2016Gohap1345 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

1. A;

2. B

He/she shall file a prosecution on his/her own initiative, and hold a public trial on his/her behalf.

Attorney C (for the defendant)

Law Firm D (Defendant B), Attorney E

April 21, 2017

The Defendants publish the summary of the judgment on each of the Defendants not guilty.

1. Facts charged against the Defendants

【Status and Force of the Defendant, etc.】

Defendant A is the representative director of F Co., Ltd., and Defendant B is the former director of F Co., Ltd. in charge of funding.

G is a person who has served as a managing director in charge of credit operation and management from August 30, 2004 to December 26, 2006 as the head of the business division and director of the victim H, the managing director in charge of credit from December 27, 2006 to September 3, 2009, and the managing director in charge of credit operation and management from September 4, 2009 to March 31, 201.

【Institution of Sanctions】

1. Current status of F Co., Ltd.;

주식회사 F(이하, 'F'이라 한다)은 서울 송파구 I에 본사를 두고 임대주택건설 및 토목건축공사업을 주된 목적으로 하는 법인이었다.

F’s sales as of the end of 2009 amounting to KRW 90 billion, net loss amounting to KRW 4.8 billion, and sales as of the end of 2010 amounting to KRW 30 billion, net profit amounting to KRW 2.5 billion, but this was in a situation where the net loss was accumulated for several years in fact due to the records of operation through window dressing accounts, and the total capital was completely locked. As such, since after 2007, it was difficult to pay interest on existing loans under the name of a new borrowed borrower as well as interest payment, it continued to receive additional loans under the name of a new borrowed borrower.

F In total, 13 apartment construction business places (including lease and general sale), 1 housing construction business places, 8 reconstruction business places, 6 other business places, and 5 business places which have been completed, 7 business places among business preparation, 1 business places which have been completed, and 5 business places which have been completed, 7 business places among business preparation, and 1 business places which have been completed, and the number of completed business places has been low so that investment money can not be recovered smoothly.

In most of the F’s business funds, Defendant B, a managing director, obtained a loan from H by using a friendly relationship with G, but eventually, around June 2010, Defendant B did not pay overdue interest of KRW 44 billion, which is a part of the business funds borrowed from the Bank, and the F did not pay overdue interest of KRW 4 billion.0 billion.

2. Duties of an executive officer or employee of a mutual savings bank of a mutual savings bank are to perform loan business as resources, and thus, in order for its executives or employees to determine whether to grant loans to the applicants for loans, he/she shall thoroughly evaluate and analyze the financial ability, credit standing, and the possibility of collecting claims of the companies that intend to obtain loans. When granting approval for loans, he/she shall obtain appropriate security to ensure that the collection of loans does not cause any problem in the collection of loans, and take strict measures for examination and analysis of loans and taking measures for preserving claims, such as maintaining the soundness and profitability of loans and preventing customer deposits from being incurred due to non-performing loans.

In addition, when executive officers and employees of a mutual savings bank carry out "project financing loan" ("PF loan"), they shall thoroughly analyze the business balance such as authorization and permission of a business, purchase status of land, whether a borrower consents to a project, whether a contractor is a contractor's selection, payment ability of interest, whether a bond is secured, whether a loan is converted into this PF, the location of the place of business, the location of the loan use place, etc., after preparing a review report on the business, after obtaining approval from the representative director from the representative director according to the loan approval, secure the safety of the repayment of the loan after obtaining approval for the existing PF loan, and verify whether the existing source of the loan has been used through indirect data such as account specification, remittance, etc., and value-added tax, and examine whether the borrower has the ability to secure the repayment of the loan in the course of the existing PF loan loan project, and examine the possibility of the repayment of the loan through a thorough examination of the loan's ability to secure the repayment of the loan and the repayment of the loan.

In addition, even if an executive officer or employee of a mutual savings bank has to make a overdue loan, he/she shall make a loan only below the amount of overdue loan for the purpose of collecting or arranging overdue loan, and even in that case, he/she has the duty to make a decision on a loan with the approval

【Criminal Facts】

On September 10, 2004, the Defendants offered a loan of KRW 1.4 billion from H as security, but even thereafter, the Defendants received a loan from the victim H without providing a security through G with a close-friendly relationship with Defendant B, having difficulty in maintaining the shortage of business funds, and received a loan from the victim H without undergoing an appropriate loan examination.

Accordingly, on October 8, 2004, Defendant B requested to lend KRW 2 billion without any appropriate loan examination at the office of the managing director office of H in Songpa-gu Seoul, Songpa-gu, without providing any security against G. G. The above G violated the duties as an officer or employee of the mutual savings bank, such as the above contents, and was in violation of the duties as an officer or employee of the mutual savings bank.

The above G, upon the above request for a loan, has duties to determine whether to grant a loan to the borrower, after taking necessary measures to collect the loan, such as evaluating the assets and feasibility of the borrower, and setting adequate collateral, in compliance with the procedures set forth in the internal credit handling regulations, such as credit consultation/application receipt ? Request for Review on Security Evaluation (Credit Review Committee) ? Approval ? Transaction Agreement ? Credit Implementation.

However, the above G used the loan of KRW 2 billion in the name of the borrower without disregarding the procedures for credit handling, including the above loan application procedure, and taking measures to collect the loan, such as the establishment of collateral, and thereafter, the Defendants and the above G used the loan of KRW 2 billion in the name of the borrower. After all, the Defendants and the above G used the loan of KRW 1 billion by returning the loan from the Defendants and allowing the aforementioned G to return the loan of KRW 2 billion or to be used individually by the said G. When the loan of KRW 20 billion was impossible due to the excess of the loan of the loan of the borrower, the loan of the borrower was continued to be implemented

In addition, the above G did not comply with the above credit handling procedure as well as take measures to recover the loan, and did not take such measures, from October 8, 2004 to March 31, 2010, as stated in the list of crimes in the attached Table, with respect to F or borrowed borrowers in the name of the borrower, and carried out loans of KRW 86,532,713,927 in total over 32 times. The Defendants provided the above G with data such as the seal impression of the borrower, the corporate registry, and the business registration certificate, and participated actively in the whole of the defective loan while returning some of the loans to the above G.

Accordingly, in collusion with the above G, the Defendants obtained the financial benefits of KRW 86,532,713,927 from the F in violation of the occupational duties as an officer or employee in charge of lending the victim H, and caused property damage equivalent to the same amount to the victim H.

2. Determination

A. Relevant legal principles

In order to recognize a beneficiary who benefits from the execution of an occupational breach of trust or a third party closely related thereto as a co-principal with an executor of an occupational breach of trust, the act of an executor of an occupational breach of trust is insufficient only with the awareness that the act of an executor of an occupational breach of trust constitutes an act of breach of trust against the principal who is the victim. It is necessary to actively participate in the act of breach of trust by inducing an executor of an occupational breach of trust or participating in the entire process of the act of breach of trust (see, e.g., Supreme Court Decision 2003Do4382, Oct. 30, 2003).

(b) recognised facts;

In full view of the evidence adopted by this Court, the following facts can be acknowledged.

1) F’s progress of the project

A) The F has mainly constructed and leased a rental apartment, and the F has carried out the business of selling it in lots after the lapse of a considerable period of time. The F's 28 business places are 13 apartment construction business places (including rent and general sale places), 13 housing construction business places, 8 reconstruction business places, and 6 other business places. However, the completed business places are 15 business places, 5 business places, 7 business places, 7 business places in preparation for business, and 1 business places.

B) Around 204, F had a large number of construction costs while constructing apartment units at the same four places of business. However, as the funds were insufficient, the Corporation failed to obtain construction proceeds due to failure to meet the scheduled amount, etc., and thereafter, F was unable to pay the said amount, F borrowed funds from H, etc. and started operating business. In addition, from around 2004 to around 2008, F borrowed funds from seven savings banks, such as SC Savings Bank, and provided the land and buildings of the relevant place of business as security.

C) However, among the 11 units of rental apartment constructed by F, 11 units of 4,300 units of 5 units of 2,50 units of 11 units of 5 units of 2,50 units of 6 units of 1850 units of 2009, the sales amount of 30 billion won from 90 billion won as of 2009 to 30 billion won as of 2010 (the net profit of 4.8 billion won of 2009 to 2.5 billion won of 2010 was increased, but this was only a result from window dressing accounting). Ultimately, around June 2010, us did not pay overdue interest of 4.4 billion won of 20 billion won of 201 business funds loaned from D and came to work in the state of June 25, 2010.

2) loan progress and loan procedure for H H F

A) From September 2004, F provided a loan equivalent to the amount of the loan to H and provided a loan in accordance with normal procedures. However, around October 2004, as seen earlier, it was necessary to grant a loan in order to pay the amount of bills rapidly due to the aggravation of financial standing as stated above, but other savings banks need not receive a loan easily. Defendant B, the managing director in charge of the financing, requested L through the managing director in charge of the financing, and received a loan from H. The loan was continued to receive a loan for the purpose of operating funds, and F continued to receive a loan for the purpose of the loan after the repayment of the loan, and the amount of the loan was at least KRW 50 billion in around 2007 and at least KRW 10 million in around October 2010.

B) Defendant B continued to grant a loan only through G. Since September 10, 2004, Defendant B visited a bank and obtained a loan by telephone to G in lieu of applying for a loan, counseling on a loan, etc. On or after September 10, 2004, Defendant B continued to receive a loan in the name of the borrowed borrower when it was no longer possible to receive a loan in the name of F due to the restriction on the credit extension limit by an individual borrower under the Mutual Savings Banks Act.

C) The loan to F was first conducted at the strategic business division in charge of the PF loan out of H’s business division, and thereafter conducted by the corporate finance division in charge of the subsequent loan to a company. The corporate finance division, around 2009, took over and managed the remainder of the loan except for the borrowed loan in the name of the borrower from among the F loan managed by the previous strategic business division. By the end of 2008, the loan to F was directly remitted from H to H, but thereafter, the loan was carried out to be deposited into the ordinary account in the name of the borrower in the name of H opening and lending, and thereafter, the loan was remitted to F in this context, but if the passbook, etc. is managed by H, it was transferred to the ordinary account in the name of the borrower directly opened in the commercial bank by H, and if not, the borrower remitted the loan to the name of the borrower.

D) At the request of G, while Defendant B prepared and provided, G used the borrowed name loan provided by Defendant B to “A”, etc., G used the loan in the name of the borrowed name loan it created and remitted the loan to F. This loan was eventually changed into most of the borrowed name loan the borrower provided by the name of the borrower to F.

E) In such cases, G directed K et al., a working-level, to proceed with a loan, and conducted a loan with one’s own approval from L/C et al., and with the final approval of L/C, the president of L/C, and conducted a loan without conducting a credit investigation into F/M or borrowed-name borrower. In the case of a partial loan, the loan was remitted prior to the application for the loan. In response to the inspection of the Financial Supervisory Service, G prepared and kept a draft letter of credit review and loan by preparing the minutes, etc. ex post facto in preparation for the inspection of the Financial Supervisory

F) Upon Defendant B’s request for a loan, if the loan was carried out and the last remittance was made to F, the payment would be made more than the amount requested by Defendant B, and the remaining amount would be returned to F by designating means such as cash and check. On the other hand, the F returned this to G and accounts for the redemption of principal or the payment of interest. As a result, the F merely carried out the total amount of the loan deposited in the name of F or related company based on the total amount deposited in the name of F and related company. Since such loan was remitted in the name of F rather than in the name of the name of the borrower, it was not known until there was much amount of the loan actually carried out by each name of the borrower, and the interest paid by the borrower was paid by F in lieu of payment to G.

G) After around 2007 and around 2008, F had become more financial resources and it was impossible to pay interest on existing loans in the name of the borrower and continued to receive additional loans in the name of the borrower. Nevertheless, G continued to implement the above loans to receive repayment of loans up to the time, and there was no motive to assist the Defendant B, who is related to the circumstances that G used the above “management loan” from F.

3) Relation to the provision of security

A) Around October 2004, G demanded that the loan was not secured, and thereafter, to prepare for the inspection of the Financial Supervisory Service, and bring a security on Defendant B in an irregular and irregular manner in order to raise the possibility of collecting the loan. However, as seen earlier, F had already provided the project site and buildings as security to another savings bank, and provided the degree of claim for sales revenue of rental apartments that it constructed.

B) Therefore, F provided the following: ① 498 apartment units in Yangju-si (which could be sold from February 2007 to five years after the completion of construction; hereinafter the same shall apply); ② 08 apartment units in Yangju-si (which could be sold from September 2007 to September 2007); 2) 284 households in Jeon Sung-si (which could be sold from around the end of 2010 to the end of 201); ④ 1324 households in Jeonsi-si and 1324 apartment units in Jeonsi-si (which could be sold from around the end of 201); ⑤ 569 households in Chungcheongbuk-si (which could be sold from around the end of 201); 60 households in Gangnam-si (from October 206 to the end of 2006); 60 households in Gwangju-si, Gwangju-si, U. 147 (from around 2009 to the end of H’s transfer of the deposit account as security.

C) Under the above circumstances, Defendant B or G did not know what kind of loan each of the above collateral was provided, and the employee in charge of the loan arbitrarily distributed each of the loans at the time when preparing the documents on each of the loans, and thereafter, several assignment contracts are attached to the final loan documents according to the repeated loan. In addition, each of the proceeds from sale (the amount after deducting the deposit deposit and the National Housing Fund from the sale price) differs depending on the statements of the parties concerned, but the total face value is 100 billion won. According to Defendant B’s statement, the period of the provision of the security is as follows: (a) the above security was around August 2005; (b) the above security was around Feb. 2, 2006; and (c) the time of the provision of the remainder of the security was evident other than G et al.

D) Defendant B or K, a person in charge of loan business, who offered a security, has difficulty in evaluating the value of the security because a considerable part of rental apartment houses still remains in the period of sale for sale in lots due to the uncertain circumstances in the future. If evaluation is conducted, even if the real estate competition is good, at least 50% of the face value is recognized, and the pertinent proceeds from sale in lots are calculated from F without appraisal. The claim for the above proceeds from sale in lots is deemed to have little value of the security. Although the above apartment can be converted for sale in lots on or around December 2010, the above apartment can be converted for sale in lots on condition that it should be donated after purchasing the access road, but the above apartment can be converted for sale in lots on or after purchasing the access road, but the above apartment can be converted for sale in lots with road owners at the time, and there was a possibility that the general plan for sale in lots, management expenses, and special repair reserve funds, and ⑤ the above apartment can be converted for sale in lots due to documents related to the sale in lots.

E) Meanwhile, in light of the fact that in preparation for the inspection, etc. of the Financial Supervisory Service around 2008 to 2009, H: (a) from F, the right to collateral security was created with respect to the various non-owned parcels of land F, the maximum debt amount of which is KRW 30 billion to KRW 30 billion; (b) the right to collateral security was created with respect to other forest land than Gangwon-gu, the maximum debt amount of which is KRW 33.8 billion to KRW 13.3; (c) the right to collateral security was provided with building construction proceeds located outside Daegu-gu, Daegu-gu, and 13 lots; and (d) around 2009, the right to collateral security was received with respect to the sales proceeds of other rental apartments; (b) the right to collateral security was excessive and there was no value of collateral security; and (c) the right to collateral interest was paid at any time on May 2008.

4) The relevant criminal judgment against G

G was sentenced to eight years of imprisonment at the Seoul High Court on May 16, 2013, on the grounds of criminal facts, etc. committing the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) by making an insolvent loan, such as in the attached list of crimes related to F-related crimes, in violation of the occupational duties of the victim H as an executive officer or employee in charge of credit, and thereby obtaining financial benefits equivalent to the above amount, and causing property damage to the victim H, thereby committing the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation). The judgment was finalized on October 17, 2013 (In the first instance court: consolidation of Seoul Central District Court Decisions 2012Da412, Oct. 12, 2012; 2012Da3666, May 16, 2013; 2013Do1312, Oct. 17, 2013).

C. Determination

1) In relation to F’s loan procedures, G usually stated to the effect that, when Defendant B’s loan application, credit transaction agreement, corporate loan resolution, etc. was obtained from the board of directors, if the funds for exchange are urgently needed, G lending was made. It was not offered as security. At the last time, there was no ex post facto collateral or collateral itself for comparison with the supervising Board’s audit (No. 9843 of investigation record). F-related lending was not omitted according to the bank’s internal practice, and it was not subject to separate instructions, and it was difficult for employees to prepare and put them in the lending examination (No. 5 of investigation record, No. 984, No. 11644 of investigation record, No. 50). In light of the fact that, at the time, KF’s loan, a working-level employee, was written to the effect that it did not go through the lending examination committee to the effect that it did not go through the lending examination committee’s internal practice and that it did not go through the lending examination committee’s own loan application form and seal.

2) As to the circumstances in which F sought a loan from a borrowed borrower, there is no case in which G would make a loan from a borrowed borrower or a borrowed borrower. It may not cause the loan to its extent, which means that it requested the borrower to make a borrowed loan (the Investigation Record 9847 page). In addition, as seen earlier, some of the borrowed borrower provided by Defendant B was used for H’s 'management loan', and the loan was implemented through the borrowed borrower prepared by Defendant B himself. In light of this, it is difficult to see that the Defendants actively requested a loan from a borrowed borrower, and it is only viewed that the Defendants cooperationd with G’s demand for a loan from a borrowed borrower to continue to obtain a loan.

3) As seen earlier, H loaned a portion of the loan to Defendant B in the name of the borrowed borrower and paid the loan to Defendant B in the form of check, etc. As to this, G: (a) there was a difference between the loan amount by each borrower and the interest rate by each borrower; and (b) there was a difference between the loan amount by each borrower and the interest rate by each borrower; (c) the prosecutor of the Financial Supervisory Service, upon the receipt of the interest of the said borrower from Defendant B at once, demanded the said borrower to issue a number of checks in one column because the said borrower could be subject to a violation of the same limit; (d) whether the Defendant B paid the loan directly or in part by each borrower (as of the investigation record, 9849, 9850 pages). On the other hand, the Bank had not been able to disclose the name of the borrowed borrower and the relevant interest payment by each borrower in advance, and thus, it was impossible for the Defendant B to process it through the aforementioned various steps.

(Investigation Records 11650 pages). In light of the above, the Defendants, who had been unaware of the loan for each borrower, seem to have returned part of the loan at the request of G for the repayment of the principal and interest of the loan. It is difficult to view that G cooperates in the personal use of part of the loan.

4) On the grounds of the background of the unsecured loan and the floating loan, G was a situation in which the loan should not be known to F when making a unsecured loan. This is because, if the floating F is insolvent, H was a structure in which H was physical. The situation was that the loan was made in this situation.

In addition, in the case of a substitute repayment loan or interest steam table, there was a part in which it was continued due to low-income bank’s business profits (i.e., an investigation record 9845 pages). Moreover, as seen earlier, G appears to have been one of the reasons why it continued to provide a loan to Defendant B, who is in close relation with the situation that G used the name of the borrower from F for the management of the borrowed loan by lending the name of the borrower. In light of this, it seems that the Defendants’ request to prevent additional loans from being repaid and the interest of the above G was consistent with that of the Defendants, and it is difficult to view that the Defendants actively instigated the Defendants to commit a breach of trust against H.

5) Regarding the amount of breach of trust against H, the appellate court of Korea (Seoul High Court 2012No3666) identified the relevant loan on the basis of the following facts: (a) ascertaining the remittance corresponding to the details of the transfer of the loan immediately from H in 2004-2010, prepared by the Defendant B based on the details of the current account opened by K, such as the bank in the name of H, the Han Han Bank, etc., or the computerized contents of H; and (b) based on the data available at the time, such as the letter of the loan, etc., as the proviso, and the facts known by K in the process of acquiring the loan from the Strategic Business Department to the corporate financing division at around 2009, on the basis of the following facts: (c) based on the revision and supplementation of the details of each loan made by Defendant B and K through a large-scale survey of Defendant B, K, and Z, etc., during the prosecution investigation process; and (d) the amount of the loan actually confirmed as the amount of each loan.

6) Comprehensively taking account of the above circumstances, the evidence presented by the prosecutor in the instant case alone is sufficient to recognize that the Defendants acquired the profits from loans that were not normally received while taking advantage of and cooperating in G’s act of breach of trust, and it is insufficient to recognize that the Defendants actively participated in the act of breach of trust by inducing the Defendants to engage in the act of breach of trust or by participating in the entire process of the act of breach of trust.

3. Conclusion

Therefore, since the facts charged against the Defendants constitute a time when there is no proof of crime, it is so decided as per Disposition by the assent of Article 325 of the Criminal Procedure Act that the Defendants are acquitted under the latter part of Article 325 of the Criminal Procedure Act and the summary of the judgment is publicly announced under

The presiding judge, judges, and the Yellow Constitution

Judges Jong-jin

Judges Kim Jae-han

1) H has concealed losses incurred by the investment of unlisted stocks into the least loan to borrowed-name borrowers, and it has been called "management loan" and "management".

A person shall be appointed.