(영문) 서울중앙지방법원 2018.7.13. 선고 2018고합174 판결

Defendant A shall be punished by a fine of KRW 2,500,000, and a fine of KRW 5,000,000, respectively. In the event that the Defendants did not pay the above fine, the Defendants shall be confined in the workhouse for the period calculated by converting each of the above fines of KRW 100,000 into one day.

To order the Defendants to pay an amount equivalent to the above fines.

Reasons

Criminal 1)

1. Defendant A

On July 18, 2017, the Defendant was sentenced to nine years of imprisonment with labor for a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, etc. (hereinafter referred to as the "Seoul High Court"), and entered a stock company (hereinafter referred to as the "C") on December 22, 2017, and entered the ship business head from February 20, 2006 to March 31, 2009, the captain of the ship business division from April 1, 2009 to December 31, 2010, the captain of the business division from January 1, 201 to March 29, 201, and worked as the president of the business division from March 30, 201 to December 20, 2012, and was working as the largest shareholder from March 30, 2015, and from March 25, 2012 to March 28, 2012.

On the other hand, the D Bank held 31.26% of the total number of C issued stocks and held 19.11% of the F, and was in the position of the parent company securing the majority of C's shares (50.37% of the shares). E actually has the right to appoint the C's representative director as the head of the D Bank, set the goals of major management indicators, such as net income, sales profit ratio, shipping profit ratio, and vessel price, and set C's agenda items. C's agenda items are approved in advance, and C's agenda items are reported from time to time, and after concluding C and MOU, determined whether C's performance was paid and sanctions against executives and employees after ex post evaluation, and exercised extensive and strong influence over C's overall management by presenting guidelines, etc. for future management direction through the early business management committee in the following year.

E received a solicitation from the H Chairperson I on December 201 to January 2012, 201, to the effect that, in the situation where it is necessary to appoint a successor representative director of G of C who is scheduled to terminate the term of office on March 29, 2012, the current executive is suitable A with abundant experience and business experience in the JJ as a new representative director of H I who was requested by A, and even from G on January 26, 2012, he/she also received a solicitation from G to the effect that “A is to be appointed as a successor representative on January 26, 2012.”

After February 8 to 13, 2012, E. 2, the 20th executive officer of the 3rd executive officer of the 3rd executive officer of the 2nd executive officer of the 3rd executive officer of the 2nd executive officer of the 3rd executive officer of the 2nd executive officer of the 2nd executive officer of the 2nd executive officer of the 2nd executive officer of the 2nd executive officer of the 2nd executive officer of the 2nd executive officer of the 2nd executive officer of the 2nd executive officer of the 2nd executive officer of the 3nd executive officer of the 2nd executive officer of the 2nd executive officer of the 2nd executive officer of the 3nd executive officer office, and the 2nd executive officer of the 2nd executive officer of the 2nd executive officer of the 2nd executive officer office of the 2nd executive officer of the 3th executive officer office of the 3th executive officer office, the 2nd executive officer of the 2nd executive officer office of the 2nd executive officer.

Accordingly, the Defendant agreed to the above E-1 to the effect that it is difficult for the Defendant to refuse the request of the E-B President to exercise strong influence on the overall management of C. 20, and that E-B would suffer disadvantage or disadvantage in the process of the board of directors and shareholders’ meeting for the appointment of the representative director, and that E-B would remove itself as the board of directors and the representative director at the shareholders’ meeting on March 30, 2012, and that E-B request was made to the effect that 30,000 won was sent to C. 20,000 won was sent to C. 20,000 won, and that Q28,000 won was sent to C. 30,000 won was sent to 20,000 won, and that Q. 23,000,000 won was sent to 30,000 won, 30,0000 won was delivered to each member of the National Assembly.

2. Defendant B

A. Status of the defendant and E

From May 2009 to June 2012, the Defendant served as the representative director of AG Co., Ltd. (hereinafter referred to as “AG”). In overall control over the issuance of domestic and foreign bonds, corporate mergers and acquisitions, and PF loans, etc., as the president of the DG, the Defendant was in a position of exercising the right to manage and supervise AG, a subsidiary company of AH, and de facto personnel management rights to the representative director. In addition, the Defendant was in a position of selecting AG as the principal director and raising AG public confidence and personal guidance. Furthermore, the Defendant could exercise a big influence on AG’s business by determining whether the AG is a transaction with the DG, such as allowing AG to secure an enterprise being traded by the D bank as a customer. In addition, the Defendant was in a position of exercising the right to manage and supervise AG, a subsidiary company of AH, as the representative director of the AH (hereinafter referred to as “AH”).

(b) Bribery in the name of a congratulatory donation money;

Around March 201, the Defendant took office as a new president at the office of the head of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the

around March 2012, the Defendant donated support money of KRW 3 million to the National Assembly member V, W, X, Y, Z, AB from the office of the representative director of the AG located in Yeongdeungpo-gu Seoul Metropolitan Government to E by telephone from the office of the head of the AG representative in Yeongdeungpo-gu, Seoul. After the donation of support money, the Defendant was demanded to inform E that it is a support payment to contact the members of the relevant National Assembly after the donation of support money, and accepted the said demand by suggesting E to provide various convenience while performing the duties of the representative director and the head of the D president.

After that, around March 26, 2012, the Defendant informed the AI head of the AG Management Support Headquarters and the head of the planning office of the requirements and ordered the AL to donate support payments to the above 7 members of the National Assembly. According to the direction of the Defendant, the AI remitted KRW 1.5 million to the accounts of the National Assembly members V, W, X, Y, Z, AB, AB supporters' association on March 26, 2012, and the AL remitted KRW 1.5 million to the accounts of the National Assembly members V, W, X, Y, Y, AB, AB supporters' association. After that, the AI sent the phone to the above member of the National Assembly office, and the support payments deposited in the name of AI and AL to the head of the ES. Accordingly, the Defendant was notified that the head of the ES should pay KRW 200,000 in relation to the duties deemed public officials.

Summary of Evidence

[Judgment of the court below]

1. The defendant A's partial statement

1. Each prosecutor's protocol of suspect examination against Defendant A, protocol of suspect examination against Defendant A, 1. AE, AF, Q, I, K, L, AM, and protocol of prosecutor's statement against Defendant A;

1. Entry of AE in a copy of the fifth protocol of trial and protocol of examination of witness in the case of 2016 Gohap1266 and 1309 (combined) and a copy of the 9th protocol of trial and protocol of examination of witness;

1. Each investigation report (AE. The details of remittance of support payments for the National Assembly members of AF, the report on confirmation of X-place of an incorporated association, and the confirmation report related to appointment of the C representative director);

1. Transfer-related slips (receipts 6 cases, 3 cases of deposits without passbooks, 2 cases of confirmation of deposit request by another person), copies of a media article related to a return, review documents on replacement of C representative director, C representative director appointment schedule, C representative director appointment schedule, C representative director recommendation council document, copy of the first temporary board of directors in 2012, e-mail sent to AP on February 13, 2012, emergency plans regarding appointment of C representative director, Seoul Central District Court 2016Da1266-1309 (combined), Seoul High Court 2017No1650 decision

1. Previous convictions: Residents, criminal records, investigation records, personal confinement status, appellate court rulings (Seoul High Court Decision 2017No460), court rulings on final appeal (Supreme Court Decision 2017Do12649).

[Judgment of the court below]

1. Defendant B’s legal statement

1. Each prosecutor's statement of AI, AJ, AL, Q, and AR;

1. Copy of each protocol of trial and examination of witness for the cases 8 and 1309 of the 2016 Gohap1266 and 1309 (Joint) cases; 1. A National Assembly member A.V.AB.Z.YX, each of the 2012 first half-yearly supporters' associations, a copy of a certified supporting document (A.W.V.B.Z.Z.K.X), a copy of the current status of business transactions between the D Bank and AG in 2011-201-2, a copy of the current status of business transactions between the D Bank and AG, the management regulations of subsidiaries, the Seoul Central District Court 2016 Gohap1266 and 1309 (Joint), and the Seoul High Court 20171650 decision

Application of Statutes

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

Articles 133(1) and 129(1) of the Criminal Act; selection of fines

1. Handling concurrent crimes;

Defendant A: the latter part of Article 37 and Article 39(1) of the Criminal Act

1. Aggravation for concurrent crimes;

Defendant B: the former part of Article 37, Articles 38(1)2 and 50 of the Criminal Act (aggravating concurrent crimes with the punishment specified in the crime of offering any bribe in the name of a member of the National Assembly whose crime is heavier than that of the crime)

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judgment on Defendant A’s argument

1. Summary of the defendant's assertion

The Defendant understood the D Bank’s request for a donation as a business direction to share a certain amount of money to the members of the National Assembly in order to contribute the donation to the D Bank, and donated the donation to the members of the National Assembly according to the direction of E, and does not contribute the donation with the intention of offering the bribe to E.

2. Determination

The following facts and circumstances revealed by the court legitimately adopted and investigated the evidence, i.e., (1) around March 23, 2012, E merely stated that the defendant gave a list of members of the National Assembly; (2) the above support money was paid at the level of D banks or C companies; (3) the defendant gave a personal fund, other than D banks or C; and (4) the head of E calls the above member of the National Assembly to give a personal aid to the above member of the National Assembly; and (3) the above member of the National Assembly designated by E appears to be a member of the National Assembly to be a member of the National Assembly, and it was difficult to understand that the defendant's request for the appointment of the above support money was a member of the National Assembly and the representative director of E was a member of the National Assembly, and it was difficult to view that the defendant's request for the appointment of the above support money was a member of the National Assembly, and there was no reason to believe that E is a member of the National Assembly to have been a member of the National Assembly member of the National Assembly, and that it was a member of 7).

Sentencing 4)

1. The scope of punishment by law;

(a) Defendant A: Fines not exceeding 30 million won;

(b) Defendant B: Fines not exceeding 20 million won;

2. Determination of sentence;

The crime of offering of bribe in the course of the Defendants’ member’s contribution to a support fund for the National Assembly member is that the representative director of AH, the representative director of CG, the subsidiary of the D bank, and the Defendants, who were the representative director of C, requested the provision of convenience in the course of performing their duties. Defendant B separately granted KRW 10 million to E for each of the following reasons: (a) Defendant B separately granted KRW 10 million to E for the purpose of taking office. The Defendants committed the crime that the fairness and influence of the president’s duties were damaged due to the commission of the Defendants, and that it is not easy to commit the crime.

However, it was difficult for the Defendants to refuse the demand of E with strong influence on the overall management of C and AG due to the affirmative demand of E, and there was no illegal solicitation after the donation of the support fund, and Defendant A’s crime is in a concurrent relationship between the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) and the latter part of Article 37 of the Criminal Act.

In addition, the defendants' age, character, conduct and environment, motive and consequence of the crime, circumstances revealed after the crime, etc., and the punishment as ordered shall be determined in consideration of various circumstances shown in the pleading.

Judges

The presiding judge and judges;

Judges Kim Young-ho

Judgment of the Prosecutor

Note tin

1) The facts charged and basic facts are identical to the facts charged and are not likely to substantially disadvantage the defendant’s exercise of his/her right to defense.

The specific facts are partially recognized differently from the facts charged.

2) Three of the remaining members, excluding L and K, shall be C outside directors appointed on the recommendation of the D Bank, and one shall be the F to which the D Bank has entrusted the exercise of its equity interest.

Since the chief of the department, the rest of the recommendation committee also accepted the direction of E and recommended the defendant as the first order.

3) Three of the six directors are outside directors recommended by the D Bank. AC director is a person who served as vice-president of the D Bank, and E is a member of the board of directors, since he/she served as vice-president of the D Bank.

2/3 of its 2/3 was virtually malicious.

4) As the Defendants were punished by a fine, the sentencing guidelines are not applied.

심급 사건

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