Defendant

Both parties

Kim Young-young, resident iron (prosecution), and removal from office (public trial)

Law Firm (Li) Do, et al.

Seoul Central District Court Decision 2013Gohap73, 2013Gohap588 (Consolidated) Decided January 16, 2014

Of the acquittal portion of the judgment of the court below, the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) shall be reversed, which are the primary charges of the new building

Of the facts charged in this case, the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement of Trust) which are the ancillary facts charged

All appeals by the defendant and by the prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts or misapprehension of legal principles

It is true that the Defendant received KRW 1 billion from Nonindicted Co. 1 (hereinafter “victim”) as piece rates. However, the amount of piece rates is reasonable when considering the Defendant’s contribution to the Defendant’s company or the victim’s business performance. The Defendant and his family members are so-called “family company” comprised of shareholders, and the Defendant and its family members have been actually determined through a family gathering or the board of directors’ meeting. As the payment of piece rates in this case was actually permitted by the family gathering, it cannot be deemed as embezzlement. Moreover, the Defendant’s acceptance of piece rates in this case cannot be deemed as embezzlement, given that it was paid by the victim company in compliance with both the method and procedure in which the victim company paid piece rates and underwent normal accounting procedures. The Defendant, the largest shareholder of the victim company, can receive KRW 1 billion as a lawful dividend even if it was not a piece rate. Therefore, the Defendant’s intent of embezzlement or acquisition cannot be recognized.

2) Unreasonable sentencing

The sentence of the court below is too unreasonable.

(b) Prosecutors;

1) misunderstanding of facts or misapprehension of legal principles

A) Occupational breach of trust in relation to guarantee for Nonindicted Co. 3

The defendant did not give any profit to the victim company and let the non-indicted 3 corporation (hereinafter referred to as "non-indicted 3 corporation") stand a joint and several surety for the debt amount of KRW 4.3 billion. It increases the risk of damages to the victim company by itself in that it bears the debt amount equivalent to the above amount. Furthermore, since the defendant and his father own all the shares of the defendant, the above guarantee act constitutes a breach of trust as it causes the victim company to bear an unfair debt amount for the benefit of the defendant.

B) Occupational breach of trust in relation to the newly built building of Nonindicted Co. 4 (hereinafter “Nonindicted Co. 4”) (hereinafter “Nonindicted Co. 4”)

The defendant's act of having the victim company raise funds necessary for the purchase of land and the construction of a new building by Nonindicted Co. 4, who is an individual company of the defendant, to make joint and several sureties and the advance payment of lease deposit, etc. is for the interest of the above Nonindicted Co. 4, and is obviously prejudicial to the interest

C) Occupational embezzlement and occupational breach of trust (preliminary charges) related to the newly built building of Nonindicted Company 4

The point of occupational breach of trust is that the victim company's guarantee act constitutes a breach of trust for the same reason as the above A, and the occupational embezzlement is that the act of receiving 13 billion won from the victim company was made with the intent to supply funds to the non-indicted 4 companies owned by the defendant company, and thus, the defendant's intent of unlawful acquisition can be recognized.

2) Unreasonable sentencing

The sentence of the court below is too unhued and unfair.

2. Determination

A. Judgment on the mistake of facts or misapprehension of legal principles by the defendant

Comprehensively taking account of the evidence duly adopted and examined by the lower court and the following circumstances that can be recognized by the above evidence, the lower court and the lower court acknowledged the fact that the Defendant did not have any provision on the payment of performance-based rates in the victim company’s articles of incorporation and without going through a resolution of the general meeting of shareholders and the board of directors; at will, it can be recognized that the Defendant used the funds of the victim company as performance-based rates; and the Defendant’s intention and intent to illegally

① At the time of the instant case, the Defendant owned 45% shares issued by the victim company, 25% of the husband Nonindicted 5, 6, and 2 respectively. The Defendant has been working as the representative director of the victim company since 1994.

② Although the remuneration of directors in a victim company is determined by the resolution of the general meeting of shareholders (Article 388 of the Commercial Act, Article 37(1) of the Articles of incorporation of the victim company), the victim company did not have determined piece rates by the general meeting of shareholders, and there was no internal provision to provide the basis for piece rates payment, and there was no specific agreement between the defendant and the victim company on piece rates.

③ The Defendant did not hold a general meeting of shareholders and the board of directors of the Victim Company at the time of receiving KRW 1 billion as piece payments. The Defendant, at the time, was delegated comprehensive management to the board of directors and the general meeting of shareholders by Nonindicted 5, Nonindicted 6, Nonindicted 2, etc., and thus, does not constitute illegality. However, the Defendant, who owned 45% of the shares, asserts that the overall management, including the resolution of the general meeting of shareholders and the board of directors, including that of the board of directors, was explicitly or implicitly delegated by all shareholders and directors other than the Defendant. Rather, Nonindicted 5 of the directors, who owned 25% shares at the time, did not comprehensively delegate all the matters related to

Although the defendant asserts that the victim company has been operated without a resolution of the general meeting of shareholders or the board of directors, it is justified that the victim company has not gone through legitimate procedures or that there was a comprehensive delegation of the directors and shareholders, on the ground that there was a case in which the resolution of the general meeting of shareholders was not disclosed at any time or in detail, and that there was a case in which the resolution has not

④ Even if the Defendant did not receive any comprehensive delegation related to the board of directors or the general meeting of shareholders, on January 21, 2006, determined whether to pay piece rates at meetings with Nonindicted 8, Nonindicted 9, and Nonindicted 10, and the amount thereof. On January 22, 2006, the Defendant asserts to the effect that the Defendant was practically subject to the board of directors and the general meeting of shareholders regarding piece rates, since he/she obtained explicit or implied permission for the payment of piece rates at family meetings.

However, in full view of the fact that at the time of January 21, 2006, Nonindicted 5, a director, and Nonindicted 11, a shareholder who owned 25% shares of the victim company, and Nonindicted 5 or Nonindicted 11, were not informed of the fact that the board of directors was held, or Nonindicted 5 or Nonindicted 11 did not attend the meeting. Among four persons who participated in the above meeting, the four directors are the Defendant and Nonindicted 82, among the four persons who participated in the above meeting, and Nonindicted 8 also received 20,000 won as a piece-based bonus, and there is no evidence to prove that there was a procedure for convening and notifying the board of directors under the Commercial Act and the articles of incorporation.

As to the Defendant’s assertion that at around January 22, 2006, the victim’s family meeting obtained the explicit or implied consent of the family members who are the rest of the victim’s other shareholders, it is difficult to believe only the Defendant’s assertion on the grounds that there was no evidence supporting the Defendant’s above assertion even though the Defendant’s assertion explicitly asserted that there was no such consent.

In light of the fact that around March 2006, the Defendant ordered the moving number, etc. to prepare the minutes of the shareholders' meeting as of March 30, 2005, the minutes of the shareholders' meeting as of March 30, 2005, which set the limit amount of directors' remuneration as of March 30, 2005; the minutes of the directors' meeting as of March 30, 2005, which established the standards for payment of piece rates; and the Defendant met the above standards for payment of piece rates; thus, the Defendant was ordered to prepare the minutes of the directors' meeting as of November 2, 2005, which provide that the Defendant shall be paid as piece rates; accordingly, Nonindicted 5 and Nonindicted 11’s seals affixed to each of the above minutes as of November 2, 2005, which were written retroactively, are affixed by other persons without the express consent of Nonindicted 5 and Nonindicted 11. In light of the fact that paying one billion won to the Defendant as piece rates, the largest interested party, and the director who received piece rates, was voluntarily determined

Therefore, it cannot be deemed that the defendant was a shareholder who owns 45% shares and family members were actually subject to the board of directors and the general meeting of shareholders on the sole basis of the fact that the internal proposal, approval process, and accounting procedure were conducted in relation to the payment of the performance-based bonus.

⑤ With respect to the appropriateness of the amount of piece rates paid to the Defendant, other than the meeting minutes of the board of directors formulated retroactively as seen earlier, the victim company did not have any provision regarding performance rates in addition to the meeting minutes of the board of directors, and there was no outcome evaluated by objective criteria. Nevertheless, the Defendant did not review the size of the victim company, management status, and propriety of piece rates, and received the same as piece rates paid to a specific one at once. At the time, the Defendant received the same time as piece rates of KRW 1 billion in total. The sum of the amount received by 86 executives and employees of the victim company who received piece rates with the Defendant at the time, is 126,750,00 won in total, which is 1/10 of the amount received by the Defendant. The fact that most of the piece rates paid by the Defendant was received is not consistent with the annual amount of piece rates paid by the Defendant to boost the employees’ morale, but rather does not coincide with the Defendant’s annual amount of performance rates paid by the Defendant and the Defendant’s annual amount of performance rates paid to the employees.

(6) On the other hand, the Defendant asserts that there was no reason to make embezzlement under the pretext of piece rates since it was possible to receive KRW 1 billion from the victim company in the form of dividend, not in the form of piece rates.

However, in light of the fact that a shareholder of the company receives dividends according to the share ratio under the Commercial Act, and the representative director of the company should be distinguished from receiving remuneration for business affairs, and that the defendant who only 45% of the shares of the victim company should have been additionally appropriated as dividends in excess of KRW 2.2 billion in order to pay dividends to the defendant who only 4.5% of the shares of the victim company should have been paid as dividends, the defendant's appeal against the above change is difficult to accept, as it is, that there is no difference between the distributable profits and the dividends.

7) Of the above KRW 1 billion, KRW 700 million, excluding taxes, etc., was deposited in Nonindicted Company 4 owned by the Defendant and Nonindicted Company 2’s wife, and used for an individual purpose that is not related to the victim company.

B. Judgment on the prosecutor's misconception of facts or misapprehension of legal principles

1) Occupational breach of trust in relation to the guarantee for Nonindicted Company 3

A) Summary of this part of the facts charged

The Defendant acquired, from May 24, 2006, Nonindicted Co. 3 for the purpose of real estate sale and purchase business and the new construction and sale business of a building, and operated the said company. While the operation of Nonindicted Co. 3 was not related to the victim company, Nonindicted Co. 3 did not receive any security from the victim company, and did not go through the resolution of the general meeting of shareholders and the board of directors of the victim company, the Defendant violated the victim company’s representative director’s duty and thereby, caused the said company to obtain a loan of KRW 1 billion from the △△△ Bank on May 17, 2010, and when the Defendant extended a loan of KRW 1 billion on April 20, 201, extended a loan of KRW 3.4 billion and the existing loan of KRW 334 billion,000,000,000,000 from Nonindicted Co. 3 to cause joint and several surety to obtain property profits equivalent to the victim’s amount.

B) The judgment of the court below

The lower court determined that, in light of the following circumstances acknowledged by the evidence duly adopted and examined, the victim company’s physical security provided to △△△ Bank at the time of the joint and several surety of Nonindicted Co. 3, i.e., when the victim company jointly and severally guaranteed the debt, the possibility that △△ Bank would not first exercise the security right and seek for the performance of the joint and several liability obligations to the victim company is very low, and even if the victim company performs the joint and several liability obligations upon the request of △ Bank, the victim company may exercise the right to reimbursement against Nonindicted Co. 3 or exercise the security right by subrogation, and the management performance of Nonindicted Co. 3 was improved more than the past at the time of 2010, and even considering the evaluation value of the unsold housing unsold in possession, even if considering the fact that there appears to exist sufficient repayment capabilities of Nonindicted Co. 3, and as a result, the evidence submitted by the prosecutor alone was insufficient to deem that the Defendant caused the victim to have caused damage to the victim company, and that there was no intention to commit breach of trust or no other evidence exists.

① On April 20, 2010, prior to the first joint and several guarantee of Nonindicted Co. 3’s obligation, the Defendant created a pledge on the deposit claim of KRW 4,330,000,00,000 in total, in order to secure the said obligation. Such pledge was maintained after February 15, 2012, the victim company went out of the position of joint and several sureties, and the balance of the deposit claim on which the pledge was created is over KRW 4,33,00,00 to KRW 4,60,00,000 at all times.

② Nonindicted Co. 3 recorded the net loss in 2008 and 2009. However, in 2010, the victim Co., Ltd increased sales and recorded net income of KRW 1,570,000,00 as the sales began in 2010.

③ In addition, while Nonindicted Co. 3 bears the obligation to return a loan to △△△△ Bank, Nonindicted Co. 3 held the unsold sale price of the said commercial building without any burden. However, the aggregate of the estimated sale price of the said commercial building was approximately KRW 17.9 billion, and the aggregate of the estimated sale price of the commercial building unsold until August 27, 2012 was KRW 7.61 billion. Based on this, △△ Bank assessed as the secured sale price was KRW 4.56 million.6 billion.

④ During the period of joint and several sureties Bank’s joint and several sureties Bank’s joint and several liability, Nonindicted Co. 3 paid interest on the loan to △△ Bank without delay.

C) Determination

In order to establish the crime of occupational breach of trust, there should be subjective requirements such as awareness of occupational breach of trust and the recognition that the person himself or a third party acquires benefit and thereby causes loss to the person himself, i.e., intent in breach of trust. If the representative director of a company provides a payment guarantee or joint guarantee under the name of another person in the name of the company with knowledge that the other person is suffering loss to the company in the event of payment guarantee or joint and several guarantee due to a very poor financial structure, such as where the other person is unable to perform his obligation due to accumulated loss or debt amount, such payment guarantee or joint and several guarantee shall be deemed as an act of occupational breach of trust against the company. However, just on the ground that the other person merely exceeds his obligation, such payment guarantee or joint and several guarantee shall not be readily concluded as an act of occupational breach of trust against the company (see Supreme Court Decision 2004Do520, Jun. 24, 2004). In addition, in order to establish the crime of occupational breach of trust, it shall be identified from an economic point of view and at least causes actual loss to the principal or risk of property loss (see Supreme Court Decision 474.

In light of the above legal principles, even after closely examining the evidence legitimately adopted and examined by the court below and the trial court, it cannot be concluded that the defendant knew that the non-indicted 3 company had suffered damage to the victim company due to the relation which already lost the ability to repay debts, and furthermore, it cannot be concluded that the defendant had caused the victim company to stand a joint and several surety for the non-indicted 3 company. In addition, the defendant's act of causing the victim company to stand a joint and several surety for the non-indicted 3 company cannot be concluded that there was an intention in breach of trust. In addition, the above judgment of the court below is justifiable in the conclusion that the above joint and several surety cannot be deemed

2) The part concerning the new building of Nonindicted Company 4

A) Ex officio determination

Before the prosecutor's judgment on the grounds of appeal on this part, the prosecutor examined ex officio, and the prosecutor applied for changes in the indictment as stated in Section B(1)(C)(1) and (1) of this part of the facts charged and the facts charged in the preliminary charge. Since the subject of the judgment was changed by this court's permission, the court below's judgment on this part of the facts charged and the facts charged in the preliminary charge can no longer be maintained. The arguments of the changed defendant and the prosecutor are examined in the following paragraphs.

B) Judgment on the main facts charged

(1) Summary of the main facts charged

From June 1994, the Defendant had worked as the representative director of the Victim Company. The Victim Company had the headquarters building of 20 stories above ground and 5 stories above ground in Seocho-gu Seoul, Seocho-gu, Seoul, and had it operated the private teaching institute business. However, the Defendant had already started the private teaching institute business in Seoul, which is the center of the private teaching institute business of the Victim Company, in Seoul, which is the Seoul, which is the location where the private teaching institute business of the Victim Company was started and the center of the private teaching institute business in Gangwon-do, was promoting the new construction of the building or the existing building

In such a case, the defendant, who is the representative director of the victim company, shall, in principle, promote the new construction or purchase of a building owned by the victim company, but in cases where the defendant intends to rent and use a new building in a space instead of directly owning the building, if he/she intends to rent and use it, he/she shall not provide funds and credit to the victim company without permission, and shall not give up the new construction or purchase of the building originally planned in accordance with the Commercial Act which strictly regulates the directors' self-transaction and utilization of business opportunity, and shall go through legitimate procedures such as resolution by the board of directors as to whether to lease the new building, and whether to provide the funds and credit of the victim company to the new construction of the building by the representative director. In this process, all the duties of the victim company should proceed in

Nevertheless, on November 30, 2004, and July 1, 2005, the Defendant voluntarily waived the construction or purchase of the originally planned building, and the Defendant and Nonindicted 2, his relatives, by transferring the shares of Nonindicted Company 4 possessed by the Victim Company, have owned the entire shares, and also had the intent to purchase the land owned by Nonindicted Company 4, which is the building site, owned by the representative director, and to build the building.

Then, in order to raise funds for the purchase of neighboring land and ground buildings necessary for the new construction of a building, Nonindicted Co. 4 received a loan of 23.18 billion won from 14 September 2005 to 20 January 20, 2006, and let the victim company arbitrarily provide a joint and several guarantee for the loan obligations.

In addition, on May 16, 2006, prior to the commencement of new construction works under the name of Nonindicted Company 4, the victim company had the victim company enter into an agreement for the occupancy of real estate with Nonindicted Company 4 on the lease of the building to be newly built by Nonindicted Company 4, and paid the funds of the victim company to Nonindicted Company 4 as a sum of KRW 13 billion from May 24, 2006 to February 13, 2007.

Afterwards, as mentioned above, 13 billion won of the lease deposit deposited in advance was disposed of as a loan at will, and at the same time, on February 16, 2010, concluded a new agreement with Nonindicted Co. 4 on the advance payment of the lease deposit with Nonindicted Co. 4 and paid the total amount of 12.4 billion won to Nonindicted Co. 4 from February 16, 201 to September 30, 201.

As a result, the Defendant, in violation of the occupational duty of the representative director of the victim company, promoted new construction of the building owned by the victim company as owned by the non-indicted 4 company in which the Defendant actually owned the above bank loans of this company, provided joint and several sureties by the victim company with respect to the above bank loans of this company, and even if there was a prior payment made prior to the prior settlement of the funds of the victim company to the non-indicted 4 as the lease deposit or the advance payment made a voluntary settlement of the borrowed money, and thereby, acquired the financial benefits of the amount equivalent to KRW 48.586 billion in the non-indicted 4 company by the advance payment of the lease deposit (= KRW 23.186 billion + KRW 13.4 billion + KRW 12.4 billion) and thereby, caused property damage equivalent to the same amount to the victim company.

(2) Defendant and defense counsel’s assertion

The defendant did not have the intention of breach of trust, and there was no risk of property damage or property damage in the victim company, so the crime of breach of trust is not established.

(3) Determination

(A) A joint and several guarantee for the obligation to return KRW 23.186 billion to △△ Bank by Nonindicted Co. 4

In light of the legal principles as seen earlier, the part on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) due to joint and several liability for Nonindicted Co. 3. In full view of the following circumstances recognized by the lower court and the trial court based on the evidence duly adopted and investigated, the victim company secured sufficient human and material security for the principal obligation at the time of providing joint and several liability for Nonindicted Co. 4, the Defendant and Nonindicted Co. 4, a joint and several liability joint and several liability, had considerable financial capacity to pay, and as a result, did not actually incur actual damage to the victim company, it is difficult to deem that the Defendant had the victim company jointly and severally guaranteed the Defendant’s debt for Nonindicted Co. 4, thereby causing a practical damage to the victim company or causing a risk of property damage, and it is difficult to readily conclude that the Defendant was aware of this.

① In order to secure the repayment of loans and the obligation to repay bonds each time Nonindicted Co. 4 obtained loans from △△ Bank or issued bonds, the Defendant set the right to collateral security with respect to various real estate as indicated in the following table at △△ Bank. Of them, the sum of the maximum debt amount or the actual debt amount of the right to collateral security, which takes precedence over the right to collateral security, is merely 4.4 billion won in total.

On September 14, 2005, 12 billion won (loan 1 omitted), (number 2 omitted), (number 3 omitted), (number 4 omitted), (number 5 omitted), (number 5 omitted), and (number 6 omitted), Non-Indicted 4 Company, Jongno-gu Seoul (number 7 omitted), and Non-Indicted 5 billion won (number 6 omitted), and Non-Indicted 4 Company, Non-Indicted 5 billion won in total, KRW 9.3 billion in the ground building 9.4 billion (number 7 omitted), Non-Indicted 6.4 billion in the Seocho-gu Seoul ( Address 2 omitted), Non-Indicted 301, 401, 501, 600,000 won in the aggregate of KRW 3.4 billion in the non-Indicted 6.4 billion in the non-Indicted 2, 300,000,000 won in the non-Indicted 2,400,500,000 won in the non-Indicted 9.4 billion won in the Jongno-gu 2.

② In addition, among the real estate listed in the above table, the purchase price of the instant land, namely, Jongno-gu Seoul (number 1 omitted), (number 2 omitted), (number 3 omitted), (number 4 omitted), (number 5 omitted), (number 5 omitted), (number 6 omitted), and (number 6 omitted), was merged into the land on July 3, 2009 (number 1 omitted), (number 8 omitted), (number 9 omitted), (number 10 omitted), and (number 10 omitted), and the total purchase price of buildings on the ground at the time was approximately KRW 2.99 million (number 10,000,000, the total amount of the obligations to return the deposit for lease to each building above, was about KRW 2.39,99 million, and the maximum debt amount for securing this amount is only KRW 2.6 billion).

③ In order to secure the repayment of loans and the repayment of bonds to △△ Bank, Nonindicted Co. 4 set up a pledge on the deposit claims of KRW 2.6 billion in total on September 14, 2005 and October 2, 2005, on the deposit claims of KRW 2.6 billion in total, on September 14, 2005.

④ At the time of each of the above loans or issuance of bonds, the Defendant jointly and severally guaranteed as an individual, and as of August 31, 2005, at the time of the first loan transfer, the Defendant had a deposit claim of KRW 5.1 billion against △△ Bank. Based on the first half of 2006, the Defendant owned approximately KRW 5.65 billion, financial assets, such as deposit worth of KRW 5.65 billion, and held approximately KRW 72,000 stocks of the victim company with an appraised value of KRW 25.8 billion.

⑤ On November 16, 2011, when the instant building was completed, Nonindicted Co. 4 did not delay interest on each of the above loans, and the Defendant paid a proper amount. Upon the completion of the instant building, on November 16, 201, the Defendant terminated part of the joint and several surety agreement with the victim company and Nonindicted Co. 4, and △△ Bank established the first collateral security right on the said building. As of June 2012, the appraisal value of the said building was KRW 50,500,000. In addition, around July 2012, Nonindicted Co. 4 repaid all of the principal of the loan to △△△ Bank, and Nonindicted Co. 4 was completely off the victim’s position as joint and several surety at that time without any property contribution.

(B) Prior payment to Nonindicted Co. 4 13 billion won lease deposit

The following circumstances acknowledged by the lower court and the first instance court’s duly admitted and investigated evidence, i.e., (i) the victim company’s new building of Nonindicted Co. 4 has considerably good conditions to use it as the victim company’s private teaching institute building compared to the location and condition of the previous building used for the purpose of the new building; (ii) the victim company would have been required to stably procure new construction costs to the maximum extent possible; and (iii) the victim company would have to reduce its rent in the future by reducing new construction costs; and (iv) the victim company’s prior payment of lease deposit to Nonindicted Co. 4 with its funds was planned prior to the loan of Nonindicted Co. 4; and (iv) the lease contract for new building of Nonindicted Co. 4 was reasonable from the victim company’s standpoint, and thus, it is difficult to conclude that the Defendant’s prior payment of lease deposit was irrelevant to the victim company’s interest rate of 100 billion won, and there was no possibility that it would have been more than the victim company’s average interest rate of 100 billion won after the new building.

(C) Prior payment to Nonindicted Co. 4 12.4 billion won;

Although the defendant, who is the representative director of the victim company, should have been able to re-grant 13 billion won to the lease deposit, or to receive the repayment of 13 billion won first, it seems that the defendant, who is the representative director of the victim company, had been 13 billion won paid earlier and transferred to the loan, was able to receive the repayment of 13 billion won first, it seems that the defendant, while 13 billion won was already paid in advance,

However, in light of the circumstances such as the process and motive leading up to the business judgment at issue, the details of the business at issue, the economic situation of the company at issue, the probability of incurring losses and the probability of acquiring profits, etc., whether the intent of breach of trust can be recognized should be individually determined depending on whether it is an intentional act with the awareness that one’s own or a third party would obtain economic benefits and that it would inflict losses on the principal (Supreme Court Decision 2013Do5214 Decided September 26, 2013). However, the following circumstances acknowledged by the evidence duly adopted and investigated by the lower court and the first instance court were as follows: (i) the construction of new building at 40 billion won was delayed for 4 years or more, and the construction of new building was inevitably required to raise additional funds to a financial institution; (ii) the construction of new building at 13 billion won converted from 13 billion won to 400 billion won, and thus, it is difficult to view that the new construction of new building would have been paid more than 1400 billion won to 4 billion won.

(D) Sub-committee

As seen above, as to this part of the facts charged, the defendant had the intention to commit the act of breach of trust and the act of breach of trust, and it is difficult to recognize that the victim company suffered property damage or has caused property damage, and there is no other evidence to recognize it. Thus, this part of the facts charged constitutes a case where there is no evidence of crime.

C) Judgment on the conjunctive charges

(1) Summary of the conjunctive charge

The Defendant, around May 16, 2006, kept the company funds in the office of the victim company for business purposes, was insufficient to construct the building promoted by Nonindicted Company 4, and even if the building was not commenced, the victim company prepared an “Agreement on the Occupancy of Real Estate” as if the building was leased from Nonindicted Company 4. On May 24, 2006, the Defendant paid the amount of KRW 4 billion under the same name as the advance payment of the lease deposit, KRW 4 billion on January 12, 2007, KRW 5 billion under the same name as of February 13, 2007.

After that, on April 2007, the Defendant managed all of the aforementioned advance payments as loans to Nonindicted Co. 4 at will, and paid 12.4 billion won for all as of September 30, 201, including 5 billion won as of February 16, 201 and 2.4 billion won for the same purpose as of September 30, 201, despite the fact that the new construction funds of the above building have not yet been completed as of February 16, 201, and there were 13 billion won already paid as the advance payment for lease deposit.

Accordingly, the Defendant, as such, embezzled the sum of the funds of the victim company (=13 billion won +12.4 billion won) by arbitrarily using it.

(2) Defendant and defense counsel’s assertion

Since the Defendant did not intend to dispose of KRW 13 billion and KRW 12.4 billion, which was paid from the victim company to Nonindicted Company 4, as if he were his own possession, the Defendant did not have any intention to dispose of the said amount. Therefore, the Defendant is not recognized as an unlawful acquisition intent, and thus,

(3) Determination

The following circumstances acknowledged by the lower court and the first instance court’s duly adopted and investigated evidence, i.e., (i) the cost of new construction to use the new building of Nonindicted Company 4 as private teaching institutes building from the standpoint of the victim company, and seems to have been necessary to reduce the rent for the victim company to the greatest extent possible; (ii) the victim company’s prior payment of lease deposit to Nonindicted Company 4; and (iii) it is difficult to conclude that the payment of deposit money for the purchase of land and new construction of the new building is an exceptional case where the Defendant would have been made up of KRW 13 billion on commercial terms for the first 4 billion interest rate of KRW 1.4 billion on loan to the victim company; and (iv) the Defendant’s payment of deposit money for the new building at the interest rate of KRW 13 billion was reflected in the audit report in 206; and (v) the average amount of deposit money for new building after the victim’s payment of KRW 13 billion was made out of KRW 1300,000,000.

C. Determination on the assertion of unreasonable sentencing by the defendant and prosecutor

The crime of this case is an unfavorable circumstance to the defendant, where the defendant embezzleds KRW 1 billion as piece rates by taking advantage of control over the victim company, and the amount of such embezzlement is not substantial, and the defendant does not seem to reflect his mistake in depth.

The fact that the defendant embezzled all of the above one billion won is returned to the victim company, and that the defendant has no criminal record for the same kind of crime is favorable to the defendant.

In addition, comprehensively taking into account the Defendant’s age, character and conduct, family environment, motive and circumstance leading to the instant crime, circumstances before and after the instant crime, etc., and the recommended sentence range of the sentencing guidelines of the Supreme Court, it is not recognized that the sentence imposed by the lower court is too heavy or unreasonable. Therefore, this part of the Defendant and the prosecutor’s assertion is without merit.

3. Conclusion

Therefore, among the non-guilty portion of the judgment of the court below, the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation), which are the primary charges about the new building of non-indicted 4, are the ancillary charges, are the grounds for the reversal of the above authority. Therefore, this decision is reversed in accordance with

Meanwhile, the prosecutor's appeal on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) due to joint and several surety for Nonindicted Co. 3 among the defendant's appeal, the guilty portion of the judgment of the court below and the acquittal portion of the judgment of the court below is all groundless

Among the facts charged in this case, each of the facts charged about the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) (1), 2.B.2) (1) (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter referred to as "Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement"), which are the primary facts charged about the new building of Nonindicted Co. 4 among the facts charged in this case, is identical to each of the facts charged in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), which are the ancillary facts charged.

Judges Kim Jong-tae (Presiding Judge)