(영문) 서울중앙지방법원 2018.9.21. 선고 2018고합432 판결

Defendant A shall be punished by imprisonment with prison labor for one year and six months, and by imprisonment for Defendant B for eight months: Provided, That with respect to Defendant B, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive. An order for community service for 120 hours shall be issued to Defendant B. A penalty of KRW 82,279,770 shall be collected from Defendant A. An order for the provisional payment equivalent to the above additional collection charge shall be issued to Defendant A.

Reasons

Defendant A, in fact, is an employee who has been in charge of the management, etc. of a distributor in C Co., Ltd. (hereinafter referred to as “C Korea”) that is a domestic sales company of SCo., Ltd. (hereinafter referred to as “C”), and Defendant B operated Co., Ltd. (hereinafter referred to as “D”) and E Co., Ltd. (hereinafter referred to as “E”), a semiconductor wholesale and retail business, and an export-import business.

On the other hand, C was a manufacturer and seller of semiconductor chips ("IC chips"), etc. located in the U.S. Tech, and was sold in Korea through Korea. Of them, in the case of strategic items, the F-liability Company Korea Branch (hereinafter "F-liability Company") (hereinafter "F Korea"), a semiconductor distributor, could control the distribution of strategic items by allowing C Korea to exclusively supply strategic items, and the purchasing company could purchase strategic items only through F-Korea.

Therefore, D and E, a domestic purchasing company, also, in order to purchase strategic items manufactured by C, (1) the purchasing company is a defense contractor or a wholesale company or a defense contractor delivery company, and after completing a verification verification, C's "final use confirmation letter" (EUC, Edre-UcificaTon) that is written to anyone who is the exclusive brokerage company, shall be registered as a trading company. (2) The F Korea through Korea submitted to C a written order stating the buyer, the price and quantity of the items applied for, the due date, the payment period, and the usage of the goods, and if C Korea, which received the written order again, delivered the chip subject to the order to the head office, under the permission of the United States, to the C Logistics Center, F Korea, and the company in Hong Kong. Defendant A was a person in charge of business for a relatively large business entity, such as G, H, and I, who is subject to influence from the purchasing company, and exercised the actual inspection order to a certain extent of the purchase price, the price of the goods, etc.

1. Defendant B

Defendant B, while purchasing the IC chips of C, the manufacturer, was aware of the fact that the actual end-user of the goods is identified in C Korea or the Franchising Chain Korea, and that the business personnel of C& Korea can supply goods on the desired date. Defendant B expressed an illegal solicitation to the effect that C& Korea and the Defendant B will offer 50% of additional profits out of the price for the transaction, and, on December 7, 2012, Defendant B sent 16,10,000 won from the K Bank account in the name of C&J to the total amount of 18,201,00 won from the transfer of the product price to the desired date, and Defendant B offered IC chis to A with the help of A, a business personnel of C’s chising Korea, who is an operating personnel of C’s chising Korea. Defendant B made an illegal solicitation to the total amount of 17,100 won from the transfer of the product price to the company, and Defendant B delivered 27,218,7,2013.

2. Defendant A

Defendant A, as a business manager of Korea, was exercising influence over the purchasing company as above, and was not against the company interest or for personal interests or for other companies.

Nevertheless, on December 7, 2012, Defendant A received an illegal solicitation of the same content as described in paragraph (1) from Defendant A and received KRW 16,110,00 from Defendant B to the above K Bank account under the name of the JJ for the pro-friendly custody of Defendant A, from around December 18, 2013, Defendant A received a total of KRW 82,279,70 on a total of 21 occasions, as described in the attached Table 1, from December 18, 2013. Accordingly, Defendant A pretended the fact regarding the acquisition or disposition of criminal proceeds by acquiring property benefits in exchange for an illegal solicitation in connection with his/her duties and receiving money from another person’s account in the name of another person.

1. The relationship between Co-Defendant A and Co-Defendant J (hereinafter referred to as "J") and M (hereinafter referred to as "M") separate from Defendant A

Defendant A is an employee in charge of the management, etc. of a distributor in Korea by Korea, which is a domestic sales company of semiconductor C. The J is a person who operated semiconductor wholesale and retail business and export-import business, and M is a corporation established for semiconductor wholesale and retail business and export-import business.

2. The definition of strategic items and the export control fact-finding strategic items mean weapons of mass destruction, conventional weapons, Buddhist weapons, goods, software, technology, etc. used for manufacture and development thereof, and are classified into military items (MuniTI List item) and double-use items. In addition, double-use items can be a threat to world peace and international security when they are transferred to an aptitude country, Korea, together with other countries such as the United States and the United Kingdom, has entered into a strategic item export control system, etc., which is the principle of the international export control system of strategic items, thereby impairing the export control of strategic items and sharing of information among countries, and in accordance with the Foreign Trade Act.

Since it can be used to manufacture weapons of mass destruction, such as nuclear date, etc. for international peace, maintenance of safety and national security, it is necessary to restrict export permission, etc., and many kinds of goods are classified as strategic items, and controls international distribution such as export permission.

Any person who intends to export" strategic items designated and publicly notified as above shall obtain permission from the Minister of Trade, Industry and Energy or the head of the relevant administrative agency, as prescribed by Presidential Decree, and any person who intends to export strategic items from abroad shall file an export report with the head of the competent permitting agency after obtaining export permission, and shall not file an export report with the head of the competent customs office without obtaining permission, recommendation, certification, or other conditions necessary for export and

In particular, in order to export to China, Hong Kong and other countries, including China, which did not join the 'baar system', it should be examined in advance as to whether the strategic items are likely to be exclusively used for the manufacture, development, and use of weapons of mass destruction, such as nuclear history, or to be distributed in the aptitude countries, by clarifying the technical characteristics and use of the requested items, place of use, etc.

3. Whether an item falls under strategic items of each ICT chip listed in attached Table 2.

Attached Table 2 (hereinafter referred to as "each ICT chip of this case") is a semiconductor product that has the function of converting an Arabic signal into digital signal, and is designated and publicly notified as a strategic item subject to export license because it falls under "3A01.a.5. in the list of double-use items" in the Republic of Korea's strategic items, and all countries that are affiliated with the Bana Convention, etc. such as the United States, etc. are assigned export control classification numbers (ECN and ex-use items) to strategic items ( military items and double-use items). The export control classification numbers (ECN and ex-use items) are commonly used for each product type and performance, and the above marks and numbers are stated in product principal documents and invoices. Accordingly, the same industry can easily understand the fact that each of the IC chips of this case is a strategic item.

4. The strict management structure C on the distribution of IC chips, which are strategic items, is a manufacturer and seller of semiconductors, such as IC chips located in the U.S. Tchips, and has been sold in Korea through Korea. Of them, in the case of strategic items, Fchips, which are semiconductor distributors, controlled the distribution of strategic items by having Korea monopoly supply the strategic items of Korea, and the purchasing companies could purchase strategic items of C only through Fchips.

Specifically, in order for a domestic purchasing company to purchase strategic items manufactured by C, it is a structure in which C receives the order again by submitting a letter of order stating the buyer, the price and quantity of the items applied for, the payment period, and the purpose of use to the buyer, the quantity of the items applied for, and the date of payment to the buyer, Korea through the FF Korea, and C shall deliver the IC chips subject to the order to Hong Kong in sequence with the permission of the United States. Since each IC chips of this case were strategic items, FF Korea shall inspect the purchasing company, and if it is intended to export IC chips to other countries by purchasing chips against the purchasing company, it shall obtain all the final export permission of the United States and the Republic of Korea from the buyer company, the final user confirmation of the IC chips, and the final user confirmation of the chips submitted by the U.S. and the Korean government.

(Ed-U State Management) has been submitted.

5. Joint criminal conduct by Defendant A and J

Defendant A may purchase ICT chips produced in C, at a lower price than that of the Republic of Korea while working as a business personnel of C chips, and at the same time, established a domestic trading company using the fact that the IC chips are traded more than that of the Republic of Korea in other countries, including Hong Kong, and proposed the establishment of a business entity with the aim of wholesale and retail and export without permission by explaining the above plan to the other countries. On August 2014, the J established a business entity M of the above IC chips with Defendant A’s proposal, and then purchased IC chips to the F 2 Korea and submitted a written confirmation of the final use of chips to the head of the 20th International Trade Association (U.S.C. 4) without obtaining permission from the 20th International Trade Association from the 2nd International Trade Association (U.S.) and without obtaining permission from the 3th International Trade Association (U.S. 2nd International Trade Association) from the 10th International Trade Association (U.S.).M. 14th International Trade Association.M.

Summary of Evidence

2018Gohap432

1. Defendants’ respective legal statements

1. The investigation report (the details of transactions, etc.) and the E’s deposit details of the E’s deposit, the details of deposits by R’s operators, the details of deposits into T, the details of transactions (K Bank L/ and J) deposited to T, and the details of transactions (the details of transactions) “2018 High

1. Defendant A’s legal statement

1. U legal statement of a witness;

1. Each prosecutor's interrogation protocol concerning J;

1. Some protocol of interrogation of police officers concerning V;

1. Written statement by the prosecution (including X-statements);

1. A written accusation;

1. The investigation report (related to the explanation of the business list): the export and import notification of electric power materials attached thereto; the investigation report (referring to the inquiry, etc. of the determination of whether the strategic materials are strategic materials); the third electronic 3A system in attached Table 2 (Use Items) of the Public Notice of Export and Import of Electricity Materials; the list of the progress of the prior determination attached thereto; the list of the progress of the prior determination (fixture, etc. of the results of review as to whether the strategic materials are strategic materials); the list of requests for determination of power materials; the investigation report (fix of the screen screen and the specification of transactions by each person); the K Bank Trade Center printed materials of the International Trade Center attached thereto; the Y Korea printed materials from the K Bank's model complex; the image and image of the CCTV; driver's license (AA), driver's license; the driver's license (AV) quantity; the list of export report and the list attached to the MM-21-27 (208) export report and the list attached to the relevant strategic materials;

1. The list (Y) other than the ECCR99 out of the list of sale of IC chips sold by F (F) chips, the list (MM), the certified transcript of corporate register (F. Limited Liability Company), the certified transcript of corporate register (C. Korea Co., Ltd.), M Export Results (Seoul Customs Co., Ltd.), the translation of the invoice and the invoice of 2014, the copies of the invoice (F. Korea Co., Ltd.), the original copy of the 2016 Telecommunication Report (U.S. Report), the Export Data (U.D. Report No. 2016, the Export Data (F.I.D. Report No. 2016, the Data Processing System), the Export Data No. 2016, the Data Processing System submitted by the Defendant to each of the public, the Korea Export Data Co., Ltd.

1. Application of the Act and subordinate statutes on the Storage of Information on chips;

1. Article applicable to criminal facts;

A. In full view of Defendant A, Article 357(1) of the former Criminal Act (amended by Act No. 14178, May 29, 2016; hereinafter “former Criminal Act”) (amended by Act No. 14178, May 29, 201); Article 3(1)1 of the Act on Regulation and Punishment of Criminal Proceeds Concealment (the fact of acquiring criminal proceeds); Articles 53(2)2 and 19(2) of the Foreign Trade Act; Article 30 of the Criminal Act; Articles 270(3) and 241(1) of the same Act; Article 30 of the Criminal Act (illegal export)

B. Article 357(2) and (1) of the former Criminal Act with overall control of Defendant B (the point of giving rise to breach of trust)

1. Formal concurrence (Defendant A);

Articles 40 and 50 of the Criminal Code (attached Form 2 "export Date" shall be subject to punishment provided for a violation of the Foreign Trade Act with heavier punishment between each and each of the crimes of violation of the Foreign Trade Act committed at each time and each of the crimes of violation of the same Act committed at each time).

1. Selection of the penalty, and that of imprisonment;

1. Aggravation (Defendant A) for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (the aggravation of concurrent crimes with punishment prescribed in a crime of violation of the Foreign Trade Act as of January 12, 2016)

1. Suspension of execution (Defendant B);

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

1. Order of community service (Defendant B);

Article 62-2(1) of the Criminal Act, Article 59(1) of the Act on Probation, etc.

1. The latter part of Article 357 (3) of the former Criminal Act (Defendant A);

1. Reasons for sentencing under Article 334 (1) of the Criminal Procedure Act (Defendant A);

1. Defendant A

(a) The scope of applicable sentences under law: Imprisonment for one month to seven years; and

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

○ Crimes of Misappropriation

[Determination of Punishment] Type 3 (not less than 50 million won, less than 100 million won)

【Special Convicted Person】

[Recommendation and Scope of Recommendation] Basic Field, Imprisonment with prison labor from one year to two years and six months

○ Violation of the Act on Regulation and Punishment of Criminal Proceeds Concealment, Violation of each Foreign Trade Act, and Violation of each Customs Act.

: Not setting the sentencing criteria;

○ Scope of the revised recommended punishment according to the standards for handling multiple crimes: Imprisonment with prison labor for not less than one year (limited to the lowest limit of the recommended punishment for taking criminal breach of trust whose sentencing criteria are set);

Defendant A has no criminal history except as sentenced to a fine due to the crime of this kind. According to the publication of export and import of strategic materials, strategic items are distinguished from those of double-use items and military supplies. Thus, it is difficult to conclude that each of the IC chips of this case exported by Defendant A was used for military purposes only with the evidence submitted by the prosecutor, and it is difficult to conclude that the IC chips of this case exported by Defendant A were used for military purposes. Considering the fact that the IC chips of this case were used for military purposes through detention life for a considerable period of time, there is a variety of error after late, and there is no circumstance to consider Defendant A. However, even though the conditions are not high, the amount received by Defendant A, using the occupational authority and status of the company, and the amount received by Defendant B, who is the trading partner of the company, is at least KRW 82,00,000,000, while using the account in the name of a third party in the course of the crime, to acquire criminal proceeds, considering the very poor quality of the crime, the international export control system and the need for export permission.

2. Defendant B

(a) The scope of applicable sentences under law: Imprisonment for one month to two years; and

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

[Determination of Punishment] Type 2 (not less than 50 million won, less than 100 million won) of Misappropriation >

【Special Convicted Person】

[Recommendation and Scope of Recommendation] Basic Field, Imprisonment of six months to one year. Determination of sentence: Imprisonment of eight months, suspension of execution of two years, and that the amount granted in return for illegal solicitation for about one year by Defendant B is not less than approximately KRW 82,00,000,000, the nature of the crime is less than that of the crime. However, Defendant B has no criminal power except for the punishment sentenced by this type of crime, Defendant B has a personality and behavior, occupation, environment, family relations, etc., and then his mistake is divided at the latest, and all other circumstances constituting the conditions of sentencing such as Defendant B’s age, character and behavior, occupation, family relationship, etc. are considered.

Judges

The judge of the presiding judge shall be net;

Judges Choi Dong-hwan

Judges Kim Gin-han

Note tin

1) The prosecutor indicted a person who violated the Act on Regulation and Punishment of Criminal Proceeds Concealment as an ordinary concurrent crime, but each of the above crimes was committed.

It is reasonable to see that it is a substantive concurrent crime because the elements of crime, the form of the act and the protected legal interest are different.