[1] Whether the crime of occupational embezzlement is established in a case where a person in charge of the establishment of a corporation or the increase of capital and a subscriber conspired in advance to pay the share price with the borrowed money borrowed from a third party and immediately withdraw it after the registration of incorporation or the registration of the increase of capital (negative)

[2] Whether the crime of occupational breach of trust is established in a case where a director, etc. of a company fails to take reasonable and reasonable measures to recover claims, such as provision of sufficient collateral when lending company funds to another person (affirmative)

[1] Articles 355(1) and 356 of the Criminal Act, Article 628(1) of the Commercial Act / [2] Articles 355(2) and 356 of the Criminal Act

[1] Supreme Court en banc Decision 2003Do7645 Decided June 17, 2004 (Gong2004Ha, 1881) Supreme Court Decision 2008Do10096 Decided June 25, 2009 (Gong2009Ha, 1252) Supreme Court Decision 201Do7262 Decided September 8, 201 (Gong201Ha, 2187) / [2] Supreme Court Decision 99Do4923 Decided March 14, 200 (Gong200Sang, 101) (Gong2009Ha, 1454) Supreme Court Decision 207Do541 Decided July 23, 2009 (Gong209Ha, 1454)

Defendant 1 and three others

Defendant 1 and two others and the Prosecutor

Attorneys Kim Jong-soo et al.

Seoul High Court Decision 2012No1913 decided November 30, 2012

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the prosecutor's grounds of appeal

A. Whether there is a misapprehension of the legal principle as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) due to the offering of a certificate of deposit equivalent to KRW 3.6 billion by Defendant 1, 3, and 4

In a case where persons in charge of the establishment of a corporation or the capital increase and subscribers conspired in advance to borrow money equivalent to the paid-in capital from a third party other than the payment bank, and withdraw it after obtaining a certificate of deposit of paid-in capital from the payment-handling bank and completing the registration procedure of incorporation or the registration procedure of capital increase, and then use it for the repayment of the above borrowed-in capital, the above act is not a substantial increase of the company's capital, but merely a method that disguises the payment for the registration, and thus there is no actual change in the company's capital in the whole process of the payment and withdrawal of the paid-in capital. Therefore, it is difficult to view that there is an intent to acquire illegal profits by arbitrarily using the company's money. Accordingly, the crime of occupational embezzlement under the premise that the company's capital increase is actually realized (see, e.g., Supreme Court en banc Decision 2003Do7645, Jun. 17, 2004; Supreme Court Decision 2008Do10096, Jun. 25

The court below determined that the above Defendants, who provided the above KRW 3.6 billion in the form of a certificate of deposit to Nonindicted Co. 2 before deposit in the account of Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”), did not have formed the substance as the funds of Nonindicted Co. 1 because they were expected to immediately withdraw the money before deposit in the account of Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) and did not intend to acquire the money of Nonindicted Co. 1 in the form of a certificate of deposit.

Examining the evidence legitimately admitted by the court below in light of the reasoning of the judgment below and the above legal principles, the above judgment of the court below is just and acceptable, and there were no errors by misapprehending the legal principles on the intent of unlawful acquisition.

B. Whether there is a misapprehension of the legal principle as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) with respect to Nonindicted Co. 3 (hereinafter “Nonindicted Co. 3”)

(1) As to KRW 2.8 billion out of KRW 7.7 billion, remitted to the single bank account of Nonindicted Co. 3 on July 27, 2009

The lower court determined that there was no intention to illegally acquire the money owned by Nonindicted Company 1 from the Defendants, who had already been paid prior to the payment on July 24, 2009, the date when the immediately withdrawn was made by a check on July 24, 2009, which was the payment date for Nonindicted Company 1’s subscription for bonds with warrants, and was anticipated to be immediately withdrawn prior to the payment and was merely the capital increase in actual means and did not form the substance of Nonindicted Company 1’s funds.

Examining the evidence legitimately admitted by the court below in light of the reasoning of the judgment below and the aforementioned legal principles, the above determination by the court below is just and acceptable. In so doing, the court below did not err by misapprehending the legal principles regarding the intention of unlawful acquisition or by exceeding the bounds of the principle of free evaluation of evidence selection

(2) As to KRW 3.6 billion out of KRW 7.7 billion, remitted to the single bank account of Nonindicted Co. 3 on July 27, 2009

Examining the reasoning of the judgment below in light of the records, the court below is just in holding that the defendants paid to the non-indicted 2 7.7 billion won out of the 7.7 billion won which the defendants remitted to the one bank account of the non-indicted 3 on July 27, 2009, and withdrawn for the purpose of recovering the certificate of deposit issued by the non-indicted 1 as well as at the same time withdrawn for the purpose of recovering the certificate of deposit issued by the non-indicted 1, and therefore it is difficult to recognize the intention of unlawful acquisition to the defendants, and there is no error in the misapprehension of legal principles as to the intention

(3) As to KRW 2.7 billion out of KRW 2.8 billion remitted to the national bank account of Nonindicted Co. 3 on August 27, 2009

원심판결 이유를 기록에 비추어 살펴보면, 원심이 그 판시와 같은 이유를 들어, 피고인들이 2009. 8. 27. 공소외 3 회사의 국민은행 계좌로 송금한 28억 원 중 22억 원은 공소외 4 등에게 이른바 꺽기 담보로 교부되어 있던 22억 원의 공소외 1 회사 발행 수표를 회수할 목적으로 인출한 것으로서 이러한 수표의 회수는 공소외 1 회사의 이익을 위한 행위이므로 피고인들에게 이 부분에 관한 불법영득의 의사를 인정하기 어렵고, 공소외 5에게 지급된 1억 원을 제외한 나머지 5억 원은 자금추적 결과에서도 나타나지 않고 있고, 피고인 4의 진술에 의하더라도 위 5억 원이 공소외 1 회사이 아닌 자의 이익을 위하여 사용되었다고 단정하기 어렵다고 판단한 것은 정당한 것으로 수긍할 수 있고, 거기에 불법영득의사에 관한 법리를 오해하거나 증거의 취사선택이나 사실의 인정에 있어 자유심증주의의 한계를 벗어난 잘못이 없다.

2. As to the grounds of appeal by Defendants 1, 2, and 3

A. Whether there is a misapprehension of the legal principle as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) due to the lending of funds by Defendant 1 and Defendant 3 to Nonindicted Incorporated Co. 6

The crime of breach of trust is established when a person who administers another's business obtains pecuniary benefits or causes a third party to obtain such benefits through an act in violation of one's duty, thereby causing loss to the principal. Here, "act in violation of one's duty" includes any act in violation of a fiduciary relationship with the principal by failing to perform an act that is naturally expected under the provisions of law, the terms of a contract, or the good faith principle, or by performing an act that is expected not to perform as a matter of course, in light of specific circumstances such as the content and nature of the business, etc., and "when causing loss to property" includes not only cases where a loss is actually incurred but also cases where a risk of actual loss to property arises. Thus, when a director, etc. of a company has already lost his/her ability to repay corporate funds to a third party and lent funds to the company only without taking reasonable measures such as securing pecuniary benefits to the company, and thus, such lending is an act of causing loss to the company, and a director of the company is not exempt from the duty of breach of trust merely on the ground that it constitutes a crime of breach of trust 904.

In full view of the circumstances as indicated in its reasoning, including the background and timing of lending, the form of providing formally offered collateral, and the value of collateral, the lower court determined that Defendant 1 and Defendant 3 obtained pecuniary benefits equivalent to the above amount from Nonindicted Company 1 and suffered a loss equivalent to the same amount as the victim Nonindicted Company 1 by making loans to Nonindicted Company 6, KRW 300 million, KRW 1 billion to Nonindicted Company 7, and KRW 1,250,000,000 to Nonindicted Company 8 three times without reasonable recovery of claims, such as investigating or being provided with sufficient collateral regarding the other party’s asset status, possibility of recovery of claims, etc.

Examining the evidence legitimately admitted by the court below in light of the reasoning of the judgment below and the above legal principles, the above judgment of the court below is just and acceptable. In so doing, the court below did not err by misapprehending the legal principles regarding occupational breach of trust, or by exceeding the bounds of the principle of free

B. Whether there is a misapprehension of the legal principle as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) due to the offering of transferable deposit certificates equivalent to one billion won by Defendant 1 and Defendant 3 as security

Examining the reasoning of the judgment below in light of the records, it is reasonable that the court below recognized that Defendant 1 and Defendant 3 used the certificate of deposit equivalent to KRW 1 billion owned by Nonindicted Company 1 as collateral for the purpose of borrowing KRW 600 million through Nonindicted Company 9 in order to secure the acquisition price of Nonindicted Company 1, which is individually necessary, based on the adopted evidence, and there is no error of misapprehending the legal principles regarding the intention of unlawful acquisition, or exceeding the bounds of the principle of free evaluation of evidence in selecting evidence or finding facts.

C. Whether there is a misapprehension of the legal principle as to occupational embezzlement in relation to Defendant 1 and Defendant 3’s objection to this judgment

Examining the reasoning of the judgment below in light of the records, it is reasonable that the court below recognized that Defendant 1, Defendant 3, and Defendant 4 arbitrarily used the funds of Nonindicted Company 1 in order to pay personal loans to Lee Jong-soo, by pretending to lend the funds of Nonindicted Company 1 to Lee Jong-soo, based on the evidence adopted by the court below. In so doing, the court below did not err by misapprehending the legal principles as to the intention of unlawful acquisition, or by exceeding the bounds of the principle of free evaluation of evidence selection or fact-finding.

D. Whether there is a misapprehension of the legal principle as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) related to Defendant 1, Defendant 2, and Defendant 3

(1) As to the other party’s nature of property, Defendant 1, Defendant 2, and Defendant 3’s intent to illegally obtain property

Examining the reasoning of the judgment below in light of the records, the court below is just in holding that the defendants' funds remitted from the non-indicted 1 to the non-indicted 3 company were real goods price or advance payment pursuant to the goods supply contract as of July 27, 2009, and since the defendants received the management right acquisition price or the re-sale price for bonds with warrants with warrants with the funds of the non-indicted 1 by taking account of the form of goods price or advance payment, the defendants' criminal intent to embezzled the funds of the non-indicted 1 company and the intent of unlawful acquisition is not erroneous in the misapprehension of legal principles as to the property's identity or intent to illegally obtain them, or in the selection of evidence or the recognition of facts, there were no errors

(2) As to the violation of the principle of trial on evidence (Defendant 1)

원심판결 이유를 기록에 비추어 살펴보면, 원심이, 설령 2008. 8. 27. 공소외 3 회사의 하나은행 계좌에 입금된 횡령금의 원천이 2007. 7. 24. 공소외 4 등에게 꺽기의 담보로 제공되었다가 회수된 수표라고 하더라도 회수된 이상 공소외 1 회사 소유의 돈으로 보아야 하므로 이를 피고인들의 이익을 위하여 사용한 행위는 횡령죄가 성립하고, 2009. 7. 27.자 횡령금으로 꺽기 방식으로 조달한 50억 원 상당의 신주인수권부사채 청약금에 대한 금융비용을 지급하였을 뿐 꺽기의 담보로 제공했던 것은 아니므로 불가벌적 사후행위에 해당한다고 볼 수 없다고 판단한 것은 수긍할 수 있고, 거기에 증거재판주의를 위반한 잘못이 없다.

(3) As to the misapprehension of legal principle as to co-principal (Defendant 2)

Examining the reasoning of the lower judgment in light of the record, the lower court’s determination that once Defendant 2 participated in part of the embezzlement act committed on July 27, 2009, July 29, 2009, and August 27, 2009, Defendant 2 cannot be exempted from co-principal liability for the entire embezzlement act committed through Nonindicted Co. 3’s account, is justifiable. In so determining, the lower court did not err by misapprehending the legal doctrine on co-principal liability in the crime of occupational embezzlement.

E. The point of unfair sentencing on Defendant 2 and Defendant 3

According to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, an appeal on the grounds of unfair sentencing is allowed. Thus, in this case where the above Defendants were sentenced to a minor punishment, the argument that the amount of punishment is unreasonable is not legitimate grounds for

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)