Defendant 1 and one other

Kim Jong-su

Attorney Han Han-chul et al.

Defendant 1 (Co-Defendants in the original judgment of the Supreme Court) is punished by imprisonment for one year and six months with prison labor for the crime No. 1-C. in the judgment of the Supreme Court, by a fine of KRW 800,000, and Defendant 2 (Defendants in the judgment of the Supreme Court) by a fine of KRW 300,000,000, respectively.

If the Defendants did not pay each of the above fines, the Defendants shall be confined in the Labor House for the period calculated by converting each of 50,000 won into one day.

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

25,000,000 won shall be additionally collected from Defendant 2.

To order the Defendants to pay an amount equivalent to the above fines.

Defendant 1 is the actual representative director of Nonindicted Co. 7 (hereinafter referred to as “Nonindicted Co. 7”) and Nonindicted Co. 7, who holds 100% of the shares, and is the victim Nonindicted Co. 8 (hereinafter referred to as “Nonindicted Co. 8”), the actual victim Nonindicted Co. 2 (hereinafter referred to as “Nonindicted Co. 2”), Nonindicted Co. 9 (hereinafter referred to as “Nonindicted Co. 9”), and Nonindicted Co. 10, etc., whose major shareholder is Nonindicted Co. 11 (hereinafter referred to as “Nonindicted Co. 11”), and who has overall control over the operation of each of the above Co. 11, including the management of funds.

Defendant 2 is currently Nonindicted Corporation 12’s standing auditor, who was selected as a candidate for the Ansan City City City Mayor on April 19, 2010 and went out to a candidate for the Ansan City City City City Mayor on June 2 of the same year, which was implemented on June 2 of the same year.

1. Defendant 1’s crime;

(a) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes;

(1) Crimes against the victim non-indicted 2

On September 3, 2007, the Defendant, at the office of the victim non-indicted 2 company located in Yeongdeungpo-gu Seoul (hereinafter omitted), embezzled KRW 110 million in total five times from the victim non-indicted 7 to January 15, 2009 by using the personal account as if he loans 100 million to the non-indicted 9 company on the same day as if he lends her short-term loans to the non-indicted 2 company for the non-indicted 2 company. The Defendant embezzled the amount of KRW 100,000,000 in total for personal purpose, such as using the money as the full check and having the wife use it for the personal purpose, from around that day to around January 15, 2009.

(2) Crimes against the victim non-indicted 8

On May 15, 2008, the Defendant deposited KRW 170,500,000 from Nonindicted Company 7 to the corporate bank account of the victim Nonindicted Company 8 as the construction price, and on September 12, 2008, deposited KRW 1,000,000 in the same account of the victim Nonindicted Company 8 from Nonindicted Company 7 as the short-term loan.

While the Defendant kept the above funds for the victim non-indicted 8 on behalf of his business, on September 12, 2008, he made a false accounting as if he paid the construction cost at the office of the non-indicted 2 Company, and remitted KRW 50 million to the account of the non-indicted 11 Company (Account Number 2 omitted). On October 9, 2008, the Defendant re-transfered the funds from the above account of the non-indicted 11 Company to the account of the company in the name of the defendant (Account Number 3 omitted), and embezzled KRW 50 million owned by the victim non-indicted 8 for personal purpose at that time.

(b) Violation of the Act on the Aggravated Punishment of Specific Economic Crimes;

On July 17, 2008, the Defendant received 1.2 billion won from the victim Nonindicted Co. 2’s office, from the victim Nonindicted Co. 8’s corporate bank account (Account Number 4 omitted) to the victim Nonindicted Co. 2’s corporate bank account (Account Number 4 omitted), in the name of construction cost, and lent it to Nonindicted Co. 9 for a short time.

Although the Defendant had a considerable and reasonable duty to take measures to recover claims for the short-term lending of the victim Nonindicted Company 2’s funds to Nonindicted Company 9, the Defendant violated such duty on the same day, and thus has already been liable for the Defendant’s debt of KRW 1.466 million to Nonindicted Company 9 without any security, thereby obtaining pecuniary benefits of KRW 425 million to Nonindicted Company 9 by providing a short-term lending of KRW 425 million to Nonindicted Company 9 who has no particular business performance and no asset, and incurred losses equivalent to the same amount to the victim Nonindicted Company 2 from around that time to October 9, 2008, as shown in the attached Table 2, and provided a short-term lending of KRW 2.40 million to Nonindicted Company 9 on five occasions in the same manner as indicated in the annexed Table 2 of Crimes, thereby having inflicted damage equivalent to the same amount to the victim Nonindicted Company 2.

(c) Violation of the Political Funds Act;

No one shall contribute any political fund in any way that is not prescribed by the Political Funds Act, and no supporters may contribute any support fund to a supporters' association, but directly contribute any support fund to the designation authority of the supporters' association.

Nevertheless, around 23:00 on May 21, 2010, the Defendant issued KRW 25 million to Defendant 2, who is the designation authority of the designation authority, for election funds, at Defendant 2’s office located in the Ansan-si (hereinafter omitted), the candidate’s office located in the Ansan-si (○○○○○○○○○○○○), and Nonindicted 3, an employee of the president support office of Nonindicted Company 7, sent out Nonindicted 3, who is an employee of the president support office of Nonindicted Company 7, to the relevant place, and delivered KRW 50,000,000 to Defendant 2, who is the designation authority of the designation authority, for election funds.

As a result, the Defendant contributed 25 million won of political funds by means not stipulated in the Political Funds Act.

2. Defendant 2’s crime;

No one shall receive political funds by means that are not provided for in the Political Funds Act, and the designation authority of a supporters shall not receive support payments directly from supporters, but only receive support payments from supporters after obtaining power of attorney from supporters' associations.

Nevertheless, at around 23:00 on May 21, 2010, the Defendant, who is the designation authority of the designation authority, received KRW 25 million as election funds from Nonindicted 3, who sent Defendant 1, as above, at the same place as that of subparagraph 1-C around May 21, 201.

As a result, the Defendant received a contribution of KRW 25 million by means not stipulated in the Political Funds Act.

【No. 1-A. B. Each fact】

1. The defendant 1's partial statement

1. Legal statement of the witness Nonindicted 14

1. Each prosecutor's interrogation protocol against Defendant 1 (including Nonindicted 14's statement records)

1. Each prosecutor’s statement on Nonindicted 15, 14, 16, and 17

1. A written statement prepared by Nonindicted 14

1. The certified transcript of corporate register, a report on investigation (an investigation report on the outline of the company related to Nonindicted Company 7), a report on Nonindicted Company 7’s accounting analysis data, a report on the confirmation of the business number of Nonindicted Company 7 and eight other corporate registers, a report on the result of the primary account tracking, a report on the need for the second account tracking, a report on the criminal investigation (in relation to suspicions, such as tracking results and embezzlement with respect to Nonindicted Company 7), a report on criminal investigation (in the last day of July 6, 2010), a report on criminal investigation (in the last day of the filing of the corporate register), a report on criminal investigation (in the form of a copy, etc. of the corporate register, etc. of the building owned by Defendant 1), a report on criminal investigation (in the form of a copy, etc. of the corporate register of Nonindicted Company 7’s seizure-accounting evidence), a report on criminal investigation (in the form of a criminal investigation report on Nonindicted Company 7’s seizure

[Each fact of paragraphs 1-c and 2]

1. Defendants’ respective legal statements

1. Each prosecutor's interrogation protocol against the Defendants (including Nonindicted 3's statement protocol)

1. Each prosecutor’s protocol on Nonindicted 3, 18, 1 (the Nonindicted Party in the Supreme Court judgment), and 4

1. An investigation report (a copy of Nonindicted Company 7’s employees Nonindicted 3’s pocket book), an investigation report (Attachment of Defendant 1 and 2’s monetary records), an investigation report (the analysis of Defendant 2 and Nonindicted 3’s phone phone calls), Nonindicted 3’s sending details, Defendant 1’s sending details, investigation report (in relation to Nonindicted 3’s statement, on-site answers to Defendant 2 election campaign office), investigation report (the fifth local election expense data), investigation report (the fifth local election expense data), investigation report (the regulations on the management of political fund affairs), and an investigation report (the report attached to the accounting data of the candidate’s supporters’ association for the

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

A. Defendant 1: As a whole, Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 356 and Article 355(1) of the Criminal Act [the crime of occupational embezzlement against Nonindicted Company 2; the maximum of imprisonment shall be 15 years of imprisonment prescribed in the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010; hereinafter the same shall apply], Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 356 and Article 355(1) of the Criminal Act [the crime of occupational embezzlement against Nonindicted Company 2; Article 1(1), Article 8 of the Criminal Act and Article 42 of the Addenda (amended by Act No. 10259, Apr. 15, 201); Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes; Article 35(1) and Article 35(3) of the Political Funds Act

B. Defendant 2: Article 45(1) of the Political Funds Act (Selection of Fine)

1. Aggravation of concurrent crimes (defendant 1)

Article 37 (former part of Article 37, Article 38 (1) 2 and 3, and Article 50 of the Criminal Act [Concurrent Impositions of Imprisonment with prison labor and fines prescribed for the violation of the Political Funds Act, which are provided for in the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and the crime of violation of the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) with the most serious penalty

1. Discretionary mitigation (as to Defendant 1’s imprisonment with prison labor):

Articles 53 and 55 (1) 3 of the Criminal Act (The following circumstances considered as favorable to the reasons for sentencing)

1. Detention in a workhouse (as against the accused);

Articles 70 and 69(2) of the Criminal Code

1. Suspension of execution (defendant 1)

Article 62(1) of the Criminal Act (Consideration favorable Circumstances among the Reasons for Sentencing below)

1. Collection (as to Defendant 2)

The latter part of Article 45 (3) of the Political Funds Act

1. The order of provisional payment (for the defendants):

Article 334(1) of the Criminal Procedure Act

1. As to Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) to Nonindicted Company 2

A. Defendant’s assertion

The victim non-indicted 2 and the non-indicted 9 are one so-called one company in which the defendant owns all stocks, and the defendant has frequently borrowed money from the above company and lent money to the above company. In that process, the defendant merely borrowed and used the funds of the victim non-indicted 2 company as stated in this part of the facts charged, and thus, the defendant's claim and liability relationship between the defendant and the victim non-indicted 2 company is established, and the defendant does not embezzled the above money with the intent of unlawful acquisition.

B. Determination

(1) In the so-called one company, if the subject and the principal of the act are clearly separate persons and one shareholder use the company's funds as the intention of unlawful acquisition, embezzlement is established. Since the crime is established by embezzlement of the company's funds under occupational custody with the intention of unlawful acquisition, it does not affect the crime of occupational embezzlement already established at the time of using money (see Supreme Court Decision 2005Do5772, Jun. 1, 2007, etc.) solely on the ground that the company's representative director has a separate claim against the company as long as the company's funds have been established by embezzlement with the intent of unlawful acquisition (see, e.g., Supreme Court Decision 2005Do5772, Jun. 1, 2007). It does not affect the crime of occupational embezzlement already established at the time of using money (see, e.g., Supreme Court Decision 2004Do8071, Jan. 12, 2007).

(2) The following circumstances acknowledged by each evidence as follows: (a) the Defendant, as the actual representative director of the victim non-indicted 2 Company, was in general in charge of the management of the funds of the victim non-indicted 2; (b) the Defendant failed to comply with the resolution of the board of directors to process and use the funds of the victim non-indicted 2 as the loan; (c) the Defendant did not agree to the interest, repayment period, etc. while using the funds of the victim non-indicted 2 Company; (d) the Defendant did not prepare a loan certificate; (e) the Defendant, despite withdrawing and using the funds of the victim non-indicted 2 Company, did not lend money to the non-indicted 9; (e) the Defendant’s use of the funds was made five times from September 3, 2007 to January 15, 209; and (e) the Defendant used the funds for personal purposes, such as purchasing real estate funds of the victim non-indicted 2 Company; and (e) the Defendant’s act of using the funds for the non-indicted 2 Company’s own loan and its unlawful purpose.

2. As to Defendant 1’s crime No. 1’s crime No. 2 (a loan to Nonindicted 19)

A. Defendant’s assertion

The Defendant, as one shareholder of the victim Nonindicted Co. 2 and the actual representative director, had the victim Nonindicted Co. 2 lent KRW 200 million to Nonindicted Co. 19, and Nonindicted Co. 19 repaid the above loan in cash on May 7, 2009. As such, there is no procedural problem as to this part, and there is no recognition of the Defendant’s intent of unlawful acquisition.

B. Determination

The intent of unlawful acquisition in embezzlement refers to the intention of a person who keeps another's property without authority for his own or a third party's interest in breach of the purpose of the entrustment, to dispose of the property as if he own his own property, and it does not necessarily constitute embezzlement (see Supreme Court Decision 2004Do5167, Nov. 10, 2006, etc.).

According to the evidence of the court below, on October 28, 2008, the defendant transferred KRW 200 million from the corporate bank account of the victim non-indicted 2 to the national bank account of the non-indicted 19, and processed the loan. ② The non-indicted 19 requested the defendant to lend money to the defendant due to the shortage of business funds in the operation of the aggregate extraction business in Incheon as the defendant's high school and the defendant's high school. The defendant extended KRW 200 million to the non-indicted 19 (Evidence No. 1980 of the Evidence No. 1980 of the record) without any particular consideration to the non-indicted 19 (Evidence No. 1980 of the record). ③ The defendant did not receive or demand interest from the non-indicted 19, ④ The non-indicted 19 and the non-indicted 19 did not have any transaction relation with the non-indicted 2 company, ⑤ The defendant's act of transferring money to the non-indicted 19 of the defendant's own funds for the above purpose of embezzlement.

3. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) against Defendant 1’s victim Nonindicted Company 8

A. Defendant’s assertion

The victim non-indicted 8 entered into a contract with the non-indicted 2 on July 1, 2008 for the construction of the medical waste incineration facility at KRW 3.75 billion, and the non-indicted 1 was awarded a subcontract from the non-indicted 2 on September 1, 2008 for the general construction of the above construction amounting to KRW 660 million. The owner of KRW 550 million used by the defendant is the non-indicted 11, and the victim is also the non-indicted 11, and the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) against the non-indicted 8 is not established. Even if the non-indicted 11 did not perform the construction, the above KRW 50 million should be paid from the non-indicted 8 to the non-indicted 2. Thus, the crime of embezzlement against the victim non-indicted 2 was established.

B. Determination

The following circumstances acknowledged as follows: ① Nonindicted Company 1 was established on December 18, 200 for the purpose of the waste disposal and facility construction business on December 18, 206, and Nonindicted Company 1 was in possession of the shares of the said Company 50% each (Evidence No. 1963); ② The Defendant was in the accounts of Nonindicted Company 2 as if Nonindicted Company 2 were subcontracted to Nonindicted Company 11 for a certain amount of profit at the time of Nonindicted Company 7’s order construction; Nonindicted Company 2 was in fact in the possession of Nonindicted Company 100,000,000,000,000,0000,000,000,000,0000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000).

4. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) against Defendant 1’s victim Nonindicted Company 2

A. Defendant’s assertion

The Defendant lent KRW 1460 million to Nonindicted Company 9, which he holds 100% shares to Nonindicted Company 9, and paid the capital increase by participating in the capital increase in the name of Nonindicted Company 2 in the name of Nonindicted Company 9, thereby holding 92.4% of the shares of Nonindicted Company 2. Thus, the above loans of KRW 1.460 million to Nonindicted Company 2 is merely a monetary transaction between the victim Nonindicted Company 2 and his parent company, and both the victim Nonindicted Company 2 and Nonindicted Company 9, as the Defendant owns the entire shares, it is merely a monetary transaction between Nonindicted Company 9, which is the parent company, which owns most of the shares of the victim Nonindicted Company 2 and the Defendant. As such, the Defendant is ultimately a business duty to take reasonable measures to collect claims, such as receiving sufficient funds in lending the funds of Nonindicted Company 2 to Nonindicted Company 9, or “the above loans constitute damage equivalent to the same amount to the victim Nonindicted Company 2.”

B. Determination

(1) The crime of breach of trust is established when a person who administers another's business obtains pecuniary benefits or causes a third party to obtain such benefits through an act in violation of one's duty. In this case, the term "act in violation of one's duty" includes any act in violation of a fiduciary relationship with the principal by failing to perform an act that is naturally expected under the provisions of law, terms of a contract, or the good faith principle in light of the content and nature of the business, or by performing an act that is anticipated not to be naturally certain, and the term "when any loss is inflicted on property" includes not only cases where a loss is actually incurred but also cases where a risk of actual loss in property arises. Thus, when a director, etc. of a company has already lost his/her ability to repay corporate funds to a third party and lent funds to him/her without taking any reasonable measures such as securing sufficient collateral, etc., the lending of funds to a third party is an act that causes loss to the company and causes loss to the company, and the director is not exempt from the crime of breach of trust on the sole ground that it is 1060 or 20.

(2) 판시 각 증거에 의하여 인정되는 다음과 같은 사정들, 즉 공소외 9 회사는 피고인이 2007. 8. 8. 주식회사 ☆☆☆☆☆를 인수한 다음 법인명을 변경한 회사로서 피고인이 주식의 90%를, 피고인의 처 공소외 13이 주식의 10%를 각 소유하고 있는 점(증거기록 제1963면), 공소외 9 회사의 인수목적은 피해자 공소외 2 회사 등 피고인이 지분을 소유한 회사들의 지주회사로 설립함에 있었고, 그 때문에 공소외 9 회사의 사무실은 피해자 공소외 2 회사의 사무실과 같은 곳에 위치하는 등 보유 자산이 거의 없고 매출 또한 전혀 없는 등 실질적인 운영이 이루어지지 아니한 서류상의 회사에 불과하였던 점(증거기록 제2167면), 오히려 공소외 9 회사는 피고인에 대하여 피해자 공소외 2 회사의 증자대금으로 사용한 14억 6,000만 원의 채무를 부담하는 것으로 회계처리되어 있었는데, 이에 의할 때, 위 14억 6,000만 원은 공소외 2 회사가 피고인에게 대여하여 피고인이 공소외 9 회사에게 대여한 형식을 갖추었다고 할 수도 있는 점, 그럼에도 피해자 공소외 2 회사는 피고인의 지시에 따라 이사회 결의를 거치거나 차용증을 작성하는 등의 절차를 거치지 아니한 채 아무런 담보도 제공받지 아니하고 합계 24억 원의 거액을 대여한 점(증거기록 제2165, 2166, 2185면)을 종합하여 보면, 피고인은 공소외 9 회사가 채무를 변제할 능력이 없어 그에게 자금을 대여할 경우 피해자 공소외 2 회사에게 손해가 발생하리라는 정을 알면서도 충분한 담보를 제공받는 등 상당하고도 합리적인 채권회수조치를 취하지 아니한 채 24억 원을 대여한 것으로서, 이는 피해자 공소외 2 회사에 손해를 가하는 임무위배에 해당되고, 자금을 차용한 공소외 9 회사가 피해자 공소외 2 회사의 모회사라거나 피고인이 공소외 9 회사를 통하여 피해자 공소외 2 회사의 지분을 대부분 소유하고 있다는 사정이 어떠한 영향을 미치는 것이 아니다.

5. As to Defendant 1’s violation of the Political Funds Act

A. Defendant’s assertion

Defendant 2, who had been close to the long time, provided personal money for the purpose of economic assistance to Defendant 2, and did not have the awareness that the money was a political fund. Therefore, Defendant did not have the intent to commit a crime of violating the Political Funds Act at the time.

B. Determination

Defendant 2 was working as the head of the policy office of Nonindicted Party 5 at the time of Nonindicted Party 2’s election campaign office on 1994, and Defendant 2 was working as an assistant officer of Nonindicted Party 5 from around 196 to around 203. From around January 2008, Defendant 2 retired from the election for the National Assembly members conducted on April 2008. Defendant 2 was working as an assistant officer of Nonindicted Party 2 at the office of Nonindicted Party 2 at the office of Nonindicted Party 2’s election campaign, and Defendant 2 was working as an assistant officer of Nonindicted Party 2 at the office of Nonindicted Party 2 at the office of Nonindicted Party 2’s election campaign, and Defendant 2 was working as an assistant of Defendant 2 at the office of Nonindicted Party 5’s election campaign, and Defendant 2 was working as an assistant to Defendant 2 at the office of Nonindicted Party 3’s election campaign, and Defendant 2 was working as an assistant to Defendant 2 at the office of Nonindicted Party 5’s election campaign.

6. As to Defendant 2’s violation of the Political Funds Act

A. Defendant’s assertion

The Defendant did not confirm the amount of the plastic bags containing KRW 25 million from Nonindicted 3 and delivered them to Nonindicted 1, the secretary general of the supporters’ association via Nonindicted 4. As such, the Defendant cannot be deemed to have received donations directly. Even if the Defendant received donations, it was delivered to Nonindicted 1 along with Defendant 1’s personal information within 30 days, which constitutes a case where the supporters’ association is deemed to have received donations directly pursuant to Article 10(3) of the Political Funds Act, and the Defendant’s act does not constitute a crime of violating the Political Funds Act.

B. Determination

(1) Relevant provisions of the Political Funds Act

The Political Funds Act may collect support payments in exchange for political fund receipts (Article 16 (1)), and when anyone who is delegated by a supporters' association collects support payments, he/she shall hand over the ledger of political fund receipts, personal information of supporters and support payments to a person in charge of accounting of the relevant supporters' association within 30 days (Article 16 (2)): Provided, That where a supporters directly contribute support payments to the designation authority of the supporters' association, the supporters shall be deemed to have received the relevant supporters' association (Article 10 (3)).

(2) Whether the defendant has received support payments (political funds) without delegation by a supporters' association

According to each evidence of the judgment, Nonindicted 3, an employee of the management support office of Nonindicted 7, as well as Defendant 1’s instructions, sent the envelope of 50,00 won to the Defendant, found out the Defendant’s election campaign office located at Ansan-si following the day. Nonindicted 3, an employee of the management support office of Nonindicted 7, 100 won, entered the separate office in the election campaign office, and opened the Defendant as a candidate office in the election campaign office. Nonindicted 3, the Defendant and Nonindicted 3, in the absence of any person other than two persons after drinking drinking water brought by employees of the election campaign office, divided Defendant 1’s inside, etc., and Nonindicted 3, after diving, divided the envelope into the Defendant into the Defendant’s office and the Defendant’s office. Nonindicted 3 sent the envelope of Nonindicted 3 at the entrance of the office, Nonindicted 3, after Nonindicted 3 returned to Nonindicted 3, and received the money directly from Defendant 1, the designation authority of the supporters’ association, and it can be seen that the Defendant directly received the money from Defendant 2, “the Defendant’s association.”

(3) Whether Article 10(3) of the Political Funds Act is applicable

판시 각 증거에 의하여 인정되는 다음과 같은 사정들, 즉 ① 피고인은 ‘ 공소외 3으로부터 돈봉투를 건네받은 다음 그 안을 들여다보지도 아니한 채 그대로 공소외 4를 통해 공소외 1에게 전해주었다’고 주장하나, 피고인 1이 피고인에게 금전 지원을 해 주겠다는 약속을 미리 하였고, 공소외 3을 통해 2,500만 원을 전달한 다음 피고인으로부터 ‘감사하다’는 취지의 전화를 받기도 한 사실에 비추어 볼 때, 피고인이 기부금액을 미리 알고 있었을 가능성이 높고, 설령 피고인이 이를 알지 못하였다고 하더라도 피고인에게 전달된 돈봉투는 종이 봉투로 오만 원권 100장을 묶은 5다발의 돈뭉치가 들어 있는 두툼한 형태이었고, 입구가 봉해지지 아니한 채 열려 있었으며, 돈봉투를 받은 자리에는 피고인이 혼자 있었으므로, 피고인이 위 봉투를 건네받아 그 내용물을 확인하였을 것으로 봄이 경험칙에 부합하므로 액수를 확인하지 아니하였다는 피고인의 진술은 믿기 어려운 점, ② 피고인의 후원회에 후원금을 기부한 사람들 중 연간 300만 원을 초과하여 기부한 사람들은 모두 8명으로 후원자별 연간 기부금액 합계가 모두 각 500만 원에 불과한 반면(증거기록 제3263면), 피고인 1이 기부한 2,500만 원은 다른 후원금에 비해 이례적으로 거액이었으므로 피고인이 위 돈을 공소외 1에게 전달하면서 그 돈의 보관방법과 사용처에 관하여 아무런 지시도 하지 아니하였고 나중에 이를 확인하지도 아니하였다는 주장은 믿기 어려운 점, ③ 공소외 1은 피고인으로부터 건네받은 2,500만 원을 후원회의 계좌에 입금하지 아니하고 별도로 보관하면서 사용하였고, 피고인 1에게 정치자금영수증을 교부하지도 아니하였으며, 위 금원을 회계처리하여 선거관리위원회에 보고하지도 아니한 점(증거기록 제2846면), ④ 정치자금법 제11조 제1항 은 후원인이 후원회에 기부할 수 있는 후원금이 2,000만 원을 초과할 수 없도록 규정하고 있어 피고인 1이 기부한 후원금은 그 자체로 정치자금법에 위반한 것이고, 편법을 사용하지 아니하고는 정치자금법이 정한 절차를 거칠 수 없었던 점, ⑤ 공소외 1은 피고인 1에게 정치자금영수증을 교부하지 아니한 이유에 대하여 “ 공소외 4로부터 2,500만 원을 교부받은 다음날 또는 그 다음날 공소외 7 회사에 전화를 걸어 피고인 1을 바꿔달라고 하였고, 직원으로부터 ‘ 피고인 1이 자리에 없다’는 이야기를 듣고 ‘후원금 영수증 처리 때문에 그러니 전화를 부탁한다’고 하였으나 그 뒤 통화를 하지 못하였고, 그 후 선거가 바빠지면서 제대로 챙기지 못한 채 선거기간이 지나버렸다“라고 진술하였으나(증거기록 제2841, 2842면) 위에서 본 바와 같이 위 2,500만 원은 당시 후원금 중 최고액이었음에 비추어, 위 진술은 납득하기 어려운 점, ⑥ 피고인의 후원회가 피고인 1의 후원금 이후에 기부된 후원금에 대해서는 정치자금영수증을 발행하였고 후원금 계좌에 입금하여 회계처리를 하였음에도 유독 피고인 1의 거액의 후원금에 대해서만 정치자금법이 정한 절차를 전혀 이행하지 아니하며 별도로 관리한 것은 그 후원금의 규모, 피고인과 공소외 1의 지위 등을 고려하면 공소외 1이 피고인의 지시 없이 독자적으로 한 것으로 보기 어려운 점, ⑦ 정치자금법 제10조 제3항 이 신설된 취지는 후원회지정권자가 후원인으로부터 직접 정치자금을 받아 단기간 내에 후원회 회계책임자에게 전달한 경우까지 후원인이 후원회에 직접 입금한 경우와 다르게 보아 처벌대상으로 삼은 종전의 조치가 부당하다는 데에 있으므로( 대법원 2011. 4. 14. 선고 2010도2540 판결 참조), 위와 같은 개정취지를 고려하면 위 규정은 후원회지정권자가 후원자로부터 기부받은 후원금을 후원금 계좌에 입금하고 영수증을 발행하는 등 정치자금법에 따른 절차를 거쳐 적법하게 처리할 것을 전제로 후원회 회계책임자에게 전달하는 경우에 후원회가 정치자금을 기부받은 것으로 보는 취지라고 제한적으로 해석하여야 하고, 후원회지정권자가 단순히 후원인으로부터 기부받은 후원금을 30일 이내에 후원회의 회계책임자에게 교부한 사실만으로 위 규정이 제한 없이 적용된다고 볼 수는 없는 점을 종합하여 보면, 우선 피고인이 피고인 1로부터 교부받은 2,500만 원을 피고인 1의 인적사항과 함께 후원회의 회계책임자인 공소외 1에게 교부하였는지 의심스럽고, 설령 교부하였다 하더라도 위 금원을 정치자금법이 규정한 절차에 따라 처리하지 아니하도록 지시 또는 공모한 것으로 보이므로, 이는 피고인이 피고인 1로부터 수수한 후원금이 후원회의 회계책임자에게 전달됨으로써 정치자금법 제10조 제3항 이 적용되는 경우에 해당된다고 할 수 없다.

7. Therefore, the Defendants’ above assertion is without merit.

1. Defendant 1

[Scope of Punishment] Imprisonment with prison labor for not less than one year and six months but not more than 11 years and not more than three months;

[Determination of Punishment of Crimes] Embezzlement and Breach of Trust, Type 3 (not less than KRW 500 million but less than KRW 5 billion)

【Special Convicted Persons】

Measures to be mitigated: In the case of a substantial one company;

【Scope of Recommendation】

Reduction Area: Imprisonment for not less than one year and six months, but not more than three years;

[Multiple Crime Criteria] The following punishment shall be determined by taking into account the violation of the Political Funds Act, in which the sentencing guidelines are not set within the scope of the recommended sentencing guidelines, and the punishment shall be separately determined for the violation of the Political Funds Act pursuant to Article 18(3) and 18(1)3 of the Public Official Election Act.

【Determination of Sentence】

The crime of this case, when the defendant worked as the actual representative director of the victim non-indicted 2 and the non-indicted 8, embezzled the funds of the above victims for the personal purpose of the defendant. The victim non-indicted 2 made the victim non-indicted 9 to lend the funds to the non-indicted 9, thereby gaining profits from the non-indicted 9, thereby causing losses to the non-indicted 2 corporation, and the victim non-indicted 2 corporation. The crime of this case was delivered to the defendant 2 in a manner that is not prescribed by the Political Funds Act, with a method that is not prescribed by the Political Funds Act. It is a large amount of money that the amount of embezzlement and breach of trust reaches 4 billion won in total, a large number of crimes period is long, a large number of crimes are committed, a large number of criminal periods are not provided, a large number of criminal offenses are not provided, a large number of criminal offenses are not provided,

However, during the period from January 14, 201 to December 20, 2011, the Defendant paid a sum of KRW 1.43 billion, including the proceeds from the sale of the house located in the Defendant’s possession, to Nonindicted Co. 2, the Defendant paid a sum of KRW 928 million to the Defendant’s company. The amount borrowed from Nonindicted Co. 9 was used to acquire stocks by participating in the capital increase with the victim Nonindicted Co. 2’s capital increase in order to convert the company into a holding company. Ultimately, it is difficult to view that the above loan funds were deposited again into the victim Nonindicted Co. 2, and it is difficult to view that there was a substantial damage to the victim Nonindicted Co. 2, by paying the funds to the victim Nonindicted Co. 9, the above loan funds were used for the Defendant’s personal interest. Moreover, the motive, means and results of the crime in this case, the Defendant’s age, character and behavior, family environment, etc. are determined in full view of all the circumstances indicated in this case.

2. Defendant 2

The crime of this case provides detailed scope of political funds, methods of receiving and receiving political funds, methods of receiving and receiving political funds, methods of receiving and receiving political funds, accounting reports on revenues and expenditures of political funds, etc. in order to realize the legislative purpose of contributing to the sound development of democratic politics by guaranteeing the proper provision of political funds and disclosing the current status of revenues and expenditures by Defendant 1, and stipulates that where they violate such provisions, they shall be punished strictly, the amount of political funds received and received is not large, and the defendant does not reflect the importance of denying his own crime. In light of the above, it is necessary to strictly punish the defendant.

However, the defendant is the primary offender, the defendant received money in personal friendly relationship with the defendant 1, and the motive, means and result of the crime of this case, circumstances after the crime of this case, age, character and conduct, family environment, etc. shall be comprehensively considered and the sentencing conditions of this case shall be determined as per the order.

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

[Attachment]

Judges Lee Dong-hun (Presiding Judge)