2012No1837 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), characteristics

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

Violation of the Act on Punishment, etc. of Economic Crimes (Misappropriation)

The name of the crime, occupational breach of trust, violation of the Securities and Exchange Act, and the Stock Exchange

violation of the Act on External Audit, Fraud, Occupational Breach of Trust;

Occupational Embezzlement, Violation of Labor Union and Labor Relations Adjustment Act, Labor

Violation of the Standard Law

A

Both parties

1. Prosecution: Manman fever (Seoul Central District Court 2010 High Court 1470, 1651, 1721);

Daegu District Court Decision 2009Gohap190), Gamsung (Tgu District Court Decision 2009Gohap190), Daegu District Court

court deputy branch support 2010 Gohap16)

2. Public trial: Intervention;

Law Firm H LLC, Attorneys I, SZ and TA

1. Seoul Central District Court Decision 2010Gohap1470, 1651 decided June 27, 201;

1721 (Dismissal of Judgment) Judgment

2. Deputy branch court of the Daegu District Court Decision 2009Gohap190, 2010 decided December 9, 2010

Gohap16(Joint Judgment) Judgment

Seoul High Court Decision 20111828, 1819, 2568 (each consolidation) Decided January 5, 2012

Judgment

Supreme Court Decision 2012Do1283 Decided June 14, 2012

December 14, 2012

The part of the judgment of the court below's conviction against the defendant, which excludes the violation of the Securities and Exchange Act due to window dressing accounting of financial statements for 2005 year by AD, and the remaining part of the judgment of the court below's conviction against the defendant by using the above financial statements.

Defendant shall be punished by imprisonment with prison labor for a period of five years and by a fine of two million won. If the Defendant fails to pay the above fine, the Defendant shall be confined in the workhouse for a period of one day converted from 50,000 won.

To order the defendant to pay the amount equivalent to the above fine.

1. Scope of the judgment of this court;

A. The record reveals the following facts.

① The judgment of the court below

검사는 피고인에 대하여, 2010.11.9. 서울중앙지방법원 2010고합1470 호로, ㉠ CJ 주식회사(이하 'CJ'이라고 한다. 이하 아래에 나오는 각 주식회사들에 대하여는 주식회사 표시를 생략하여 표시한다) 인수와 관련하여 CJ의 자산인 부동산에 관하여 채무자를 DMI)로 한 근저당권을 설정하게 함으로 인한 배임, CD, CK, CL, CM, CN, CO에서 대여 명목의 자금 반출로 AG을 부당지원하게 한 것으로 인한 배임, AD2) 주식의 시세조종주문으로 인한 증권거래법위반, CL으로 하여금 CM 선박인 CX, CY를 고가매수하도록 함으로 인한 배임, CM 선박인 CP 및 CQ의 매각 후 일부 매각대금을 피고인의 개인채무 상환에 사용하는 등 임의 소비함으로 인한 횡령, Ⓒ AD의 2007회계연도 분식회계를 통한 주식회사의 외부감사에관한법률위반, AD의 2007회계연도 재무제표를 이용한 대출사기, AD 주식의 시세조종 행위에 의한 부당이득 취득으로 인한 증권거래법 위반, CO 보유 선박의 저가 매도로 인한 배임, CW 법인자금을 개인 채무 원리금 변제에 사용함으로 인한 횡령 및 CW 보유 선박과 자회사 지분 매각대금 횡령의 각 공소사실에 대하여 공소를 제기하였고, 2010. 12, 16. 서울중앙지방법원 2010고합1651호로,E AD의 2005회계연도 분식회계로 인한 증권거래법위반 및 대출사기, 2006회계연도 분식회계로 인한 증권거래법 위반과 대출사기, 사기적 부정거래로 인한 증권거래법 위반, CD 주식의 시세조종주문으로 인한 증권거래법 위반, 그룹통합로고(CI) 사용료 명목으로 제1 원심 판시 별지 범죄일람표(12) 기재 각 회사들로 하여금 CM을 부당지원하도록 한 것으로 인한 배임, E CZ 본사 부지 매각대금 임의 사용으로 인한 횡령의 각 공소사실에 대하여 공소를 제기하였으며, 2010. 12, 28. 서울중앙지방법원 2010 고합1721호로,D CL의 경영권 방어를 위하여 DM의 양도성예금증서를 CS해상보험(이하 'CS'라고 한다)에 담보제공함으로 인한 배임, CM이 CS와 이면으로 합의한 내용에 따라 CS의 유상증자 투자 원리금을 보전해주기 위하여 CZ, AF, DM, AD, CL에게 CS가 보유한 비상장주식의 워런트(신주인수권)를 CS 매입원가 대비 740% 가격으로 부풀려 고가매입하게하거나 AD으로 하여금 CS가 보유한 주식을 거래소 종가보다 30% 할증하여 매입하게 하는 방법, CL, DM에게 지출할 필요 없는 대출 취급수수료를 지급하게 하는 방법에 의한 배임, DM, CI, AD, CV, CZ, AF로 하여금 CT의 유상증자에 참여하도록 함에 따른 배임, DM로 하여금 CU의 유상증자에 참여하도록 함에 따른 배임, CZ, CV, AM으로 하여금 AM 및 CV 주식을 고가로 인수하도록 함에 따른 배임(Cy는 AM 주식을 인수하고, AM은 CV 주식을 인수함), 피고인 및 DR에 대한 특별상여로 가장하여 이루어진 CM의 법인자금 횡령 및 전도금 등으로 가장하여 이루어진 CW의 법인자금 횡령,

① A public prosecution was instituted against each of the facts charged in embezzlement of corporate funds of the CMF, CL, and FI, which is most likely to be an executive’s salary, and the first instance court found the Defendants guilty on June 27, 201, and sentenced the Defendant to ten years of imprisonment, while rendering a judgment of not guilty on the above, the part, and the part.

② The judgment of the court below

On December 9, 2010, the prosecutor brought a public prosecution against the Defendant on the charge of breach of trust by allowing AE and AF to lend funds to AG as the Seo-gu District Court Branch Branch 2009Kahap190 on the following grounds: (a) on February 3, 2010, the prosecutor brought a public prosecution against each of the charges of violation of the obligation to pay wages, violation of the Labor Standards Act due to the violation of the obligation to liquidate money, violation of the obligation to liquidate money and other valuables, violation of the Trade Union and Labor Relations Adjustment Act due to the violation of the collective agreement; and (b) on December 9, 2010, the court below consolidated this and sentenced the Defendant to a fine of five years and fine of two million won, recognizing the remainder of the charges as all of the charges.

③ The first instance judgment and the second instance judgment were appealed by both parties to the judgment prior to remand. According to the decision of the Supreme Court, the first instance judgment and the second instance judgment were consolidated as to the appeal case against the first instance judgment and the second instance judgment. As to the part of breach of trust due to allowing CL to purchase CM ships at a high price, among the Defendant’s grounds for appeal, even if CL purchased the above ships at a lower price than the market price, the amount of damages should be deemed as unproof unless the amount of damages is strictly proved. Thus, the argument that this part of the facts charged cannot be applied to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) was accepted by the first instance court prior to remand, and that AD did not raise an accounting share for the 205 fiscal year, and that the prosecutor’s head office and loan fraud due to AD’s 205 fiscal year was reversed and remanded to the first instance court for the first instance judgment and the second instance judgment rejected the remainder of the Defendant’s remaining grounds for appeal.

④ Both parties filed an appeal against the judgment of the court of final appeal prior to the remanding of the case. The Supreme Court rejected the prosecutor’s allegation in the grounds of appeal as to part of the part of the judgment rendered not guilty prior to the remanding of the case on June 14, 2012. While rejecting the Defendant’s assertion in the grounds of appeal, the part of the judgment of the court below prior to the remanding of the case should be reversed on the ground that the court of final appeal recognized the difference between the portion of the judgment of the court below’s conviction and the portion of the judgment of the court below’s judgment, which included the portion of the judgment of the court below’s judgment as to the crime of breach of trust (the judgment of the court below’s judgment that included the portion of the judgment of the court below’s judgment as to the crime of breach of trust (the remaining portion of the judgment of the court below’s conviction) on the ground that the judgment of the court below prior to remand of the case was reversed by misapprehending the legal principles as to the portion of the judgment of the court below’s judgment as to property damages (the remaining part of the judgment).

B. According to the above facts, the judgment of the court of first instance and the judgment of the court of first instance prior to remand (excluding the part not guilty in the grounds of appeal) which acquitted the defendant, shall be finalized, and since only the guilty part (including the part not guilty in the grounds of appeal) of the judgment prior to remand was reversed and remanded to this court, this court was reversed

In the judgment of the court of first instance and the judgment of the court of second instance that found the defendant guilty (However, while the judgment of the court of first instance judged the defendant not guilty as to the violation of the Securities and Exchange Act due to the act of price manipulation of AD stocks, this part of the judgment of the court of first instance did not separately be pronounced not guilty on the ground that the violation of the Securities and Exchange Act due to the order of price manipulation of AD stocks which the court of first instance found the defendant guilty was in a relationship with the violation of the Securities and Exchange Act. The prosecutor's allegation in the grounds of appeal as to the part of the acquittal was rejected in the judgment of the court of first instance prior to the remand, and the prosecutor in the appellate court should be deemed to have exceeded the object of the public defense by failing to state the grounds of appeal in the petition of appeal or the appellate brief, this part is not followed by the conclusion of

2. Summary of grounds for appeal;

A. The sentence of the lower judgment is too unreasonable as the sentence of the Defendant (unfairly unfair) is too unreasonable.

B. Inspection (unfairness) 4) The sentence of the lower judgment is too unfeasible and unfair.

3. Ex officio determination

A. As to the violation of trust due to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) due to the commission of CM vessel to buy CX and CY high-priced, the Kim Jong-soo in this court's amendment of the bill of amendment to the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation), the name of the crime is "occupational Breach of Trust" in "Violation of the AMFAggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)", "Article 3 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes", "Articles 356, 355 (2), and 30 of the Criminal Act", "Articles 356, 355 (2), and 30 of the Criminal Act", and "Article 1 of the judgment of the court below [Article 2010Da1470 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)", among the facts charged against the defendant, it cannot be found guilty against the defendant's violation of the 2000.

The defendant owned almost 100% of the shares of CM (DW prior to the change) with specially related persons, and formed a holding company with CM and substantially controlled and operated affiliates such as CO and CL through circular investment structure.

The Defendant sold CY of cement carriers with the maximum loading weight of 5,90 tons, which are cement carriers with the maximum loading weight of 3,000 tons, to CY, an affiliated company, and raised funds for use by CM, as the financial situation of CM, which serves as a holding company in 2007.

The defendant and the representative director of the CL Y have a duty to ensure that the CL does not cause property damage to listed companies with 60% or more of the minority shareholders by closely examining the necessity for the purchase of the above vessels and the proper trading price, etc. in purchasing the above vessels at reasonable prices.

(1) On December 18, 2007, the Defendant violated the above duties at the above AC Group Office’s office, and had CL purchase the above CX owned by CL at a price lower than 14,030,000 (Korean Won 13,082,975,000). Accordingly, the Defendant, in collusion with AY, acquired property gains, the amount of which is not known to CM, and caused damage to CL equivalent to the same amount to the victim.

(2) On December 20, 2007, the Defendant violated the above duties at the above AC Group Office’s office, and had CL purchase the said CY owned by CY at USD 16,470,00 at a price lower than the market price (Korean Won 15,476,859,000). Accordingly, the Defendant, in collusion with AY, had CY obtain pecuniary benefits that could not be known to CM and caused damage equivalent to the same amount to CL.

B. Determination ex officio as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) by the method that the CZ, AF, DM, AD, and CL unlisted stocks owned by CSS purchase at a higher price than 740% of the CSS purchase cost in order to preserve the principal and interest of the investment with capital increase of the CSS

(1) The judgment of the court below on this part

The judgment of the court below of first instance (2010 Gohap1721) acknowledged the following facts as to the part in which the defendant was prosecuted for acquiring property benefits equivalent to the above amount of 7,392,707,50 won in total from AD et al. affiliated companies, such as AD, and for purchasing high-priced stocks at the price of 740% from March 31, 2006 to November 13, 2006 by inviting the affiliated companies of AC Group to purchase the unlisted stocks held by CSS at the price of 740% compared to the purchase price of the unlisted stocks from March 31, 2006, and as to the part in which the defendant was prosecuted for compensating for losses of the principal and interest of the investment to CSS, each affiliated company of AC Group has the obligation to compensate for losses of the principal and interest of the investment to the original CSS, and each affiliated company of CSS calculated the difference between the unlisted stocks purchased from CS securities and the amount of profit exceeding 500 million won per victim.

(2) Judgment of the court below

Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes provides that the value of the property or profit from property acquired or made a third party acquire (hereinafter referred to as "profit") due to a crime such as occupational breach of trust shall be punished by imprisonment for a limited term of not less than three years if the value of the property or profit from property acquired or made a third party gain is more than five billion won (Article 2(2)), and that if the amount is not less than five billion won, the punishment shall be imposed by imprisonment for life or for not less than five years (Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Article 3(

The lower court, based on the evidence duly admitted and examined CSS 1, i.e., 30% of the total face value of the unlisted company 15,000 won and the total face value of the unlisted company 2,500,000 won (i.e., 675,000 won of the purchase price of the unlisted company 1,30,000,000 won + 45,000 won of the purchase price of the unlisted company 1,50,000 won of the purchase price of the listed company’s shares at 0,000,000 won of the listed company’s new shares at 0,000 won of the purchase price of the listed company’s 30,000,000 won of the listed company’s new shares at 0,000 won of the purchase price of the listed company’s 3,000,000 won of the listed company’s shares at 0,000 won of the listed company’s shares.

Therefore, the Defendant’s loss amount, such as CSS’s profit or CL, due to the Defendant’s occupational breach of trust cannot be calculated.

In the end, the first instance judgment on the profit or loss amount arising from the purchase of shares in an emergency funeral service, was erroneous by misapprehending facts, or by misapprehending the legal principles on the profit or loss amount arising from the occupational breach of trust.

4. Conclusion

Therefore, without further proceeding to decide on the grounds of appeal by the defendant and prosecutor, Article 364 (2) of the Criminal Procedure Act provides that "the violation of the Securities and Exchange Act due to the window dressing accounting for 2005 fiscal year of AD-205 among the guilty part against the defendant in the judgment of the court of first instance pursuant to Article 364 (2) of the Criminal Procedure Act, the remaining part excluding the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) using the above financial statements, and the guilty part against the defendant in the judgment of the court of second instance shall be reversed and judged again as follows (However, as seen earlier,

Criminal facts

The criminal facts recognized by this court are as follows, except for the revision and deletion of the criminal facts of each judgment of the court below, and therefore, they are cited in accordance with Article 369 of the Criminal Procedure Act.

1. The judgment of the court of first instance is based on the same content as the description of the facts charged as the changed facts charged in the above 3. A, Article 2010 Gohap1470 of the Act No. 1470

○ [2010 Highest 1651] 1. A. (13 19 ~ 18 4 o.m.) (13 o. 13 o. o. 18 o. o. o. o. o. o. o. o. o. o. o. o. o. o. o. o. o. o. o. o. o. o. o. o. o. o. o. o. o. o. o. o.)]

(2) Each dismissal is made by Nos. 19 through 29 of the payment guarantee part.

- 22 20,21 written "the sum of 277.55 billion 50,000,000 won" means "the sum of 2,77.555 billion 50,000,000 won was received" 5)

- As follows, the Defendant, in collusion with B, obtained KRW 6.5 billion by using the financial statements of 2006 AD in collusion with B, and thereby, acquired KRW 157.5 billion in total by allowing CM, CL, EW, and CV to receive KRW 157.5 billion in total, and acquired KRW 164 billion in total.”

- False statement of profit and loss as if the net income had occurred by appropriating the profit of KRW 14.91 billion in the fiscal year 2005 in excess of 23,21, 24, 24, 24, 13, 18, 21, 25 and 17, and the statement of “205 fiscal year and amount” of KRW 1.44 billion in the fiscal year 2005, 26 to 100,000 in excess of the profit of KRW 4.444 billion in the fiscal year 2005, and deletion of each part, 26 pages, “28 fiscal year (205 fiscal year), and 13 fiscal year”

○ 2010 Highest 1721 Cases No. 1721; 1.200

On October 21, 2005, the defendant, as the representative director of CM, purchased the CL shares of CSS or let a third party purchase them, and preserved the principal and interest of CSS 11.5 billion won, at the time of termination of the one-year period of protection deposit.

As the representative director of the defendant and the affiliate managing the overall management of the group, the defendant and the representative director of the affiliate shall acquire the stocks of other affiliate companies, and from a third party to purchase the stock-listed stocks, a thorough examination of the necessity of purchase, proper trading price (market price in the case of listed stocks, and purchase price calculated by over-the-counter trading price or valuation method in the case of listed stocks), etc., if purchased at a price higher than the market price, there must be reasonable grounds, and in paying loan fees, etc., there should be duties that should not be false and excessive fees.

On January 2006, the Defendant, in violation of the above duties, started with the decline of CL from 1,00 won to 1,100 won, and the Defendant was unable to preserve the principal and interest of 11.5 billion won by purchasing CL stocks held by CM or third parties. From March 2006, the Defendant sought measures to preserve the principal and interest with each affiliate representative director, etc. from around March 2006, and ordered each affiliate representative director, who does not have the obligation to purchase CL stocks or warrantys, or pay fees, to compensate for the said principal and interest with each affiliate representative director, etc. by using the influence as the chairperson of AC Group, each affiliate representative director who purchased CL stocks or warrantys at an amount higher than the exchange market price, etc. at an affiliate,

On November 6, 2006, at the above AC Group Office, AD purchases (purchase price of KRW 5,371,179,375) at a price higher than 30% of the closing price of the Exchange (purchase price of KRW 5,371,179,375) and incurred property damage equivalent to KRW 1,222,707,50 of the difference to AD, and from March 31, 2006 to November 13, 206, as indicated in the attached Table of Crimes (13-1) of the attached Table of Crimes (13-1), it made D, CL, and DM to pay a loan handling fee that is not necessary to pay to CSS, and each of the above AD purchased 3,07,707,707,50 won at a price higher than the closing price of the Exchange and suffered property damage at a price higher than 10% of the non-listed stocks at a price higher than 3,006.

As a result, the defendant, in collusion with AD representative director EG, etc., suffered a total amount of 3,072,707,500 won, including an unforeseen damage from the purchase of a unit, from the damaged affiliated companies such as AD, and also acquired property benefits equivalent to the same amount of money to compensate for losses of the principal and interest of the CSS investment in order to secure management rights for CL."

2. Judgment of the court below

0 10 13 Sheets summary of evidence found "Labor Cooperatives" as "Trade Union"

The summary of the evidence of the above crime acknowledged by this court is the summary of the judgment of the court of first instance.

In the column, the following evidence is deleted: (a) the evidence is deleted; and (b) the additional evidence is added; and (c) the part of the evidence recorded in the summary column of the evidence in the judgment of the court of Second Instance is as stated below; and (d) the evidence is as stated in the summary column of the evidence in each judgment of the court below; and (c) such evidence is cited as it is in accordance with Article 369 of the

1. "O of the first instance judgment [Evidence] (Evidence of Deletion] (2010 Gohap1651)" (Article 1-A-1 (1) and (2) (Article 1-1) of the facts constituting the crime of the case in this case: The witness's statement at this court, GE, each prosecutor's statement about GF, the examination of the business structure of the two business activities, the report on the two business activities of the witness (05124), the profit and loss statement in 2005 AD 205, the sales contract for the two business activities of the two business activities, each contract for the sale of the land in the BM Pan Port, each of the contracts for the sale of the real estate in the AM Pan Port, each of the meetings related to the two business activities, each of the reports on the progress of the two business activities, each of the reports on the payment of the two business activities, each of the methods of establishing the stock price for the company on November 13, 2005, each of the documents related to the repayment of the loan and the documents related documents;

(O) [Attachment 2010 Gohap1651] Section 1-A-2(2) and 2-2(3) (loan fraud and fraudulent fraudulent transaction) of facts constituting a crime

: 증인 GT, GS의 이 법정에서의 각 진술, EG(수사기록 제2권 4467면 이하, 같은 기록 제2권 4485면 이하)에 대한 검찰피의자신문조서, GW, GX, GY, HD, HF, HG, HA, HC, HB, GT, GS, HE, HG에 대한 각 검찰진술조서, H, HB, II, II, IK, IL, IM 작성의 각 진술서, 2006. 9. 15.자 여신거래약정서(대구은행 150억 원 대출 관련), 2006. 12. 31. AD 기업신용인증서(한국신용평가정보), 2007. 3. 6. AD 100억 원 여신거래약정서, EH 20억 원 여신거래약정서, 2006. 4. 14. 투자금융심의회 의결서, 2006. 6. 2006년도 투자금융심의회 제1호 안건에 대한 설명자료(프 로젝트 파이낸싱 380억 원), IY 아파트 신축PF 요약[(주)의 PF자금 101억 7,640만 원 대출관련], JA 재건축아파트 신축사업 P/F 요약(2006. 11. 24. 대구 JA 재건축조합의 아파트 사업관련 PF자금 140억 원 대출 관련), 구로구 고척동 IX 아파트 신축사업 P/F 요약[2007. 3. 2. (주)JB의 구로구 고척동 아파트 사업관련 F자금 340억 원 대출 관련], 2006. 10. 2. IR, 영풍상호저축은행 여신거래약정서, 2006. 7. 31. 승인장(136억 원), 2006. 8. 16. 여신거래약정서(14억 원), 2006. 8. 16. 근보증서(JC, JD, AD, AF), 2006. 9. 26. 승인장(70억 원, 20억 원), 2006. 9. 29. 승인장(300억 원), 2006. 10. 2. 여신거래약정서(300억 원), JE(주) 130억 원 근보증서(AD), 2006. 12. 11. 여신심사보고서(JF), 각 P/F 진행 품의서, 2006. 4. 13.자 JG 신축사업관련 P/F 약정체결 및 대출약정 체결품의 사본, 2006. 4. 14. 300억 원 대출약정서(농협중앙회), 2006, 5, 63억 원 연대보증 합의서, 2006. 5. 23. 대출약정서(185억 원), 2006. 5. 29. 여신거래약정서(농협 20억 원 대출관련), 2006. 6. 8. 대출약정서(380억 원), 2006. 9. 22. AF 여신거래약정서 (40억 원), 2006. 9. 22. AD 근보증서, 2006. 9. 18. IZ 200억 원 대출약정서, 2006. 9. 28. 대출약정서(포항양덕IX), 2006, 11. 15. 농협 79억 원 여신거래약정서, 2006. 11. 15. AD 94억 8,000만 원 근보증서, 2006. 11. 13. 대출약정서(140억 원), 외환은행 60억 원 여신거래약정서, AD 60억 원 근보증서, 2006. 11. 7. 대출약정서 (340억 원), 2006. 4. 24. 그룹책임사장운영(안), 남양주 IS 아파트 신축사업 프로젝트금융 대출 대출약정서, 남양주 IS 아파트 신축사업 연대보증서 : ㈜AF 및 ㈜AD, 2006. 9. 15.자 여신거래약정서(대구은행 150억 원 대출 관련)

[Additional Evidence] Article 2 of the crime of the case No. 2010 high-scale 1470 [2] of the crime of the crime of the case No. 2010 high-scale 1470 [Article 47 of the Additional Evidence No. 47]

○ (Embezzlement’s breach of trust of the CNS’s high-priced ship: CY, CX Ship Registry (Evidence No. 49) (Supplementary evidence No. 5 of the CNS’s violation of trust of the CNS’s high-priced ship : CY, CX Ship Register, and 4-B of the instant criminal facts of the case No. 2010 high-priced1470 (Embezzlement of the CM ship proceeds), CNS’s disposal plan (Embezzlement of the CM ship proceeds), review of the CNS shares disposal plan (05114), CNS’s classification by shareholders, each plan to improve the CNS control structure, each unification sovereignty + real stock management ledger (the additional inspection evidence No. 17,19,20,21,221,23,25,26).

0. Paragraph (1) and (b) (1) of Paragraph (1) of Article 1-A of the Criminal facts of the case No. 2010 Highest 1651 and Paragraph (1) of Article 61 of the previous Corporate Accounting Standards (Additional Evidence No. Serial 61 of the Prosecutor’s Additional Evidence No. 2010 Highest 1651 and No. 1651 submitted to the court of the exchange transmission) (Article 2 of the criminal facts of the case in question / [Article 1651 of the previous Corporate Accounting Standards]

○ Section 2-A. (State) of the criminal facts of the instant case No. 2010 high-level 1721 : Changes in the five-year business plan (major 11 companies) in the business plan of KRB consulting report (draft)

2. Each prosecutor's statement of the second instance judgment [Attachment] OP's authenticity, representative statement of the complainant ? Each police's statement of the AP;

A written statement of each police officer's statement of BH, BI, BJ, BK, BL, BN, BO, BO, BP, Q, BR, and BS - Each police officer's statement of BH, BI, BJ, BJ, BL, BN, BO, BO, BR, and BS

(O) The application of each telephone statement to BT, BU, BV, BW, BY, BY, Z, CAB, CB,CC, and each telephone statement to the labor inspector / The application of each telephone statement to BT, BU, BV, BW, BX, BY, BY, CA, CB, andCC, prepared by the labor inspector SY.

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

(2010고합1470호 사건 특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항 제1호, 형법 제356조, 제355조 제2항 [범죄사실 제1항의 업무상배임의 점, 포괄하여, 유기징역형 선택, 다만 형기의 상한은 구 형법(2010. 4. 15. 법률 제10259호로 개정되기 전의 것, 이하 같다) 제42조 본문에 따름], 각 특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항 제1호, 형법 제356조, 제355조 제2항, 제30조(범죄사실 제2항 중 피해자 CD, CK, CL, CM, CN에 대한 각 업무상배임의 점, 각 피해자별로 포괄하여, 각 유기징역형 선택, 다만 형기의 상한은 구 형법 제42조 본문에 따름), 특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항 제2호, 형법 제356조, 제355조 제2항, 제30조(범죄사실 제2항 중 피해자 CO에 대한 업무상배임의 점, 포괄하여, 다만 형기의 상한은 구 형법 제42조 본문에 따름), 구 증권거래법(2007. 7. 19. 법률 제8527호로 공포되어 2009. 2. 4. 시행된 자본시장과 금융투자업에 관한 법률 부칙 제2조로 폐지, 이하 같다) 제207조의2 제1항 제2호, 제188조의4 제3항, 형법 제30조(시세조종으로 인한 증권거래법 위반의 점, 포괄하여, 징역형 선택), 각 형법 제356조, 제355조 제2항, 제30조(CX와 CY 고가매수로 인한 각 업무상배임의 점, 각 징역형 선택), 특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항 제1호, 형법 제356조, 제355조 제1항, 제30조(CP 매각대금 업무상횡령의 점, 유기징역형 선택, 다만 형기의 상한은 구 형법 제42조 본문에 따름), 특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항 제2호, 형법 제356조, 제355조 제1항, 제30조(CQ 매각대금 업무상횡령의 점, 다만 형기의 상한은 구법 제42조 본문에 따름) (2010고합1651호 사건】 구 증권거래법 제207조의3 제2호, 제186조의2, 형법 제30조(사업보고서 허위 작성의 점, 징역형 선택), 각 특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항 제1 호, 형법 제347조 제1항, 제30조[별지 범죄일람표(8) 중 대출금 부분 순번 7, 8, 13, 14, 16 내지 20의 각 사기의 점, 각 유기징역형 선택, 다만 형기의 상한은 구 형법 제42조 본문에 따름, 각 특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항 제2호, 형법 제347조 제1항, 제30조[별지 범죄일람표(8) 중 대출금 부분 순번 9, 10, 11, 12, 15, 21의 각 사기의 점, 다만 형기의 상한은 구 형법 제42조 본문에 따름], 각 특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항 제1호, 형법 제347조 제2항, 제1항, 제30조[별지 범죄일람표(8) 중 지급보증 부분 순번 19, 20, 22, 24, 25, 26의 각 사기의 점, 각 유기징역형 선택, 다만 형기의 상한은 구 형법 제42조 본문에 따름], 각 특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항 제2호, 형법 제347조 제2항, 제1항, 제30조[별지 범죄일람표(8) 중 지급보증 부분 순번 21, 23, 27, 28, 29의 각 사기의 점, 다만 형기의 상한은 구 형법 제42조 본문에 따름], 특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항 제1호, 형법 제347조 제2항, 제1항, 제30조 (AD, CM, CL, EW, CV의 합계 1,640억 원 대출사기의 점, 포괄하여6), 유기징역형 선택, 다만 형기의 상한은 구 형법 제42조 본문에 따름), 구 증권거래법 제207조의 2 제1항 제2호, 제188조의4 제4항 제2호, 형법 제30조(사기적 부정거래의 점, 징역형 선택), 구 증권거래법 제207조의2 제1항 제2호, 제188조의4 제3항, 형법 제30조(시 세조종으로 인한 구 증권거래법위반의 점, 포괄하여, 징역형 선택), 각 특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항 제2호, 형법 제356조, 제355조 제2항, 제30조(CM CI 사용료 관련 피해자 AD, CL, AF, CD, CZ에 대한 각 업무상배임의 점, 각 피해자별로 포괄하여, 다만 형기의 상한은 구 형법 제42조 본문에 따름), 각 형법 제356조, 제355조 제2항, 제30조(CM CI 사용료 관련 피해자 JQ, CV, CN, CT, CJ에 대한 각 업무상배임의 점, 각 피해자별로 포괄하여, 각 징역형 선택)

Article 35(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes; Article 356 and 355(2) of the Criminal Act; Article 4 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes; Article 35(2)2 of the former Criminal Act; Article 356 and 355(2)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes; Article 356 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes; Article 355(2) and 30 of the Criminal Act; Article 36 of the former Criminal Act on the AMF's Embezzlement; Article 35(1)2 of the Act on the AMF; Article 35 of the former Criminal Act on the AMF's AMF; Article 50 of the former Criminal Act on the AMF's Embezzlement; Article 56(2)2 of the former Criminal Act on the AMF's Embezzlement; Article 350 of the former Criminal Act on the AMF's Misappropriation; Article 536 of the former Criminal Act

[209Gohap190] Article 3 (1) 1 of the Act on the AF due to loan of funds to AG, Articles 356, 355 (2), and 30 of the Criminal Act (the main sentence of Article 42 of the former Criminal Act), Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 356, 355 (2), and 30 of the Criminal Act (the upper limit of the term of punishment is the main sentence of Article 42 of the former Criminal Act), Article 3 (2) 2 of the Act on the AF due to loan of funds to AG, and Articles 356, 35 (2), and 30 (the point of occupational breach of trust due to loan of funds to AG, and the choice of limited term of punishment) (Article 42 of the former Criminal Act) (Article

Articles 109(1) and 43(2) of each Labor Standards Act (including a violation of the obligation to pay regular wages, and a violation of the obligation to pay regular wages by each victim: Provided, That Article 30 of the Criminal Act and the choice of each imprisonment with labor for the part of Article 3-A of the judgment of the court below), Articles 109(1) and 36 of each Labor Standards Act (including a violation of the obligation to liquidate money and goods, a violation of the obligation to compensate for losses by each victim), Articles 9(1) and 36 of each former Trade Union and Labor Relations Adjustment Act (amended by Act No. 930, Jan. 1, 2010; hereinafter the same shall apply), Articles 92 subparag. 1(e), 31(1) (including a collective agreement due to a violation of the obligation to pay wages to full-time officers of a trade union, and a violation of each victim’s each of them:

1. Aggravation of concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2 and 3, Article 50 of the Criminal Act, and Article 50 of the Criminal Act, and Article 164 billion won loans of the largest AD, CM, CL, EW, and Cy, which are the largest AD, CL, EW, and Cy, shall be punished by imprisonment with prison labor and a fine with prison labor aggravated for concurrent crimes prescribed by the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud).

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act provides CJ’s real estate acquisition price as security in the course of operating a group as the chairperson of AC Group and accepting CJ. In the process of taking over CJ, the Defendant inflicted property damage on an affiliate company by using the affiliate’s funds for its management right defense or using the funds for operation of other defective affiliate companies or for capital increase with compensation for new stocks. As a listed company, AD, which was fit for the listing company, was taken out from financial institutions using accounting decentralization and financial statements to avoid undermining the overall credit rating of the group due to the loss of benefit of convertible bonds issued by AD and CD. In order to prevent the decline of the company’s total credit rating due to the company’s own financial environment, it was inevitable to use CM’s loans to meet obligations such as short-term loans, etc., or to use CM’s funds for the whole financial institutions and for non-performing funds. In light of the above, the Defendant’s financial company’s considerable damages caused by the Defendant’s breach of trust to its employees, as well as the company’s financial affiliates of trust.

However, it appears that the defendant did not dispute some of the criminal facts in this court and divided the wrong facts, and considerable part of the damage amount caused by fraud and breach of trust alleged in the criminal facts was not attributable to actual damage. In light of the size of the AC Group, the content of the crime of embezzlement and breach of trust in each of the occupational duties of this case, and the amount of damages, there are relatively many parts that can be viewed that the defendant purely and individually benefited, and there is no history of punishment except for a punishment sentenced for a long time minor fine, and the defendant's age, family environment, motive and circumstance of each of the crimes in this case, and circumstances that are conditions for the punishment in this case after the crime, etc. shall be determined as per the order.

Parts of innocence

1. Summary of this part of the facts charged

Around October 2005, the Defendant owned almost 100% of the shares of CL and owned 20.45% of the shares of CL. At this time, FC Chairperson FD held shares in bulk at 18.14%, and deemed FC Chairperson to be hostile M&A; and CM’s management rights to be protected, the Defendant organized an emergency situation room consisting of the representative directors of each affiliate such as DDR at the Group level, and discussed countermeasures against the employee’s daily report from the relevant employee, and decided to protect management rights to increase the shares of 10 billion won through a third party allocation method of capital increase with capital increase in excess of 10 billion won. In consultation with CS, FC Chairperson designated the company as a third party allocation and participated in capital increase in capital increase in excess of 10 billion won of CL.

In the process of consultation on participation in capital increase, the CS agreed to receive the return of 11.5 billion won principal and interest of investment in capital increase by taking into account the fact that profitability and safety are not guaranteed due to the large M&A of CL; management disputes; and that the principal may be lost due to management disputes; and the return of the principal and interest of 11.5 billion won.

On October 18, 2005, the CCR and CSS, the largest shareholder of CL, made a public announcement that the CL will participate in the CL’s third party allocation. On October 10, 2005, the CL and CSS, the largest shareholder of CL, made an agreement with the CL, stating that (i) the CSS will provide 11.5 billion won of the investment principal and interest in relation to the participation of CL’s 10 billion won of the CL’s 10 billion won of cL’s cL’s cL’s cL’s cL’s cL’s cL’s cL’s cL’s cL’s cL’s cL’s cL’s cL’s cL’s cL’s cL’s cL’s cL’s c.

On October 21, 2005, the Defendant, as the representative director of CMF, purchased CL stocks of CSS directly or let a third party purchase them, and preserved the principal and interest of CSS 11.5 billion won on November 2006, when the period of one-year period of one-year period of protection expires.

As the representative director of the defendant and the affiliate managing the overall management of the group, the defendant and the representative director of the affiliate shall acquire the stocks of other affiliate companies, and from a third party to purchase the stock-listed stocks, a thorough examination of the necessity of purchase, proper trading price (market price in the case of listed stocks, and purchase price calculated by over-the-counter trading price or valuation method in the case of listed stocks), etc., if purchased at a price higher than the market price, there must be reasonable grounds, and in paying loan fees, etc., there should be duties that should not be false and excessive fees.

On January 2006, the Defendant, in violation of the above duties, started with the decline of CL from 1,00 won to 1,100 won, and the Defendant was unable to preserve the principal and interest of 11.5 billion won by purchasing CL stocks held by CM or third parties. From March 2006, the Defendant sought measures to preserve the principal and interest with each affiliate representative director, etc. from around March 2006, and ordered each affiliate representative director, who does not have the obligation to purchase CL stocks or warrantys, or pay fees, to compensate for the said principal and interest with each affiliate representative director, etc. by using the influence as the chairperson of AC Group, each affiliate representative director who purchased CL stocks or warrantys at an amount higher than the exchange market price, etc. at an affiliate,

On November 6, 2006, at the above AC Group Office, AD purchased (purchase price of KRW 5,371,179,375) at a price increased by 30% by the closing price of the Exchange (purchase price of KRW 5,371,179,375) more than 475 won, and incurred property damage equivalent to KRW 1,22,707,500 in difference from March 31, 2006 to November 13, 206, as stated in the List of Crimes (13) in the attached Table 1 of the judgment of the court below, each damaged affiliated company suffered property damage equivalent to the sum of KRW 7,379,707,750,707,707,50 in the form of loan handling at a higher price than KRW 740% from the purchase price of the non-listed stocks owned by CS to each damaged affiliated company.

As a result, the defendant in collusion with AD representative director EG, etc., caused property damage to the affected affiliated companies, such as AD, and acquired property profit equivalent to the same amount to compensate for the loss of the principal and interest of CSS investment in order to secure management rights for CL.

2. Determination

As stated in the above 3.B. (2), the part of the facts charged that the amount of damages or profits from the purchase of shares is KRW 4,320,00,000 in the amount of damages or profits from the purchase of shares constitutes a case where there is no proof of a crime, and thus, it should be pronounced not guilty. However, as long as the court found the defendant guilty of the occupational breach of trust in relation to such crime, it shall not be sentenced

The presiding judge and judges shall be appointed.

Judges Kim Gin-ran

Judges Yoon Jong-dae

1) Before July 25, 2006, the trade name was “CR” and thereafter changed to “DM”, and the trade name on August 28, 2007 was changed to the CD.

(See Supreme Court Decision 2010No. 10913, No. 117838, Mar. 3, 2010; 291, Mar. 8, 201)

However, this decision is called 'DM' or 'M'.

2) Before July 25, 2006, the trade name was changed to “AD” after it was changed to “AD.”

3) In addition, the Defendant withdrawn the Defendant’s assertion of the grounds for appeal concerning mistake of facts or misapprehension of legal principles in the trial prior to remand.

4) Examination on the violation of the Securities and Exchange Act due to the acquisition of unjust enrichment by the manipulation of market prices of AD stocks, which was acquitted by the lower court.

Although the Prosecutor asserted the grounds for appeal, this part is not re-determined as seen earlier, but it is erroneous or misunderstanding of legal principles by the Prosecutor.

All remaining parts which were alleged as the grounds for appeal were found not guilty.

5) The prosecutor indicted the borrower to the effect that “the Defendant had the borrower, such as CD, gain pecuniary advantage equivalent to the loan,” but the said borrower was indicted.

It is reasonable to deem that a loan was granted property rather than that it acquired property benefits, which is equivalent to the same fact.

As the legal evaluation is different, there is no obstacle to the defendant's exercise of his right to defense, so it is recognized as changing the above.

The same purport is that all of the criminal facts related to property interests are the same.

6) The criminal facts of this part are that the defendant submitted financial statements of 2006 fiscal year AD's 206 fiscal year when the defendant settled accounts to the person in charge of corporate assessment and the shares of AD

It has been evaluated as high level and on the basis of this, it shall be established under the lead of the Korean bank (it shall be established under the lead of the Korean bank according to the financial conditions agreed in advance).

Korea-C Restructuring Limited Companies receive funds from the lender and lend loans to the borrower such as AD, and manage the collateral provided by the borrower.

AD and other borrowers received a total of KRW 164 billion from several times to receive the principal and interest repayment duties, and acquired it by fraud.

In other words, from the beginning, the defendant had a single criminal intent to acquire the full amount of the loan from the lender and the loan of this case has been formed.

Damage in light of the composition of the entire loan of this case, including the circumstances, relationship between the lender, the process and role of establishing a AC Restructuring Limited Company.

Since a person can be seen as a single person, it is reasonable to evaluate the act of defraudation by the defendant as a single crime. However, the court of first instance is the above crime.

On the premise that a single crime of fraud is established for each borrower, it seems that this was dealt with as concurrent crimes. However, this error was decided by the judgment below.

Since it does not seem to have influenced the judgment of the court of first instance, it does not reverse the judgment of the court of first instance on this ground.

7) 10,00,000,625 operating capital for financing KRW 10,00,000,625, method of capital increase for third party allocation, common shares for issuance of new shares, number of deposits for protection for one year in full, and par value per share.

The amount of KRW 500, the issue value per share of KRW 1,145, the payment date of KRW 205, October 21, 191 shall be subject to the third allocation of KRW 300, the payment date.

A person shall be appointed.