In a case where the defendant was indicted for violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (reconciliation) on the grounds that he received money in return for mediating a loan from a financial institution upon Gap's request by the representative director Eul, the case holding that the defendant was not guilty on the ground that he merely received money and valuables in return for offering convenience in handling the matters belonging to the duties of officers and employees of the financial institution, and it is difficult to recognize

In a case where the defendant was charged with violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (i.e., violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, on the ground that the defendant received money in return for mediating a loan from a financial institution upon Gap's request by the representative director Eul, and was charged with the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, the case held that the defendant received money and valuables in consideration of the defendant's provision of convenience in dealing with the matters belonging to the duties of the officers and employees of the financial institution, and it is difficult to recognize that the defendant received money and valuables under the pretext of mediating a loan between the officers and employees of the financial institution who can be the counterpart with respect to the matters belonging to the duties of the officers and employees of the financial institution

Article 7 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes and Article 325 of the Criminal Procedure Act

Defendant

Kim Jong-soo et al.

Law Firm Cheongn Law, Attorneys Kim Jong-chul et al.

The defendant shall be innocent.

1. Facts charged;

On June 2006, the Defendant promised to receive 1% of the loan amount as commission upon the request of the representative director of Nonindicted Co. 1 Co. 2, Ltd. (hereinafter “Nonindicted Co. 1, 2007”) (hereinafter “Nonindicted Co. 2, 2007”) who was promoting a comprehensive tech development project, such as dead Paris and amusement facilities, from the ○○ Animal Institute located in the Busan Jin-gu, Busan, Busan, upon receiving a request from the representative director of the Nonindicted Co. 2 to receive the KRW 25 billion (hereinafter “Nonindicted Co. 1”).

On or around June 13, 2012, the Defendant entered into an agreement with the executor and the borrower, Nonindicted Co. 1, the Construction of the City, the lender, the National Federation of Bank of Korea, the Financial Advisory Organizations, and the Financial Manager (State), and the National Federation of Fisheries Cooperatives to provide loans of KRW 25 billion from the National Federation of Fisheries Cooperatives. In order to arrange the Defendant to receive loans of KRW 150 million from the above Nonindicted Co. 2 to the deposit account in the name of Nonindicted Co. 3, the Defendant received KRW 100 million from the said Nonindicted Co. 2 and received KRW 100 million from the said Nonindicted Co. 1’s financial manager (State) on or around April 19, 2013.

Accordingly, the defendant received a total of KRW 250,000,000,000 for mediation of matters belonging to the duties of executive officers and employees of financial companies.

2. Facts of recognition;

According to the evidence duly adopted and investigated by this Court, the following facts are recognized.

A. Nonindicted 2, as the representative director of Nonindicted Company 1, entered into a contract to take over ○○ Animal Board around September 3, 2003. On September 21, 2005, Nonindicted 2 obtained a loan of KRW 20 billion from ○○○ Animal Board from ○○○ Animal Board and used it as the acquisition price and incidental expenses. At the time of the loan agreement, Nonindicted 2 sold 49% of the shares acquired in the 13-month month after the acquisition of ○○ Animal Board, and deposited the proceeds of KRW 10 billion as the project cost for remodeling works. If this is going into force, Nonindicted 2 agreed that the remodeling project right should be exceeded the time limit for remodeling works, and it was a situation where it is urgently necessary to raise funds due to the difficulty in selling shares due to the change of design, etc.

B. From 1976 to 2001, the Defendant retired from Korea Investment Trust. Around 2001, the Defendant introduced investors in the subway advertising business of Nonindicted Party 2, exchanged with Nonindicted Party 2, and entered into a financial advisory service contract with Nonindicted Party 2 for the sale of the shares of Nonindicted Party 1 by establishing Nonindicted Company 3 on or around December 2005. The purpose of the service contract is to procure ten billion won or more of the sales amount of shares in order to raise ○○○ Animal Board’s construction funds. The Defendant agreed to develop and advise on the transaction structure for the sale of shares of Nonindicted Party 1, develop and advise on the development of the transaction structure for the sale of shares of Nonindicted Party 1, and provide other auxiliary business affairs, information and data management services, and basic remuneration for services (five million won or less) and contingent remuneration (one billion won or more, and one billion won more, and five billion won more, more than one billion won at the time of the procurement).

C. The Defendant attempted to sell shares by introducing investors who will invest in the business of Nonindicted Company 1, and agreed with Nonindicted Party 2 to receive loan from other financial institutions to repay the existing loan to treatment securities. Accordingly, the Defendant and Nonindicted Party 2 asked to seek interest in the Mzz securities while asking several financial institutions for loan, and the Defendant requested the Defendant to seek Nonindicted 4’s director of Mzz securities who had worked together in the Korean investment trust to raise funds.

D. The Mez securities used a financial institution that can be loaned by analyzing the feasibility of the ○○○ Animal Resource Business, and entered into an agreement on August 9, 2006 with Nonindicted Company 1 of the Borrower and Nonindicted Company 1 of the lender, the National Federation of Bank of Korea, the National Federation of Bank of Korea, the financial advisory corporation, and Nonindicted Company 2 of the joint and several surety, on the following grounds: (a) Nonindicted Company 1 received a loan of KRW 25 billion from the National Federation of Fisheries Cooperatives (hereinafter “instant loan”).

E. On June 13, 2012, the Defendant received KRW 150 million from Nonindicted 2 on June 13, 2012, and KRW 100 million from the KB Real Estate Trust on April 19, 2013.

3. Determination

A. Relevant legal principles

The crime of receiving and receiving money and valuables or other benefits is established when it receives, demands or promises, or demands or promises a third party to give or receive such money and valuables or other benefits with respect to mediation of matters belonging to the duties of the officers and employees of a financial institution. Here, the act of receiving and receiving money and valuables as stated in the above "in relation to mediation of matters belonging to the duties of the officers and employees of a financial institution" refers to the act of offering and receiving money and valuables by a financial institution, which is the other party to mediation, is not required to specify specifically, but at least in cases where it is received and delivered money and valuables under the pretext of mediating between the officers and employees of a financial institution, which is entitled to become the other party to matters belonging to the duties of the officers and employees of a financial institution at least in connection with matters belonging to the duties of the officers and employees of a financial institution. It cannot be said that the act of offering and receiving money and valuables in return for providing convenience in handling matters belonging to the duties of the officers and employees of the financial institution is not conducted (see Supreme Court Decision 2012Do127, Dec. 27, 2012012).

B. Determination

In light of the above facts and records, i.e., ① the Defendant’s 250 million won received from Nonindicted 2 is deemed to combine the nature of the contingent remuneration according to the loan execution of this case and the nature of the consideration for the provision of convenience to assist in the preparation process of loan application, such as review of loan-related materials. ② The officers and employees of financial institutions so arranged by the Defendant are Nonindicted 4, a director of Mebz securities, and Mebz securities are not financial institutions directly performing the loan as the financial adviser of this case. Unless there are special circumstances to deem that the execution of the loan depends on the financial advisory result of Mebz securities, or that there is a de facto power to decide on the execution of the loan to Mebz securities, barring special circumstances, the above duties of Nonindicted 4 are not the loan of this case, but merely financial advisory for the loan of this case. ③ Ultimately, the Defendant’s offering and offering money belongs to the National Federation of Korea Federation of Mbz securities, and there is no other evidence that the Defendant actually accepted or accepted the loan of this case’s money.

4. Conclusion

Thus, the facts charged against the defendant constitute a case where there is no proof of criminal facts, and thus, the defendant is acquitted as per Disposition under the latter part of Article 325 of the Criminal Procedure Act.

Judges Jin English (Presiding Judge)