[1] The probative value of a criminal case already established in a criminal trial and the degree of probative value of evidence for the recognition of guilt

[2] In a case where a person was prosecuted for having provided money or goods to an officer or employee of a financial institution, the case holding that the judgment below erred in the misapprehension of the amount of the defendant's evidence in a criminal case against the accomplice who was the consignee

[3] Whether embezzlement is established in the event that a person borrows money from another person and immediately withdraws money after the registration of incorporation or the registration of capital increase and uses it for the repayment of the above borrowed money (negative)

[4] The meaning of "investment" under Article 37 (1) 1 of the former Mutual Savings Banks Act and the standard for determining whether the above provision constitutes a loan to an investor who is prohibited

[1] The facts established in a criminal judgment already established in relation to the same facts are flexible evidence, and thus, it cannot be acknowledged that the facts are inconsistent with this, barring any special circumstances where it is deemed difficult to adopt a factual judgment in the criminal trial. In addition, the burden of proof for the facts charged in a criminal trial exists in the prosecutor, and the recognition of guilt ought to be based on evidence with probative value where the facts charged are true beyond a reasonable doubt by the judge. Thus, if there is no such evidence, even if there is a suspicion of guilt against the defendant, it is inevitable to determine the defendant's interest.

[2] In a case where a person was prosecuted for having provided money or goods to an officer or employee of a financial institution, the case holding that the court below erred by misapprehending the legal principles as to the probative value of a final criminal judgment, and even if it did not amount to proof to the extent that there was no reasonable doubt, on the ground that the court below found the amount of evidence by the defendant differently from the amount of evidence acknowledged in a criminal case against an accomplice who is an requisite

[3] In a case where a person in charge of the establishment of a corporation or the capital increase and subscribers conspired in advance to borrow the amount corresponding to the paid-in capital from a third party other than the payment bank for the share capital, and then withdraw it immediately after the incorporation registration procedure or the registration procedure for capital increase is completed, and the above act does not actually increase the company's capital, and it is merely a letter that disguises the payment for the registration, and it cannot be deemed that the company's intent to acquire illegal profits to arbitrarily use the company's capital in the whole process of the payment and withdrawal of share capital. From this perspective, as long as the establishment of the crime of capital increase under the Commercial Act is acknowledged, the crime of embezzlement is established on the premise that the company's capital increase is substantially increased.

[4] The term "investors" under Article 37 (1) 1 of the former Mutual Savings Banks Act (amended by Act No. 8522 of Jul. 19, 2007) refers to a person who owns more than the proportion prescribed by the Presidential Decree out of the total number of outstanding voting stocks. The term "ownership" refers to a person who owns more than the total number of outstanding voting stocks, regardless of in whose name the person owns them. In addition, Article 37 (1) of the former Mutual Savings Banks Act prohibits an investor from extending loans to his/her own account. In light of the legislative intent and the legislative structure of the former Mutual Savings Banks Act to prevent defective loans and promote the sound operation of mutual savings banks, the issue of whether a loan is made to an investor must be determined based

[1] Articles 307(2) and 308 of the Criminal Procedure Act / [2] Articles 307(2) and 308 of the Criminal Procedure Act / [3] Articles 355(1) and 356 of the Criminal Act, Article 628(1) of the Commercial Act / [4] Article 37(1)1 of the former Mutual Savings Banks Act (amended by Act No. 8522 of July 19, 2007)

[1] Supreme Court Decision 91Do1385 delivered on August 13, 1991 (Gong1991, 2385), Supreme Court Decision 94Da39215 delivered on January 12, 1995 (Gong1995Sang, 879), Supreme Court Decision 98Du10424 delivered on November 26, 199 (Gong2000Sang, 78), Supreme Court Decision 2006Do735 delivered on April 27, 2006 (Gong2006Sang, 90) / [3] Supreme Court en banc Decision 2003Do7645 Delivered on June 17, 2004 (Gong2004Ha, 1881), Supreme Court Decision 2003Do3945 delivered on December 36, 2004, Supreme Court Decision 2003Do3045 delivered on December 36, 2004)

Defendant

Defendant

Attorney Kim Jong-hun

Seoul High Court Decision 2007No533 decided Oct. 21, 2008

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal on the crime No. 1 of the first instance judgment

Inasmuch as the facts established in a criminal judgment already established in relation to the same facts are valuable evidence, the facts inconsistent with the facts cannot be recognized unless there are special circumstances that are deemed difficult to employ the judgment of the facts in the criminal trial (see, e.g., Supreme Court Decisions 94Da39215, Jan. 12, 1995; 98Du10424, Nov. 26, 1999). The burden of proof for the facts charged in the criminal trial lies on the prosecutor, and the recognition of guilt must be based on the evidence with probative value that leads to the judge to prove that the facts charged are true beyond a reasonable doubt (Article 307(2) of the Criminal Procedure Act). If there is no such evidence, even if there is doubt of guilt of the defendant, the interests of the defendant should be determined (see, e.g., Supreme Court Decisions 91Do1385, Aug. 13, 191; 2006Do3756, Apr. 26, 2006).

According to the reasoning of the judgment below, the court below found the defendant guilty of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Evidence, etc.) of this part by judging that the defendant, based on the employment evidence, could recognize the fact that he delivered KRW 500 million to the co-defendant 2, who is an executive or employee of financial institution

However, the following circumstances, namely, the evidence duly adopted by the court below and the records, ① in the appellate court (Seoul High Court 2006No979) of the criminal case charged by the defendant as the facts charged that the joint defendant 2 received a loan honorarium as above, the joint defendant 2 of the court below, according to the amendment of the indictment by the prosecutor (Seoul High Court 2006No979), he received cash KRW 500 million from the defendant on June 28, 2001 and kept it, and returned cash KRW 50 million to the non-indicted 1, and then return cash KRW 200 million to the defendant on August 2, 200, the remaining "The defendant finally acquired cash KRW 250 million as a loan honorarium" was confirmed to have been convicted of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, ② in light of the legal principles as to the crime of this case where the defendant provided money and valuables to the officers and employees of financial institutions and the above defendant 2 paid the above money and the charges to the co-defendant.

Nevertheless, the judgment of the court below that recognized that the defendant delivered KRW 500 million to the co-defendant 2 of the court below as a loan honorarium in connection with his duties has been erroneous in finding facts constituting an offense even though it did not reach a reasonable doubt, and even if it did not reach a reasonable doubt, and the allegation in the grounds of appeal pointing this out has merit only for the above part

2. As to the ground of appeal on the crime No. 2 of the first instance judgment

According to the reasoning of the judgment of the court below, the court below held that although considering the circumstances that Non-Indicted 2 reversed the statement in the court of the court below, each of the non-Indicted 2's prosecutor's office and the court of first instance consistent with this part of the facts charged may be convicted of this part of the facts charged, considering the circumstances that the non-Indicted 2 reversed the contents of the statement in the court of the court of the court below, the court below erred in the violation of the principle of free evaluation of evidence or the principle of trial of evidence.

3. As to the ground of appeal on the crime No. 3 of the first instance judgment

A. As to whether a blanket crime was committed

Even if multiple occupational embezzlements constitute a single legal interest, when it is recognized that the form of crime is identical, and that it is a series of acts due to the realization of a single criminal intent, it is reasonable to view that it is a single crime (see, e.g., Supreme Court Decisions 2005Do3929, Sept. 28, 2005; 2004Do8071, Jan. 12, 2007).

According to the evidence duly admitted by the court below, the defendant's act of occupational embezzlement of this case is a non-indicted 3 corporation with the legal interest of damage, and the defendant, as the largest shareholder of the above company, in collusion with the non-indicted 4, the representative director non-indicted 5, and the management support division non-indicted 6 and embezzled by voluntarily withdrawing the funds of the above company and using them as personal capital increase, etc., and as a whole, it is reasonable to view that the form of crime is the same as well as that of the crime as a whole, and that the whole result from the realization of a single or continuous criminal intent, and therefore, only

In the same purport, the decision of the court below that applied Article 3 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes and applied Article 3 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes to the defendant's act of occupational embezzlement of this case is just and there is no violation of the law

B. As to the part of the company's corporate embezzlement of KRW 2 billion on December 8, 2003

In a case where a person in charge of the establishment of a corporation or the capital increase business and a subscriber in collusion to borrow an amount equivalent to the paid-in capital from a third party other than the paid-in bank and pay-in capital, and withdraws it immediately after the incorporation registration procedure or the registration procedure for capital increase is completed, and the above act is not a substantial increase of the company's capital and it is merely a method that pretends to make payment for the registration, and there is no actual change in the company's capital in the whole process of the payment and withdrawal of the paid-in capital. Therefore, it is difficult to view that there is an intent to acquire illegal profits by arbitrarily using the company's money. From this perspective, as long as the establishment of a provisional payment under the Commercial Act is recognized, the crime of occupational embezzlement is established under the premise that the company's capital increase is actually increased (see, e.g., Supreme Court en banc Decision 2003Do7645, Jun. 17, 2004; Supreme Court Decision 2004Do3314, Sept. 22, 2006).

According to the reasoning of the judgment below, the court below affirmed the judgment of the first instance that found the Defendant guilty of this part of the charges, on the ground that, in collusion with the non-indicted 4, etc. on December 2003, the Defendant: (a) voluntarily withdrawn KRW 20 billion of the company’s funds in the process of offering capital increase with capital increase of KRW 20 million by a third party; (b) purchased a certificate of deposit (ROM) and embezzled by offering the above company’s funds as collateral from the non-indicted 7, a bondholder, to borrow KRW 2 billion of the company’s capital increase of KRW 4 million; and (c) subsequently, the court below affirmed the first instance judgment

However, according to the evidence and records duly adopted by the court below, ① Nonindicted Co. 3, which the defendant accepted, promoted capital increase of 20 million won and 50 billion won and 10 billion won and 200 won and 50 billion won and more through a company for capital increase by proxy around December 2003. ② The above company recommended that the defendant, a major shareholder, should participate in capital increase by the Financial Supervisory Service that the amount of 2 billion won and the acceptance of a securities registration statement was easy, the defendant and Nonindicted Co. 3 did not hold 2 billion won and ordered the officers, such as Nonindicted Co. 6, etc. to prepare 2 billion won in the bond market at the board of directors prior to the payment date, and ④ Nonindicted Co. 6 agreed to provide a certificate of deposit to Nonindicted Co. 7 as collateral and borrowed 20 billion won and thus, it is difficult to view that the defendant purchased 2 billion won and released 200 billion won as collateral in light of the above legal principles and records.

Nevertheless, the court below's determination that the crime of occupational embezzlement is established as to this part of the facts charged is erroneous in the misapprehension of legal principles as to the intention of unlawful acquisition, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

C. As to the part on the occupational embezzlement of KRW 3 billion of corporate funds around December 2003

According to the reasoning of the judgment below, the court below found the defendant guilty of this part of the facts charged. In light of the records, there is no violation of the principle of free evaluation of evidence or the principle of trial of evidence and there is no misapprehension of the legal principles as to embezzlement. The ground of appeal on this part is without merit.

D. As to the part concerning the occupational embezzlement of KRW 400 million of company funds of January 28, 2004

According to the reasoning of the judgment below, the court below found the defendant guilty of this part of the facts charged, and in light of the records, there is no violation of the principle of free evaluation of evidence or the principle of trial of evidence. The ground of appeal on this part is without merit.

4. As to the ground of appeal on the part of occupational breach of trust in the first instance judgment

According to the reasoning of the judgment of the court below, the court below found the defendant guilty of this part of the facts charged on the grounds as stated in its reasoning. In light of the evidence duly adopted by the court below and the circumstances where the facts charged with the same facts charged as to non-indicted 1, an accomplice, are found guilty by the Supreme Court's final judgment (2007Do1373), the court below did not err in the misapprehension of legal principles as to occupational breach of trust or the principle of evidence judgment

5. As to the ground of appeal on the violation of the Mutual Savings Banks Act

A. If an act does not constitute a crime due to a change in the law after the crime or if the punishment is not more severe than the former law, the establishment and punishment of the crime are governed by the law at the time of the act (see Article 1(1) and (2) of the Criminal Act), and there is no error in the court below’s measure that applied the former Mutual Savings Banks Act (amended by Act No. 8522, Jul. 19, 2007; hereinafter the same shall apply) to the defendant.

B. “Investor” under Article 37(1)1 of the former Mutual Savings Banks Act refers to a person who owns more than the percentage prescribed by Presidential Decree out of the total number of outstanding voting stocks. Here, the term “ownership” means a person who actually owns on his/her own account regardless of in whose name the shares are issued.

According to the aforementioned legal principles and the evidence duly adopted and examined by the court below, the judgment of the court below that the defendant as a shareholder who actually holds 2% or more of the total number of voting shares issued by the non-indicted 8 mutual savings bank at the time of committing the crime of violating the Mutual Savings Banks Act constitutes an “investment” under Article 37(1)1 of the former Mutual Savings Banks Act is justifiable. Thus, the above part of the ground of appeal on the premise of objection is without merit without further review

C. Article 37(1) of the former Mutual Savings Banks Act prohibits an investor from extending loans. In light of the legislative intent and legislative structure of the former Mutual Savings Banks Act to prevent defective loans and promote the sound operation of mutual savings banks, whether a loan constitutes a loan to an investor shall be determined on the basis of a person whose loan is not a lender but a person to whom the loan actually belongs.

According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance which found the defendant guilty of all the charges on the ground that each of the loans under Articles 4 and 5 of the facts constituting the crime in the judgment of the court of first instance is sufficiently recognized as having been granted through prior consultation with the company under the name of the loan to use a loan as a substantial borrower or to use a part of the loan as a substantial borrower from the beginning. In light of the aforementioned legal principles and records, the court below's fact-finding and judgment are just, and there is no violation of the legal principles as to the investor loan under the former Mutual Savings Banks Act or the principle of examination of evidence. The ground of appeal on this part is

6. As to the ground of appeal on the part of occupational breach of trust in the first instance judgment

In the crime of breach of trust, "when a person inflicts property damage" includes not only a real loss but also a case where a risk of actual damage to property has been caused, and once the risk of damage has been caused, it shall not affect the establishment of the crime of breach of trust even after the acquisition of security or recovery of the damage has been caused (see Supreme Court Decision 2002Do5679, Feb. 11, 2003, etc.).

According to the reasoning of the judgment below, the court below held as follows. The defendant violated the duty that should not issue a promissory note under the name of the above company for a purpose unrelated to the business of the non-indicted 9, and caused a director in charge of financial affairs of the above company to issue a promissory note with a face value of KRW 110 million under the above company's name, and the defendant's arbitrary delivery of the promissory note to the non-indicted 10, and the defendant's act constitutes a crime of occupational breach of trust. According to the above legal principles and the evidence duly adopted by the court below, the above fact-finding and judgment of the court below are just, and there are no errors in the misapprehension of legal principles as to occupational breach of trust (the crime of breach of trust is established by the issuance of a promissory note in violation

7. Conclusion

Therefore, among the judgment of the court of first instance, the part of the judgment of the court below that affirmed the first instance court that convicted of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Evidence, etc.) among the facts constituting the crime in the judgment of the court of first instance, and the part that maintained the first instance court that convicted the non-indicted 3 corporation's company's funds of KRW 2 billion on December 8, 2003 among the facts constituting the crime in the judgment of the court of first instance should be reversed. This part should be sentenced to a single punishment on the remaining conviction or concurrent crimes in the former part of Article 37 of the Criminal Act. Thus, the judgment of the court

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)