Defendant 3 and Defendant 4 withdrawn the company funds of the above non-indicted 1 Company on the ground that they would be used for loading and unloading charges and container loading and unloading charges. However, they did not intend to use the said funds from the beginning as above. Rather, they provided the above funds to Defendant 4 of the Busan District Court President of the company of the non-indicted 1 Company, provided the head office to Defendant 2, the president of the headquarters, or consumed them voluntarily by means of providing them in return for concluding a contract.

Defendant 3, in collusion with the above Defendant 4, embezzled KRW 5,963,262,250 of the company funds owned by Nonindicted Company 1.

Ⅱ Coordination of Issues

Defendant 1, 3, and 4 were charged with embezzlement, on the premise that the above Defendants’ primary facts charged and each ancillary facts charged are established in the crime of embezzlement. On the premise that the above Defendants were charged with the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) (each ancillary facts charged against Defendants 1, 3, and 4 is divided by each Defendant’s co-principal for each period during which the Defendants participated in the creation of the extra funds. In fact, there is no difference between the period of embezzlement, date and time of the crime, method of embezzlement, and amount of embezzlement or embezzlement from each of the above Defendants’ primary facts charged against the above Defendants).

On the other hand, the prosecutor separates Defendant 2 from Defendant 2: (a) on the premise that the crime of embezzlement is established around “the time of raising foreign funds” as above; (b) on the premise that Defendant 2 et al. indicted all of the extra funds created from July 2, 2001 to October 15, 207 as a crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement); (c) on the ancillary basis, Defendant 2 et al. convicted Defendant 1 of the remainder of the charges of embezzlement by taking into account the fact that Defendant 2 had worked as the head office of Nonindicted Company 1 or the head office of Nonindicted Company 1 or the representative director (on July 2, 2001 through October 29, 2007, the part of the charges of embezzlement, including the part of the extra funds created by Nonindicted Company 2 et al. with the Busan Branch Co. 1 or the part of the charges of embezzlement, which was not established for the remaining period of embezzlement.

Therefore, under the following, with respect to each of the main facts charged against Defendant 1, 3, and 4 and each of the ancillary facts charged, the main facts charged against Defendant 2, and the ancillary facts charged against Defendant 2, and the part of the previous facts charged, the term “when raising foreign funds” in this case can be seen as the time of embezzlement. We examine whether Defendant 2 embezzled the above part of the judgment of the court below out of the ancillary facts charged against Defendant 2 with respect to the above part of the judgment of the court below [Article 1(2)(2) of the judgment of the court below]. We examine whether Defendant 2 embezzled approximately KRW 2.45 million as the name of the president’s maintenance of dignity, non-indicted 6, and non-indicted 9’s renewed payment for the contract with Defendant 2.

Ⅲ In this case, whether the term “in the event of raising funds outside the country” can be seen as the term of embezzlement.

1. The defendant 1, 2, 4, and 3's summary of the prosecution

The above Defendants acknowledged all the facts that the company funds of Nonindicted Company 1 were withdrawn under the pretext different from the actual conditions, such as shipping and unloading charges, container loading and unloading charges, etc., as stated in the primary facts charged against each of the Defendants, but asserted that the instant extra funds were created to be used directly or indirectly for the purpose of use related to the business affairs of Nonindicted Company 1, i.e., refund to the trader, executive and employee operating expenses, organization operation expenses, etc., and thus, there was no intent of unlawful acquisition.

2. Review of legal principles

The crime of embezzlement in the course of occupational embezzlement refers to any act of realizing the intention of unlawful acquisition. The crime of embezzlement is established when there is an objective act that can be perceived from the outside of the intention of unlawful acquisition. The intention of unlawful acquisition refers to the actual or legal intent to dispose of another's property in violation of his/her occupational duty for the purpose of seeking the benefit of himself/herself or a third party, and the fact that the act of embezzlement was committed as an act of realizing the intention of unlawful acquisition should be proved by strict evidence with probative value that makes the prosecutor feel undefasible to the extent that there is no reasonable doubt, and if there is no such evidence, even if there is suspicion of guilt against the defendant, the profit of the defendant shall be judged as the profit of the defendant (see, e.g., Supreme Court Decision 2006Do3039, Aug. 24, 2006).

Meanwhile, in a case where an operator or a manager of a corporation, not for a corporation, has no relationship with a corporation, or has created funds separate from a corporation for personal purposes, the act of creating the corporation itself shall be deemed as realizing the intent of unlawful acquisition. However, whether there was an intent to deduct the corporation’s funds and return the funds to the said act, shall be determined by comprehensively taking into account all the circumstances, such as the nature of the corporation and the motive, method, size, period, method and period of raising funds, method and actual use of the funds (see, e.g., Supreme Court Decision 2006Do6994, Feb. 12, 2009).

3. Fact finding;

According to the evidence duly examined by this court, the following facts can be acknowledged.

A. Non-Indicted 1 Company is a large-scale logistics enterprise that runs cargo transport, port loading and unloading, container terminal business, warehouse business, etc., and its employees reach 6,000 persons, and has 38 branches nationwide. Non-Indicted 1 Company was affiliated with △△ Group. On November 2000, as Non-Indicted 15 Company was finally insolvent, Non-Indicted 1 Company guaranteed a construction contract with the number of rivis of Non-Indicted 15 Company, which was decided to start corporate reorganization on November 24, 200, and was decided to revise the company reorganization plan on June 24, 2001. Non-Indicted 1 Company was approved to revise the company reorganization plan on March 28, 2008 by inserting annual average sales revenue of approximately 1 through 1 Articles 1, 200, and 40 billion won (the investigation records of this case, 2009; hereinafter the investigation records of this case).

B. Following the commencement of the legal management procedure with respect to Nonindicted Company 1, the use of business expenses without evidential documents, such as receipts, is restricted. Defendant 2, the head of the Busan branch office, the largest size of which, among Nonindicted Company 1’s branch offices, was reduced to KRW 10 million per annum, Defendant 2, the head of the Busan branch office, ordered Defendant 1, the head of the planning team, to make payment for the conclusion and renewal of the contract to Defendant 1, the transaction agent, Nonindicted Party 10, the legal manager of the head office of Nonindicted Company 1, the Busan branch office, the operation expenses of the Busan branch office, the organization expenses of the Busan branch office, the organization expenses of the head office of the Busan branch office, and the head of the Busan branch office, to raise extra-party funds in order to raise funds to cover expenses difficult to process, such as receipt for payment of credit cards (the investigation record of the case in question, KRW 3707, 3960,

C. Accordingly, from July 2, 2001 to December 15, 2005, Defendant 1 raised the extra funds of KRW 17,027,527,678, such as the list Nos. 1 to 955 of the List of Offenses (10) from July 2, 2001, to December 15, 2005, which is from July 2, 2001, and the following methods are as follows (the investigation records of this case 3927 pages, 4089 pages, 5010 pages).

① Defendant 2 (after Defendant 2 was transferred to the statutory manager of Nonindicted Company 1 on July 1, 2005, Defendant 4), who instructed Defendant 1 to create an out-of-the-counter fund in order to raise a refund, etc. to a trader’s company, ② Defendant 1 sent a refund to Nonindicted Company 1’s Busan District Planning Team’s staff, and a camera with the amount of the refund. ③ The above Planning Team’s staff made the advance payment check with the name of falsity, such as prior loading and unloading charges, container loading charges, etc., and obtained the approval of the above Planning Team’s head office, Defendant 3, Defendant 1, Defendant 2 (or Defendant 4) of the planning team leader, Busan District Head Office, and Defendant 1’s head office to pay the full amount of the money deposit to Defendant 1’s company or its head office to the Busan District Court’s staff upon receipt of the approval of the Fund’s head office or its head office, and Defendant 1’s employee paid the money deposit to Defendant 1’s director after receiving the approval of the Fund.

D. On July 1, 2005, Defendant 2 was the legal manager of Nonindicted Company 1’s head office, and Defendant 1 was transferred to the president of the last place of origin of Nonindicted Company 1 on December 15, 2005, and Defendant 4, the head of the last place of Busan, Busan, and Defendant 3, the head of the last place of the planning team, transferred the creation of the above side funds to Defendant 3. Accordingly, Defendant 3 also created the outside fund in the above manner. The outside fund that Defendant 3 received from December 21, 2005 to October 15, 2007, or was deposited into the account under Defendant 3’s name, was transferred to KRW 5,963,262,250 (the investigation records of this case reached KRW 375) as stated in the attached list of crimes (10) No. 956 through No. 1380 (the investigation records of this case).

E. Defendant 1 and 3 stored the extra funds created as above in cash (or unconstitutional checks) or deposited them in their personal accounts under their names. However, Defendant 1 and 3 deposited funds in each of the above accounts at any time, and Defendant 1 used part of the extra funds kept in his own account as personal stock investment funds (3698 pages, 3716 pages, 3965 pages).

F. While Defendant 2 worked as the head of Busan branch office, Defendant 1 received the extra funds created as above from Defendant 1 on the following grounds. Defendant 2 deposited part of the extra funds received into the account in the name of the principal or his family, or used it as personal stock investment funds (the investigation records of the case 4972 pages, 5324 pages).

(1) Credit card settlement for Defendant 2’s use of personal credit cards for business activities such as refund money to be paid to Nonindicted 6 and Nonindicted 9, and entertainment expenses for customers: approximately KRW 60 million per month (6049 pages, 6584 pages of the investigation records of the case at issue)

(2) Maintenance expenses for the president to deliver the head office to Nonindicted 10: KRW 20 million each month from March 2001 to March 2002; KRW 60 million each month from April 2002 to April 2003; KRW 80 million from May 2003 to April 2005 each month (this case’s investigation records)

G. While Defendant 4 worked as the head of Busan Branch, Defendant 1 and 3 received the extra funds created as above on the following grounds.

(1) Refund money for Nonindicted 9 and Nonindicted 6 corporations to be delivered to Defendant 2: USD 20,000 per month of Nonindicted 6 corporations, USD 10,00 per month of Nonindicted 9 foreign corporations (the investigation records of the instant case 6225 pages)

(2) Money to be delivered to Nonindicted Co. 3’s Busan District President: from July 2005 to September 5, 2007, the amount of KRW 5 million per month (the investigation records of the above case, 6225 pages, 6228 pages)

(3) Expenses to maintain the dignity of the president of the head office to be delivered to Defendant 2: approximately KRW 30 million each month from July 2005 to March 2006, KRW 70 million from April 2006 to December 2006, KRW 50 million each month from January 2007 to October 2007 ( KRW 50 million from January 2007 to October 2007).

(4) Card settlement for Defendant 4’s use of personal credit cards for business activities such as business expenses and entertainment expenses for customers: an average of approximately KRW 100 million per month (650 pages of the investigation records of the case)

H. While Defendant 2 serves as the legal manager or representative director of the head office, Defendant 2 received out-of-the-counter funds created as above from Defendant 4 on the following grounds.

(1) Refund money to be paid to Nonindicted 6 or Nonindicted 9: USD 20,000 per month of Nonindicted 6 corporation and USD 10,000 per month of Nonindicted 9 foreign corporation (the investigation records of the case at issue 6225 pages, 6228 pages).

(2) Expenses to maintain the dignity of the president of the head office: approximately KRW 30 million per month from July 2005 to March 2006, KRW 70 million from April 2006 to December 2006, KRW 50 million per month from January 2007 to October 2007, KRW 50 million per month (the above investigation records 5237 pages, 5240 pages, 6646 pages).

I. In addition to Defendant 2 or Defendant 4, the president of the Busan District Court, Defendant 1 and 3 disbursed the extra funds created under the following circumstances (the 2 pages of Nonindicted Party 18 Examination Protocol, 3716 pages, 3728 pages, 3919 pages, 3939 pages, 3942 pages, 6208 pages, 6208 pages).

(1) Payment of a refund to Nonindicted Co. 7, Nonindicted Co. 20, Nonindicted Co. 21, and Nonindicted Co. 5

(2) Subsidization of business expenses of the head office

(c) Business expenses and organizational operation expenses of the branch office in Busan (ordinary survey expenses, welfare expenses, meal expenses, etc.);

(j) As above, Defendant 1 and 3 did not attach most evidentiary documents to the extra funds raised from the Nonindicted Company 1’s corporate funds as advance payments, or did accounting as operating expenses at the end of the month with false evidentiary documents attached using a simplified receipt. At intervals of 3 to 4 days, each time they prepared a false advance payment slip, and the above report was kept by the head of the Busan branch office, and reported the report to the head of the Busan branch office once a month, and then discarded the data. After separately preparing a report on the summary of the funds raised and used before discarding the above monthly report and the report on the report on the head office including the normal business expenses, the documents were discarded. After receiving the approval from the head of the Busan branch office, Defendant 1 and 3 sent it by facsimile to the head office planning team of the Nonindicted Company 1 (the above investigation record of the case was 3708 pages, 3726 pages, 3913, 3962).

4. Determination

In light of the above legal principles, it is difficult to apply the above legal principles to raise funds to KRW 2,90,789,928 among non-indicted 1's non-indicted 1's officers and employees, and the non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's funds were deposited in their own account or deposited in cash (or unconstitutional checks) for the purpose of raising funds for the non-indicted 2's non-indicted 1's non-indicted 1's non-indicted 4's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted company's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted company's non-indicted company's non-indicted 1's non-indicted company's non-indicted 1's non-indicted 2's funds's non-indicted 1's profits.

5. Sub-committee

Therefore, the prosecutor's act of raising extra funds by Defendant 1, 2, 3, and 4 on the premise that "in the time of raising extra funds" is the time of embezzlement, constitutes a case where there is no proof of a crime. The part of Paragraph (1) of the above facts charged and the ancillary facts charged against Defendant 1, 3, and 4, and the above facts charged and the ancillary facts charged against Defendant 2, among the facts charged and the ancillary facts charged against Defendant 2, constitutes a case where there is no proof of a crime.

IV. Whether Defendant 2 embezzled approximately KRW 2.45 billion received as the president’s expenses to maintain dignity and the payment for the renewal of the contract (related to the above part of Section 1.2(b))

1. Part concerning the embezzlement of expenses to maintain the dignity of the president

A. The gist of the defendant 2's lawsuit

Defendant 2 received money from Defendant 4 from July 2005 to October 2007 under the pretext of “the president’s dignity maintenance expense,” but the amount does not reach a total of KRW 1.6 billion as indicated in the facts charged. Defendant 2 received the said money to use it as expenses for business activities of the legal manager of the headquarters, such as entertainment expenses for the company, etc. including the company’s company, expenses for visiting domestic places of business, personnel encouragement expenses, expenses for overseas business trips, funds for overseas business trips, and encouragement of workers who are dispatched to Rivia, and actually used it for the above purpose, but not for personal purposes. Accordingly, Defendant 2 received money from the overseas funds of this case under the name of the president’s duty to maintain the dignity, and the entire amount received as such does not constitute embezzlement.

B. Review of legal principles

Since the burden of proof regarding the intention of unlawful acquisition is limited to the prosecutor, the prosecutor has the authority to use the money with a wide range of discretion on the specific purpose of use, place of use, timing of use, etc. Even if the purpose of use is specified abstractly, and if it is of the nature for which post-report or submission of evidentiary materials is not required after the payment was made, the custodian shall not be held to have the intent of unlawful acquisition without permission on the ground that he used the money, his whereabouts and place of use, and failed to properly explain it, or failed to submit evidentiary materials, and regardless of the original purpose of use, the prosecutor must prove the circumstances that recognize the intention of unlawful acquisition, such as the money was disbursed for personal interests or spent excessive beyond the reasonable scope, regardless of the original purpose of use.

A corporation or organization has the nature of reimbursement for actual expenses, such as compensating for expenses incurred in performing its duties, which are paid by the so-called sales and official expenses or business promotion expenses pursuant to the articles of incorporation or other regulations for expenses incurred in performing its duties, and where the articles of incorporation or its payment criteria comprehensively provide for expenses incurred in performing its duties, but does not require evidentiary documents, such as the receipt for such expenses, the judgment on the place and scale of use and the relevant work should be given to the executive officers and employees, and such judgment should be respected first. Therefore, in order to recognize the payment of the sales and official expenses as embezzlement with the intent of unlawful acquisition, it should be proven that the sales and official expenses, etc. were disbursed for personal interests without relation to their duties or excessive disbursement beyond a reasonable scope even if they were related to their duties, and it should not be presumed that the executive officers and employees using the sales and official expenses, etc. failed to properly explain their whereabouts and use places or failed to submit evidentiary documents on their use after the fact that they were not embezzled with the intent of unlawful acquisition (see Supreme Court Decision 2007Do59797, Jun. 24, 2010).

C. Determination

Defendant 2 paid a total of KRW 1.4 billion every month from around 00 to March 206 to KRW 30,000, KRW 200, KRW 3000,000 from around 0,000 to around 206, KRW 300,000, KRW 500,000 from around January 207, and KRW 1.4 billion from around 30,000 to around 20,000 as well as KRW 20,00,000, KRW 30,000,000, KRW 40,000 as well as KRW 5,00,00, KRW 20,000, KRW 3,000 from around 205 to around 30,00 as well as KRW 3,00,00,00, KRW 4,000,00.

On the other hand, as seen earlier, the “expenses for the maintenance of the president’s dignity” of Nonindicted Company 1 refers to expenses for the sales of the president of the head office for occupational expenditure for which it is difficult to process receipts, such as light investigation expenses, customer golf entertainment expenses, domestic and foreign employees encouragement expenses, and the management expenses of the ordering office. The above purpose of the expenses for the maintenance of the president’s dignity is only expenses incurred ordinarily in the course of the operation of Nonindicted Company 1, and it is difficult to recognize the existence of Defendant 2’s intent for unlawful acquisition. Thus, even though Defendant 2 did not have any grounds for such withdrawal in the internal regulations of Nonindicted Company 1 in withdrawing the funds from the funds from the funds outside of this case under the name of the president’s head office, it cannot be deemed that Defendant 2 had any intention for unlawful acquisition with respect to the withdrawal of the funds from the outside of this case under the name of non-indicted 1, because of the general nature of the funds from the outside of the head office.

The prosecutor appears to have charged Defendant 2 with the crime of embezzlement on the ground that Defendant 2 deposited part of the funds that Defendant 2 received from outside funds into an account in the name of himself/herself or his/her family, or used personal stock investment funds, and Defendant 2 did not have any objective data on the details of his/her use claimed by Defendant 2. However, Defendant 2 cannot be deemed to have been charged with the crime of embezzlement by receiving the total amount of the funds that Defendant 2 withdrawn under the name of president’s “expenses for the maintenance of president’s dignity” under the internal practice of Nonindicted Company 1, and there was a wide range of discretion on the specific purpose, place, time, etc. of use of “the expenses for the maintenance of president’s dignity” under the internal practice of Nonindicted Company 1, and the submission of evidentiary materials after the disbursement was not necessarily required. Considering that there was no need for submission of evidentiary materials after the disbursement, the prosecutor did not assert and prove that Defendant 2 paid the sales fund received as above for personal interests without relation to his/her business or that it was excessively excessive beyond the reasonable scope.

2. The portion of embezzlement of the contract renewal price for Nonindicted 6 and Nonindicted 9.

A. Summary of the defendant's lawsuit

Defendant 2 received USD 20,00 per month from Defendant 4 to October 2007 as the price for renewal of the contract with Nonindicted Corporation 6, and USD 10,00 per month from Nonindicted Corporation 2 to Nonindicted Corporation 9. However, Defendant 2 used USD 10,00 among USD 20,00 per month received as the price for renewal of the contract with Nonindicted Corporation 6 to Nonindicted Corporation 26 (from July 2005 to July 2006) or Nonindicted Corporation 4 (from August 2007 to October 2007) in order to deliver 10,00 per month to Nonindicted Corporation 3’s Chairperson 26 (from July 2005 to July 2007 to Nonindicted Corporation 2, 200, the remainder of USD 10,000 was paid to Nonindicted Corporation 6’s head office in Switzerland or to Nonindicted Corporation 6’s local head office in Singapore, or Defendant 2 was used for renewal of the contract with Nonindicted Corporation 94 in China.

B. Review of legal principles

Unless it is acknowledged that the defendant did not properly explain his whereabouts or the place of use, or that the funds used in the place of use claimed by the defendant were appropriated to other funds than those of the non-funds, etc., even though the defendant was withdrawn or used, if there are insufficient materials to recognize that the non-funds were used in the place of use claimed by the defendant, and rather, if there are many materials to prove that the defendant used the non-funds for personal purposes, it may be presumed that the defendant embezzled the funds with the intent of unlawful acquisition. However, if there are materials corresponding thereto, the defendant explained the location or place of use of the non-funds for the reason that it is difficult to recognize the existence of the intention of unlawful acquisition, and if there are materials corresponding thereto, it cannot be deemed that the defendant embezzled the funds by withdrawing it with the intent of unlawful acquisition (see, e.g., Supreme Court Decision 2007Do4784, Feb. 26, 2009).

C. Determination

Defendant 2 received USD 20,00 per month from Defendant 4 to October 2007 as the payment for the renewal of the contract with Nonindicted Corporation 6, and USD 8,40,00 per month as the payment for the renewal of the contract with Nonindicted Corporation 9, as recognized in the above Section 3.3. The fact that Defendant 2 received USD 140,00 per month from Defendant 4 as the payment for the renewal of the contract with Nonindicted Corporation 6, and it is recognized as recognized in the above Section 3.3. The crime of occupational embezzlement is established as stated in the judgment, with respect to USD 140,00 that Defendant 2 used from August 2006 to November 206 and from January 2007 to October 2007 as the payment for the renewal of the contract with Nonindicted Corporation 4.

Therefore, Defendant 2 asserted that the remainder of USD 700,000,00, excluding USD 140,000, which was found guilty among USD 8.40,00 which Defendant 2 received, was using the said money in paying the cost for renewal of the contract with Nonindicted Corporation 6 and Nonindicted Corporation 9 as stated in the summary of the above change suit. Defendant 2 made a request for convenience for renewal of contract with Nonindicted Corporation 6 and Nonindicted Corporation 9 and made payment of money to Nonindicted Corporation 6 or a business operator of Nonindicted Corporation 9 constitutes a crime of breach of trust. As such, it is difficult to recognize Defendant 2’s intent to obtain unlawful acquisition of the above money by deeming it as the content of the request, and as long as there is evidence consistent with the above argument as seen in the above argument of Defendant 2, Defendant 2, without permission, cannot be recognized as Defendant 4’s embezzlement with Defendant 2’s intent of embezzlement of KRW 700,000,000 out of Nonindicted Corporation 6 and Nonindicted Corporation 9.

4. Sub-committee

Thus, among the ancillary facts charged against Defendant 2, Paragraph (2) constitutes a case where there is no proof of crime.

V. Conclusion

Therefore, since the above facts charged and the ancillary facts charged against Defendant 1, 3, and 4 constitute a case where there is no proof of a crime, it shall be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. The above facts charged and the ancillary facts charged against Defendant 2 constitute a case where there is no proof of a crime, and thus, it shall be sentenced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, since there is a ground for finding Defendant 2 guilty of a crime of occupational embezzlement as stated in the judgment regarding a single comprehensive crime with Paragraph

2009Gohap1314>

I. Of the facts charged in the instant case, the point of taking property in breach of trust against Defendant 6 and the point of taking property in breach of trust against Defendant 4

Defendant 6 is a person responsible for managing the entry, departure, etc. of containers transported or transshipped through the Busan ○ Terminal while working as the Busan branch office of Nonindicted Co. 3.

Defendant 4 works as the head of the Busan branch office of the above Nonindicted Company 1 from July 1, 2005 to October 15, 2007, and was in charge of the affairs of the Busan branch office.

1. Defendant 6

Defendant 6 received a total of KRW 130 million from September 2007, as shown in the crime sight (5) as shown in the attached Table, from Nonindicted Co. 3’s Busan Branch Office located in Jung-gu, Busan (hereinafter address 4 omitted) around August 2005, to receive KRW 5 million from Defendant 4, and from September 26, 2007.

Defendant 6 received the above money from Defendant 4 on the illegal solicitation that Nonindicted Company 1 was given for various convenience in loading and unloading at the Busan ○○ Terminal where Nonindicted Company 3 handled a container for transportation of Nonindicted Company 6 in Korea.

Defendant 6 thereby acquired KRW 130 million from Defendant 4 along with an illegal solicitation.

2. Defendant 4

Around December 2006, the Defendant, like the foregoing paragraph (1) above, granted Defendant 6 KRW 5 million in total over 10,000,000, as shown in the crime list (8) by September 2007, as well as the provision of KRW 5 million with the above illegal solicitation.

Ⅱ Summary of Defendant 6 and 4’s defense

1. The gist of the defendant 6's lawsuit

Defendant 6 received KRW 130 million from Defendant 4 as indicated in the facts charged, but there was no illegal solicitation with regard to Defendant 6’s business affairs. The schedule for the operation of Nonindicted Corporation 6’s vessel was processed globally, and Defendant 6, the president of Nonindicted Company 3 Busan District Court, did not have any discretion to load and unload, and keep the containers transported by Nonindicted Company 6.

2. The gist of the defendant 4's lawsuit

피고인 4가 위 공소사실 기재와 같이 피고인 6에게 5,000만 원을 공여한 것은 맞으나, 피고인 4는 피고인 6에게 매월 500만 원을 지급하라는 전임자 피고인 2의 지시에 따라, 편의를 봐줘서 고맙다는 의미에서 피고인 6에게 돈을 지급한 것일 뿐, 부정한 청탁은 하지 않았다.

III. Judgment

1. Fact-finding;

According to the evidence duly examined by this court, the following facts can be acknowledged.

A. Nonindicted Co. 6 is a company operating an international maritime transport business with more than 400 vessels. Nonindicted Co. 6’s scheduled time of entry and departure of Nonindicted Co. 6’s vessels to arrive at each port of the world, and the volume of containers to be unloaded, etc. are notified to each of the relevant branches one week prior to entry into and departure from the headquarters of Nonindicted Co. 6’s corporation in Switzerland and the regional navigation headquarters in Singapore. Nonindicted Co. 3’s Busan Office is notified immediately upon receipt of the above notification to the shipper, and takes the necessary procedures for entry and departure, such as notification to the pilot before arrival, and notification to the pilot. All of the above tasks are conducted according to the schedule processed worldwide. Nonindicted Co. 1 established a loading and unloading plan in accordance with the Busan’s notification to Nonindicted Co. 3’s office for one week prior to arrival, notified Nonindicted Co. 3 of the scheduled arrival time, notified Nonindicted Co. 3’s arrival, and confirmed whether there was any change even before two days prior to arrival and one day prior to arrival.

B. In the event of the occurrence of a situation, such as the lump sum sinking of the vessel to the ○○ Terminal operated by Nonindicted Company 1, it is necessary to adjust the arrival time or the order of loading and unloading between Nonindicted Company 6 and Nonindicted Company 1. The aforementioned circumstance also leads to the occurrence of the causes attributable to Nonindicted Company 1, such as the delay in departure of a vessel entering or unloading at the ○○ Terminal by another vessel, which is traded by Nonindicted Company 1, or the delay in departure of a loading and unloading, or the occurrence of the ○○ Terminal’s loading and unloading equipment, etc., and the occurrence of the causes attributable to Nonindicted Corporation 6’s fault, such as the malfunction of weather or the failure of Nonindicted Corporation 6 to enter as specified.

C. Defendant 6, the president of the Busan District Office of Nonindicted Co. 3, has overall control over the affairs of attaching Nonindicted Co. 6’s ship to the ○○ Terminal m, and Nonindicted Co. 1’s ○○ Terminal Head of Nonindicted Co. 57 has overall control over the affairs of loading and unloading on the ship. Nonindicted Co. 57 has received concessions by requesting the Defendant 6 to change the contact time or the order of loading and unloading on the ship due to the circumstances on the part of Nonindicted Co. 1, 2-3 days prior to the entry into the port where it is necessary to adjust the contact time or the order of loading and unloading on the part of Nonindicted Co. 1.

D. Defendant 6 received the above request to change the time of the landing or the loading and unloading order, and immediately notified it to the extreme Dong area headquarters located in Singapore to permit the change of the operation headquarters if the approval of the operation headquarters was granted. Defendant 6 did not approach the ○○ Terminal even if the mar of the mar of the mar of the marb, but did not yield the order of loading and unloading to other ships, and if the marb of the mar of the marb was changed to the order of loading and unloading, the Busan Port granted the mar status at the service level and exempted the expense.

E. Defendant 2, the former head office of Nonindicted Company 1’s Busan branch, transferred to the legal manager of the headquarters, and Defendant 4, the latter head office of Busan Busan branch, was the president of the headquarters, and Defendant 6, who is the first ship company contracted with Nonindicted Company 1 and received a large amount of help to cooperate with Nonindicted Company 1, so it is necessary to help Defendant 6 pay KRW 5 million per month to Defendant 6. Defendant 4 instructed Defendant 6 to pay KRW 5 million each month from July 2005 to October 207, 2007, and Defendant 6 met only at the end of the week, or she saw Defendant 6 to “a large amount of convenience to work, so that she can see Defendant 5 million won” (Article 209Da1314, 1172, 1255 pages of the investigation records of this case, 1255 pages).

2. Review of legal principles

The crime of taking property in breach of trust under Article 357 (1) of the Criminal Act requires that a person who administers another person's business receives an illegal solicitation in connection with his/her business affairs. Such solicitation does not necessarily require that it is explicit. However, the content of the solicitation requires that it relates to specific and specific duties, and the acquisition of property or pecuniary benefits in relation to the duties does not constitute a crime of taking property in breach of trust (see Supreme Court Decision 83Do2472, Dec. 27, 1983).

In addition, the "illegal solicitation" in the crime of giving and receiving property in breach of trust refers to a solicitation that is contrary to social rules or the principle of good faith. Thus, if the solicitation is merely a mere expression that the highest preference is within the scope permitted by the provisions, it cannot be deemed an illegal solicitation that is contrary to social rules. Therefore, accepting money and valuables as a case of such solicitation does not constitute a crime of giving and receiving property in breach of trust or receiving property in breach of trust (see Supreme Court Decision 82Do1656, Sept. 28, 1982).

3. Determination

A. While examining all the evidence submitted by the prosecutor as to whether Defendant 6 received KRW 5 million each month from Defendant 4 and received “illegal solicitation with a specific and specific content”, there is no evidence to deem that Defendant 4 explicitly made a specific and specific illegal solicitation with Defendant 6.

B. Even if Defendant 4 impliedly made a solicitation that “if Nonindicted 6’s landing time or the order of loading and unloading is to be changed due to the circumstances on the part of Nonindicted Company 1, it may be interpreted that Defendant 4’s money to Defendant 6, she would be the party in charge of: (a) the following circumstances are as follows; (b) the situation in need of changing the landing time or the order of loading and unloading is not only attributable to Nonindicted Company 1; (c) the situation in need of changing the landing time or the order of loading and unloading is not attributable to Nonindicted Corporation 6’s fault; (d) the navigation schedule of Nonindicted Corporation 6 was processed globally, and (e) the operation schedule of Nonindicted Corporation 6 was processed by electronic data processing, and thus, if Defendant 6 is requested to change the landing time or the order of loading and unloading due to Nonindicted Company 1’s global circumstances, it does not constitute an additional provision that permits Nonindicted Corporation 6 to change the landing order or landing order, even if Nonindicted Corporation 6 was immediately notified of the situation at the port of loading and unloading.”

C. In addition, Defendant 4 made a solicitation to the effect that, in light of the above statement, Defendant 4 made an implied solicitation to the effect that, “if this part of the investigation (the time of contact or change of loading and unloading order) is not well-grounded, Defendant 6’s negative report to Nonindicted Company 1 at the head office, it may affect the contract or water quantity between Nonindicted Company 1 and Nonindicted Corporation 6” (in light of the above investigation record 1256 pages), Defendant 4’s offering monthly money to Defendant 6 at the time of examination of the suspect, it is merely a mere mere fact that Defendant 6 maintained a good relationship at the time of exchange, and thus, it cannot be deemed an illegal solicitation contrary to social rules or the principle of good faith.”

IV. Conclusion

Therefore, among the facts charged in the instant case, the point of taking property in breach of trust against Defendant 6 and the point of taking property in breach of trust against Defendant 4 constitutes a case where there is no proof of crime, and thus, each not guilty is pronounced pursuant to the latter part of Article 325 of the

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

[Attachment]

Judges Lee Jong-young (Presiding Judge)

1) As a Korean subsidiary of Nonindicted 6’s legal entity, Nonindicted 6’s legal entity is established in Korea to select Nonindicted 6’s legal entity to load, unload, and store containers transported to the Republic of Korea, and to have Nonindicted 6 enter into a contract with that company or Nonindicted 6’s legal entity or enter into a direct contract on behalf of Nonindicted 6 legal entity.

Note 2) The concept of the general term of loading, unloading, storage, transportation, etc.

Note 3) The number of offenses set forth in [Attachment 10] and (11) set forth in [Attachment 1] to 954.

4) From July 2, 2001 to June 29, 2005, Defendant 2’s instructions (attached Form 11 Nos. 1 to 843), from July 6, 2005 to December 15, 2005, Defendant 4’s instructions (attached Table 11 No. 844 to 954) (attached Table 11)

(5) From July 2, 2001 to June 29, 2005, Defendant 2 and public offering (attached Form 11 No. 1 to 843) (attached Form 11), from July 6, 2005 to December 15, 2005, Defendant 4 and public offering (attached Form 11 No. 844 to 954)

Note 6) The remainder except the part found guilty as stated in the facts constituting the crime No. 1 of the judgment.

Note 7) From July 6, 2005 to December 15, 2005 (attached Form 11 Nos. 844 to 955) Defendant 1 and Defendant 3, respectively, and thereafter from October 15, 2007 (attached Form 11 No. 956 to 1380)

8) Through the written opinion dated November 27, 2009, the prosecutor made it clear that the instant prosecution was instituted on the premise that the crime of embezzlement was established at the time of raising funds outside the country, and maintained the above position as it is even through each written opinion dated January 25, 2010 and September 15, 2010. Meanwhile, the prosecutor resumed the pleadings closed on the 12th trial day of the instant case to review whether the indictment was modified on the 13th trial day, but the indictment was not modified, and then the pleadings of the instant case were closed again on the 14th trial day as they were on the 14th trial day.

9) Attached Table of Crimes (9), (10) and attached Table of Crimes (11), the date and amount of embezzlement, and the method of embezzlement as to the primary facts charged, are the same.

10) Of the ancillary facts charged against Defendant 2, the Prosecutor outlined that Defendant 2 did not specify the time, name, and amount that Defendant 2 actually used the said money, among the time, name, and amount that Defendant 2 received from Defendant 4.

Note 11) “The maintenance expenses of president’s dignity” means the expenses of the head office for occupational expenditure for which it is difficult to process receipts, such as light survey expenses, transaction golf expenses, domestic and foreign staff encouragement expenses, and the management expenses of the ordering office with the number of rivia, etc. (the investigation records of the case 6051 pages).

Note 12) The term “business activity cost of a branch president” means the cost of the branch office for occupational expenditure difficult to process receipts, such as entertainment expenses, such as the press related to the business, golf entertainment expenses, competition investigation expenses, promotion cost of on-site work, and subsidy for business trip (650 pages of the investigation records of the case).