Defendant 1 and one other

Defendants and Prosecutor

Song Ho-ho

Attorney Suh-he et al.

Busan District Court Decision 2004Gohap65 Delivered on August 13, 2004

All appeals by the Defendants and the Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant 1 (the supplemental appellate brief submitted by the defense counsel of the above defendant after the deadline for submitting the appellate brief is considered to the extent that it supplements the grounds for appeal of the above defendant)

(1) misunderstanding of facts

(A) Facts constituting the crime No. 1. of the judgment below

Although the above Defendant borrowed 400 million won from Defendant 2 on September 30, 2003, the above Defendant borrowed 400 million won from Defendant 2, the above 400 million won was unaware of the reduction of the funds of the chamber of commerce and industry, and the vice president of Nonindicted Party 2 of Nonindicted Party 1 Co. 1 (hereinafter “Nonindicted Party 1”) thereafter borrowed money from Defendant 2 on three occasions. However, the above Defendant did not participate, and (name omitted) the above funds of the chamber of commerce and industry are not funds that are organized in general budget or special budget, but (name omitted) the above Defendant, the chairman of the chamber of commerce and industry, who is the chairman of the chamber of commerce and industry, can independently determine and use the funds, so even if the above Defendant borrowed the funds

(B) Criminal facts No. 2. A of the judgment of the court below

The payment of shares for the capital increase of Nonindicted Co. 3, Nonindicted Co. 4, and Nonindicted Co. 5 was made by the representative director of each of the above companies, and the above Defendant was not involved, and each of the above companies was paid in advance by Nonindicted Co. 1 and used it again for the payment of shares, and it did not disguise the payment of shares to another company, and it does not go against the capital adequacy of each of the above companies.

(C) Facts constituting the crime No. 2. B. of the judgment of the court below

The term of lease was set at two months, rent 20 million won, and the office was leased to Nonindicted 6; Nonindicted 6 did not pay the rent and did not allow Nonindicted 6 to use the office free of charge.

(D) Nevertheless, the lower court found the Defendant guilty of each of the above charges. The lower court erred by misapprehending the facts on this point, thereby adversely affecting the conclusion of the judgment.

(2) Legal principles

The Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter referred to as the "Special Economic Crimes Act") cannot be applied even if the crime under Article 1 (1) of the decision of the court below is guilty, since it is not conducted under the single criminal intent, and the meaning of the amount of profit at least 500 million won under the Special Economic Crimes Act is that the actual amount of profit is at least 500 million won. Thus, in a case where the amount of loan does not exceed 400 million won in any time, the court below applied the Special Economic Crimes Act to this part of the facts charged, and there is an error of law by misunderstanding legal principles

(3) Unreasonable sentencing

In light of all the circumstances, the amount of embezzlement of the crime of violation of the Special Economic Act was fully repaid, and there was no damage to the chamber of commerce and industry (name omitted), the crime of violation of the Commercial Act, the crime of false entry in the original copy of a notarial deed, the crime of false entry in the original copy of a notarial deed, and the crime of uttering of the original copy of a notarial deed, there are many aspects of the crime of mutual contribution, which are more severe punishment than ordinary payments and merely accounting issues, the crime of violation of the Labor Standards Act was agreed with the employees, and the co-representative 7 was punished in the case of the crime of violation of the Labor Standards Act, and the above defendant has no special criminal power prior to a fine, etc., the punishment (4 years

B. Defendant 2

(1) Legal principles

The judgment of the court below that applied the special law to the above defendant is erroneous in the misunderstanding of legal principles as seen in Section A.2, which affected the conclusion of the judgment.

(2) Unreasonable sentencing

(Name omitted) In light of the fact that the above defendant, who was the managing director of the chamber of commerce and industry, was unable to refuse the request of Defendant 1, the president of the chamber of commerce and industry, the (name omitted), the fact that the illegality was not significant due to the fact that the funds of the chamber of commerce and industry were temporarily used, the embezzlement was fully repaid within the short term, (name omitted) there was no damage to the chamber of commerce and industry, and the above defendant was the primary offender, it is unfair that the court below's sentence (two years of suspended execution in January and June) sentenced to the above defendant is too unreasonable.

(c) Prosecutors;

(1) Mistake of facts (not guilty part against Defendant 1)

(A) The point of occupational embezzlement on March 13, 2002

Even according to the statements made by Nonindicted 8 and Nonindicted 1, the senior managing director of the above Defendant, Nonindicted 4, Nonindicted 4, Nonindicted 8, and Nonindicted 1, the senior managing director of the accounting division, it is sufficient to recognize that the above Defendant instructed or involved in the payment of the difference of the real estate sales price for a temporary loan as if he lent to Nonindicted 1, and the above Defendant was able to use the difference at any time, and in fact, the above Defendant was able to use it at any time, and the said Defendant was able to withdraw the money more than the money he lent to Nonindicted 1 from Nonindicted 1 and used it for personal purposes. The amount equivalent to the difference of the unfair market sales price was also used for personal purposes, and at the time of deposit as above,

(B) The point of occupational embezzlement on December 30, 202 and July 31, 2003

The above defendant, upon the completion of the non-indicted 1’s composition procedure, has been operating the company in the manner of using the construction cost directly paid to the subcontractor by the non-indicted 1 in return from the subcontractor and issuing bills on behalf of the subcontractor. As long as the amount received as the price of the subcontracted construction is not paid to the subcontractor, it shall be deemed that the above defendant embezzled it, and in the case of 200 million won paid in the form of return of the construction cost on July 31, 2003, the above defendant embezzled it by making the above defendant use it at any time by depositing it in the name of temporary loan as if the above defendant lent to the non-indicted 1.

(C) Violation of the Framework Act on the Construction Industry

Non-Indicted 7 was registered as the representative director in the form of Non-Indicted 1, and in fact, the above defendant was engaged in all the business of Non-Indicted 1, and the above defendant committed the crime.

(D) Therefore, even though each of the above facts charged was guilty, the court below rendered a judgment of innocence. The court below erred by misunderstanding the facts as to this point, which affected the conclusion of the judgment.

(2) Unreasonable sentencing

(A) Defendant 1

Although the above defendant committed each of the crimes of this case as the chairperson of the chamber of commerce and industry representing the airspace in Busan, he committed each of the crimes of this case, committed the destruction of evidence and left the country from abroad, and obstructed investigation, such as failing to comply with summons by the prosecutor, and attending the court, etc. In addition to each of the crimes of this case, each of the crimes of this case was committed with the company fund to be elected to the president of the chamber of commerce and industry. In addition to each of the crimes of this case, the above defendant committed an act of selling real estate with the funds of non-indicted 1 in the composition procedure, and did not violate the above defendants' moral problems, such as denying the clear fact-finding and liability, etc., it is unfair for the above defendant to be sentenced to punishment of the above defendant.

(B) Defendant 2

In light of the fact that the above defendant conspireds with the defendant 1 to force the subordinate staff, embezzled the funds of the chamber of commerce and industry, and does not seem to be against the defendant, such as the reversal of the statement made by the prosecutor's office under the pretext of the defendant 1, etc. in the court, the sentence imposed on the above defendant is too uneasible and unfair.

2. Determination on the grounds for appeal

A. As to Defendant 1’s assertion of mistake of facts

① According to the health stand, the evidence duly adopted and examined by the court below and the statement of non-indicted 10, the above defendant ordered the withdrawal of the funds of the chamber of commerce and industry (name omitted) four times. The above funds are created as a special membership fee, (name omitted) the purpose of securing the financial stability of the chamber of commerce and industry and strengthening the meeting of the National Assembly members, etc. In order to convert the funds, the use of the funds is limited to the expenses, etc., and the above procedures are not followed, but the above defendant was withdrawn and used without going through regular procedures such as the preparation of the disbursement table and approval of the standing president, etc. In the process of spending funds, it can be sufficiently recognized that the above defendant had an intention of unlawful acquisition, and according to the health stand of No. 2-A of the judgment of the court below, according to the evidence duly adopted and examined by the court below, the above defendant's order to use the funds of the non-indicted 3, non-indicted 4, and non-indicted 5, etc., and the above facts are sufficiently accepted.

B. As to the Defendants’ assertion of misapprehension of legal principles

As the court below properly states, it is reasonable to see that the defendants' single and continuous criminal intent can be recognized in light of the fact that the victim of the crime in the judgment of the defendants and the method of the crime are identical, and that the crime was committed repeatedly in a short period. This does not change even if the defendant repeats the act of embezzlement after returning the preceding embezzlement. Thus, the above assertion is without merit.

C. Regarding the prosecutor's assertion of mistake of facts (the defendant 1's acquittal portion)

① On March 13, 2002, it is insufficient to recognize the intention of illegal acquisition of the above defendant merely because the above defendant deposited the difference in the real estate sales price in temporary loan name as if the above defendant lent it to the non-indicted 1 for the purpose of raising funds of the non-indicted 1, who did not participate in the above defendant. In light of the various circumstances properly explained by the court below, it is difficult to view that the above defendant used the difference in the real estate sales price in temporary loan from the non-indicted 1 only with the statement of the investigation report (such as supplementary data submitted by the non-indicted 9) and the statement of temporary loan from the above defendant, etc., it is insufficient to recognize the intention of illegal acquisition of the above defendant merely because the above defendant deposited the difference in the real estate sales price in temporary loan name as if he lent it to the non-indicted 1.

D. As to the Defendants and prosecutor’s assertion of unreasonable sentencing

(Name omitted) Although the defendants, who are in the position to work for the development of the Busan Chamber of Commerce and Industry as the president and the managing director of the chamber of commerce and industry, embezzled the funds of the chamber of commerce and industry invested by the regional superior officials and used them for the funds of the company operated by the president of the chamber of commerce and industry to lose the honor and trust of the chamber of commerce and industry, Defendant 1, who is in the position of the president of the chamber of commerce and industry, has a good condition for the defendants, such as the following: (a) while he serves as the president of the chamber of commerce and industry (name omitted); (b) while he is in office as the president of the chamber of commerce and industry, he she wumds the wume of the chamber of commerce and industry and impedes its development; (c) however, there is no reason to believe that the court below's sentencing conditions of this case, such as the age, character, intelligence and environment of the defendants, motive and consequences of each crime of this case, circumstances after the crime, and criminal records, etc., are too unreasonable or unreasonable.

3. Conclusion

Therefore, the appeal by the Defendants and the Prosecutor is dismissed in its entirety on the grounds that it is without merit. It is so decided as per Disposition.

Judges Lee Dong-chul (Presiding Judge)