(영문) 부산지방법원 2012.9.14.선고 2012고합602 판결

From March 15, 2001 to December 26, 2003, the Defendant served as the representative director of the company located in ○○-dong, Busan Metropolitan Government, ○○○-○, and thereafter served as a director of the said company until November 26, 2009. From July 28, 2009, the Defendant’s ○○, who is an infant of the said company, was in charge of the representative director of the said company, was in charge of the said company’s management through the above ○○, thereby exercising a substantial control over the company’s business affairs, such as the execution of funds, by taking part in the management of the said company.

Defendant around September 2, 2009: (a) an account number of 00-00-000 and 00-000-000-00 (each new day) issued by the said branch at the point of Saturdays of ○ Bank located in Busan-dong ○○dong (○○ Bank located in ○○dong, Busan-dong) around September 2, 2009

9.2. On September 2, 2010, the due date of maturity, 1.5 billion won at face value, 1,563,04, 719 won at face value, and 1,563,04,719 won at face value) was kept in business for ○○ Stock Company. On September 2, 2010, the Defendant’s wife ○○ had ○○ exchange this in cash, and embezzled the total amount of the company’s funds by arbitrarily consuming the exchanged cash for personal purposes, such as apartment purchase funds.

Summary of Evidence

1. Defendant's legal statement;

1. Each prosecutor’s protocol on the ○○○○, ○○○, ○○○, and ○○○;

1. Each investigation report (report attached to an audit report, attaching negotiable deposit certificates related data, attaching data related to ○○○○○○ Provisional Deposit, submitting a report attached to shareholders’ status, such as ○○○○○, etc., submitting a report attached to negotiable certificates of deposit, and submitting a report attached to a certified copy

1. Application of the certified transcript of register or notification Acts and subordinate statutes;

1. Article applicable to criminal facts;

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 356 and Article 355 (1) of the Criminal Act [However, the upper limit of the punishment shall be governed by the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010 and enforced October 16, 2010)]

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

Reasons for sentencing

[Scope of Punishment] Imprisonment with prison labor of one year and six months to seven years and six months

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

[Special Aggravationd Persons] Special Mitigations: Substantial one company or family company, not having been punished, or where significant damage has been recovered.

[Scope of Recommendation] nine months to three years (Specially Adjusted Reduction Areas)

[Scope of the revised Recommendations] Imprisonment from 1 year and 6 months to 3 years (which shall be subject to the applicable sentences)

[Decision of Sentence] One year and six months of imprisonment with prison labor is that the defendant was in actual representative status of the damaged company. After exchanging negotiable certificates of deposit with face value of 3 billion won and 3 billion won, the defendant arbitrarily used them for private purposes and embezzled them. The defendant committed the crime of this case in 1 year and six months in 2004 (the beginning of the crime of this case was two years after the suspended period of execution was over). In light of the fact that the defendant had been in actual status of the victimized company, even though the defendant was in custody for the above company, it appears that the company and shareholders were separate character, and the funds of the company are related to the interests of many interested parties such as creditors, officers and employees, etc., and it seems that it still appears that the defendant still did not receive the above funds from the company after the completion of the crime of this case, considering the fact that the defendant did not have been subject to punishment for the crime of this case, it appears that it still appears that the defendant still did not have been in considerable financial support as to the above company's own capital even after the execution of the crime of this case.

However, it is decided as ordered in consideration of the fact that the defendant recognized a crime, the fact that the defendant seems to have returned the embezzlement to the damaged company, and other various sentencing conditions such as the defendant's age, character and conduct, environment, and circumstances after the crime.