(영문) 서울고등법원 2013. 8. 30. 선고 2012노803 판결

When Defendant 1 fails to pay the above fine, Defendant 1 shall be confined in a workhouse for the period calculated by converting the amount of KRW 4 million into one day.

However, with respect to Defendant 1, the execution of the above imprisonment shall be suspended for two years from the date this judgment becomes final and conclusive.

Of the facts charged in the instant case against Defendant 1, the charge of taking property in breach of trust from Nonindicted 1 and Defendant 2 and Defendant 3 are acquitted.

The prosecutor's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. Public prosecutor (a factual error or misunderstanding of legal principles);

1) The part on the Defendants’ property in breach of trust from Nonindicted 1

Nonindicted 1 paid 50,000 won and 2% of the profits per store in return for the salesroom located in the Korea Home Pure Co., Ltd. (hereinafter “Korea Home Pure”) to the Defendants, and even though it is apparent that he paid all profits except labor expenses and expenses, etc. in connection with Embry salesroom, Nonindicted 1 and Defendant 3 paid KRW 500,000 to the Defendant 1 and Defendant 3 fixed to the Korea Gazure, he only took advantage of the lack of credibility that the transfer cost of the right to store management includes credibility, thereby deeming the amount of property in breach of trust to be the amount in excess of the amount in excess of the total amount.

2) The part on taking property in breach of trust by Defendant 3 against Defendant 1 and Defendant 2

In light of the contents of passbook transferred from the above defendant 3 and the head of passbook to the non-indicted 9 and the defendant 13, the above defendant 3 clearly stated that the prosecutor made a statement on the fact that it had been extended to the defendant 1 through the defendant 2, and among the seized articles of defendant 2, there was an increase in the amount received from the above defendant 3 among the seized articles of defendant 2, and in light of the contents of passbook remitted from the above defendant 3 and the head of the Tong to the non-indicted 10, the court below acquitted the defendant 3 even though

3) The violation of the Processing of Livestock Products Act and the fraud part against Defendant 1 and Defendant 2

The court below rejected Nonindicted 1’s statement on the ground that there was a mixture of words “other than the disposal” in the process of the inventory disposal of the U.S. beef “documents” even if it was clearly confirmed by the relevant person’s statement that there was a U.S. head office policy for the disposal of U.S. beef likely to be infected by Mad Cow Disease, and rejected Nonindicted 1’s statement based on the presumption that it was difficult to de facto modify the relevant quantity and there was a large number of Sticks and the risk of damage to rap in the event of the alteration of the distribution term due to Nonindicted 1’s statement, despite the fact that the expiration date of 10 months was publicly known in the industry, and that there was a clear fact that the distribution term of the freezing meat was altered by Nonindicted 1’s statement, the court below found the Defendants not guilty of the fact that the SDR might contain other beef in the process of separation of SDR and other beef.

B. Defendant 1 and Defendant 2

1) misunderstanding of facts or misapprehension of legal principles

A) The point of taking property in breach of trust from Nonindicted 1 (defendants)

① Defendant 1 was the director in charge of product development, and the duties of selecting new suppliers were in charge of Nonindicted 11 and Nonindicted 12, and Defendant 1 did not have the authority to select the supplier.

② Defendant 1 does not have to demand the extension of construction to Nonindicted 1, or to instruct Defendant 2 to make an objection against the extension with Defendant 3 and Nonindicted 1.

③ Since Nonindicted 1 assumed all the rights and obligations of Defendant 3 related to the distribution and sale of the △△△△ Functional District, Nonindicted 1 was merely obligated to remit the amount equivalent to 2% of the sales amount to Defendant 2 according to the initial agreement.

④ Even if the lower court did not disclose to Defendant 1 what “unlawful solicitation” was made, and the Nonindicted Party 1 requested to recommend the Korea Dazur so that it can become a new supplier to Defendant 1, it is merely a request for Defendant 1’s ordinary and justifiable business promotion, and thus, it cannot be an illegal solicitation.

B) Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Taxes) and Punishment of Tax Evaders (Defendant 1)

(1) The transaction between △△ Livestock Cooperatives and Korea Dor Food, etc. was the supply of livestock products between the entities in which the supply of livestock products was actually conducted, and the transaction was not conducted in disguised manner for △△ Livestock Cooperative Distribution Business Association.

② △△ Livestock Cooperative Distribution Business Association was able to supplement parts of meat processing and distribution personnel so that it can ensure smooth supply of goods to large-scale discount points, and it was not intended to satisfy the requirements for On-the-Spot Livestock Cooperative Distribution Business Association for the large number of large-scale discount points, and it is not intended to evade taxes.

(3) The crime of tax evasion shall not be committed only with the operation of an unregistered company which has not completed its business registration or the mere payment of taxes.

④ In light of the background and circumstances leading to the instant crime of tax evasion, this part of the indictment is not affected by personal appraisal, local special circumstances, or temporary interest, and constitutes “an abuse of the right to institute prosecution” to destroy the purport that the prosecutor granted the authority to conduct disinfection to exercise the right to institute a public prosecution fairly and fairly from the State.

⑤ Since search and seizure against Defendant 1, etc. by the prosecution was unlawful and tax accounting-related materials, which are the evidence contaminated by illegal search and seizure, were presented to the Seoul Regional Tax Office, the prosecution obtained data equivalent to the second evidence as the proviso to investigation. As such, the relevant evidence of the crime of tax evasion of this case’s admissibility should be denied in accordance with the principle of exclusion of illegally collected evidence, and thus, acquitted.

2) Unreasonable sentencing (the defendants)

The sentence of the lower court against the Defendants (Defendant 1: 4 years of the suspended sentence of two years and six months of imprisonment, 4 billion won of fine, 2 years of the suspended sentence of imprisonment, 1 year of imprisonment and 2 years of the suspended sentence) is too unreasonable.

C. Defendant 3 (Deficior)

The Defendant did not make an illegal solicitation with regard to the supply of the △△△○○ Land to the Defendant 1, and the Defendant did not supply the said land to the Korea Gaz. with the aid of Defendant 1.

2. Determination

A. Determination on the prosecutor’s grounds of appeal

A) The part on the receipt of a breach of trust from Defendant 1 and Defendant 2 to Defendant 3

In full view of the evidence, the lower court determined that: (a) Defendant 3 received monthly funds from Defendant 2 from around September 2002 to November 2004; (b) purchased money from Defendant 2 with this fund; and (c) paid the said money to Defendant 2 with the price of supplied goods; and (d) it appears that Defendant 2 received considerable amount of money from Defendant 2 for Defendant 2; (b) the period of the above funding and the period of breach of trust payment for this part overlaps with the above provision (8 months from around April 2004 to November 204); and (c) it is difficult to readily conclude that Defendant 3 received money from Defendant 2 under the pretext of purchase of money essential for the said money supply business for a long period of more than 2 years; (d) it was difficult to view that there was an amount of money to be less than 20 years from the date of termination of the said funding to May 6, 2006, and that there was no reasonable ground to view that the above amount of money was less than 20 years of investment revenue.

원심과 당심이 적법하게 채택하여 조사한 증거를 종합하면 원심의 사실인정은 정당하다. 이에 더하여 기록에 의하여 나타나는 사정들 즉, ① 상피고인 3은 2002. 5. ~ 6.경 한국까르푸에 자신이 운영하는 ◁◁육가공이 아닌 공소외 39 주식회사의 납품코드를 이용하여 돈육을 납품하기 시작하였는데 한국까르푸로부터 삼겹살 성수기 등 특정시기에 집중적으로 돈육을 납품하는 돈육조달능력을 인정받고, 2002. 7. ~ 8.경 한국까르푸로부터 ◁◁육가공 명의의 상품납품코드를 개설 받았던 점, ② 상피고인 3은 돈육을 구입하기 위하여 양돈농가 또는 지역축협에 선 지급하여야 할 돈육구입자금이 부족하여 제대로 돈육을 납품하지 못할 지경에 이르자, 피고인 1에게 돈육구입자금의 지원을 요청하였고, 이에 피고인 1은 상피고인 3에게 피고인 2를 소개시켜 주었던 점, ③ 상피고인 3은 피고인 2와 사이에 피고인 2가 돈육구입자금을 조달하여 주는 대신 상피고인 3은 피고인 2에게 한국까르푸에 대한 매출액 중 4%를 지급하되 다만 그 지급비율은 향후 시장 상황에 따라 낮추어 조정하기로 약정하였고, 피고인 2는 상피고인 3에 대한 자금 회수를 담보하기 위하여 상피고인 3의 처 공소외 13 명의로 개설한 한국까르푸 돈육 납품대금결재계좌를 관리하면서 매월 결재대금 중 매출액 4%(2004. 이후에는 2%로 조정됨)를 제외한 나머지 금원을 상피고인 3에게 송금하였던 점, ④ 피고인 2가 상피고인 3에게 2002. 9.경부터 2004. 11.경까지 매월 436,000,000원 상당의 돈육구입자금을 지원하였던 점, ⑤ 배임수재죄는 타인의 사무를 처리하는 자가 부정한 청탁의 대가로 재물이나 재산상의 이익을 수수하여야 성립하는 범죄인데, 상피고인 3이 위 약정에 따라 피고인 2에게 지급한 한국까르푸에 대한 돈육매출액 중 4~2%에 해당하는 금원이 피고인 1에게 전달되었거나 실질적으로 귀속되었다고 볼 아무런 자료가 없는 점, ⑥ 피고인 1은 당시 한국까르푸에서 상품개발과장으로 근무하면서 매장관리를 위한 업무메뉴얼의 작성, 배포, 매장 점검 및 직원 교육, 구매대상 상품 발굴 및 추천 등의 업무를 담당하고 있었고, 정육구매, 납품업체 및 매장관리 업무는 공소외 11 과장과 공소외 38 과장이 나누어서 주3) 담당하였으므로 한국까르푸로 돈육을 납품하도록 납품업체를 선정하는 업무는 피고인 1의 업무라고 볼 수 없는 점을 더하여 보면, 피고인 1, 피고인 2가 피고인 3으로부터 교부받은 별지 범죄일람표 3 기재 금액이 부정한 청탁의 대가라는 점에 대하여 합리적 의심을 배제할 만한 증명이 이루어졌다고 보기 어렵다고 한 원심의 판단은 정당하다.

Therefore, the Prosecutor's ground for appeal is rejected.

B) Violation of the Processing of Livestock Products Act and the part on fraud against Defendant 1 and Defendant 2

(1) The violation of Article 33 (1) 2 of the former Processing of Livestock Products Act (amended by Act No. 8852 of Feb. 29, 2008; hereinafter the same)

① The lower court determined that, in light of the fact-finding results, the Ministry of Agriculture and Forestry only took measures to suspend the sale of U.S. beef RM prepared by the Minister of Agriculture and Forestry, and ② the fact-finding results with respect to the National Animal Science Quarantine Service, deeming that the U.S. beef imported in Korea at the time of the suspension of sale did not have direct relations with the U.S. beef RM products at the time of the suspension of sale, but did not take any measures with respect to the U.S. beef RM products at the time of the suspension of sale at the public awareness, and that Japan also took the same measures, and determined that the facts in the indictment are “the same in Japan,” and that Korea has determined “the destruction of all U.S. beef s. beef s. beef s.b., displayed and stored in the store.” However, the lower court determined that it could not be readily concluded that there is no possibility that the U.S. beef s. beef s. were subject to the sale or disposal of livestock products in the form of wholesale or materials.”

In full view of the evidence duly admitted and examined by the lower court, the fact-finding and judgment of the lower court are justifiable.

Therefore, the Prosecutor's argument on this part of the appeal is not accepted.

(2) The violation of Article 33 (1) 9 of the former Processing of Livestock Products Act

원심은 다음의 사정들, 즉 ① 공소외 14는 이 사건 미국산 LA 갈비는 랩 포장을 하고 제품표기사항 스티커를 붙인 후 다시 랩 포장을 하기 때문에 스티커를 칼로 오려내면 랩도 같이 뜯어진다고 진술한 점에 비추어 과연 랩까지 같이 떨어지게 됨에도 불구하고 수천 개(3 내지 4.5kg/12.758톤)에 달하는 포장 랩의 스티커를 칼로 오려냈다는 공소외 1의 진술을 그대로 믿을 수 있을지 의문인 점, ② ▽▽냉장 냉동창고에 입고된 쇠고기의 제조일자는 “2003. 11. 20., 2003. 11. 21., 2003. 11. 27., 2003. 12. 7., 2003. 12. 10., 2003. 12. 11., 2003. 12. 12.”로서 모두 2004. 6. 30.을 기준으로 유통기한 10개월이 경과하지 않는데, ㉠ 피고인들이 수천 박스에 달하는 LA 갈비세트를 ▽▽냉장 냉동창고에 운반하던 도중에, 그 훼손된 랩을 복구하고, 다시 변조된 스티커를 붙여 정상적으로 보이게 한 후, 위 갈비세트를 ▽▽냉장 냉동창고에 입고하였거나, ㉡ 아니면 ▽▽냉장 측과 공모하여 일단 입고확인서는 허위로 작성한 다음 ▽▽냉장 창고에 보관하면서 위 ① 항과 같은 작업을 하였다는 점에 관하여 피고인 1이 작성한 “그 상태에서 유통기한 연장이 가능한가, 제조업체에서 연장한 라벨이 가능한가”라는 메모의 기재만으로는 위와 같은 점들을 인정하기에 부족하고 달리 이를 인정할 만한 증거가 없는 점, ③ 이 사건 미국산 LA 갈비 포장에 관여한 ◐◐◐◐유통 내지 그 자회사인 공소외 15 주식회사의 직원들인 공소외 16, 공소외 17, 공소외 14의 법정진술은 모두 “정확하지는 않지만 2003년 당시 한국까르푸에 납품한 쇠고기의 유통기한이 10개월이었던 것 같다.”는 것으로서 6년 이상이 지난 일에 대한 위 증인들의 위와 같은 추측성 진술을 그대로 믿기는 어렵고, 냉동육의 유통기한은 반드시 10개월로 정해진 것은 아니고 12개월 또는 그 이상으로 정해지는 경우도 있는 점, ④ 증거로 제출된 ◐◐◐◐유통이 발행한 제품표기사항 스티커는 모두 2002년도에 발행된 것으로서 2003년도에 납품한 쇠고기의 유통기한이 위 2002년도 스티커와 같이 6개월(녹색 제품부착스티커) 내지 10개월(붉은색 박스부착스티커)이라고 단정할 수 없을 뿐만 아니라, 공소외 15 주식회사는 2003. 7. 서울 ★★구청에 수입 LA 갈비의 유통기한을 제조일로부터 14개월로 한 품목제조보고서를 제출한 점에 비추어 보면 이 사건 미국산 LA 갈비의 유통기한이 10개월이라고 확신할 수도 없는 점, ⑤ 유통기한이 10개월이라고 하더라도 ▽▽냉장 입고확인서에 제조일자가 2003. 11. 20. 내지 2003. 12. 12.로 기재되어 있는 점에 비추어 볼 때, 공소외 16, 공소외 17, 공소외 14의 법정진술과 ◐◐◐◐유통이 2003. 9. 9.까지만 한국까르푸에 갈비 세트를 납품하였다는 취지의 엑셀 파일 프린트 자료의 기재만으로 이 사건 미국산 LA 갈비가 모두 2003. 8. 30. 이전에 포장된 것으로서 2004. 6. 30.부로 유통기한이 경과하였다는 점이 합리적인 의심 없이 입증되었다고 보기도 어려운 점 등을 종합하여 이 사건 미국산 LA 갈비가 2003. 8. 30. 이전에 포장된 것으로서 2004. 6. 20.부로 유통기한이 경과하였음에도, 피고인들이 허위의 유통기한이 적힌 스티커를 새로 만들어 부착하는 방법으로 위 LA 갈비를 판매하였다는 사실을 전제로 하는 이 부분 축산물가공처리법 위반의 점은 그 유죄의 증명이 부족하다고 판단하였다.

In full view of the evidence duly admitted and examined by the court below, the fact-finding by the court below is justified.

In addition, the following circumstances revealed in the record, i.e., (1) no goods whose distribution period is damaged or not displayed are stored in the company operating the freezing, and (2) at the time Nonindicted 18, who was confirmed to have the sample sample of the United States of America at the time, was found to have been dried and inspected to purchase the cost of the instant LA to have been processed, and it is hard to view that there was a false statement made by the court below to have been purchased at the time of purchasing the above portion of the goods to have been purchased at the time of 3 months on the premise that it was not sufficient to have been purchased at the time when it was purchased at the time when it was purchased at the time of the above 2th century because it was not processed after the process, and it was turned into the frozen warehouse in the form of vinyl without the long time."

Therefore, the Prosecutor's argument on this part of the appeal is not accepted.

(3) Fraudulent part

As long as there is no proof of a crime against the violation of the Processing of Livestock Products Act, the court below determined that the fraud of this case was insufficient to prove the guilt that the crime of fraud of this case was committed by the victims by selling beef suspected of Mad Cow Disease or after the expiration of the period of circulation

On the other hand, the fraud of this case is presumed to be guilty of the violation of the Processing of Livestock Products Act against the defendants, and the prosecutor's appeal as to the violation of the Processing of Livestock Products Act against the defendants is not accepted. Therefore, the judgment of the court below which acquitted the defendants of this part of the fraud is justified.

Therefore, the prosecutor's argument on this part of the facts charged also cannot be accepted.

B. Determination as to the taking of property in breach of trust from Nonindicted 1

The grounds for appeal by the Defendants and the Prosecutor are examined together with the grounds for appeal by the Prosecutor. On the other hand, the Prosecutor, while maintaining the existing facts charged, applied for amendments to the indictment by adding the selective charges that reduces the amount of property in breach of trust from the existing facts charged to the remaining part of the charges that is limited to the remaining part of the charges. The Defendant’s assertion in the grounds for appeal by the Prosecutor is common to the selective charges.

1) Summary of each facts charged

A) Common parts

피고인 1은 2003. 11.경부터 2006. 6.경까지 서울 금천구 시흥동 992-47에 있는 한국까르푸(현 홈플러스) 본사 정육구매과장 및 부장으로 재직하다 2008. 5. 30.경 퇴사한 후 현재 공소외 32 주식회사 대표이사이자, 한국까르푸에 정육을 납품하는 공소외 26 주식회사 및 주식회사 □□□(이하 ‘□□□’이라 한다)을 실질적으로 운영하는 사람이고, 피고인 2는 공소외 26 주식회사의 이사로 재직하다 2005. 12. 29.경 사임한 후 현재 공소외 30 주식회사 대표이사로 근무하면서, 공소외 26 주식회사 및 □□□의 자금을 실질적으로 관리하던 사람이며, 피고인 3은 2002.경부터 2006. 6.경까지 한국까르푸에 정육을 납품한 ◁◁육가공의 실질 운영자이다.

Defendant 1, at around May 2004, worked as the head of the land purchase division and the head of the department, had overall control over the right to the land purchase of the Korean Dazzzzzzer, and, at the same time, demanded to Nonindicted 1, a director of the ○○○○○○○○○○○○○○ (hereinafter “○○○○○○”) to extend the scope of specific matters in return for the supply of the land, etc. to the ○○○○○○○○○○○○○○○○○○○○○○ 20, a director of the ○○○○○○○○○○○○○, a director of the ○○○○○○○○○○○○○○○○○○, and Defendant 2 entered the amount equivalent to 2% (or 4%) of the monthly sales in return for the land supply by Nonindicted 1, 3, and had part of the amount remitted from Defendant 3 or its head of the passbook.

B) Existing facts charged

Thus, Non-Indicted 1 remitted total of KRW 353,358,694 on May 7, 2004 to Defendant 3’s account, and from around that time to June 8, 2006, Non-Indicted 1 remitted total of KRW 353,358,694 over 35 times, such as the attached list 2.

As a result, the Defendants conspired to acquire the property in return for an illegal solicitation in relation to the duties of the employee in charge of the purchase of Korean Daz.

C) Additional selective charges

Therefore, the Defendants, if ○○○○○○ delivered functional money and deducted fees (17%) from the sale proceeds of functional money from Korea Gaz, and then remitted money to Defendant 3’s account, a formal store manager, after subtracting the cost and profit therefrom, the Defendants received money equivalent to KRW 2% of the sales amount from the money and KRW 500,000 per store, and then remitted the remainder money to Nonindicted 1, the actual store manager, by taking the deduction of KRW 5,429,168 from the ○○○○ and Nonindicted 1’s side around May 2004, and thereafter, received money and valuables equivalent to KRW 5,429,16,311, which amounted to KRW 207,916,311 of the monthly sales amount of functional money of the Korean Gazzzers, which is managed by Nonindicted 1, from around June 206 to June 4, 206.

As a result, the Defendants conspired to acquire the property in exchange for an illegal solicitation in relation to their duties as a staff member in charge of the purchase of Korean Daz.

2) The judgment of the court below

A) Formation of a crime of taking property in breach of trust

The lower court, on the following grounds, stated that Nonindicted 1 paid 2-4% of monthly sales to Defendant 1 through Defendant 3 and Defendant 2 in return for consistently delivering the functional value of △△△○○○○○○○○○○○○○○○○ in line with Nonindicted 1’s above statements. ② Defendant 3 also transferred the right to manage the store on the functional value of △△△○○○○○ to Nonindicted 1 on April 5 to Nonindicted 1, 204, and, on the other hand, Defendant 2 did not have any influence on Defendant 1’s sale of the part of the monthly sales to Defendant 2, such as Defendant 1’s supply and sales from Nonindicted 2 to 4% of the monthly sales, and Defendant 2, who did not have any influence on Defendant 1’s sale of the instant money to Defendant 2, on the following grounds.

B) Amount of property in breach of trust

The court below stated that the "50,000 won per store", which is included only in the amount indicated in the attached Table 2 on the date of the crime, is the transfer price received by Defendant 3 to Nonindicted 1. ② The above store management right is deemed as a right to receive profits from sales in the relevant store by operating business, such as managing employees, etc. at the store located in Dozre, and ③ Defendant 3 does not have a right to receive money from 50,000 won for the above 50,000 won for the above 50,000 won for the above 50,000 won for the above 50,000 won for the above 50,000 won for the above 205,000 won for the above 50,000 won for the above 50,000 won for the above 50,000 won for the above 5,000 won for the above 20,000 won for the above 5,000 won for the above 20 won for the sale.

3) Determination of the immediate deliberation

A) Facts of recognition

The following facts can be acknowledged in full view of the evidence duly admitted and examined by the court below and the trial court.

① As seen earlier, Defendant 3 agreed with Defendant 2 to pay 4-2% of the sales amount of the money supplied to Korea Gaz, in return for Defendant 2’s provision of the money purchase fund. Defendant 3 began to purchase the money from Defendant 2 with the money purchase fund and supply it to Korea Gaz.

② 피고인 3은 ◁◁육가공의 납품코드를 이용하여 한국까르푸에 직매입방식으로 일반 돈육을 납품하다가 ○○○○○을 운영하는 공소외 19로부터 돈육 구매를 요청받고 2003. 3.경부터는 ○○○○○으로부터 구입한 돈육을 한국까르푸에 납품하기 시작하였다. 당시 경영상태가 좋지 아니한 ○○○○○은 피고인 3으로부터 빌린 구매자금으로 돈육농가에 돈육대금을 지급하였다.

③ Nonindicted 19 requested Defendant 3 to supply the money directly to ○○○○○○○ to Korea Gaz, and Defendant 3 accepted Nonindicted 19’s demand, thereby allowing Defendant 3 to supply the money directly to Gazzzed Korea Gazed, instead of receiving 4% of the sales amount from ○○○○○○○○○○○○○, and Defendant 2 divided 4% of the sales amount received from ○○○○○○○○○.

④ On March 2003, 2003, the ○○○○○ established a supply code from Korea Dazure as a broker by Defendant 3, and supplied general money to a direct purchase method using the above supply code.

⑤ around October 2003, Nonindicted 19 suggested that Defendant 3 would want to sell the low supply price at a low price, which was supplied by Defendant 3 as a low-level price, and Defendant 3 would have opened and operate a fee store for the functional value of purchase on Korea Gaz., Defendant 3 would obtain only a certain amount of profit from the price of supply and pay both the sales right and the remaining sales proceeds to Defendant 3. At the time, ○○○○○ or Nonindicted 19 did not have any employees, sales promotion, store management, inventory disposal facilities, distribution facilities, funds, etc. for selling the functional value of △△△△○○○○○ or Nonindicted 19 in a specific purchase method in Korea Gazz.

(6) On October 2003, Defendant 2 and Defendant 3 entered into a non-exclusive license agreement with Nonindicted 19 to the effect that “Defendant 3 operates the fee store with Defendant 2’s investment, but instead, Nonindicted 19 made a verbal agreement with Defendant 3 and Defendant 2 on September 24, 2004 to the effect that “The right to sell and distribute the functional and functional lands” was granted to Defendant 3 and Defendant 2.

⑦ 피고인 3은 2003. 12.경부터 한국까르푸 대전 ⊙⊙점에 특정매입방식으로 ☆☆☆기능성돈육 판매매장을 열어 ○○○○○의 ☆☆☆기능성돈육을 판매하기 시작하였는데, ○○○○○은 한국까르푸로부터 지급받은 납품대금 중 공장도 원가(생체매입비용, 인건비, 포장비 등) 및 이윤을 제외한 나머지 금원을 피고인 3에게 송금하였고, 피고인 3은 ○○○○○으로부터 송금 받은 금원 중 매출액의 2%를 피고인 2에게 송금하였다.

④ Defendant 3, without giving notice to Defendant 2 on April 2004, transferred to Nonindicted 1, who was a business director of ○○○○○○○○○○, a fee of KRW 500,000 won per store, and 2% of the sales amount paid to Defendant 2 on the condition that Nonindicted 1 succeeds to and bears as is, the right to store △△△○○○○○○○.

① Meanwhile, without notifying the fact of the transfer of the store operation right to ○○○○○○○○○, Nonindicted Party 1 retired from ○○○○○○○○ on May 2004 while operating the store △△△○○○○○○○, which had been unaware of Nonindicted Party 1’s transfer of the store. Defendant 3 continued to pay Defendant 3 the remainder of the supply price, excluding factory cost and profit, out of the supply price that he received from ○○○○○○○. Defendant 3 paid Defendant 2 the amount equivalent to 2% of the sales amount from the amount that he received from ○○○○○○○○○○, after deducting the amount equivalent to 500,000 won per store, paid the remainder to Nonindicted Party 1.

(10) From December 2004, when the ○○○○○○○ became aware of Nonindicted Party 1’s acquisition of the right to operate the store on the functional money △△○○○○○○ was paid directly to Nonindicted Party 1 from around December 2004 to Nonindicted Party 20 or Nonindicted Party 21, his mother, or his wife. Nonindicted Party 1 paid to Defendant 3 the amount equivalent to KRW 500,000 per store and the amount equivalent to KRW 2% of the sales amount to be paid to Defendant 2. Defendant 3 paid Defendant 2 the amount equivalent to KRW 2% of the sales amount received from Nonindicted Party 1.

① Around July 2005, Nonindicted Party 1 acquired and operated Nonindicted Company 22, a subsidiary, from ○○○○○○○○, and continued to operate a sales store of functional money △△△○○○○○○○○○○○, changing the supply code of Nonindicted Company 22 from the name of Nonindicted Company 22 to the name of Nonindicted Company 1. From this point, Nonindicted Party 1 paid only the amount equivalent to KRW 500,00 per store to Defendant 3. Nonindicted Party 2 paid the amount equivalent to KRW 2% of the direct sales amount to Defendant 2 on June 2006.

⑫ 한편 피고인 1은 ◀◀유통 등에서 축산물 유통 업무 등을 담당하면서 축산물 상품 개발과 관련한 업무를 하던 중 2000. 1.경 한국까르푸에 스카우트되어 2003. 11.경부터 2006. 1.까지는 상품개발과장(Developer)으로, 2006. 1.경부터 2006. 6.경까지는 정육구매부장으로 근무하였는데, 상품개발과장(Developer)으로 근무할 당시에는 매장관리를 위한 업무메뉴얼의 작성, 배포, 매장 점검 및 직원 교육, 구매대상 상품 발굴 및 추천 등의 업무를 담당하였고, 신규 업체 선정 등 직접적인 구매업무를 담당하지는 않았다.

(13) Procedures for the selection of a new Korean Land Supply Business entity shall be as follows:

If the Developer develops and recommends a commercial enterprise, he/she will consult with the recommended company by the head of the purchase division called Buyer and, if deemed to meet the following criteria, express his/her desire to conclude the contract:

The Korea War's Food Safety Management Team (Hygie) shall determine whether to pass through by checking the quality and sanitary conditions of the relevant enterprise that meets the criteria.

B. The final decision of the purchase director shall be made on the business entity that passed the inspection of the food safety management team.

㉣ 구매이사가 납품업체로 선정하면 납품업체에 대하여 납품코드를 부여한다.

4) There were some companies recommended by Defendant 1 as the head of the product development division at the time of his service, which were not selected as a supplier because they failed to pass through the due diligence of Korea Dar Food's suppliers and the inspection of the quality and sanitary conditions of the food safety management team.

(15) Each branch office of Korea Daz. is registered as a manager, and since each branch office is operated as an independent bond collection system for each store, even if a new Doz. headquarters is selected and publicly notified, the selected suppliers are not able to deliver it to each branch office of Daz., but are operated as a system to determine whether each branch office is to receive a supply independently from the head office.

B) Determination

(1) Whether Defendant 1 demanded money from Nonindicted 1

As evidence consistent with this, Non-Indicted 1’s statement and ○○○○○○○○ was made by Non-Indicted 1’s investigative agency and Non-Indicted 3’s employee at the court below’s request, and part of the statement at the investigation agency and the court below’s trial. However, Non-Indicted 1 stated that “Non-Indicted 1’s statement and statement to Non-Indicted 1 were not made directly to Defendant 1’s team leader at the time of the trial court, but it is true that the proceeds were sent to Defendant 1’s team leader at industry, structure, and so, it would be difficult to look at any supporting material for this.” Non-Indicted 2 also stated that “Non-Indicted 1’s statement and statement to Non-Indicted 3 was made by Non-Indicted 1’s partner at the time of the trial court’s offering of profits to Defendant 1 through Non-Indicted 3, and thus, it would have no choice but to be considered that it would have been given to Defendant 2’s witness at the time of sale and delivery.”

오히려 증거를 종합하여 인정되는 사정들, 즉 피고인 3은 ○○○○○이 한국까르푸에 ○○○○○ 명의의 납품코드로 돈육을 납품하기 이전에 이미 피고인 2와 사이에 피고인 3이 피고인 2의 자금으로 돈육을 구입하여 한국까르푸에 납품하고 납품대금을 지급받으면 피고인 2에게 자금지원의 대가로 매출액의 2~4%를 지급하기로 하는 계약관계를 유지하고 있었던 점, 피고인 3이 ◁◁육가공 납품코드로 ○○○○○의 돈육을 한국까르푸에 납품하면 피고인 2와의 약정에 따라 피고인 2에게 매출액 중 2~4%에 해당하는 금액을 지급하여야 하는데 ○○○○○으로 하여금 한국까르푸에 직접 돈육을 납품하게 하면 ◁◁육가공의 납품코드로 납품하면 얻을 수 있는 자신의 이익뿐만 아니라 매월 매출액의 2%를 지급받고 있던 피고인 2의 이익도 사라지게 되므로 이를 보전하기 위해서 ○○○○○에게 매출액의 4%에 해당하는 금액을 요구한 것으로 볼 수 있는 점, 피고인 3이 공소외 1에게 ☆☆☆기능성돈육 판매 매장 운영권을 양도할 당시 공소외 1에게 '공동투자자로서 자금 지원 등의 역할을 하며 현재의 위치에 이르는데 기여한 동업자에게 그동안 매출액의 2%를 주어 왔으니 증인(공소외 1)도 동일하게 지급해야 한다’라는 취지로 말하였던 점에 비추어 볼 때, ○○○○○과 공소외 1이 피고인 3이나 피고인 2에게 지급한 금원은 피고인 3의 지위를 그대로 승계하여 피고인 2와의 계약관계에 따라 지급하던 금원이라고 볼 여지가 충분하다.

Nevertheless, the lower court erred by misapprehending the fact that Defendant 1 demanded the payment of money in return for the delivery to Nonindicted 1.

(2) Whether Defendant 1 received money

The crime of taking property or property in breach of trust is established when a person who administers another person's business obtains property or property benefits in exchange for an illegal solicitation in connection with his/her duties, and the person who administers another person's business is entitled to be the principal offender. In addition, the crime of taking property in breach of trust is established only where a person who administers another person's business obtains property or property benefits from another person's business in exchange for an illegal solicitation in connection with his/her duties, and where a person who does not have his/her status can be the accomplice, but does not acquire his/her status as an accomplice, so the crime of taking property in breach of trust shall be determined on the basis of an act of a person who is an accomplice.

Comprehensively taking account of the evidence, the fact that ○○○○○○ or Nonindicted 1 paid KRW 353,358,694 to Defendant 2 and Defendant 3 on or after May 7, 2004 to June 4, 2006 is acknowledged. However, even according to the facts charged, Defendant 2 and Defendant 3 merely are co-offenders with Defendant 1, and it is difficult to view that Nonindicted 2 and Defendant 1 received property or pecuniary benefits in relation to illegal solicitation from Defendant 1, 200,000 won to the extent that they were paid to Nonindicted 2 and Defendant 3 on or after June 4, 2006. In light of the above facts, it is difficult to view that Defendant 2 and Nonindicted 3 received money from Defendant 1, 200,000 won to the extent that they were actually distributed to Defendant 1 and Defendant 1, 200,000 won, such as the number of money transferred to Nonindicted 2 and Defendant 1,60,000 won.

In full view of these circumstances, the fact that Defendant 2 and Defendant 3 received KRW 353,358,694 in total on 35 occasions, such as the list of crimes, from May 7, 2004 to June 4, 2006 by ○○○○ or Nonindicted Party 1, on the sole basis of the fact that Defendant 1 received KRW 353,358,694 in total from 35 times, such as the list of crimes, does not mean that Defendant 1 received property or property benefits with illegal solicitation in relation to the supply of Korea Gau, and there is no other evidence to acknowledge this differently, this part of the facts charged, including the selective facts charged, falls under those without proof of a crime. Unlike this, the lower court erred by misapprehending the facts in its judgment that found Defendant 1 guilty of a part of the facts charged,

Therefore, the Defendants’ allegation in this part of the grounds for appeal is reasonable, and the Prosecutor’s allegation in this part of the grounds for appeal is without merit, and the selective charges added in the trial are without proof of crime.

C. Determination on Defendant 1’s violation of the Act on Special Cases concerning the Punishment of Tax Evaders (Tax) and the Punishment of Tax Evaders Act

1) The judgment of the court below

The court below held that the defendant's act of tax evasion is sufficient to recognize that he evaded the comprehensive income tax as "Fraud or other unlawful act" under Article 9 (1) of the Punishment of Tax Evaders Act, on the ground that the defendant did not have any criminal intent to evade the tax, or did not simply file a tax return under the tax law, or committed fraudulent or other unlawful act which makes it impossible or considerably difficult to impose and collect taxes. The defendant, as separate company from △△△ Livestock Cooperative, gained income of KRW 2.5 billion each year while actually operating △△ Livestock Cooperative Federation, an intermediate processing and distribution company, which is an intermediate processing and distribution company, but did not report the income tax for a long time after forming the appearance of all income in the future of △△ Livestock Cooperative, the defendant's act of tax evasion with the intent to evade the tax, and it cannot be deemed that the defendant did not have any criminal intent to evade the tax, or that the defendant did not have any other business performance in the process of collecting the remaining amount of tax evasion on the ground that he was found to have no other business performance in the above list of tax evasion by the court.

2) Determination of the immediate deliberation

A) Facts of recognition

The following facts can be acknowledged in full view of the evidence duly admitted and examined by the court below and the trial court.

① From May 2004 to June 2006, Nonindicted Party 1 demanded the director of ○○○○○○○○○○○○ to transfer the cash payment amount corresponding to a certain ratio of monthly sales amount to Defendant 3 each month in return for the selection of the Korea Dazer Food Supply Business, or for the supply and sales store occupants, Nonindicted Party 1 demanded Nonindicted Party 1 to transfer the cash payment amount corresponding to a certain ratio of monthly sales amount to Defendant 3’s account. Nonindicted Party 1 received the cash payment amount from Defendant 3 and Defendant 3’s wife by means of the account in the name of Defendant 13.

② The prosecutor in charge of the Seoul Southern District Prosecutors’ Office requested the Seoul Southern District Court to conduct a search and seizure warrant while investigating the suspected violation of the Processing of Livestock Products Act against Defendant, Defendant 2, Defendant 3, and Nonindicted 11. On February 6, 2009, the Seoul Southern District Court issued the following warrant (hereinafter “instant first warrant”) by the judge of the Seoul Southern District Court (hereinafter “instant first warrant”).

- Contents of search and seizure warrant -

○ Suspect: Defendant 1, Nonindicted 11, and Defendant 2 on March 2, 200

A. Violation of the Processing of Livestock Products Act (Defendant 1, Nonindicted 11, and Defendant 2)

B. Fraud (Defendant 1, Nonindicted 11, and Defendant 2)

C. Misappropriation (Defendant 1, Defendant 3)

(d) Confession (Defendant 1, Defendant 2)

○ Articles to be seized

1. Documents related to the disposal of U.S. beef, documents related to the selection and supply of livestock products suppliers, books related to the purchase and sale, passbook for entry and withdrawal, business place, etc. kept or managed at a place for search and inspection as mentioned above;

2. Computer servers, main body, clograms, diskettes, and USB joints, etc. used in relation to the disposal of U.S. beef and the supply of livestock products at places of search, seizure, and verification as mentioned above;

3. All information processing systems, such as computers and peripheral devices, which are provided for criminal acts of the suspect, or related to crimes;

○ Place, body, and article to be seized and seized

- The office of the head office, accounting, computer, and tallying department office of the Gangnam-gu Seoul Metropolitan Government ( Address 1 omitted), 12 to 20, Nonindicted 25, Seoul Metropolitan Government;

- Gyeonggi-nam-si ( Address 2 omitted) Dogsung Office (Representative Director 5, Defendant 1, Defendant 1, Defendant 1)

- 서울 강남구 (주소 3 생략) ♤♤빌딩 302호 공소외 26 주식회사 사무실(대표이사 공소외 28, 피의자 피고인 1 실질운영 업체)

- Seoul ( Address 4 omitted) Gangnam-gu Office of Non-Indicted 27 Co., Ltd. (Representative Director, Non-Indicted 29, Defendant 1 de facto operator company)

- Seoul ( Address 5 omitted) Non-Indicted 30 corporation office (Defendant 2 of the representative director)

- Residence of Defendant 1

- The residence of the suspect Nonindicted 11

- Residence, etc. of Defendant 2

○ Facts constituting an offense and the necessity of seizure of a warrant

- Joint criminal conduct by Defendants 1 and 3 of the Defendant 3 of the crime of breach of trust relating to the supply of money

From May 2004 to June 2006, Defendant 1 demanded the defendant 3 to transfer the cash payment amount equivalent to 2% or 4% of the monthly sales amount from May 2004 to June 2006 to the Korea Home Packer located in Geumcheon-gu Seoul, Geumcheon-gu, Seoul, 92-47, to the above ○○○○○○○ director, the victim’s money supplier, or to the non-indicted 1, the above ○○○○○○ director of Korea in return for the designation of the Korea Gacker food supply company, or for the supply and sales store occupants of the △△△△△△-mick.

Upon the above request, Defendant 3 received a total of KRW 353,358,694 from May 7, 2004, using the account in the name of the Dongin and the wife Nonindicted 13, and received KRW 9,519,586 on May 7, 2004 from the above Nonindicted 1, and received total of KRW 353,358,694 from that Si to June 8, 2006, and then remitted this to the account of Nonindicted 9, the mother of the above Defendant 1.

As a result, the suspects conspired to acquire the property in return for an unlawful solicitation in relation to their duties.

③ 서울남부지방검찰청 수사관들은 이 사건 1차 영장의 압수수색 장소인, ㉮ 경기 성남시 (주소 9 생략) 공소외 30 주식회사, 공소외 31 주식회사, 공소외 32 주식회사, 공소외 27 주식회사 사무실에서 2009. 2. 10. 상피고인 2로부터 공소외 9 한미은행통장, 공소외 10 하나은행통장, 그린푸드 통장, 입금별 발생현황 등 문서 3부(배임수재 관련), 피고인 2 자필 작성의 무통장입금증, 피고인 1 실질운영 법인관련 서류철(◇◇축협중부유통사업단 계약서 등), 거래확인 영수증 및 무통장입금증, ‘참고인 조사내용’ 기재서류 등을 주6) 압수하고, ㉯ 서울 강남구 (주소 3 생략) ♤♤빌딩 302호 공소외 26 주식회사 사무실에서 2009. 2. 10. 공소외 28로부터 창고거래 명세표 철, ▽▽▽▽▽▽ 발송공문 및 사업자등록증, 컴퓨터를 주7) 압수하였으며, ㉰ 서울 강남구 (주소 5 생략) 주식회사 △△△△△△, □□□ 사무실에서 2009. 2. 10. 공소외 4로부터 PC 1대(관리팀장), □□□ 관련 서류 23박스, 고객사랑·□□□ 매입·매출 등 전산자료 저장 USB 1개를 압수하였고(공소외 4로부터 압수한 물품에 대해서는 압수조서가 작성되지 주8) 않았다), ㉱ 서울 강남구 (주소 1 생략) ▷▷▷▷빌딩 12~20층 공소외 25 주식회사 본사 재무, 회계, 전산, 검수부서 사무실에서 2009. 2. 11. 공소외 12로부터 ‘미국산 쇠고기 재고처리절차’ 서류 등을 주9) 압수하였다. 수사관들은 위 압수당시 피압수자인 상피고인 2, 공소외 28, 공소외 4, 공소외 12에게 상세 압수목록을 따로 교부하지 아니하였다.

④ The prosecutor in charge of the Seoul Southern District Prosecutors’ Office did not have received or investigated the information on the charge of violating the Punishment of Tax Evaders Act against the Defendant related to the actual operation of the △△ Livestock Cooperative Distribution Business Association until the time of the execution of the instant first warrant. The prosecutor discovered the suspected violation of the Punishment of Tax Evaders Act against the Defendant related to the actual operation of the △△△ Livestock Cooperative, and started the investigation (the prosecutor, March 13, 2009, summoned Nonindicted 7, who was the formal representative of the △△ Livestock Cooperative Distribution Business Association, as witness, and summoned Nonindicted 33, who was on March 16, 2009, who was working at the △△ Livestock Cooperative Distribution Business Association, as witness status, and did not obtain a new search and seizure warrant from the Defendant 2 above.

⑤ The prosecutor in charge of the Seoul Southern District Prosecutors’ Office applied for a search and seizure warrant to the Seoul Southern District Court while investigating a suspected violation of the Processing of Livestock Products Act against the Defendant, the Defendant 2, and Nonindicted 11. On March 19, 2009, the Seoul Southern District Court issued the following warrant (hereinafter “the second warrant”) from the judge of the Seoul Southern District Court:

- Contents of search and seizure warrant -

○ Suspect: Defendant 1, Nonindicted 11, and Defendant 2 on March 2, 200

○ Crime: (a) Violation of the Processing of Livestock Products Act (suspects)

(b) Fraud;

○ Articles to be seized

1. All of the documents suspected of transporting, storing, processing, and selling the destroyed U.S. beef, such as the purchase, sale-related account books, deposit passbooks, business logs, freezings, freezings, warehouse entry and withdrawals, details of livestock products operation, details of livestock product processing, etc., which are kept or managed at the place of search, seizure, and verification as mentioned above;

2. In relation to the above search, seizure, and verification at a place used in relation to paragraph (1), the aforementioned criminal acts of the suspects, such as computer servers, main body, clods, diskettes, and USB joints, or all information processing units, including computers and peripheral devices, related to the crime.

○ Place, body, and article to be seized and seized

- Gangnam-gu Seoul ( Address 5 omitted), Non-Indicted 30, △△△△△△△ Business Office (Defendant 2 representative director, and Defendant 1’s Dong-born Non-Indicted 5 representative director)

- An office (or an office) and a place of business and an office (or a company that purchases LA conflict) in the Gyeonggi-do, a business establishment and an office (or an office).

- The business place of the non-indicted 34 corporation and the office (LA conflict purchasing business) in Gyeonggi-Nam-si ( Address 7 omitted);

- The business place and the office of the Busan City Seo-gu ( Address 8 omitted), Non-Indicted 35, the business place and the office (LAB)

○ Facts constituting an offense and the necessity of seizure of a warrant

- [Violation of Processing of Livestock Products]

No person shall keep for the purpose of sale livestock products which contain harmful substances or are likely to injure the health of the human body for other reasons.

Nevertheless, Defendant 1 had the above 000 tons of beef 19.5 tons of the recovered beef for sale from January 2004 to September 2004, Defendant 1 kept them for sale purposes at the above 00 ○○○○○ freezing warehouse located in the Jinsan-gun of Chungcheongnam-gun for about nine months in the same year.

④ The investigator of the Seoul Southern District Prosecutors’ Office seized the documents related to the purchase of LAB (written confirmation, etc. of submission of seized articles) from the place of search and seizure of the instant second warrant, the place of the instant second warrant, and the place of business and office, the place of business and office, i.e., Busan Seo-gu ( Address 8 omitted) Nonindicted Co. 35, on Mar. 20, 2009, and (ii) Jinsan-si ( Address 6 omitted), the ▽▽▽▽▽▽▽▽▽▽▽▽▽▽▽▽▽▽▽▽△△△△△△△○ on Mar. 23, 2009 (written confirmation, etc. of submission of seized articles). On Mar. 24, 2009, on March 23, 2009, the investigator seized the documents related to the purchase of LABD (location 7 omitted), Nonindicted Co. 34, and the office, at the place of business and office.

7) On April 2, 2009, the prosecutor in charge of the Seoul Southern District Prosecutors’ Office requested the Seoul District Tax Office to conduct a tax investigation on the charge of violating the Punishment of Tax Evaders Act against the Defendant. On April 2, 2009, the Seoul Southern District Tax Office attached the processing contract for livestock products among the “documents file related to the corporation that actually runs the Defendant 1 (e.g., the Agreement on the Business of Distribution and Business of the △△ Livestock Cooperative, etc.),” which was seized by the Defendant 2 at the time of the execution of the first warrant, along with Nonindicted 7 and Nonindicted 3’s written statement of statement prepared by the prosecutor on the request for tax investigation.

④ On April 30, 2009 and May 1, 2009, the public prosecutor in charge of the Seoul Southern District Public Prosecutor’s Office posted the goods seized under the warrant of this case to Nonindicted 28, Nonindicted 29, and Nonindicted 5 on May 1, 2009, and returned them to Nonindicted 28, Defendant 2, and Defendant 3, respectively. Nonindicted 28, Nonindicted 29, and Nonindicted 5 voluntarily submitted all the goods returned to Nonindicted 6 as above to Nonindicted 6 upon the request of Nonindicted 6’s tax official of the Seoul Regional Tax Office to submit for cooperation in the tax investigation by Nonindicted 6. Meanwhile, on the list of “the list of temporary storage documents, etc.” attached to the written consent of Nonindicted 5 at the time of the said submission, the Gangnam-gu Seoul Special Metropolitan City ( Address 5 omitted), which was seized from Nonindicted 4 in the △△△△△△, and △△△ Office.

① During the process of investigating the Defendant’s suspected violation of the Punishment of Tax Evaders Act, Nonindicted 6, a tax official of the Seoul Regional Tax Office found the “business performance record” file prepared by the said Defendant 2 in the USB while analyzing the goods submitted by Nonindicted 5.

(10) Defendant 2, who takes charge of the accounts and funds of the ○○ Livestock Cooperative Distribution Business Association in accordance with the direction of the Defendant, prepared the business performance table of the △△△ Livestock Cooperative Distribution Business Association every year, and sufficiently arranged the sales and expenses (such as fixed land purchase expenses, personnel expenses, rent, wages, transportation and processing expenses, etc. due to sale and management), and the Defendant’s unpaid income tax amount is also calculated in accordance with the business performance table prepared by Defendant 2.

B) Determination

(1) Whether the authority to prosecute has been abused

In a case where a prosecutor voluntarily deviates from the discretionary power to exercise his/her authority to prosecute a substantial disadvantage to the defendant, it may be denied the validity of the indictment by deeming the abuse of the authority to prosecute. However, to be recognized as a arbitrary exercise of the authority to prosecute, the mere negligence in the course of performing his/her duties is insufficient, and at least there is a specific intention to do so (see Supreme Court Decision 2010Do9349, Jul. 12, 2012, etc.).

In this case, the public prosecutor in charge of the Seoul Southern District Public Prosecutor's Office did not receive or investigate the defendant regarding the charge of violating the Punishment of Tax Evaders Act in relation to the operation of ○○○ Livestock Cooperative Distribution Business Association until the time of the execution of the instant first warrant. The fact that the defendant discovered suspicions of violating the Punishment of Tax Evaders Act in relation to the actual operation of ○○○ Livestock Cooperative Distribution Business Association through the evidence of tax evasion seized by the first warrant of this case and initiates investigation is as mentioned above. The fact that the evidence of tax evasion confiscated by the first warrant of this case was illegally collected is as follows. However, it is difficult to conclude that the public prosecutor had the intention of giving substantial disadvantage to the defendant. Ultimately, the defendant's allegation in this part of the grounds for appeal is without merit.

(2) Whether the evidence corresponding to this part of the facts charged is admissible

(A) Relevant provisions and legal principles such as the Constitution and the Criminal Procedure Act

(1) The latter part of Article 12(1) of the Constitution provides that “any person shall not be subject to search and seizure.” Article 12(3) of the Constitution provides that “In cases of arrest, detention, seizure or search, a warrant issued by a judge according to lawful procedures shall be presented: Provided, That in cases of a flagrant offender or a crime corresponding to a punishment for a maximum term of three years or more may be requested for an ex post facto warrant; the Criminal Procedure Act (amended by Act No. 8730, Dec. 21, 2007; effective December 21, 2007) provides that “The court may, if necessary, seize evidence or articles deemed to be confiscated.” (Article 106(1)); “In cases of seizure, the list thereof shall be prepared and delivered to the owner, possessor, custodian or any quasi-incompetent; and Article 129 through 15 of the Criminal Procedure Act may not be subject to search or seizure by a prosecutor; and Article 18(2) of the Criminal Procedure Act provides that “this provision shall not apply mutatis mutandis.”

② As above, the normative power of the Criminal Procedure Act, which provides specific standards for search and seizure procedures, must be maintained in a firm manner so that the Constitution that declares due process regarding search and seizure and the foundation of warrant requirement can be realized harmoniously in order to guarantee fundamental human rights. Therefore, evidence collected without following the procedure prescribed by the Constitution and the Criminal Procedure Act, is not in compliance with the lawful procedure prepared to guarantee fundamental human rights, and thus, cannot be used as evidence for conviction in principle.

However, in determining whether to grant admissibility of seized articles illegally collected, the court may use evidence of conviction as evidence, in exceptional cases where: (a) the purpose of the procedural provision and its content and degree of violation; (b) specific course and possibility of evasion; (c) the nature of the right or legal interest to be protected; (d) the degree of infringement; (e) relationship between the defendant and the defendant; and (e) awareness and intent of the investigation agency, etc., when comprehensively and comprehensively examining whether the procedural violation of the investigation agency infringes on the substantive substance of due process; and (c) the exclusion of admissibility of evidence does not constitute a case where the investigation agency’s procedural violation violates the substantive substance of due process; and (d) the Constitution and the Criminal Procedure Act establish the procedural provision regarding criminal procedure and promote harmony between the substantive truth and the purpose of realizing criminal justice; and (e) the second evidence obtained based on the collected evidence without following due process; (e) the same applies to the second evidence obtained based on the secondary evidence collection process; and (e) the relationship between the procedural violation and the secondary evidence collection; and (e) recognition and intent of evidence collection.

(B) Evidence of the tax evasion evidence confiscated under the warrant of this case

1. Whether the evidence of tax evasion, which was confiscated by the warrant of the first instance of this case, is an object of seizure as stated in the warrant of this case.

The first warrant of this case is a suspected criminal suspect that "Defendant 1", "Nonindicted 11", and "Defendant 2" installed and sold U.S. beef suspected of Mad Cow Disease for the purpose of sale after the expiration of the period of storage and distribution. The first warrant of this case is a suspected criminal charge of violating the Processing of Livestock Products Act; (B) the suspected criminal charge of fraud by deceiving the U.S. beef subject to destruction as being imported Mad Cow Disease as if it were imported Mad Cow, and (c) the fact that Non-Party 1 received money in return for the selection of the Korea Mad Cow, Ltd. supply company and sales store occupants; and (d) intimidation Non-Party 1 would make it impossible to deliver Mad Cow, Ltd. to the Korea Mad Cow, Ltd. without giving the profits from Mad Cow, Ltd.; and therefore, it does not affect the first warrant of this case as well as the evidence related to each of the above suspected criminal charges against the defendant, the defendant 2, and the non-indicted 111.

② Whether the place where the primary warrant of this case was executed constitutes “the place of seizure” indicated in the primary warrant of this case

The principle of warrant under Article 12 of the Constitution is the main purpose of judicial control over the exercise of arbitrary compulsory disposition by an investigation agency. It is recognized to prevent the abuse of authority by an execution agency and to ensure the stability of people's body and residence. Article 114 of the Criminal Procedure Act stipulates the place to be searched in a search and seizure warrant to prevent the harm of the so-called general warrant. Thus, the search and seizure warrant must specify the specific place to be searched and seized individually.

However, the "place of seizure" as stated in the first warrant of this case is "Yeongnam-si ( Address 2 omitted)," and the investigators of the Seoul Southernnam District Prosecutors' Office under the first warrant of this case on February 10, 209, seized the evidence of tax evasion that was confiscated by the first warrant of this case from the defendant 2 above at the office of the defendant 30, the non-indicted 31, the non-indicted 32, the non-indicted 32, and the non-indicted 27, the office of the non-indicted 27, the defendant of this case. The above investigators are only the same as the "Yeongnam-si Office" specified and individually specified in the first warrant of this case, and only the number of "the non-indicted 30, the non-indicted 31, the non-indicted 32, and the office of the non-indicted 27, the office of this case violated the warrant of this case in light of the principle of the purpose of seizure and seizure of evidence of this case."

The prosecutor asserts that he had attempted to interfere with the investigation by intentionally confused with the office of △△△△△△△△△△△△△△△△△△△△△△△△ and intentionally confused with the office of △△△△△△△△△△△△ and Nonindicted 30, and that he had attempted to interfere with the investigation for the purpose of evading the investigation of this case upon the commencement of the investigation of this case. Thus, according to the evidence submitted by the prosecutor, the prosecutor may acknowledge the fact that the head office of △△△△△△△△△△△△△△△△△△△△△△△△△△△△△ was the head office of △△△△△○ at the time of the execution of the first warrant. However, according to the evidence submitted by the prosecutor, the witness Nonindicted 41 [Nonindicted 30, 19) staff at the court below, Nonindicted 4 [the head office of △△△△△△△△△△△△△△△△△△△△△△△△△△, the Defendant’s remaining 214.

(3) Whether a seizure list is issued.

Article 129 of the Criminal Procedure Act provides that a list of seized articles shall be delivered in accordance with Article 129 of the Criminal Procedure Act. Since the existence, form, change, etc. of seized articles shall be prevented in advance from various controversy surrounding the existence, form, etc. of seized articles, and the exercise of various rights, such as the right to claim for return or temporary return of seized articles, are guaranteed, the list of seized articles shall be accurately stated so that the details of the seized articles can be identified, and shall be immediately issued

However, the Seoul Southern District Prosecutor’s Office’s investigators did not issue a detailed list of seizure to the persons subject to seizure immediately after the execution of the first warrant of this case. As such, the seizure of the evidence of tax evasion confiscated by the first warrant of this case violates the procedure of search and seizure.

In regard to this, the prosecutor only recognizes the fact that the items seized are comprehensively recorded, such as △△△ documents related to △△ 23 weeks in light of the purpose and method of delivery of the said list, and thus, it is difficult to view the above “written delivery of the search and seizure list” as the delivery of the list and the issuance of the list of the seizure list, in light of the purpose and method of delivery of the said list, it is difficult to view it as the above in light of the purport and method of delivery of the search and seizure list.

④ The admissibility of unlawful seizure and the evidence of tax evasion confiscated by the warrant of this case

In full view of the circumstances as seen above, namely, the evidence of tax evasion that was seized under the warrant of this case is not an object of seizure as indicated in the warrant of this case, the investigative agency did not comply with legitimate procedures such as issuing a separate search and seizure warrant for the said evidence, and the above evidence was not issued to Defendant 2, the party against whom the search and seizure warrant of this case was served. As such, the seizure of the evidence of tax evasion that was seized under the warrant of this case by the warrant of this case is an unlawful seizure conducted in violation of the Constitution and the Criminal Procedure Act instead of the lawfully issued warrant.

Furthermore, if the evidence of tax evasion, which was seized under the warrant of this case, was not seized in accordance with the warrant issued by the judge as above, and the list of legitimate seizure is not issued to the person to whom the seizure was conducted, and thus, the content and degree of violation of the procedures for the seizure and search as stipulated in the Constitution and the Criminal Procedure Act is significant, and the investigation agency finds that the evidence of this case is not related to the crime of the first warrant of this case, while the proviso or evidence of a new crime against the defendant is not related to the crime of the first warrant of this case, the above seizure constitutes a case where the evidence of this case was conducted through lawful procedures, such as re-search of the pertinent article or arbitrarily receiving the seizure from the party concerned, and it seems that there was no attempt to facilitate the illegality in the seizure process by investigating the defendant without going through such procedures. It appears that the above illegal seizure and search of the above evidence caused by the above illegal seizure and seizure are essentially infringed upon the fundamental human rights guaranteed by due process and warrant requirement, and without such unlawful act, it appears that the collection of the above evidence itself was impossible.

Therefore, the evidence of tax evasion, which was seized by the warrant of the first warrant of this case, is not admissible in accordance with Article 308-2 of the Criminal Procedure Act, as evidence collected in violation of due process.

① Whether Nonindicted 5, the Defendant’s birth, voluntarily submitted the USB to Nonindicted 6 of the Seoul Regional Tax Office

On February 10, 209, the Seoul Southern Southern District Prosecutor’s Office seized one PC (Management Team leader), 23 gambling documents, purchase and sale of electronic data from Nonindicted 4 at the Gangnam-gu Seoul ( Address 5 omitted), Seoul △△△△△△△△△△ Office, and △△△△△△△△△ Office. The prosecutor in charge of the Seoul Southern Southern District Prosecutor’s Office: (a) on May 1, 2009, put Nonindicted 5, who is the Defendant’s birth, into △△△△△△△△△△ Office, and △△△△△△△ Office, and Nonindicted 5 returned the articles irrelevant to the facts charged; (b) on the other hand, Nonindicted 6’s voluntary submission of the instant articles to Nonindicted 6’s cooperation with the Defendant; and (c) on the other hand, Nonindicted 6’s voluntary submission of the instant articles to Nonindicted 5’s △△△△△△△△△ office’s search and seizure of the said articles, which were found in the form of the instant evidence.

The defendant and his defense counsel asserted that the prosecutor voluntarily provided the USB to the Seoul regional tax office with data related to the facts of suspicion of tax evasion against the defendant. Thus, the fact that the USB was not stated in the "List of Temporary Storage Documents, etc." attached to the written consent of the non-indicted 5 at the time of submitting the goods to the non-indicted 6 to the non-indicted 6 is as follows. However, the prosecutor in charge of the Seoul Southern District Public Prosecutor's Office requested the Seoul Southern District Public Prosecutor's Office to conduct a tax investigation on the charge of the violation of the Punishment of Tax Evaders Act against the defendant on April 2, 2009, and the time when the non-indicted 6 did not submit the written consent of the Seoul District Public Prosecutor's Office to the non-indicted 5 to the non-indicted 6's office. In light of the fact that the above prosecutor could not be deemed to have been forced to have received the data from the non-indicted 6's prosecutor's office and the time when the defendant received the data from the non-indicted 6's office.

② The admissibility of evidence of Nonindicted 6’s output and file reproduction of the business performance report from the USB of this case by a tax official of the Seoul Regional Tax Office

The facts that Nonindicted 6 voluntarily submitted the USB from Nonindicted 5 as data to conduct a tax investigation on the Defendant are as follows. The act that Nonindicted 6 printed out and copied the business performance table prepared by Defendant 2 in the USB of this case is lawful as evidence collection related to the facts suspected of tax evasion against the Defendant in accordance with due process. The business performance table prepared by Defendant 2 is admissible.

(D) Whether to admit the admissibility of other evidence

(1) Facts of recognition.

원심 및 당심이 적법하게 채택하여 조사한 증거들에 의하면, ㉮ 서울남부지방검찰청 담당 검사는 이 사건 1차 영장에 의하여 압수한 압수물을 분석하던 중 이 사건 1차 영장에 의하여 압수된 조세포탈 증거를 발견한 다음, 2009. 3. 13. ◇◇축협유통사업단의 형식상 대표였던 공소외 7을 참고인 신분으로 소환하여 주27) 조사하였고, 2009. 3. 16. ◇◇축협유통사업단에서 근무했던 공소외 33을 참고인 신분으로 소환하여 주28) 조사한 사실, ㉯ 서울지방국세청은 서울남부지방검찰청 담당 검사의 피고인에 대한 세무조사 의뢰에 따라, 위 담당검사가 참조 자료로 송부한 공소외 7, 공소외 33의 각 진술조서 및 이 사건 1차 영장에 의하여 압수된 조세포탈 증거 등을 기초로 피고인에 대한 세무조사를 수행하였고, 그에 따라 조세범칙자 주29) 고발서, 주30) 범칙조사보고서, ◇◇축협유통사업단 주31) 조사서, ◇◇축협 주32) 계산서, 주33) 급여지급현황, ▣▣유통 자체 비용집행 주34) 내역, ◇◇축협 돈육·우육납품 주35) 흐름도, 공소외 7 농협계좌 주36) 흐름도, 주37) 집계표 및 공소외 7 주38) , 공소외 8 주39) , 공소외 36 주40) , 피고인 2 주41) 을 상대로 한 참고인 전말서를 각 작성하였으며, 2009. 7. 22. 서울남부지방검찰청에 피고인을 특가법위반(조세) 및 조세범처벌법위반 혐의로 고발한 사실, ㉰ 서울남부지방검찰청 담당 검사는 2009. 12. 14. 공소외 7을 참고인 신분으로 소환하여 조사를 하였는데, 공소외 7이 이 부분 공소사실과 부합하는 취지의 진술을 한 주42) 사실, ㉱ 서울남부지방검찰청 담당 검사는 2009. 12. 22. ◇◇축협에서 근무하였던 공소외 8을 참고인 신분으로 소환하여 조사를 하였는데, 공소외 8이 이 부분 공소사실과 부합하는 취지의 진술을 한 주43) 사실, ㉲ 서울지방국세청 세무공무원 공소외 6은 2010. 1. 7. 피고인에 대한 세무조사 경위에 관한 진술서를 작성하여 제출한 주44) 사실, ㉳ 서울남부지방검찰청 담당 검사는 2010. 1. 12. 서울지방국세청 세무공무원 공소외 6을 참고인 신분으로 소환하여 조사를 하였는데, 공소외 6이 이 부분 공소사실과 부합하는 취지의 진술을 한 주45) 사실, ㉴ 서울지방국세청 세무공무원 공소외 6은 2011. 7.경 이 부분 공소사실과 관련된 추가자료{추계조사 결정 근거 등 관련법규 주46) 사본, 월별 주47) 집계표, 공소외 7 계좌 연도별 입금 주48) 명세서, ◇◇축협 및 유통사업단매출 명세표(국세청 작성 주49) 집계표) }를 제출한 사실, ㉵ ◇◇축협유통사업단의 형식상 대표였던 원심(병합되기 전 2010고합8호 사건) 증인 공소외 7이 제3회 공판기일에서 출석하여 증언거부권 및 위증의 벌을 경고 받고 선서한 후 이 부분 공소사실에 대하여 진술한 주50) 사실, ㉶ ◇◇축협 계약담당자로 근무하였던 원심(병합되기 전 2010고합8호 사건) 증인 공소외 8이 제4회 공판기일에서 출석하여 증언거부권 및 위증의 벌을 경고 받고 선서한 후 이 부분 공소사실에 대하여 진술한 주51) 사실, ㉷ 피고인은 원심 및 당심 법정에서 진술거부권을 고지 받고 변호인의 충분한 조력을 받은 상태에서 이 사건 증거들이 위법하게 수집된 증거로서 증거능력이 없다고 다투면서 이 부분 공소사실에 대하여 진술한 사실을 인정할 수 있다.

(2) Judgment

이 사건 피고인의 미납부 소득세액이 상피고인 2가 작성한 영업실적표에 기하여 계산된 것인 사실, 위 영업실적표는 적법하게 수집된 증거인 사실은 앞서 살핀 바와 같은바, 위와 같은 사실에 위 인정사실을 더하여 보면, 위 영업실적표를 기초로 수집된 공소외 7, 공소외 8이 원심 법정에서 한 각 진술, 공소외 6에 대한 검찰 진술조서, 공소외 7, 공소외 8, 공소외 36, 피고인 2에 대한 각 참고인 전말서, 공소외 6의 진술서, 수사보고(고발기관 담당 조사관 추가자료 제출), 조세범칙자 고발서, 범칙조사보고서, ◇◇축협유통사업단 조사서, ◇◇축협계산서, 급여지급현황, ▣▣유통 자체 비용집행 내역, ◇◇축협 돈육·우육납품 흐름도, 공소외 7 농협계좌 흐름도, 추계조사 결정 근거 등 관련법규 사본, 월별집계표, 공소외 7 계좌 연도별 입금 명세서, 집계표는 적법하게 수집된 증거로서 각 유죄 인정의 증거로 사용할 수 있다고 할 것이다.

In addition, since the statement made by the defendant in the court below and the court of the trial is voluntarily made in the state of being given sufficient assistance of counsel by being notified of the right to refuse to make statements in open court, it can be used as evidence of guilt.

(3) Whether the Defendant’s failure to pay taxes when operating ○○ Livestock Cooperative Distribution Business Association constitutes “Fraud or other unlawful act” under Article 9(1) of the Punishment of Tax Evaders Act

"Fraud and other unlawful acts" under Article 9 (1) of the Punishment of Tax Evaders Act refers to fraudulent or other active acts that make it impossible or considerably difficult to impose and collect taxes, and it does not constitute merely failure to file a tax return under the tax law or filing a false tax return without accompanying any other acts (see Supreme Court Decisions 9Do5355, Apr. 21, 2000; 2004Do817, Jun. 29, 2006, etc.). For the crime of tax evasion, the term "act of tax evasion" means an act of reducing or attempting to commit an unlawful act while recognizing the fact that the person liable for tax payment is aware that his act constitutes fraud and other unlawful acts and thereby resulting in the occurrence of tax evasion (see, e.g., Supreme Court Decisions 98Do667, Apr. 9, 199; 2004Do817, Jun. 29, 2006).

Examining the evidence that can be used as evidence of guilt in the above legal principles in light of the records, the judgment of the court below as stated in paragraph (2)(c) is just and acceptable. In so doing, it cannot be said that the defendant erred by mistake of facts as alleged in the grounds for appeal.

Furthermore, in light of the following circumstances that can be recognized in light of the above evidence, Defendant 1, as a separate company from △△ Livestock Cooperative, has earned income of KRW 2.5 billion each year while actually operating △△ Livestock Cooperative Distribution Business Association, which is an intermediate processing and distribution company, but it is sufficient to recognize that Defendant 1 evaded the comprehensive income tax as “Fraud and other unlawful acts” with intent to evade tax, unless he/she has made a long-term income tax return by forming the appearance of all income accrued in the future of △△ Livestock Cooperative, unless he/she has made a long-term income return by forming the appearance of the same as that of all income accrued in the future, and on the sole basis of the fact that Defendant 2 had Defendant 2 prepared the business performance table of △△ Livestock Cooperative Distribution Business Association every year, it cannot be deemed that there was no intention

① If △△ Livestock Cooperative and the Defendant actually run livestock product processing business, △△ Livestock Cooperative’s agreement on the commission of livestock product processing (the event agreement entered into between △△ Livestock Cooperative and △△ Livestock Cooperative’s domestic business establishment) entered into between △△△ Livestock Cooperative and the Defendant, “B” under Article 10 (Tax Performance) shall faithfully fulfill the tax pursuant to the tax laws, and “B” shall be liable for all of the civil and criminal responsibilities arising from its actual and unfair conduct (the fine for negligence). 52) Nonindicted 8, who was working as a person in charge of the contract for △△ Livestock Cooperative, made a statement to △△△ Livestock Cooperative with the Defendant at the time of signing a tax invoice with the Defendant, stating that it would have been in the form of an agreement with the Defendant to pay all the taxes incurred in carrying out the distribution and sales of △△ Livestock Cooperative and that it would have been naturally known that it would have been in the form of a public and criminal provision on the sales of △△ Livestock Cooperative and that it would have been in the form of delivery and criminal liability.”

② While making a transaction with ○○ Livestock Cooperative, ○○ Livestock Cooperative Distribution Business Association was an organization affiliated with ○○ Livestock Cooperative and did not conduct separate business registration in order to appear to have supplied Dozers and Dozers in Korea directly to Dozers and Emt, and it appears that it was difficult for the tax evasion business Association to find it a separate corporate registration before the business registration was made around September 2006. [Non-Indicted 7, in the court of the lower court (Seoul Southern District Court 2010Gohap8 before the consolidation), the Defendant’s defense counsel testified, “The name of Doz Livestock Cooperative Distribution Business Association, the name of which was registered for the first time while business registration was made in the name of 2006 under the name of witness, and before that was the vice governor, 56).” In addition, it seems difficult for the tax authority to conclude the tax audit to find it a separate corporate entity that is not an organization affiliated with △△ Livestock Cooperative Distribution Business Association and to find it difficult for the tax evasion business Association to start the tax evasion business.

③ △△ Livestock Cooperative Distribution Business Association, as if it was an affiliated organization with △△ Livestock Cooperative, entered into a transaction with △△ Livestock Cooperative, and issued a tax invoice in the name of △△ Livestock Cooperative in the name of △△ Livestock Cooperative, due to the termination of a direct trade purchase agreement entered into with △△ Livestock Cooperative, which was in violation of the agreement on the collective handling of △△ Livestock Cooperative, and thereby preventing △△ Livestock Cooperative from being able to prevent the markets of △△ Livestock Cooperative from being obstructed and maintaining a direct trade purchase agreement. However, even if it was for the purpose of maintaining a direct trade purchase agreement, the Defendant agreed to pay taxes on profits arising from the performance of a contract on the consignment of livestock products processing with △△ Livestock Cooperative, and did not completely attempt to resolve

3. Conclusion

Therefore, among the guilty parts of the judgment of the court below, the defendants' appeal against the part of the crime of taking the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) and the part of the crime of violating the Punishment of Tax Evaders Act as concurrent crimes under the former part of Article 37 of the Criminal Act were justified. Since the court below acknowledged this part of the judgment of the court below and sentenced one punishment as to the defendant 1, it did not assert unfair sentencing in accordance with Article 364(6) of the Criminal Procedure Act, and reversed the part of the judgment of the court below against the defendant 1 and the part against the defendant 2 and the defendant 3 as follows. Since the prosecutor's appeal against the acquitted part of the judgment of the court below is without merit, it is dismissed in accordance with Article 364(6) of the Criminal Procedure Act since the prosecutor's appeal against the guilty part of the judgment of the court below is without merit, it is decided as per Disposition by the assent of Article 32

Defendant 1’s criminal facts

The defendant is not registered as a business and from June 2001, the defendant is a person who actually operated the △△ Livestock Cooperative Distribution Business Association from around 2001.

From January 202, 2002, the Defendant arranged to enter into a supply contract in order for the △△ Livestock Cooperative (hereinafter referred to as the “△△ Livestock Cooperative”) to supply Dozur and the New World Eypt Co., Ltd. (hereinafter referred to as the “Emart”) to supply Dozine and Dozine.

According to the above supply contract, △△ Livestock Cooperatives, which is the delivery company, shall not be allowed to manufacture, process, distribute, and sell refined meat en bloc and transfer all or part of the supply contract. Nevertheless, the Defendant entered into a contract for the operation of △△ Livestock Cooperative, which is the △△ Livestock Cooperative Branch, and livestock product processing company, on the ground that Nonindicted 7 was the representative of △△ Livestock Cooperative Distribution Business Association on January 10, 2002, and actually entered into the contract for the operation of △△ Livestock Cooperative, which is the △△ Livestock Cooperative, on the ground that the Defendant was the de facto, the Defendant was the representative of △△△ Livestock Cooperative's Livestock Cooperative's establishment, and did not actually receive all or part of the actual sales from △△ Livestock Cooperative's establishment in the name of △△ Livestock Cooperative (in the case of △△ Livestock, the remaining land in the form of life, and after being slaughtered in the case of △△ Livestock Cooperative's establishment, etc.) and supplied it to Korea Gau and mat after the process.

The defendant from January 2004 to December 31 of the same year, from January 2004, to 12.31, 2004, the defendant supplied Dozers and Embrates to Korea through Dozers and Embrates, and caused sales, but did not file a report on the amount of 2,532,302,848 won with the tax office until May 31, 2005, the filing deadline of global income tax for

As above, the Defendant evaded global income tax of KRW 901,169,69,696 in a fraudulent or unlawful manner in 2004 as well as KRW 901,169,696, global income tax of KRW 917,758,930 in a year 2005, and KRW 478,723,784 in a year 2006, from May 31, 2007 to May 31, 2007.

Summary of Evidence

1. The defendant 1's partial statement

1. The statement made by Non-Indicted 7 in the third trial records of the court below (Seoul Southern District Court 2010Gohap8, which was before the incorporation)

1. The statement made by Non-Indicted 8 of the fourth trial record of the lower court (Seoul Southern District Court 2010Gohap8, the Seoul Southern District Court 2010Gohap8)

1. Each prosecutor’s statement on Nonindicted 6, Nonindicted 7, and Nonindicted 8

1. The front statement of each witness on Nonindicted 7, Nonindicted 8, Nonindicted 36, and Defendant 2

1. The statement of Nonindicted 6

1. Investigation report (Submission of additional materials by investigators in charge of accusation agencies);

1. 조세범칙자 고발서, 범칙조사보고서, ◇◇축협유통사업단 조사서, ◇◇축협계산서, 급여지급현황, ▣▣유통 자체 비용집행 내역, ◇◇축협 돈육·우육납품 흐름도, 공소외 7 농협계좌 흐름도, 추계조사 결정 근거 등 관련법규 사본, 월별집계표, 공소외 7 계좌 연도별 입금 명세서, 집계표

Application of Statutes

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

Article 8(1)2 and (2) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 9919, Jan. 1, 2010); Article 9(1)3 of the former Punishment of Tax Evaders Act (amended by Act No. 8138, Dec. 30, 2006); Article 9(1)3 of the former Punishment of Tax Evaders Act (amended by Act No. 8138, Dec. 30, 2004; Article 8(2) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 9919, Dec. 31, 2007); Article 9(1)3 of the former Punishment of Tax Evaders Act (amended by Act No. 8829, Dec. 31, 2007; elective selection of imprisonment)

1. Aggravation of concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act, Article 4 (1) of the former Punishment of Tax Evaders Act (amended by Act No. 9919, Jan. 1, 2010); Article 4 (1) of the former Punishment of Tax Evaders Act (amended by Act No. 9919, Jan. 1, 201) [In cases of imprisonment with prison labor, the punishment for imprisonment shall be aggravated, and imprisonment with prison labor for a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) due to the evasion of global income tax in 2005 with the largest penalty,

1. Discretionary mitigation;

Articles 53, 55(1)3, and 55(1)6 of the Criminal Act (The following consideration of favorable circumstances among the reasons for sentencing):

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Suspension of execution;

Article 62(1) and (2) of the Criminal Act (hereinafter referred to as the following consideration for repeated consideration of favorable circumstances among the reasons for sentencing)

Reasons for sentencing

In light of the method and content of each of the crimes in this case, and the amount of evaded tax, etc., the crime is inferior to the nature of the crime, and the omission of the crime is not against the defendant. However, the defendant has no criminal records of the same kind and punishment, and the court below rendered a not guilty verdict of the part of the crime of breach of trust against the non-indicted 1, etc. shall take into consideration circumstances favorable to the defendant as favorable to the defendant, and determine punishment as ordered, taking into account all the circumstances that conditions for sentencing, such as the defendant’s age, character and behavior, environment, motive

Parts of innocence

1. The part of the Defendants’ property in breach of trust (including selective charges) from Nonindicted 1

The summary of each of the facts charged is the same as the above 2.b. 1). As seen in the above 2.b. 3 (b) above, inasmuch as there is no proof of each crime for the same reason, each of the facts charged is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

[Attachment Form 5]

Judges Yellow Hahn (Presiding Judge)

1) It is difficult to find what is the weak or weak of SDR. It is presumed that SRM (Spe-c-type R&) is written in writing as part of seven parts, including the brain and eye of cattle, verteb, verteb, verteb, liver, and livers up to work place, livers, and livers (hereinafter referred to as SRM only).

Note 2) is a violation of special law.

Note 3) 1 Title 483 of the trial records

Note 4) Title 5, 2312 of the trial records

Note 5) Two copies of trial records 857 to 869 pages 869

Note 6) Evidence of 3 books 1697 to 1701

Note 7) Evidence of 3 books 1701 to 1703

Note 8) 5 2200 of trial records

Note 9) Evidence of 3 books 1704 to 1705 pages

Note 10) Evidence No. 2, 1046 to 1061

Note 11) Evidence No. 2, 1071 to 1083

Note 12) Evidence Nos. 3 1706, 1707

Note 13) Evidence Nos. 3 1708, 1709

Note 14) Evidence Nos. 3 1708, 1709

15) Grade 2 (Request for Tax Investigation of Offenders in Offense of Violation of the Punishment of Tax Evaders Act) among the data pertaining to the inquiry of the Seoul Regional Tax Office on February 25, 2013 and replys to the order to submit the trial record seven books, the inquiry of the fact and replys to

Note 16) Evidence No. 6, 890 to 911

Note 17) Evidence Nos. 6, 904 to 911

Note 18) Three copies 1276 of the public trial records

Note 19) Three Round 1056 to 1061 of the public trial records

Note 20) Three Doz. 1056 to 1061 of the trial records

21) Seven books of public trial records (the fourth public trial records of each court)

Note 22) 2, 790 to 797, public trial records

Note 23) 2, 799 to 807, public trial records

Note 24) 5 5 2259 of the public trial records (the original public trial records, No. 24)

Note 25) 5 2200 of trial records

26) Grade 2 (Request for Tax Investigation of Offenders in Offense of Violation of the Punishment of Tax Evaders Act) among the data pertaining to the inquiry of the Seoul Regional Tax Office on February 25, 2013 and replys to the order to submit the trial record seven books, the inquiry of the fact, and replys

Note 27) Evidence Nos. 1046 to 1061

Note 28) Evidence Nos. 1071 to 1083

Note 29) Evidence Nos. 6-1 to 2-8 of evidence records

Note 30) Evidence Nos. 6, 2-9 to 10

Note 31) Evidence Nos. 6 11 to 18

Note 32) Evidence Nos. 163 to 175

Note 33) Evidence Record 6 180 to 182

Note 34) Evidence Nos. 183 to 186

Note 35) Evidence Nos. 6 187, 188

Note 36) Evidence Nos. 189 to 192

Note 37) Evidence No. 6, 20

Note 38) Evidence Nos. 6, 132 to 145