2012No4037, 2013No598 (Consolidation)

(a) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

(b) Violation of the Act on the Aggravated Punishment of Specific Economic Crimes;

(c) Forgery of public documents;

(d) Exercising forged official documents;

(e) Forgery of private documents;

(f) Exercising a falsified investigation document;

(g) Alteration of private documents;

(h) Exercising altered private documents;

(i) Violation of the Act on External Audit of Stock Companies;

1.(a)(c) d.ma. (f) g.i.h.;

A

2.(b) BJ

Both parties

He/she shall hold a public trial in his/her hands, in his/her name, in his/her name, and in his/her highest flag.

Law Firm B

Attorney C, D (for the defendant) in charge

1. Seoul Central District Court Decision 201Da1025 decided January 27, 2012

2. Seoul Central District Court Decision 2012Gohap899 Decided January 25, 2013

Seoul High Court Decision 2012No480, 2012 early 111 decided July 27, 2012

Supreme Court Decision 2012Do10139 Decided November 29, 2012

May 23, 2013

Of the convictions of the first lower judgment against Defendant A, the part of the judgment of conviction No. 2-B, 3-A, and 3-B

5)The part on each of the crimes in 3-C, 3-D and the part on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) due to the disposal of bad debt, and the second original judgment on the Defendants shall be reversed, respectively.

Defendant A shall be punished by imprisonment with prison labor for three years and by imprisonment with prison labor for one year and six months.

However, with respect to Defendant BJ, the execution of the above sentence shall be suspended for three years from the date this judgment becomes final and conclusive. The charge of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) due to the disposal

1. Scope of adjudication;

A. The original court of the first instance sentenced the defendant A to 6 months of imprisonment with prison labor for each of the crimes set forth in subparagraphs 1, 2-A, 3-B and 4 of the judgment, 2-B, 3-A, 3-2 and 3-C of the judgment, 1 year of imprisonment with prison labor for each of the crimes set forth in the judgment, 2-B, 3-A, 3-B-5 through 12, and 3-C of the judgment, 1 year of imprisonment with prison labor for each of the crimes set forth in the judgment, and 3-D of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation

As to this, on the grounds of erroneous determination of facts and misapprehension of legal principles as to the first crime as to Defendant A's judgment, each appeal was filed on the grounds of erroneous determination of facts and misapprehension of legal principles as to each crime on which the prosecutor rendered a judgment of innocence was not guilty, and on the grounds of unfair sentencing as to each crime, the court before remanding the case shall reverse ex officio the part of innocence (the fourth crime as to the judgment prior to returning the case) as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation), which was caused by the bad debt depreciation disposition, and the third-party 2, 3-A, 5-B, and 4-C, and 3-4 of the judgment, and the prosecutor's appeal was dismissed only for the above crimes of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) due to Defendant A's appeal and provision of security, and all remaining offenses of the court of the first instance shall be reversed as well as for the second-party 2, 3-D through 3-D of the judgment.

As above, Defendant A only appealed to the judgment of the court prior to the remand. The judgment of remand was accepted as to the ground of appeal as to the part concerning the crime No. 4 of the judgment, and the part concerning the crime No. 2-B, No. 3-A, No. 3-B, No. 5-B, No. 3-C, and No. 4 of the judgment, including the part on which one sentence is imposed, is reversed, and the part of the case is remanded to the court of the original instance. As such, the scope of the judgment of this court is limited to the part concerning the crime No. 2-B, No. 3-A, No. 3-B, No. 5-B, No. 3-D, and No. 4 of the judgment of the court prior to the remand, and the part concerning the crime No. 3-B, No. 3-D,

B. In a case where only a part of the crime including the judgment of the second instance is found guilty, if only the defendant appealed against the conviction and the prosecutor did not file an appeal against the judgment dismissing the prosecution, the part other than the conviction by the principle of no appeal by the principle of no appeal and the principle of no appeal shall be transferred to the appellate court. However, the part already deviates from the object of attack and defense between the parties and is de facto separated from the object of adjudication, and thus, the appellate court may not further decide on that part (see Supreme Court Decision 2009Do12934, Jan. 14, 2010).

According to the records, the court of original judgment should be acquitted of the Defendants under the latter part of Article 325 of the Criminal Procedure Act, as it constitutes a case where there is no proof of criminal facts with regard to the part concerning the BM retirement pay out of the money listed in No. 6, 7, 14, and 17 against Defendant BJ among the crimes listed in No. 1 of the Crimes List No. 6, 7, 14, and 22 against the Defendants among the crimes listed in the judgment against the Defendants. However, as long as it is found guilty of the facts constituting a crime in relation to each of these crimes, the court of original judgment did not separately sentence the Defendants to this part, and only the Defendants appealed against

Examining the above facts in light of the legal principles as seen earlier, although the part of innocence in the above reasons is judged by the trial court, it does not fall under the scope of the trial by the trial court.

2. Summary of grounds for appeal;

(a) Original judgment;

(1) Defendant

In light of the circumstances against Defendant A, the punishment sentenced by the court below (one year of imprisonment) is too unreasonable.

(2) Prosecutor

A) misunderstanding of facts and misapprehension of legal principles

Although the part of the charge of occupational breach of trust due to the bad debt depreciation among the charges of this case is established, the judgment of the court below which acquitted the defendant A about this part is erroneous in the misapprehension of legal principles.

B) Unreasonable sentencing

In light of the circumstances against Defendant A, the sentence of imprisonment (one year of imprisonment) imposed by the court below is too uncomfortable.

B. Second judgment

(1) misunderstanding of facts and misapprehension of legal principles

(A) The Defendants’ co-principal part

The amount listed in the [Attachment 1] No. 2 is a loan to Defendant A for the stabilization of livelihood, and the amount listed in 5, 8, 11, 12, and 16 is a legal service fee for the victim FF corporation, and the amount listed in 5, 8, 11, 12, and 17 is a loan to Defendant E, and the amount listed in 6, 7, 14, and 17 is a compensation for medical expenses under the above victim’s welfare provision against Defendant A, and the amount listed in 18, 22 is a bonus and retirement allowance payment to the officers and employees of the above victim, and the amount listed in 20 is a legitimate corporate vehicle, and the amount is not embezzled by the Defendants.

(B) Defendant BJ

1) As to the crime described in Paragraph 2 of the judgment

The Defendant did not fully take part in the money listed in Nos. 1 2 and 4 of the crime sight table, and all of this part was involved by Defendant A and AL. In addition, Defendant BJ merely dealt with the above victim’s business according to the direction of Defendant A, and there was no intention of embezzlement or illegal acquisition, as well as there was no intention of embezzlement. Family affairs and even if Defendant’s crime is recognized, it is merely aiding and abetting Defendant A’s act.

2) As to the crime described in Paragraph 3 of the judgment

The defendant is compensated for the victim's expenses of private teaching institutes or their dental treatment expenses as the victim's welfare expenses, so the defendant has no intention of embezzlement or illegal acquisition.

(2) Unreasonable sentencing

In light of the circumstances against the Defendants, the sentence imposed by the lower court against the Defendants (Defendant A)

Two years of imprisonment, Defendant BJ's imprisonment of one year and six months of suspension of execution is too unreasonable.

3. Determination

A. Ex officio determination on Defendant A

(1) Nos. 2-B, 3-A, and 3-B of the previous ruling after the court of first and second judgment completed separate hearings with respect to the Defendant by the Seoul Central District Court No. 2015, 1025 and 2012, 899

5) A sentence of imprisonment with prison labor for the crimes of paragraphs 2 through 12, 3-C and 4-C and the latter is sentenced to one year (not guilty of the crime of No. 4 at the time of sale) and two years for the latter. Defendant A filed an appeal against each of the above judgments and the first instance court made a decision to concurrently examine the above two appeals cases. The first instance court made a decision to concurrently examine the above two appeals cases. The crimes of subparagraphs 2-B, 3-A, 3-B and 5-B) through 12 of the first instance judgment against Defendant A and Article 38(1) of the Criminal Act are concurrent crimes under the former part of Article 37 of the Criminal Act, and each of the crimes of the second instance judgment and Article 38(1) of the Criminal Act are concurrent crimes under Article 38(1) of the Criminal Act, and thus, in this respect, the part of the first instance judgment against Defendant A and Article 2-2-B, 3-A, 5-B through 12-C and 3-D of the original judgment are reversed.

(2) On December 20, 2004, the prosecutor found the Defendant not guilty at the first instance trial. The Seoul Central District Court found the Defendant not guilty of the above charges that it violated the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) due to the processing of damages. In addition, on the grounds that the company failed to take necessary measures for calculating the amount of damages for the Defendant’s 1999 corporate tax, 21, 692, and 650 corporate tax for the embezzlement of the Defendant (hereinafter “F”), and the company failed to take necessary measures for calculating the amount of damages for the Defendant’s 1999 corporate tax, 84,000 corporate income tax, and the company failed to take necessary measures for calculating the amount of damages for the purpose of calculating the amount of damages for the Defendant’s 199 corporate income tax. On January 17, 2005, the company failed to take necessary measures for calculating the amount of damages for the Defendant’s 190 corporate income tax and imposed the amount of damages for the Defendant’s claim for reimbursement.

Therefore, since the subject of the judgment was changed by the prosecutor's amendment of the bill of amendment in the trial, the part of innocence on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) due to the bad debt depreciation in the first judgment is no longer maintained.

On the other hand, the defendant argued that the facts charged as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) due to the disposal of bad debt among the facts charged in this case are added to or supplement to the facts charged, and thus, the identity of the facts charged is not maintained, and since the date and method of the facts charged are not specified, it is illegal and thus the dismissal of prosecution should be sentenced. However, in comparison with the records, in comparison with the facts charged in this case, the change of the facts charged in this case caused the risk of loss to the company by allowing the defendant to account as bad debt depreciation cost as if it is impossible to recover his claim against the defendant, and thereby, it is nothing more than a reinforcement to the effect that the defendant's intention to act in breach of trust caused the risk of loss to the company by a series of acts that do not secure the claim even after the revocation lawsuit against the administrative disposition against which the cause of the claim for reimbursement was rejected. Thus, it is reasonable to deem the above change and the facts charged before and after the change as well as the social elements.

(3) However, despite the existence of the above reasons for ex officio reversal, the Defendants’ assertion of misunderstanding of facts and misapprehension of legal principles with respect to the second judgment is still subject to the judgment of this court, which will be examined below.

B. Judgment of misunderstanding of facts and misapprehension of legal principles as to the second judgment of the Defendants

(1) Determination as to the money listed in No. 1 2 of the crime sight table in the holding

The Defendants asserted the same purport as this part of the grounds for appeal, and the court below rejected the Defendants’ assertion in light of the following circumstances under the title of "the judgment on the Defendants and their defense counsel's assertion". The court below rejected the Defendants' assertion when it judged that the Defendants embezzled the money listed in Nos. 1 2 and 2 of the List of Crimes. In light of the above judgment of the court below, it is just in comparison with the records, and there is no error of law by misunderstanding facts or by misunderstanding legal principles, which affected the conclusion of the judgment. Therefore, the Defendants' assertion on this part is without merit (However, the Defendants presented the revised regulations to the court for the life stability of the damaged company, the materials, personnel regulations, and organization regulations, and just execution of funds under the amended provisions. However, the Defendants asserted that the above revised regulations were just and just execution of funds. However, it is difficult to find that there was no evidence to acknowledge that each of the above provisions was amended, and that there was no reason to believe that the above provisions had been amended.

(2) Determination as to the money listed in No. 1 No. 4 of the crime sight table in the holding

The Defendants asserted the same purport as this part of the grounds for appeal, and the court below rejected the Defendants’ assertion in light of the circumstances stated in its holding that the Defendants embezzled the money listed in Nos. 1 4 of the List of Crimes. The Defendants used the money deposited in the damaged company’s account, i.e., the circumstances cited by the court below, and the following circumstances acknowledged by the records, and used the money deposited in the damaged company’s account (part of the money cannot be accurately known), except for the money indicated in its holding, and as alleged by the Defendants, there is no trace of depositing the money deposited in the above account and using it (the circumstance stated by the court below against the Defendant A) as alleged by the Defendants (the circumstance seems to be the same purport) and the Defendants’ assertion, in light of the records, the court below did not err by misapprehending the legal principles, or by misapprehending the legal principles, thereby affecting the conclusion of the judgment.

(3) Determination as to the amount of money listed in section 5, 8, 11, 12, and 16 of the crime sight table in the holding

The Defendants asserted the same purport as the reasons for appeal in the court below, and the court below rejected the Defendants’ assertion in light of the following circumstances under the title of "the judgment on the Defendants and their defense counsel's assertion", when considering the facts stated in the judgment of the court below, the defendants can be recognized as embezzlement of the amount listed in 5, 8, 11, 12, and 16 of the crime sight table 1 - 5, 8, 11, 12, and 16 of the judgment of the court below. In full view of the circumstances cited by the court below and the circumstances presented by Defendant BJ to the effect that "it should not be allowed to make a retroactive preparation of the contract," the judgment of the court below is just and acceptable in light of the records, and there is no error of law by misunderstanding facts or by misunderstanding legal principles, which affected the conclusion

(4) Determination (limited to Defendant A) on the amount of money listed in 6, 7, 14, and 17 of the crime sight table Nos. 1 6, 7, 17, and 17

According to the evidence duly adopted and examined by the court below, "Article 7 Section 1 of the Act on the Personnel Management of damaged Company 4" provides that "the representative director may be appointed as extraordinary civil service if necessary." Paragraph 2 of the same Article provides that "non-permanent civil service means a person engaged in assistance, entrustment, usage, etc." The defendant's statement of accounts (63 pages of investigation records) is stated as an adviser. The defendant's statement of 40% of the above charges cannot be viewed as 90% of the total amount paid within 17 days of payment for 7 days from April 11, 2011 to May 9, 201, 201 and 16. From May 16, 2011 to July 13, 2011." The above provision on accident compensation of KRW 106 of the Act on the Payment of Medical Expenses of the damaged Company 40% of the total amount paid within the scope of KRW 35,060,410 of the above charges for medical insurance benefits.

(5) Determination as to the amount of money listed in 1 / 18, 22 (excluding the part on BM retirement pay) of the crime sight table in the holding

First, according to the following circumstances acknowledged by the evidence duly adopted and investigated by the court below for the Defendants, BT and AL, namely, ① an executive officer of the victimized company as a director or auditor appointed at a general meeting of shareholders, ② a retirement allowance may be paid to an employee who has served for one year or more, ② a victimized company may pay a retirement allowance to an employee who has served for one year or more, ③ a special compensation may be paid to the victimized company in accordance with the resolution of the board of directors for the employee who has served for a significant meritorious service, ③ Defendant A cannot be deemed to have served for one year or more on the part of the victimized company, and Defendant BJ cannot be deemed to have served for 10 years or more on the part of the victimized company as an executive officer of the victimized company, and Defendant BJ may not be deemed to have served for 10 years or more on the part of the victimized company as an employee of the board of directors for whom the victimized company did not have served for 10 years or more from around September 2, 2011.

Next, in light of the following circumstances acknowledged by the record, i.e., (i) BF served as an employee of the victimized company from August 1, 2008 to September 2, 201; (ii) the monthly salary of BF was approximately KRW 3,680,00; (iii) when BF retires from the victimized company, at least one month of office can receive retirement allowances equivalent to the amount of 1/1 month of each year of office in accordance with the employee retirement allowance payment regulations of the victimized company; (iv) the Defendants paid 7,204,233 won, which was less than 2/2 months of the monthly salary; and (v) even if the Defendants did not pay retirement allowances to BF, the victimized company is difficult to acknowledge that the Defendants paid retirement allowances to BF as unlawful acquisition intent; and there is no other evidence to acknowledge otherwise.

Therefore, the defendants' assertion of misunderstanding of facts or misunderstanding of legal principles about the money paid to BF among these arguments is with merit, and the remaining arguments are without merit.

(6) Determination as to the money listed in No. 1 20 of the crime sight table in the holding

The evidence presented by the prosecutor alone is insufficient to prove that the market price of the car in the judgment in which the ownership has been transferred to BF exceeds KRW 11 million (the Internet market price of the used car attached to the prosecutor's protocol of statement toG is KRW 21.8 million, the market price at the time of the same type as the car in the judgment in question is the highest KRW 21.8 million, and the lowest KRW 11 million, and there is no other evidence to prove that the car in the judgment was at least KRW 11.1 million. Therefore, this part of the defendants' assertion is reasonable within the limit of KRW 11.7 million, and there is no other evidence to prove that the remainder is without merit.

C. Judgment of misunderstanding of facts and misapprehension of legal principles as to Defendant BJ’s second judgment

(1) Defendant BJ also asserted the same purport as that of this part of the grounds for appeal, and the court below rejected Defendant BJ's assertion in light of the circumstances as stated in its reasoning under the title of "judgment as to Defendant and his defense counsel's argument". Defendant BJ participated in the preparation of the accounting table on each of the money listed in 1/2 and 4 of the crimes committed by Defendant BJ, and Defendant BJ may recognize facts under the functional control of the criminal act with Defendant A and joint processing with the intent of the criminal act committed by Defendant BJ. In comparison with the records, the judgment of the court below is just and acceptable, and there is no error of law by misunderstanding facts or by misunderstanding the legal principles, which affected the conclusion of the judgment. Accordingly, this part of Defendant BJ's argument is without merit.

(2) Determination as to the amount stated in Table 2 of Crime List 2

Defendant BJ also asserted the same purport as the grounds for appeal, and the court below rejected Defendant BJ’s assertion in light of the circumstances as stated in its reasoning under the title of “judgment on the Defendant’s and his defense counsel’s assertion”, when considering the circumstances as indicated in its reasoning, Defendant BJ’s assertion can be recognized as embezzlement of the amount indicated in Defendant BJ’s list of crimes. In light of the above judgment of the court below in comparison with the record, it is just and acceptable, and there is no error of law by misunderstanding facts or by misapprehending the legal principles, which affected the conclusion of the judgment. Accordingly, this part of

4. Conclusion

Therefore, the first and second original judgments on Defendant A have the above reasons for ex officio reversal, and there is a ground for misunderstanding of facts and misapprehension of legal principles by the Defendants. Thus, without examining the Defendants and the prosecutor’s allegation of unfair sentencing, the first and second original judgments are reversed pursuant to Article 364(2) and (6) of the Criminal Procedure Act, and the following judgments are rendered through pleadings.

Criminal facts and summary of evidence

The summary of the facts of the crime and steam recognized by this court is "(except for retirement allowances of 7,691,960 won to BM out of 22 the list of crimes in the second instance judgment)" to be "(except for retirement allowances of 6,7,14,17, 5,248,963 out of the amount stated in the list of crimes, 11,70,000 out of 20, 14,896,193 out of 22 of the same order, 11 lines "702,374,050 won" to be "68,220,854 won" to be "63, 1696, 207, 2096, 1967, 2096, 260, 360, 164 of the Criminal Procedure Code" to be "678, 2696, 167, 270, 2963" to be "(64)".

Application of Statutes

1. Article 20(1) and Article 13 of the Act on External Audit of Stock Companies, Article 225 of the Criminal Act, Article 229 and Article 225 of the Criminal Act, Article 231 of the Criminal Act, Articles 234 and 231 of the Criminal Act, Articles 234 and 231 of the Criminal Act, Article 20(4)1 of the Act on External Audit of Stock Companies, Article 3(1) and 20(4) of the Act on External Audit, etc., Article 3(1)2 of the Criminal Act, Article 356, Article 35(1) and Article 30 of the Criminal Act, Article 30 of the Criminal Act, Article 25(2)2 of the Criminal Act, Article 36 of the Criminal Act, Article 30 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 25(1) and Article 30 of the Criminal Act, Article 25(1) of the Act on Aggravated Punishment, etc. of Specific Economic Crimes

1. Aggravation for repeated crimes;

Defendant A: As to the crime of forging each private document and the crime of uttering of each private document under Article 35 [Article 35 (1) (2) through (5) of the Criminal Act, Article 35 of the Act on External Audit of Stock Companies under Article 2-b of the Judgment of the first instance court, Article 3-2 (3) of the Act on External Audit of Stock Companies under Article 1 of the Judgment of the first instance court, Article 42 of the Act on External Audit of Stock Companies under Article 3-2 (5) of the judgment of the second instance, Article 35 of the Criminal Act, Article 35 (2) of the Act on External Audit of Stock Companies under Article 3-2 (5) of the judgment of the first instance, Article 42 of the Act on External Audit of Stock Companies under Article 3 of the judgment of the second instance, Article 2 of the judgment of the second instance shall be limited to the crime of forging each private document and uttering of each falsified document under Article 35 (3) of the judgment of the first instance court).

1. Aggravation for concurrent crimes;

Defendant A: the former part of Article 37, Article 38 (1) 2, Article 50, and the proviso of Article 42 of the Criminal Act [the penalty of concurrent crimes prescribed in the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)]

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Code (The following consideration shall be taken into account in favor of the reasons for sentencing)

1. Suspension of execution;

Defendant J: Article 62(1) of the Criminal Act (Discretionary Reasons for Discretionary Mitigation)

Reasons for sentencing

1. Each of the crimes in the judgment of the first instance court on the defendant A: (a) embezzlement of KRW 500 million of the damaged company's funds at will while substantially operating the damaged company, which is a KOSDAQ-listed corporation; (b) artificially forged and altered various documents to generate a processed sale of KRW 2000 million; (c) falsely prepares and publicly announce the F's financial statements in 2008 and the financial statements in 2009; and (d) when the F comes to a short of KRW 17.4 billion of cash assets due to accumulation of its useful funds or processing sales, etc. at the time of preparing the financial statements in 2010, the F's financial statements and the financial statements in 2010, the F's financial statements and the financial statements in 7.4 billion of the F's cash assets in total at the time of the crime; (b) each of the above crimes was committed by the defendant with a view to forging the business registration certificate of KRW 17.4 billion in total or with a copy of the passbook, etc.; (c.) The defendant's 7.

2. Defendant BJ’s crime of this case is an embezzlement of approximately KRW 648,00,00 of the funds of the victimized company solely or in collusion with A while taking charge of the accounting affairs of the victimized company, and the nature of the crime is not somewhat weak in light of the amount of damage, etc., and the most of the amount of the embezzlement of this case appears to have been used for Defendant A, and the profits actually acquired by the Defendant appears to have not been too much much, including the circumstances favorable to the Defendant, the Defendant’s age, character, character and environment, environment, family relationship, motive and background of the crime, method and consequence of the crime, etc., as indicated in the argument of this case including the following circumstances, and the recommended sentencing guidelines set forth by the Sentencing Committee of the Supreme Court, shall be determined as ordered.

Parts of innocence

1. The violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) due to the disposition of bad debt depreciation to Defendant A

A. Summary of this part of the facts charged

On December 20, 2004, when imposing KRW 3,211,69,692,650 on F in relation to the Defendant’s stock embezzlement of the Seoul Central District Tax Office, the Defendant took a disposition of notifying the change of income amount of KRW 9,084,84,843,00 for the year 199. The Seoul Central District Tax Office, on January 17, 2005, imposed the Defendant’s income tax amount of KRW 4,010,589,70 on the damaged company by withholding taxes on the ground that the damaged company did not pay the income tax after filing a revised tax return. On December 31, 2004, the Defendant did not actively exercise its duty of collecting the income tax amount of KRW 4,010,589,70, which was calculated on the basis of the notice of change in income amount in Seoul Central District Tax Office’s income tax base on the Defendant’s stock embezzlement of KRW 199,000 for the damages to the Defendant.

B. Determination

(1) Whether a crime of breach of trust is applicable to property damage, which is a requirement for establishing a crime of breach of trust, should be understood from an economic point of view, not from a legal judgment. Thus, even if an invalid act is legally null and void, a crime of breach of trust should be established in cases where a person actually inflicts a loss on the principal or causes a risk of actual loss of property (see Supreme Court Decision 201Do15857, Feb. 23, 2012). However, it is insufficient to the extent that the risk of actual loss has to reach the degree where specific and practical danger has occurred, and that there is a risk that it may cause a vague possibility or interfere with the exercise of rights.

(2) Meanwhile, the crime of occupational breach of trust may be established by an omission in which a person who has a legal obligation to handle affairs in accordance with a certain duty in a trust relationship with another person does not perform any act legally expected under such circumstance. However, in order for such omission to constitute a new crime, there is a new damage, such as whether the exercise of another person’s property right, which granted the duty to handle affairs, is at risk, or the possibility of executing another person’s claim is extinguished (see, e.g., Supreme Court Decision 2001Do4035, Apr. 4, 2003).

(3) According to the records, I examined the first bad debt accounting act of 00.1 billion won, the injured company was subject to the notice of change in income amount of 9,084,843,000 won from the mid-term director of the tax office around December 204, 199, and accordingly, 4,010,589,70 won was faced with the situation where the company should pay the income tax by withholding taxes. It was judged that there is sufficient room to dispute about the above disposition by requesting the legal office's consultation, and around January 2005, 2007, 200, 300,000 won as above, 4,000 won as 10,000 won as 40,000 won as 10,000 won as 40,000 won as 0,000 won as 0,000 won as 10,000 won as 20,000 won as 10,000.

In light of these circumstances, it seems that the parties of the victimized company, including the defendant, at the time, recognized that the occurrence or scope of the right to indemnity against the defendant of the victimized company is not definite, and it is difficult to view that the specific risk of actual damage to the victimized company was realized on the ground that the above accounting was dealt with.

(4) The following facts are examined as to the failure to take measures after the judgment against the defendant was affirmed, and the injured company was ruled against and confirmed in the lawsuit to revoke the above disposition on August 24, 2009. At the time, the defendant was not only the actual company of the victimized company but also the representative director or the auditor's position, and it can be known that the defendant was under the influence of the representative director or the auditor's position. In such circumstances, it is difficult to deem that the defendant was under the duty to perform a new act, and in such circumstance, it is difficult to deem that the defendant did not take any measures to recover the claim against the victimized company, such circumstance alone as the exercise of the above claim is threatened or the possibility of executing the claim ceases to exist, and it is difficult to deem that the occurrence of new damage or the risk thereof has been realized. This is because, in reality, it is not different from the case where the company neglected to take measures to recover the claim against the representative director or the director, and in such a case, it cannot be established immediately against the representative director or the owner.

(5) Sub-decisions

Thus, this part of the facts charged constitutes a case where there is no proof of crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure

2. Part 6, 7, 14, 17, 20, 22 of the list of crimes in the judgment of the second instance

A. Summary of this part of the facts charged

Defendant A embezzled the amount of KRW 103,454,050 over six occasions, such as the [Attachment 1 6,7,14,17,20,222 (excluding retirement allowances of 7,691,960 won against BM out of the list of crimes Nos. 22 of the same crime list) in the manner described in paragraph (2) of the crime in the judgment of the court, and Defendant BJ embezzled the amount of KRW 68,447,640 over two occasions (excluding retirement allowances of BM out of the list of crimes Nos. 22 of the same crime list), such as the list of crimes Nos. 20,691,960, in two times (excluding retirement allowances of BM out of the list of crimes No. 22 of the same crime list), and where there is no need for each individual use and payment by the damaged company, the Defendants conspiredly embezzled the funds of the victimized company that was under custody in the course of business.

B. Determination

As examined above 3-b.(4), (5), and (6), among these facts charged, the sum of 24,153,196 won (=5,248,963 won + 7,204,233 won + 11,70,000 won + 18,904,233 won (=7,204,233 won + 11,70,000 won) against Defendant BJ is equivalent to the sum of 18,904,233 won (=7,204,233 won + 11,70,000 won) against Defendant A in this part of the facts charged, and thus, not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as the facts charged under paragraph (2) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) are separately found, the judgment of innocence is not ordered in the disposition of acquittal.

The presiding judge, Ginju

Judges Go Il-il

Judges Cho Young-young