(영문) 서울중앙지방법원 2014.3.18. 선고 2013고합1274 판결

On October 14, 2011, the Defendant was sentenced to a suspended sentence of one-year imprisonment at the Seoul Central District Court for fraud, which became final and conclusive on July 21, 2012.

Around June 7, 2011, F, a major shareholder of E (hereinafter referred to as “E”) and the Chairperson of E (hereinafter referred to as “E”) requested G to inquire into the method that institutional investors such as banks, insurance companies, and securities companies have to purchase E shares if they purchase E shares, and H and I, which were known to the early police officer on August 201, 201, requested G to purchase E shares through H and I.

In the process, J may request institutional investors, such as banks, insurers, and securities companies, to purchase E shares, and require G to purchase KRW 500,000,000 on the condition that it purchases 300,000 shares, and G was provided with monetary support by reporting the terms and conditions of suchJ to F.

The J, known to the general public, presented the terms of consultation with G to the Defendant, who is an employee of the securities company, and asked to the relevant institutional investors, such as banks, insurance companies, and securities companies, whether it is possible to purchase E shares, and the Defendant accepted such terms and conditions.

On August 9, 2011, E’s price was recorded at the lower limit in the year of the sudden fall, G said that institutional investors would pay KRW 200 million as down payment if they purchase 30,000 shares, with the lower limit in purchasing E’s shares, and the Defendant and J accepted this.

Accordingly, G was paid KRW 200 million from G, and the Defendant and J received the total of KRW 50 million from G on August 10, 201, and KRW 200 million on August 11, 201, which is the next day, from G, to the national bank account in the name of “K designated by J”.

Accordingly, the defendant and the J accepted money and valuables in collusion to arrange matters belonging to the duties of officers and employees of financial institutions.

Summary of Evidence

1. Partial statement of the defendant;

1. Statement of the witness examination protocol to J in the second trial records;

1. Partial statement of each prosecutor's protocol of examination of the defendant against the defendant;

1. Each statement made by the prosecutor's office with respect to G and L;

1. Some statements in the prosecutor's statement concerning F;

1. Each investigation report (the attachment of further details of transactions in the accounts of the NAC in the name of the G and the confirmation of KRW 200 million delivered by the F to J through G), investigation report (the results of account tracking, such as G, F, and J);

1. A copy of the details of transactions in the account, a warrant 24476 G (UFFF) inquiry into financial flow, and a statement of account tracking data;

1. Previous convictions indicated in judgment: Each description of criminal records and investigation reports (the details of punishment against the offender A, etc. under internal investigation);

Application of Statutes

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

Article 7 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 11304, Feb. 10, 2012; hereinafter the same shall apply) and Article 30 of the Criminal Act (generally, choice of imprisonment)

1. Handling concurrent crimes;

The latter part of Article 37 and the first sentence of Article 39 (1) of the Criminal Act

1. Additional collection:

Article 10(3) and (2) of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Article 10(3) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Article 10(2) of the same Act provides that according to the evidence duly adopted and investigated by this court, the defendant was distributed KRW 180 million out of the 200 million in the name of mediation received by J in collusion with the defendant. The defendant cannot be deemed to have delivered the above KRW 180 million to N as his assertion is.

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

In relation to the purchase of E shares by institutional investors, the Defendant merely received KRW 180 million from J and delivered it to N as it is, and there is no money or valuables received as the pretext of mediation. Therefore, Article 6(2) of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter referred to as the "former Act on the Aggravated Punishment, etc.") is applicable to the Defendant.

2. Determination

A. “Good offices” under Article 7 of the former Act refers to “an act of arranging or promoting convenience by arranging or arranging a certain matter between a certain person and the other party.” If a third party received money, etc. under the pretext of good offices, regardless of whether he/she actually went to act as good offices or to act as good offices (see Supreme Court Decisions 2006Do7067, Jun. 12, 2008; 201Do16066, Sept. 13, 2012). In addition, even if a third party, who is not an intermediary, is merely delivering money, goods, or other benefits, which are the consideration, from intermediate offices, if it is deemed that the third party was involved in the act of good offices by delivering them with the intention of joint processing, the crime of good offices and taking offices under Article 7 of the former Act is established (see Supreme Court Decision 2002Do3602, Jun. 28, 2007).

B. In light of the following circumstances acknowledged by the evidence duly adopted and investigated by the court in this case, the defendant was not only involved in the conduct of good offices with the intention of co-processing (in the event that the defendant was involved in the conduct of good offices with the intention of co-processing, even if he was delivered the good offices to the good offices or to the other good offices in accordance with his intent, it does not affect the establishment of the crime of good offices). Since the defendant cannot be deemed to have simply delivered 180 million won received from the J to N, Article 7 of the former Act is applicable to the criminal facts of the defendant's judgment. The above assertion by the defendant and the defense counsel is not accepted.

① G upon F’s request, through H and I, requested H and I to purchase E shares of institutional investors. The J asked the employees of the securities company, including the Defendant who was the head of the international business team of 00 company, to purchase E shares at the request of the institutional investor. The Defendant accepted this request. The Defendant asked N Co., Ltd.’s regular director of P Co., Ltd., who recommended N Co., Ltd. to purchase the shares, and N recommended N Co., Ltd’s officers of Q Co., Ltd. to purchase the shares with the institutional investor’s funds. R purchased the shares with the institutional investor’s funds. According to the monetary details between G, H and I (hereinafter “E”) and J, it was impossible for the K Co., Ltd to know who the purchase of shares was actually conducted through whom it was requested, and the Defendant was not aware of the Defendant’s request for purchase of the shares from the institutional investor at the time of such request, and the Defendant was given KRW 800,000,000,000 from the said institutional investor’s funds and trading.

피고인은 2013. 11. 4. 긴급체포된 당시 이루어진 제1회 검찰 조사1)에서는 J이 N에게 5,000만 원을 건네는 것을 보았을 뿐 자신은 어떠한 금원도 수수하지 않았다고 진술하다가, 2013. 11. 5. 이루어진 제2회 검찰 조사2)에서는 J으로부터 9,000만 원씩 들어 있던 쇼핑백 2개를 받은 후, 그 중 1개를 N에게 주고 나머지 9,000만 원을 개인적으로 소비하였다고 진술하였으나, 2013. 11. 20. 이루어진 제3회 검찰 조사3) 이후 이 법정에 이르기까지는 J으로부터 받은 위 2개의 쇼핑백 모두를 N에게 그대로 건넸다고 진술하는 등 알선 명목 금원의 액수 및 전달 여부와 같은 핵심적인 사항에 있어 진술이 계속적으로 번복되고, 그 외에 전달 방법과 경위 등 세부적인 사항에 있어서도 진술이 번복되고 있다. 이와 같이 J으로부터 받은 1억 8,000만 원을 그대로 N에게 전달하였다는 피고인의 진술은 신뢰하기 어렵다.

3. The number of shares issued by the E and/or 100 of the total value of the E and/or 100 of the total value of the 108 shares issued by the K and E to a certain extent. The E and/or 100 of the total value of the 100 million shares issued by the K and 2.08 shares purchased from the K and 100 of the 198 shares purchased from the K and 2010 of the total value of the 108 shares purchased from the K and 100 of the 198 shares purchased from the K and 2010 of the 198 shares purchased from the K and 2010 of the 198 shares purchased from the K and 1010 of the total value of the 108 shares purchased from the K and 2010 of the 1008 shares purchased from the K and 100,000 won of the 201 shares purchased from the K and 18.18

- In light of the fact that only only the Plaintiff owns 18,00 shares sold on August 19, 201 and August 22, 2011 under its Do, it is insufficient to serve as the basis for the fact that the above R’s content of purchase of shares was already delivered to N.

Reasons for sentencing

The defendant received a certain amount of money under the pretext of arranging institutional investors.

The Defendant did not receive money at the request of the E, but caused the R that operates the funds of institutional investors through N to purchase the stocks of E, thereby hindering the fairness of the capital market and causing damage to the investors.

However, there is no previous difference between the defendant and the defendant, and the defendant is going to proceed to the crime of this case upon the E's request, and the motive is considered. In addition, the crime of this case with the crime of fraud in which the judgment became final and conclusive is a concurrent crime under the latter part of Article 37 of the Criminal Act, and the equity between the above crimes is to be considered at the same time.

In addition, the punishment shall be determined as ordered in consideration of all the sentencing conditions prescribed in Article 51 of the Criminal Act.