Defendant 1 and two others

Defendants and Prosecutor

United States Armed Forces

Law Firm Sejong & 2 others

Seoul Northern District Court Decision 2009Gohap123-1 (Separation) Decided September 18, 2009

The judgment of the court below is reversed.

Defendant 1 shall be punished by imprisonment for one year, by imprisonment for ten months, and by imprisonment for eight months, respectively.

However, the execution of each of the above punishment against the Defendants shall be suspended for two years from the date this judgment became final and conclusive.

1. Summary of grounds for appeal;

A. Defendants

(1) Defendant 1

(A) misunderstanding of facts

(1) With respect to the receipt of money and valuables in exchange for an illegal request, the defendant has no record of preparing a false evaluation report in return for an illegal request.

② In relation to the intentional concealment of the truth, the Defendant only prepared an evaluation statement using the materials received, but did not conceal the truth, and even if the Defendant presumed the price of shares to be excessive, it is merely a presentation of an opinion on the price of shares, and thus cannot be deemed as an act concealing the truth.

(B) Unreasonable sentencing

The sentence sentenced by the court below (10 months of imprisonment) is too unreasonable.

(2) Defendant 2

(A) misunderstanding of facts and misapprehension of legal principles

① With respect to the receipt of money and valuables in exchange for an illegal solicitation, the Defendant did not receive an illegal solicitation, and the Defendant did not commit the instant crime in collusion with Defendant 1 and 3.

② In relation to the intentional concealment of the truth, the Defendant did not commit the instant crime in collusion with Defendant 1 and 3, and Nonindicted Co. 2 (hereinafter “Nonindicted Co. 2”) knew that the content of the evaluation report was false, and thus, even if the Defendants made a false report to Nonindicted Co. 2, the Defendants did not constitute a crime of violating the Certified Public Accountant Act by making a false report.

(B) Unreasonable sentencing

The sentence sentenced by the court below (ten months of imprisonment, two years of suspended execution) is too unreasonable.

(3) Defendant 3

(A) misunderstanding of facts and misapprehension of legal principles

① With respect to the receipt of money and valuables in exchange for an illegal solicitation, the Defendant did not receive an illegal solicitation, and the Defendant did not commit the instant crime in collusion with Defendant 1 and 2.

② With respect to the intentional concealment of the truth, it is difficult to say that the value of shares per share of Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) is KRW 1,071 won per share. Thus, Defendant 1’s submission of an appraisal statement that evaluated the value of shares per share of KRW 12,151 to KRW 16,713 cannot be deemed to have concealed the truth, and it should be deemed that there was a duty to report in order to constitute a case where the truth is concealed. Defendant 3 does not fall under the case where a duty to report is to report, and thus, Defendant 3 cannot be held liable for joint principal offense.

(B) Unreasonable sentencing

The sentence sentenced by the court below (eight months of imprisonment, two years of suspended execution) is too unreasonable.

(b) Prosecutors;

(1) Legal principles

In light of the fact that Defendant 1’s asset acquisition and/or evaluation statement are disclosed to the Financial Supervisory Service’s electronic publication system, the Defendants sent it to Nonindicted Company 2, and Nonindicted 3, the person in charge of disclosure of Nonindicted Company 2, and Nonindicted 4, the employees of Nonindicted Company 4, are merely simply simply publication of the evaluation statement sent by the Defendants, etc., the Defendants’ duty to report to the Financial Supervisory Service and the Financial Services Commission should be acknowledged. Even if not, the Defendants conspired with Nonindicted 5, the representative director of Nonindicted Company 2, and Nonindicted 3, the person in charge of disclosure, and thereby making a false report can be acknowledged.

(2) Unreasonable sentencing

The sentence imposed by the court below to the defendants is too uneasible and unfair.

2. Determination

A. Ex officio determination

Before the judgment as to the grounds for appeal by the Defendants and the prosecutor was examined ex officio, and the facts charged as to the violation of the Certified Public Accountant Act which intentionally concealed and falsely reported the truth (the crime No. 2 and the acquittal part of the reasoning in the original judgment), and the following facts charged, as stated in Article 2.2. of the Criminal Act, the Defendants conspired to make an evaluation statement on the asset acquisition and the value of the shares of Nonindicted Company 2 and submitted it to Nonindicted 3, who is the person in charge of the public disclosure of Nonindicted Company 2, and requested changes in the contents of the judgment below to the effect that the Defendants committed the crime. Since this court permitted the change, this part of the judgment of the court below was no longer maintained. Furthermore, as long as the court found the changed charges guilty, this part of the judgment of the court below should be sentenced to a single sentence on the violation of the Certified Public Accountant Act and concurrent crimes under the former part of Article 37 of the Criminal Act. Thus, the part of the judgment below which received money and valuables in exchange for unlawful solicitation cannot be exempted.

On the other hand, although there are grounds for reversal of authority in the judgment of the court below, there is still a ground for reversal of facts and misapprehension of legal principles among the grounds for appeal by the defendants and the prosecutor, so it is still subject to the judgment of the court of this case.

B. Determination on the Defendants’ assertion on the receipt of money and valuables in exchange for an illegal solicitation

피고인들은 원심에서 이 부분 항소이유와 동일한 주장을 하였고, 이에 대하여 원심은 “피고인들 및 그 변호인들의 주장에 대한 판단”이라는 제목으로 상세하게 설시하였는바, 기록에 의하여 인정되는 다음의 사정, 즉 ① 공소외 1 회사의 실제 기업가치를 정확히 산정하기는 어려우나, 공소외 2 회사가 실제로 지급하기로 한 양수대금이 15억 원에 불과하였고, 공소외 1 회사의 대표이사로서 지분 전부를 양도한 공소외 6이, 양수인이 공소외 1 회사가 부담하고 있던 채무를 인수하는 것까지 포함하여 계산하는 경우에 실제 양도대금이 약 30억 원 상당이고, 그보다 높은 양도가액을 제시받은 적이 없다고 진술하였으며, 평가 당시 공소외 1 회사는 설립된 지 약 1년밖에 안된 신생 회사로서 당시까지 지속적으로 창출되는 수익이 없는 상태에서 적지 않은 운영비 등이 계속 지출되고 있어서 부채만 늘어가는 상황이었던 점 등에 비추어, 피고인 1이 평가한 공소외 1 회사의 기업가치 170억 원 내지 233억 원은 터무니없이 과대평가된 가액으로 볼 것인 점( 공소외 6이 실제로 양도대금을 전혀 지급받지 못한 점 등에 비추어 공소외 1 회사의 실제 기업가치가 양도대금인 15억 원에 이르는지도 의문이다), ② 공소외 7 및 공소외 8이 피고인 2에게 평가보고서 작성을 의뢰할 당시, 그 평가보고서를 공소외 2 회사가 양수대금 200억 원에 공소외 1 회사의 자산을 양수하였다는 내용의 자산양수도계약서에 첨부하여 금융감독원 전자공시시스템에 공시하는 용도로 사용한다는 취지를 알려주면서, 그 기업가치가 200억 원에 가깝게 평가되어야 용역비를 지급한다는 취지로 말했기 때문에 피고인 2도 자신이 직접 평가할 당시 공소외 1 회사의 기업가치를 181억 원 내지 267억 원으로 과대평가하였고, 그와 같은 내용을 피고인 3 및 피고인 2를 통하여 들어서 잘 알고 있던 피고인 1도 위와 같이 과대평가하기에 이른 것으로 보이는 점, ③ 공소외 1 회사의 기업가치를 200억 원으로 평가하는 것은 터무니없는 과대평가임이 분명했기 때문에, 그 용역비가 일반적인 경우보다 약 3배나 높은 1억 1천만 원이었음에도, 피고인들보다 먼저 공소외 1 회사 주식가치 및 기업가치 평가를 의뢰받은 공소외 9는 주식가치 평가보고서 작성을 상당 부분 진행하였음에도 최종적인 평가보고서를 작성하지 아니한 채 평가보고서 작성을 중단하였고, 공소외 12 회계법인의 심리실에서도 공소외 1 회사의 기업가치를 181억 원 내지 267억 원으로 평가한 피고인 2의 평가보고서 초안에 대하여 회계법인의 이름으로 평가보고서를 발행하는 것을 거부하였으며, 공소외 13 회계법인 등에서도 평가보고서 작성을 거절한 것으로 보이는 점, ④ 용역비가 일반적인 경우보다 약 3배나 높은데도, 다른 회계법인에서 명목상 자산양수도 가액인 200억 원 상당으로 평가보고서를 작성하다가 중단한 사실을 알고 있었던 이상, 10여년 이상 공인회계사로 일한 경험이 있는 피고인들로서는 공소외 1 회사 기업가치를 200억 원 상당으로 평가하는 것은 과대평가라는 것을 충분히 알고 있었다고 볼 것인 점(특히, 피고인 2는 자신이 일하고 있던 공소외 12 회계법인의 심리실에서 평가보고서 발행을 거절당하였고, 피고인 3은 피고인 2가 일하던 공소외 12 회계법인 소속 공인회계사로서 피고인 2로부터 공소외 1 회사 기업가치를 200억 원 상당으로 평가해 줄 공인회계사를 소개시켜 달라는 부탁을 받았으며, 피고인 1은 피고인 2 및 피고인 3을 통하여 공소외 12 회계법인에서 평가보고서 발행이 거절된 사정을 들어서 알고 있었던 것으로 보여, 피고인들 모두 공소외 1 회사 기업가치를 200억 원 상당으로 평가하는 것은 과대평가임을 잘 알고 있었던 것으로 볼 것이다), ⑤ 공소외 1 회사 기업가치에 대한 평가보고서 작성이 그와 같이 진행되어 온 것을 잘 알고 있었기 때문에, 피고인 1은 평가보고서 작성 업무를 수행하고 받은 용역대금 1억 1천만 원 중에서 자신은 40%에 상당하는 4천 4백만 원만을 용역대금으로 보유하고, 60%에 해당하는 6천 6백만 원 중 피고인 2에게 4천 4백만 원, 피고인 3에게 2천 2백만 원을 각 교부하였고, 실제로 아무런 업무도 수행하지 않은 피고인 3은 자신이 소속되어 있는 공소외 12 회계법인에게 알리지도 않은 채 피고인 1로부터 2천 2백만 원을 수령한 것으로 보이는 점 등에 비추어 보면, 공소외 7 및 공소외 8이 실제로는 15억 원에 양수한 공소외 1 회사의 기업가치를 그 이전에 이미 200억 원으로 평가해 달라고 하였다가 거절된 적이 있음에도 다시 피고인 2에게 200억 원으로 평가해 달라고 한 것은 공소외 1 회사의 기업가치를 평가함에 있어서 통상적으로 있을 수 있는 범위를 넘어서는 부정한 청탁임을 넉넉히 인정할 수 있고, 피고인들이 위와 같이 실제로는 200억 원에 훨씬 미치지 못하는 공소외 1 회사의 기업가치를 200억 원 상당이 되도록 평가하고 그 평가 수수료를 분배하기로 순차 공모하여, 피고인 1이 공소외 1 회사 주식을 그 적정한 객관적 교환가치보다 현저하게 높은 가격으로 평가함으로써 청탁받은 내용에 부합하는 취지의 평가보고서를 작성하여 교부한 후 금품을 수수한 사실을 충분히 인정할 수 있으므로, 이와 같은 취지의 원심 판단에 충분히 수긍이 가고, 달리 이를 뒤집을 만한 증거가 없다. 따라서, 피고인들의 이 부분 주장은 이유 없다.

C. Determination as to the Defendants’ assertion on the fact that the Defendants intentionally concealed the truth and reported false information

(1) The assertion that the truth was not concealed intentionally, and that there was no conspiracy.

However, as seen above, inasmuch as the Defendants received a request for evaluation of the company value of Nonindicted Company 1, which is only 1.5 billion won in actual transaction value, and submitted an evaluation report corresponding to the amount received by the request, the Defendants may sufficiently recognize that the Defendants intentionally concealed the truth about the company value of Nonindicted Company 1, and on the other hand, the Defendants committed the instant crime in direct or successive collusion, as seen above. As such, this part of the Defendants’ assertion is without merit ( even if Defendant 3 did not directly prepare an evaluation report, so long as the relationship is established with the rest of the Defendants, Defendant 1 should also be liable for the reported act).

(2) Claim that the crime of violating the Certified Public Accountant Act by false report cannot be established

However, it is recognized that the defendants prepared an excessive evaluation report at the request of Nonindicted Co. 2 and submitted it to Nonindicted Co. 2.

However, the crime of violation of the Certified Public Accountant Act by false report is established when a certified public accountant makes a false report in violation of the law, even though the certified public accountant does not make a false report in performing his/her duties. Thus, the above crime is established when a certified public accountant makes a false report in violation of the law. Thus, it does not distinguish between the other party who made a request for evaluation. ② Since a certified public accountant's official evaluation report which is prepared in the course of performing his/her duties has a significant impact on many unspecified and unspecified persons who are not able to know the corporate value or stock value of the company which is assessed because he/she failed to have professional knowledge such as certified public accountant, it appears to be the purport that a certified public accountant does not report false contents in any case. Thus, even if a certified public accountant makes a false report upon request by the other party who made the request to make evaluation, it is reasonable to punish the other party if a certified public accountant makes a false report while performing his/her duties. ③ If such a report is excluded from the punishment of the above crime, it is not likely that the other party will be aware of the crime.

Therefore, since the Defendants filed a false report to Nonindicted Company 2 upon receiving a request for an excessive evaluation from Nonindicted Company 2, the Defendants did not constitute the above crime. Therefore, the Defendants’ above assertion is without merit.

3. Conclusion

Therefore, the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act without examining the two parties' assertion of unfair sentencing, and it is again decided as follows after oral argument.

Defendant 1 is a certified public accountant belonging to Nonindicted 14 accounting firm, and Defendants 2 and 3 are a certified public accountant belonging to Nonindicted 12 accounting firm, respectively.

1. No certified public accountant shall receive money, valuables or benefits in return for an unlawful request in performing his functions;

While Defendant 2 was in charge of corporate value assessment by Nonindicted 8, a major shareholder of Nonindicted Company 1, upon receiving a request from Nonindicted 8, a large shareholder of Nonindicted Company 1, to evaluate the corporate value of Nonindicted Company 1, and was in charge of corporate value assessment, Defendant 2 was unable to prepare a final report because the report on corporate value assessment of Nonindicted Company 1 did not pass through the deliberation process of the said Nonindicted Company 12 accounting corporation due to a large corporate value assessment, Defendant 3 introduced to Defendant 3 of the same accounting corporation to ask for an explanation to evaluate the corporate value of Nonindicted Company 1 in excess of 20 billion won. Defendant 3 requested that Defendant 1 of the accounting corporation of Nonindicted Company 14 who was in charge of the said accounting corporation before receiving Defendant 2’s request from Defendant 1 to evaluate the corporate value of Nonindicted Company 1 in excess of 20 billion won, Defendant 1 prepared a report on corporate value assessment of Nonindicted Company 1 in the name of Nonindicted Company 14 in return for Defendant 3’s request and conspired to receive it.

On April 208, the Defendants received from Nonindicted 8 each remittance of KRW 50 billion from Nonindicted 8 to KRW 1.5 billion, and received money and valuables from the certified public accountant in exchange for unlawful solicitation in performing the duties of certified public accountant. The Defendants received money and valuables from Nonindicted 2 in return for a request to the company with a higher value than KRW 20 billion in order to pretend as if the Nonindicted Company 1 were to acquire at a higher price in the Asia-Japan. In addition, the Defendants received money and valuables from Nonindicted 8 to the company with a higher value than KRW 20 billion in order to pretend as if they were to acquire at a higher price in the Asia-Japan.

2. No certified public accountant shall intentionally conceal truth or make a false report in performing his functions;

The Defendants, as described in the preceding paragraph, conspired with Nonindicted Company 8 upon the request of Nonindicted Company 8, etc. for the purpose of making public the electronic public disclosure system of the Financial Supervisory Service, and the shares value and corporate value of Nonindicted Company 1 do not considerably exceed 20 billion won, which is the nominal asset acquisition value as described in the preceding paragraph. However, around May 14, 2008, Defendant 1 conducted an evaluation of the shares value per common share of Nonindicted Company 1, such as assessing the shares value of KRW 12,151 to KRW 16,713 billion, with an excessive evaluation of the shares value of KRW 17 billion to KRW 2,33 billion, and submitted to Nonindicted Party 3, the person in charge of the public disclosure of Nonindicted Company 2, who was a certified public accountant, intentionally concealed and falsely reported the truth in performing his duties.

1. Defendants’ partial statement in the original judgment

1. Each legal statement of the lower court rendered by Nonindicted 3, 9, 6, 7, and 10 of the witness

1. The defendants' statements in part of each protocol of examination of suspect against the defendants

1. Non-indicted 11's statement among the interrogation protocol of the fourth prosecutor against Defendant 1

1. Investigation reports (Attachment of contracts, etc. related to transfer or takeover of other corporations), investigation reports (Attachment of published data related to transfer or takeover), investigation reports (report on the filing of Nonindicted Company 2's audit reports), investigation reports (report on the accompanying of Nonindicted Company 2's files stored in Defendant 1's external divers), and investigation reports (Binding of audit reports);

1. Investigation report (report on suspect Nonindicted 8’s e-mail and telephone conversation file);

1. A report on acquisition of assets;

1. Service contract, copy of passbook, and certificate of deposit attached to the second suspect interrogation protocol against the defendant non-indicted 3

1. The copy, receipt, deposit certificate, and agreement attached to the first interrogation protocol of Nonindicted Corporation 14 accounting corporation attached to the prosecution's first interrogation protocol against Defendant 1

1. Nonindicted Company 1’s audit report file

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

Articles 53(1) and 22(3) of the Certified Public Accountant Act, Article 30 of the Criminal Act (the receipt of money and valuables, the choice of imprisonment), Articles 53(2) and 15(3) of the Certified Public Accountant Act, and Article 30 of the Criminal Act [Article 53(1) and 22(3) of the Certified Public Accountant Act, Article 53(2) of the Certified Public Accountant Act, Article 15(3) of the Certified Public Accountant Act, and Article 30 of the Criminal Act [Article 53(1) of the Certified Public Accountant Act,

1. Aggravation for concurrent crimes;

Article 37 (Aggravation of Article 37, Article 38 (1) 2, and Article 50 (Aggravation of Concurrent Crimes with Punishment as prescribed by Certified Public Accountant Act due to Receipt of Money and Valuables heavier Punishment)

1. Suspension of execution;

Article 62(1) of the Criminal Code (The following favorable circumstances shall be considered among the reasons for sentencing)

In light of the fact that the Defendants knew that they will be disclosed to the electronic disclosure system of the Financial Supervisory Service, they prepared an evaluation report containing false contents and submitted it to Nonindicted Company 2. In fact, the disclosure of the evaluation report would result in a large number of shareholders who acquired the shares of Nonindicted Company 2 by believing that the false report was true and bring about a significant economic loss, and the Defendants should be punished strictly in light of the fact that they are trying to avoid their responsibility by avoiding crimes up to the trial.

However, prior to the instant case, the Defendants did not have the criminal records subject to punishment, and the Defendants committed the instant crime at the active request of Nonindicted Company 2, and Defendant 1 and 2 had an opportunity to reflect their mistakes while living in custody for a certain period, etc. shall be considered as the grounds for sentencing favorable to the Defendants. Taking into account the degree of the Defendants’ participation in the instant crime and other various circumstances, including the Defendants’ age, character and conduct, and environment, and the motive, means and consequence of the instant crime, and the circumstances after the commission of the crime, etc., the sentence is determined as per Disposition.

Judges Lee Young-han (Presiding Judge)