(영문) 서울중앙지방법원 2017.4.27. 선고 2016고합1209 판결

1. The victim E, a company in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter referred to as the "victim E") is a company engaged in the manufacturing, processing, and export of public machinery and precision equipment, and the defendant has been engaged in the export of public machinery in the damaged company since 2012 as the director of the division of the machinery business.

The defendant, who deals with the export business of industrial machinery of the injured company, has an occupational duty to carry out the export business after setting up the insurance policy of the Korea Trade Insurance Corporation through the review of credit rating and the insurance limit of the importing company, but has not been able to set the export insurance limit because of the bad financial soundness in violation of his duty, was unreasonablely exported to the injured company, etc.

On July 7, 2014 and March 1, 2015 of the same year, the Defendant exported 68 of the total amount of 14,992,40 U.S. dollars to “H (other companies than documentary importers)”, which is an importing clearance company in the People’s Republic of China, with low credit rating through “G” without being subject to insurance policy and internal decision-making at the offices of victimized companies located in Jung-gu Seoul, Seoul, and with low credit rating, which is less likely to collect funds. The Defendant exported 68 of the total amount of 2,924,00 U.S. dollars, which is owned by the victimized company, from August 5, 2013 to March 1, 2015.

As a result, the Defendant had H et al. obtain property benefits equivalent to USD 14,92,40 (E 15,972,321,841) in total, and suffered damages equivalent to the same amount in the damaged company.

2. Forgery of private documents and the uttering of falsified private documents;

On August 2013, at the office of the victimized company listed in the preceding paragraph, the Defendant had the intent to export arbitrarily works machinery owned by the victimized company, such as the entry in the preceding paragraph, prepared and printed out a joint contract for sales of machinery and appliances, which entered the contents that the above E exports 50 machinery to the "I" by using a computer, and then arbitrarily sealed the seal of the above E in the way that it is copied into the picture file and affixed it to the "Stilers E", and delivered it to the staff in charge of I who knew of the forgery.

As a result, the Defendant, for the purpose of uttering, forged the sales contract in the name of the above E, which is a private document related to rights and obligations without authority, and used it thereafter, and forged and exercised 18 copies of the private document in the name of E, a private document related to rights and obligations, from June 2016, as shown in attached Table 2.

Summary of Evidence

【One point in the market】

1. Partial statement of the defendant;

1. Fourth prosecutor's protocol of interrogation of the accused;

1. Each prosecutor's statement concerning J, K and L;

1. A personnel record card, stock company E in 2014, and each discretionary decision provision in 2015;

1. Public disclosure of credit information of each company, credit investigation report, and credit assessment report (Evidence Nos. 3, 4, 84 through 88, 213, 214);

1. The export supplement list of each business item (Evidence Nos. 8, 11, 14, 91 through 94);

1. Each export-related document (Evidence Nos. 9, 10, 12, 13, 15, 16);

1. Each contract (Evidence Nos. 35, 37, 40, 41, 71, 76, 78, 81, 82, 192 through 194);

1. Each customs document (Evidence Nos. 38, 39, 42, 77, 79, 80, 83, 138);

1. Each e-mail (Evidence Nos. 102, 152, 154);

1. Reorganization data related to export insurance, and trade insurance exemption and collection cases;

1. Data related to M, H, and N (Evidence Nos. 124 through 126);

1. An official document verifying 0 years (Evidence Nos. 215);

1. Investigation report (Evidence Nos. 106, 108, 137, 191, 199);

1. Submission of P data and reference materials (Evidence Nos 176, 180);

[The second point in the market]

1. Defendant's legal statement;

1. Each prosecutor's protocol of statement against J and K;

1. A complaint (Evidence Nos. 201);

1. Each contract and each document (Evidence Nos. 24, 26, 35, 37, 41, 73, 74, 76, 78, 82, 159, 160, 162, 163, 192 through 194, and 202 through 212);

1. Data on Q-related mail;

1. Submission of P data (Evidence No. 176);

1. Data related to M, H, and N (Evidence Nos. 124 through 126);

Application of Statutes

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

Article 3(1)1 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 13719, Jan. 6, 2016; hereinafter the same) Article 3(1)1 of the same Act, Articles 356 and 355(2) of the Criminal Act (with regard to occupational breach of trust, including occupational breach of trust), Article 231 of the Criminal Act (the occupation of the private document concerned, the choice of imprisonment), Articles 234 and 231 of the Criminal Act (the use of the private document, the choice of imprisonment), Articles 234

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravated Punishment of Specific Economic Crimes, which is the largest penalty, shall be aggravated for concurrent crimes prescribed by the Act on the Punishment, etc. of Specific Economic

Judgment on the argument of the defendant and his/her defense counsel (the part concerning criminal facts in the market)

1. Summary of the assertion

As stated in the facts of the crime in the judgment below, the Defendant exported industrial machinery at a price of about 10 to 12% higher than US$ 35,00 (hereinafter referred to as US$), which is a general mechanical price, to each baler company that exported industrial machinery as stated in the judgment of the court below (hereinafter referred to as "balone of this case"). The two of this case was recognized as a normal export transaction with the victimized company, and both of this case was recognized as a normal export transaction with the victimized company, and expressed its intent to fully recognize the claims for export of the industrial machinery and to repay it. Thus, the Defendant's act cannot be deemed as having caused property profit.

In addition, the defendant exported the public machinery of the damaged company as stated in paragraph (1) of the criminal facts in the judgment of the court in order to minimize the damage of the victimized company, because the transaction with I, the beginning of the large public machinery project promoted to grow up the damaged company's public machinery project, has caused problems such as delayed payment of the outstanding amount, etc., and it was an act for the victimized company, and therefore there is no intention of breach of trust.

2. Determination

A. Relevant legal principles

In addition to causing property damage to the principal, the crime of breach of trust requires that an actor, or a third party acquire property benefits by committing an act of breach of trust (see, e.g., Supreme Court Decision 2006Do3145, Jul. 27, 2006).

In the crime of breach of trust, the intent of the crime of breach of trust does not require the awareness that the principal causes or is likely to cause property damage to the principal as a result of the act of breach of trust, and there is an awareness that the principal or a third party obtains property benefits, the purpose of the crime of breach of trust is sufficient and that there is an intention to cause property damage to the principal or a third party to obtain property benefits to the principal (see, e.g., Supreme Court Decision 2004Do810, Jul. 9,

B. Determination

In light of the following circumstances acknowledged by evidence at the above time, the defendant's intent of the defendant's breach of trust shall be sufficiently recognized, since the defendant's act of breach of duty is the victim company's awareness that the fishery of this case acquired the benefit of the fishery of this case and suffered the loss to the victim company, without obtaining internal approval as if he exported the public machinery on the document, and without preparing the method of securing the price, had another person arbitrarily exported the public machinery, and had another person undergo the normal transaction procedures of the victimized company as a result of exporting the public machinery, the fishery of this case which cannot be supplied with the public machinery was supplied without normal contract relations, and the fishery of this case was supplied with the public machinery without normal contract relation.

1) Whether property gains are acquired

① According to the pre-sale regulations of the victimized Company, the content of the transaction, including information about the transaction, such as the former office, sales office, volume of goods, and amount, prior to the conclusion of the contract, is subject to prior approval of the approving authority, such as the representative director and the chief of the division. In order to request the Korea Trade Insurance Corporation to assess the credit rating of the purchasing authority in the process of prior approval, and to determine whether to approve the purchase and the transaction of the export insurance taking into account the result of the request. Specifically, when the victimized Company requests the Korea Trade Insurance Corporation to assess the credit rating of the foreign loan, the Korea Trade Insurance Corporation shall divide the credit rating of the company from Grade A to Grade G and then set the limit of the export insurance after the injured Company makes an application for each grade. The damaged Company shall make a transaction as much as the sum of the export insurance limit and the credit credit limit after purchasing the export insurance limit after entering into the export insurance under the above export insurance limit. Meanwhile, when exporting the Chinese industrial machinery to China, the Korea Trade Insurance Corporation shall provide credit rating to the importing company through the revenue company (0 or G) in this case).

② However, since the Defendant arbitrarily selected the instant loan as a trading partner, but did not evaluate the credit rating of the Korea Trade Insurance Corporation with respect to the instant loan prior to the supply of official machinery. An insurance accident related to the export of the instant loan on the premise that the Plaintiff is a contracting partner cannot be covered by the insurance on the premise that the Plaintiff is a contracting partner. In the absence of the Defendant’s act of breach of duties, it is clear in light of the empirical rule that the victimized company did not undergo ordinary export transaction procedures, and that the instant loan, which did not form contract relations, did not export the official machinery to the instant loaner.

③ At the time of concluding the export contract with S around April 2013, the injured company was an enterprise owned by T in China, taking into account S, I, U, and V, and finally reviewed S with a higher credit rating C, and concluded a contract by selecting S with a higher credit rating. Unless there are special circumstances, if the Defendant had gone through the export procedure prescribed by the internal decision of the victimized company, etc., the victimized company would have not been able to receive the supply of the public machinery from the victimized company (in the case of No. 1, No. 1, and No. 2 of the Schedule 1 of the crime List), and the Korea Trade Insurance Corporation assessed the credit rating of the Korea Trade Insurance Corporation on December 1, 2016, the grade was set to E.

④ As to M on June 25, 2014, the Korea Trade Corporation determined each credit assessment of S on November 29, 2016 as F grade. F grade falls under USD 300,000 to USD 400,00 among normal acceptance grade. The Defendant supplied each public work machinery of USD 1,704,000, which considerably exceeded the F’s limit, to M M, 2,039,400 as indicated in Category 3, 4, 16, or 18, as indicated in Table 16, or 18.

⑤ On November 21, 2014, the Korea Trade Insurance Corporation assessed N on May 17, 2016, the credit rating of each of the above companies was considered to be G in excess of normal underwriting grade. In light of this, if the Defendant had undergone the export procedure prescribed by the Korea Trade Insurance Corporation, such as the procedure for credit assessment, etc., the N and H would not have been supplied by the victimized company, barring special circumstances.

6) Even in the case of [Attachment 1] Nos. 7 and 7 of the List of Offenses, the supply of the attached Table cannot be accurately known to the other party. If the non-party was to undergo the normal export procedure of the victimized company, it is not deemed that the non-party could have been supplied with the above public machinery from the victimized company through withstanding in China.

7) Nevertheless, the Defendant violated his duties and caused the fishery of this case to be supplied with the industrial machinery of the damaged company as shown in the annexed crime sight table 1. It is reasonable to deem that the fishery of this case acquired the economic benefits equivalent to the value of the industrial machinery (the export price may be viewed as its value).

2) The intent of the crime of breach of trust

① From around 2012, the Defendant was in exclusive charge of exporting industrial machinery of the victimized company. The Defendant ordinarily accompanied by the purchase by the export insurance of the Korea Trade Insurance Corporation. As such, the Defendant appears to have been aware that there were the above-mentioned procedures for exporting export transaction of industrial machinery by the victimized company at the time of the instant crime, and that in the event of export transaction in violation of this, the export insurance would not apply to export transaction, and that there is possibility that the victimized company may incur damage entirely

② As seen earlier, the Defendant had been in the position of being unable to be supplied with an official machine from the victimized company in accordance with normal export transaction procedures due to low credit rating. However, in supplying an official machine to the instant Ba, the Defendant obtained internal approval by stating falsely the approval letter, commercial invoice, and export customs clearance documents, such as a bill of lading, and the date of shipment. In light of this, it seems well-known that if the Defendant underwent normal procedures at the time of committing the instant crime, it would be difficult for the Defendant to be provided with an official machine from the victimized company.

③ The Defendant demanded to change the term “I” in order to benefit from the company’s performance at the Dong-si where S, a S, an operator of the company, was located. A considerable portion of the official machine was produced. Since S expressed his/her intent to invest in the W Limited Corporation (hereinafter “W”) which is a Chinese corporation of P (the supplier of the damaged company), he/she inevitably changed the term to supply the official machine, and on the premise that the damaged company was S, subscribed to the export insurance of the Korea Export Insurance Corporation on the premise that S was S, and thus, the victimized company did not notify the victimized company. However, if the contract with S was finalized, it cannot be said that there was a reason to change the terms, barring special circumstances, even if the contract with S received the above request, and if there is no need to change the terms and conditions, it is reasonable to view that the Defendant could have arbitrarily obtained the risk of property damage to the victimized company without obtaining an internal approval of the damaged company. This does not necessarily mean that there is no possibility that the Defendant would have to receive the risk of property damage.

④ In addition, the Defendant alleged that, after committing the crime Nos. 1 and 2 in the crime list Nos. 1 and 2, the Defendant independently promoted the provision of official machinery to BYD companies located in China, which caused damage to the damaged company due to failure to receive the sales proceeds of the official machinery from I, and that the Defendant promptly disposed of it without due process because it was difficult to cope with the storage fees of the official machinery in the port. However, even if the Defendant’s internal review conducted the supply of the official machinery to BYD solely in violation of the export transaction procedure of the victimized company, the reason why the supply of the official machinery to BYD was promoted, or that the supply of the official machinery was nonexistent and the increase in storage fees increased, the Defendant did not inform the victimized company of the reason why the Defendant provided the above official machinery to BY companies, but without any reasonable explanation, the Defendant did not seek for the reason why the Defendant had been partially supplied to BYD companies (the Defendant’s decision that the inside review of the victimized company did not proceed with the above decision that the Defendant’s intent to supply it did not proceed with the damage).

⑤ Therefore, it is reasonable to deem that the Defendant, as seen above, recognized that property benefits and property damage would occur to the damaged company at the time of the act of violating the duties such as exporting public works machinery through false approval, etc.

Reasons for sentencing

1. Scope of applicable sentences under law: Imprisonment for not less than five years to 45 years;

2. Scope of recommendations according to the sentencing criteria;

[Determination of Punishment] Embezzlement and Breach of Trust, Type 4 (at least five billion won, but less than thirty billion won)

【Special Exemplarys】 Where the method of committing a crime is extremely poor; 1)

[Scope of Recommendation] 5 years to 8 years (Aggravated Field)

3. Determination of sentence;

The defendant committed the crime of this case by disregarding the approval procedure of the damaged company or exporting the industrial machinery at will with the internal approval by using false documents, etc. even though the director in charge of exporting the public machinery of the victimized company had the duty to handle the affairs for the damaged company, and the defendant attempted to actively conceal his criminal act by forming the appearance of negotiating the injured company and the attempted bonds on the ground of false Chinese company after the commission of the crime of this case was discovered. As a result, the amount of the injured company's claim for the export price and the other party's identification are delayed, making it difficult to recover the damage more difficult, the damage amount of the victimized company due to the breach of trust of this case exceeds 15 billion won, and the amount of the damage amount of the damaged company due to the unlawful act of this case exceeds the amount of 15 billion won, and it is reasonable that the damaged company wants to punish the defendant. In light of the fact that the victimized company wants to do so.

However, in full view of the following factors: (a) the Defendant paid part of the amount of damage to the damaged company by requiring the fishery of this case to pay part of the amount of export price of the official machinery; (b) the Defendant has no record of criminal punishment; and (c) the Defendant’s age, character and conduct, family relation, motive and means of the Defendant’s criminal act; and (d) the circumstances after the criminal act

It is so decided as per Disposition for the above reasons.

Judges

For the presiding judge or judge;

The same judge's identity

Judges Lee Young-young

Note tin

1) Since the crime of forging a private document is accompanied by the crime of forging a private document in the course of committing a crime of breach of trust, it shall not be treated as a majority crime, and it shall be treated as a sentencing factor (where the method of committing a crime is very poor).