2018Gohap412 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

A

An authorized ships (prosecutions) and Kim Jong-Un (Trial)

Attorney B

June 29, 2018

A defendant shall be punished by imprisonment for not less than one year and six months.

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

Criminal facts

The defendant, as the representative director of C (hereinafter referred to as "C") with the main business of advertising agency, etc., and D (hereinafter referred to as "D") with the name of "F of the victim E (hereinafter referred to as "victim") which is the affiliated advertising company, decided to separate the damaged company from "F of the victim E (hereinafter referred to as "victim") that is the affiliated advertising company, the defendant was willing to acquire the damaged company under the name of C to expand its business, and entered into a share purchase contract with D to purchase KRW 200,000,000,000, which is 100,000,000 won of shares issued by the damaged company, and on August 31, 2015, the defendant was appointed as the representative director of the victimized company. Since the defendant has a business duty to faithfully manage and preserve the assets of the victimized company, due to the lack of financial standing, it shall not provide the damaged company's assets as collateral without any consideration for the loans of another company.

Nevertheless, on September 3, 2015, the Defendant offered to the Han Bank as security the collateral for the claim for time deposit amounting to KRW 2.55 million, which is the assets of the damaged company, in order to repay the bonds used by KEB Haba Bank in violation of the above occupational duties at the king branch in Seongdong-gu Seoul Metropolitan Government, 293, in order to repay the bonds acquired by the damaged company, at one bank, the Defendant offered the collateral amount of KRW 2.55 million, which is the assets of the damaged company. Accordingly, the Defendant had C obtain property benefits equivalent to the above collateral amount and caused property damage equivalent to the same amount to the damaged company.

Summary of Evidence

1. Partial statement of the defendant;

1. The prosecutor's statement concerning G;

1. Copy of the corporate register, the progress report of the sale process of E-listed corporation, a stock sales contract, a written agreement, a change of a stock sales contract, an agreement, an advertising agency agreement, a basic contract, a copy of the passbook for acceptance of deposit, a copy of the passbook, a copy of the passbook for C lending and a copy of the computerized sheet for details of payment of C lending, a copy of the passbook for partial redemption of C lending, a copy of the passbook for C lending and a copy of the copy of the bankbook, a copy of the passbook for request for payment of deposit-to- deposit-value change, a copy of the passbook for E-B lending, a copy of the passbook for H investment confirmation, a copy of the passbook, a copy of the e-mail transaction certificate, e-mail sent and details of request C at the time of negotiation of D, a copy of the passbook, a copy of e-mail sent from tri-young accounting corporation's account, a copy

Application of Statutes

1. Article applicable to criminal facts;

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 365 and 355 (2) of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following grounds for sentencing has been repeatedly taken into consideration for favorable circumstances)

Judgment on the Defendant and defense counsel's argument

1. Summary of the assertion

In light of the fact that both C and C are companies with the purpose of advertising agency business, and the defendant is a substantial one shareholder who holds all the shares issued by C and C are taking over all the shares generated by the damaged company, so the economic interest of the victimized company is in fact identical. In light of the fact that the defendant promoted the sales contract of the shares of this case on the premise of merger between C and the victimized company, the defendant was aware that the defendant was given a loan to the damaged company for acquiring funds acquired by the damaged company, and that he did not have the intent of breach of trust, i.e., there was no intention to obtain property benefits equivalent to the limit of the secured amount by setting a pledge right

2. Facts of recognition;

According to the evidence duly adopted and examined by this court, the following facts can be acknowledged.

A. The conclusion of the instant stock sales contract

1) Around 2012, D promoted the sale of a victimized company as the Korea Fair Trade Commission designated an advertising business as a representative business during the sunset cycle between affiliates, and withdrawn the sales of the victimized company. Around the end of 2014, D requested the acquisition of 17 companies, including C and J(hereinafter “J”) 1, which are affiliated companies of the victimized company, to participate in the sale of the victimized company. Of them, C and J were selected as a preliminary investor and conducted a verification inspection on the victimized company until March 2015.

2) On March 16, 2015, C received a written investment confirmation from H (hereinafter “H”) that, in the event that an acquisition contract is finally concluded with C and D with respect to a victimized company, H will invest acquired funds and participate in the acquisition of the victimized company.

3) On the other hand, between March 2015 and May 2015, D discussed the guarantee of average annual advertising handling under the advertising agency contract, which had been concluded between D, etc. and D, and the victimized company. By the time, D has been placed at the time as an average of 40 billion won per annum, and C requested D to include that "I will make every effort to enforce the above advertising agency contract's average of 40 billion won per annum." However, D has waived its bid, and H has waived its investment, and finally, C was selected as a first priority subject to collective bidding around May 27, 2015.

4) On June 6, 2015, 11. C and D entered into a share purchase and sale contract (hereinafter “instant share purchase and sale contract”) with the effect that C will acquire KRW 200,000,000,000,000 of shares issued by the victimized Company from D, the sum of which is KRW 100,000,000 (hereinafter “the instant share purchase and sale contract”) and agreed to deduct the remainder from the balance: ① the date of termination of the transaction; ② the victimized Company shall be operated in the form of an independent corporation for one year from the date of termination of the transaction; ② the merger with C and/or specially related persons shall be exceptionally allowed; ③ the victimized Company shall guarantee the employment for one year for all employees of the victimized Company; ④ the retirement incentive amount, etc. paid by D to its executives and employees by the date of termination of the transaction (hereinafter “retirement incentive amount, etc.”).

5) C deposited 41 billion won as the down payment of the instant stock sales contract to D on the date of the contract.

B. The defendant's attempted coercion, etc.

1) Around February 2015, K3), L4), M5, and N6 (N6) established a company for advertising planning, etc. (hereinafter referred to as “the company”) and sought a method to receive advertising contracts from companies. However, it was confirmed that D’s sales procedures were in progress, which are affiliates of D, and the acquisition method was promoted, but it did not have any record as a new living company, and L demanded that Q Q, the representative director of the victimized company, at the time of the victimized company, receive the shares of the victimized company by force from the Defendant, who is the representative director of C at that time. P demanded that Q, the representative director of the victimized company, receive the shares of the victimized company through the president’s order, and P demanded that D’s president take over the damaged company, who was called the victimized company’s sales procedures, and the victimized company should not be sold again to large enterprises, and K continuously organized L’s order to take over the damaged company’s shares from 205 to 305% of the damaged company’s shares, and demanded that Q and Q 605% of the damaged company.

2) Nevertheless, upon the conclusion of the instant stock sales contract between C and D on June 6, 2015, K directed CW, who was in office as the president at the time, to persuade the Defendant, and CW pressure C, on June 15, 2015, the Defendant was the victim company’s share.

3) On November 22, 2017, K,W, Q, and M conspired with L, P to make the Defendant engage in an act without any obligation by threatening the Defendant to offer the shares of the victimized Company as above, and was sentenced guilty on November 22, 2017 (Seoul Central District Court Decision 2016Da1227, 2017Kahap497, 519 (Merger)) as an attempted crime against the Defendant (Seoul Central District Court Decision 2016Da1227, 2017, 2017Kahap497, 519 (Merger)).

C. Progress from the conclusion of the instant stock sales contract to the conclusion of the transaction

1) However, around July 2015, D decided the closure of D newspapers, which were issued through the victimized Company, and there was a reason to incorporate the affected Company’s business value fluctuations into the purchase price. Accordingly, C and D agreed on July 31, 2015 to change the closing date of the instant purchase and sale contract to August 31, 2015. Meanwhile, C and D asserted that D should reduce the purchase price of KRW 1.480,000,000,000, out of the purchase price due to a business value change arising from the closure of D newspapers, but C and D finally determined the said business value change as KRW 650,000,000,000, after an accounting firm’s evaluation.

2) At the time of the damaged company, Q Q calls for the employees of the affected company due to the acquisition of the damaged company by C by the head of the value management office of D. The following matters, i) C agrees to accumulate retirement benefit appropriation liabilities for employees of the victimized company, ii) C does not use or offer as security the assets (including all bonds, deposit claims, etc.) held by the victimized company for the purpose of acquiring the victimized company for two years from the closing date of the transaction, and iii) C requires C to include the prohibition of one year from the closing date of the transaction between related parties of C or C, and G to accept such a request.

3) Accordingly, D shall operate the damaged company in the form of an independent corporation for one year from the closing date of the transaction, instead of deducting the corporate value fluctuation amounting to KRW 650,000,000 and retirement incentive amount from the balance, D shall return to C within three months from the closing date of the transaction, i) as above, Q Q demanded: (ii) it shall reserve the retirement incentive debt in addition to the company; and (ii) it shall not use the assets (including all bonds, deposit claims, etc.) held by the victimized company for two years from the closing date of the transaction as collateral for the repayment of the acquisition fund borrowed by C to acquire the damaged company; and (iii) it shall operate the damaged company in the form of a separate corporation for one year from the closing date of the transaction; however, C or a related party to C may not merge the damaged company in any case for one year from the closing date of transaction; and it shall operate it as an independent corporation; and (iii) it shall propose the modification of the terms and conditions of the sales contract including the agreement as mentioned above.

(d) Closing transactions and any subsequent progress;

1) From X9) to 7 members including KRW 50 million, KRW 600 million from Y, KRW 100 million from Z, KRW 2.5 billion from Z, and KRW 2.5 billion from Z, and up to August 31, 2015, up to 3.69 billion from YM, C acquired all outstanding shares of the victimized company.

2) On August 31, 2015, the Defendant assumed office as a representative director and an intra-company director of the victimized company, and on September 3, 2015, the Defendant established a pledge right with a maximum amount of KRW 2.75 billion on the claims for fixed deposit amounting to KRW 2.5 billion on the part of the victimized company on September 3, 2015, and repaid the said bonds by borrowing KRW 2.5 billion from the Bank (hereinafter “instant loans”).

3) Around October 19, 2015, D paid C the sum of KRW 562,311,878, including retirement encouragement, and KRW 650,878,000,000,000,000 according to D newspapers and KRW 1,212,311,878,000,00,000,000,000,000,000,000 according to the instant modified agreement. C repaid the instant loan to KRW 1,00,000,000,000,000,000,000 won.

4) After two months from the date the Defendant took over the victimized company, the Defendant was publicly notified that the victimized company’s employees would be subject to restructuring due to business deterioration, and around January 2016, seven employees, including AA, were dismissed. Seven employees, including the above AA, were requested to remedy remedy against unfair dismissal, etc. to the Seoul Regional Labor Relations Commission. On April 22, 2016, in the case of the above request for remedy, seven employees, including the victimized company, AA, etc., were to terminate labor relations by the recommending agency under the company’s circumstances as of March 31, 2016, and the victimized company should pay a certain amount of settlement agreement to seven members, including A, etc.

(e) Financial statements, etc. of C and victimized companies;

C From December 31, 2015 and around December 31, 2016, which was after the completion of December 31, 2014 and after the takeover of the victimized Company, before acquiring the victimized Company, some of the financial statements of C and the victimized Company are as listed in the following table:

A person shall be appointed.

3. Determination

A. Relevant legal principles

The so-called so-called "loan purchase or LBO" is not a single legal concept, but is generally a business term that offers the assets of the recipient company as security or appropriates considerable parts of the funds for corporate acquisition with the funds borrowed by having the recipient company repay the assets of the recipient company with the assets of the recipient company, and its specific form is diverse in transaction reality. Unless there is a separate law regulating the purchase of loans, it is difficult to uniformly conclude that the related parties who led the acquisition of the company by the method of borrowing are not establishing or establishing the crime of breach of trust. Whether the crime of breach of trust is established shall be determined individually depending on whether the act committed in the course of the purchase of loans constitutes the elements of the crime of breach of trust (see, e.g., Supreme Court Decision 2009Do6634, Apr. 15, 2010).

In order to raise funds necessary for corporate acquisition, it is a method for the acquirer to obtain a loan from a financial institution and later provide the assets of the acquired company as collateral, and then the acquired company bears the risk of losing the assets provided as collateral if the main debt is not repaid. Thus, it is allowed only where the acquirer provides the acquired company with consideration, such as paying a price equivalent to the risk that is incurred by the secured collateral as above by the acquired company. Therefore, if the acquirer arbitrarily provided the assets of the acquired company as collateral without any consideration to the acquired company, it is reasonable to deem that the acquirer or the third party obtained economic benefits equivalent to the value of the secured assets and then caused damage to the acquired company (see, e.g., Supreme Court Decision 2007Do5987, Feb. 28, 2008).

To recognize the intention of the crime of occupational breach of trust, a person who administers another's business must have the intention to inflict property damage on the principal, and there should be awareness that his or her act is in violation of his or her duty. Thus, even if the defendant had the intention to achieve the victim's own interest, it should be deemed that there was the intention of the crime of occupational breach of trust if it is proved that he or she was the principal of the victim's interest, and that there was the intention of the crime of occupational breach of trust (see, e.g., Supreme Court Decision 2004Do7027, Nov. 9, 200

B. Determination

Comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and examined by the court, the Defendant did not provide the victimized company with any consideration to obtain a loan to take over the victimized company, and provided a fixed deposit claim of the victimized company as security, thereby making C obtain pecuniary benefits equivalent to the secured value and bear risks from the provision of security to the victimized company, and it is reasonable to view that the Defendant was fully aware of such fact. Accordingly, the Defendant and the defense counsel’s assertion are not acceptable.

1) C loaned bonds of KRW 2.5 billion among the total purchase price of KRW 4 billion under the instant sales contract, and repaid the money with loans of KRW 2.5 billion as collateral for the deposits of the victimized company. Such repayment amount constitutes about 6.2% of the total purchase price (i.e., KRW 2.5 billion X 100,000 and KRW 2.78 billion) (i.e., KRW 2.68 billion) out of the total purchase price. C proposed that the total purchase price should be deducted from KRW 1,212,311,878 in the manner of deducting the total purchase price of the damaged company from KRW 2.8 billion (i.e., KRW 4., KRW 1,000,000 and KRW 2.8 billion, KRW 1,281,281,288,288). However, even if the Defendant had received loans from the victimized company as collateral for the total amount of KRW 2.78 billion,281,27818).

3) There is no evidence suggesting that the defendant or C provided a benefit in return for investing in the victimized company in return for the provision of security by the victimized company.

4) Even if the Defendant is a de facto one shareholder of C, and C acquires 100% of the shares of the victimized company through the instant share purchase contract, mutual stock companies and stock companies and shareholders cannot be deemed the same person as the existence of a separate legal entity (see, e.g., Supreme Court Decision 2004Do7027, Nov. 9, 2006). In light of the above legal doctrine, the Defendant and C, and the victimized company, as the existence of a separate legal entity, cannot be deemed to fully coincide with their economic interests. Furthermore, since the merger between C and the victimized company was prohibited for one year from the date of termination of the transaction under the instant modified agreement, it cannot be deemed that the instant share purchase contract was concluded on the premise of the merger between C and the victimized company, and it did not have been merged until now

5) C had agreed to guarantee the employment of the employees of D and victimized companies for one year, but it was publicly notified that it would implement restructuring from two months after the date of taking over the victimized company, and some employees were dismissed on January 2016.

1. Reasons for sentencing: Imprisonment with prison labor for a year and six months to fifteen years;

2. Scope of recommendations according to the sentencing criteria;

[Determination of Punishment] Type 3 (at least KRW 500 million but less than KRW 5 billion) for Embezzlement/Misappropriation 3

[Special Convicted Persons] Reduction element: Substantial one company or family company

[Scope of Recommendation] Reduction Area, one year and six months of imprisonment to three years

3. Determination of sentence;

The following circumstances and the defendant's age, character and conduct, environment, family relationship, motive, means and result of the crime, and all sentencing factors specified in the arguments in the instant case, including the circumstances after the crime, shall be determined as ordered by the sentence.

○○ Unfavorable Circumstances: The instant crime was committed by the Defendant, while acquiring the damaged company as collateral, by acquiring the acquired assets of the victimized company, by acquiring the acquired assets of the victimized company, and actually obtaining pecuniary benefits from the Defendant Company C, and causing property damage to the victimized company. It is not good that such crime was committed.The victimized company still has the burden of guaranteeing C’s obligation to lend the instant loans.

The Defendant, after committing the instant crime, was subject to a refund of approximately KRW 1.2 billion from D due to retirement encouragement, etc., and repaid the instant loan amount of KRW 1.65 billion, and then partly recovered the damage of the victimized company by converting the maximum amount of collateral for the right to deposit funds of the victimized company into KRW 1.65 million. It seems that there is room for the Defendant to recover the damage of the victimized company by paying the instant loan additionally. The Defendant has been engaged only in advertising-related business for a long time, and there was no experience in acquiring companies similar to the instant case. Furthermore, the Defendant had been trying to take over the victimized company for a considerable period of time, but has been forced to waive the rights to the victimized company continuously through L, Ma, Q, and the Road Traffic Act, and there was no change in the content of the instant sales contract to the effect that the Defendant would have been subject to a change in the remaining amount of damages and losses of the victimized company due to the change in the position to treat the advertisement and guarantee of D advertising, and there was no change in the content of the instant agreement between C1 and C.

The presiding judge, judges and assistant judges

Judges Park Jong-ro

Judges Park Jae-gu

1) The above two companies were selected as eligible for preferential negotiations by participating in the acquisition of a victimized company in 2012.

2) G in the value management office of D at the time of 2015, the average annual rate of D in the investigating agency for the damaged company at that time.

400 to 50 billion won has been enforced to treat the advertisement, and the defendant has been executing the advertisement treatment of 50 billion won to 60 billion won.

Since D made a statement, it seems that D's average annual advertising handling for the victimized company was at least 40 billion won.

3) As advertising and other film release prices, the members of the Presidential direct and continuous cultural convergence committee from August 2014 to August 2015, and from April 2015 to August 2016.

4. Until then, he was working as SO.

(iv) maintained personal friendship for about 40 years with the 18th President T (hereinafter referred to as the “President”) and about 40 years, in particular, the 18th presidential election division.

It is a person who actively supports election campaigns.

5) A person who served as an intra-company director from February 2, 2015 to July 2015.

6) A person who served as a zero representative director from February 2, 2015 to July 2015.

7) From June 2014 to May 2016, U while serving as U and assisting the President, the Minister of Finance and Economy, the secretary of industrial and trade resources, and the small and medium enterprises under his/her control.

The secretary, secretary, secretary, secretary, secretary of the Ministry of Land, Infrastructure and Transport, secretary, secretary of the Ministry of Maritime Affairs and Fisheries, and the finance, economy, finance, industry, commerce, small and medium enterprises, construction, and

A person who has taken charge of national policies, including policies on agriculture, forestry, maritime affairs and fisheries.

8) However, with respect to N, it is readily concluded that the aforementioned K, etc. conspired to commit the crime of attempted coercion, or engaged in functional control by sharing roles.

It is difficult to see that the verdict of innocence was pronounced.

9) X worked as the vice president of the victimized Company after acquiring the victimized Company on September 30, 2016, 30,000 shares out of the shares issued by the victimized Company (total shares issued)

The number of 15% was accepted.

10) G made a statement at an investigative agency that the said balance was paid to G on August 31, 2015, while the Defendant made a statement that he/she paid it on August 28, 2015, three days after he/she stated that the Defendant paid it on August 28

Although there is a difference, the fact that the payment of balance has been completed before August 31, 2015, which is the closing date of transaction, seems to be a dispute.