2016Gohap1205 A. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

B. Occupational breach of trust

1.(a) A

2.(a) B

3.2. C.

The lecture knowledge (prosecutions), immigration rules, and the Gangwon-gu Office (Public Trial)

Law Firm D (for Defendant A)

Attorney E

Attorney F (for the defendant B)

Attorney G (the national election for the defendant C)

March 31, 2017

Defendant A shall be punished by imprisonment for three years, by imprisonment for two years, and imprisonment for one year for Defendant B.

However, the execution of each of the above punishments shall be suspended for 4 years for Defendant A, for 3 years for Defendant B, and for Defendant C for 2 years from the date this judgment became final and conclusive.

Criminal facts

Defendant A is a person who works as the site leader of (ju) H’s interior construction cooperation company (hereinafter referred to as “victim”) and is engaged in the process management and payment of progress payment for the subcontractor of the victimized company. Defendant C is a person who has operated the J of indoor interior interior interior interior decoration fishery business, and Defendant B is a person who has operated K of Tail wholesale business.

1. Occupational breach of trust by using J;

Defendant A is responsible for the site director of the interior interior located directly in Seoul and Seoul Metropolitan area as well as the site director of the interior center. Defendant C paid the funds of the damaged company as if Defendant C was the actual subcontractor of the victimized company, but was paid as the construction cost to J, which was returned part of this, and was used for personal purposes.

Defendant A proposed to the effect that, around October 2010, at the damaged office in Gangnam-gu Seoul Metropolitan L Building 5th floor, Defendant C deposited the construction cost, Defendant C transferred the deducted amount of all the expenses such as value-added tax, etc. to the designated account at home or returned by cash. Defendant C conspired to cooperate in the act of breach of trust of the above A on condition that the 14% amount of the construction cost is paid by Defendant A as the fee.

After all, Defendant A filed a claim for construction payment with the damaged company by submitting a false estimate or settlement statement, etc. in violation of his/her duties, and Defendant C filed a claim for construction payment with the damaged company, even though he/she did not perform the construction work at all, even though he/she did not perform the construction work at all. Defendant C filed a claim for construction payment by submitting a false settlement statement, etc. received from Defendant A to the damaged company, etc., as it did not perform the construction work at all.

After all, on November 17, 2010, the injured company paid 35,200,000 won, including 10% of the value added to J, and Defendant C deposited KRW 29,707,603 out of the money of the above electronic bill on the 19th of the same month into the new bank account in the name of Defendant A.

From around that time to May 31, 2013, Defendant A and Defendant C had the victimized Company pay 345,40,000 won in total to the said J in the name of the subcontract construction cost, as described in [Attachment Table Nos. 1 to 8], as well as in the above method, from around that time to May 31, 2013.

As a result, Defendant A and C conspired to obtain a total of KRW 345,400,00 from the above J and suffered a loss equivalent to the same amount as the damaged company.

2. Occupational breach of trust using K;

Defendant A was unable to cooperate with Defendant C in raising funds any longer due to the tax burden due to the middle half of 2013, Defendant A introduced Defendant B, who was the dynamics of N, as a person who served as the same role as Defendant C, who was the director of the interior team team, and was in the same position as Defendant C.

Defendant A proposed to the effect that, around September 2013, when the contract price is deposited to Defendant B, the amount after deducting all the expenses such as value-added tax should be transferred to the designated account or returned in cash. Defendant B conspired to cooperate with Defendant A in the act of breach of trust on the condition that Defendant A receive 20% of the contract price under the pretext of fees.

After all, Defendant A filed a claim for the construction cost with the affected company by submitting a false estimate or statement of accounts, etc. in violation of his duties, and Defendant B filed a claim for the construction cost as if the subcontractor had a duty to pay only the amount corresponding to the actual part of the construction work in the event that the subcontractor claims construction cost as the head of the site office in Gangnam-gu Seoul. Defendant A filed a claim for the construction cost by submitting the false statement of accounts, etc. received from Defendant A to the victimized company, etc. as if the subcontractor did not perform all the construction work.

Ultimately, on January 28, 2014, the injured company paid 34,100,000 won, including 10% added tax, to K, and Defendant B deposited KRW 27,528,390 out of the above electronic bill money in the new bank account under Defendant A’s name on the 29th of the same month.

From around that time to August 25, 2016, Defendant A and Defendant B had the victimized Company pay the total amount of KRW 611,60,000,00 in 10 times, as described in [Attachment List Nos. 9 through 18], in the above manner, from around that time, to August 25, 2016.

As a result, Defendant A and B conspired to obtain a total amount of 611,600,000 won from the above K and suffered a loss equivalent to the same amount from the damaged company.

Summary of Evidence

[Fact 1]

1. Statement of each of the defendant A and C in the second protocol of trial;

1. The first protocol of examination of the suspect to the prosecution against N;

1. Each prosecutor's protocol of statement about Q, R and S;

1. Copy of the prosecutor's statement concerning T;

1. A written statement;

1. Investigation report (based on the result of execution of warrants for search and seizure applying an account trend);

1. Part 10 copies of the contract for construction works, one site site for construction works at the direct H sales outlet, one copy of each report on construction works, one copy of each bid, evidential data, records of requests for progress payments, false construction records, etc., flow drawings, and records of the accounts related to this case;

[Judgment of the court below]

1. Defendant B’s statement in the first trial record;

1. Statement made by the defendant A in the second protocol of trial;

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

1. Each prosecutor's statement of Q. U, R and S;

1. Copy of the prosecutor's statement concerning T;

1. V, each written statement of T;

1. Investigation report (based on the result of execution of warrants for search and seizure applying an account trend);

1. As to the response to investigation and cooperation, one detailed status of business operators, one copy of the list of tax invoices, one copy of the construction contract, ten copies of the construction site, one site site for interior works at H direct sales outlet, one copy of the site report on construction works, one copy, one copy of the tender contract, evidential data on the request for progress payment, false construction details, etc., and the account tracking flow map, and the account records related

Application of Statutes

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

(a) Defendant A: Articles 356, 355(2), and 30 (a) of the Criminal Act (a comprehensive crime of occupational breach of trust as stated in paragraph (1) of this Article), Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 356, 355(2), and 30 (including the fact of occupational breach of trust as stated in paragraph (2) of this Article) of the Criminal Act;

B. Defendant B: 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 (the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, inclusive)

C. Defendant C: Articles 356, 355(2), and 30 of the Criminal Act (as stated in paragraph (1) above, comprehensively and comprehensively, the above Defendant does not have any status to manage another’s business, and thus, the Defendant does not have any status to manage another’s business. Thus, according to the proviso to Article 33 and Article 50 of the Criminal Act, Article 355(2) and (1) of the Criminal Act

1. Aggravation for concurrent crimes;

Defendant A: the first sentence of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (within the scope of adding up the long-term punishment of the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes with heavier punishment to the punishment)

1. Discretionary mitigation;

Defendant B: Articles 53 and 55(1)3 of the Criminal Act (The conditions favorable to the reasons for sentencing below)

1. Suspension of execution;

Article 62(1) of each Criminal Code (The following consideration of favorable circumstances among the reasons for sentencing):

Reasons for sentencing

1. Defendant A

(a) The scope of the applicable sentences;

From 3 years to 40 years of imprisonment;

(b) Scope of recommendations based on the sentencing criteria;

The basic area (special mitigation factors: penalty in case of special mitigation factors, special aggravation factors: punishment in case of special aggravation factors: special aggravation factors: crime frequency: very poor) of the type No. 3 (the lowest limit of recommending punishment is lower than the minimum limit of punishment in law, based on the minimum limit of punishment in case of a person who commits the same kind of punishment, and the amount calculated by adding the amount of profit in case of a person who commits the same kind of punishment) and three to five years of imprisonment (the lowest limit of punishment is lower than the minimum limit of punishment in law).

(c) Determination of sentence;

The Defendant, while working in the victimized company, conspired with other Defendants over a long period from November 2010 to August 2016, 2016, caused a total of KRW 957 million to the victimized company. The Defendant received from other Defendants about KRW 689 million out of the amount of damages, and used them for personal purposes. In light of the background of the crime, the form of the crime, and the relationship between the Defendant and the victimized company, etc., such crime is not good.

However, the circumstances are favorable to the defendant, such as the fact that the defendant recognized the crime of this case and reflects the mistake, the fact that the damaged company does not want the punishment of the defendant, and the fact that the defendant does not have any record of exceeding the fine of the defendant, etc. In addition, the number of sentencing factors in the records of this case, such as the defendant's age, environment, character and conduct, motive and means of the crime

2. Defendant B

(a) The scope of the applicable sentences;

From 1 to 15 years of imprisonment; or

(b) Scope of recommendations based on the sentencing criteria;

Type 3 (not less than KRW 500, not more than KRW 500, less than KRW 5000) shall be the basic area, imprisonment for 2 years to 5 years.

(c) Determination of sentence;

From January 2014 to August 2016, the Defendant conspiredd with the Defendant A to inflict a total of KRW 6160 million on the victimized company, and used part of the amount of damages in the Defendant’s individual or the Defendant’s business. The victimized company is seeking a strict punishment against the Defendant. Considering such circumstances, it is inevitable to punish the Defendant with the corresponding liability.

However, the extent of the Defendant’s participation in the instant crime is relatively minor, the Defendant’s perception of the instant crime and reflects the mistake of the Defendant, and the fact that the Defendant has no record of exceeding the fine is favorable to the Defendant. In addition, the Defendant’s age, environment, character and conduct, motive and means of the instant crime, circumstances after the instant crime, etc. are considered, and the punishment is determined as ordered by taking account of various sentencing factors indicated in the instant

3. Defendant C.

(a) The scope of the applicable sentences;

From one month to five years of imprisonment; or

(b) Scope of recommendations based on the sentencing criteria;

The basic area of embezzlement and breach of trust (at least KRW 100 million, less than KRW 500 million) and 1 year to 3 years of imprisonment;

(c) Determination of sentence;

The Defendant conspired with the Defendant from November 201 to May 2013, 2013, thereby causing damage to the victimized company totaling KRW 345.4 million, and did not reach an agreement with the victimized company. Considering such circumstances, the Defendant’s punishment corresponding to his/her liability is inevitable.

However, the extent of the Defendant’s participation in the instant crime is relatively not more severe, and there is little benefit to the Defendant from the instant crime; the Defendant recognized the instant crime and reflects the Defendant’s mistake; and the Defendant has no record of exceeding the fine is favorable to the Defendant. In addition, the Defendant’s age, environment, character and conduct, motive and means of the instant crime, and circumstances after the commission of the crime, etc. are comprehensively taken into account various sentencing factors indicated in the instant records, such as the Defendant’s age

The presiding judge, judges, and the Yellow Constitution

Judges Jong-jin

Judges Kim Jae-han

A person shall be appointed.

A person shall be appointed.