(영문) 서울중앙지방법원 2018.12.20. 선고 2018고합647 판결

A defendant shall be punished by imprisonment with labor for one year.The charge of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) among the facts charged in this case shall be acquitted.

Reasons

Criminal facts

[Criminal Power]

On May 23, 2014, the defendant was sentenced to a two-year suspended sentence of imprisonment for a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) at the Seoul Central District Court on May 23, 201, and the above judgment became final and conclusive on March 24,

【E” is a nominal representative director of the wife B around August 10, 2015, and practically, the Defendant is a “E” in the name of the Company C (hereinafter referred to as “C”). E acquires shares 2,793,809 shares and the management right of the Company from the representative director F of the Company D (hereinafter referred to as “E”) in the name of the Company C (hereinafter referred to as “C”). After taking over shares 2,793,809 shares and the management right of the Company from F of May 11, 2017 in KRW 16.5 billion, on September 23, 2015, the Defendant takes office as the representative director of the Company and takes office as a director on March 30, 2016, and has been under the control of the Company E through G or directly, or by determining major matters related to E’s management as well as the direction on the operation of the Company’s funds.

On April 29, 2016, the expiration date of the period of exercise of the E preemptive right owned by C (the 5th non-registered private equity loan typeed on May 29, 2013). However, at the time of stock acquisition, the Defendant conducted the method of “the 12 billion won out of the exercise amount of the preemptive right at the time of stock,” i.e., the 12 billion won out of the 12.5 billion won of the exercise amount of the preemptive right at the time of stock,” and conspired with H, etc. to return the said money, under the name of C, by pretending that the Defendant paid the money borrowed to H as the subscription price for new stocks in the name of C, and obtained permission from J (hereinafter referred to as “J”) for accounting division.

1. The amount of 8 billion won paid-in price on April 27, 2016;

On April 27, 2016, from around 16:13 to 16:42, the Defendant deposited eight billion won (8 billion won) borrowed from Ha in the 3-dong branch of an enterprise bank in 49-5, Songpa-gu, Songpa-gu, Seoul, in the name of C, into the e-company bank account (K) for the exercise of preemptive rights, and deposited eight thousand won (82.50 billion won) from the said bank in the name of 8,249,94,907 shares payment certificate (one share amount) issued from 8,249,97,907 shares payment certificate (6,359 won, 1,297,373 shares payment certificate), and sent Ha with the company bank account, seal imprint, and personal seal impression certificate, etc. around that time, I sent the account books in the name of J bank (M), corporate seal imprint, etc.

around 09:52 on April 28, 2016, the Defendant collected KRW 8 billion deposited in the company bank account at the 3rd Dong branch of the company bank, and deposited KRW 4 billion from among them to the above J bank account. From around 10:30 on the same day, H was returned pursuant to the agreement by withdrawing a total of KRW 4 billion from the above J bank account at around 10:40,000,000,000 from the above J bank account in Songpa-gu, Seoul. The Defendant had H keep the remainder of KRW 4 billion from the K bank account. On May 4, 2016, the Defendant had H deposit in the name of the E P bank in the name of the E P bank, and returned KRW 4 billion from the above Samsungdong account in Seoul, as agreed in the agreement to withdraw the total of KRW 4 billion from the above P bank account.

Accordingly, in collusion with I, H, etc., the defendant pretended to pay 8 billion won of E's stock price.

2. Subscription price of April 28, 2016: 4 billion won;

At around 18:00 on April 28, 2016, the Defendant deposited KRW 4 billion in the account of the said E company bank in the name of C in the name of KRW 5 billion for the exercise fund of preemptive right to new stocks (42.50 million), and issued a certificate of deposit of shares of KRW 4,249,99,496 from the said bank (one share 6,359, 668,344 shares) from the said bank to H with the corporate bank account, seal imprint, certificate of personal seal impression, and certificate of personal seal impression, and deposited the money deposited in the E account at the three-dong branch of the said company bank into a cashier’s checks on April 29, 2016, and had H keep the money deposited in the E account at the three-dong branch of the said company bank.

Since then, the Defendant heard the horses that he should use the check before the half-year audit period from H, and again asked I to do so, and received J’s account, corporate seal imprint, etc. around June 17, 2016. Defendant, H, and G deposited KRW 3.25 billion in the J bank account in the name of Samsung Bank under the name of Samsung Bank’s name at the 170-9 branch in Gangnam-gu Seoul, Gangnam-gu, Seoul, at around 15:45 on the same day, H deposited KRW 3.25 million in the J bank account at the K Bank’s branch in Gangnam-gu, Seoul, and returned KRW 3.25 million in total at the J Bank’s corporate center in Gangnam-gu, Seoul (the Defendant, on the other hand, established a pledge on KRW 1,297,373,000,000,000,000 from the J Bank’s branch in lieu of the preemptive rights exercised under paragraph (1) on May 16, 2016.

Accordingly, in collusion with I, H, etc., the defendant pretended to pay the E share price of KRW 4 billion.

Summary of Evidence

1. Defendant's legal statement;

1. Examination protocol of the accused by prosecution;

1. Statement made by the prosecutor in relation to T or H (or part of the statement made by the prosecutor);

1. (States) The exercise of preemptive rights (No. 10 No. 10) (No. 27 April 2016)

1. (States) The exercise of preemptive rights (No. 11 No. 11 of the evidence list) ( April 28, 2016);

1. A statement of tracking the exercise of the right to underwrite new stocks of KRW 82.5 billion on April 27, 2016 (Evidence No. 42 No. 52 of the Evidence List) 1. A statement of tracking the exercise of the right to underwrite new stocks of KRW 42.50 million on April 28, 2016 (Evidence No. 43 of the Evidence List)

1. The details of transactions No. 81;

1. Previous offense: Criminal records and protocol of examination of the suspect against the defendant (No. 36 No. 54);

Application of Statutes

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

According to Articles 628(1) and 622(1) of the Commercial Act and Article 30 of the Criminal Act [Judgment as to whether a person concurrently commits an offense under the latter part of Article 37 of the Criminal Act] The records of this case are as follows: ① a defendant was sentenced to a two-year suspended sentence for 8 months from the Seoul Northern District Court on December 24, 2015 (No. 2016) and the judgment becomes final and conclusive on July 15, 2016; ② The crime of this case and the crime of this case committed by the Seoul High Court on August 23, 2013 and the crime of this case committed on April 6 to June 10, 201, which were sentenced to a two-year suspended sentence for 2 years before the judgment became final and conclusive on October 31, 2013 (C) and thus, there were no two-year suspended sentence for 2 years from the Seoul Northern District Court on May 23, 2014.

1. Summary of the defendant and his defense counsel's assertion

이 사건 최초 공소장의 범죄사실 첫머리에는 범죄사실과 무관한 내용과 피고인을 '전형적인 기업사냥꾼'으로 묘사하는 표현이 기재되어있는데, 이는 법령이 요구하는 사 항 이외의 기재로서 법관에게 예단을 생기게 하여 법관이 범죄사실의 실체를 파악하는 데 장애가 될 수 있다. 따라서 이 사건 공소제기는 공소장일본주의를 위반한 것이므로 '공소제기의 절차가 법률의 규정에 위반하여 무효인 때'에 해당한다고 보아 공소기각 판결이 선고되어야 한다.

2. Determination

A. The issue of violation of the principle of an indictment only (Article 118(2) of the Rules on Criminal Procedure) shall be specifically determined in the relevant case in light of the type and content of the crime as stated in the facts charged, based on whether the facts recorded in the indictment, other than those required by law, may hinder the judge or jury from understanding the substance of the crime by making the judge or juror open to prejudice the facts (see, e.g., Supreme Court en banc Decision 2009Do7436, Oct. 22, 2009).

B. Examining the following facts and circumstances based on the evidence duly admitted and investigated by the court in light of the aforementioned legal principles, there are some inappropriate parts in the initial indictment (the prosecutor submitted a written amendment of indictment to delete the part of the Defendant’s assertion as to whether the Defendant is dismissed on the date of the first trial date, and the above application was permitted on the second trial date). However, it is difficult to deem that the court may interfere with understanding the substance of the crime. The Defendant’s assertion on this part is rejected.

① 이 사건 최초 공소장은 범죄사실 첫머리에 "피고인은 사채업자로부터 고리의 단기사채를 이용하여 코스닥 상장사를 무자본으로 인수한 후 속칭 '찍기' 방식의 유상증자 또는 신주인수권 행사를 통해 다량의 불법적인 주식을 확보하고, 회사에 들어온 자금을 마치 유망한 사업에 투자하는 것처럼 가장하는 등 허위 공시하여 주식시세를 조정하고, 외형상 회사의 가치를 부풀려 다시 기업을 양도하거나 결국에는 자본잠식 등으로 상장 폐지에 이르게 하는 전형적인 기업사냥꾼이다."라고 기재하였다.

② 이 사건 최초 공소장의 범죄사실 첫머리 기재는 아직 유무죄가 확정되지 않은 공소사실을 토대로 피고인을 '전형적인 기업사냥꾼'으로 단정하였다는 점에서 부적절한 측면이 있다.

(3) However, the first head of the first indictment appears to have an overall aspect of the criminal intent or conspiracy of the defendant, and the motive or circumstance leading to the crime as stated in the facts charged, etc. In light of the above, the first head of the first indictment does not seem to have a sufficient degree to obstruct the judge in understanding the substance of the facts charged.

1. The grounds for sentencing: Imprisonment with prison labor for not less than one month but not more than five years;

2. Scope of recommended sentences according to the application of the sentencing criteria: The sentencing criteria are not set;

3. Determination of sentence: The one-year payment of imprisonment is an act that greatly undermines the equity balance of the company, the trust of creditors, shareholders, etc. of the company, and in particular, in the case of listed companies such as the company E, the harm therefrom is greater, and the damage therefrom is also broad. The amount of the most paid-in share capital of the defendant is 12 billion won. Since the one-year period after the instant crime was committed, E has not elapsed, causing significant damage to creditors, shareholders, etc. of the company due to the abolition of the listing. The defendant has multiple criminal records, and even though he had been under suspension of execution at the time of the instant crime, the instant crime was committed.

These circumstances are disadvantageous to the defendant.

In addition, all the sentencing factors, such as the defendant's age, character and conduct, environment, motive, means and result of the crime, and the circumstances after the crime, shall be determined as ordered in comprehensive consideration.

The acquittal portion

1. Summary of the facts charged

On August 10, 2015, the Defendant paid KRW 8,250,000,00 as contract deposit and first intermediate payment in the process of acquiring E shares, E shares, 2,793,809 shares, and the management right of the Company from F in the name of F in the name of F in the name of 16.5 billion won, and loans KRW 4,50,000,000,000,000,000,000,000,000,000 won, which were previously borrowed from E in the name of F in the name of F in the name of U.V.

F is the representative director in charge of the management of E and has a duty to preserve and manage the company's property so that the above company does not impair the value of the bonds held by him/her, etc.

Nevertheless, on September 8, 2015, F took over the debt amount of KRW 4.5 billion from the Defendant at C and took charge of all the problems arising from the outstanding claims. By cancelling the Scro contract, F terminated the contract and at the request of E to withdraw KRW 4.5 billion, F terminated the contract without any security measures or collection measures against the above Scro 4.5 billion won, F made it possible for the Defendant to freely recover the debt amount of KRW 4.5 billion to use the loan amount of KRW 4.5 billion against E after acceptance, and to compensate for losses by establishing an allowance for bad debts as of December 31, 2015. Accordingly, the Defendant, in collusion with F, caused the victimized Company E to incur damages equivalent to the amount of the debt amount of KRW 4.5 billion, and had C gain the same economic benefits as the amount of the debt amount.

2. Determination

A. According to the evidence duly adopted and examined by this court, the following facts are recognized. Such facts are generally consistent with this part of the facts charged, and the Defendant also acknowledges all such facts.

① On August 10, 2015, the Defendant entered into a contract for acquisition of shares and management rights to acquire E shares from EF’s representative director’s 2,793,809 and company management rights (i.e., one right 464 pages). The Defendant and F deposited 4.5 billion won in the account under the name of E’s agent (U.S.) on the same day, but the transferee (C) entered into an agreement with E in order to pay 4.5 billion won in lieu of loan obligations (4.5 billion won) to E (i.e., F., transfer of 4.5 billion won to E’s account if it is objectively confirmed that he/she acquired management rights, and (ii) the Defendant paid 4.5 billion won to the transferee of the instant bonds (i.e., 600 billion won). On September 8, 2015, the Defendant agreed to pay 1.5 billion won to the transferee of the instant bonds (i.e., XF., loan obligations).

① After February 2 to 3, 2016, when preparing an audit report on E, the accounting firm prepared a written confirmation to the effect that the pertinent loan obligation of F, etc. was repaid by F, the Defendant, and the Defendant: (a) based on this, E shall account for repayment of F, etc.’s loan obligation in 2015 and re-loaning KRW 4.5 billion to C in the same year; (b) the allowance for bad debts on the above loan obligation of F, etc. was set up (1st page 90). The instant facts charged on the premise that F, as the representative director of E, has occupational duties to not terminate the contract without taking any security measures or taking collection measures against E’s deposit; (b) on the premise that F, in violation of this duty, has actively participated in the breach of trust and the Defendant’s active participation in the breach of trust.

C. However, even if all of the above facts are recognized, in light of the following circumstances acknowledged by the evidence duly adopted and investigated by this Court, it cannot be deemed that the F has occupational duties not to terminate the F’s contract with E without taking measures to guarantee or recover the E deposit, and the Defendant may not be the accomplice in the crime of breach of trust unless the crime of breach of trust is established against F.

The instant agreement for acquisition of the shares and the right of management was concluded by the transferor (F) as not the representative of the company but with the status of the largest shareholder (in cases where the right of management is transferred from the transferor to the transferee of the shares, the transfer of the right of management is merely an incidental effect following the transfer of the control shares (see, e.g., Supreme Court Decision 2013Da29424, Oct. 27, 2014). In addition, the instant agreement was concluded between the transferor (F) and the transferee (C) to determine the method of payment of some of the purchase price under the said agreement for the transfer of the shares and the right of management. Accordingly, as a result, the said agreement is naturally determined by the agreement between the transferor (F) and the transferee (C).

B. The content of the Scro contract is that the transferee (C) pays 4.5 billion won to the transferor (F) after objectively confirmed that he/she acquired the management right of E, and pays 4.5 billion won to the transferor (F), instead of directly paying to the transferor (F). The above content is determined because it is difficult to secure fulfillment of the F’s obligation to transfer the management right if he/she fully pays the purchase price before acquiring the management right, and it is difficult to secure fulfillment of the F’s obligation to lend the loan to E, such as F, if he/she directly pays the total purchase price after acquiring the management right.

In other words, the Escro contract is concluded between the transferor(F) and the transferee(C) for the benefit of the transferee.

C. The legal nature of the terms and conditions of the contract is the acceptance of performance under the Civil Act. In other words, whether the underwriter (C) bears the obligation to repay the loan obligation to E, such as F, to the obligor (F), or not to the obligee (E) directly. Therefore, the above contract cannot be deemed as having acquired a security right or any other right. In addition, the Defendant promised that the “C” in the name of F, upon requesting the termination of the contract, is liable for the loan obligation to F, etc., for F, and that the underwriter (C) is liable for the loan obligation to F, etc., but it is merely the promise of the obligor (F) to renew the performance of the performance acceptance, such as the terms and conditions of the contract.

However, in light of the investigation record 601 pages 601, and other contents of the undertaking (including the time limit for the payment of the purchase price, the resignation of the director appointed by the transferee to the transferor) and other contents of the undertaking, it is reasonable to see the above undertaking as an expression of intent of the transferor F in terms of the acquisition and transfer of shares and management rights, not the receiver's representative director F. It is reasonable to see that the above undertaking cannot be deemed as an expression of an exemption from liability to E, and that there is no evidence to see that E was an expression of intention of acquisition and transfer of management rights (or, even if it was an exempted expression of intention to E, it is difficult to see that E was an expression of intention of acquisition and transfer of management rights, and that E did not accept the above obligation of the witness at the same time as 4.5 billion won, and that E did not accept the obligation of the witness at the same time.

Around February 3, 2016, when the settlement of accounts for E, etc. with loans to E, etc. has been changed with loans to C in the course of audit report preparation by the Defendant and F, even if the Defendant and F cancel the Sc contract and withdraw the deposit, it does not affect any loan claims for E, etc... The fact that the settlement of accounts for E, etc. has been changed with loans to C is based on a written repayment confirmation prepared by the Defendant at that time (whether it can be deemed that the obligation for loans was exempted solely on the basis of the preparation and accounting of the written repayment confirmation is a separate issue), and there

The allowance for bad debts is established in order to dispose of the amount anticipated to be impossible to recover out of the bonds held by the company as the cost, and the establishment of the allowance for bad debts does not mean that the company waives its claims. Therefore, it cannot be interpreted that, in the course of preparation of an audit report on February 3, 2016, setting the above loan claims as the allowance for bad debts in the accounts would exempt E from the loan obligations to C. Considering that, upon setting the allowance for bad debts, E would be placed in a more difficult situation in management, there is no reason to instruct the Defendant to set the above loan claims as the allowance for bad debts (the setting of the allowance for bad debts seems to be in accordance with the request of an accounting firm). The conclusion is that: (a) the allowance for bad debts is set up in the accounting report

Since this part of the facts charged constitutes a case that does not constitute a crime, it is sentenced to innocence pursuant to the former part of Article 325 of the Criminal Procedure Act, and the summary of the judgment of innocence pursuant to Article 58(2)