Defendant 1 and three others

Defendant 1 and two others and the Prosecutor

Red heading

Attorney Lee Hong-soo et al.

Busan District Court Decision 2007 Gohap199, 2007 Gohap264 (Consolidated), 2007 Gohap268 (Consolidated) Decided September 14, 2007

1. Each of the lower judgment’s convictions against Defendants 2 and 4 (Defendant 3 of the Supreme Court Decision) is reversed.

Defendant 2 and 4 shall be punished by imprisonment with prison labor for each of four years.

The number of days of detention before the pronouncement of the judgment below shall be 21 days for the defendant 2, and 142 days for the defendant 4 shall be included in the above punishment.

52,500,000 won shall be additionally collected from Defendant 2.

Of the facts charged in the instant case, the charge of occupational breach of trust against Defendants 2 and 4 shall be acquitted.

2. The appeal by Defendant 1 and the prosecutor against Defendant 1 and Defendant 3 are dismissed, respectively.

1. Scope of the deliberation of the political party;

① The lower court convicted Defendant 3 of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) among the facts charged in this case against Defendant 3 in concurrent crimes, and acquitted him of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the Act on the Aggravated Punishment, etc. of Specific Economic Crimes). The Prosecutor appealed only on the grounds of unfair sentencing (the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the Act on the Aggravated Punishment, etc. of Specific Economic Crimes) against Defendant 2 and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the Act on the Aggravated Punishment, etc. of Specific Economic Crimes) against Defendant 4. In addition, the lower court found Defendant 2 guilty of only part of the remaining part on the grounds of unfair sentencing against Defendant 2, and thus, the judgment on the Aggravated

2. Summary of grounds for appeal;

A. Error of mistake

(1) Defendant 1

The loan practice of this case was in charge of Defendant 2, and Defendant 1 was working as the chief director of the non-permanent office in the non-indicted 1 Credit Union (hereinafter “Non-indicted 1 Credit Union”), and it was only believed and settled Defendant 2 as Defendant 2, and it was completely unaware of the fact of the illegal loan until a civil petition is filed on April 2006.

(2) Defendant 2

㈎ 원심판시 제2의 나.항에 대하여

Defendant 2 received a total of KRW 52,500,000 from Defendant 4 on 19 occasions, such as the list of crimes (2) attached to the judgment below. However, this is merely a borrowed money, and it is not a consideration for taking advantage of convenience in relation to the loan of this case.

㈏ 원심판시 제2의 다.항에 대하여

Although it was true that Defendant 2 provided loans to Nonindicted 4 and 10, upon Nonindicted 3’s request, Defendant 2 embezzled the said loans to Nonindicted 3 and Defendant 4 on the following grounds: (i) “Written Statement of Guarantee of Payment of Loans” (Evidence No. 2007Dahap264, 49 and 142, the evidence of the case No. 2007Dahap2644).

(3) Defendant 4

Defendant 4 did not take part in the loans (except from No. 225 to 236 a year) indicated in the attached list of crimes (1) of the lower judgment, since around May 2005, Defendant 3, who actually operated Nonindicted Co. 5, was under the independent responsibility and management of Defendant 3.

B. Unreasonable sentencing

(1) Defendant 1, 2, and 4

The sentence of the court below (defendant 1: two years and six months of imprisonment, four years of suspended execution, and four years of imprisonment) is too unreasonable.

(2) Prosecutor

The punishment sentenced by the court below to Defendant 1, 2, and 3 (Defendant 3: Imprisonment of one year and half years, and three years of suspended execution) is too unhued and unfair.

2. Determination:

A. Determination ex officio as to Defendant 2 and 4

Before the judgment on the grounds for appeal is made, the point of occupational breach of trust against the defendant 2 and 4 (Article 2-a (a) at the time of the original judgment) is examined ex officio.

(1) Summary of this part of the facts charged

Defendant 2 and 4 conspired with Defendant 4 to keep approximately KRW 380,00 (0,000,000.............................................................................................................................................................................................................. were 1............................................ were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were were..................................................................................................................................

(2) Determination

Since the crime of occupational breach of trust is established when a person who administers another's business obtains pecuniary advantage or has a third party obtain it from another person in violation of his duties and causes loss to the principal, the crime of occupational breach of trust is established. Therefore, in order to establish the crime of occupational breach of trust, the act of occupational breach of trust shall cause property damage to the principal. If the money was deposited in the name account against the will of the non-indicted 2, the creditor of the deposit against the non-indicted 1 New Cooperatives, such as the above facts charged, the non-indicted 2 still holds the deposit claim equivalent to the above amount deposited against the non-indicted 1 New Cooperatives. Thus, this circumstance alone does not cause damage equivalent to the above amount deposited to the non-indicted 2. Thus, the above facts charged is not a crime of occupational breach of trust, and thus, the court below should be acquitted, and thus, the judgment of the court below was pronounced guilty and it cannot be maintained as it is.

However, the grounds for appeal by the above defendants, claiming mistake of facts, shall still be subject to the judgment of this court, and this shall be changed to another claim.

B. Determination on the grounds for appeal

(1) As to the assertion of mistake of facts by Defendant 1, 2, and 4

㈎ 피고인 1의 주장 부분

Comprehensively taking account of the evidence duly admitted and examined by the court below, Defendant 1 can fully recognize the facts that he participated in the illegal loan of this case under the express or implied agreement with Defendant 2 or Defendant 4, and Defendant 1’s above assertion is not acceptable on the sole basis of Nonindicted 19 partial statement of the witness at the trial court or Defendant 4’s statement in the trial court room alone, and there is no other evidence to reverse this.

㈏ 피고인 2의 주장 부분

(a)With respect to Section 2-b) at the time of the original adjudication:

Comprehensively taking account of the evidence duly admitted and examined by the court below, it can be sufficiently recognized that the 52,500,000 won, which Defendant 2 received from Defendant 4, was the consideration for Defendant 4’s exclusive loan of Nonindicted 1’s new consultation funds with the loan company’s operating loan funds, and the repayment of the loan borrowed during the loan interest rate and the repayment period, is the consideration for the convenience of lending. Thus, the above argument by Defendant 2 is without merit.

(b)With respect to Section 2-c) at the time of original adjudication:

원심이 적법하게 채택·조사한 증거들에 의하여 인정되는 다음과 같은 사정들, 즉 ① 공소외 20 주식회사(이하 ‘ 공소외 20 회사’라고 한다)의 실제 사주인 공소외 3은 2006. 4.경 피고인 4를 통하여 알게 된 피고인 2에게 피해자 공소외 21 주식회사(이하 ‘ 공소외 21 회사’라고 한다)로부터 공소외 4 등의 명의로 매입하는 부산 동래구 수안동 소재 (명칭 생략) 상가 11개 호수를 담보로 잔금 7억 원의 대출을 부탁하였다고 진술하고 있는 점, ② 공소외 21 회사과 공소외 20 회사 사이의 2006. 4. 11.자 매매계약서(위 증거기록 4권 139쪽, 매매목적물이 10개 호수로 되어 있으나 이후 212호가 212호와 214호로 분할되어 11개 호수가 되었다)의 특약사항에 “잔금 중 7억 원은 공소외 1 신협 발행 지급보증서를 공소외 21 회사에게 제출한다”는 기재가 있는 점, ③ 2006. 5. 4.자 공소외 1 신협 이사장 명의의 대출금지급보증확약서(위 증거기록 4권 142쪽)는 “ 공소외 1 신협에서 2006. 4. 27. 위 (명칭 생략) 상가 10개 호수에 대하여 채무자 공소외 22 외 7명의 대출신청서를 작성하고 신청한 일금 7억 원을 2006. 6. 20.까지 공소외 21 회사에 직접 입금할 것을 확약합니다'라는 내용이고, 2006. 6. 초순경 작성된 것으로 보이는 공소외 1 신협 이사장 명의의 대출금지급보증확약서(위 증거기록 4권 9쪽)는 ” 공소외 1 신협에서 부산 동래구 소재 상가 및 아파트( (명칭 생략))와 관련하여 공소외 23 외 9명이 공소외 21 회사에게 지급할 잔금 435,900,000원 및 부가세 103,478,000원을 2006. 9. 10.까지 대출처리하여 공소외 21 회사에 직접 입금할 것을 확약합니다“라는 내용과 ”위 (명칭 생략) 상가 11개 호수 잔금에 대하여 2006. 6. 20. 5억 원, 2006. 7. 10. 2억 원을 지급한다“는 내용인 점, ④ 그 후 2006. 6. 20. 실제로 공소외 21 회사의 계좌에 공소외 1 신협의 대출금 5억 원이 입금되었고(위 (명칭 생략)아파트 관련 공소외 23 외 9명의 명의로 각 5,000만 원씩 합계 5억 원이 입금된 것이나 앞서 본 바와 같이 (명칭 생략)아파트 관련 대출금은 2006. 9. 10.까지 입금하기로 한 점, (명칭 생략) 상가의 잔금 7억 원 중 5억 원을 2006. 6. 20.까지 입금하기로 한 점에 비추어 보면 위 5억 원은 (명칭 생략) 상가의 잔금과 관련하여 입금된 것으로 볼 수 밖에 없다), 또한 피고인 2가 (명칭 생략) 상가의 잔금과 관련하여 2006. 7. 12. 1억 원, 2006. 7. 20. 1억 원을 공소외 21 회사 측에 각 지급한 점, ⑤ 위 2006. 5. 4.자 대출금지급보증확약서는 피고인 2가 초안을 작성한 다음 공소외 3을 통하여 공소외 21 회사 공소외 24 부장의 확인을 거쳐 작성한 것으로 보이는 점( 피고인 1은 이후 공소외 21 회사에서 공소외 1 신협에 위 대출금지급보증확약서에 대한 진위 여부를 확인할 때 피고인 2의 자필로 작성된 대출금지급보증확약서를 보여주었다고 진술하고 있다, 위 증거기록 4권 890쪽), ⑥ 위 공소외 24는 증거기록 4권 9쪽의 대출금지급보증확약서는 2006. 6. 초순경 공소외 21 회사 사무실에서 피고인 2와 공소외 3이 같이 와서 주었다고 진술하고 있는 점, ⑦ 공소외 21 회사에서는 위 2006. 5. 4.자 대출금지급보증확약서를 교부받고 2006. 5. 4. 및 같은 달 16. 위 (명칭 생략) 상가 11개 호수의 소유권을 위 공소외 4 등 11명의 명의로 이전해 준 점, ⑧ 피고인 2는 위 (명칭 생략) 상가 관련 대출금을 피고인 4에게 대여하는 등 한 점 등을 종합하여 보면, 피고인 2가 원심판시 기재와 같이 공소외 21 회사를 위하여 보관하고 있던 위 (명칭 생략) 상가 관련 대출금을 임의로 피고인 4에게 대여하는 등 하여 횡령한 사실을 충분히 인정할 수 있으므로 피고인 2의 위 주장도 이유 없다.

㈐ 피고인 4의 주장 부분

In full view of the evidence duly adopted and examined by the court below, it can be recognized that Defendant 3 was actually in charge of the business of Nonindicted Co. 5 from May 2005. However, Defendant 3 acted as an employee of said Nonindicted Co. 5 and the decision-making related to the operation of said lending company is sufficiently recognized by Defendant 4. Thus, Defendant 4’s above assertion is rejected.

(2) As to the assertion of unfair sentencing on Defendant 1 and the Prosecutor’s Defendant 1 and Defendant 3

㈎ 피고인 1 부분

When comprehensively and comprehensively considering all the conditions of sentencing as shown in the arguments in this case, including the grounds for sentencing as stated in the reasons for sentencing at the time of original judgment against the above defendant, such as the age, character and conduct, environment, the background and result of the crime in this case, the circumstances after the crime, etc., it is not recognized that the sentence imposed by the court below is too appropriate and too unreasonable or too unreasonable.

㈏ 피고인 3 부분

In light of the degree of involvement of the above defendant in the illegal loan of this case, the prosecutor's assertion that the sentence of the court below is unfair because it is too unpertentable. However, in light of the above defendant's argument that the sentence of the court below is unfair because it is too unpertentable, the court below's sentencing conditions as stated in the argument in this case, including the sentencing grounds stated in the reasons for sentencing at the time of original judgment against the above defendant, such as age, character and conduct, environment, and the circumstances of the crime of this case, etc.

3. Conclusion

Therefore, since the judgment of the court below's convictions against the defendants 2 and 4 on the grounds of the above reasons, without examining the above defendants' assertion of unfair sentencing, all convictions against the above defendants among the judgment of the court below related to concurrent crimes are reversed, and the appeal against the defendants 1 and 3 by the defendant 1 and the prosecutor is dismissed, since all appeals against the defendant 1 and the prosecutor's appeal against the defendant 1 and 3 are without merit.

The criminal facts and the summary of the evidence against the above defendants recognized by the court of this court are as follows. The first head of the criminal facts shall add to the statement "the defendant 4 was sentenced to 8 months of imprisonment with prison labor for the crime of gambling, etc. at the Busan District Court's Dong Branch on January 24, 2007 at the Busan District Court's Dong Branch, and 2 years of suspended execution, and is the person for whom the above judgment became final and conclusive on February 1 of the same year." The summary of the evidence shall be deemed as "each fact of 2, 3 at the time of printing" as "each fact of 3 at the time of printing", and the corresponding column shall be deemed as "the copy of the complaint of 1. (2), copy of the online deposit passbook (the complainant), copy of the statement of statement (the complainant), copy of identification card, a copy of each police suspect's examination statement on the non-indicted 6, a copy of the written statement, a copy of the statement, a copy of each statement of statement, and a copy of each report."

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

Defendant 2: Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356, 355 (2), and 30 (Misappropriation of Trust) of the Criminal Act, Article 5 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 355 (1) of the Criminal Act (the occupation of flood, the choice of imprisonment), Article 355 (1)

Defendant 4: Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 355 (2) and Article 30 (Misappropriation of Trust) of the Criminal Act, Article 6 (1), Article 5 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 19 (1) 1, Article 3 of the Act on the Registration of Credit Business and Protection of Financial Users (the occupation of the Credit Business Administration and the Selection of Imprisonment)

1. Handling concurrent crimes (Defendant 4);

The latter part of Article 37 and the first part of Article 39(1) of the Criminal Act (trade between each crime and each crime of gambling in which judgment has become final and conclusive)

1. Aggravation for concurrent crimes;

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

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Code

1. Collection (Defendant 2);

Article 10 (3) and (2) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

The illegal loan of this case was implemented through the active public offering by Defendant 2 and Defendant 4, who had been in a position to exercise overall control over the business of Nonindicted Party 1 as the managing director of the new conference, and due to this, it was caused by a large amount of damage from the victim Nonindicted Party 1’s new union up to KRW 3.5 billion ( Defendant 4 claimed that most of the above damage amount remains as the loan company’s claims, and that the above loan claim is expected to be transferred to Nonindicted Party 1’s new union. However, even if the above assignment of claims is carried out, it is still an index whether the actual damage recovery would still be made) and other sentencing conditions specified in the argument of this case, such as the age, character and conduct of the above Defendants, the background and result of the crime of this case, and the circumstances after the crime, etc., shall be determined as per the order.

The summary of this part of the facts charged against Defendant 2 and 4 is the same as that of the above 2. A. (1). This constitutes a case that does not constitute a crime as seen earlier, and thus, a not-guilty verdict is rendered pursuant to the former part of Article 325 of the Criminal Procedure Act.

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

Judges Cho Jong-soo (Presiding Judge)