Defendant

Eins (prosecutions), spokes, purification sporess (public trial)

Attorney Ba-sung et al.

A defendant shall be punished by imprisonment for two years.

However, the execution of the above punishment shall be suspended for three years from the date this judgment becomes final and conclusive.

On September 20, 2012, the Defendant was sentenced to one year and two months of imprisonment for fraud at the Suwon District Court and two years of suspended execution, and the above judgment became final and conclusive on September 28, 2012.

From March 24, 2004 to December 2, 2006, the Defendant, who served as the representative director of the victim non-indicted 2 Co., Ltd. (former trade name △△△△ Co., Ltd., hereinafter “victim”), issued a promissory note in the name of the victimized Co., Ltd., ○○○ Mutual Savings Bank (hereinafter “○○○ Mutual Savings Bank”) with the total principal amount of KRW 2.3 billion for Nonindicted Co., Ltd. (hereinafter “non-indicted 1”) in which the Defendant was separately responsible for the representative director at the time of the victimized Co., Ltd.’s office around March 10, 2006, in order to secure the obligation of loans of KRW 2.3 billion, the Defendant issued a promissory note in the name of the victimized Co., Ltd., ○○ Mutual Savings Bank with the face value of KRW 2.99 billion.

As a result, the Defendant violated his duties as representative director, thereby obtaining property benefits equivalent to KRW 290 million from 00 million from ○○ Mutual Savings Bank, and causing damages equivalent to the same amount to the damaged company.

1. Partial statement of the defendant;

1. Copies of promissory notes;

1. A report on investigation (Attachment of loan-related documents) and accompanying documents;

1. Copy of each corporate register of Nonindicted Co. 2 and Nonindicted Co. 1

1. Previous records: Criminal records, investigation reports, and copies of written judgments attached thereto;

1. Article applicable to criminal facts;

Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 11304, Feb. 10, 2012); Article 356 and Article 355(2) of the Criminal Act

1. Handling concurrent crimes;

The latter part of Article 37 and the main sentence of Article 39(1) of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (see, e.g., Supreme Court Decision 2007Da1448, Apr. 2, 2

1. Suspension of execution;

Article 62(1) of the Criminal Act (Discretionary Reasons for Discretionary Mitigation)

In 196, the Defendant committed the instant crime even though he had been already subject to criminal punishment several times prior to the instant crime, such as one year of imprisonment due to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), and two million won due to the embezzlement in 1999, and even if he had the record of criminal punishment prior to the instant crime, the Defendant committed the instant crime. The damage amount to the victimized company caused by the instant crime is not much likely to cause

However, on the other hand, the risk of damage caused by the instant crime is not realized, and there is no damage that the victimized company actually suffered, and the Defendant appears to have been prevented from committing the instant crime in the course of promoting the business through multiple companies rather than withdrawing personal benefits due to the instant crime. In addition, the Defendant’s age, character and conduct, environment, means and consequence of the instant crime, circumstances after the instant crime have been tried at a time, and equity, etc. shall be determined by comprehensively taking into account all the circumstances, such as equity, etc.

1. Summary of the defendant's assertion

Although the defendant issued a promissory note in the name of the victimized company, there was no possibility that the victimized company will suffer damage, and there was no intention to commit a breach of trust that would inflict property damage on the victimized company.

2. Determination

In light of all the circumstances acknowledged by the evidence duly adopted and examined by the court, namely, the property status of Nonindicted Company 1 at the time of issuing the Promissory Notes, the market value of the real estate offered as collateral for loans to ○○ Mutual Savings Bank, the face value of the Promissory Notes, the current status of the Defendant’s business promoted at the time, and the process of repayment of the above loans and the process of the damaged company going out of the status of the joint guarantor for the above loans, etc., it is reasonable to deem that the Defendant issued the Promissory Notes in the name of the victimized company, thereby causing the risk of causing property damage to the victimized company in breach of trust. It is sufficiently recognized that the Defendant, as well, was aware of and admitted the risk of damage to the victimized company

Therefore, the defendant's above assertion is not accepted.

Judges Kim Dong-dae (Presiding Judge)