(영문) 서울중앙지방법원 2017.1.19. 선고 2015고합1038 판결

The Defendant, who was employed in the Posting Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing 1, 207, was transferred from March 2009 to March 16, 2012 to March 17, 2014.

(a) A violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) due to the creation of funds of about 3.85 million US dollars;

At the J Office located in Gangnam-gu, Seoul from April 2009 to June 2, the Defendant received reports from the head of the Civil Engineering Project Headquarters L to the effect that the Defendant is planning to create funds at the site of an amount equal to 1% of the construction cost in Vietnam, and N entered into a subcontract agreement with 0, etc., which is the subcontractor in the construction site in Vietnam, excessive appropriation of the construction cost, and used approximately KRW 3.85,000,00,000, which is the difference from August 2009 to June 2013, 2013, including and paying them for each construction cost item as shown in attached Table 1.

As a result, the Defendant conspired with N, etc. in order, embezzled approximately KRW 3.85 million (USD, approximately KRW 4 billion) of the victimJ.

(b) Property in breach of trust from P;

피고인은 건축사무소를 운영하던 처남 Q가 2008년경부터 경기불황으로 직원 급여를 지급하지 못하고 처남댁의 신용카드 대출로 생활비를 마련하는 등 경제적으로 어려움에 처하자 2009. 7.경부터 생활비를 지원하여 주고 있었다.

The Defendant: (a) from February 2010 to May 2, 2010, the Defendant received a request from (i) Jinok to (ii) Jinok’s golf course implementation project from (ii) Kinok to (iii) Kinok, and (iv) received a request from S to order construction works on the Vietnam road construction; (b) “I want to have personnel know,” and (c) expressed his intention to provide money and valuables,” and (d) around that time, P again would be difficult to meet or there is no situation to go in South Korea; (b) notified P and Q Q of contact with each other; (c) from Apr. 16, 2010 to Sept. 1, 2010 to Oct. 1, 2010, Q would receive a total of KRW 100 million from P and Q from P to Feb. 1, 2010 to Oct. 21, 201 to use it as an advance payment for construction work, and (d) to Q Q Q at the expense of Incheon 2100.

As a result, the Defendant, who is in charge of another person's business, acquired property in total of KRW 185 million in return for an illegal solicitation in violation of the occupational duty to select a subcontractor fairly with the care of a good manager.

( state)The U, through the Field Director V, established a legal entity in Vietnam, W (C) around November 2009, after receiving a proposal from N, a general site manager of the construction works of the 'M' expressway 1-3 construction works, W (C) in Vietnam, and consulted on the estimate amount of N and Road Packing construction works.

On May 2010, the Defendant issued a request from P to “A” to “I will be able to get X S awarded a contract for the package work of an expressway constructed by J in Vietnam.” The Defendant instructed N of the General Site Director to “I will be able to get S to get S a contract for the construction work of an expressway constructed in Vietnam,” and then asked the head of the General Site Director to pay several calls thereafter. Although the budget for the execution of the road package work is about 38 billion won, even though the budget for the implementation of the road package work is about 4.5 billion won, the Defendant sent the implementation budget to S President X to KRW 4.3 billion without being able to demand the price of KRW 4.3 billion, the Defendant would be able to receive the minimum amount of KRW 4.3 billion for the bid price of the public service team leader Y and to comply with the tender price of KRW 1.5 billion, and the Defendant would be able to obtain the bid price of KRW 1.5 billion to A and 2, a local government tender.

Accordingly, the defendant, in collusion with N, conducted a bidding process in order to select a subcontractor for a road package work with 1 to 3 sections of "M" conducted by J through deceptive means.

D. On February 25, 2011, according to the bid under the above Paragraph (c) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) that paid approximately KRW 1 billion for the construction price in accordance with the false statement of intent, the subcontract for road packaging works for the 1-3 sections of the "M" concluded between J and AC and AD on February 25, 201 was agreed to be Vietnam East (VND). After the conclusion of the contract, not only the commencement of road packing works but also the pre-construction works were not carried out by the end of February 2011, there was no progress payment except for some advance payments.

On October 16 to 20, 2011, during the business trip between Vietnam, the Defendant reported to N that “P is trying to work as a company,” and that N would make an additional payment to P by means of unnecessary modification of the contract at AF hotel accommodation located in AE, and the Defendant agreed that N would make an additional payment to P by raising the construction cost to P through unnecessary modification of the contract, and that N would pay approximately 30% of the contract price to AC and AD around October 26, 201. At the time of the revision of the internal policy so that N would pay approximately 30% of the contract price to AC and AD in US US US dollars (USD), the contract price has been substantially increased by using the trend of increase in the value of US US dollars value at the time of the construction work, and the construction work has yet to be performed on the road packing and has been paid some portion of the payment for the completed portion after the commencement of the construction work.

After that, on December 29, 201, N had no reason to pay the construction cost due to the fact that the Road Packing Corporation had not run at all, and made a false c and AD record as if part of the road Packing was carried out, and made it possible for P to transfer the construction cost based on the c and AD to the "AG account established by P to Vietnam by applying the exchange rate higher than the basic exchange rate at the time of the contract.

Accordingly, the defendant, in series with N and P, embezzled about KRW 1 billion of the victim J's property.

E. AH, a local corporation in Indonesia of J, a violation of the Specific Economic Crimes Aggravated Punishment Act (Misappropriation), was awarded a contract with AJ, a foreign joint venture corporation of AI, for the Indonesia "AK," and around September 5, 201, it was awarded a subcontract to "AM, a local corporation of AL (hereinafter referred to as "AL") for the supply of ready-mixed among them.

J Contract provisions stipulate that advance payment shall be guaranteed prior to the payment of the advance payment to the contractor, and unlike in the case of ‘AP Bron guarantee' and ‘a warranty for the performance of the contract', in the case of ‘a guarantee for the performance of the contract' and ‘a warranty for the performance of the defect', the grounds for exemption are limited only to the case of the appointment of an excellent partner among AI affiliates or equipment and equipment companies, but the AL or the above local corporation is not an AI affiliate, nor an excellent partner, and it does not meet the requirements for exemption from advance payment.

On the other hand, AM had no sales performance as a new corporation. To obtain an advance payment guarantee from a financial institution necessary for AH, it was possible to issue a guarantee certificate only to provide the local financial institution in Indonesia or domestic bank with an amount of money equivalent to advance payment or security equivalent thereto. In addition, AL, the parent company, when it obtains a loan of 107 billion won from an industrial bank, etc. in 2008, it guaranteed the payment guarantee and bears the joint and several liability liability amounting to 78.4 billion won as of the end of 2011. However, N (State) continued to have suffered losses on the first half of 209, and its current financial status has deteriorated since 2010 when it was difficult to obtain a guarantee of payment guarantee from APE's local financial status and 3.5 billion won as a joint and several liability guaranteed by APE's new financial condition and 3.5 billion won as security for APE's new financial condition and 1.5 billion won as security for APE's loan guarantee.

The defendant, as the representative director of J, pays in cash under the pretext of advance payment for the smooth performance of the subcontracted project, he complies with the relevant provisions of the company and takes appropriate measures to recover claims, such as the receipt of advance payment from the subcontractor, and in violation of his duty to prevent damage to J, thereby exempting AL from submitting a letter of guarantee in the above subcontract, thereby undermining AL from the burden of providing security and fees necessary for the issuance of a letter of guarantee, and at the same time, refusing the demand of AL 1 to be paid first, around August 5 to 9, 201, the defendant, as the representative director, 300,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,00,000,000,000,00,000,00

As a result, the Defendant violated his duties and gave approximately KRW 3.7 billion to AM operated by Q Q with an ordinary personal-friendly relationship, and suffered damages equivalent to the same amount to AH as the victim.

(f) Property in breach of trust from AT;

On September 20, 2010, the Defendant issued a request to the effect that “(ju) AY is able to receive a large number of construction and civil works under a negotiated contract” from AT, which is a (ju) AY operator, who performs various landscaping works as a cooperation company, and paid the said three persons a total of KRW 1,45,000,00 on behalf of the Defendant, such as Green Plum, gld, cart, game expenses, etc.

In addition, from August 29, 2010 to August 13, 2014, the Defendant received approximately KRW 49,035,000 in total over 34 times from AX consortiums, as shown in attached Table 3, from around August 29, 2010 to around August 13, 2014, and received cash KRW 10 million from the Defendant’s husband’s office in Yeonsu-gu Incheon Metropolitan Government upon the Defendant’s request to the same purport at the office of work, and acquired property benefits equivalent to KRW 61,530,50 in total, in violation of his/her duties. On February 2013, the Defendant received cash KRW 10,000 from the above golf club to Incheon, and around June 1, 2014.

2. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) due to the creation of funds of USD 3850,000 among the charged facts of this case

A. Summary of the defendant and defense counsel's assertion

There is no fact that the Defendant received from L to L a report that the N in the construction site of the Vietnam Highway (hereinafter referred to as the “instant Highway”) is a plan to create a non-fund as stated in the facts charged, and approved or impliedly approved.

B. Determination

1) Comprehensively taking account of the following facts and circumstances acknowledged by the evidence duly adopted and investigated by this Court, it is recognized that the Defendant received a report from L to the effect that “the Defendant demanded rebates amounting to approximately 1% of the construction cost in the instant expressway construction, and that he would take measures to identify at the site.”

① The entire L and N consistently from the prosecution to the present law, the CB of the Vietnam Road Construction (VEC) ordering the construction of the said expressway, demanded rebates amounting to about 1% of the construction cost, and N reported this to L around the first half of 2009 (the time when the contract form and the commencement type of construction work of the said expressway A1 Section was completed) and L stated to the effect that L reported this to the Defendant, the president of the said expressway around that time.

L/N has made an accurate statement at the time when the above report was made (as of March 24, 2009, where the contract forms of Section A1 had been contract forms or commenced on or around April 25, 2009), and whether N has reported directly to L in Vietnam or by telephone, and L has made a statement either clearly or against each other as to whether L received the above report from N immediately after receiving it, or whether L has accepted it after reporting to the Defendant. However, considering that the point at which L/N first made a statement on this case to the prosecution after the lapse of about six years from the first half of 2009, considering that the point at which L/N first made a statement on this case to the prosecution is more than six years after the first half of 2009, some disagreements with the above detailed matters should not affect the overall credibility of N and L’s each statement.

② At the time of the instant expressway construction, the J Civil Works Headquarters, which had been in charge of L at the time of its construction, was a purely ordered civil construction work from the main overseas ordering office rather than an AI Co., Ltd. (hereinafter “AI”), and the construction cost of the Section A1 is more than KRW 100 billion and the total construction cost of the Section A2 and Section A3 was approximately KRW 40 billion. In addition, at the time between J and the ordering office, the contract was not concluded regarding the Section A2 and Section A3 of the said Highway construction work, and as the order office is anticipated to interfere with the progress of construction in the ordering office, it was difficult for J to easily refuse the demand of the ordering office.

③ Since the Defendant assumed office as the president of the J’s representative director on March 2009, the Defendant gave instructions to eradicate inappropriate practices in the construction industry, including the grant of rebates in the Republic of Korea and abroad while emphasizing ethical management, and even AI, which is the mother company, continued to provide such instructions. Also, L is an external origin that served in another company and joined the J as an executive officer around November 2003. Considering these circumstances, it is acceptable to the effect that L, the head of the Civil Work Headquarters, who is in a situation where it is inevitable to continue the said construction, was in need of large-scale rebates in the ordering office, could not be arbitrarily handled and reported to the Defendant who is the representative director.

2) 그러나 L의 법정진술에 의하면 ① 해외 발주처에서 리베이트를 요구하는 경우에는 이 사건에서와 같이 하도급업체에 공사비를 부풀려 지급한 다음 원래 공사비와의 차액을 돌려받아 비자금을 조성하는 방법 외에도, 발주처에서 내세우는 특정한 에이전트와 용역계약을 체결하는 등 여러 방법으로 그러한 요구에 응할 수 있는 점, ② 에이 전트와의 용역계약은 해외 공사를 수주하는 과정에서 정식으로 체결되기도 하는 점, ③ L는 N로부터 베트남 도로공사 CB이 리베이트를 요구한다는 보고를 받을 당시 리베이트와 비자금을 동일한 것이라고 생각하지 않았고, N가 공소사실과 같은 방법으로 비자금을 조성할 계획이라는 사실은 몰랐던 점이 인정된다. N도 법정에서 J이 베트남 쑹룽 미투언 고속도로 공사를 수주하지 못한 것은 발주처에서 과도한 에이전트 수수료를 요구하였기 때문이었다고 진술하여 L의 위와 같은 진술과 부합한다.

In addition to the above circumstances, the Defendant’s receipt of a report from L to the same purport cannot be deemed as having prevented the crime of occupational embezzlement in a way that receives the difference in the construction cost, as stated in the facts charged, in addition to the fact that: (a) the “field measures against the demand for rebates by the owner of an order” cannot be deemed to mean the full acceptance of such demand for rebates; (b) the transfer agreement is very diverse forms of crime, such as embezzlement or breach of trust; (c) there is no evidence to acknowledge that the transfer agreement was concluded only at the head office, not at the construction site, such as the local subsidiary, etc. of J; and (d) there is no fact that the executives and employees of J such as L and N, etc. from other construction projects, other than the Highway Corporation, which the owner of the instant expressway, are plans to create funds in the same manner as in this case.

3) As long as the Defendant was unaware of the N’s embezzlement crime, the mere fact that the Defendant did not seem to have any response by receiving the above report from L, and thereby did not restrain it, cannot be found to have the intention of co-processing, which is a subjective element for establishing the joint principal offender.

C. Sub-decision

Ultimately, as in the facts charged, the Defendant cannot be deemed to have known of the act of raising USD 3850,000 in the instant expressway construction and had the intention to jointly process it. Thus, the Defendant cannot be held liable for the crime of occupational embezzlement as a co-principal for the crime of occupational embezzlement.

3. As to the receipt of breach of trust from P among the facts charged in the instant case

A. Summary of the defendant and defense counsel's assertion

1) As indicated in the facts charged, there was no fact that the Defendant received illegal solicitation from P in relation to the golf course implementation project or the Vietnam road construction project, or called Q Q in return for Q. The money received from P is a reasonable price for Q to perform design service.

2) The receipt of money and valuables by Q Q from P cannot constitute a crime of breach of trust under Article 357(1) of the former Criminal Act (amended by Act No. 14178, May 29, 2016; hereinafter “former Criminal Act”).

B. Whether Q received money from P constitutes an illegal solicitation for the Defendant

1) As evidence consistent with the facts charged in this part, P and BA made each statement to the effect that the amount paid by P to Q is not the cost of design service or loan, but the cost of solicitation to the Defendant.

2) However, in full view of the following facts and circumstances acknowledged by the evidence duly admitted and investigated by this Court, P and BA’s above statements are difficult to believe.

A) Performance of design services by Q Q

① Around April 2, 2010, Q and P entered into a contract with Q and P on the content that Q will prepare and provide the necessary design drawings (hereinafter “instant service contract”) with respect to the “BTTTTT development project” (hereinafter “the instant other canal system development project”). (No more than 332 pages of evidentiary records”).

In addition, on March 22, 2010 prior to the conclusion of the contract, Q has already prepared one sheet of business plan including outlines (total site area, total floor area, floor area ratio, horizontal number, etc. by complex), outlines by complex (area of site by complex, total floor area, floor area ratio, number of households by square type), land use plan, various plot plans, ground plan, floor plan of the first floor, simple concept, 1 sheet of business plan including anticipated landscape, etc. (where evidence records 3: 2473-244 pages, 2474 pages, 1 "REV-1" on the upper right side of the 2474 pages, as seen below, from September 1, 2010 to around 2010, Q continued to perform the project plan including approximately 9 percent of the total project plan (3rd of evidence No. 2490, Oct. 14, 2010; 2010.

(Evidence 38)

② In a case where an executor becomes extinct without obtaining approval of a business plan in the same implementation project as the other canal wells development project of this case, there are many practices that the designer does not receive a certain portion of the service cost from the executor, and the fact that the service cost is not determined in the instant service contract and the contents of the said development project are determined in the future.

However, it is also difficult to accept that a certified architect has continued to receive service results under any pretext, such as down payment, on the ground that the executor failed to obtain the approval of a design service contract even after having entered into the design service contract. In particular, in the instant case, there was a circumstance to believe that Q has imminent approval of a business plan, as it was posted a banner at the time Q visited the site of another canal wells development project of this case, for which the landowner’s consent rate was over 75%. As seen earlier, as seen earlier, Q entered into the instant service contract on April 2, 2010, where Q Q and P entered into the first business plan around March 22, 2010, with Q and it was difficult to readily conclude that P obtained the first service result from Q from Q and that it continued to implement the construction work of this case with Q and it was difficult to conclude that Q and Q were in the form of the building project of this case, and that it continued to be in the form of the entire construction project of this case until it entered into a new construction plan around 2101.

③ Around April 26, 2010, Q requested a large number of enterprises, including BC, BD, BE, BF, BG,H, and BI to estimate the subcontract of the instant service agreement and received the response thereto. Based on this, Q sent a letter of public notice demanding P to determine the content of specific design services and enter into a service agreement with a service cost of KRW 1.25 million on April 29, 2010.

④ On February 23, 2011, Q entered into a service agreement with P as the introduction of P, and thereafter, Q performed design services as well as design services with respect to “BK new construction project,” “Indonesia,” “BL project,” and “BM new construction project,” at the P’s request. The nature of service results produced according to the above design services is less than 3.9% (BJ) with less than 18.21% (BJ).

B) Preparation of Q’s loan certificates

① On July 12, 2010, Q has written a loan certificate to P to the effect that “The amount of KRW 100 million shall be repaid as part of the price for the instant service contract in the future, and if the service is not performed or the conditions are changed, the repayment period, conditions, etc. of the obligation shall be determined by separate consultation,” and on September 1, 2010, Q received KRW 100 million for the design service cost, and on October 31, 2010, if the development project of the instant other canal services is not run until October 31, 2010, Q promised to convert the amount into the borrowed money and repay it by March 31, 201.”

However, as seen earlier on April 2, 2010, Q has already produced a large number of service outcomes after the instant service contract was prepared, and there seems to be no reason to prepare a loan certificate and deliver it to P in order to keep the basis for receiving money from P. In particular, as of July 12, 2010, Q prepared a loan certificate as above and delivered Q Q to Q for the first time, not only KRW 10 million but also KRW 90 million, and there is no reason to prepare a loan certificate and KRW 100 million per face value to include Q for the remainder of 10 million which Q had not yet received. In light of the content of the instant service contract, it is difficult to accept that Q’s oral statement to include the aforementioned 10 million loan certificate and KRW 100,000 in Q for the first time after it was made. In light of the foregoing, it is difficult to accept that Q’s statement that Q received the above loan certificate and KRW 100,000 in Q for the first time after it was made.

② As seen earlier from the loan certificate prepared by Q Q on September 1, 2010, the fact that P did not pay the amount of KRW 100 million, including the fact that P did not request P to pay the amount of KRW 100,000,000,000,000,000 from March 31, 201. Q written additional loan certificates (Evidence 3:38-2340) about some of the additional amount of money received from P after March 23, 201, and Q did not demand P to pay the amount of money listed in the above loan certificate until now.

However, in light of the details and contents of Q’s loan receipt preparation as seen earlier, each of the above loan certificates appears to have been received as a means for P to return advance payments, in a case where Q does not perform the corresponding design service in the future with respect to the money paid in advance to Q as the design service for various construction projects, including the instant canal license development project. Furthermore, as long as Q Q performs the service of producing service results as seen in the above paragraph (a), it cannot be deemed that P did not demand repayment based on the above loan certificate, and even if Q did not demand repayment based on the above loan certificate, it cannot be deemed that P prepared only formally to justify the Defendant’s act of misappropriation.

C) All circumstances at the time when P delivers money to Q

① From September 1, 2010, P paid a total of KRW 100 million to Q, P did not pay all the money from February 21, 201 of the following year until February 201 of the following year. The period between P and BN (the Defendant’s wife) was provided with KRW 62 million in total for living expenses and corporate operating funds.

However, as seen below, around September 1, 2010, P, which was the time when it was not confirmed that P, a local subsidiary of S, would receive orders from P, a local subsidiary of the instant expressway, and the implementation budget was increased. If P, as stated in the facts charged, was paid for requesting P, to allow Q to receive illegal solicitation against the Defendant, i.e., the above expressway packing construction, as in the facts charged, it is difficult to readily accept that P, which was the situation where P, which was the situation where P, should make efforts to receive orders from P, should have to stop providing money and valuables to Q during the above period, and would have to take measures for the circumstances where Q is difficult to repair.

② Since Q received KRW 100 million in total from September 1, 2010, it is around March 23, 2011, which concluded a service contract with P and BJ with respect to P, as seen in the foregoing paragraph (A) commencing to receive money again from P.

3) Other evidence submitted by the prosecutor alone is insufficient to recognize Q Q’s receipt of money from P as an illegal solicitation, and there is no other evidence to acknowledge this otherwise. Rather, there is sufficient room to deem that Q Q’s performance of design service as a reasonable price received by Q Q as a payment for the Defendant’s illegal solicitation.

C. Whether Qua received money from P can be assessed equally as the Defendant directly received money

1) Under the text of Article 357(1) of the former Criminal Act, which provides for the crime of taking property in breach of trust, where a person who administers another person's business obtains property or property benefits from another person, other than the person himself/herself, even if he/she received an unlawful solicitation in connection with his/her duties, it is clear that the above crime is not established: Provided, That in cases where a relationship exists under which another person can be assessed equally as receiving property or property benefits from a person who received property or property benefits from social norms by receiving property or property benefits from another person, such as where the other person received property or property benefits from another person, or where the other person received property or property benefits from another person, or where he/she was responsible for the other person (see, e.g., Supreme Court Decision 2008Do1321, Mar. 12, 2009).

2) According to the evidence duly adopted and examined by this court, it is recognized that there was an economic difficulty, such as failure to pay wages to employees, due to difficulties in the operation of the “BP” design office from around 2008, which he operated. Q was provided by almost every month BN, and BO after July 2009, and Q was provided with living expenses and company operating funds from P, and that it was not provided by BN and BO during the period in which Q was provided with money from P.

3) However, in light of the following circumstances acknowledged by the above evidence, i.e., (i) Q was an adult operating his own business, who was living or did not live together with the Defendant; (ii) there is no obligation to support Q; and (iii) there is no evidence to acknowledge that the Defendant instructed Q to his wife, the Defendant did not directly receive money from P. In light of the above facts alone, it is insufficient to evaluate Q as being the same as the Defendant directly received money from P, and there is no other evidence to acknowledge it otherwise.

4. As to the interference with bidding among the facts charged in the instant case

A. Summary of the defendant and defense counsel's assertion

The Defendant merely ordered N to give up only one time a company that P wants to give a subcontract to the Highway of this case, and did not instruct N to give orders to N to receive illegal solicitation from P as stated in the facts charged.

B. Determination

1) As evidence consistent with this part of the facts charged, there is a statement made by N to the effect that “Around spring spring in 2010, the Defendant sought to request S to order the package work of the Highway, and the Defendant asked N to allow S to order the above construction work.” Even thereafter, S asked S to promptly request several times at the latest, and asked S to review S from the Defendant to the package work of the Highway,” and that “I received a call from the Defendant to review S from the Defendant to the package work of the Highway, and then received a demand call from the Defendant that the contract with S is delayed.”

2) However, in full view of the following facts and circumstances acknowledged by the evidence duly admitted and investigated by this Court, the Defendant introduced P to N and gave instructions to the extent that it was seen that the Defendant could not easily refuse the request by the high-ranking public official for a friendly relationship with P, and that the Defendant only introduced P to N and examined the company the P to which the P is arranged.

A) The defendant's response to the relationship between the defendant and P and other requests of P

① From around 209, P had been aware of the fact that a large number of high-ranking public officials, such as Q, BR, and BS, knew of the Defendant and have a meal space with the Defendant. However, even according to the P himself/herself’s statement, P, around January 2009, demanded the Defendant to submit a request related to J’s projects several times prior to the instant expressway construction, such as the instant canal system development project around January 201, including the subcontract for electrical construction in India, and the implementation of the electric golf course project around February 3, 2010 through the Jeonnamnamnam-do University project. In light of the circumstance and period during which P and the Defendant were aware of each other, P requested that the Defendant receive specific benefits from the J in light of the fact that P and the Defendant wished to receive specific benefits from each of the above projects beyond the extent of introducing a person in charge within the J, which may assist the Defendant in running the aforementioned projects. This is quite unavoidable. In light of the fact that P and the Defendant did not specifically agree to any such solicitation.

② With respect to India's electrical construction in 2009, the Defendant introduced, around January 2010, BU in charge of housing construction in J as to the instant canal well-being development project, and around February 3, 2010, BU and AU provided advice or information to P as to the individual project referred to in P as the P, and provided convenience to the extent of providing material necessary for P to enter India, as a result of the review of the instant canal well-known development project or the pre-nam golf course implementation project proposed by P, and even around February 3, 2010, BU and AU discontinued discontinued each of the above projects without any further implementation. Moreover, as to the instant highway construction project, BU and BU did not specifically wish to give instructions to P prior to the aforementioned P and each of the above projects requested by P to do so.

③ P stated that the prosecution had the intent to introduce a site manager and sought to find the Defendant, because the construction works of the packaging of the instant expressway can be conducted by the authority of the site manager.

B) the N’s behavior and process until the N’s implementation budget are increased;

① On April 17, 2010, P made a request to the Defendant for the construction of the instant expressway, the point at which X, the representative director of S, and AA, who had been responsible for the construction of the said expressway in Vietnam, continued to confirm the construction site of the said expressway at Vietnam, and returned to V, the corporate head of W (U’s local subsidiary), the corporate head of the said expressway at the time, who was working to order the packing construction of the said expressway at the time, appears to have entered into an advisory contract with P for the first time.

However, even around May 2010 when X and AA visited N, who is the chief of the J site of the said expressway construction from P, and visited Vietnam again, N did not specially refund X and AA or provide convenience, and during the year, X and A had shown color that it would be difficult for X and AA to order the packing of the said expressway to take part in the packing of the said expressway. However, the fact that N, who received specific instructions from the Defendant, the chief executive officer of J, would be able to take part in the packing of the said expressway, was able to take part in the packing of the said expressway, cannot be easily acceptable.

② Around April 2010, X Reviewed to participate in the package work of the instant expressway as W, and calculated the estimated amount of KRW 45 billion from the time of review. On the premise of this, X entered into an advisory contract for the first time with P on April 29, 2010 (Evidence No. 1: 988-989 of the evidence record) on the premise that X entered into the advisory contract with P on May 8, 2010 (Evidence No. 1: evidence No. 991-992 of the evidence record), which was entered into on May 10, 2010 (Evidence No. 1: 991-992 of the evidence record), and the estimated amount was adjusted to KRW 43.5 billion, and thereafter the said estimated amount was almost maintained. Moreover, W’s V prepared to participate in the package work, and there was no big difference between the estimated amount calculated by S by calculating the estimated amount of KRW 43 billion.

However, N has made a lot of efforts, such as informing of oil prices in order to perform packing construction by closeing the W’s execution budget to the W, while there is no fact that: (a) around October 19, 2010, there was an exchange of data on the estimated price with X or AA, or discussions to close the estimated price and the execution budget before the actual execution budget is increased. This is inconsistent with N’s statement that the Defendant, whose contract with S is late, had the Defendant make a demand telephone several times of demand calls.

③ Persons involved in the packaging work of the instant expressway, including N, Y, X, and V, corresponded to the implementation budget of KRW 38.9 billion, not only S but also other companies, including W, could not perform the said packaging work. Therefore, the implementation budget increase was inevitable.

④ Since the establishment of W around November 15, 2009, around February 2010, it was anticipated that the packaging work of the instant expressway will begin and had been prepared by the supplier of the instant expressway, such as receiving estimates from the supplier of the instant expressway. However, upon the occurrence of the issue of securing the site for the expressway by J, W sustained losses incurred in continuing the payment of management expenses, including personnel expenses, due to the delay in the tendering procedure. From June 7, 2010 to June 7, 2010, V complaining for difficulties to N, and tried to undertake three and four construction works among the three sections and four construction works, separately from the packaging work of the instant expressway.

However, even though N knew of the difficult circumstances in W, around October 19, 2010, at the time of the increase in the implementation budget, N gave a letter that it is difficult to undertake packaging work in W, and V re-verificationed to N to determine whether to accept the site at the site on November 12, 2010.

⑤ At the court, N stated to the effect that “The Defendant’s phone was the main owner of the instant expressway, not the Defendant’s phone, but the Defendant’s phone was able to confirm the size, performance, estimated amount, etc. of the business entity and to examine whether the Defendant was capable of executing construction work.” The Defendant also thought that the Defendant did not order S to implement the packing work while causing damage to the company.” The Defendant also stated to the effect that “Y’s phone is not the main owner of the instant expressway’s packaging work

3) In addition, as long as there is no evidence that the Defendant reported or approved the plan that the Defendant, as the subsidiary company of S and Z, would receive the above packing construction from N, rather than a negotiated contract, but rather conducted the subcontract for the packaging construction of the instant expressway from N, and set up W,O, etc. as a package business entity, and reported or approved the plan, the Defendant ordered N to introduce and review P as seen earlier, it is insufficient to recognize that the Defendant conspired to commit the crime of interference with N and tender, and there is no other evidence to acknowledge this otherwise.

5. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) according to the fact that the construction price of KRW 1 billion is paid based on the false records of the charges in this case

A. Summary of the defendant and defense counsel's assertion

1) There is no fact that the Defendant received or consented to the fact that he did not instruct N to provide P with monetary support, as in the facts charged, and that he would make an additional payment for the construction cost by raising the construction cost from N.

2) The money paid to P by AC and AD is the acquisition of ownership by each of the above companies with due payment from J, and is not owned by J. Therefore, the crime of embezzlement is not established with respect to embezzlement of the Defendant’s property.

B. Whether the Defendant instructed N to provide the same support as the facts charged against P

1) As evidence corresponding to this part of the facts charged, while receiving a request from P to "the creation of money" from P since the start of 201, the two companies made a statement to the effect that "I will help P" would be able to do so at the hotel room where the defendant was silent at night on October 201, and the above two companies made a statement to the effect that "I will deal well because I would like to deal well because I would like to deal well," and that I would like to change the payment currency for AC and AD as stated in the facts charged, and then change the payment currency for the above two companies will obtain, and therefore, the above two companies made the advance payment to P and P in accordance with the false advance statement to the effect that "I will again make it possible for P and P to do so at night."

2) However, in full view of the following facts and circumstances acknowledged by the evidence duly admitted and investigated by this Court, it is insufficient to recognize that the Defendant conspired to pay the advance payment amount to AC and AD, as seen earlier with N, solely based on the aforementioned N’s statement, and there is no evidence to acknowledge otherwise.

① On February 201, P entered into a subcontract agreement with J with respect to the packaging construction of the instant expressway, around February 2, 2011, P asked N to “AC and AD to create a central separation zone and to make it possible for N to pack and pack down the expressway and to make it possible for P to do so.” The N said “n must not make money.”

In addition, N's statement to the effect that it took the words "P" from the defendant in the court was accepted not only in the date of the facts charged but also in many ways, such as the meaning of monetary assistance, but also in the meaning of the speech, the intention of "Dou" was to help P so well, the additional construction work or design modification, or the convenience while performing the construction.

In light of these circumstances, the meaning of "domination" at the phrase of "Dominra" that the Defendant Domination to N does not mean that the meaning of "domination" is specified as the granting of J money to P, and it should be viewed as a very comprehensive meaning, such as new sense of work or viewing the convenience of construction in progress.

② On November 15, 201, in the Vietnam Road Construction Act, the ordering authority of the instant expressway construction, changed the currency for the payment of the construction cost of the said expressway to J at the request of the Asian Development Bank (ADB), at the rate of 70%, and US US dollars 30%. On the other hand, J maintained the payment currency for subcontractor companies at the rate of 100% in Vietnam, as in the previous case. As a result, due to the decline in the value of the Vietnam Easternization and the price increase, the subcontractor companies were demanding compensation for the relevant losses. N appears to have changed the payment currency to all subcontractors of the said expressway construction at the rate of 70% in Vietnam and 30% in U.S. dollars, regardless of whether the purpose was within N’s internal decision.

Furthermore, the core of this part of the facts charged is not to change the payment currency itself, but to pay in advance the construction cost equivalent to the exchange marginal profit expected to be acquired in the future by AC and AD with the change of such payment currency as advance payment, and the above two companies will pay in advance the construction cost received again to P.

In light of these circumstances, although the defendant was included in the reported materials received from the executives and employees in Vietnam at the time of receiving a report from the executives and employees, the defendant cannot be deemed to have understood that he received from N only the content that "is the part that became a part that became a shipping system for the alteration, and that there is no reason to deal with it," and understood that he would have paid money in advance in advance to AC and AD and then deliver it again to P.

C. Whether N and P acts constitute occupational embezzlement

1) On April 20, 2015, P was prosecuted with the Seoul Central District Court on the same content as the Defendant’s charges, but it is difficult to deem that N’s intent of unlawful acquisition was made in changing the payment currency of AC and AD and paying advance payment. Since the money paid as advance payment is owned by the above two companies, it cannot be deemed that J’s property was embezzled. After all dismissal of the Prosecutor’s appeal and final appeal, the judgment of the first instance court became final and conclusive.

N In addition, on December 18, 2015, the same content as this part of the facts charged was charged to the Seoul Central District Court (2015 Gohap1202), but was acquitted on the grounds similar to the above judgment of the first instance on P.

2) As long as the N and P’s act cannot be deemed as constituting occupational embezzlement, the joint principal offender’s liability cannot be established against the Defendant who was prosecuted as an accomplice.

6. Of the facts charged in this case, as to the violation of the Specific Economic Crimes Aggravated Punishment Act (Misappropriation)

A. Summary of the defendant and defense counsel's assertion

1) The J’s local corporation in Indonesia (hereinafter “AH”) concluded a contract for the supply of ready-mixed with AM (hereinafter “AM”) as a local corporation of AL, and received each letter issued by AM, the mother company of AM, and complied with the rules of the J on advance payment.

2) The receipt of advance payment guarantee in the form of a letter issued by AL is based on the result of negotiations between AH and AM, and there was no fact that the Defendant issued unfair instructions to AH, the corporate head of AH, as stated in the facts charged.

3) Prior to receiving advance payment from AH, AM had already made prior investment in excess of the amount of advance payment. Therefore, there was no room to be an issue of the obligation to return advance payment. Since the AL’s financial status issued by each letter was not inferior, there was no risk of not being refunded advance payment to AH.

B. Whether AH violated its internal provisions concerning advance payment guarantee

1) Of the internal regulations of J, the term “contract provisions” (Evidence No. 5, 4430 pages of evidence records) is limited to the obligation and exemption of the contractual obligation of the contracting party under Articles 38 and 39, and there is no particular provision regarding the guarantee of advance payment.

With respect to advance payment, the tender and general contract (Evidence No. 5, No. 4448 and No. 5668 et al., hereinafter referred to as "the internal provisions of this case") among the "Business Procedure Documents", which are the internal provisions of J, shall be defined as follows:

1.7.1.7.7.1. When a contracting officer wishes to pay advance and intermediate payments, he/she shall require the counter-party to the contract to do so.

The same amount of advance payment and intermediate payment as the amount of advance payment and intermediate payment shall be paid in the form of a guarantee or securities prescribed by the relevant Acts and subordinate statutes and contracts: Provided, That in the case of November 2, 11.72, the payment of advance payment and intermediate payment may be exempted or reduced (1) advance payment and intermediate payment may be exempted or reduced as follows: (2) When entering into a contract with an investment company of AI and AI or an investment company of our country, the outstanding company and AI shall be exempted from advance payment and intermediate payment (2) when entering into a contract with an enterprise meeting the criteria for exemption from advance payment (3) (4) when entering into a contract with an enterprise meeting the criteria for exemption from advance payment (3) of facilities and equipment (PC), the deducted amount out of advance payment and intermediate payment paid at the time of advance payment, or when the deduction is completed on July 3, 11.7 (1) when advance payment and intermediate payment deposit revert to the insurance company or the relevant guarantee company, and the company shall be exempted from advance payment and intermediate payment to the company after deducting the amount so deducted from advance payment and intermediate payment.

2) According to the evidence duly adopted and investigated by this court, AM is not an AI or J-invested company, and it is recognized that a contract for the supply of ready-mixed to AK of this case is not a facility equipment contract, and an advance payment deduction is not already completed at the time of the said subcontract. Therefore, AH is not impossible to exempt AM from the payment of advance payment or reduce it in accordance with the internal provision of the case.7.2.

3) However, Article 11.7.1 of the above internal provision provides that advance payment guarantee shall be implemented as "written guarantee or securities stipulated in the relevant statutes and contracts. Of them, "written guarantee or securities stipulated in the relevant statutes" means the guarantee or payment guarantee for financial institutions, such as banks, etc., ② the guarantee insurance policy issued by insurance companies, ③ various mutual aid associations, etc., as stipulated in each subparagraph of Article 37(2) of the Enforcement Decree of the Act on Contracts to Which the State Is a Party. (This provision is almost the same in Article 37(2) of the Enforcement Decree of the Act on Contracts to Which a Local Government Is a Party.)

4) Also, the following facts and circumstances acknowledged by the evidence duly adopted and investigated by the court, namely, (1) if the executives and employees of J have separately determined the method of guaranteeing advance payment under an agreement with the other party to the contract, they are not necessarily required to obtain payment guarantee certificates (APB) from financial institutions, such as banks, and (2) there is a case where the J has implemented the advance payment guarantee in the current number of units issued by the subcontractor in another outside of the J, and even if it is difficult for AH to provide AM with the payment guarantee certificates, AR, a corporate head of AH, to issue the current number of units, even if it is difficult to issue the advance payment guarantee certificates to AM, the issue of whether the check is paid should be decided solely by the issuer’s own ability, and thus, it is reasonable to view the payment of the advance payment to the effect that the third party’s guarantee agreement cannot be deemed as having fulfilled the obligation to return the advance payment in the form of a 7 guarantee agreement or an advance payment guarantee agreement prescribed by the respective laws and regulations.

5) According to the above evidence, Article 19-2(3) of the General Terms and Conditions of the J's Construction Contract which was in force at the time provides that "where the contractor wishes to receive advance payment, he/she shall submit to the contractor a certificate falling under any of the subparagraphs of Article 7(2)." Article 7 of the above provision appears to be a clerical error in Article 4 as to the contract deposit, and Article 4(2) provides that "the method of paying the deposit shall be for the payment of the deposit."

① It is limited to certificates issued by various guaranteeing institutions, ② state bonds or municipal bonds, ③ guarantee certificates or certificates of deposits of financial institutions.

However, in light of Article 4 of the Act on the Regulation of Terms and Conditions, the head of J’s domestic law group, stated that the above general terms and conditions apply to the domestic corporation (Evidence 7No. 5670) and that “if the business entity and the customer have agreed on the matters stipulated in the terms and conditions differently from the terms and conditions, the agreed matters shall prevail over the terms and conditions,” the above general terms and conditions exist, and it cannot be deemed impossible for the J and the contracting party to separately agree on the method of performing advance payment guarantee differently from the above general terms and conditions.

6) Furthermore, according to evidence, AH and AM provide that advance payment guarantees shall be performed as “writtens issued by AL” among 8.1 (Evidence Record 5: 4412 pages) among the le-mixed supply contracts entered into by AH and AM on September 5, 201, and accordingly, AL is recognized as having provided a written statement that guarantees advance payment to AH.

7) If so, AH paid advance payment upon receipt of a letter of guarantee or instrument set forth in a contract between AM, and as seen earlier, it cannot be deemed that AH violated the internal provisions of J as to advance payment.

C. Whether the J has caused risk of property damage

1) In the crime of occupational breach of trust, an act of occupational breach of trust does not mean any case in which statutes or internal regulations are violated formally, but means an act in which a property damage is likely to occur to the principal from an economic and substantive perspective by comprehensively taking into account the specific types of act in question, transaction types, protected legal interests, etc. (see, e.g., Supreme Court Decision 2012Do12582, Mar. 14, 2013

2) As seen earlier, AH’s receipt of a letter of commitment from AM with respect to the supply of ready-mixeds to AK of this case and advance payment would also violate the rules of J’s internal regulations.

In light of the following facts and circumstances acknowledged by the evidence duly adopted and investigated by this Court, it is difficult to deem that the act of AH is based on an appropriate management judgment and is thereby likely to cause any property damage.

① On June 16, 2011, AH was entrusted by the competent agency in charge of the instant case to enter into a contract for the supply of ready-mixed with AM, and there were still arguments as to whether advance payment should be made only for approximately 2.10,000 square meters out of the total amount of ready-mixed contract quantity, or for the total amount of 4.10,000 square meters, applying the so-called “No. An Escisation” condition to apply the so-called “No. 410,00 square meters” condition to determine the unit price of ready-mixed regardless of price fluctuation, whether advance payment rate should be 10,000 square meters of the total amount of payment, and what method the advance payment guarantee should be implemented.

② As a result of the establishment of an opinion dialogue, the agreement on the supply of ready-mixed was not concluded until the Habman on August 201. However, if the instant AK was not commenced, there was a large amount of liquidated damages for delay up to KRW 1.7 billion per day, and the Defendant urged AR to enter into a contract as soon as possible by telephone.

③ Ultimately, a single-lane contract was concluded between AH and AM on the 2.10,00 square meters out of the total 4.1m ready-mixed volume, and an advance payment was made, and the advance payment rate is 15% out of the amount of ready-mixed with 2.10,000 square meters, and advance payment guarantee was made by agreement reached on September 5, 201 with the implementation of AL’s respective notes.

① On December 27, 2011, AL entered into an agreement with a credit group, such as an industrial bank, for the implementation of the management normalization plan. However, the content of the agreement is to implement a self-help plan to provide capital increase with the AL in 2011 and 2012 and to reduce the debt ratio by up to 400% until 2015, and the claims group provide liquidity while checking the implementation status of the agreement. The internal evaluation of the industrial bank's internal evaluation results on the industrial bank's enterprise, which is lower than the C or D (Rehabilitation subject to rehabilitation procedures) level, on the premise that the enterprise can solve a temporary liquidity crisis according to the self-help plan. Accordingly, it cannot be readily concluded that the AL entered into the said agreement with the credit group, solely on the sole basis of the fact that the AL has concluded the said agreement, at the time of the conclusion of the agreement, has serious crisis to the extent that it is impossible to perform the obligation to provide advance payment to AH.

⑤ On July 14, 201, 201, AM entered into a payment guarantee contract with the Republic of Korea branch in Indonesia, and AL, with a limit of 11,500,000 dollars (the limit of collateral guarantee was USD 1,495,000,000,000,000 plus 30%). After entering into a contract for supply of ready-mixed, it was additionally received a loan of 8 million dollars under a joint and several surety from the Export-Import Bank of Korea on November 1, 201 under AL from the Export-Import Bank of Korea on September 5, 201. In light of this, it is difficult to view that AL did not have sufficient means to repay 3.7 billion Won advance payment as of September 5, 2011.

6) AM was in the state of preparing for ready-mixed production, such as the installation of arrangement plants (production and supply of ready-mixeds at the construction site) by pre-investment in the cost equivalent to the amount to be paid as advance payment in Indonesia before September 5, 201, which entered into the supply contract. Furthermore, after the conclusion of the supply contract as above, AM supplied ready-mixed in a timely manner in line with the progress of AK of this case, and there was no problem of supply of ready-mixed in the project up to now.

D. Sub-determination

Therefore, it is difficult to see that AH violated the internal provisions of this case while entering into a contract for the supply of ready-mixed with AM, and even if it violated the internal provisions, it cannot be deemed that there was a risk of property damage, and therefore, it cannot be deemed that there was a risk of property damage. Therefore, it cannot

7. As to the receipt of breach of trust from AT among the facts charged in the instant case

A. This part of the facts charged is that the defendant paid golf expenses in return for illegal solicitation from AT or acquired pecuniary profits by cash or gold collection.

B. However, it is not sufficient to recognize that the Defendant received property benefits in return for illegal solicitation such as the facts charged, and there is no other evidence to acknowledge the same) solely on the basis of the evidence concerning AT and the Defendant’s golf cost statement, including the statement statement of each prosecutor’s protocol on BZ, CA, andCC submitted by the prosecutor, (i) the receipt of orders from theJ of (ii) AY, and (iii) the circumstances at the time of search and seizure of A

8. Conclusion

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

Judges

The presiding judge charter

Judges Yang Yang-soo

Judges Jeon Jae-chul

Note tin

1) The prosecutor applied for the admissibility of each of the above documentary evidence to AT as evidence. However, the defense counsel consented to the adoption of each of the above documentary evidence as evidence, and the authenticity of each of the documentary evidence was not verified by the statement at the preparatory hearing or the trial date of AT, and the authenticity was not proven by objective methods. Therefore, the admissibility of each of the documentary evidence cannot be acknowledged pursuant to Article 312(4) or 313(1) and (2) of the Criminal Procedure Act. Moreover, even if A was adopted as a witness and received a summons, AT submitted a written non-appearance report and did not appear as a witness at court. It is difficult to view that the above behavior of AT constitutes “when a statement cannot be made due to death, disease, foreign residence, unknown whereabouts, or any other similar cause” as provided in Article 314 of the Criminal Procedure Act, and even if the evidence submitted by the prosecutor was proved by the above documentary evidence, it cannot be acknowledged that it was admissible under Article 314 of the Criminal Procedure Act.