2018Gohap189 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

A

The scope of the public trial, red (prosecution), red (public trial)

Law Firm Gyeong-Gyeong

Attorney Kim Jong-sung, Counsel for defendant-appellant

July 13, 2018

The defendant shall be innocent.

1. Summary of the facts charged

The defendant is a person who operates D Co., Ltd. that operates Tea Park C in Jeju City.

On March 11, 2015, the Defendant planned the business to acquire G, a start-up business investment company, which is a start-up business investment company, and to have G, which is a start-up business investment company, invest KRW 5 billion in the C business, and the Defendant concluded an agreement to borrow KRW 2 billion from the victim for two months with the acquisition fund of G, a stock company. The Defendant, who borrowed KRW 2 billion from the victim, invested KRW 2 billion in the acquisition fund of G, a stock company, and made the Plaintiff make an investment of KRW 5 billion in the gold business, and was planned to repay the said KRW 2 billion from the investment fund. Accordingly, on March 17, 2015, the Defendant concluded a contract to acquire KRW 3 billion in the total amount of KRW 7,849,293 billion from H, a stock company with KRW 300 million in the name of the victim, 3.5 billion in the name of the victim, and the victim paid KRW 1,515 billion in the account.

From the early April 2015, the Defendant demanded the return of KRW 2 billion to a stock company G with the same effect that it is difficult for H to take over the said KRW 2 billion. The Defendant received KRW 1.4 billion, including KRW 6 billion on April 13, 2015, KRW 60 billion on April 24, 2015, KRW 1.4 billion on June 24, 2015, and KRW 1.46 billion on June 25, 2015. The Defendant received KRW 60 billion on behalf of the victim for the purpose of securing the repayment of KRW 2 billion borrowed from the victim, and received KRW 1.6 billion on behalf of the victim, he/she arbitrarily returned the said share acquisition to the victim with the obligation to return the said KRW 1.4 billion on behalf of the victim, and the Defendant received KRW 600 million on behalf of the victim, which he/she received on behalf of the victim.

2. Defendant and his defense counsel’s assertion

A. Summary of the main argument

1) On March 11, 2017, the Defendant, who borrowed KRW 2 billion from F, prepared a “instant share acquisition agreement with H to take over KRW 7,849,293 of G shares from H from March 17, 2015, with the content that H will take over KRW 2 billion from H to the acquisition fund of G (hereinafter referred to as “G”), under the name of J, the representative director of H, for the purpose of acquiring the shares of KRW 2 billion.

2) However, the above agreement between shareholders and the above agreement of acceptance of shares are written by the defendant using the name of J. The agreement and the actual parties to the contract are not F or J but the defendant, and accordingly, 1.46 billion won, which was returned due to the cancellation of the above agreement between shareholders and the above agreement of acceptance of shares, out of the amount of KRW 2 billion paid by the defendant from F, is not owned by F.

3) Therefore, even if the Defendant voluntarily consumed the above KRW 1.46 billion, it cannot be deemed as embezzlement of F’s property.

B. Summary of the conjunctive assertion

F did not exempt the Defendant from the Defendant from the Defendant’s obligation to pay KRW 2 billion borrowed from F, but the Defendant agreed to pay KRW 40 billion per month to the Defendant, while directly operating D by acquiring stocks and management rights of D Co., Ltd. (hereinafter “D”) with the actual owner by acquiring them finally and operating D. According to the above agreement, since the Defendant was exempted from the Defendant’s obligation to pay the above KRW 2 billion to F, it cannot be deemed that the Defendant arbitrarily consumed the returned KRW 1.46 billion as set forth in the above A, and that the Defendant embezzled it.

3. Judgment on the issue

A. The facts charged of this case are as follows: (a) the Defendant embezzled the F-owned KRW 1.466 billion, which was returned by the Defendant to F without paying or delivering it to F; (b) while the Defendant’s assertion by the defense counsel cannot be deemed as F’s ownership, the Defendant’s and defense counsel’s above KRW 1.466 billion cannot be deemed as a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement). Therefore, in order to establish the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), it should be recognized

B. Examining the above, according to the defendant's partial statement, witness F, L, I's each legal statement, each prosecutor's office and police interrogation protocol of the defendant, I each prosecutor's office and police interrogation protocol of the defendant, F, I, I, M, N, written agreement among the shareholders (Investigation Record No. 57-62), full statement(Investigation Record No. 65-72), full statement(Investigation Record No. 224), transfer statement(Investigation Record No. 225-261), entry and withdrawal statement(Investigation Record No. 14), agreement (Investigation Record No. 14), joint and several sureties(Investigation Record No. 15), receipt(Investigation Record No. 17), deposit certificate(Investigation Record No. 18), deposit receipt(Investigation Record No. 19), deposit certificate(Investigation Record No. 20), deposit certificate(Investigation Record No. 21), deposit certificate(Investigation Record No. 460-467,747) and each defense counsel's statement No. 60(Investigation Record No. 67467).7).

1) After acquiring G stocks and management rights from H with the representative director, the Defendant met with a plan to enable G to invest in the C business run by the Defendant who is the actual owner of the D. However, due to the shortage of acquisition funds, the Defendant raised a loan from F.

2) Around March 2015, in accordance with the above plan, a mutual agreement between the KJ and H (hereinafter “Agreement between the Stockholders of this case”) with the following contents in the name of the F, which is the wife of the H (hereinafter “instant agreement”) was concluded, and on March 17, 2015, H transferred KRW 7,849,293 of G shares to J in KRW 2 billion (hereinafter “this Investigation Record No. 460-462, hereinafter “this case’s acquisition of shares”). Around March 11, 2015, H transferred KRW 7,000,000,000,000 won to the K bank account under the name of the Defendant (Account Number: 0,000,000 won, KRW 11,200,000,000,000,000 won, KRW 75,70,000,000,000 won, respectively.

[This Agreement between the shareholders of this case] Articles 2 (Mutual Contribution Duty) and 2 (Mutual Contribution Duty) have the right to take over 13,335,427 shares of the largest shareholder of G as of the date of the conclusion of this Agreement, and they currently hold 3,748,654 shares of G. Accordingly, the J and H agree to take over 1,50,000 shares of G for the sole purpose of management after acquiring the largest shareholder's shares, and H agreed to take over 00,000 shares of G for the purpose of acquiring the largest shareholder's shares, as follows: H agreed to take over 23.6% of the shares of G, 5,886,970 shares, 50,000 shares, 00,000 shares and 30,000 shares, 00,000 shares and 30,000,00 shares, 30,000 shares and 30,00,000 shares of G.

3) In addition, on March 11, 2015, the Defendant entered into an agreement with F to jointly operate the C business with the Defendant and F (hereinafter “the instant agreement”). On the same day, the Defendant and Q, the Defendant’s wife, made and delivered to F a joint and several sureties note (the investigative record No. 15; hereinafter “the instant joint and several sureties note”) stating that “F shall return the amount of KRW 2,00,000,000 paid or to be paid for acquiring the stocks and management rights of G, but Q shall jointly and severally guarantee it.”

A person shall be appointed.

4) After that, on March 16, 2015, Defendant and Q entered into a contract for acquisition of stocks and management rights (Evidence No. 1; hereinafter referred to as “instant contract”) with F to transfer D stocks and management rights to F in accordance with the instant agreement with F.

A person shall be appointed.

5) In addition, on March 16, 2015, the following agreements (Evidence 2, hereinafter referred to as “Evidence 2”) are made in order to ensure the implementation under the instant contract and to determine other special terms and conditions, etc.

3. 16.Written agreement was made.

A person shall be appointed.

6) From that date, on May 13, 2015, the Defendant, Q, and F concluded a contract and a special agreement for acquisition of management rights (Evidence 4; hereinafter “Agreement”) with the following terms and conditions to determine the terms of the instant contract and to partially amend the agreement made on March 16, 2015. On the same day, Q signed a contract for acquisition of management rights (Evidence 4; hereinafter “F”) with the effect that Q held 35,00 shares for D shares held by the Defendant, J with 8,00 shares for D shares held by the Defendant, and 7,000 shares for D shares held by the Defendant were transferred to R, respectively (Evidence 5-1 through 3).

[The agreement of May 13, 2015] and Article 2 (Payment of Rent) of the Business Corporation shall pay rent according to the use of the business real estate. (1) The rent to be paid under Article 5 (2) of the present Agreement shall be KRW 40,00,000 per month until the time the planned facility is completed and the new opening is performed. (2) The rent under paragraph (1) of this Article shall take place from June 2015.

7) On May 31, 2015, the Defendant and F entered into an agreement (Evidence 6; hereinafter referred to as the “Agreement”) with the following contents for the transfer, acquisition and management improvement of D management rights, and the progress of the construction work, and on the same day, F made and issued to the Defendant a power of attorney (the investigative record No. 474, 475 pages, hereinafter referred to as “the power of attorney of this case”).

A person shall be appointed.

8) Meanwhile, from the early April 2015, the Defendant asserted that the agreement between the instant shareholders and the acquisition of shares were reversed, and the Defendant demanded the return of KRW 2 billion for the acquisition of G stocks and the management rights. Accordingly, the Defendant paid KRW 1.46 billion to the Defendant, including KRW 60 million on April 13, 2015, KRW 60 million on April 24, 2015, KRW 200 million on June 24, 2015, KRW 1.46 billion on June 25, 2015, KRW 68,9, KRW 16,17, KRW 222, KRW 217, KRW 2221, KRW 224-21, KRW 261, KRW 284, KRW 298, KRW 2000 on the record of the examination of the witness, KRW 6,80 million on June 25, 2015 (I).

C. In full view of the following circumstances acknowledged by the above facts and the evidence, it is reasonable to view that the agreement and the share acquisition agreement between the shareholders of this case concerning the acquisition of G stocks and management rights are documents prepared by the defendant using the F's name under the F's understanding that the defendant is the party to the agreement and the share acquisition agreement between the shareholders of this case, i.e., the party to the agreement and the party to the share acquisition agreement, and 2 billion won paid with the acquisition price of G stocks and management rights as the amount borrowed by the defendant F.

1) Consultation on the agreement and the share acquisition agreement between the shareholders of the instant case was conducted between the Defendant and the J at the time of concluding the agreement, and the Party F did not contact with the Defendant at the time of concluding the agreement, and the Party F did not contact with the conclusion of the agreement, and on March 17, 2015, the first day of the agreement and the share acquisition agreement between the shareholders of the instant case. In the same place, I and F did not divide the discussions on the share acquisition agreement and the share acquisition agreement between the shareholders of the instant case (6 pages of the witness examination record, 14, 15 pages of the witness examination record, 157, 83, 753, 754, 904 pages of the investigation record, 157, 754, 904).

2) With respect to the reasons or reasons why the agreement and the share acquisition agreement between the shareholders of this case were prepared in the name of J, and the 2 billion won was immediately paid to 1 in the name of J, the F has a problem of investing cultural funds created by G in the business run by D in the name of the defendant or F, and for the same reason, the agreement and the share acquisition agreement between the shareholders of this case were prepared in the name of J, and the transfer was made in the name of J for 2 billion won in the name of J," and the statement was made to the effect that "when it was erroneous that it was made in the name of J, it was not intended to receive money in the name of J (6, 7, 16, 18, 31, 32 of the witness examination record against F), and the defendant as the defendant's paper, and made a statement to the same effect as L was also made (L 4, 55 pages of the examination record of the witness).

3) Of the various documents prepared between the Defendant and F in the agreement between the shareholders of the instant case and the agreement between the Defendant and F, the content that “the Defendant returned KRW 2 billion to F after the second month,” the content that “the Defendant returned KRW 2 billion to F after the second month, and Q shall stand joint and several sureties,” and the content that “the Defendant and Q shall return KRW 2 billion to F after the second month,” the agreement dated March 16, 2015,” and that “the Defendant and Q shall faithfully refund KRW 2 billion paid or to be paid by F in accordance with the agreement and the letter of guarantee,” and the agreement dated May 31, 2015.

Since it is written that the F shall raise the amount of KRW 2 billion, the amount of KRW 2 billion that the F shall pay to I like the above Section 4 of the F is the amount loaned to the defendant as the acquisition price of G stocks and management rights, and it seems that the payment was reduced and that it was immediately remitted to I.

4) F. F. F. F. F. F. F. F. F. F. F. F. F. F. F. F. F. F. F. F. F. F. F. F. F. 10 billion won and 6. F. F. F. F. F. F. F. 8 billion won were 10 billion won and 6 billion won was 70 billion won and 60 billion won was 40 billion won and 60 billion won was 70 billion won and 60 billion won was 60 billion won was 40 billion won and 60 billion won was 70 billion won was 6 billion won and 600 billion won was 6 billion won was 100,000,0000 won was 6 billion won and 60 billion won was 70 billion won was 5 billion won and 600 billion won was 10,000 won was 6 billion won and 6 billion won was 600,000 won.

6) The Defendant exercised the right to nominate directors pursuant to Article 3 of the Agreement among the shareholders of this case, and appointed S and L as the Defendant’s branch director G, and at the time F or J did not participate in the appointment of the said director (which was the 16th day of the record of the examination of the witness, and which was the 65-72 pages of the investigation records).

D. As such, as the parties to the instant agreement and the acquisition of shares, G shares and the actual acceptance of management rights are the Defendant, 2 billion won paid out of G shares and management rights acquisition price from F. If the Defendant borrowed from F, it is difficult to recognize that the Defendant’s above 2 billion won out of 2 billion won returned due to the rescission of the instant agreement and the acquisition of shares is F. It is difficult to recognize that the Defendant’s agreement and the acquisition of shares were made in the name of J in order to secure repayment of KRW 2 billion borrowed from F. In addition, it is difficult to recognize that the Defendant and F were not aware that the FF agreement and the acquisition of shares were not to be returned to the Defendant under the FF’s name (the FF agreement and the acquisition of shares were not to be returned to F. It is difficult to recognize that the Defendant did not have agreed to the effect that the FF agreement and the acquisition of shares were not to be returned to the Defendant under the name of FF agreement and the acquisition of shares.

4. Conclusion

Thus, the facts charged in this case premised on the embezzlement of F money owned by the defendant constitutes a case where there is no proof of crime, and thus, the defendant is acquitted pursuant to the latter part of Article 325 of the

The presiding judge, the Kim Jong-dong

Judge Political decoration

Judge Lee Sang-hoon