(영문) 서울중앙지방법원 2017.1.3. 선고 2016고합656 판결

Of the facts charged in this case, the facts of the E-related property in breach of trust and the facts of the property in breach of trust related to the property in US$ 20,000 shall be acquitted.

Reasons

Criminal 1)

"2016, 656"

【Basic Facts】

The Defendant is a major shareholder of F Co., Ltd. established on October 23, 2002 (hereinafter referred to as “F,” and from the second name to July 2, 2013, the Defendant is a person who has overall control over F’s business as “the Chairperson”. The Defendant, as F’s subsidiary, has actually operated G Co., Ltd. established on December 18, 2006 and H, etc. established on February 26, 2008. From December 21, 2010 to November 8, 2013, the Defendant has been working as H’s representative director, from May 2008 to July 2, 2013, the Defendant has been operating from May 208 to December 1, 2018 as Singapore (hereinafter referred to as “EE”), and the Defendant has been operating from May 21, 2008 to July 2, 201.

K is appointed as a representative director for a limited company for the term of office on March 7, 2006. On March 7, 2009, he/she was reappointed on March 7, 2009 and was in overall control over L and its subsidiaries’ management, fund management, etc. until March 29, 2012. From March 30, 2012 to April 1, 2014, he/she takes charge of management consulting duties, etc. as L and is the defendant’s motive for university.

F is a company registered as a company for multi-modal forwarding (one type of crowdfunding) and a company for logistics cooperation. Since 2009, F forms more than 50% of the total sales of L, and thus, it has a structure of absolute dependence on L. In addition, ME companies concluded a charter contract with L, etc., and concluded a charter contract with L, and concluded a ship with the above ME companies, and made a construction of the ship, and it is inevitable to depend on L whether to realize the company’s profit, such as whether the sales of L from 2008 to 2011 occupy 64-10% of the total sales.

[Specific Crime]

1. Property in breach of trust;

(a) Property in breach of trust related to I;

1) Illegal solicitation

A) N/O-related

On March 2006, the Defendant made an illegal solicitation to K to the effect that, in order to participate in the PP project ordered by L, which is ordered to take part in the complex transport arrangement business among the complex transport arrangement businesses, at around March 2006, while operating F, K will be selected as a sub-charter company in order to organize a consortium and participate in the NP bid among BI ordered L.K will be selected as a sub-charter company in order to take part in the PP project ordered by L. The Defendant stated that "K will assist Q vice-president and talk if the project is difficult to take charge of QP vice-president." After the Defendant stated that " QP vice-president is expected to take part in the PP project, Q Q is well able to take part in the P project."

Q, upon receipt of the above instructions from K, was bound to receive a lower score from the "ship management ability" evaluation item on December 2006, 206, immediately before the tender for the GO N charter contract operated by the Defendant, due to the lack of the construction performance of the vessel, from the "ship management ability" evaluation item. In preparation of the "P operator selection criteria" on March 16, 2007, Q deleted the item of "ship management ability included in the evaluation items at the time of the tender presentation meeting conducted on March 2, 2007, and was aware that the bidder secured a low-speed engine among the bidding participants, he was not included in the evaluation items at the time of the above tender presentation, and was selected as G as a shipping company by adding "B&W635M security items" to the "security items of low-speed engines (B&W635M; c).

K’s exercise of such influence, after entering into a long-term service contract with L/N cargo guarantee and exclusive ship, G achieved a total of KRW 88.3 billion from 2008 to 2014 (total operating profit: KRW 30.2 billion) from May 25, 2007, and after entering into a long-term service contract with L/N cargo guarantee and exclusive ship.

On the other hand, L was trying to place an order for a charter contract of 0 billion won around December 2007 due to the explosion of shipbuilding games from 2007 to 2008. The above 0 charter contracts are large charter contracts with the contract price of 101 billion won per ship, with the contract period of 10 years as well as the long-term charter contracts with the contract period of 10 years as well as the amount that guarantees the repayment of principal and interest on ship financing and appropriate profits. It was anticipated that the amount of 92 billion won from the Industrial Bank to 90% of the ship price can be smoothly raised funds, such as lending the amount of 92 billion won from the Industrial Bank to the ship price of 90%.

On December 2007, the Defendant made an illegal solicitation to K to the effect that “Around 2007, the Defendant was ordering 0 to L at a time, but the said contract also intended to have us selected as a charter company, and, as the business fund falls short of the business fund, requested L to subsidize the project fund.” The Defendant accepted it.

After that, K directed Q Q Q Q Q Q to proceed with this charter contract in the form of a negotiated contract with A. Because Q Q oppose the selection of charter company through a negotiated contract, it excluded Q Q and ordered Q R to the head of the origin headquarters of the production site that “A invests its shares in the company and enter into 0 charter contracts in the form of a negotiated contract with A.”

R received the above instructions from K, and then, around February 2008, the Defendant’s management was 100 million won prior to the bid for the 0 charter party, and there was no record of shipbuilding, and L did not have selected charter companies in the form of a negotiated contract, and it was very unusual to participate in the offering of new shares by a company that is only a partner company. However, on May 28, 2008, H 19% of H’s shares was 2.185 million won and entered into a long-term shipping contract with H on July 2008.

K’s exercise of such influence, H achieved a total of KRW 262.8 billion from 2010 to 2014 (total operating profit: approximately KRW 28.3 billion).

B) On September 25, 2009, K Co., Ltd., a subsidiary company of L, had 10,313,968,957 U.S. acquire 80.2% of S’s equity from U.S. from L Co., Ltd. In order to rapidly grow the company by lowering the volume of goods to S, and thereafter to list it on the stock market. On the other hand, K agreed with U.S. to transfer 10% of S’s equity held by U.S. through a foreign subsidiary (V) to a third party designated by T in the future. Accordingly, on September 25, 2009, K had W (hereinafter “W”) established by the Defendant in Singapore (hereinafter “W”) take over 10% of S’s equity interest.

After that, K has rapidly grown from the net loss of the current term of KRW 2.214 billion in 2009 to S, which was ordered by L, such as raising the net profit of KRW 4.155 billion in 201, and KRW 6.51 billion in 2011 to the net profit of KRW 6.5 million in 201.

On February 201, K issued an illegal solicitation to the effect that "Around February 2011, the defendant thought that "S will grow as a general logistics company," but "A foreign equity will be increased to 49% by 49%," and the defendant made an illegal solicitation to the effect that "S will be able to acquire S's new shares for capital increase."

Accordingly, K directed the S representative director SX that “the third party allotment method will be conducted, and the entire shares issued with the capital increase will be allocated to the operation of the Defendant.” On February 25, 2011, X passed a resolution of the third party allotment method at the regular general shareholders’ meeting held on February 25, 201. On July 18, 2011, the S board of directors held on July 18, 201 adopted a resolution to allocate all 80,100 won per share to I.

As a result of the K’s exercise of such influence, I accepted 80,000 new shares of S around 201, and received dividends from S in 2012 at a high rate of 42.64% in the following year.

(ii) provision of economic benefits;

The Defendant received KRW 1,00,000 from K from March 201 to June, 201, a total of KRW 1,0778,000,00 from K, and received from K to “in the name of the vehicle and paid dividends every year”, and consented to the case of preferential treatment and to the meaning of solicitation for continued preferential treatment in the future. Accordingly, on July 15, 201, the Defendant deposited USD 1,00,000 (one billion,77,730,000,000,000 won, KRW 1,000,000,000,000,000 from K to June 2, 201, and provided an investment opportunity to K by acquiring the shares of KRW 1,00,00 in the name of the Defendant’s Y (I’s nationality) in the name of the Defendant’s employee.

3) Conclusion

As a result, the Defendant made an illegal solicitation to K in connection with L's second-tier company's capital increase and business implementation, and provided financial benefits to obtain an I share investment opportunity in return.

(b) Property in breach of trust related to personal offices;

On March 2007, the Defendant made an illegal solicitation to K in relation to N &0 contracts and implementation of projects, participation and implementation of Spans, as described in the above A, and K provided the Defendant with business benefits and convenience.

In January of 2014, the defendant suggested that K will provide the operating expenses of the individual office so that it can use the counseling station if it ceases to exist because it has been able to help many business during that period."

Accordingly, the Defendant provided K with the Seocho-gu Seoul Metropolitan Government Z building office as an individual office, and provided K with the total operating costs of KRW 218,563,91, including office deposits, monthly rent, interior expenses, and female employees from March 2014 to June 2015, as M affiliate funds.

As a result, the defendant made an illegal solicitation on K L representative director and counseling station's duties, and provided the financial benefits equivalent to KRW 218,563,911 in return.

2. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes;

(a) Offering rebates for AA;

On January 28, 2006, the Defendant directed F Representative AB, etc., and sent FL to AA who has the authority to work as the head of the department in charge of the procurement of the Foreign Goods Distribution Department and assign the goods to the subcontractor, “The intention is to enable FL to receive the goods.” In return for solicitation, the Defendant sent FF Funds US$ 5,000 (Korean currency KRW 4,933,500) in the course of business to AA’s family members, under the premise that it would be normal freight payments, under the premise that it would be normal freight payments.

In addition, from around that time to November 10, 2010, the Defendant paid to A, or used for A, an amount equivalent to KRW 409,918,625 of the funds owned by the victim company for 57 times, such as the list of crimes (1) in attached Table (1).

(b) Other embezzlement crimes;

On September 8, 2010, the Defendant instructed AB, etc. to withdraw USD 300,000 (Korean Won KRW 356,370,000) from the corporate account in the custody of the F Office on business, and made a false accounting as if the Defendant would pay the fare to the J operated by Singapore, and then appropriated the S 140,00 shares (10% shares) from V in the name of W in 2009 for the expenses to be incurred in acquiring S 140,186 won per share.

From January 208, 29 to November 25, 2010, the Defendant used 700,277,860 won in total of the funds owned by the victim company for the purpose of rebates costs or other personal use, such as the list of crimes (2) in attached Form 13 times from November 25, 2010.

C. Conclusion

The Defendant, in collusion with AB, embezzled the sum of KRW 1,110,196,485 in occupational custody.

3. Forgery of evidence.

From April 201 to June 201, the Defendant sent approximately KRW 2.5 billion including K's I's I's capital to AD's bank account in the name of the Defendant, and asked the Defendant to transfer money to the HSBC Singapore bank account in the name of the Defendant. AD remitted the money to the account of HSBC Singapore in the name of "AE" in the name of "SC Hong Kong bank account in the name of the Defendant. The Defendant used the money to acquire the shares of K in the name of the borrower.

In May 2016, the Defendant: (a) requested AD to prepare three copies of a false loan; (b) “AD borrowed money from the Defendant” to conceal the fact that K had made an investment in I and to suggest that K has made a loan to AD. AD around that time, prepared three copies of a false loan; (c) “AD borrowed money from the Defendant from April 201 to June 201 at the Defendant’s request; and (d) forged evidence related to K’s crime.”

Accordingly, the defendant instigated to forge the above loan certificate 3, which is evidence of K's criminal case.

"2016, 950"

4. Violation of the Aggravated Punishment Act;

On March 31, 2011, the Defendant ordered the F representative director AB, etc. to pay the F amount of corporate tax in 2010 to the competent tax office. On January 30, 2010, the Defendant received the F amount of the F amount of the F amount of corporate tax from AC, even though the F was not liable to pay the F amount of 5,841,500 won to AC of the F amount of freight, and prepared a notice of the payment of the F amount of the F amount of the processed amount of money to AC, and pretended that the said 5,841,50 won of the F amount of money should be paid to the business entity.

In addition, from around that time to December 31, 2010, the Defendant included the total of KRW 3,604,497,688 in the same way, such as the list of crimes (3) in attached Form 25 times, as the purchase cost.

Accordingly, the defendant, in collusion with AB, paid the corporate tax amount of F in 2010 by fraudulent or other unlawful act, and evaded corporate tax of KRW 77,80,843.

Summary of Evidence

"2016, 656"2

【Paragraph 1 of this Article】

1. A part of the judgment of the defendant, or a statement in court consistent with paragraph 1-b. of the judgment of the defendant;

1. Each prosecutor's protocol or statement of the suspect against the defendant or K;

1. Each prosecutor's statement concerning AF, AG, AD, AH, AI, AJ, X, AK, Q, and AL (including the part concerning the AM statement);

1. Nhae contract (Evidence Nos. 2 and 2 of the evidence list), understanding invoice (3), copy of understanding note (20), copy (O) (21), maritime cargo transport contract (H) (22), maritime cargo transport contract (H) (23), P construction and operation diagnosis report (25), subsidiary report (S and T (26), BK document (27), and 0-related reports (28), this equity investment (29), S’s minutes (29), L board of directors’ meetings (32), L board of directors’ meetings (28 April 28, 2008), examination of additional foreign equity participation (35 June 25, 201), office contracts (25), and audit report (109)

1. Investigation reports (attached to the L Audit Committee’s document), investigation reports (verification of remittance details of A to K), investigation reports (verification of payment of dividend payments), investigation reports (report on the current status of changes in equity interests of corporations overseas in Singapore), investigation reports (verification of details of transfer transactions), investigation reports (verification of details of transfer transactions of AD), investigation reports (organization of details related to the Z office provided by A to K), investigation reports (organization of details related to the Z office conducted by the K), investigation reports (information on the results of the operation of the K Counseling Center), investigation reports (information on the results of reports on the operation of the LB), investigation reports (Attachment of documents related to annual sales and operating profits), investigation reports (Attachment of documents related to the annual sales and operating profits), investigation reports (Attachment of documents related to the current status of sales of M affiliate companies), and each accompanying documents (Attachment of documents related to the annual sales of the 6-19,36-40,59-63, 75-2, 87-92, 10-102

【Paragraph 2 of this Article】

1. Partial statement of the defendant;

1. Each legal statement of witness, DNA, AB, AO, AP, Q, and AR;

1. Second written examination of the accused by the prosecution;

1. Each prosecutor's statement of AB andN;

1. F the minutes of the board of directors’ meeting in 2010 (see December 23, 2010), F 201 minutes of the board of directors’ meeting in 2011 (see March 25, 201), and e-mail sent by the Defendant and AB (see e-mail No. 26-28, Feb. 25, 2007)

1. Investigation report (A’s attachment of data related to embezzlement of F funds), investigation report (verification of F’s process of acquiring shares), investigation report (Attachment of F funds embezzlement data through AA remittance), investigation report (Attachment of data related to tax investigations) (Attachment of data related to tax investigations), and each accompanying document (12-17, 127-138);

【Paragraph 3 of this Article】

1. Partial statement of the defendant;

1. The prosecutor's protocol of statement and the first interrogation protocol of the accused;

1. Each prosecutor's statement concerning AD;

1. A written statement prepared by the defendant;

1. Copies of each loan certificate (Evidence Nos. 46-48);

"2016, 950" 3

【Paragraph 4 of this Article】

1. Partial statement of the defendant;

1. Each legal statement of witness, DNA, AB, AO, AP, Q, and AR;

1. Statement made by the prosecution on AB, N, and AT (including the AU’s statement part);

1. Second written examination of the accused by the prosecution;

1. A written accusation;

1. Investigation report (A’s F processed purchase-related data), investigation report, corporate tax base and tax amount determination (revision) related to filing an accusation, and each attachment (1-9, 16, 17);

Application of Statutes

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

Article 357(2) and (1) of the former Criminal Act (amended by Act No. 14178, May 29, 2016); 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; hereinafter referred to as the "former Punishment of Tax Evaders Act"); Articles 356, 355(1), and 30 of the Criminal Act; Articles 155(1) and 31(1) of the former Criminal Act (amended by Act No. 14178, May 29, 201); Article 357(2) and (1) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 11366, Dec. 31, 201; hereinafter referred to as the "former Punishment of Tax Evaders Act"); Article 8(1)2(1) and (3)1) of the former Punishment of Tax Evaders Act (amended by Act No. 20

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act shall apply mutatis mutandis to concurrent crimes resulting from a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Tax) with the largest penalty

1. Discretionary mitigation;

Articles 53 and 55(1)3 and 65(1)6 of the Criminal Act (The following extenuating circumstances among the reasons for sentencing):

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

Judgment on the argument of the defendant and defense counsel

1. The crime of giving rise to the breach of trust in Article 1-1 (a) of the judgment;

A. Summary of the assertion

The Defendant did not have any reason to refuse to offer K’s proposal to invest in the situation where it is necessary to raise S&A funds at the time. The Defendant had K take over one million shares of K under a legitimate investment contract. The Defendant did not provide K with preferential treatment differentiated from other shareholders of K.

Therefore, the defendant did not provide K with property benefits in return for illegal solicitation.

B. Determination

1) In the relevant legal doctrine, “illegal solicitation” does not necessarily require that it constitutes the substance of occupational breach of trust, and there is sufficient content that is contrary to social rules or the principle of good faith. Determination of such solicitation ought to be made by comprehensively examining the content of the solicitation, the amount of the consideration received or provided in relation thereto, form, and integrity of transactions, which are the legal interests protected by the law. The solicitation is not necessarily required to be explicitly made, but may not be implicitly made even if it is implicitly made. Even if property or property benefits are provided or acquired after the illegal solicitation, insofar as the property or property benefits are the consideration for the solicitation, the crime of breach of trust and inheritance is established. The same applies where part of the property or property benefits acquired by the donor is provided or acquired in return for the solicitation (see, e.g., Supreme Court Decisions 2011Do1174, Nov. 14, 2013; 2015Do3080, Jul. 23, 2015).

In the crime of breach of trust and acceptance of evidence, “property interest” includes not only money, goods, and other property interest, as well as all tangible and intangible interests sufficient to satisfy human demand desire, as in the crime of bribery, as in the crime of bribery. It also constitutes an opportunity to invest in a business in which a person participates in an speculative business or may obtain a certain profit (see, e.g., Supreme Court Decisions 2002Do5218, Jun. 13, 2003; 2005Do7050, Apr. 14, 2006).

2) In the instant case, in full view of the following facts and circumstances acknowledged by the evidence duly adopted and investigated by the instant court, the Defendant may be recognized as having provided K, a representative director, with an opportunity to make investments by allocating one million shares in return for business benefits or convenience. Therefore, it is reasonable to deem that the Defendant provided K with economic benefits in return for an illegal solicitation contrary to social rules or the principle of good faith.

(A) business benefits and convenience provided by K for the Defendant;

(1) convenience in N/O-related benefits;

The Defendant issued a request to K with respect to the selection and operation of the N or O business operator who was known from the university Section BJ department and motive at the university, and in fact, made a decision consistent with the interests of the Defendant, such as the facts constituting the crime No. 1-A(a)(a) as indicated in the request by the Defendant. In this regard, K made a statement to the effect that “K received a request from the Defendant for assistance with respect to N and0 and instructed the officer in charge to give an opportunity for the Defendant company.” (Evidence No. 86 of the evidence list No. 86 K).

(2) Benefits related to S.

In the following light of the following circumstances, it is sufficient to view that the I would have received high profits from the shares of S which are expected to be earned and received benefits.

(A) Around September 2009, K planned to grow S through T, a subsidiary of L, through L, and therefore, it was naturally anticipated that S’s rapid growth was expected. At that time, the Defendant was aware of S’s plan at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at that time at KRW 2.2.14 billion (200

(B) On February 2011, when the shareholders’ general meeting had already achieved the K’s plan, the Defendant established I for the purpose of acquiring S’s shares solely on or around April 201. At around July 2011, S has distributed 80,000 shares (the total number of S’s shares 36.36%) to I, not L, with the order of increase in the foreign investment ratio. Since July 201, S made a total of 42.64% dividends in the year 2012, and distributed 1,000,000 won to I.S. shareholders from 760,000 U.S. dollars (the total number of S’s shares 853,566,000 won) corresponding to the plan, and distributed 2016,000 U.S. shares to B from 2014 to 2014. From 2014, S distributed its profits to 2014.

(C) On June 2012, which was prepared by the Ethics Team of the L Planning and Coordination Office after the retirement of K’s representative director, it was pointed out that S’s governance structure, land and marine transportation contracts concluded in a lump sum between L and S, the incomparability of L by S, the increase of L’s cost due to S, the problems of the procedures for issuing new stocks to I, and excessive dividends by S, etc. (Evidence List No. 26). Since October 2012, L returned to S in the way of terminating a collective transportation contract with S and concluding a direct contract with an individual transportation company.

(D) K stated to the effect that “The allotment of 80,000 new shares to I was the next source of benefits from the prosecution” (Evidence List Nos. 84,86 K Nos. 1 and 2).

(E) In the prosecutorial office, the Defendant thought that the Defendant would be able to enjoy a considerable benefit if an investment was made because of the significant increase in the S Revenues, and that the dividend would be able to receive it as a matter of course." Moreover, the Defendant appears to be a major logistics company with K and to be able to list it on the Singapore securities market with the development of logistics. In addition, the Defendant stated to the effect that the Defendant would have a good investment opportunity at the end, and that it would be able to raise its location among investors in Singapore (Evidence No. 83 of Evidence No. 83).

B) Economic benefits the Defendant provided to K

In light of the following circumstances, the Defendant may be deemed to have provided K with property benefits by providing K with investment opportunities.

(1) Around July 201, K acquired 1 million US dollars and held 13.16% of the I’s equity shares. At that time, S had already been growing and high profits in accordance with the K K’s plan, and I was decided to acquire 80,000 US dollars since 2012. Since S and I received a high rate of dividends from 2012 as an I’s shareholder, K received 12,310,000 US dollars (Korean US$ 112,310,000) in total from 2012 to 2014. In light of these profits, K and I received dividends from 2012 to 2014 (Korean US$ 268,758,500). In light of these circumstances, in order to secure shares at the time of the Defendant’s investment.

(2) K transferred the full amount of the investment money to the Defendant to a check that is not a account transfer method, and the Defendant transferred this money to its own Singapore account by means of a refund method. In addition, K was unable to hold shares under the real name that may conflict with L, and the Defendant lent the name of “Y”, which is an employee of its own Singapore, to K and stored in lieu of K’s profit dividends. As such, the Defendant served as an important role for K to make investments in K and I.

(3) The Defendant returned part of the investment principal to the Defendant’s personal money from December 2014 to July 2015, when the Defendant wants to dispose of shares due to the aggravation of S management situation.

(4) The Defendant appears to have experienced some difficulties in raising I’s subscription price for new shares as well as the subscription price for new shares. However, in light of the following circumstances, it is difficult to deny that the Defendant provided K property benefits solely on the following grounds: (i) the Defendant’s Defendant was unable to raise the subscription price for new shares; (ii) was a large amount of the subscription price for new shares issued by the prosecution; and (iii) the Plaintiff was not refusing to make an investment by itself; (iv) the Plaintiff stated to the effect that it would have easily made an investment; (v) the first protocol of examination on the Defendant’s recommendation for investment; and (v) the fact that K’s investment participation in I or S was difficult to disclose to the general public.

C) Relation between both parties

(1) On February 201, K delivered investment funds to the Defendant from March 201 to June 201, immediately after the general meeting of shareholders of S, a third party’s offering of new shares by issuing new shares to K, at the general meeting of shareholders, from March 2011, to June 2011. The Defendant deposited USD 1,000,00 (Korean KRW 1,0777,730,000), which was around July 201, at the meeting of S, around July 201, when it decided to allocate 80,000 shares to the Defendant’s offering of new shares by issuing new shares to K, and thereafter, acquired 1,00,00 shares for K. The benefits that the Defendant received from K and property benefits that the Defendant offered to K are closely related to the time and contents thereof.

(2) In the prosecutorial office, the Defendant stated to the effect that the prosecutor’s question on the grounds that the Defendant assisted the Defendant to acquire the name shares of the K, “K cannot live directly or indirectly, and if investing indirectly through B, it could have divided the negligence due to the growth of S, and could have displayed the support for K through dividends. The Defendant stated to the effect that the Defendant was also a senior executive officer, as to the right to invest in the S created by K, and that the Defendant did not think that it would have been able to do so as a matter of course at the time of his request.” In addition, as to the fact that the Defendant returned part of the I’s investment principal to K, “other shareholders would be in purely an investor, and that it would have been able to assist him or her for its own company, and that it would have guaranteed the principal because it would have given some assistance in return for it.” (Evidence 583) of the Defendant’s suspect interrogation statement to the effect that the Defendant stated to the effect that “The Defendant’s interrogation protocol of evidence No. 583” (Evidence).

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

A. The part related to paragraph 2-A (attached Table 1) of the holding

1) Summary of the assertion

A) Each money listed in the separate sheet of crime (1) was used for the benefit of the victim company at the request of AA, which was in a position to have an important impact on the business of the victim company. Accordingly, the act of withdrawing this portion of money did not have an intention of unlawful acquisition.

B) The Defendant did not have directed AB to remit or use each money listed in the Schedule of Crimes (1) for AA, and did not have any position to give such instructions.

The defendant only stated that there was a need for personnel management from AB at a business level, and there is no fact about how and how much money is remitted.

Therefore, the Defendant did not participate in the conspiracy to commit this part of embezzlement by AB, etc.

2) Determination

A) Whether embezzlement is established against the act of withdrawing and using the money in this part

(1) Since a company should not be a means to commit a criminal offense while engaging in its business activities, it must comply with the provisions of the Act prohibiting the offering of a bribe. Therefore, if a director, etc. of the company offered a bribe with the company’s funds kept in violation of his/her duties, it is reasonable to deem that such offering was made for the purpose of seeking the benefit of the party to the offering of a bribe or for any other purpose rather than solely seeking the company’s profit. Therefore, such a director, etc. shall not be exempted from liability for the crime of embezzlement in the course of business. Unless there are special circumstances, such legal doctrine likewise applies to cases where a director, etc. of the company made an illegal solicitation with the company’s funds and made a gift offering (Supreme Court Decision 2011Do

(2) In full view of the evidence duly adopted and examined by this Court, in particular, objective data such as AB’s prosecutor’s and court’s statements and records of internal transaction verification (Evidence No. 115), relevant substitution slips and account transaction details (Evidence No. 134) as of September 26, 201, this part of the money can be recognized as having been used as a royalty to AA. In light of the developments leading up to the use, amount, period, frequency, form, etc. of the money, it is reasonable to deem that the money was used solely for the purpose of promoting the benefit of AA rather than for promoting the benefit of the victim company. Accordingly, the withdrawal and use of the money in this part constitutes embezzlement that realizes the intent of unlawful acquisition.

B) A public offering relationship

(1) Relevant legal principles

In a case where two or more of the co-offenders jointly processed with a crime do not legally require a certain punishment, but only two or more persons agree to realize a crime by jointly processing a crime. Although there is no process of the entire conspiracy, a conspiracy is established if two or more persons agree to commit a crime in order or impliedly. However, strict proof is not required for the recognition of such conspiracy. However, in a case where the defendant denies the subjective element of the crime, it is inevitable to prove it by means of proving indirect facts or circumstantial facts having considerable relevance to the nature of the crime. What constitutes an indirect fact having considerable relevance should be reasonably determined by the close observation or analysis power based on normal empirical rule. Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements, namely, functional control over the crime by the co-processing doctor. 200, supra, one of the co-offenders cannot be acknowledged as one of the co-offenders who did not directly act in accordance with the above requirement, and thus, one of the two or more co-offenders cannot be acknowledged as one of the co-offenders who did not directly act in the crime.

(2) In the instant case, in full view of the following facts and circumstances acknowledged by the evidence duly adopted and investigated by the court, the Defendant and AB obtained a report from AB that the Defendant would continue to use the funds of the victim company for AA, thereby soliciting the crime of embezzlement in this part, and the AB may be deemed to have used the funds of the victim company in accordance with such conspiracy. Therefore, it is reasonable to deem that the Defendant had functional control over the entire crime of embezzlement in this part.

(A) At the time of the crime of embezzlement in this part, the Defendant was a major shareholder and director holding at least 30% of the shares of the victim company. In addition, many of the shareholders and directors of the victim company were composed of the Defendant. Above all, the victim company was dependent on the Defendant in securing and managing the clients, including L, and raising funds. Based on these circumstances, the Defendant had considerable influence on the victim company’s important decision, such as serving as the chairperson of the victim company, disadvantageous and substantial board of directors.

(B) At the prosecution and court, AB consistently stated that “AB made a report to the Defendant, obtained the approval of the Defendant, periodically remitted the charge amount for processing from the U.S. crowdfunding cooperation companies that were falsely employed by the Defendant, and then A has been automatically carried out in accordance with its contents. Then, each money listed in [Attachment 13-15, and 49] is also reported and processed with instructions given to the Defendant.” In fact, most of the money in this part was periodically remitted to the cooperation companies in the U.S., and the “M” is distinguishable from the substitute table regarding the details processed with the charge of ex post facto cooperation companies. In addition to the statements made by AV, the board of directors at the time of the victim company’s statement appears to have been “necessary to provide money to the representative director at the business relationship A” to the investigation agency for the purpose of 12-10th anniversary of the victim’s statement, it appears that there was sufficient reason to acknowledge AB’s credibility in the statement made by the victim during the year 201.

(C) The Defendant voluntarily expressed at the prosecution that “A shall open a board of directors at the AW Hotel center located in Gangnam-gu Seoul Metropolitan Government in 2006, and continue to engage in L and continuous transactions.” The same means that A wants money. Although the time for giving money to A may be accurately known, it was sent from 2006 to 2010. It may be a situation where A, a so-called “A” is unable to engage in transactions, and thus, he/she continued to transfer money as desired by A. Although A was a representative director, AA appears to be well-known because it was possible for A to make work as a practical person and make it difficult for A to do so.”

(D) AB’s conspiracy relationship between the Defendant and AB regarding the crime of embezzlement with the content that continuously uses the funds of the victim company for AA is established, and as long as AB committed a crime according to the content of the solicitation, it is reasonable to deem that the entire amount of embezzlement is established as joint principal offenders as to the crime within the scope anticipated in the process of the solicitation. This also applies to cases where the Defendant did not individually instruct AB the withdrawal of this part of the money, or did not know the method of the embezzlement

B. Part 2-b. [Attachment 2-2] related to the paragraph (b) [Attachment 2-2]

1) Summary of the assertion

A) The Defendant did not direct or conspired to use the remaining amounts, excluding USD 300,000,000 as stated in the [Attachment 12] list of crimes (2).

B) The amount of USD 300,000,00 as indicated in [Attachment 2] Nos. 12 is the money that was withdrawn as the purchase price for 300,000 shares owned by the Defendant. However, the employee of the victim company remitted USD 300,00 to the account of J, not the Defendant’s personal account, and did not take the procedure for acquiring shares in overseas investment. The Defendant did not transfer the 300,000 shares to the victim company on the wind, but did not transfer the 300,000 shares to the victim company in accordance with the plan prepared by the working group of the victim company, and transferred the 300,000 shares owned by the J to pay brokerage and advisory fees to the victim company. Accordingly, there was no intent to obtain illegal profits from

2) Determination

A) The remainder excluding USD 300,000 listed in the [Attachment 12] list of crimes (2)

In full view of the following facts and circumstances acknowledged by the evidence duly adopted and investigated by this court, the defendant can be found to have withdrawn and used this part of the money in collusion with AB, etc. and embezzled.

(1) AB consistently stated in the prosecutor’s office and court that “The Defendant used or instructed the Defendant to use the respective money directly”.

(2) The content of objective data, such as an audit report (Evidence No. 114) on the negative release of the “AX” of September 16, 201, an internal transaction verification summary table (Evidence No. 115), an alternative sheet and an account transaction statement (Evidence No. 117), an investigation report (Attachment of Documents Related to Tax Investigation), and accompanying documents (Evidence No. 135-138) conforms to AB’s statements.

(3) The Defendant stated at the prosecution that “the AY chief has been permitted to carry out the transportation services ordered in AZ with respect to the money listed in the separate list of crimes (2) Nos. 4 in the attached table of crimes (2). Therefore, the Defendant offered rebates to the extent of the contract size between AB and AB, which would normally have given and received stories. It would be big that the Plaintiff would have given the AZ volume, and that “AB would be a spact from the standpoint of the company, and there is no reason that AB would not talk to himself/herself.” As to the money listed in the attached table Nos. 5 in the attached table of crimes (2) to the effect that “if a tax auditor was in error in the victim company, there was an urgent meeting of the board of directors at the competition room where the tax auditor could ask for considerable taxes. He/she and AB as well as all the directors present at the board of directors at that time.”

(4) In light of the AV’s statement that was the auditor of the victim company, AB appears to have known that AV also contributed to the contract of carriage and tax investigation of the AZ order with the funds of the victim company.

B) Parts of USD 300,000,000,000 listed in the [Attachment 12] list of crimes (2)

(1) In the crime of embezzlement, the consignment relationship with the custody of property is sufficient (see, e.g., Supreme Court Decisions 2007Do9632, Jan. 31, 2008; 2009Do13751, Oct. 13, 201). A stock company does not necessarily coincide with the interests of its shareholders as independent right-holder. Thus, if a shareholder, representative director, or a person who deals with the de facto affairs related to the custody or operation of company funds disposes of the company’s property for private purposes, then the company cannot be exempted from the liability for the crime of embezzlement, regardless of whether there was a resolution of the general meeting of shareholders or the board of directors regarding such disposition (see, e.g., Supreme Court Decision 2010Do17396, Mar. 24, 2011).

(2) In full view of the following facts and circumstances acknowledged by the evidence duly adopted and investigated by this court, the Defendant may be deemed to have withdrawn the above money with the intent to cover W’s S acceptance fund with the funds of the victim company in the position of de facto custody of the victim company’s funds. Therefore, it is reasonable to view that the Defendant, in collusion with AB, etc., embezzled the said money for private use.

(A) The Defendant exercised direct and indirect influence over the operation of the victim company, and ordered AB, etc. to withdraw the funds of the victim company, are as seen earlier, and this part of the money may also be recognized as having been withdrawn by the Defendant’s instruction. In light of these circumstances, the Defendant may be deemed to have been in a de facto position of keeping the funds of the victim company.

(B) The board of directors of the victim company approved S to make investments in USD 300,000,000, but the said money was transferred to the J account that is not directly related to S investment through false accounting management on September 8, 2010.

(C) The Defendant did not return the said money to the J account and did not take measures to transfer the said money to the victim company for a period of more than three years until December 2013 in a mixed state with the J’s funds or to transfer the said money to the victim company an investment share corresponding to the said money. In addition, the victim company’s shareholders transferred the said money to the victim company 30,000 shares owned by the victim company.

(D) The victim company did not have decided to own the shares invested in the above money in the name of tea. In the circumstance that S continues to distribute a considerable amount of profit, it is deemed that there is no need for the victim company to own W stocks in the name of tea. The Defendant, as W shareholder, was distributed the amount of USD 3,740 in 201, USD 55,00 in 201, USD 35,750 in 201, USD 35,750 in 201, and USD 35,750 in 2013, but did not distribute them again with F.

(E) The Defendant made a statement at the prosecution to the effect that “The Defendant would have been able to make an investment in S with the funds of the victim company, but the victim company could not immediately remit the funds to V, so once he made an investment by lending the funds in W and repaid W borrowed money from the victim company” (the second protocol of interrogation of the Defendant as to the Defendant).

3. Crimes of forging evidence in judgment;

A. Summary of the assertion

The crime of forging evidence is established when the act of forging evidence on a criminal case or disciplinary case is committed by aiding another person "a third person". However, since AD is a person who has forged evidence jointly with the defendant, the defendant cannot be deemed to have instigated another person to forge evidence.

B. Determination

1) In the crime of forging evidence under Article 155(1) of the Criminal Act, “Forgery” means the creation of a new evidence, different from the concept of forgery in the crime concerning documents. Therefore, the act of forging non-existent evidence as if it existed prior to the existence of such evidence also constitutes the crime of aiding and abetting evidence, and in the case of having the form of document, whether it constitutes evidence in the crime of forging evidence does not affect the existence of the authority to prepare the evidence or the authenticity of the content thereof. In addition, the crime of forging evidence is established against a person who instigated another person to commit a crime to forge evidence in his/her criminal case (see, e.g., Supreme Court Decision 2010Do15986, Feb. 10, 2011).

2) In full view of the following facts and circumstances acknowledged by the evidence duly adopted and investigated by this court, it is reasonable to view that the Defendant instigated AD to commit the crime of forging evidence in relation to the criminal case of misappropriation by the K or the Defendant. Such an act by the Defendant constitutes the crime of aiding and abetting evidence.

A) From April 201 to June 201, the Defendant provided AD with a total of KRW 2.495 billion on a check containing an IMF delivered to him/her over three times from April 201 to June 201, and AD transferred U.S. dollars from the foreign company’s account operated by him/her to the local bank account under the name of Singapore based on the current exchange rate.

B) At the end of November 2011, AD has drawn up three copies of a false loan stating that “AD borrowed money on the condition that 8% interest was paid from the Defendant every three months in its own name.”

C) In May 2016, when the prosecution investigation related to the Defendant or K was being conducted, the Defendant demanded AD to re-written the loan certificate in order to look at the interest and the time of the payment of the interest on the loan certificate. Accordingly, AD, considering that the Defendant was compared to the prosecution investigation, and then borrowed money in its name on the condition that “the Defendant would pay the interest at a rate of 6% per annum to the Defendant at the time of repayment of the principal amount,” three copies of the false loan certificate stating that “The Defendant borrowed money on the condition that he would pay the interest at a rate of 6% per annum from the Defendant at the time of repayment of the principal.” Each of the above loan certificate is written in the form of AD’s own writing.

D) The newly prepared loan certificate was seized while the Defendant kept in custody and was confiscated by the investigation agency. Thereafter, on June 8, 2016, the Defendant prepared a false statement to the effect that “The Defendant lent KRW 900 million to AD the check received from K” (Evidence No. 41). On the other hand, on June 9, 2016, AD was put forward to the first witness investigation by the prosecution that the above loan certificate was prepared in a false manner at the Defendant’s request. The Defendant also recognized the fact that the check delivered by K from June 13, 2016 was transferred to the local bank account in Singapore through AD.

4. Violation of the Act on Aggravated Punishment, etc. of Specific Crimes;

A. Summary of the assertion

1) At the time of 2010, F appropriated each processing purchase cost listed in the separate sheet (3) in the following list of crimes and temporarily decreased corporate tax base. Since 2011, F voluntarily appropriated the whole amount or most of the amount as the processing sale, and paid in full the increased corporate tax that increased corporate tax base. Accordingly, F did not have the intent to commit tax evasion.

2) The Defendant had not conspired with AB, a representative of F, with respect to the instant crime of tax evasion.

B. Determination

1) The criminal intent of tax evasion;

A) “Fraud or other unlawful act” under Article 3(1) of the former Punishment of Tax Evaders Act and Article 8 of the former Specific Crimes Aggravated Punishment Act refers to a deceptive scheme or other active act that makes it impossible or considerably difficult to impose and collect taxes (see, e.g., Supreme Court Decisions 2011Do13605, Mar. 15, 2012). The crime of tax evasion, which is established by such fraudulent or other unlawful act, is not an intentional crime, and does not require the Defendant to evade taxes or have a purpose of evading taxes. In such a crime of tax evasion, the term “act of tax evasion” refers to a person liable to pay taxes, recognizing that his/her act constitutes fraud or other unlawful act, and recognizing the fact that the result of tax evasion would result from such act, and thus, commits or attempts to commit an unlawful act (see, e.g., Supreme Court Decisions 2004Do817, Jun. 29, 2006; 2010Do6108, Jun. 19, 2010).

B) According to the evidence duly adopted and investigated by this court, AB, etc. is recognized as having evaded corporate tax for 2010 by actively preparing a false sales slip and appropriating the processing purchase cost as indicated in the separate sheet of crime (3). Moreover, it is reasonable to deem AB, etc. to have committed an unlawful act while recognizing that such an act constitutes fraud or other unlawful act and recognizing the fact that such act would result in the occurrence of tax evasion. Thus, the intent of tax evasion may be recognized. Even if the F had an intention to additionally pay the amount of tax evaded after the deadline for filing and paying corporate tax, this is merely the circumstances after the establishment of the crime of tax evasion, and thus, it cannot be hindered in recognizing the intent of tax evasion.

2) Public offering relationship

In full view of the following facts and circumstances acknowledged by the evidence duly adopted and investigated by the court, it is reasonable to view that the Defendant had functional control over the instant tax evasion crime by making an essential contribution thereto.

A) The Defendant, who is disadvantageous to the Chairperson, was in the F, was in the commission of the president of the board of directors, and had significant influence on F’s important decision-making. The Defendant and AB conspired to commit the crime of embezzlement with the content that continuously uses the funds of the victim company for AA, as seen above in Article 2-A(a) of the judgment on the assertion of the Defendant and the defense counsel.

B) In the prosecution and the court, AB stated to the effect that “F has appropriated a processing purchase on the books to reduce corporate tax because cash flow is not good due to continuous investment.” The Defendant and the board of directors were stated to the effect that “N has reported this fact.” In this court, AB stated to the effect that “AB has reported that a processing profit is included in the books’ operating profit at the board of directors.” In addition, in light of the AV’s statement, AB reported the processing purchase cost at the board of directors.

C) The Defendant made a statement at the prosecution to the effect that “In order to talk with AB representative director, etc. with less taxes or to provide AA, etc. with unlawful money, the Defendant was aware of the fact that he should manipulate the accounting books to a certain extent (the second interrogation protocol against the Defendant).”

Reasons for sentencing

1. The scope of punishment by law;

imprisonment between June and June 22, and fine 77,80,843 Won1,944,502,107

2. Application of the sentencing criteria;

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

[Determination of Punishment] Type 3 (at least 500 million won, but less than 5 billion won) of Embezzlement and Breach of Trust

【Special Convicted Person】

[Recommendation and Scope of Recommendation] Basic Field, 2-5 years of imprisonment

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

[Determination of Punishment] Type 1 (not less than KRW 500,00) under the Specific Crimes Aggravated Punishment Act

[Special Convicts] Full Payment of Taxes evaded (Devaluations)

[Recommendation and Scope of Recommendations] Reduction Area, Imprisonment from June to June 2

【Determination of Punishment of Misappropriation · No. 3 (No less than KRW 100,00) No. 3 (no less than KRW 400)

【Special Convicted Person】

[Recommendation and Scope of Recommendations] Basic Field, Imprisonment from October to June 1.

(d) Crimes of forging evidence: Non-establishment of sentencing criteria for each judgment;

(e) Scope of recommending punishment based on the standards for handling multiple crimes: Imprisonment with prison labor for not less than two years (inasmuch as a crime for which the sentencing criteria are set is not set and an offense for which the sentencing criteria are not set is concurrent crimes under the former part of Article 37 of the Criminal Act

3. Determination of sentence;

Considering the following circumstances, various sentencing factors as shown in the arguments in this case, such as the age, character and conduct, environment, means and result of the crime, etc., shall be determined as ordered by considering the following circumstances.

○ Unfavorable Conditions

The Defendant continued to receive business preference and convenience from K, and provided considerable economic benefits in return. In particular, K acquired S shares in W and I in the operation of the Defendant, and the Defendant made it possible for K to hold shares in return for the rapid growth of S, a second-tier company, by means of driving L’s work reduction, etc., and in return, K would be able to hold shares in the name of tea. Due to such a flexible relationship, the Defendant and K were divided into S growth fruits through high ratio distribution of dividends while L bears the burden of expenses arising from a unreasonable business relationship with S. In short, the aforementioned crime committed by the Defendant was significantly damaged the appropriate operation of L, which is a large amount of funds from the central bank and the public agencies of the State, and the trust in the society.

On the other hand, the Defendant, in collusion with AB, embezzled F funds under the name of an employee in charge of allocation of L Amount. The total amount of damages incurred by embezzlement committed by the Defendant, which led to approximately KRW 1.1 billion. Moreover, the Defendant, in collusion with AB, etc., evaded corporate tax of approximately KRW 800 million by means of appropriating processing costs, thereby disturbing tax order. In addition, the Defendant instigated another person to commit the fabrication of evidence, thereby causing danger to the appropriate effect of the investigative and judicial authority.

○ favorable circumstances

The Defendant’s crime of embezzlement, tax evasion, etc. with large shareholders was committed by the F’s representative director in Singapore. In particular, embezzlement was committed at the request of a person with a superior superior business relationship. Considering the motive, circumstance, etc. of the Defendant’s crime. Considering the motive, circumstance, etc., there seems to be circumstances to consider the Defendant’s crime of embezzlement. The Defendant appears to have used the instant embezzlement with F’s operating secret funds, but did not appear to have been personal as a means of axis. The Defendant transferred 300,000 shares owned to F, thereby partly recovering the damage caused by embezzlement. The F’s current representative director also wanted the Defendant’s wife. The Defendant did not have any profit from the crime of tax evasion of this case to the Defendant. The F paid in full the amount of underpayment of corporate tax in 2010 notified by the district tax office around 2016 and was suspended.

Defendant reflects on the fact that he caused water in this case. The Defendant, who returned to Korea from a foreign country and stated factual relations related to the acquisition of K’s borrowed shares, and cooperates in the investigation related to the violation of trust property in Singapore. The Defendant resided in Singapore and received presidential commendation as a result of his contribution to enhancing the rights and interests of Korean nationals residing therein.

The acquittal portion

1. Property in breach of trust;

A. Summary of the facts charged

1) Part on the grant of dividends related to E

On April 208, the Defendant, as stated in Section 1-A(2)(A) of the criminal facts stated in the judgment, received from K to the effect that “it shall acquire E’s shares in the name of its own money to transfer money abroad, and shall also pay dividends.” On April 2008, the Defendant accepted K’s demand within the meaning of the preferential treatment granted, and for solicitation for continued preferential treatment granted in the future. Accordingly, on April 2, 2008, K transferred 247,395 U.S. dollars 245 (U.S. dollars 240,881,91, 985, 985, 300 U.S. dollars 250, 305 U.S. dollars 50, 305 U.S. dollars 2535,505 U.S. dollars 30,5305 U.S. dollars 25,208.25 U.D. 25, 2008.

Then, the Defendant held USD 3,650 (based on US$ 3,962,075, exchange rate of KRW 1,085), USD 31,50 (based on US$ 37,182,60, KRW 180,00) around May 29, 201, USD 31,50 (based on US$ 37,180, KRW 1,180, KRW 40), USD 42,500 (based on US$ 48,37,750, KRW 1350, KRW 50, KRW 2050, USD 205, USD 505, USD 205, USD 506, USD 505, USD 205, USD 505, KRW 105,000 (based on KRW 48,3750,138.3) around April 11, 2013).

As a result, the Defendant made an illegal solicitation to K representative director regarding N and this charter contract and the execution of its business, etc., and granted dividends of KRW 299,315,025 and KRW 616,780,000 from April 27, 201 to May 5, 2015 due to the acquisition of E’s borrowed stocks.

2) Part concerning I-related dividend payment

The Defendant determined to distribute 1 million U.S. dollars 100,000 (based on KRW 112,310,000, KRW 12300, KRW 12300, KRW 12500, KRW 12300, KRW 12305, KRW 60,000 (based on KRW 66,918,000, KRW 1,115, KRW 300), around April 15, 2014, around KRW 45,00 (based on KRW 46,750, KRW 1,000, KRW 1,500, KRW 1,500, KRW 1,500, KRW 1,500, KRW 1,0389), around March 21, 2012 (based on KRW 112,505, KRW 2085, KRW 2005, May 27, 2015).

As a result, the Defendant made an illegal solicitation to K representative director in relation to L’s capital increase increase and business performance, which is a subsidiary company, and granted 268,758,500 won of dividends from March 21, 2012 to May 5, 2015 following the acquisition of I’s borrowed stocks.

B. Determination

1) In a case where a person who administers another person’s business participates in the business in which high-income is expected through equity investment in return for an illegal solicitation and obtains profits such as dividend in accordance with the share ratio, barring such circumstances as where the equity investment is merely a form for which the payment of lawful money is made by pretending to be made, or that the dividend amount, etc. was paid in return for an illegal solicitation regardless of the equity investment, it may not be deemed as a consideration for an illegal solicitation, even though it may not be deemed as a consideration for an illegal solicitation, such as a dividend amount, etc. (see, e.g., Supreme Court Decisions 2005Do9763, Jul. 7, 2006; 2009Do122, Jul. 28, 2011).

2) In light of the following facts and circumstances acknowledged by the evidence duly adopted and examined by the court, the evidence alone submitted by the prosecutor alone that each of the facts charged (including E-related marginal profits from sale of shares) was acquired according to the share ratio in the shareholder status of K E or I is insufficient to deem that the dividend itself was granted by pretending to acquire shares and pay dividends, and there is no other evidence to acknowledge otherwise.

A) The acquisition price of E and I shares acquired under the name of K was set at USD 1 per share, like other shareholders (Evidence List No. 40 investigation report).

B) K voluntarily assumed all or most of the subscription price of E and I shares acquired by it.

C) K received dividends of the shares of E and I in accordance with the same dividend rate and equity ratio as other shareholders (Evidence List Nos. 66 A and copies of the dividends of Singapore subsidiaries and domestic laws operated by Singapore No. 66A);

D) Dividends acquired by shareholders of E and I are determined according to the profits of each of the above companies. The defendant, at the time of providing K with an opportunity to acquire shares of each of the above companies, was not confirmed or anticipated to be realized through such shares at a certain amount. In such respect, there is a difference in the case where the defendant promises to regularly pay a certain amount of money to the receiver and to implement the promise (the Supreme Court Decision 94Do993 Decided June 30, 1995 cited by the prosecutor).

C. Conclusion

The facts charged in this part fall under the absence of proof of crime and should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act, but the E-related part included in the relevant facts charged.

In regard to E-related property in breach of trust, acquittal shall be pronounced, and I-related part shall be convicted of the crime of giving property in breach of trust under Article 1-1 (a) of the judgment contained in the relevant facts charged, and such part shall not be acquitted in the disposition.

2. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes;

A. Summary of the facts charged

The Defendant, in collusion with AB, withdrawn funds of the victim company in the course of business, such as the No. 4 of the List of Crimes (hereinafter referred to as “No. 5”) and embezzled them by using rebates or other personal purposes.

B. Determination

1) On April 25, 2008, part of USD 10,000 (attached Table 4 Nos. 1 of Crimes List (4))

A) In a criminal trial, the finding of guilt ought to be based on evidence of probative value, which leads to the conviction that the facts charged are true beyond a reasonable doubt by a judge. If there is no such evidence, even if there is suspicion of guilt against the defendant, the determination ought to be based on the interests of the defendant.

B) In light of the following facts and circumstances acknowledged by the evidence duly adopted and examined by the court, it is difficult to view that the evidence presented by the prosecutor alone was sufficiently proven to the extent that the Defendant conspired to withdraw and use the said money by ordering AB to do so, and there is no other evidence to acknowledge it otherwise.

(1) An audit report (Evidence No. 114) on the negative occurrence of “AX” by the accounting firm on September 16, 201 is clearly distinguishable from that written in the following: “The said money was appropriated as a short-term loan at the time of initial entry, but the said money was revised by purchase AB.” This is clearly distinguishable from that written in the following: (a) the audit report and the statement on the summary of internal verification of transactions (Evidence No. 115), and the F account (Evidence No. 117) on September 26, 2011, stating that “Defendant” was used for objective materials, such as “the short-term loan account (Evidence No. 117).”

(2) According to the statements, etc. by BB orN, a person who directly instructs the employee in charge of the victim company to execute the funds is not the defendant, but AB or N. In addition, the defendant was in a situation in which it is difficult to fully grasp the details of F’s detailed fund withdrawal due to the relationship mainly residing in Singapore.

(3) AB could not reasonably explain the reasons why the audit report was prepared in this court. Considering these circumstances, the statement made by AB to the effect that “ did not withdraw funds of the victim company without the Defendant’s instruction,” alone cannot be readily concluded that the Defendant was involved in the withdrawal of the said money.

2) On December 18, 2009, part of USD 10,000 (attached Table 4 Nos. 2)

A) In the crime of embezzlement, an unlawful acquisition intent refers to the intent of a custodian of another’s property to dispose of it by himself/herself without authority contrary to the purpose of entrustment. As such, in cases where the custodian disposes of it for the benefit of the owner, not for his/her own or a third party, barring special circumstances, the intent of unlawful acquisition cannot be recognized. Therefore, barring special circumstances, if the representative director of the company provides explanation about the whereabouts or place of use of the money withdrawn from the provisional payment, and if there are materials corresponding thereto, it cannot be acknowledged that he/she embezzled it with the intent of unlawful acquisition (see, e.g., Supreme Court Decisions 2007Do4784, Feb. 26, 2009; 201Do1904, May 26, 2011). Meanwhile, even if there is no doubt that the act of embezzlement as an act of realizing the intent of unlawful acquisition in the crime of occupational embezzlement by the defendant, the prosecutor must prove the defendant’s guilt to the extent that there is no reasonable doubt as to 2810.

B) In full view of the AB andN’s legal statement and the table of internal transaction verification (Evidence No. 115) as of September 26, 201, the above US$10,000 appears to have been deposited as a security deposit to prepare for a bill of lading (B/L) accident at the request of the contractor when the F entered into a contract with the subcontractor. Therefore, the evidence submitted by the prosecutor alone cannot be readily concluded that the above US$10,000 was used against the F’s interest, and rather, it is difficult to deem that it was used for the F’s interest, and thus, it is not recognized that there was an intention of unlawful acquisition by AB or the Defendant.

C. Conclusion

In this part of the facts charged shall be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act because it falls under the case where there is no proof of crime. However, as long as the defendant is found guilty of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

Acquittal Parts

1. Summary of the facts charged

A. E-related property in breach of trust (not guilty part 1-A. 1) (the portion of giving investment opportunities to E included in the facts charged in paragraph (1))

As described in paragraph 1-A(1) of the above acquittal part, for K in return for illegal solicitation to K, the Defendant acquired 50,000 shares of E (28.6% shares) in the name of the Defendant.

As a result, the defendant made illegal solicitation to K and provided him an investment opportunity to E in return.

(b) Property in breach of trust related to USD 20,000;

On December 2010, the Defendant issued US$ 20,00 (Korean Won KRW 23 million) to K as stated in Section 1-A (A) of the crime committed against K at the L representative director office located in Seoul, Jung-gu, Seoul, as indicated in Section 1-A (A) of the crime committed against K, that G was selected as a Ncharter and that H was selected as a 0 charter company around March 2007, and that it granted 0,000 to the meaning of solicitation for grant of preference in the future.

As a result, the defendant made an illegal solicitation about his duties to K who held office as L representative director and provided property in return.

2. Determination

A. The point of time when each of the facts charged and each of the crimes of giving rise to breach of trust as stated in the judgment

1) In a case where a person who administers another’s business receives an opportunity to participate in a project expected to receive high profit in return for an illegal solicitation, the time when the crime of taking advantage of breach of trust and capital increase is completed (see, e.g., Supreme Court Decisions 2002Do5218, Jun. 10, 201; 201Do3174, Jun. 10, 201; 2009Do9122, etc.). Of each of the facts charged in the instant case, the content of the profits a defendant provided to K in the crime of giving property in breach of trust related to E and I is not the dividend itself, but the opportunity to participate in the business. Therefore, the crime of giving property in breach of trust related to E and each related case is terminated when the defendant acquired E and I stocks for K.

2) If so, the point at which the criminal act of giving rise to breach of trust as stated in each of the facts charged and each of the facts charged is completed is as listed below.

A person shall be appointed.

(Article 1-2(b) of the Criminal Act at the time of sale)

B. Whether the crime of giving rise to breach of trust as stated in each of the facts charged in this part and each of the facts charged constitutes a comprehensive crime

1) Relevant legal principles

In cases where money and valuables have been given to a person who administers another person's business by making an illegal solicitation in connection with his/her duties and several times, they have been repeatedly made for a certain period under the single and continuous criminal intent, and where such legal benefits are the same, they shall be deemed an inclusive crime. However, if the unity and continuity of a criminal intent in several crimes are not recognized or the method of committing a crime is not the same, each crime constitutes substantive concurrent crimes (see, e.g., Supreme Court Decision 2008Do6987, Dec. 11, 2008).

2) In the instant case, in full view of the following facts and circumstances acknowledged by the evidence duly adopted and investigated by the court, it is reasonable to view that the facts charged in each of the instant facts charged and each of the instant facts charged constitute a substantive concurrent relationship rather than a single offense.

A) It is difficult to recognize the close range of time due to the interval of seven months between the crimes of giving rise to breach of trust as stated in each of the facts charged and each of the crimes of giving rise to a breach of trust as indicated in this part of the facts charged, and the interval of three years and 11 months. In particular, the point of time of the crimes Nos. 4 of the aforementioned A-4 of the above facts charged is distinguishable from the remaining crimes committed by K when it serves as L’s representative director

B) In light of each of the facts charged and each of the facts charged, the point of time of the crime of giving property in breach of trust, the content of the profits provided, etc., the profits of 50,000 shares (E share acquisition opportunity) Nos. 1 of the above paragraph (E share acquisition opportunity) appear to be primarily related to the N and the operation of the airline, and the profits of 3 of the above Table No. 3 (I share acquisition opportunity of 1 million shares) are primarily related to the acquisition of the I’s S shares. In light of these circumstances, it is difficult to view that the contents of the unlawful solicitation of each of the facts charged and each of the crimes of giving property in breach

C) Different types or contents of pecuniary gains provided by the Defendant to K are different. Therefore, it is difficult to view that the method of committing the crime of giving property in breach of trust is identical to each of the facts charged in each part of the facts charged.

According to Article 357 (2) of the Criminal Code, the statutory penalty is a imprisonment of not more than two years or a fine of not more than five million won, and the public prosecution is made in accordance with Article 249 (1) 5 of the Criminal Procedure Code.

However, it is evident that the instant public prosecution was instituted on July 5, 2016, which was five years after the completion of each of the facts charged.

Conclusion

This part of the facts charged comes under the expiration of the statute of limitations, and thus, is acquitted pursuant to Article 326 subparagraph 3 of the Criminal Procedure Act.

Judges

The presiding judge, judge and male citizens;

Judges Yoon Young-young

Judges or Jae-young

Note tin

1) Some were modified according to the facts acknowledged within the extent that does not substantially disadvantage the Defendant’s exercise of the right to defense.

2) The table of evidence in this part refers to the table of evidence in 2016 Gohap656 cases unless otherwise indicated.

3) The list of evidence in respect of this part refers to the list of evidence in 2016 Gohap950 cases.

4) Even if only the amount provided for the crime of giving property in breach of trust related to an individual office, the amount exceeds KRW 100 million. In addition, the amount of dividend benefits according to shares was referred to the sentencing.

5) Supreme Court Decision 94Do129 Decided November 4, 1994; Supreme Court Decision 2006Do1716 Decided May 26, 2006; Supreme Court Decision 2009Do9122 Decided May 26, 2006; and others.