Defendant

Transition iron type

Attorney Kim Sung-soo

A defendant shall be punished by imprisonment for one year.

Three days of detention before this judgment is rendered shall be included in the above sentence.

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

Of the facts charged in this case, the facts of fraud, embezzlement on March 23, 2004, and violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes through embezzlement on July 27, 2004 are not guilty.

The defendant worked for the victim non-indicted 1 Co., Ltd. (hereinafter referred to as "victim company") located in Gangnam-gu Seoul Eastdong (hereinafter referred to as "non-indicted 1 Co., Ltd.") at the real estate development and sales chain from March 200 to July 2004;

1. On March 200, after becoming a member of the injured company around 200, living together with the victim non-indicted 2 (the victim non-indicted 47 years old) who is the representative director. On July 23, 2004, the issue of the employment of the employees of the company was disputed with the victim and settling the living together with the employee. During that period, the company had become aware of the company's corruption, such as the unregistered pre-sale, while serving in the above company, by threatening the victim to receive money.

A. At around 14:00 on July 25, 2004, the victim threatened the victim with "B", saying it is unnecessary to provide the victim with a phone to inform the National Tax Service and the investigative agency of the fact of tax evasion of the unregistered transfer of real estate and the tax evasion of real estate unless the head of the party provides ten billion won or more; and

B. From 11:00 on the 26th day of the same month, the victim threatens the victim by stating that the victim’s office located in Gangnam-gu Seoul (hereinafter omitted) in the office of the victim’s management (trade name omitted) will take a place “if the victim does not know 10 billion won,” and:

다. 같은 날 오후 시간 불상경 피해자가 먼저 36억 원을 피고인의 계좌로 송금해 주겠다고 말해 놓고 이를 송금하지 않는다는 이유로 피해자에게 전화를 걸어 "이 씹할 년, 너는 인간도 아니다. 내가 지금까지 뼈빠지게 일만 하면서 네 따까리 노릇만 했는데 오늘 중으로 36억 원을 내 놓지 않으면 내가 가지고 있는 너의 불법, 탈법 자료를 국세청에 넘겨주고 구속되게 하겠다. 감옥에 가서 한 5년 푹 썩고 와라"고 말하여 피해자를 협박하고,

D. In collusion with Nonindicted 6 or 7:

On July 28, 2004, at the Seocho-gu Seoul Seocho-gu, Seocho-gu, Seoul, the victim sent to the victim a letter of accusation “a statement that the victim has evaded while operating a real estate consulting company during that period that is accused of tax evasion to investigative agencies and National Tax Service”, indicating the victim’s attitude that the victim would have any harm to the body or property of the victim by facsimile, and threatening the victim.

2. On August 9, 2004, around the first half of the year, 200, 200: (a) on December 9, 2003, 2003, 160 real estate sales contract owned by the victimized company, such as Chapter 1 of the real estate sales contract, which was owned by the victimized company, 20 square meters in order to use as data to receive money by threatening Nonindicted 2 in the planning room of the victimized company located in the sixth floor of the (title omitted omitted) building in Gangnam-gu, Seoul (hereinafter omitted) building; and (b) steals it; (c) on December 9, 2003.

3. In collaboration with Nonindicted 6, 7, 10, and 11:

On August 12, 2004, at least 08:30 on the planning room of the above victim company, it opened a door to use the password, which was known in advance to the sixth floor through the 5th Varaxa, and intrudes into the room in possession of the victim company.

[No. 1-A.B.] (2004 type No. 88038)

1. The defendant's partial statement in the first trial record;

1. Part of the witness’s statement in the second trial record

1. Partial statement of the suspect interrogation protocol of the accused by the prosecution (including the first and the second part)

1. Part of the prosecutorial protocol on Nonindicted 2’s protocol of statement (No. 2)

1. Recording in writing (ten pages of investigation records);

[Fact 1-D.] (204 type 139798, 13967, 139968, 140096)

1. The defendant's partial statement in the first trial record;

1. Part of the witness’s statement in the second trial record

1. Statement of the suspect interrogation protocol of the accused by the prosecution;

1. Each statement of the police interrogation protocol against Nonindicted 6 and 7 (the investigation record, the number of pages 46, 57, 67, and 82)

[Fact 2] (No. 88038)

1. The defendant's partial statement in the first trial record;

1. Part of the witness’s statement in the second trial record

1. Statement of the police suspect interrogation protocol (four times) of the accused;

1. Statement made by the police on Nonindicted 2 (No. 4)

[Fact 3] (Article 204-type 139798, 13967, 139968, 14096)

1. The defendant's partial statement in the first trial record;

1. Part of the witness’s statement in the fifth trial record

1. Partial statement of the suspect interrogation protocol of the accused by the prosecution;

1. Each statement made by the police suspect interrogation protocol (185, 205 pages) against Nonindicted 10 and Nonindicted 7

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

Article 283(1) of the Criminal Act (the point of intimidation, each choice of imprisonment), Article 329 (the point of larceny and Selection of Imprisonment) of the Criminal Act, Article 2(2) and Article 2(1)1 of the Punishment of Violences, etc. Act, Article 319(1) of the Criminal Act (joint residential intrusion and choice of imprisonment)

1. Aggravation of concurrent crimes;

Article 37 (Aggravation of Concurrent Crimes concerning Theft as provided in the former part of Article 37, Article 38 (1) 2, and Article 50 (Aggravation of Concurrent Crimes with Punishment among Crimes in Sales)

1. Calculation of days of detention;

Article 57 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (General Conditions in favor of the Purpose of Punishment)

On August 12, 2004, the defense counsel asserts that the defendant's act identical to the facts set forth in Article 3 of the judgment does not constitute a crime of intrusion upon residence, since the defendant's office in the (name omitted) office located in the (name omitted) office in Gangnam-gu Seoul Metropolitan Government (hereinafter referred to as "non-indicted 6, 7, etc.") is the office of the defendant who leased and exclusively occupied and used the defendant's name.

Since the crime of intrusion upon residence is de facto protected as a legal interest to protect the peace of residence, whether the resident or manager has the authority to reside in or manage the building, etc. does not depend on the establishment of crime. Even if a person is permitted to enter the building in a usual manner due to the relationship with the resident or manager, if the act of entering the residence is committed against the explicit or presumed intent of the resident or manager, the crime of intrusion upon residence is established, and if the act of entering the house is not normal access through the entrance, unless there are special circumstances, it shall be deemed that the method of intrusion itself goes against the above intent (Supreme Court Decision 94Do336 delivered on September 15, 195).

However, the following facts are acknowledged by each of the above evidence, i.e., (1) the 6th floor office of the above (name omitted) building was used as the office of the defendant as of the date and time of the decision, but this was used by the defendant for the work of the damaged company, and the rent was also paid by the damaged company since the damaged company was leased under the name of the defendant as the former office of the damaged company. Thus, even if only the defendant or his assistant members knew the above office entrance lock number of the damaged company's entrance, the other employees are unable to enter the above office without the defendant's permission, and the above office's actual management authority cannot be deemed to have been transferred to the defendant or his assistant employees, and the above office's act was not allowed to enter the above office in a normal way against the defendant's explicit intention to prevent the above defendant's access, and thus, the defendant and the above 6th floor office's act was not allowed by opening the above 6th floor door of the above 6th floor office.

1. As to fraud

A. Summary of the facts charged

The summary of the facts charged as to the fraud among the facts charged in this case is that the defendant received 2.79 million won from the beginning of April 2004 to June 30 of the same year by obtaining 377,215,000 won from the sum of the amounts owned by the damaged company, such as the defendant's bank account (Account Number omitted) around April 6, 2004, as shown in the attached list of crimes, from Non-Indicted 4, the managing director of the above company, and from the Dogyeong, the management director, who is the executive director of the above company.

B. The gist of the defendant and his defense counsel

On April 2004, the Defendant: (a) changed the method of collecting the mutual aid money from sales allowances to be paid to sales employees in the past with Nonindicted 2, who changed the method of using it as ordinary investigation expenses for employees; and (b) agreed to use only KRW 10,000 per ordinary day from the land sales proceeds of the company as employees’ welfare expenses; and (c) ordered Nonindicted 5 and Nonindicted 4, who is the managing director of the victimized company and the managing director in charge of the fund, to deposit KRW 10,00 per ordinary day out of the company’s land sales proceeds into the mutual aid account in the name of the Defendant; and (d) the Defendant did not defraud the damaged company’s money by deceiving Nonindicted 5 and Nonindicted

C. Determination

In light of the above facts, if the defendant stated some of the non-indicted 5's statements made by the non-indicted 2 and the non-indicted 5's statement made by the non-indicted 5's non-indicted 5's non-indicted 2's non-indicted 5's statement and the defendant's statement made by the non-indicted 2's prosecutor's office (the non-indicted 1 and 3's investigation records No. 8038)'s statement that the non-indicted 5's defendant's money was not recorded in the non-indicted 5's statement and the non-indicted 2's statement that the non-indicted 5's money was not recorded in the non-indicted 5's statement that the non-indicted 5's money was not recorded in the non-indicted 5's statement and the non-indicted 5's statement that the non-indicted 5's money was not recorded in the non-indicted 5's statement that the non-indicted 2's money was recorded in the non-indicted 5's statement.

In addition, it is doubtful that Nonindicted 2, the representative director of the victimized company, was aware of the Defendant’s act of deposit into the above old account, and then, did not raise any objection thereto, and merely ordered Nonindicted 4, the person in charge of the fund, to execute the funds transparently by clearly distinguishing sales allowance and mutual aid money from the former’s account. Nonindicted 2, as seen above, may be aware of the fact that some of the sales allowance is to be accumulated into the Defendant’s account in the course of making a decision on the payment for sales allowance distributed in a lump sum of KRW 10,00,000, and Nonindicted 2 filed a complaint against the Defendant for embezzlement as to this part, and filed a lawsuit against the Defendant seeking the return of the said mutual aid amount (Evidence 1 and 11). In light of the fact that Nonindicted 2, the first director, and the fact that he knew of the accumulation of the said mutual aid amount from the original to the Defendant’s account.

Therefore, this part of the facts charged constitute a case where there is no proof of crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

2. As to embezzlement on March 23, 2004

A. Summary of the facts charged

Of the facts charged in the instant case, the summary of embezzlement on March 23, 2004 was that the Defendant entered into a lease agreement on the lease of the above office in the name of the Defendant for the damaged company in the office owned by Nonindicted 3 in Gangnam-gu, Seoul (hereinafter omitted) around February 23, 2004, and the Defendant returned KRW 150,000,000 from Nonindicted 3 to the Defendant’s deposit account (Account Number omitted) around March 11 of the same year after the termination of the above lease agreement, and embezzled by transferring the above amount to the Defendant’s other interest bank account (Account Number omitted) as the intention of acquisition on March 23 of the same month.

B. The gist of the defendant and his defense counsel

As stated in this part of the facts charged, the Defendant concluded a lease agreement with Nonindicted 3 on behalf of the victimized company, and terminated it, and then returned KRW 150,000,000 to the Defendant’s deposit account in the Cho Jong Bank. However, the Defendant agreed with Nonindicted 2 to use the above money as an extraordinary payment, while jointly operating the victimized company in partnership with Nonindicted 2, and used it. Thus, the Defendant cannot be said to have embezzled the above money.

C. Determination

(1) First of all, as to whether the above lease deposit amount of KRW 150,00,00 is the amount owned by the victimized Company, according to the statement made in the first prosecutor's protocol of the first prosecutor's interrogation of the Defendant, and the statement made in the fourth prosecutor's interrogation protocol of the Defendant on the fourth prosecutor's interrogation of the Defendant, Nonindicted Party 2 entered into a lease contract with Nonindicted Party 3, the owner of the building, who leased the Defendant's name on February 2004. The lease deposit amount of KRW 150,00,000, which was used as the corporate account of the victimized Company, was withdrawn from the account in the name of Nonindicted Party 2, which was used as the corporate account of the victimized Company. However, it is difficult to prove that the above lease deposit was an account in the name of Nonindicted Party 2, which was withdrawn, or whether it was used as the account of the victimized Company's corporate account, and there is no objective evidence to prove that the money deposited in the account was owned by the victimized Company, and there is no other objective evidence to prove that it was used as it.

Therefore, it cannot be said that the above lease deposit itself was owned by the victimized company since the Defendant entered into a lease agreement with Nonindicted 3 on behalf of the victimized company on behalf of the victimized company, and the said lease deposit was returned from Nonindicted 3 after the termination thereof. Furthermore, it cannot be said that the lease deposit returned to the Defendant’s account after the termination of the above lease agreement falls under the ownership of the victimized company.

(2) If the above lease deposit is not the money owned by the victim company, it shall be deemed the money owned by the non-indicted 2. Even so, even if so, it is reasonable to believe that the defendant made a statement by the non-indicted 2 that he voluntarily deposited the above money into the above payment bank account under the name of the defendant without the understanding of the non-indicted 2. In light of the fact that the defendant and the non-indicted 2 continued to live together and operate a business for a long time, it is difficult to believe this is also, and there is no other evidence to prove that the defendant used the above money voluntarily.

(3) If so, this part of the facts charged constitutes a case where there is no proof of crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

3. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes due to the embezzlement on July 27, 2004

A. Summary of the facts charged

Of the facts charged in the instant case, the summary of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes through embezzlement on July 27, 2004 is as follows: (a) around 15:00 on July 27, 2004, the Defendant had Nonindicted 8 file a report on the loss of the said deposit account, which was kept by Nonindicted 8 with his intention of acquisition, opened a new deposit account in the name of Nonindicted 8 on July 27, 2004, and then embezzled the said amount to the new deposit account in order to create the funds for the damaged company in preparation for the imposition of taxes by the National Tax Service on May 202.

B. The gist of the defendant and his defense counsel

The defendant's transfer of KRW 1,231,582,255 deposited in the bank account in Hong Kong, Hong Kong, which was opened by lending the name of the non-indicted 8, 231,582,255 to the new account under the name of the non-indicted 8 at the time and place stated in this part of the facts charged. However, the account in the non-indicted 8 is opened by lending the name of the non-indicted 8, the birth of the defendant to keep his personal funds in custody, and the above amount deposited in the above account from non-indicted 2 is owned by the defendant who received the above account from the non-indicted 8 as the

C. Determination

Therefore, it is difficult to believe that there is no other evidence to acknowledge it in light of the following: (a) the Defendant’s second protocol of trial as to whether KRW 1,231,582,255 deposited in the bank account in Hong Kong, the Defendant’s Dong-dong Nonindicted 8’s Dong-dong bank account; (b) the witness’s partial statement of Nonindicted 2; (c) the prosecutor’s protocol of examination of the Defendant’s suspect against the Defendant; (d) the part of the Defendant’s protocol of examination of the Defendant’s suspect against Nonindicted 2; (e) the part of the prosecutor’s protocol of examination of the Defendant’s suspect against Nonindicted 2; and (e) the part of the prosecutor’s protocol of examination against Nonindicted 2; and (e) the police’s protocol of statement against Nonindicted 2 (third).

In other words, Nonindicted Party 2 stated that the above account opened in the above account under the name of Nonindicted Party 2 for the purpose of distributing funds to the above account under the name of Nonindicted Party 2, and that money deposited in the above account was not the Defendant’s old age, but the Defendant’s money deposited in the above account under the name of Nonindicted Party 2. However, comprehensively taking account of each of the aforementioned evidence and evidence No. 14 and evidence No. 23-7, the Defendant was running a real estate development and sales business together with Nonindicted Party 2 from March 200 to July 204, the fact that there was no room to view that some of the money deposited in the above account under the name of Nonindicted Party 2 was deposited in the above account under the name of Nonindicted Party 1, 700,000 won for which Nonindicted Party 2 had opened the above account under the name of Nonindicted Party 2, 400,000 won, and that the pertinent account was opened under the name of Nonindicted Party 2, 200,002.

Therefore, this part of the facts charged constitute a case where there is no proof of crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

As the Defendant committed each crime, when Non-Indicted 2, who was the representative director of the victimized company and the female living together, became aware of Non-Indicted 2's corruption, it should be subject to punishment for responding to the act of threatening Non-Indicted 2 to file a criminal complaint with the investigative agency over several times for the purpose of receiving a large-amount of settlement money of 10 billion won with the aim of using the large-scale relationship with the victimized company's non-Indicted 2, and unauthorized intrusion into the victimized company's office to use the above intimidation, and theft of documents, etc. However, the Defendant used a somewhat unreasonable means to demand the distribution of part of his contribution during the process of settling the living relationship and the business relationship with Non-Indicted 2 for a long period of time. As such, some of the motive for each of the crimes of this case may be considered to be relatively small, due to the Defendant's intimidation, theft, etc., such as each act as indicated in the holding, and the execution of the sentence shall be deferred at once, based on all circumstances such as the Defendant's age, motive, means and result of the crime, and result.

[Attachment Form 5]

Judges Kim Dong-ok (Presiding Judge)