[1] The admissibility of evidence of the suspect interrogation protocol prepared by the public prosecutor in a case where the authenticity and voluntariness of the suspect interrogation protocol was reversed

[2] In a case where a shareholder or representative director disposes of the property owned by the corporation for a private purpose, whether the crime of embezzlement is established (affirmative) and the meaning of the intent of unlawful acquisition in embezzlement

[3] In a case where the act of embezzlement is arranged and the act of disposal is actively used, whether the co-principal who participated in the act of embezzlement bears the responsibility for the crime of embezzlement (affirmative)

[4] The concept of criminal proceeds and acceptance under the Act on Regulation and Punishment of Criminal Proceeds Concealment

[5] The employer's liability for committing the act of receiving criminal proceeds in relation to the business

[6] The meaning of "the acceptance of money and other valuables for the intermediation of matters belonging to the duties of officers and employees of the financial institution" under Article 7 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

[1] When the defendant, co-defendant or his defense counsel acknowledged the authenticity and voluntariness of the protocol of interrogation of the suspect against the defendant in preparation by the prosecutor, the defendant's protocol of the co-defendant and the co-defendant's defense counsel, and then denied the protocol or submitted a document, it cannot be said that the protocol is inadmissible. The court's first statement that recognized the authenticity and voluntariness of the formation in light of all the circumstances, such as the contents and form of the protocol and the statement related to the crime in the court of the defendant and the co-defendant's statement in the court of the co-defendant,

[2] Since a stock company is an independent right holder separate from a stockholder, its understanding does not necessarily coincide with the other stockholder, if a shareholder or representative director arbitrarily disposes of the company's property for private purposes, such as offering it as security for financing to a third party, then the crime of embezzlement may not be exempted regardless of whether the general meeting of shareholders or the board of directors passed a resolution regarding such disposal. In the crime of embezzlement, the intent of unlawful acquisition refers to the intent of disposing of the property of a third party in violation of his/her occupational duty for the purpose of seeking the benefit of himself/herself or a third party, and it does not impede the recognition of the intent of unlawful acquisition even if he/she wishes to return it later or compensate.

[3] In a case where the representative director's act of embezzlement is arranged to dispose of the assets of a corporation at his/her discretion and the act of disposal is actively used, he/she shall not be exempted from the liability of joint principal offenders who participated in the act of embezzlement by the representative director.

[4] The "property generated by the crime of heavy crimes" under Article 2 subparagraph 2 (a) of the Act on the Regulation and Punishment of Criminal Proceeds Concealment includes not only the property newly created by the crime of serious crimes, but also the property acquired by such crime. In light of the legislative intent of the above Act that attempts to restrain crimes by regulating the disposal and management of criminal proceeds, it constitutes not only the act of acquiring ownership of criminal proceeds, but also the act of acquiring criminal proceeds, etc. as security of claims with the knowledge of Article 4 of the above Act.

[5] A person who received criminal proceeds in relation to the business of a business owner may not be exempted from the liability as a person who actually performed the act of receiving criminal proceeds regardless of whether the legal relations arising from the act of receiving criminal proceeds belong to the business owner.

[6] Article 7 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes provides a broker with convenience in relation to matters belonging to the duties of the officers and employees of a financial institution, and "the acceptance of money and valuables in relation to the referral of matters belonging to the duties of the officers and employees of a financial institution" shall be a case where money and valuables or other benefits are provided to the broker for the purpose of mediating matters belonging to the duties of the officers and employees of a financial institution and the officer and employees of a financial institution who can become the counterpart to the referral. It shall not be deemed that money and valuables are received in relation to the referral of matters belonging to the duties of the officers and employees of a financial institution in case where money and valuables are provided to the broker for the convenience of the matters

[1] Article 312 of the Criminal Procedure Act / [2] Articles 35 (1) and 356 of the Criminal Act / [3] Articles 30, 355 (1), and 356 of the Criminal Act / [4] Articles 2 subparagraph 2 (a) and 4 of the Act on the Regulation and Punishment of Criminal Proceeds Concealment / [5] Article 4 of the Act on the Regulation and Punishment of Criminal Proceeds Concealment / [6] Article 7 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

[1] Supreme Court Decision 97Do2368 delivered on December 12, 1997 (Gong1998Sang, 357), Supreme Court Decision 2004Do805 Delivered on April 23, 2004, Supreme Court Decision 2003Do3472 Delivered on October 15, 2004 / [2] Supreme Court Decision 82Do75 Delivered on September 13, 1983 (Gong1983, 1521), Supreme Court Decision 2005Do741 Delivered on April 29, 2005 (Gong205Sang, 897) / [4] Supreme Court Decision 2004Do5652 Delivered on December 10, 204 (Gong205Sang, 205Do3979 decided Apr. 36, 197) / [309Do9794 decided Apr. 16, 2005]

Defendant 1 and two others

Defendants and Prosecutor (Defendant 3)

Attorneys Han-chul et al., Counsel for the plaintiff-appellant

Seoul High Court Decision 2005No49 delivered on April 26, 2005

All appeals are dismissed. With respect to Defendant 1, 110 days out of the number of detention days after the appeal shall be included in the original sentence.

The grounds of appeal are examined (to the extent of supplement in the event of supplement in the grounds of appeal filed by the ASEAN Law Firm, a defense counsel by Defendant 1).

1. Determination on the authenticity and voluntariness of the suspect interrogation protocol

A. When the defendant, co-defendant or his defense counsel acknowledged the authenticity and voluntariness of the protocol of interrogation of the suspect against the defendant prepared by the prosecutor, the co-defendant or his defense counsel, and then denied the protocol or submitted a document, it cannot be said that the protocol is inadmissible. The court's first statement that recognized the authenticity and voluntariness of the formation in light of all the circumstances such as the contents and form of the protocol and the statement related to the crime in the court of the defendant and the co-defendant's statement in the court of the co-defendant is credibility, and the protocol of interrogation of the suspect is admissible (see, e.g., Supreme Court Decisions 97Do2368, Dec. 12, 1997; 2003Do3472, Oct. 15, 2004).

According to the records, Defendant 2 and his defense counsel acknowledged their authenticity and arbitrity as to each protocol of examination of the suspect prepared by the prosecutor who recorded Defendant 2's statement on the second and fifth trial dates. Co-defendant 1 and their defense counsel in the original trial, among each protocol of examination prepared by the prosecutor on the first, third and fifth trial dates, Defendant 1 and co-defendant 2 acknowledged their authenticity and arbitrity as to the part in which Co-defendant 1's statement on the crime of this case was stated to the seller's direct delivery to the seller's side. Until the first trial of the above protocol is finished, Defendant 1 and co-defendant 2 of the original trial and their defense counsel did not raise any objection as to the admissibility of evidence of the above protocol; Defendant 2 and co-defendant 1 of the original trial do not dispute their intention and part on objective facts related to the crime of this case; Defendant 2 and co-defendant 1's statement on the interrogation protocol prepared by the prosecutor's office and evidence evidence of each of the above case; Defendant 2's testimony and evidence evidence.

Defendant 2, co-defendant 1, and his defense counsel at the trial of the court below, which was the appellate trial, reversed the statement in the trial of the first instance on the authenticity and arbitability of the establishment of each of the above statements. From the trial of the court of first instance to the trial, it does not seem to be different on the ground that there was a different argument from the above statements in the court of first instance, and

B. Meanwhile, among the interrogation protocol prepared by the public prosecutor as to co-defendant 2 in the court below, the part concerning the defendant 2 and co-defendant 1 in the court below's protocol of examination as to co-defendant 2 was denied as to some facts in the first and second trials, and it was investigated again by the public prosecutor, and the defendant 1 did not agree to the part concerning his own facts in the court as evidence (see Supreme Court en banc Decision 99Do1108 delivered on June 15, 200). Of each interrogation protocol prepared by the public prosecutor as to co-defendant 1 in the court below, the first proposer of the court below's statement in the court below as to co-defendant 1 in the court below's protocol of examination as to co-defendant 2 was not admitted as authentic evidence, and the part concerning co-defendant 1's statement in the court below's prosecutor's office and the part concerning non-defendant 2's statement in the court below's prosecutor's protocol as evidence and its admissibility as to the remaining part concerning co-defendant 2's's statement and evidence evidence.

Therefore, the court below is just in finding Defendant 2, Co-Defendant 1, and Co-Defendant 2 of the court below's decision and each protocol of examination of the suspect who prepared the prosecutor as evidence, and there is no error in the misapprehension of the rules of evidence as to the establishment of the authenticity of the protocol, the Voluntaryness of the statement, the admissibility of evidence of the expert statement, etc.,

2. Determination on the intent of Defendant 1 and Defendant 2

Since a stock company is an independent right holder separate from its shareholders, its understanding does not necessarily coincide with its understanding, if a shareholder or representative director arbitrarily disposes of the company's property for private purposes, such as offering it as collateral for financing to a third party, regardless of whether there was a resolution by the general meeting of shareholders or the board of directors regarding such disposal, the crime of embezzlement cannot be exempted. In the crime of embezzlement, the intent of unlawful acquisition refers to the intent of disposing another person's property in violation of his/her duties for the purpose of seeking the benefit of himself/herself or a third party, and even if he/she either returns it later or compensates for it, it does not interfere with recognizing the intent of unlawful acquisition (see, e.g., Supreme Court Decisions 82Do75, Sept. 13, 1983; 2005Do741, Apr. 29, 2005). In addition, if a representative director who intends to arbitrarily dispose of the company's property and actively takes part in the act of embezzlement by the representative director, the joint crime of embezzlement cannot be exempted.

Examining the evidence admitted by the court below in light of the records, the offering of the certificate of deposit equivalent to 5.3 billion won prepared for the above company's funds as security by the purchaser of the above company's funds in order to raise the purchase price of the shares is merely an offering of the company's assets at will for the private purpose of raising the purchase price according to the LBO method only in the form of the transaction. In reality, it is nothing more than an offering of the company's assets at will for the private purpose of preparing the purchase price according to the disposal of shares by the defendant 1. Thus, the court below's decision is just in order for the defendant 1, the representative director, as his agent, to prepare the first intermediate payment 5.0 billion won in the process of selling the shares of the above company as security by purchasing the certificate of deposit of the above company's funds by Defendant 2; Defendant 1 prepared the certificate of deposit with the funds of the above company; Defendant 2 prepared the certificate of deposit with the funds of the above company as security; Defendant 1 did not err in the misapprehension of legal principles as to urge the purchaser's of the above 1000 billion method.

3. Determination on the violation of the Act on Regulation and Punishment of Criminal Proceeds Concealment

Article 2 subparagraph 2 (a) of the Act on Regulation and Punishment of Criminal Proceeds Concealment includes not only the property newly created by a serious crime but also the property acquired by such criminal act (see Supreme Court Decision 2004Do5652, Dec. 10, 2004). In light of the legislative intent of the above Act that attempts to prevent a crime by regulating disposal or operation of criminal proceeds, the act of acquiring ownership of criminal proceeds, etc., but also the act of acquiring claims as security of criminal proceeds constitutes an act of receiving criminal proceeds, even though it is knowing that it is "Article 4 of the above Act." In addition, a person who received criminal proceeds, etc. in relation to the business affairs of a business owner is not exempt from the liability of a person who actually received criminal proceeds regardless of the fact that the legal relationship arising from such receipt belongs to the business owner (see Supreme Court Decision 93Do1483, Feb. 8, 1994).

Examining the evidence admitted by the court below in light of the records, the court below is just in finding the defendant 3, who is an investment examiner of Young business start-up investment company, guilty of the facts charged that he received 300 million won, which is equivalent to interest, by receiving 5 billion won loan principal and interest from the above negotiable deposit certificate, even though he knows that the above negotiable deposit certificate was disposed of and embezzled at will in the process of negotiating 5 billion won at the request of the purchaser of the shares at the request of the purchaser of the shares, and that the above negotiable deposit certificate was received 5 billion won as security of the principal and interest of the above company, and received 300 million won, which is equivalent to interest, even though he was aware that the above negotiable deposit certificate was disposed of at will be arbitrarily disposed of and embezzled. In so doing, contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the rules of evidence or misapprehending the legal principles on the recognition of embezzlement act, the concept of criminal proceeds, and the criminal liability of the actual offender.

4. Judgment on the prosecutor's appeal

A. Article 7 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes provides and receives money and valuables in relation to the mediation of matters belonging to the duties of the officers and employees of a financial institution, as stated in Article 7 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, for the purpose of mediating matters belonging to the duties of the officers and employees of the financial institution between the person who requested the mediation of matters belonging to the duties of the officers and employees of the financial institution and the officer and employee of the financial institution who can become the counterpart to the mediation (the other party to the mediation). It does not necessarily mean that money and valuables are given and received in relation to the mediation of matters belonging to the duties of the officers and employees of the financial institution in case where the person provided convenience to the client in relation to the matters belonging to the duties of the officers and employees of the financial institution and received money and valuables as a consideration therefor (see Supreme Court Decisions 97Do367, May 30, 197; 9Do3115, Oct.

Examining the evidence admitted by the court below in light of the above legal principles and records, it is just in the judgment of the court below that Defendant 3, who is an investment examiner of Young-si Investment Co., Ltd., requested to lend 5 billion won of stock purchase fund from the purchaser of Young-si Investment Co., Ltd., and consented to the request. The court below found that the Young-si Investment Co., Ltd., borrowed 5 billion won from the Hancheon-si branch of Gwangju Bank net Savings Bank, and again borrowed 5 billion won to the purchaser of stocks, and the purchaser of the Gwangju Bank's net Savings Bank and the purchaser of the stocks did not have any means of negotiating or trading for direct loans. In this case, the court below found that the Young-si Investment Co., Ltd., which was an investment examiner of Young-si Investment Co., Ltd., Ltd., did not have an act of arranging loans from financial institutions and lending them again to the purchaser of the stocks, and it did not err by misapprehending the legal principles as to the elements of violation of the Act on the Punishment, etc. of Specific Economic Crimes (Aggravated Punishment) or misunderstanding.

B. Meanwhile, although the prosecutor submitted a written appeal to the effect that he/she is dissatisfied with the guilty portion of the judgment of the court below, he/she did not state the grounds of appeal as to the part of the grounds of appeal in the appellate brief,

5. Conclusion

Therefore, all appeals are dismissed, and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)