Defendant 1 and five others

immigration

Attorney Gangwon-gu et al. and 10 others

Applicant 1 Co., Ltd. and one other

Han Law Firm (Attorney in charge, Chang Chang-soo et al., Counsel for the defendant-appellant)

1. Defendant 1 shall be punished by imprisonment for 5 years and a fine of 2,000,000 won;

When Defendant 1 fails to pay the above fine, the above Defendant shall be confined in a workhouse for the period calculated by converting 50,000 won into one day.

Of the facts charged in this case against Defendant 1, the indictment against the violation of the Labor Standards Act concerning each victim as stated in the attached Form No. 1 is dismissed.

2. Defendant 2 shall be punished by imprisonment for not less than three years and six months;

3. Defendant 3 (Non-Indicted 39 of the judgment of the second instance), Defendant 4 (Non-Indicted 70 of the judgment of the second instance) shall be punished by imprisonment for three years, Defendant 5 (Defendant 3 of the judgment of the Supreme Court and the judgment of the second instance) for one year and six months, and Defendant 6 for one year, respectively.

However, the execution of each of the above penalties shall be suspended for 4 years for Defendant 3 and 4, and for Defendant 5 and 6 for 2 years from the date this judgment became final and conclusive.

4. The applicant for compensation shall be dismissed;

Defendant 1 as the chairperson of the ○○ Group who was working as the representative director of the non-indicted 2 corporation from November 28, 2008, and Defendant 2 was working as the representative director of the non-indicted 2 corporation from March 27, 2007 to November 27, 2008, and Defendant 3 was working as the representative director of the non-indicted 2 corporation from September 2005 to June 1, 2008, and was working as the vice head of the ○○ Group’s financial strategy stamping (the name of the ○○ Group was changed after January 1, 2008) and the head of the ○○ Group from June 1, 2008, and was working as the director through the head of the ○○ Group, Defendant 4 was a person working as the representative director of the non-indicted 22 corporation from October 17, 2006 to the representative director of the non-indicted 23, and Defendant 5 was a person working as the representative director of the above company.

[209Gohap190]

1. A violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes;

On March 208, Nonindicted Co. 2 (hereinafter “Nonindicted Co. 2”) was unable to recover the loan claims of KRW 11.38,930,507,00,000 (hereinafter “Nonindicted Co. 21”) from Nonindicted Co. 21 (hereinafter “Nonindicted Co. 21”). Around that time, Nonindicted Co. 2 was subject to external audit for the year 2007. Nonindicted Co. 2 was able to prepare the financial status of the audit report on the said loan claims disadvantageously, and as a result, it was at the risk of adversely affecting corporate credit rating or share price, and collected the above loan claims by March 14, 2008.

However, in 2005, the net loss of the company is 21.8 billion won, the current liabilities exceed 35.5 billion won, the current liabilities exceed 14.1 billion won, the current net loss in 2006 exceeds 28 billion won, the current liabilities exceed 62.2 billion won, the current liabilities exceed 62.2 billion won, the current liabilities exceed 42.9 billion won, the current liabilities exceed 22.2 billion won, the current liabilities exceed 81.2 billion won, the current liabilities exceed 81.4 billion won, the current liabilities exceed 65.3 billion won, the current liabilities exceed 65.3 billion won, and the liabilities exceed 65.3 billion won, the liabilities have been appraised by an external auditor that has been provided by other affiliate companies, etc. at the time of 2007, about 9.3 billion won, and about 84.3 billion won, the repayment of funds has become more likely to become more in the short term.

A. The co-principal of Defendant 1, 2, 3, and 4

On March 14, 2008, the above Defendants received the construction price of 3.8 billion won from Nonindicted Company 22 from Nonindicted Company 2, and borrowed 5.9 billion won from Nonindicted Company 2, and immediately lent 9.7 billion won to Nonindicted Company 21 after borrowing 5.9 billion won.

However, as the representative director of the victim non-indicted 22, he/she must observe the articles of incorporation of the company that requires the resolution of the board of directors on matters concerning the borrowing of funds or the increase of the capital; in the case of lending of corporate funds, he/she faithfully examines all circumstances, such as whether he/she has the ability to repay debts, and takes measures to recover claims by being provided with adequate collateral, thereby preventing losses to the victim non-indicted 22; however, in violation of his/her duties, the victim non-indicted 22, who is merely 9,3750,000 won in capital without the resolution of the board of directors, borrowed 5,90,000,000,000 won in capital without the resolution of the board of directors; and as seen above, as seen, the victim non-indicted 2

Accordingly, the above Defendants conspired to obtain property benefits equivalent to 9.7 billion won from Nonindicted Company 21 and suffered damages equivalent to the same amount from the victim Nonindicted Company 22.

B. Defendant 1, 2, 3, and 5’s co-principal conduct

On March 14, 2008, the above Defendants received construction payment from Nonindicted Co. 23 and conspired to lend it to Nonindicted Co. 21 so that Nonindicted Co. 21 can repay its loan obligations to Nonindicted Co. 2.

Accordingly, the victim Nonindicted Co. 23 received the construction cost of KRW 1.69 billion from Nonindicted Co. 2, and immediately lent it to Nonindicted Co. 21.

However, the representative director of the victim non-indicted 23 shall observe the articles of incorporation of the company that made the auditor report on important matters concerning the execution of the company's business without any resolution of the board of directors about the fact that there is a concern about considerable damage to the company. In the case of lending the company's funds to another person, he shall faithfully examine all circumstances, such as the existence of the other person's ability to repay, etc., and take measures for recovery of claims such as receiving adequate collateral, and thereby not causing damage to the victim non-indicted 23. However, in violation of the duty of the director's resolution and without reporting it to the auditor without reporting it to the auditor, as seen above, the victim non-indicted 21 who did not have any ability to pay the debt, without taking measures for recovery of claims such as securing a collateral.

As a result, the above Defendants conspired to obtain pecuniary benefits equivalent to KRW 1.69 billion from Nonindicted Company 21, and caused the same amount to the victim Nonindicted Company 23.

2. The crime of fraud by the defendant 4 and 6;

2007. 11. 30.경 공소외 22 회사는 공소외 2 회사로부터 수급한 죽림▷▷▲▲아파트, ▷▷▲▲ 조경공사와 관련하여 피해자인 배상신청인 2 주식회사(이하 ‘ 배상신청인 2 회사’라고 함)에게 하도급하고, 배상신청인 2 회사는 그 무렵 위 공사와 관련하여 피해자인 배상신청인 1 주식회사(이하 ‘ 배상신청인 1 회사’라고 함)에게 재차 하도급하였고, 배상신청인 2 회사와 배상신청인 1 회사가 담당한 위 공사들은 2008. 4.경까지 완료되었다. 위 2개의 공사와 관련하여 공소외 22 회사가 배상신청인 2 회사에게 지급하여야 할 공사대금은 18억 9,441만 9,600원이었으나, 공사가 완료되었을 때까지 지급된 공사대금은 4억 5,000만원에 불과하였다.

The non-indicted 22 continued to pay the construction price to the non-indicted 22 Company, which caused the non-indicted 2 Company's failure to pay the compensation to the non-indicted 2 Company, and the company applying for compensation could not pay the construction price to the non-indicted 1 Company. On September 11, 2008, the non-indicted 1 Company requested the non-indicted 22 to pay the non-indicted 22 for the non-indicted 1,6018,70 won which was not paid by the non-indicted 2 Company. The non-indicted 2 Company requested the compensation applicant to pay the non-indicted 25,0197,830 won remaining after the non-indicted 1 Company requested the non-indicted 22 to pay the compensation.

Nevertheless, the non-indicted 22 Company did not pay the above construction cost to the non-indicted 2 Company and one applicant for compensation. On November 4, 2008, the non-indicted 1 Company, an application for compensation, made a provisional attachment of claim amounting to KRW 1 billion in the claim amounting to KRW 4,601,70,000 against the Korea National Housing Corporation of the non-indicted 22 Company ( KRW 1.1843,710,00). On November 7, 2008, the claim amounting to KRW 25,0197,830 against the above claim amount of the non-indicted 22 Company, which was provisional attachment of claim amounting to KRW 25,00,000.

On December 208, the Defendants: (a) were unable to recover the claims against the above Korea Housing Corporation; (b) due to Non-Indicted 22’s financial difficulties, Non-Indicted 397, the representative director of Non-Indicted 1, the applicant for compensation, and Non-Indicted 398, the representative director of Non-Indicted 2, the applicant for compensation; (c) conspired to remove the provisional seizure of the above claims and collect the above claims; and (d) Defendant 6 found in the office of Non-Indicted 398, the applicant for compensation at the Dong-gu, Busan Metropolitan City (hereinafter omitted) around December 10, 2008, the Defendant already ordered other subcontractors to make a provisional seizure on the claims against the Korea Housing Corporation; and (d) even if the collection was made, the amount of the claims actually recoverable by Non-Indicted 2, the applicant for compensation, and the amount of the claims to be collected by Non-Indicted 3, the applicant for compensation was not 100 million won and paid to Non-Indicted 2, the Defendant 2, the applicant for compensation application for the above 3000.

However, the facts revealed that the amount of debts related to the Namsan site ordered by the Korea National Housing Corporation at the time remains one billion won, and that the amount of wage claims does not exceed 50 million won, and even if the creditors take measures for preservation such as provisional seizure, it exceeded 500 million won if the creditors did so, the applicant for compensation or the applicant for compensation, as the above provisional seizure. In light of the interests of the Korea National Housing Corporation, it would be possible for other creditors to have an opportunity to take measures for preservation such as provisional seizure, etc., and even if other creditors have such opportunity, the amount of debts that can be secured by the applicant for compensation and the applicant for compensation, as the above provisional seizure, was much more than 10 million won.

As such, the above Defendants conspired to induce victims to cancel their respective provisional seizure, and caused Nonindicted Company 22 to obtain pecuniary benefits equivalent to the amount of the claims covered by each such provisional seizure.

[2010Gohap16] Defendant 1

Defendant 1 acquired Nonindicted Co. 1 and changed its name to Nonindicted Co. 2 on February 2005, and directly managed its name as the representative director from June 2005, and thereafter, from November 27, 2008 to November 27, 2008, Defendant 1 was an employer who directly employs 340 full-time workers and operates construction business by taking office as the representative director from November 28, 2008.

3. Violation of obligation to pay wages periodically.

Although the employer has paid wages at least once a month on a fixed date, the employer shall do so;

A. Joint criminal conduct between the defendant and the defendant 2

In collusion with Defendant 2, the Defendant did not pay the total amount of KRW 728,059,090 as wages of the above company 195 employees, including Non-Indicted 39, on October 25, 2008, and did not pay KRW 325 workers of the above company including Non-Indicted 325, including Non-Indicted 399, Nov. 25, 2008.

(b) The defendant's sole criminal conduct;

The Defendant, as stated in the attached Table 37, 39, 60, 73, 119, 139, 155, 216, 221, 256, 282, 304, and 305 of the employees of the above company, such as Nonindicted 39, etc., did not pay the total amount of KRW 976,773,193 on December 25, 2008, a regular wage payment date, as follows.

In December 25, 2008, the unpaid amount of the worker due to the previous payment date in the table included in the main sentence of this Act shall be 306 persons, 949, 263, 929, 929, 304, 830, 534, 209 on February 25, 2009, including Non-Indicted 312, 976, 773, 193 won on December 25, 2008, January 25, 2009, including Non-Indicted 39, etc., 304, 925, 830, 534 won on February 25, 2009; Non-Indicted 296, 871, 945, 909 won on March 25, 2009; Non-Indicted 649, Apr. 39, 2005;

4. Violation of obligation to liquidate money and valuables.

From February 14, 2005 to November 15, 2008, the Defendant did not pay KRW 7,023,369 of retirement allowances of Nonindicted 400 retired from the said company within 14 days from the date on which the cause for the payment occurred, without agreement between the parties to the extension of the due date.

In addition, the Defendant did not pay the total amount of KRW 384,680,481 as well as the annual allowances of 38 retired workers, such as the statement of overdue wages in attached Form (except for the employees listed in attached Table 304, 305, 331) within 14 days from the date on which the cause for payment occurred without agreement between the parties to the extension of the payment date.

5. Violation of collective agreements;

The employer must comply with the collective agreement on the provision of facilities and convenience, and the company has concluded a collective agreement to pay wages to the full-time officer of the union, despite the fact that it has concluded

A. Joint criminal conduct between the defendant and the defendant 2

Defendant 1, in collusion with Defendant 2, did not pay the total of KRW 15,96,380 from October 2008 to November 2008, the full-time officer of the said company’s labor and Nonindicted 77 and Nonindicted 401-1.

(b) The defendant's sole criminal conduct;

The Defendant did not pay the total amount of wages of KRW 36,792,980 from December 2008 to April 2009, the full-time officer of the above company labor union, Nonindicted 77 and Nonindicted 401-2 to April 2009.

[209Gohap190]

1. Each legal statement of the defendant 2 and 3;

1. Each legal statement of the defendant 1, 4, 5, and 6 in part;

1. Each legal statement of the witness, Nonindicted 398, 397, 402, Defendant 2, Nonindicted 72, 73, 71, 76, 74, 251, 24, 403, and 404

1. Each prosecutor's protocol of interrogation of the accused 2, 3, 4, 5, and 6;

1. Some prosecutor's protocol of examination of the defendant 1

1. Each prosecutor's protocol on the defendant 2, non-indicted 398, 397, 72, 73, 403, 76, 74, 24, 3, 251, 71, 5, and 405

1. Each police protocol of Nonindicted 397, 402, 73, and 406

1. Each cash loan contract, each copy of passbook and account transaction, the current status of collection of Nonindicted Company 21’s loans, the case of requesting a short-term driving loan, the case related to Nonindicted Company 167 loans, and the details of redemption of Nonindicted Company 21

1. 지불합의서, 위임장, 각 가압류 결정문 및 해제접수증명원, ∴∴∴∴∴ 골프클럽 조경공사 관련서류, 거래처원장 등, 군위골프장기성내역 등

1. 각 공사대금계약서, 계산서, 내용증명서, 공증인증서, 공사대금 잔액확인, 거래처원장, 작업완료 확인서, 기성금 직불요청서, 영수증·송금증 및 수표, ≡≡≡≡건설 기성금 지급내역 등, 각 통장사본 및 계좌거래내역, 공사대금지급요청서, 자금청구내역서

1. Each audit report, each tax settlement statement, income statement, balance sheet, quarterly report, resolution of the Fair Trade Commission, and copy of each articles of association;

1. Each investigation report (the filing of non-indicted 22's unpaid debts, the filing of documents related to the guarantee of non-indicted 23's loans, the filing of daily financial performance and plans for the affiliates held in the ○○○ Group's financial strategic stamping, the filing of documents on the loans of 13 billion won by non-indicted 21, the filing of documents on the loans of 13 billion won by non-indicted 21, the filing of documents on the chairperson of the ○○ Group's financial team leader of non-indicted 21, the filing of documents on the reports by non-indicted 71, the filing of documents, the filing of documents on the reports by the defendant 2,

【2010Gohap16】

1. The defendant 1's partial statement

1. The witness’s legal statement in Nonindicted 144 and 77

1. Each protocol of examination of the suspect against Defendants 1 and 2 by the prosecution;

1. Each appellant and the representative statement of Nonindicted 77

1. Each statement made by Nonindicted 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, and 148

1. Each telephone statement made by Nonindicted 149, 150, 151, 152, 153, 154, 155, 156, 157, and 158;

1. A written complaint, a written complaint, and a statement of the details of each overdue wages;

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

A. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) in Article 1-A of the Decision on the Aggravated Punishment, etc. of Specific Economic Crimes on Defendant 1, 2, 3, and 4: Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 356, Article 355(2), and Article 30 of

B. Article 1-B. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) against Defendant 1, 2, 3 and 5: Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 356, Article 355(2), and Article 30 of the Criminal Act

C. Fraud in the judgment with Defendant 4 and 6: Articles 347(2) and (1) and 30 of the Criminal Act (each choice of imprisonment with prison labor)

D. Violation of the Labor Standards Act with respect to Defendant 1: Articles 109(1) and 43(2) of each Labor Standards Act (the violation of the obligation to pay wages on a regular basis, the addition of the Criminal Act to Article 30, the choice of imprisonment with labor), Articles 109(1) and 36 of each Labor Standards Act (the violation of the obligation to liquidate money and valuables, and the choice of imprisonment with labor)

E. Violation of the Labor Union and Labor Relations Adjustment Act against Defendant 1: Article 92 subparag. 1 (e) and Article 31 (1) of the former Trade Union and Labor Relations Adjustment Act (Amended by Act No. 930, Jan. 1, 2010; Act No. 9930, Jan. 1, 2010; Act No. 30 of the Criminal Act is added

1. Aggravation of concurrent crimes (defendants 1, 2, 3, 4, 6);

(a) Defendant 1: the former part of Article 37, Articles 38(1)2 and 38(1)3, and Article 50 of the Criminal Act [the sentence shall be the most severe. A. Article 1-1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) and the fine prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes and the Labor Union and Labor Relations Adjustment Act]

B. Defendant 2, 3, and 4: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act [the heavier punishment against Defendant 2 and 3, and the heavier punishment against Defendant 4]

(c) Defendant 6: the former part of Article 37, Articles 38 (1) 2 and 50 of the Criminal Act (an aggravated punishment for concurrent crimes against one company which is an application for compensation of a victim with heavier punishment)

1. Discretionary mitigation (Defendant 2, 3, 4, 5);

Articles 53 and 55 (1) 3 (see the following reasons for sentencing) of each Criminal Act

1. Detention in a workhouse (Defendant 1);

Articles 70 and 69(2) of the Criminal Act

1. Suspension of execution (defendants 3, 4, 5, and 6);

Article 62(1) of the Criminal Act (see the following reasons for sentencing)

1. Dismissal of an application for compensation order;

Articles 32(1) and (2), 25(3)2 and 3 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (the amount of damage is not specified, and the amount of damage is not specified, and the scope of liability is not clear because an agreement is made during trial).

1. Judgment on Defendant 1’s assertion

(a) Contents of the assertion;

Defendant 1 and his defense counsel with regard to the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation). ① The act of breach of trust in this case was conducted under the exclusive judgment of Defendant 2, who was the representative director of the non-indicted 2 company, and Defendant 1 cannot be held liable for the act of breach of trust in this case since it was never reported by Defendant 2 in advance or instructed Defendant 2 to do so with regard to the act of breach of trust in this case. ② The ○○ Group’s affiliates are formed by holding shares, and the insolvency of one company is complicatedly linked to the structure that may affect other companies. If the non-indicted 2 company, which was the principal director of the ○○ Group, might inevitably lead to the act of this case for the rehabilitation of the entire ○○ Group, and thus, Defendant 1 cannot be held liable for the non-indicted 1’s non-indicted 2’s non-indicted company’s non-indicted 2’s non-indicted 2 company’s non-indicted 2 company’s non-indicted 2 company’s non-indicted 2 company’s financial act.

B. Determination

(1) As to the assertion that there was no participation in the instant act of breach of trust

증거조사결과 인정되는 다음과 같은 사정 즉, ① ○○그룹이 해운기업으로서 포트폴리오를 완성하기 위하여 인수한 공소외 21 회사( 공소외 167 주식회사)는 인수 초기부터 누적된 부실로 인하여 계열사의 도움 없이는 정상적인 운영이 불가능하였던 점, ② 이에 공소외 2 회사는 공소외 21 회사가 금융권의 대출을 받는 데에 있어 담보를 제공하여 왔고 이는 그룹회장인 피고인 1의 직속기관인 재정전략스탭의 사전 승인 내지 지시에 의해 이루어져 왔던 점, ③ 공소외 2 회사가 공소외 21 회사로부터 회수하려고 한 이 사건 대여금의 경우 역시 공소외 21 회사가 2006. 12.경 동양투자금용에서 대출을 받음에 있어 공소외 2 회사가 130억원을 예금담보 형식으로 예치시킨 것이 담보 실행되는 바람에 발생한 것을 공소외 2 회사가 2007. 4. 2.자로 공소외 21 회사에 130억원을 대여하는 것으로 회계처리한 사안으로서 이와 같은 경위에 비추어보아도 재정전략스탭에서 이 사건 대여금의 발생과 존속, 회수가능성 등 그룹 전체 재정에 끼칠 문제점에 대해서 모두 파악하고 있었던 것으로 보이는 점, ④ 이 사건 배임행위 당시 피고인 1은 공소외 17 주식회사의 조선소 건설자금 조달 문제에 그룹의 운명을 걸고 마치 실성한 사람처럼 동분서주하느라 그룹내 자금이동에 신경 쓸 여력이 없었다고 주장하나, ○○그룹의 주력사인 공소외 2 회사가 신용평가등급을 낮게 받게 되면 ○○그룹이 금융기관으로부터 자금지원을 받는데 차질이 생기게 되고, 그 여파는 ○○그룹 전체차원에서 공소외 17 주식회사에 대한 자금조달 문제로 이어질 수 밖에 없는 일이어서, 위와 같은 피고인 1의 주장내용은 설득력이 없는 점, ⑤ 2008. 2. 25. 외부회계 감사결과 이 사건 미수대여금이 회수되지 않을 경우 전액 대손충당금으로 처리될 수 있다는 문제점이 제기된 이후 실질적인 자금회수 없이 외부회계감사에서 좋은 평가를 받을 수 있는 방안을 모색하다 여의치 않자, 회계심리 마지막 날인 2008. 3. 14.에 이르러서야 공소외 2 회사의 자금 등으로 이 사건 대여금을 회수하는 편법적인 방식을 취하게 되었는데, 위와 같은 공소외 2 회사의 대처방식을 살펴보아도 최후의 수단으로서 이 사건 배임행위와 같은 자금회수를 염두에 두고 있었던 것으로 보여 이와 같은 과정을 거친 결정이 ○○그룹 회장인 피고인 1의 관여가 없는 상태에서 피고인 2 혼자만의 결단으로 진행되었다고 보기 어려운 점, ⑥ 피고인 2의 수사기관과 이 법정에서 진술은 다소 상이한 점이 있기는 하나 이는 배임행위 당일 피고인 1에게 보고 및 지시를 받는 과정에서의 의사전달 태양에 관한 것으로서 이 사건 대여금채권의 회수를 위한 대책을 강구하기 위해 급박하게 진행되었을 당시의 상황 등에 비추어보면 기억력의 한계 내에서 이를 바로 잡는 수준에 불과하여 그러한 점을 이유로 피고인 1에 대한 보고 내지 지시과정 등에 대한 직접적인 경험을 내용으로 한 피고인 2의 진술내용의 신빙성을 탓하기 어렵고, 전체적인 흐름에서 보건대 피고인 2는 이 사건 배임행위에 이르기까지의 공소외 2 회사의 자금상황의 변화에 대해서 자연스럽게 진술하고 있으면서 그러한 진술내용이 또다른 직접 경험자들인 피고인 3, 4, 5 등의 전체적인 진술취지와도 부합하는 점, ⑦ ○○그룹 각 계열사에서 자금부분을 담당하였던 공소외 71, 72, 73, 74 모두 업무관례상 계열사의 대표이사가 자체적으로 계열사 간 자금이동에 관하여 결정할 수 없고 재정전략스탭에 보고하고 그 지시를 통해서 자금집행을 할 수 밖에 없다고 일관된 취지로 진술하고 있으며, 재정전략스탭의 이사로서 ○○그룹 재정의 실무를 담당하고 있었던 피고인 3 역시 계열사 간의 자금 지원은 1억원만 돌려도 반드시 그룹회장인 피고인 1에게 보고하여 지시를 받은 후에 실행을 하여야 한다고 진술하여 피고인 2의 진술의 신빙성을 뒷받침하고 있고, 이 사건에서 무죄를 주장하고 있는 피고인 5의 전체적인 주장내용 역시 피고인 2 진술의 신빙성을 뒷받침하고 있으며, 피고인 1에게 매우 우호적인 입장을 표명하면서 유리한 증언을 하였던 전 공소외 2 회사 대표이사 공소외 75조차도 이 사건 배임행위 당시 그룹의 자금사정상 하도급사에게 자금이 지급되는 것도 엄격히 제한하는 방침이 정해져 있었다고 밝히기도 하여 그러한 진술내용은 실질적인 자금흐름 측면에서 피고인 2의 진술내용을 뒷받침하고 있다고 평가할 수 있는 점, ⑧ 이 사건 배임행위 다음 영업일인 2008. 3. 17.자 일일자금계획표상에 이 사건 배임행위인 계열사간의 자금이동이 반영되어 보고된 것은 배임행위 당일 아침까지도 ○○자금이 자체적으로 확보할 수 있는 자금 액수가 명확하지 않고 어느 계열사를 통하여 자금을 이동시킬 것인지도 확정적으로 정해지지 않았기 때문으로 보이고 자금이동 후 바로 이에 대한 보고가 이루어진 사정은 그룹회장인 피고인 1이 사전에 이미 이에 대한 승인이 있었음을 강력하게 추인케 하는 사정이라 할 것이어서 이 사건 배임행위를 2009. 2.경 배상신청인 1 회사 등이 보낸 내용증명을 받고서야 알게 되었다는 피고인 1의 진술은 신빙성이 떨어지는 점, ⑨ 피고인 2가 공소외 2 회사의 대표이사이기는 하나 전문경영인에 불과하여 사주(사주)와 같은 책임과 권한이 없는 점에 미루어볼 때 그룹회장인 피고인 1에게 사전 보고하여 승인을 얻지 않고 독단적으로 이와 같은 행위를 할 합리적인 이유가 없는 점 등을 종합하여 보면, 피고인 1은 이 사건 배임행위에 관하여 피고인 2로부터 사전에 보고받고 이를 승인 내지 지시하였다고 인정되므로, 이에 대한 피고인의 주장은 이유 없다.

(2) On the assertion that the intent of breach of trust is disputed

As a result of the examination of evidence, (i) Defendant 1 consistently denied its relevance with respect to the act of breach of trust of this case, asserting that there was no time to permit the listing of the group’s president to do so. The assertion itself is inconsistent with the principle of business judgment to respect the company’s interests within the possible extent and to limit the intent of breach of trust. (ii) The act of breach of trust of this case was transferred to Nonindicted Company 22 and 23, an affiliate company, and thus, constitutes an unlawful act of breach of trust of this case’s company’s company’s shareholders and creditors, and financial institutions. Even if there was no time to obtain the above approval, it is highly likely that the above act of breach of trust of this case’s company’s corporate interests would be likely to cause harm to the society, such as an intentional breach of trust of the company’s interests, and there was no possibility that the company’s own interests would cause harm to the company’s company as a result of the company’s own act of breach of trust of trust.

(3) As to the assertion that no property damage has occurred

As a result of the examination of evidence, ① the act of lending money to Nonindicted Company 2 and Nonindicted Company 2 and Nonindicted Company 2’s non-indicted 2’s non-indicted 2’s non-indicted 2’s non-indicted 1’s non-indicted 2’s non-indicted 2’s non-indicted 3’s non-indicted 2’s non-indicted 2’s non-indicted 2’s non-indicted 2’s non-indicted 2’s non-indicted 2’s non-indicted 3’s non-indicted 2’s non-indicted 2’s non-indicted 2’s non-indicted 2’s non-indicted 2’s non-indicted 2’s non-indicted 2’s non-indicted 2’s non-indicted 3’s non-indicted 2’s non-indicted 2’s non-indicted 3’s non-indicted 2’s non-indicted 3’s non-indicted 2’s non-indicted 2’s non-indicted 3’s non-indicted 2’s non-indicted 2’s non-indicted 3’s non- capital.

(4) As to the assertion on the charge of violation of the Labor Standards Act, etc. before the appointment of representative director

The following circumstances acknowledged as a result of the examination of evidence: (i) Defendant 1 was in office as the representative director of Nonindicted Company 2 from January 28, 2005 to September 8, 2005 at the time of acquiring Nonindicted Company 2; (ii) has been in office as a director on the register on November 28, 2008; and (iii) Defendant 1 had been in office as a representative director on the register before being reappointed to the representative director; and (iv) has been in office as a general group and affiliate; (v) has received regular reports on the flow of funds at the ○○○○ Group’s subsidiaries’ financial strategy stamp; (v) it is reasonable to accept the appointment of Defendant 2 as Defendant 1’s liability to pay the unpaid portion of the company, such as Defendant 2’s liability to pay the unpaid portion of the company; and (v) it is also reasonable to view that Defendant 2 and Defendant 2 had been in office at the time of appointment of the former ○○ Group’s financial strategy stamp; and (v) it is also reasonable to agree with Defendant 2’s liability to appoint Defendant 2.

2. Judgment on Defendant 4’s assertion

Defendant 4 and his defense counsel were almost dependent on the management of Nonindicted Company 22, such as receiving orders from Nonindicted Company 2 to receive most of the Corporation from Nonindicted Company 2, and determined that Nonindicted Company 22, which should be well established. According to the group level’s decision, Defendant 4 and his defense counsel thought that money was formally going through Nonindicted Company 22 and did not actually borrow money from Nonindicted Company 2 or lend money to Nonindicted Company 21, and that money was not actually borrowed from Nonindicted Company 2 or borrowed money from Nonindicted Company 21. Although there was a similar case before the preliminary case, it did not recognize that it was a legal problem since Nonindicted Company 2 was able to solve the problem, Defendant 4 did not have any awareness that at the time of the instant breach of trust, damage was inflicted on Nonindicted Company 22.

In light of the above, Defendant 4’s assertion that Defendant 2 cooperates with the same affiliate as Defendant 2’s telephone contact, and did not examine specific facts or problems that may arise therefrom, and immediately prepared documents and received 5.9 billion won for construction payment from Nonindicted Company 2 and lent the entire amount to Nonindicted Company 21 under the pretext of loan. Since there is a lack of the duty to carry out as the representative director of one company, this is due to the lack of awareness of the importance of one’s act, and as such, Defendant 4 took the best action in the belief that it would not cause damages to the company at the end of this case’s act as representative director, and good faith as a factual act should be clearly distinguished. Since it was the point at which the date of payment for the construction payment for the subcontractor company was not due to the default of trust, Nonindicted Company 21.7 billion won for the loan period of 3 months after the loan period of this case, and Defendant 200 million won cannot be sufficiently viewed as an intentional act of breach of trust and as an intentional act of trust.

3. Judgment on Defendant 5’s assertion

Defendant 5 and his defense counsel asserted that in a position where it is difficult to independently promote the business without the support of Nonindicted Co. 2, a major shareholder, it was in a position to refuse to give orders for financial support from Nonindicted Co. 2 and ○○○ Group members, and that it was difficult for them to receive and deliver the funds from the group. Thus, they did not fully recognize that the funds of Nonindicted Co. 23 were the funds of Nonindicted Co. 23 and that there was no awareness of the fact that there was no damage or concern about the occurrence of such act.

In light of the following circumstances: (a) Defendant 5 refused to recover the entire amount of the instant loan to Nonindicted Company 21 by moving the funds through Nonindicted Company 23 at the first time; (b) Defendant 5 rejected the first time on the ground that there was an excessive amount of money to recover the entire amount of the instant loan to Nonindicted Company 21; and (c) Defendant 5 did not have any reason to only deliver the fixed amount of funds,” even though half of the amount was given, Defendant 5 served as a decision making to reduce the amount of damages to Nonindicted Company 23; (b) even though it was considered in sentencing, Defendant 5 was well aware of the problem of the act of moving funds between affiliate companies at the time of the instant breach of trust; and (c) even if Defendant 5 was in a position that it was difficult for ○○ Group to refuse the instructions of the Group due to pressure, etc.; and (d) it is difficult to deem that there was a legal reason to expect the said act as a representative director of the company as a matter of course, there is no sufficient reason to recognize Defendant 5’s intent at the time of breach of trust.

4. As to Defendant 4 and 6’s argument regarding fraud

Although the above Defendants have filed several arguments regarding the establishment of the crime of fraud, comprehensively taking account of the circumstances at the time of withdrawal of provisional seizure acknowledged by the evidence submitted by each of the above Defendants, the Defendants’ position, the attitude toward the victims’ provisional seizure, and the violation of the duty of non-liability after the provisional seizure is withdrawn, the prosecutor may sufficiently recognize the criminal liability regarding the contents of the original facts charged. Thus, the above Defendants’ assertion disputing the liability for the crime of fraud is rejected.

Since the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Misappropriation of Trust) committed by the remaining Defendants except Defendant 6 constitutes a crime to which the sentencing guidelines enforced from July 1, 2009 were applied, the recommendation punishment of the sentencing guidelines calculated by each Defendant is mandatory, and the punishment shall be determined as ordered in consideration of the nature of concurrent crimes and overall circumstances of crimes.

1. Defendant 1

[Scope of Punishment] Imprisonment 5 years, - June 22

[Types of Crimes] Types 4 (at least five billion won, less than 30 billion won) among the crimes of embezzlement and breach of trust

No. 1-A. (b) The aggregate amount of damage caused by paragraph (1) and the portion causing substantial damage to a third party, other than the related company, exceeds 5 billion won.

[Special Persons] When a large volume of victims (workers, shareholders, creditors) has been caused, or when a substantial damage has been caused to interested parties, such as subcontractors, etc. of a victimized company.

[Special Mitigation] The sole purpose of the Company’s interest (unfair assistance) is to:

[Judgment on the argument related to Special Mitigation]

The defendant and his defense counsel asserted as if the claim held by the non-indicted 21 was transferred to each damaged company and argued as if the damage was recovered. The issue is whether the special mitigation factor constitutes "the case where punishment is not imposed or significant damage was recovered", but the existence of the claim and the actual value of assets will also be expressed. In addition, in light of the financial status of the non-indicted 21 at the time of the transfer of assignment of claims, etc., it is clear that such act constitutes a fraudulent act under civil law, and it would result in an increase of the damage to the injured company only due to the delay in civil disputes with the creditors of the non-indicted 21. Thus, there is no room to regard the defendant and the defense counsel as "the case where punishment is not imposed or significant damage was recovered" on the ground of the assertion of the defendant and the defense counsel. Furthermore, in light of the size of the claim held by the non-indicted 398 and 397, which is a part of the actual victim, it does not constitute a case where the actual damage is confirmed.

[Scope of Recommendation, Basic Field] Imprisonment for 4 to 7 years;

[Scope of the revised recommended sentence] 5 to 7 years of imprisonment (the amount of overdue wages in violation of the Labor Standards Act for which no sentencing guidelines have been set is large, and the amount of the overdue wages in violation of the Labor Standards Act for which the sentencing guidelines have not been set has not been set is a minimum of the recommended sentence due to his/her efforts, and it is not desirable to reduce the amount of discretionary mitigation without prison labor, and thus, it is not desirable to reduce the amount of discretionary mitigation. For this reason, since the lower limit of the recommended sentence is five years of imprisonment, the lower limit of the recommended sentence shall be revised to the lower limit of the punishment under law).

[Concurrent Crimes with No Sentencing Criteria] Imprisonment with prison labor for at least five years, both of them shall be punished by a fine

[Determination of Sentence] Five years of imprisonment and fine of two million won

It is difficult to find out that there was an agreement with Nonindicted 398, 397, the complainant who suffered substantial damage due to the act of breach of trust, and that there was a need to take into account the fact that the Defendant committed the instant crime under the financial crisis of the entire ○○○○ Group, even though the amount of damage from criminal facts was large, the Defendant’s assets or wide range of business operations operated by the ○○ Group, etc. However, even though the Defendant is in a position to take responsibility more than any other person’s wrong behavior during the management process as the chairperson of the group, it is difficult to find that the subordinate employees were in conflict with the contents of the company-related person’s perception or a specific and biological statement based on his direct experience, and consistently with the attitude to escape criminal liability, and thus, it is difficult to find out that there was considerable difficulty for the subcontractor to complete the substantial construction work at the next stage of the business organization’s act of breach of trust and make it difficult for the employees under his/her control to take due account of the fact that it was difficult for them to suffer from considerable damages.

2. Defendant 2

[Scope of Punishment] Imprisonment with prison labor for 2 years and 6 months - November;

[Types of Crimes] Types 4 (at least five billion won, less than 30 billion won) among the crimes of embezzlement and breach of trust

No. 1-A. (b) The aggregate amount of damage caused by paragraph (1) and the portion causing substantial damage to a third party, other than the related company, exceeds 5 billion won.

[Special Person] The case where a large number of victims (worker, shareholder, or creditor) has been caused, or where it causes serious damage to the subcontractor of non-indicted 22 who has specifically complained against the substantial damage.

[Special Mitigation] The sole purpose of the Company’s interest (unfair assistance) is to:

[Recognition by expanding the scope of coverage of special mitigations]: It shall be evaluated that the attitude of the investigation agency and the court of the defendant who has cooperated in finding the substantive truth is equivalent to the self-denunciation and internal corruption clearly stated in the sentencing guidelines.

[Scope of Recommendation and Reduction of Punishment] Imprisonment for 2 years and 6 months to 5 years;

[Determination of Sentence] Three years and six months of imprisonment, and the statutory detention shall not be made;

In light of the fact that Defendant 2’s specific plan for the act of breach of trust in this case, directed the execution thereof, etc., is highly serious in the role of the subcontractor in the crime, and that it is unreasonable to recognize the direct damage of the subcontractor in the poor status, the sentence of imprisonment is inevitable: Provided, That the court shall not be subject to the statutory detention, taking into account the following: (a) the purpose of Defendant 2 was to reveal the entire end of the act of breach of trust in this case by clarifying the details and the progress of the act of breach of trust in this case from the investigative agency to the court; (b) the fact that Defendant 1, who is more responsible for the crime in this case, is not bound by the detention of Defendant 1; and (c) there is a need to ensure procedural fairness.

3. Defendant 3

[Scope of Punishment] Imprisonment with prison labor for 2 years and 6 months - November;

[Types of Crimes] Types 4 (at least five billion won, less than 30 billion won) among the crimes of embezzlement and breach of trust

No. 1-A. (b) The aggregate amount of damage caused by paragraph (1) and the portion causing substantial damage to a third party, other than the related company, exceeds 5 billion won.

[Special Person] The case where a large number of victims (worker, shareholder, or creditor) has been caused, or where it causes serious damage to the subcontractor of non-indicted 22 who has specifically complained against the substantial damage.

[Special Mitigation] If solely for the purpose of a company's interest (unfair assistance to affiliated companies), such passive commission

[Scope of Recommendation and Reduction of Punishment] Imprisonment for 2 years and 6 months to 5 years;

[Determination of Punishment] Three years of imprisonment

[Suspension of Execution] Acceptance of the Suspension of Execution (see, e.g., whether there are circumstances to take into account the way and degree of discussion, and the fact that his mistake is recognized and against it)

4. Defendant 4

[Scope of Punishment] Imprisonment with prison labor for 2 years and 6 months - November;

[Types of Crimes] Types 4 (at least five billion won, less than 30 billion won) among the crimes of embezzlement and breach of trust

[Special Person] The case where a large number of victims (worker, shareholder, or creditor) has been caused, or where it causes serious damage to the subcontractor of non-indicted 22 who has specifically complained against the substantial damage.

[Special Mitigation] If solely for the purpose of a company's interest (unfair assistance to affiliated companies), such passive commission

[Scope of Recommendation and Reduction of Punishment] Imprisonment for 2 years and 6 months to 5 years;

[Concurrent with Crimes for which the sentencing guidelines have not been set] Imprisonment for at least two years and six months;

[Determination of Punishment] Three years of imprisonment

[Suspension of Execution] Acceptance of Suspension of Execution (see, e.g., whether an agreement was reached with the victims of the crime of fraud, and whether the act of breach of trust in this case was carried out by actual pressure within the group)

5. Defendant 5

[Scope of Punishment] Imprisonment, one year and six months - seven years and six months;

[Types of Crimes] Type 3 (at least 500 million won, less than 5 billion won) among the crimes of embezzlement and breach of trust

[Special Persons] In the event of mass victims (workers, shareholders, and creditors)

[Special Mitigation] If solely for the purpose of a company's interest (unfair assistance to affiliated companies), such passive commission

[Scope of Recommendation and Reduction of Punishment] Imprisonment with prison labor for a year and six months to three years;

[Determination of Punishment] Imprisonment with prison labor of one year and six months

[Suspension of Execution] Acceptance of the Suspension of Execution (The wife plays a critical role in reducing the amount of damage by failing to cooperate in the act of breach of trust, and considering the fact that the act of breach of trust in this case was carried out by actual pressure within the group)

6. Defendant 6

Defendant 6’s participation in the crime of fraud of this case by Defendant 4 and the victim’s decision to cancel the provisional seizure of this case is deemed to have a critical impact on the decision making by the victim, but in consideration of the fact that the victim’s consent was not wanting to punish the victim, and that there was a circumstance that the head in charge of the scene of Nonindicted Company 22 ought to manage funds and carry out construction work in an urgent manner at the time.

The summary of this part of the facts charged is as follows: "Defendant 1 violated the obligation to regularly pay wages of KRW 262,463,628 in total with respect to each worker as stated in the attached table of wages agreed in the attached method as stated in paragraph (1) of the judgment of the case in which the defendant 1 violated the obligation to liquidate money and valuables of KRW 21,62,159 in total, including retirement allowances for workers listed in the same table in the same manner as stated in paragraph (2) of the same case." This part of the facts charged cannot be prosecuted against the intent expressed by the victim pursuant to Article 109 (2) of the Labor Standards Act, and according to the records, it can be acknowledged that each victim is not punished for the defendant after the prosecution of this case, and this part of the indictment is dismissed pursuant to Article 327 subparagraph 6 of the Criminal Procedure Act.

It is so decided as per Disposition for the above reasons.

[Attachment]

Judges Kim Jong-chul (Presiding Judge)