2017Gohap339 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

A

Han Sang-leap (Court) (Court of Second Instance), Qhoap (Court of Second Instance)

Law Firm B

Attorney C

June 15, 2017

A defendant shall be punished by imprisonment for three years.

Criminal facts

On September 12, 2016, the defendant was the representative director of the Victim E Co., Ltd. (hereinafter referred to as "victim Co., Ltd.") located in Seongbuk-gu, Sungnam-si (hereinafter referred to as "victim Co., Ltd.") and has overall control over the affairs of the Victim Co., Ltd.

On February 6, 2017, the Defendant embezzled KRW 500,000,000 of the funds of the victim company in the name of the Defendant (company G) by transferring the funds of the victim company to the Defendant’s account (company G) and withdrawing KRW 28,40,000 from cash and check, in violation of the victim company’s representative director’s duties, and embezzlement KRW 78,40,000,000,000 of the funds of the victim company, from among the funds of the victim company in the name of the victim company (bank F), at the KEB located in the JA branch in Gangnam-gu Seoul, Seoul.

Summary of Evidence

1. Defendant's legal statement;

1. Each prosecutor's protocol of examination of the accused;

1. The police statement of H;

1. Statement of complaint, details of account transactions - Capital management account;

1. Each investigation report (in relation to the first execution reply of a warrant of search and seizure verification, the second execution of a warrant of search and seizure verification, reporting on the results of the execution of a warrant of search and seizure of an enterprise bank, and reporting on the results of execution of a warrant

Application of Statutes

1. Article applicable to criminal facts;

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356 and 355 (1) of the Criminal Act

Reasons for sentencing

1. The scope of applicable sentences: Imprisonment for not less than three years nor more than thirty years;

2. Scope of recommended sentences according to the sentencing criteria;

[Determination of Punishment] Type 3 (not less than KRW 500 million but less than KRW 5 billion)

【Special Convicted Person】

[Recommendation and Scope of Recommendation] Basic Field, 2 years to 5 years of imprisonment

3. Determination of sentence;

[Unjustifiable circumstances] Although the defendant, as the representative director of the victim company, assumes the duty to use the funds of the victim company in line with the purpose of the appropriate management, he voluntarily withdrawn the funds of the victim company, and consumed them for personal purposes. The funds of the victim company that the defendant embezzled are larger than KRW 700 million, and the defendant raised the funds embezzled in one month with entertainment expenses and gambling expenses, etc. up to now, the compensation for damage has not been paid up to now. (1) Even when the defendant committed the instant crime, even if the transaction of the defendant's account was suspended, the defendant sent a e-mail to I, etc. who is a director of the victim company, and the victim company wanted to have a serious punishment against the defendant.

[Dissecing circumstances] The Defendant is against the law by recognizing his mistake from the investigative agency to this court. The Defendant has no other criminal records other than that sentenced to a fine several times prior to the instant crime.2) In addition, the Defendant’s age, character and conduct, environment, family relationship, motive and circumstance of each of the instant crimes, circumstances after the instant crimes, etc. shall be determined by comprehensively taking into account all the factors of sentencing indicated in the records and arguments, including the following factors.

The presiding judge, judge Kim Jong-tae

Judges Kim Gin-han

Support for judges' organization

1) However, as the transaction of the Defendant’s account was suspended, the embezzlement of approximately KRW 77 million is not consumed and is stored in the account under the name of the Defendant, and the above KRW 77 million is likely to be paid to the victim company according to civil procedures.

2) Although the Defendant alleged that the J, one of the investors of the victim company, has useful investment funds, but the investors failed to take appropriate measures to cover the instant case, thereby resulting in the instant crime. However, such circumstances are difficult to view that the Defendant’s failure to take appropriate measures is a well-founded explanation about the circumstances leading to the instant crime, and thus, the Defendant does not take into account the circumstances favorable to the Defendant.