Defendant 1 and four others

New salary class

Attorneys Kim Yong-hwan et al.

Defendant 1 shall be punished by imprisonment for two years, by imprisonment for two years (non-indicted 15), by imprisonment for three (non-indicted 15), by imprisonment for one year and six (non-indicted 7). Defendant 4 (Defendant 2 of the appellate trial judgment), and by fine for ten thousand (00,000), respectively.

When Defendant 4 and 5 fail to pay each of the above fines, the above Defendants shall be confined in the workhouse for a period calculated by converting 50,000 won into one day.

The number of days of detention prior to the issuance of this judgment shall be 285 days in the above sentence against Defendant 1, 58 days in the above sentence against Defendant 2, and 56 days in the above sentence against Defendant 3.

However, the execution of each of the above penalties shall be suspended for three years for Defendant 1, and for two years for Defendant 2 and Defendant 3 from the date this judgment became final and conclusive.

3,585,014,653 won shall be additionally collected from Defendant 1.

Of the facts charged in this case, among the facts charged in this case, each occupational embezzlement of Defendant 1 on November 30, 1997 and December 31, 1997, violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of trust), violation of the Act on the Aggravated Punishment, etc. of the Company Reorganization, violation of the Company Reorganization Act, and violation of the Company Reorganization Act due to the acquisition of financial

Defendant 1, from around December 19, 195 to October 31, 200, was sentenced to imprisonment with prison labor for three years and five years, with prison labor for a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) at the Gwangju High Court from around December 19, 195, and from around November 1, 200 to around November 29, 200, to be in charge of Nonindicted Co. 4’s business located in Heungdong (hereinafter omitted), and was in charge of Nonindicted Co. 4’s business from around November 1, 203, and was in charge of Nonindicted Co. 4’s business as representative director, and was in charge of the construction of Nonindicted Co. 5’s company from around February 19, 202 to around October 31, 200; Defendant 2 was in charge of the construction of Nonindicted Co. 4, the representative of Nonindicted Co. 4, the representative of Nonindicted Co. 5’s company, and supervision over the construction work; Defendant 194, the representative of Nonindicted Co.

1. Defendant 1:

A. At the office of Nonindicted Co. 4, while keeping public funds for Nonindicted Co. 4 in the course of business, withdrawal of KRW 38,957,600 on May 22, 2000, KRW 50,000,000 on November 22, 2001, and KRW 5,500,000 on October 7, 2002 in collusion with Nonindicted Co. 23, and embezzlement them for the personal purpose of the Defendant at any time; and

B. On January 5, 2002, at the hotel coffee shop located in Nam-gu at the port of port on January 5, 2002, Defendant 3, the representative director of Nonindicted Company 19, the raw materials transport broker of Nonindicted Company 4, entered into a transport contract from Defendant 3, the representative director of Nonindicted Company 19, to the time, and received 400,000,000 won in return for continuing transport in the future, and acquired pecuniary benefits in exchange for unlawful solicitation as to his duties;

C. In collusion with Nonindicted 3:

From May 9, 2003 to June 12 of the same year, the amount of KRW 6,455,782,500, which is equivalent to criminal proceeds, was paid as a purchase price for shares to Nonindicted Co. 16, but after the expiration of the period of protection, the amount of KRW 6,455,782,50, which was incurred by Nonindicted Co. 4’s office from May 9, 2003 to Nonindicted Co. 4’s office, prior to the expiration of the period of protection, and subsequent to Nonindicted Co. 4’s act of providing security of deposit certificates of deposit held by Nonindicted Co. 4’s company. After the expiration of the period of protection, Nonindicted Co. 3 was found to have been able to conceal the 242,514 out of the total shares acquired with shares derived from criminal proceeds and other funds, and then, Nonindicted Co. 3 concealed criminal proceeds by concealing and concealing the transfer of ownership.

2. Defendant 2 in collusion with Nonindicted 26:

On or around December 26, 202, the defendant acquired from 0, Nonindicted Co. 5, 200, Nonindicted Co. 200, Nonindicted Co. 30, Nonindicted Co. 30, 600, 60, 60, 700, 60, 700, 60, 700, 60, 70, 60, 600, 70, 60, 60, 60, 60, 70, 60, 60, 60, 60, 70, 60, 60, 60, 60, 60, 60, 60, 60, 60, 60, 60, 60, 60, 606, 60, 60, 60, 60, 60, 60, 606, 60, 60, 60, 7, and 300, 6, etc.

3. Defendant 3:

A. On February 20, 199, at the office of the non-indicted 19-liability company located in Bangladesh (hereinafter omitted), while keeping the public funds for the non-indicted 19-liability company, the relevant account books were manipulatedd as if the amount was paid to the actual borrower, and withdrawn KRW 2,503,00 as transportation expenses, and then paid the registration fees of non-indicted 28, who is the defendant's children around that time, from that time until October 11, 2004, all of the 316-years including the list of crimes (1~6), as shown in the list of crimes (1~6), and embezzled KRW 64,378,93 in total over 316 times from that time;

B. At the same place as of April 2002, in a manner that, with the intent of evading value-added tax and corporate tax, inputs tax-related books by including the purchase amount in excess of the actual transport cost, Nonindicted Co. 25 in filing a return on the tax base of value-added tax for the year 2002 by Non-Indicted. 25 Co. 25, the purchase amount of KRW 89,791,787 from that date to July 2004, including the excessive appropriation of KRW 392,94,786 in total on three occasions as shown in the annexed crime List No. 7 from that date to that of July 2004, the government made an excessive appropriation of KRW 392,94,786 in total and after the payment period of the above tax item due to unlawful act after the decision of the government;

C. Around January 5 of the same year, at the hotel coffee shop located in Nam-gu, the defendant 1, the representative director of the non-indicted 4 corporation, delivered KRW 400,000,000 to make an illegal solicitation as to the defendant 1's duties, and offered property benefits, under the pretext of help and help to continue to transport in the future;

D. Lending the certificate of deposit owned by Nonindicted Co. 4 as security by Defendant 1; lending the name; receiving a request from Defendant 1 to pay interest to him; consenting thereto; and in collusion with Defendant 1;

(1) Around June 19th of the same year, at the port of call of the Korean National Bank located at Port, Defendant 1 received KRW 1.5 billion from Defendant 1 the certificate of deposit issued by Nonindicted 4 Co. 1.5 billion, and thereafter, Defendant 1 obtained a loan of KRW 1.5 billion in the name of Defendant 1 by means of security, and Defendant 1 obtained pecuniary benefits equivalent to the value of the security, and Defendant 1 suffered loss equivalent to the same amount as Nonindicted Co. 4;

(2) On the 20th day of the same month, at the port of entry of the foreign exchange bank located at Port, Defendant 1 received KRW 1 billion from Defendant 1, the certificate of deposit issued by Nonindicted Co. 4, and obtained the Defendant-friendly Defendant 1 a loan of KRW 1 billion in the name of Nonindicted Co. 29, Defendant 1, as security, obtained the Defendant-friendly Defendant 1 pecuniary advantage equivalent to the security value, and suffered loss equivalent to the same amount to Nonindicted Co. 4;

E. In collusion with Nonindicted 30:

On or around March 31, 2003, at the office of the non-indicted 25 corporation located in Bangladesh (hereinafter omitted), the non-indicted 30, who operates the non-indicted 31 corporation, issued a tax invoice in which the volume was calculated in excess as if it had been transported each month to the defendant in order to cover the company's public funds, and upon which the non-indicted 31 corporation paid the excess amount as the transportation cost and requested the return of the balance excluding 13% from the above amount, the non-indicted 31 corporation requested the return of the balance excluding 13% from the above amount. The remittance of 4,848,000 won, excluding 13% out of the fraudulent transportation cost remitted from the non-indicted 31 corporation, and from that time to September 24, 2004, all of the listed in the annexed Form 8 Crime List, shall be embezzled to the non-indicted 30, and embezzled to the non-indicted 87,678,000 won.

4. Defendant 1 or 3 conspired,

In the office of Nonindicted Co. 4 between May 9, 2003 and June 12 of the same year, the defendant Lee Byung-hee paid KRW 6,455,782,500, which is equivalent to criminal proceeds, as a purchase price of shares to Nonindicted Co. 16, but was 65,80,00,000, which was acquired in consideration of the acquisition price of shares and other shares acquired with shares derived from criminal proceeds from new shares issued by Nonindicted Co. 4 Co. 4 and shares acquired with other funds, among the total shares acquired by Defendant 1, which were subject to concealment by the investigative agency. Accordingly, the defendant 3 concealed and concealed the above shares, and the defendant 3 concealed the criminal proceeds by concealing the transfer of ownership.

5. Defendant 1 and 5 conspired,

On March 30, 2002, in the Hana Bank located in Gwangju, in order to lend the liquidation debt repayment funds to Nonindicted Co. 4, the opportunity for Nonindicted Co. 16 to borrow KRW 6 billion from the above bank in addition to the loans of KRW 460,450,000 for the self-management funds of Nonindicted Co. 16, which are not related to Nonindicted Co. 4, the property of Nonindicted Co. 4 for the loans of Nonindicted Co. 16, which are not offered as security, shall not be offered as security for the loans of Nonindicted Co. 16, which are not related to Nonindicted Co. 4. However, in violation of his duties, the transfer deposit certificate of Nonindicted Co. 4 was provided as security for the above loans without the permission of the court for reorganization of the collateral provision and thereby, Nonindicted Co. 16 shall obtain pecuniary profits equivalent to KRW 460,450,000 for the above loans

6. Defendant 4:

On March 30, 2002, when the legal manager intends to dispose of the company's property, he received prior approval from the reorganization court. However, the non-indicted 16 corporation received a loan of KRW 66,450,000,000,000 and KRW 6,466,4550,000 from the non-indicted 16 corporation to the non-indicted 4 corporation without obtaining permission from the reorganization court, and then disposed of the assets of the non-indicted 4 corporation under reorganization procedure by providing the amount equivalent to KRW 7,00,000,000,000,000,000 won, as security for the above loan.

[Judgment of the court below]

1. Each statement consistent with the facts set forth by Defendant 1 in the first and second trial records;

1. Each statement that conforms to the facts indicated in the judgment among the interrogation protocol of Defendants 2, 4, and 5 as to Defendant 1 prepared by the public prosecutor;

1. Each statement that conforms to the facts indicated in the judgment among the interrogation protocol on Nonindicted 23 (First), and Nonindicted 24 prepared by the prosecutor

1. Statement in accordance with the judgment in the investigation report prepared by assistant public prosecutor of the Gwangju District Public Prosecutor's Office (the attachment of materials, such as the statement of bank transactions by Nonindicted 23 of the suspect, and the page 1 of the investigation records)

1. Statement consistent with the facts of the judgment in a copy of the first instance court's judgment (a copy of investigation record, a book 202 pages);

[Judgment of the court below]

1. Each statement consistent with the facts stated in the judgment of Defendant 1 (No. 1, 2, and part), and Defendant 3 (No. 1) in the protocol of trial;

1. Statement that conforms to the facts stated in this Court by Defendant 3 (limited to Defendant 1);

1. Each statement that conforms to the facts contained in the judgment among the suspect interrogation records prepared by the public prosecutor with respect to Defendant 1 (Article 2, 4, each part), and Defendant 3 (No. 8, 9);

1. Statement that corresponds to the facts stated in the judgment among the statement statement made by the prosecutor with Nonindicted 20 on the prosecutor’s preparation

1. Each description that conforms to the facts stated in the judgment in the investigation report (Attachment of reference materials related to sovereignty, page 4, 402 of investigation records) prepared by assistant public prosecutor of the Gwangju District Public Prosecutor's Office, and Nonindicted 32 of investigation report prepared by Nonindicted 32 (the result of execution of a warrant of search and seizure of accounts, page 6, 4, 1474 of investigation records)

【Each fact of No. 1-c. 4】

1. Statement consistent with the facts in the judgment of Defendant 3 in the first trial record;

1. Statements consistent with part of the facts in the judgment of Defendant 1 in the second trial records;

1. Statement that conforms to the facts stated in this Court by Defendant 3 (limited to Defendant 1);

1. Each statement that conforms to the facts indicated in the judgment among the interrogation protocols of Defendants 3 (Nos. 8 and 9), 1 (No. 1, 2, 4, and part) of the public prosecutor's preparation;

1. Statement that corresponds to the facts indicated in the protocol of interrogation of Nonindicted 24 prepared by the prosecutor

1. Each statement that conforms to the facts indicated in the judgment among the statements made by the prosecutor against Nonindicted 12 and Defendant 5

1. Each statement consistent with the facts stated in the judgment in the investigation report (the attachment of reference materials related to sovereignty, the attachment of reference materials, the investigation records, the page 2, the page 402), the investigation report (the report on the result of tracking the account for 3.3 billion won of stock purchase, the report on the result of tracking the account, the investigation records 6.4 books 1623 page 6.), the investigation report (the attachment of the results of the account tracking, the attachment of the results of the investigation records, the page 248 page 8), and the investigation report (the attachment of the list of shareholders and the current status of shareholders, the attachment of the list of shareholders and the current status of the investigation records

[Judgment of the court below]

1. Statement consistent with the facts in the judgment of Defendant 2 in the first trial record;

1. Each statement that conforms to the facts indicated in the judgment in the interrogation protocol No. 1, No. 2, 3, and the third protocol of statement of Defendant 2 prepared by the public prosecutor;

1. Each statement that corresponds to the facts indicated in the judgment among the interrogation protocol No. 2 and No. 4 regarding Nonindicted 3 prepared by the prosecutor

1. Statement that corresponds to the facts stated in the judgment among the statement statement of Nonindicted 26 prepared by the prosecutor

[Each fact of Section 3-A, b. d. e.]

1. Statement consistent with the facts in the judgment of Defendant 3 in the first trial record;

1. Each statement that conforms to the facts indicated in the judgment among the suspect interrogation records prepared by the prosecutor against Defendant 3 (Article 1-7, 9, but part of the first and second examinations), Defendant 1 (Article 1, 2, and 4);

1. Statement that corresponds to the facts indicated in the protocol of interrogation of Nonindicted 24 prepared by the prosecutor

1. Each statement made by the prosecutor with respect to Nonindicted 20 and Nonindicted 30, which conforms to the facts indicated in the judgment,

1. The investigation report prepared by Nonindicted 32 at the Gwangju District Prosecutors' Office assistant chief public prosecutor's office (examination of the embezzlement details of Defendant 3, 4 books 1 to 340 pages 1 to 340), investigation report prepared by Nonindicted 21 (the attachment of the statement of transaction in Defendant 3's bank, 4 books 1 to 362 pages 1 to 362 pages 4 to investigation records), investigation report (the attachment of the statement of transport expenses and the statement of settlement of accounts, the attachment of the tax invoice issued in September 2003, 4 books 398 of investigation records), investigation report (the attachment of the current status table of funds, the attachment of the investigation records, the page 4 to 468 of investigation records), investigation report (the attachment of the statement of expenditure in mobilization station, etc., the statement of expenditure in the investigation records, the report on the account tracking of KRW 3.3 billion in the investigation records, and the page 164 to 1623 of the investigation records).

[Each Facts of Articles 5 and 6]

1. Each statement that conforms to the facts stated in the judgment of Defendants 5 (First Instance) and 4 (First and Second Sessions) in the protocol of trial;

1. Each statement that conforms to the facts indicated in the judgment among the interrogation records of Defendants 1 (Article 3, 4, 8, part of each case), 5 (part of each case), and 4 (First), of the public prosecutor's preparation;

1. Each statement that corresponds to the facts indicated in the judgment among the interrogation protocol of Nonindicted 24 and Nonindicted 33 (First Instance) prepared by the prosecutor

1. Each statement that conforms to the facts stated in the judgment among the written statements of Nonindicted 34, 35, 36, 37, 38, and 39 prepared by the prosecutor;

1. Each entry in the investigation report of Nonindicted Party 21 prepared in Gwangju District Prosecutors' Office (the result of the account tracking for KRW 6.5 billion borrowed from Nonindicted Company 16, 6.4 books 1972 page), investigation report (the result of account tracking and attachment of the results of account tracking, 8.1 books 2.48 page 1 of investigation records), and investigation report (the result of account tracking and attachment of the results of account tracking

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

A. Defendant 1

(1) The point of each occupational embezzlement: Articles 356 and 355(1) of the Criminal Act (Article 30 of the Criminal Act as to the occupational embezzlement on October 7, 2002)

(2) Violation of trust: Article 357(1) of the Criminal Act.

(3) Concealment of criminal proceeds, etc.: Article 3(1)3 of the Act on Regulation and Punishment of Criminal Proceeds Concealment, and Article 30 of the Criminal Act.

(4) The point of occupational breach of trust: Articles 356, 355(2), and 30 (Selection of Imprisonment) of the Criminal Act

B. Defendant 2: 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

C. Defendant 3

(1) The point of each occupational embezzlement: Articles 356 and 355(1) of the Criminal Act (Article 30 of the Criminal Act as to the occupational embezzlement as stated in Article 3-5(1)(e) of the Criminal Act; Article 30 of the Criminal Act is added to the case of occupational embezzlement as stated in Article 355(1) of the Criminal Act; and as such, as to Defendant 3 who has no such status relationship, the punishment provided for in Article 35(1) of the Criminal Act shall be imposed pursuant to the proviso of Article 33 and Article 50 of the Criminal Act, and as to the occupational embezzlement as stated in the list of offenses, each of them shall be punished and each of them shall be selected as imprisonment

(b) Evasion of a tax by any unlawful act: Article 9 (1) 3 of the Punishment of Tax Evaders Act.

(3) point of giving property in breach of trust: Article 357(2) and (1) of the Criminal Act.

(4) Each amount of profit is more than 50 million won in occupational breach of trust: 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

(5) Concealment of criminal proceeds, etc.: Article 3(1)3 of the Act on Regulation and Punishment of Criminal Proceeds Concealment, and Article 30 of the Criminal Act (Selection of Imprisonment)

(d) Defendant 4: Article 292-3 (1) of the Company Reorganization Act (Selection of Fine)

E. Defendant 5: Articles 356, 355(2), and 30 of the Criminal Act (this refers to cases where the degree of punishment is serious due to the status quo in which another person’s affairs are handled in the course of performing his/her duties. As such, with respect to Defendant 5 who does not have such status relationship, punishment prescribed in Article 355(2) and (1) of the Criminal Act shall be imposed in accordance with the proviso to Article 33 and Article 50 of the Criminal Act, and choice of fine

1. Handling concurrent crimes;

Defendant 1: The latter part of Article 37 and Article 39(1) of the Criminal Act [mutual crimes of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) of the first head on which each crime and

1. Aggravation of concurrent crimes;

Defendant 1 and 3: The punishment provided for in the former part of Article 37, Article 38(1)2, and Article 50 of each Criminal Code [in case of Defendant 1, the punishment provided for the occupational breach of trust in the holding that the punishment and the punishment are the most severe, and in case of Defendant 3, the punishment and the punishment provided for in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) of June 19, 202, each aggravated punishment provided for in the same Article];

1. Discretionary mitigation;

Defendant 2 and Defendant 3: Taking into account the following circumstances: Articles 53 and 55(1)3 of the Criminal Code [Defendant 2] of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the Act on the Aggravated Punishment, etc. of Specific Economic Crimes)]: (a) there is no previous conviction against Defendant 3; (b) there is no reason to refuse Defendant 1’s request in order to maintain a contractual relationship with Nonindicted Co. 4; (c) there is no actual benefit from the crime; (d) there is no actual benefit from the crime; and (e) there is no violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the Act on the Aggravated Punishment, etc. of Specific Economic Crimes)].

1. Invitation of a workhouse;

Defendant 4 and 5: Articles 70 and 69(2) of the Criminal Act

1. Calculation of days of detention;

Defendant 1, Defendant 2, and Defendant 3: Article 57 of the Criminal Act

1. Suspension of execution;

Defendant 1, 2, and 3: Each Criminal Code Article 62(1) [Article 62(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (excluding punishment for violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation in Trust) of the first head in the previous case with respect to Defendant 1; Defendant 1 does not have any criminal record except for the punishment for violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the first head in the previous case with respect to the crime of occupational breach of trust); the above crime is part of a series of crimes committed by the defendant in the process of restructuring of Nonindicted Incorporated Company 4; it appears to have been investigated and tried in the previous case (see the case of Gwangju High Court 2004No175; hereinafter the case). Considering the fact that the defendant 1 had committed long-term prison life and reflects his wrongness in the first head in the judgment, it is still under the suspension of execution, but it cannot be tried at the same time after being sentenced in two separate proceedings (see the first 97 suspended sentence).

1. Ratification;

Defendant 1:

A. Articles 10(1) and 8(1)3 of the Act on the Regulation and Punishment of Criminal Proceeds Concealment (hereinafter “criminal Proceeds Regulation Act”) x 50 won x 30% of the above shares excluding the above shares 40 x 242,514 shares ; 65,80 shares excluding the shares 40 ; 40% of the shares ; 4000 shares ; 5% of the shares excluding the above shares 40 ; 5% of the shares ; 400 shares x 50 shares ; 5% of the shares ; 50 shares excluding the above shares ; 50 shares ; 6% of the shares ; 40 shares ; 5% of the shares excluding the above shares ; 50 shares x 50 shares ; 60% of the shares ; 46% of the shares excluding the above shares ; and 50% of the shares ; and 46% of the shares 7 shares ;

On the other hand, the prosecutor asserts that the above money should be additionally collected from Defendant 1’s 6,45,782,50 won of the funds that included 6,45,782,50 won of the funds as collateral of the certificate of deposit of Nonindicted Co. 4 Co., Ltd. and 827,445 won of the stocks of Nonindicted Co. 4 Co. 6 Co., Ltd. should be sold to Nonindicted Co. 6 Co. , Ltd. and the part of the above money should be collected. As to whether confiscation under the Criminal Act is possible, in addition to other punishment in the judgment of conviction against the defendant who is accused of the facts charged (main sentence of Article 49 of the Criminal Act), and additional collection in lieu of confiscation under the Criminal Proceeds Regulation Act is not different from confiscation and collection under the Criminal Proceeds Regulation Act, so it is not necessary to confiscate or collect the above stocks or profits from the crime under Article 8 or Article 10 of the Criminal Proceeds Regulation Act, and it is not necessary to prosecute or collect the above stocks or profits from Nonindicted Co. 4.

(b) The latter part of Article 357(3) of the Criminal Act (value of 400,000,000 won of the value of the property acquired in return for an illegal solicitation);

1. The part on Defendant 1’s occupational embezzlement on May 22, 2000

A. Defense Counsel's assertion

Defendant 1’s defense counsel asserts that Defendant 1’s withdrawal and use of Defendant 1’s government funds 38,957,600 won in a company’s account held in the name of Nonindicted 17 on May 22, 2000 is aimed at giving KRW 100 million to Nonindicted 11’s escape funds because it did not go through Nonindicted 11’s intimidation due to the embezzlement of stock investment funds at the time, and thus, it does not constitute embezzlement expressed by the intention of unlawful acquisition, and thus, it does not constitute an act of embezzlement, and there is no possibility of expectation.

B. Determination

(1) As to the assertion that there is no intent to obtain unlawful acquisition

The act of embezzlement as a constituent element of the crime of occupational embezzlement refers to any act that realizes the intent of unlawful acquisition, and therefore, the crime of embezzlement is established when there is an objective act that can be perceived from the outside of the intent of unlawful acquisition (see Supreme Court Decision 2004Do5904, Dec. 9, 2004, etc.). The intent of the crime of occupational embezzlement is that a person who keeps another's property disposes of another's property in violation of his/her duties for the purpose of his/her own or a third party's interest, such as the case where he/she owns another's property in violation of his/her duties, and it does not necessarily mean that he/she himself/herself must obtain it (see Supreme Court Decision 95Do2551, Sept. 6, 196, etc.). Thus, the defendant 1's withdrawal of public funds for the purpose of preparing the escape fund of Nonindicted 11 constitutes an act of embezzlement expressed by the intention of unlawful acquisition. Thus, the above assertion by the defense counsel is not accepted

(2) As to the assertion that there is no possibility of expectation

The possibility of expectation refers to the possibility that an actor is expected to go to a lawful act at the time of performing a specific act. It is necessary to determine the possibility of expectation of lawful act based on the social average person under the specific circumstances faced by the actor at the time of performing the specific act.

However, according to the evidence adopted earlier, Defendant 1’s employees of Nonindicted Co. 4 and Nonindicted Co. 11 were threatened by Nonindicted Co. 11, at the time of embezzlement and escape of the company’s public funds, and then withdrawn KRW 38,957,600 of the company’s public funds and delivered KRW 100 million to Nonindicted Co. 11, as stated in the above-mentioned paragraph (A). Thus, in light of the social average person’s standard, Defendant 1 cannot be deemed to have committed any unlawful act and cannot be deemed to have been expected to take it out as lawful act. Thus, the aforementioned assertion by the defense counsel cannot be accepted.

2. The part on Defendant 1’s occupational embezzlement on May 22, 200 and November 22, 2001

A. Defense Counsel's assertion

Defendant 1’s defense counsel asserts to the effect that Defendant 1 had already made a true statement about the act of occupational embezzlement on May 22, 2000 and November 222, 2001, but did not prosecute it even though the prosecution had secured evidence in the previous case, the indictment of Defendant 1 only after the judgment of suspension of execution became final and conclusive in the previous case constitutes abuse of the right to prosecute.

B. Determination

Even though Articles 246 and 247 of the Criminal Procedure Act do not grant a prosecutor an unlimited right of prosecution, a prosecutor may institute a public prosecution in cases where it is deemed reasonable to impose criminal sanctions by falling under the elements of a crime, and has discretion to decide not to institute a public prosecution in consideration of the matters under Article 51 of the Criminal Act (see Supreme Court Decision 94Do2658 delivered on February 13, 1996, etc.).

Therefore, if the crime of occupational embezzlement was found in the previous case while conducting the investigation in the prosecution on May 22, 200 and November 22, 2001 in the previous case, it would be reasonable to enter this case and prosecute it together with the previous case. However, after the judgment of the previous case became final, the above defendant did not have been charged with any excessive indictment and indictment. As in this case, as in the previous case, a new investigation is conducted on several criminal facts unrelated to the previous case, such as violation of the Act on the Regulation and Punishment of Criminal Proceeds Concealment, and violation of the Act on the Punishment of Criminal Proceeds Concealment, etc., of the above defendant, which were not prosecuted in the previous case, and the prosecution is instituted as well as on the above criminal facts of occupational embezzlement, which were not prosecuted in the previous case, thereby resulting in a disadvantage that the above defendant would be unable to be tried concurrently in the previous case, even if the prosecutor had any intention beyond the mere degree of negligence in the course of performing his duties, and thus does not admit this part of the defense counsel's assertion.

3. The part concerning Defendant 1’s occupational embezzlement of 5.5 million won of public funds on October 7, 2002

A. Defense Counsel's assertion

Defendant 1’s defense counsel, on November 22, 2001, prepared documents as if Defendant 1 executed the construction cost of KRW 55 million, including KRW 50 million and KRW 55 million, which he used as the provisional payment, for the settlement of accounts of KRW 55 million, which was paid by Kim Jung-si for solicitation, and received a false tax invoice issued as stated in the facts charged for the preservation of value-added tax against the fraudulent tax invoice issuer. The part is ultimately subject to deduction from the output tax amount of Nonindicted 4 Co., Ltd., and thus, the company’s losses are not all sustained.

B. Determination

As seen earlier, the act of embezzlement as a constituent element of the crime of occupational embezzlement refers to any act that realizes the intent of unlawful acquisition. When there is an objective act that can be perceived from the outside, the crime of embezzlement is established when there is an objective act. After the crime of occupational embezzlement has already been completed, even if a certain benefit has occurred to the truster by a separate reason and then the damage has been compensated, such circumstance is not any obstacle to the establishment of the crime of occupational embezzlement, and thus, the defense counsel’s assertion on this part is rejected.

4. The part concerning Defendant 1’s taking of property in breach of trust

A. Defendant 1 and defense counsel's assertion

Defendant 1 and his defense counsel asserted that KRW 400 million received by Defendant 1 from Defendant 3 is not a consideration for the conclusion of a transport contract, but a voluntary share investment by Defendant 3, and Defendant 3 was allocated shares of Nonindicted Co. 4 in accordance with such investment.

B. Determination

(1) Evidence relationship

As to the character of KRW 400 million delivered by Defendant 3 to Defendant 1, Defendant 3 made a statement as stock investment amount from the prosecution to the time when the 7th interrogation protocol was prepared, and Defendant 3 made a statement on November 2, 2004 at the 8th interrogation protocol of suspect interrogation on the 11st of the same month, which was later detained, that Defendant 1 demanded money from Defendant 1 in return for shipping cargo and forced to do so. After changing the previous statement, Defendant 3 made a statement that the above KRW 400 million was paid at the 1st trial date (the defendant interrogation) and the 4th trial date (the witness interrogation) at the same time as the price for concluding a transportation contract up to the time, and made a statement corresponding to the facts charged. Accordingly, as to whether this part of the facts charged is recognized, it is questionable whether there is credibility in the statement after Defendant

(2) The credibility of Defendant 3’s statement

(A) Details of the statement

Defendant 3 asserted that the above KRW 400 million was 40 million at the time of preparing the interrogation protocol for the suspect's suspect's interrogation, and that the above KRW 100 million was 60 million. Defendant 1 was able to purchase shares and eventually Defendant 1 asked KRW 400 million. Defendant 1 did not appear to have known about the shares of KRW 61,200 again after delivery of KRW 40 billion. Defendant 1 stated that it would not have known about the shares, and that it would not have been 40 million if it was 60 million if it was 60 million or less, it was hard to say that it was 40 million or more at the time of delivering the suspect's interrogation protocol for the suspect's interrogation, and that it was 40 billion more than 60 million more than 60 million more than 1 billion more than 60 billion more than 60 billion. Defendant 1 stated that it was 40 billion more than 6 billion more than 60 billion more than 1's own shares.

(B) Relationship between Defendant 3 and Defendant 1

The non-indicted 19 limited liability company operated by the defendant 3 depends on the non-indicted 4 corporation the total cargo of which is more than half, and in fact, the defendant 3 delivered KRW 30 million to the non-indicted 4 corporation at the request of the defendant 1 at the cost of the transportation agency in order to maintain the transaction relationship between July 1998 and November 11, 198. The non-indicted 4 corporation also provided KRW 1 million to the non-indicted 1 at any time with the meeting expenses, etc. The non-indicted 1 separately provided the defendant 1 with a large amount of money equivalent to KRW 2.5 billion, and the defendant 1 borrowed the name of the non-indicted 29 and the non-indicted 29 with interest on the loan, etc. (the defendant 3 also stated that the defendant 3 did not refuse the demand of the defendant 1 to maintain the transaction relationship, and that the defendant 3 also refused the demand of the non-indicted 1).

(C) Whether the investment recommendation is necessary or not

The plan for the completion of the company reorganization procedure promoted by Defendant 1 appears to have been a method of acquiring the company at the center of the employee including the employee. The attracting of investment from Defendant 3, an outside person of the company, is inconsistent with this plan. Employees of Nonindicted Co. 4 are expected to increase the stock price after the completion of the company reorganization procedure, and the investment limit was limited to KRW 15 million per head even if they want to make an investment in the stock, and in fact, it seems that there is little little case in which the outside person of Nonindicted Co. 4 except Defendant 3 has invested the stock, and rather, it seems that there is no need to attract compulsory investment from Defendant 3, a passive investment in the stock investment.

(d)Other circumstances

① Defendant 1, who holds a large number of information inside the company, has sufficiently predicted that, after the completion of the company reorganization procedure, most debts would increase the market price if the financial structure becomes healthy due to the reduction of the financial structure after the completion of the company reorganization procedure, there is no reason to provide Defendant 3 with an opportunity to secure profits from the market price by actively soliciting investment. Even if soliciting investment, there is no reason to consider Defendant 3 to acquire profits from the market price by providing an opportunity to acquire stocks at a price below par value even if soliciting investment (the same shall apply when considering that Defendant 1 is remarkably superior in relation to Defendant 3).

② It is also difficult to obtain even if there is no documentary evidence that appears to have been prepared as a matter of course if a large amount of investment, such as an investment certificate, a receipt of investment money, and a cash storage certificate, or if an investment is made or if an investment is received, there is no document that can be prepared (However, Defendant 3 was in custody of the copy, etc. of the check issued by himself, and Defendant 3 was given free of charge a large amount of KRW 400 million, and thus, Defendant 3 copied and kept a check for remaining instruments)

③ Defendant 1 divided the shares of the amount of investment to Defendant 3 into two occasions, and made a big difference in the unit price of the shares (61,200 won per share issued around June 8, 2003, and KRW 5,863 won per share issued around November 2003, and KRW 19,00 per share issued around November 8, 200), and the amount of investment and the value of shares are also different (in calculating the amount of investment, KRW 40 million. However, it is difficult to understand that the amount of investment is KRW 446,215,60 per share).

④ Defendant 1 demanded money from July 2001 to Defendant 3, and received KRW 400 million around January 2002. Of note, the time of demanding money as above, as well as the time of actually receiving money, the amendment to the reorganization proceedings of Nonindicted Company 4 became final and conclusive, and accordingly, it seems that there was no reasonable reason to receive the investment money in advance.

⑤ Defendant 3 appears to have prepared the above KRW 400 million with insurance termination money, apartment house disposal proceeds, loan money, loan money from employees, company fund, etc. In light of the circumstances that Defendant 3 was an out-of-shared share and was passive in investment, it seems that Defendant 3 did not refuse Defendant 1’s anti-voluntary demand (in a case where Defendant 3 predicted the market price profit and made it difficult to make investments as above, it would be consistent with the common sense to view that Defendant 3 did not have a passive attitude in stock investment or did not have an in-depth attitude in relation to his/her investment).

(6) Defendant 1’s defense counsel reversed his statement after detention, and argued to the effect that it is not reliable since Defendant 3 made a statement unfavorable to Defendant 1 with the intent of Defendant 1’s prosecutor’s office to make a statement desired and seek a preference against his crime. However, since Defendant 3’s 8 suspect interrogation protocol to the date of trial is not only disadvantageous to Defendant 1 but also Defendant 3’s confession of criminal facts, it is also very unfavorable to Defendant 3, Defendant 3’s previous statement after detention, it appears that the credibility of the statement cannot be denied solely on the ground that Defendant 3 changed his statement after detention (the same is true in light of the fact that Defendant 3 was prosecuted for this part).

7) Meanwhile, Defendant 1’s defense counsel asserted to the effect that it is difficult to view the amount of KRW 400 million offered by Defendant 3 as the amount close to the net profit for one year of Nonindicted 19 Limited Liability Company, and thus, it is difficult to accept it as consideration for solicitation. However, if Defendant 1 continued to exercise management right after the completion of the company reorganization procedure, Defendant 3 can expect a long-term benefit, and thus, it is reasonable to provide such

(3) Conclusion

In light of the above circumstances, the above KRW 400 million was the date of trial of Defendant 1 and the statement at the prosecutor's office (the first to the 7 suspect's examination) that Defendant 3 claimed as stock investment funds, and the statement at the prosecutor's office (the first to the 3 suspect's examination) of Defendant 3 was not reliable. On the other hand, Defendant 3's trial date and the prosecutor's examination of suspect's office (the 8 and the 9 suspect's examination of suspect) have sufficient credibility to take them as evidence of guilt as evidence. In full view of the evidence adopted earlier, the amount of KRW 400 million that Defendant 1 received from Defendant 3 shall be deemed as the consideration for solicitation not for stock investment funds (the consideration that executes a transportation contract and the consideration that allows

5. Violation of the Act on Regulation and Punishment of Criminal Proceeds Concealment by Defendant 1

A. Defendant 1 and defense counsel's assertion

Defendant 1 and his defense counsel: ① Defendant 1 purchased shares of KRW 400 million per share of KRW 30 million from Defendant 3; ② even if the above KRW 400 million was received as rebates, it constitutes property arising from the act of taking property in breach of trust; Defendant 1 acquired shares of KRW 3 billion from Nonindicted 3; thus, the crime of taking property in breach of trust does not constitute “specific crimes” under subparagraph 1 of Article 2 of the Criminal Proceeds Regulation Act ( particularly “serious crimes”) and thus, the crime of taking property in breach of trust does not constitute “the crime of taking property in breach of trust” under the name of KRW 60,000,000,000,000,00 KRW 10,000,000,000 per share of KRW 6,00,000,000,000,000,000,000 won per share of KRW 6,00,000,00.

However, as seen earlier, the fact that Defendant 1 received KRW 400 million from Defendant 3 is not a stock investment but a money or valuables received in the manner of solicitation by the transportation agency. Therefore, the remaining arguments are examined in order.

B. Whether the above shares constitute “criminal proceeds, etc.”

(1) As to the assertion that the acquisition fund is money and valuables received through the act of taking over property in breach of trust

According to the evidence employed earlier, around May 202, 2002, Nonindicted 3 received a loan of KRW 2.5 billion from the bank in the name of Nonindicted 5 Company. Defendant 1 offered the certificate of deposit of Nonindicted 4 Company as security, the above KRW 2.5 billion, which was received from Nonindicted 3 in consideration of construction cost, as a fund to acquire the shares of Nonindicted 4 Company, and was received KRW 500 million from Nonindicted 3 in the same name even around January 6, 2003. Thus, the above KRW 2.5 billion received by Defendant 1 constitutes the criminal proceeds, and constitutes the criminal proceeds as seen in the following (2) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) that was received by Nonindicted 4 Company as security, and even if the fund for acquiring shares in the name of Nonindicted 3 was specified as above, such shares constitute the property derived from criminal proceeds.

Furthermore, according to the evidence employed earlier, Defendant 1 received a loan by offering not only its own funds, but also the transfer of shares of Nonindicted Co. 4 as security (the name is not only to Defendant 1, Nonindicted Co. 5, Defendant 3, and Nonindicted Co. 29, etc.), Defendant 3, and Nonindicted Co. 4’s shares (the acquired shares are also purchased in the name of Nonindicted Co. 16’s name; Nonindicted Co. 16 purchased new shares purchased from creditor financial institutions; purchased new shares in the name of Nonindicted Co. 16’s name; acquired shares in the name of Nonindicted Co. 3 by borrowing the name of Nonindicted Co. 16’s name; acquired shares in the name of the Defendant Co. 3 in accordance with the same equity shares as his employees; and acquired shares in the name of the Defendant Co. 16’s new shares and the shares acquired in the name of the Defendant Co. 3 as a whole under the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the total amount of shares acquired in the name of the Defendant Co. 16’s shares).

(2) As to the assertion that “security interest” is criminal proceeds and “loan” is not criminal proceeds.

Since the legislative intent of the Criminal Proceeds Regulation Act is to maintain a sound social order by fundamentally removing economic factors that encourage specific crimes through thorough deprivation of criminal proceeds, the concept of criminal proceeds as prescribed by this Act is not necessarily the same as that of the crime of breach of trust. The purpose of providing the certificate of deposit is to acquire the pecuniary benefits of the loan through it, and the concept of security itself is premised on secured claims or obligations, and thus the security interest and the loan are closely related (Therefore, in interpreting the Criminal Proceeds Regulation Act, it cannot be accepted the argument that the loan is only derived from a monetary loan contract and is irrelevant to the act of providing security). In particular, since it is a loan that is actually acquired from the debtor's standpoint, the real substance of the "security interest" is considered as a "loan," and therefore, in light of the fact that the real substance of the "security interest" is a loan that is ultimately acquired by the act of a serious crime that provides the certificate of deposit of Nonindicted Co. 4 corporation as a security and obtains a loan from a financial institution (Article 2 subparagraph 2 (a) of the Criminal Proceeds Regulation Act is deemed as a "property acquired by the criminal proceeds."

In addition, even if a security interest falls under a “criminal proceeds” as alleged by a defense counsel, in light of the fact that both the “property acquired by mistake of criminal proceeds”, “property acquired as consideration for criminal proceeds” or “property acquired as consideration for these properties” under Article 2 subparag. 3 of the Criminal Proceeds Regulation Act are merely an example of “property acquired by holding or disposing of criminal proceeds,” and that the legislative intent of the Criminal Proceeds Regulation Act is to fundamentally eliminate economic factors that encourage specific crimes by thoroughly deprived of criminal proceeds, and even if the form of crime proceeds is altered or converted into another property, it shall be deemed as a “property acquired by holding or disposing of criminal proceeds,” regardless of the number of times altered or converted. Thus, all “loan” and “stocks acquired by providing “security benefits”, which is a “criminal proceeds,” fall under the category of “property regulation” under Article 2 subparag. 3 of the Criminal Proceeds Regulation Act and constitutes “property from holding or disposing of criminal proceeds” as provided by Article 2 subparag. 3 of the Criminal Proceeds Regulation Act.

However, since shares in Defendant 3 and Nonindicted 3 include not only criminal proceeds but also legitimate funds as seen earlier, the shares derived from criminal proceeds and the other assets are mixed with “mixed property,” and they constitute “criminal proceeds, etc.” under Article 2 subparag. 4 of the Criminal Proceeds Regulation Act.

Therefore, the defense counsel’s assertion that the shares of Defendant 3 and Nonindicted 3 do not constitute “criminal proceeds, etc.,” which are objects of concealment cannot be accepted.

C. Whether the above shares were concealed

"Harboring criminal proceeds, etc." shall be deemed as an act which makes it impossible or considerably difficult to specify, track, or detect criminal proceeds, etc., and is an ordinary method of storage.

However, Defendant 3 stated to the effect that his shares were originally acquired by Nonindicted 3 at the time of the first trial and the Prosecution’s Office (No. 8 and 9 times) and that the shares were concealed by Defendant 1’s alteration of the name in order to avoid suspicions of receiving rebates from the investigative agency. Defendant 1 appears to have high credibility as an unfavorable statement to Defendant 3, and Defendant 1 was the largest shareholder of Nonindicted 4 corporation by either receiving rebates for the purpose of evading the management rights of Nonindicted 3 or receiving a false loan from Nonindicted 4 corporation as security or obtaining a false amount of money from Nonindicted 6’s investigative agency for the same purpose. On the other hand, Defendant 1 appears to have been aware of the fact that it was difficult for Nonindicted 3 to lawfully acquire the shares from Nonindicted 3, 600,000 won or 300,000 won received from Nonindicted 3 to the said investigative agency for the purpose of evading the sale of the shares. However, it appears that there was no reason to return the shares to Defendant 1 by means of false accusation.

Meanwhile, Defendant 3’s defense counsel asserted that Defendant 3’s exercise of shareholder’s rights is not attributable to Defendant 3 from the beginning, on the ground that Defendant 3’s exercise of shareholder’s rights independently, and that it was completely attributed to Defendant 3, based on the fact that Defendant 1’s exercise of shareholder’s rights by the Emergency Countermeasure Committee at the general meeting of Nonindicted Co. 4 around February 2004, when Defendant 1 sold shares to Nonindicted Co. 6, Defendant 1, the opposing force of Defendant 1’s non-indicted Co. 1, Defendant 2004. However, in light of the above circumstances, Defendant 3 delegated share certificates and voting rights, and Defendant 1 had already been detained under the criminal charge during the process of acquiring the above shares, and thus, Defendant 1 did not have any defense counsel’s assertion that it was considerably obstructed from exercising shareholder’s rights by selling the shares under the name of Defendant 1.

Therefore, we cannot accept the defendant 1 and his defense counsel's assertion on this part.

6. The part on Defendant 1’s occupational breach of trust

A. Defendant 1 and defense counsel's assertion

Defendant 1 and his defense counsel demand that some of the creditor financial institutions repay part of the reorganization claim early on or around March 2002, instead of the consent to the amendment of the reorganization plan against Nonindicted Co. 4 (the amount obtained by subtracting the advance payment of KRW 6.5 billion from the total amount of additional loans, KRW 500 million) from one bank, as well as Nonindicted Co. 4, as well as the effect of corporate tax reduction by partially repaying the debt before March 31, 2002, which is the closing date of the accounting standards for the business year 2001, Defendant 1 and his defense counsel asserted that, in order to view the effect of corporate tax reduction, Nonindicted Co. 16 borrowed the fund of KRW 6 billion from one bank, and again borrowed the funds from Nonindicted Co. 4 Co. 16, 200, the fact that Nonindicted Co. 16 received the additional loan from one bank, and that the additional deposit certificate was not known to the effect that the new deposit certificate was offered as security, and that Nonindicted Co. 4, 165000.

B. Determination

(1) According to the evidence employed in this part of the facts charged, in order to repay part of the liquidation obligation early according to the demand of some creditor financial institutions of Nonindicted Co. 4 and the necessity of reducing corporate tax, Nonindicted Co. 4 and Nonindicted Co. 16 borrowed funds from Han Bank to lend them again to Nonindicted Co. 4, and Defendant 4 obtained permission for borrowing KRW 6 billion from Nonindicted Co. 46 in Gwangju District Court on March 29, 2002. Nonindicted Co. 4 did not obtain permission for borrowing the above funds from Han Bank to offer security, and on the other hand, Nonindicted Co. 16 borrowed KRW 600 million from Han Bank to use KRW 50 million for the repayment and operation of the pre-existing loans from Han Bank to KRW 160 million, and on the other hand, Defendant 5 visited Han Bank to use KRW 1600 million for the pre-existing loan contract and provided KRW 1650 million for the remainder of the loan contract to Defendant Co. 460 million in the form of loan transaction.

(2) In addition, ① Nonindicted 3 consistently found at the prosecutor’s office that, with Nonindicted 24, he deposited KRW 7 billion in funds of Nonindicted 4 and received the same amount of deposit money, and offered it as a security to get loans of KRW 6.5 billion from Han Bank, and transferred the money of KRW 6 billion out to each creditor financial institution in addition to the money of the company to repay its obligations to Nonindicted 4, which is Defendant 1’s order. In addition, at the time when Han Bank visited, Nonindicted 35 had already been prepared for the documents related to the loan. As such, it was stated that Nonindicted 1 and Nonindicted 35 were not determined by Nonindicted 1 and Nonindicted 35 regarding the provision of security and the receipt of loan. ② Nonindicted 350 million in order to provide early repayment of Nonindicted 44 billion in funds, Nonindicted 16 corporation’s additional deposit money was required to be provided to Defendant 4 and Nonindicted 350 million in advance, and Nonindicted 434 and 5500 million in the name of Defendant 63.

(3) However, Defendant 1 had been substantially operating under the legal management system, and it appears that Defendant 1 would have been in charge of making a substantial consultation with Nonindicted Co. 16 in the process of promoting the termination of legal management through the revision of the reorganization plan ( Defendant 4 also knew of the terms of a side agreement between Defendant 1 and Nonindicted Co. 16), Nonindicted Co. 24, and 33 deposit KRW 7 billion in the name of Nonindicted Co. 4 without the instruction of Defendant 1, a superior, and the receipt of the certificate of deposit in the same amount, and the issuance of the certificate of deposit in the name of Nonindicted Co. 16 as security for the loans of Nonindicted Co. 16, there seems to be no reason to offer them as security. In light of the above, if Defendant 1 and Nonindicted Co. 35 deposit in Han Bank, issued the certificate of deposit amount of KRW 7 billion, and offered it as security for loans in the name of Nonindicted Co. 4, 16, it appears that Defendant 1 and Nonindicted Co. 35 were not aware of its credibility in light of the above facts.

1. The point of embezzlement of Defendant 1 on November 30, 1997 and December 31, 1997

A. Summary of the facts charged

The summary of Defendant 1’s occupational embezzlement on November 30, 1997 and December 31, 1997 (attached Table 1-4 in indictment) is as follows: Defendant 1, at the victim Nonindicted Co. 4’s office on November 30, 1997, withdrawn KRW 15,040,344 while keeping public funds for Nonindicted Co. 4 on November 30, 1997; Defendant 1, at the victim Nonindicted Co. 4’s office, withdrawn KRW 15,040,344 while he voluntarily used them for the personal purpose; and then, from that time to December 31, 1997, embezzled KRW 60,329,225 on a total of four occasions as shown in the following table.

본문내 포함된 표 순번 범행일시 범행장소 범행방법 피해자 횡령액(원) 비고 1 1997. 11. 30. 광주 북구 증흥동 (이하 생략)소재 공소외 4 주식회사 회사 공금을 보관하던 중, 임의 소비, 횡령(운송대금 명목 착복) 공소외 4 주식회사 15,040,344 삼보물류 2 〃 〃 〃 〃 15,033,414 승주특수 3 1997. 12. 31. 〃 〃 〃 15,166,184 삼보물류 4 〃 〃 〃 〃 15,089,283 승주특수 합계 ？ 60,329,225 ？

B. Defendant’s assertion

Defendant 1 embezzled the public funds of Nonindicted Co. 4’s employees from the prosecution to this court, as above, under the pretext of transportation proceeds, and Defendant 1 was unaware at the time and denied the above facts charged.

C. Determination

(1) recognised facts

In full view of the witness Nonindicted 9, 10, and 11’s statements in this court, each statement made by the prosecutor on Nonindicted 9, 10, and 11 (investigation records 8: 2: 654; 662; 667; 667); Nonindicted 21’s investigation report prepared by the prosecutor’s assistant public prosecutor’s office in Gwangju District public prosecutor’s office (Attachment of the transport data related to the transportation company, such as third logistics; 4: 700 pages of investigation records) and other facts, Nonindicted 10, who operated the third news distribution (hereinafter referred to as “third news distribution”), and Nonindicted 42, who operated the third-party special transportation of the passenger, demanded the third-party 10-party 10 tax invoice and received the tax invoice in order, and Nonindicted 42, who operated the third-party 10-party 42, who did not perform transportation services equivalent to the transport cost stated in the facts charged, Defendant 1’s legal manager and the first-party 10-party 2’s statutory manager.

(2) The relationship between issues and evidence

Therefore, in relation to this part of the facts charged, it is at issue as to whether Defendant 1 instructed the employees of Nonindicted Co. 4, including Nonindicted Co. 10 and 11, to engage in the act of embezzlement, such as the facts charged, or his embezzlement, and accordingly, it is possible to examine in sequence the following as evidence: part of Defendant 1’s statement (the first and second protocol of trial, the third protocol of examination of the public prosecutor’s protocol), Nonindicted 9 (the statement in this court, the protocol of examination of the public prosecutor’s protocol), Nonindicted 10 (the statement in this court, the protocol of examination of the public prosecutor’s protocol), and Nonindicted 11 (the statement in this court, the protocol of examination of the public prosecutor’s protocol

(A) From March 197 to December 12 of the same year, Defendant 1 stated that he received 70 to one million won each month from Nonindicted 11 from the date of the first and second trial days and the prosecution (the third protocol of interrogation).

(B) At the time, Non-Indicted 9, who had been operating Triang Logistics, requested that Non-Indicted 10, who was the head of the Port Office of Non-Indicted 4 Co. 4 Co. 1, on August 1997, he himself, demanded that Non-Indicted 43 take the tax invoice form. He issued the tax invoice in the name of Triang Logistics in the name of Non-Indicted 43 and did not actually carry out transportation, and issued a false tax invoice in the same amount as the facts charged. Non-Indicted 10, who operated the Triang Special Don, also requested that Non-Indicted 42 make the same request. However, as to the issue of Non-Indicted 1, he did not hear the statement that Non-Indicted 4 Co. 4 instructed the above act, the approval of Non-Indicted 10, Non-Indicted 11, 222, and 41 of the sales Management Team at the time, by considering that the approval of the payment of the cost was made by Defendant 1 as the statutory administrator.

(C) At the time of Nonindicted Co. 4’s business chief executive officer, Nonindicted Co. 10 stated that Nonindicted Co. 10 was made by phone from Nonindicted Co. 11 at the prosecution, and that Nonindicted Co. 10 was ordered to receive false tax invoices from Nonindicted Co. 11 at the time of August 197, and asked Nonindicted Co. 9 and 42 to issue false tax invoices. ② In this court, Nonindicted Co. 11 was instructed to receive false tax invoices from Nonindicted Co. 11 on Aug. 197, 197, and it was presumed that Nonindicted Co. 11 was made “necessary to leave the legal management” or “the funds necessary to leave the legal management” and that Nonindicted Co. 1 was made by Nonindicted Co. 1 and Nonindicted Co. 11 at the time of receipt of the above instructions, or that Nonindicted Co. 1 was made by Nonindicted Co. 9’s executive director at the time of receipt of the false tax invoices from Nonindicted Co. 1’s prosecutor’s office, and that it was made by the Defendant 1’s general manager at the time of this case’s statement.

(D) At the time, Nonindicted 11, who was the head of the business management team, stated that: (a) in the prosecutorial office, it is identical to the personal use of the company fund by using a false tax invoice; (b) Amama, upon receiving an order from Defendant 1 to receive a false tax invoice from Defendant 1, he sent it to Nonindicted 10; and (c) in this court, he instructed Nonindicted 22 and Defendant 10 to receive a false tax invoice; and (d) he stated that he did not use the embezzled money as above.

(3) Determination and conclusion of evidence

(A) Determination of evidence

① On August 197, 197, among the statements made by Nonindicted 10 in this court and in the prosecution, Nonindicted 11 stated that “Defendant 1 instructed the company to receive a false tax invoice,” or that “Defendant 1 was using a false tax invoice issued by the transporter and then withdrawn the company fund” from Nonindicted 11 around the end of 1997, it is nothing more than the full text from Nonindicted 11, and thus, it cannot be used as evidence pursuant to Article 316(2) of the Criminal Procedure Act.

② 공소외 11의 이 법정 및 검찰에서의 진술은, (ⅰ) 검찰에서는 처음에 공소외 10에게 허위 세금계산서를 발급 받으라는 지시를 한 사실이 없다고 하면서 자신의 이 사건과의 관련성을 부인하다가, 2004. 4.경 공소외 4 주식회사 공금을 횡령한 혐의로 구속되어 다른 혐의로 구속되어 있던 피고인 1과 함께 교도소에서 법정에 출정하는 과정에 대기실에서 자신이 피고인 1에게 ‘검사에게 운송비 건으로 횡령 혐의로 조사를 받았으나 기억이 없어 모른다고 했다’는 말을 하자 피고인 1이 ‘운송비 횡령 부분은 내가 법정관리 일을 하면서 회사에 공식적으로 올릴 수 없는 개인적 사용 부분이 있어 내가 쓴 돈이다’라는 말을 하였다는 사실을 기억해 내면서, 오래되어 기억이 나지 않지만 교도소에서 피고인 1이 한 말을 곰곰이 생각해보니 피고인 1이 허위 세금계산서를 이용하여 회사자금을 개인적으로 사용한 것 같고, 아마도 자신이 피고인 1로부터 허위 세금계산서를 발급 받으라는 지시를 받아 이를 공소외 10에게 전달한 것 같다고 진술하기 시작하였고, 이 법정에서는 검찰에서 처음에 부인하다가 피고인 1의 지시를 받아 공소외 10에게 허위 세금계산서 발급을 지시하였다는 취지의 진술을 하게 된 경위에 대해, 공소외 10이 검찰 조사 과정에서 정황상 피고인 1의 지시로 허위 세금계산서를 발급 받은 것이라는 취지의 진술을 하는 것을 듣고 생각해 보니까 그 판단이 옳은 것 같아서 그러한 사실을 기억해 내게 되었다는 취지로 진술하고, 2004. 4.경 교도소에서 법정에 출정하는 과정에서 피고인 1로부터 ‘그것은(운송대금 횡령) 법정관리 진행 과정의 애로사항을 말씀드리면서 내가 판공비로 썼다고 이야기했는데’라는 말을 듣고 그렇게 정리되었는가 보다고 생각했다고 진술하고 있는바, 이와 같이 공소외 11이 당초의 진술을 바꾸게 된 경위에 비추어 볼 때, 그는 검찰에서 함께 조사를 받은 공소외 10의 추측성 진술을 듣고, 또한 피고인 1이 교도소 내에서 자신에게 한 말을 기억해 내면서 위와 같이 공소외 10 및 피고인 1로부터 들은 이야기를 토대로 피고인 1의 지시가 있었을 것으로 추측하기 시작했거나 주변의 암시를 받아 기억에 없는 진술을 하기 시작했을 가능성이 커 보이고, 또한 7년 이상 지난 일을 시간이 지날수록 점차 피고인 1의 지시가 있었던 것이 명백한 듯이 진술하고 있는 사정에 비추어 보아도 그의 진술이 자신의 기억에 따른 진술이 아니라 수사 및 재판 과정에서 주변의 어떠한 암시에 영향을 받아 기억이 왜곡된 결과일 수 있다는 의심이 강하게 드는 점, (ⅱ) 공소외 11이 피고인 1의 지시를 받았다는 사실을 기억해 내게 된 단서가 되었다고 하는 피고인 1의 교도소 내에서의 언급은 그 내용이 피고인 1이 스스로 자신의 범죄 혐의를 인정하는 것이어서 여러 가지 범죄 혐의로 구속되어 재판을 받고 있는 사람이 교도소 내에서 우연히 잠깐 마주친 사람에게 그와 같은 이야기를 한다는 것이 납득하기 어려울 뿐더러, 설령 피고인 1이 그와 같은 이야기를 했다고 하더라도 교도소 내에서 우연히 마주친 상태에서 교도관의 감시를 피할 수 있는 아주 짧은 시간 사이에 전후 사정의 설명도 없이 한 말로서 그것이 반드시 이 사건 횡령 사실에 관한 언급이라고 볼 수 있을지도 의문스러운 점, (ⅲ) 공소외 11로서는 피고인 1의 지시가 없었다는 사실이 밝혀지면 자신에게 종국적인 책임이 귀속될 수 있는 처지인 점, (ⅳ) 공소외 10은 공소외 11의 지시를 받았다는 사실에 대해서 일관되게 명백히 진술하고 공소외 11로부터 횡령금의 일부를 받아 업무추진비로 사용하였다고까지 진술하고 있는데도, 공소외 11은 처음에 자신의 관련성을 부인하다가 이 사건은 피고인 1의 지시로 이루어진 것 같다고 진술하고, 점차 피고인 1의 지시에 따른 것임이 명백한 듯이 진술하면서 자신은 횡령금을 사용하지 않았다고 진술하는 등 그 책임을 회피하려고만 하는 태도를 보이고 있는 점, (ⅴ) 공소외 11은 1997. 6.경부터 1998. 2.경까지 사이에 이 사건과 다른 내용으로 공소외 4 주식회사의 공금 5억 7,000만 원 가량을 횡령하고, 2000. 5.경 피고인 1을 협박하여 1억 원을 갈취하였다는 범죄사실로 2004.경 처벌을 받은 적이 있어 피고인 1에 대하여 서운한 감정을 가지고 있을 것으로 보이는 점 등에 비추어, 이를 그대로 믿기 어렵다.

③ From March 197 to December of the same year, the part that Nonindicted Party 1 received 70 to 100,000 won each month from Nonindicted Party 1’s testimony from Nonindicted Party 1’s prosecutor’s office (“Nonindicted Party 1”) was aware of the fact that Nonindicted Party 1’s embezzlement was conducted in the process of internal inspection, which was 198, and that Nonindicted Party 11 did not instruct the issuance of a false tax invoice. As to the relationship between Nonindicted Party 11’s deposit and the instant embezzlement money, the prosecutor stated to the effect that it was not a part of the money embezzled by Nonindicted Party 11, and that it was difficult for Nonindicted Party 1 to acknowledge that it was necessary for Nonindicted Party 1 to take part in the foregoing offense or to take part in the Defendant’s issuance of a false tax invoice, and that Nonindicted Party 1’s money received from Nonindicted Party 1 to Nonindicted Party 1’s official instructions on the issuance of the instant tax invoice (the amount of money that Nonindicted Party 1 had been distributed to Nonindicted Party 1, including that of this case.

(B) Conclusion

Therefore, Nonindicted 10’s written statements and written statements of Nonindicted 10 in this court cannot be used as evidence; Nonindicted 11’s written statements in this court; Nonindicted 11’s written statements in the prosecutor’s preparation; Nonindicted 11’s written statements in this court; Nonindicted 9’s written statements in this court; Nonindicted 1 and 2’s written statements in this court; Nonindicted 10’s partial statements in this court; Defendant 1’s written statements in this court; Nonindicted 10’s written statements in the third written statements in the prosecutor’s third written statements in the prosecutor’s written statements on Defendant 1; and there is no other evidence to prove this otherwise.

2. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) against Defendant 1

A. Summary of the facts charged

Defendant 1, in collusion with Nonindicted 3 on June 12, 2002 to December 9 of the same year, from the victim Nonindicted 4 corporation office from June 12, 2002, the Defendant: (a) ordered each of the appurtenant works, such as new construction and appurtenant works and extension of route between Nonindicted 4 corporation 3,790,00,00 won for the adequate construction cost (excluding value-added tax) and one so on; (b) in order for Nonindicted 3 corporation 4’s construction work, the construction company should be selected at a competitive bid against adequate construction technology, ability, and experience at the appropriate construction cost level; (c) in violation of the above duties, Nonindicted 3, who executed the above construction work, received money from Nonindicted 4 corporation 1, 200 with the order and received the money from Nonindicted 30, 300, 300, 300, 300, 300, 300, 300, 300, 300, 300, 3000, 0

B. Defendant and defense counsel’s assertion

Defendant 1 and his defense counsel did not act in violation of their duties in the form of a negotiated contract without comparing and comparing the construction work of this case with the interest of Nonindicted Co. 4, such as reduction of construction period, reduction of construction cost, clarification of responsible location, and facilitation of management and supervision. Thus, it cannot be deemed as an act in violation of their duties. ② Since the construction contract amount adjustment consultation (NEG) was conducted after comparing the estimates submitted by Nonindicted Co. 5 on the basis of the estimated price set by Nonindicted Co. 4, based on the estimated price set by the Nonindicted Co. 4, there was no act in violation of their duties in the process of determining the contract amount. ③ There was no objective and reasonable ground that the appropriate level of the construction work of this case is KRW 33,790,000 (value added tax and below value added tax are the amount excluding value added tax). Rather, the contract amount of the construction work of this case is at least KRW 42,320,000,000, not property damage to Nonindicted Co. 4, even if there was property damage.

C. Determination of issues and evidence

(1) Issues

Since the crime of breach of trust is a crime in which a person who administers another's business obtains pecuniary benefits or has a third party obtain economic benefits from a violation of one's duty, and thereby causes property damage to the principal, the first issue is whether Defendant 1 gave rise to the occurrence of property damage to the non-indicted 4 corporation due to the act of giving contract to the non-indicted 5 corporation, and in relation to this point, it should be clearly stated that the reasonable construction cost which could have been objectively anticipated at the time of the contract of this case is less than KRW 42,320,000,000, which actually had been objectively anticipated at the time

Therefore, we will first examine the prosecutor's data that seem to be consistent with the fact that the appropriate contract price of the construction of this case is less than 42,320,000,000 won.

(2) Calculation of the construction cost of Nonindicted 12

(A) Contents

공소외 4 주식회사 기술팀장 공소외 13은 피고인 1의 지시로 2001. 7.경 클링커 사이로(3만 톤) 신축공사, 로라밀(95T/H) 증설공사 등을 포함한 포항공장 설비투자계획 보고서를 작성하였고, 위 설비투자계획 보고서에서 클링커 사이로 신축공사는 공사금액 40억 원(기간 2001. 7. ~ 2002. 2.)으로, 로라밀 증설공사는 공사금액 150억 원(기간 2002. 1. ~ 2004. 2.)으로 예상하고 있었는데, 공소외 12의 공사금액 산출방법에 의하면, 이 사건 공사계약 당시 클링커 사이로 신축공사의 경우 용량이 4만 톤으로 변경되고, 일부 공사가 추가되었으며, 로라밀 증설공사의 경우 용량이 110T/H로 변경되고, 일부 공사가 추가되었으므로, 공소외 13 작성의 위 설비투자계획 보고서에 기초하여 우선 용량 변경을 반영하면 클링커 사이로 신축공사는 공사금액이 53억 원(≒ 40억 원 × 4/3), 로라밀 증설공사는 공사금액이 173억 원(≒ 150억 원 × 110/95)이 되고, 여기에 공소외 5 주식회사의 기성금 지급신청서에 비추어 볼 때 일부 공사가 추가된 이 사건 실제 공사계약 내역 중에서 위 설비투자계획 보고서상의 공사 내역이 차지하는 비율이 클링커 사이로 신축공사의 경우 90% 가량, 로라밀 증설공사의 경우 64% 가량이 되므로, 이를 반영하여 추가공사분으로 클링커 사이로 신축공사의 경우 5억 8,000만 원(≒ 53억 원 × 10/90) 가량을, 로라밀 증설공사의 경우 97억 3,000만 원(≒ 173억 원 × 36/64) 가량을 각 추가하면, 클링커 사이로 신축공사는 58억 8,000만 원(= 53억 원 + 5억 8,000만 원), 로라밀 증설공사는 270억 3,000만 원(= 173억 원 + 97억 3,000만 원)이 되며(합계 329억 1,000만 원), 여기에 다시 위 설비투자계획 보고서 작성 당시인 2001년 대비 이 사건 공사계약을 체결한 2002년의 물가상승율 2.7%를 적용하면 337억 9,000만 원(≒ 329억 1,000만 원 × 102.7%) 가량이 적정 공사대금으로 산출된다고 한다{ 공소외 12의 진술(검사 작성의 각 진술조서), 공소외 13의 진술(이 법정에서의 진술, 검사 작성의 제1, 2회 피의자신문조서), 설비투자계획 보고서(공판기록에 편철된, 피고인 1의 변호인이 2005. 3. 28. 제출한 참고자료)}.

(B) Determination

① As to the report on the above facility investment plan, Nonindicted 13 only conducted the work in the field of machinery and equipment, without expertise and experience in the field of civil engineering and construction, Defendant 1’s instructions prepared Bring materials related to new facility investment around September 200, and without detailed drawings, in the case of new construction works with a large amount of 5,00 tons of cement (it seems that there is no ground that the construction conditions are similar in the record, and that there is a significant difference in the capacity of the construction works). In light of the fact that Nonindicted 3’s capability to directly calculate the construction cost of the above facility investment project, it is difficult to determine the construction cost of the above facility investment project with a large amount of 5,00 tons of the installation cost at the time of increase in the construction cost of the above facility investment plan, it is difficult to determine the construction cost of the above facility investment plan with a large amount of 1,00 tons of the installation cost of the above facility construction cost at the time of increase in the construction cost of the above facility investment plan.

Therefore, it is difficult to recognize that the appropriate level of the instant construction cost is less than KRW 33.79 billion or less than KRW 42,320,000,00, which is the actual contract amount, based on the facility investment plan report prepared by Nonindicted 13 and the statement made by Nonindicted 12, etc.

(3) Investigation report by a research institute related to the industry of the Gyeonghee University;

(A) Contents

After examining the contract cost, specifications, estimates, design drawings, etc. of non-indicted 5 corporation, the research institute related to the industry at Lhee University established the details of the construction work through field inspection, calculated the necessary human resources and equipment size in accordance with the construction standard pumum in 2002, calculated the direct construction cost by applying the unit price in 202, applying the price data, wage rate in 202, and calculated the indirect labor cost, the industrial accident insurance premium, employment insurance premium, safety management expenses, other statutory expenses, profits, etc. by applying the standard construction cost ratio of the cost accounting, and calculated the estimated price (45,230,000,000 won, which correspond to the estimated price, and which is 200 billion won or more prior to the conclusion of the contract; the construction project subject to examination at 30 billion won or more, shall be calculated by comprehensively examining the tender price at least the average of the successful bidder's tender price subject to examination at least 10 billion won; and the construction project subject to examination at least 200 billion won;

(B) Determination

① First of all, the above investigation report is prepared by requesting the service of cost accounting to a research institute related to the industry of the Gyeonghee University for the purpose of using it as material for dispute with Defendant 1, who is in progress with regard to the adequate construction cost of the instant construction project. As such, there is room for doubt as to whether objectivity and fairness can be ensured in light of the process of preparing the investigation report (this point is the same as in the case of preparing the investigation report by ED Group (hereinafter referred to as “AD Group”) [the same applies to the case of preparing the above investigation report by Non-Indicted 4]. (ii) In preparing the above investigation report, it is difficult to conclude that Non-Indicted 4 corporation’s construction cost is reasonable at least 00 billion won for the purpose of calculating the estimated construction cost of the instant construction project, and that it is difficult to secure the objectivity and fairness of the aforementioned construction cost of the said 400 billion won or more for the purpose of using it as material for dispute with other interested parties (see, e.g., Supreme Court Decision 2000Du1464).

② 다음으로, ○ 공소외 5 주식회사 제출의 견적금액 대비 실제 계약금액[ 공소외 4 주식회사는 2002. 6. 12. 클링커 사이로 신축공사를 7,770,000,000원으로 도급하고, 2003. 8. 5.(실제 구두로 계약을 체결한 것은 이보다 훨씬 이전임) 클링커 사이로 위치변경에 따른 추가공사로 550,000,000원을 증액하였으며, 2002. 12. 9. 로라밀 증설공사를 33,500,000,000원에 도급하고, 2004. 2.경 치장실 설계변경으로 공사비 500,000,000원이 증액되었는바, 공소사실 기재 계약금액인 42,320,000,000원은 이를 모두 합산한 것인데 비해 위 조사보고서에서는 위 치장실 설계변경으로 인한 증액분 500,000,000원을 고려하지 않은 것으로 보이므로{이는 (4)항의 조사보고서에서도 마찬가지임}, 낙찰율을 비교함에 있어서는 실제 계약금액이 41,820,000,000원(= 7,770,000,000원 + 550,000,000원 + 33,500,000,000원)임을 전제로 계산하기로 함]의 비율(낙찰율)은, 클링커 사이로 신축공사(위치변경으로 인한 추가공사 포함)의 경우 92.74%(= 8,320,000,000원 / 8,971,568,091원)이고, 로라밀 증설공사의 경우 81.14%(= 33,500,000,000원 / 41,284,934,652원)이며, 두 공사를 합산하면 83.21%(= 41,820,000,000원 / 50,256,502,743원)이고, ○ 공소외 5 주식회사의 견적금액이 아닌 위 조사보고서상의 예정가격(견적금액에 해당) 대비 실제 계약금액(클링커 사이로 신축 및 로라밀 증설공사 합산)의 비율을 산출해보면 92.46%(= 41,820,000,000원 / 45,230,000,000원)인바, 위 조사보고서와 같이 예정가격에 70%의 낙찰율을 적용하여 산출한 금액이 이 사건 공사 당시 객관적으로 예상할 수 있는 합리적인 공사금액이라거나, 위와 같은 83.21%( 공소외 5 주식회사 제출의 견적금액 기준) 또는 92.46%(위 조사보고서상의 예정가격 기준)의 낙찰율은 객관성이나 합리성이 없이 높은 것이어서 그 미만의 낙찰율이 적용되어야 한다고 할 수 있는지에 관하여 보건대, (ⅰ) 위 조사보고서에 의하더라도, 적격심사 낙찰하한율이 50억 원 ~ 100억 원 미만 공사의 경우 85.495%, 100억 원 ~ 300억 원 미만 공사의 경우 82.995%, 300억 원 ~ 1,000억 원 미만 공사의 경우 77.995%로서, 공사규모별로 적지 않은 차이가 나는데, 특히 공사규모가 80억 원 정도에 불과한 클링커 사이로 신축공사에도 일률적으로 77.995%의 적격심사 낙찰하한율이 적용됨을 전제로 위와 같이 70%의 적정 낙찰율을 도출해 낼 수 있는지 의심스러운 점, (ⅱ) 공공공사의 낙찰율을 보면, 이 사건 공사 바로 전년도인 2001년의 경우 공사종류별, 발주처별, 지역별로 낙찰율의 차이가 있고, 특히 낙찰금액별로 보면 50억 원 ~ 100억 원 미만 공사의 경우 평균 낙찰율이 85.75%이고, 100억 원 ~ 500억 원 미만 공사의 경우 83.34%이며{공판기록에 편철된, 피고인 1의 변호인이 제출한 2005. 3. 28.자 변호인의견서에 첨부된 ‘공공공사 낙찰현황 분석’(건설협회 자료)}, 조달청에서 발주한 공사 중 최저가낙찰제에 의한 경우 2001년 평균 65.77%, 2002년 평균 63.03%, 2003년 평균 60.10%, 2004년 평균 59.44%이지만, 구체적으로 보면 2001년 50.19% ~ 74.61%, 2002년 52.10% ~ 78.65%, 2003년 50.85% ~ 84.05%, 2004년 44.77% ~ 95.84%에 이르는 등 개별 공사에 따라 큰 편차를 보이고 있고(공판기록에 편철된, 검사가 제출한 2005. 4. 4.자 ‘변호인 주장에 대한 검토 의견’에 첨부된 ‘최적가낙찰제 적용공사 낙찰현황’ 자료), 적격심사제의 경우 평균 낙찰율이 50억 원 ~ 100억 원 공사의 경우 2002년 85.85%, 2003년 85.73%, 100억 원 ~ 500억 원 공사의 경우 2002년 82.42%, 2003년 83.19%이므로(공판기록에 편철된, 조달청장의 2005. 4. 18.자 사실조회 회신), 이 사건 공사 계약금액에 적용된 낙찰율 83.21%( 공소외 5 주식회사 견적금액 기준) 또는 92.46%(위 조사보고서상의 예정가격 기준)도 공공공사의 평균 낙찰율에 근접하거나 위와 같은 개별 공사에 따른 편차의 범위를 크게 벗어나지 않는 것으로 볼 여지가 있는 점(통계자료의 특성상 평균치에서 벗어났다고 해서 반드시 이례적이거나 부당한 경우라고 하기는 어려울 것으로 보임), (ⅲ) 대한주택공사에서 발주한 아파트공사의 낙찰율을 보면, 2002년에 발주한 아파트공사의 일반경쟁입찰 중 적격심사제에 의한 경우 예정가격 대비 낙찰율이 82.25% ~ 91.41%에 이르고, 평균 86.69%이어서 개별 공사에 따라 적지 않은 차이를 보이고 있고, 그 이전에도 비슷한 정도의 편차를 보이고 있으며{공판기록에 편철된, 피고인 1의 변호인이 제출한 2005. 3. 28.자 ‘참고자료제출’에 첨부된 대한주택공사 충북지역본부장 작성의 사실조회 답변서( 광주고등법원 2004나6787 구상금 사건에 대한 것임)}, 2003년에도 100억 원 이상 500억 원 이하 공사의 경우(113건) 78.01% ~ 99.99%의 낙찰율을 나타내고 있어서(공판기록에 편철된, 대한주택공사사장의 2005. 4. 18.자 사실조회 회신에 첨부된 ‘적격심사제 실시공사 현황’ 자료), 대한주택공사의 경우 대한건설협회 발행의 표준품셈을 적용하지 아니하고 자체적으로 엄격하게 작성한 품셈을 적용하여 예정가격 자체가 다른 공사에 비해 낮게 책정되는 점과 이 사건 공사가 산업설비 공사로서 주택 공사와 공종이 다르다는 점을 감안하더라도 이 사건 공사 계약금액에 적용된 낙찰율 83.21% 또는 92.46%가 반드시 이례적으로 높은 것은 아니라고 볼 여지가 있는 점, (ⅳ) 더구나 이 사건 공사는 민간공사에 해당하는데 여기에 위 조사보고서와 같이 공공공사의 평균적인 낙찰율을 적용하여 적정 공사금액을 산출할 수 있을 것인지에 대해 의문의 여지가 있고(민간공사의 경우 위와 같은 낙찰율에 관한 통계적인 자료도 없는 것으로 보임), 공공공사의 경우 공사실적을 위해 손해를 감수하면서도 수급하려는 업체들이 있어서 민간공사의 경우보다 낙찰율이 낮을 여지도 있을 것으로 보이는 점, (ⅴ) 또한 이 사건 공사계약은 이른바 턴키도급방식(설계·시공 일괄계약)에 의한 것인데 여기에 일반적인 낙찰율을 적용하는 것이 가능한지도 의문의 여지가 있는 점(공판기록에 편철된, 대한주택공사사장의 2005. 4. 18.자 사실조회 회신에 첨부된 ‘적격심사제 실시공사 현황’에 의하면, 대한주택공사에서 2003년에 발주한 100억 원 이상 500억 원 이하 공사의 경우 전체적으로 78.01% ~ 99.99%의 낙찰율을 나타내고 있는 가운데 턴키도급방식에 의한 경우는 94.96% ~ 99.99%의 상대적으로 높은 낙찰율을 보이고 있음), (ⅵ) 공소외 5 주식회사에서 하수급업체들에게 실제로 지출한 공사비가 323억 원에 이르는 것으로 보이므로 여기에 공소외 5 주식회사가 직접 시공한 부분, 이윤 등을 더하여 보면 이 사건 공사비는 적어도 323억 원을 훨씬 초과하리라고 짐작할 여지가 충분히 있는바(2004. 2.경 치장실 설계변경으로 인한 증액분 500,000,000원을 더하면 328억 원), 위 조사보고서는 오히려 위 323억 원에도 미치지 못하는 31,661,000,000원을 적정공사비로 산출하고 있어 그 객관성과 합리성을 의심할 여지가 있는 점 등에 비추어, 위 조사보고서에서 채택한 70%의 낙찰율은 단순한 통계를 기초로 한 평균적인 수치에 불과하므로 그 이상의 낙찰율은 부당하다거나, 이 사건 공사의 실제 낙찰율인 83.21% 또는 92.46%가 객관적으로 합리성을 결여하여 높은 것이어서 반드시 그 미만의 비율로 계약금액이 결정되어야 한다고 단정하기 어렵다.

③ Therefore, even based on the above investigation report, it is difficult to recognize that the appropriate level of the construction amount of this case is KRW 31,661,00,000 or less than KRW 41,820,000 (except for the increased portion due to the modification of the design in the storage room) which is the actual contract amount.

(4) Investigation report on the preparation of AD Group

(A) Contents

AD Group shall refer to the price data, unit price, contract, estimate, etc. in 2002, and shall calculate the construction cost of the new construction project to 6,863,660,000 won through the on-site inspection, and the construction cost of the rode extension project to 28,325,460,000 won (total of 35,189,120,000 won). In this context, by applying 92.777% (successful bid rate), which is the ratio of the contract amount to the estimate amount submitted by Nonindicted Co. 5 Co. 5, the appropriate construction cost of the new construction project to 365,152,374 won(s) 6,365,63,60,60,00 x 37%(s) x 301,284,281,294, 2084) x 285%(s) x 294, 281,2845

(B) Determination

AD Group has experience in calculating the construction cost of KRW 20 to KRW 3 billion in the field of electricity, machinery and equipment, and mainly with experience in calculating the construction cost of KRW 20 to KRW 3 billion, and there is no experience in calculating the construction cost of KRW 30 billion. In the absence of sufficient data for calculating the construction cost at the time of the preparation of the above investigation report, it seems that the special circumstances of the instant construction project (mix of construction sites, urgency of construction, etc.) were not considered. The calculation of the construction cost of the above investigation report (35,189,120,00) is difficult to recognize the reasonable difference between the construction cost of KRW 20 to KRW 300,00 in the estimated construction cost of Nonindicted Co. 5 (50,256,502,743) and the estimated construction cost of Nonindicted Co. 5 (200,000,000 won) as well as the estimated construction cost of KRW 20 to KRW 308,000,000).

(5) Calculation of the cost of construction by a single mother

Based on the experience in the construction of part of the instant construction project, the actual construction cost of the instant construction project is estimated to be KRW 25.7 billion (the cost of the instant construction project plus KRW 20.7 billion) (the cost of the instant construction project is KRW 5 billion) (the cost of the instant construction project, the cost of the instant construction project, the cost of the instant construction project, the cost of the instant construction project, and the cost of the instant construction project, the cost of the instant construction project, and the cost of the public prosecutor’s statement). However, the cost of the instant construction project has no experience in designing, executing, or supervising the entire construction cost similar to the instant construction project (which is only labor contract). The cost of the instant construction project, the materials from Nonindicted Co. 4 Co. 2, Ltd., which reported Defendant 1, prepared a written confirmation that the actual construction cost of the instant construction project is KRW 2.5.7 billion, and it is difficult to recognize that the cost of the instant construction project is calculated only on the side of the wind and its own trend based thereon, or it is difficult to be determined by objective data.

(6) Defendant 2’s statement

피고인 2는 검찰에서(제1회 피의자신문조서) 이 사건 공사의 낙찰율에 대하여 듣고 깜짝 놀랐으며 그 정도의 낙찰율이면 공소외 5 주식회사가 80 ~ 90억 원 정도의 이윤을 얻을 것으로 판단한다고 진술하였으나, 이 법정에서 이 사건 공사는 일반적인 건축물 공사가 아닌 산업설비공사이고, 공사현장의 특수한 여건으로 난공사였던 특별한 사정이 있다고 하면서 검찰에서의 진술을 번복하고 있고, 위 검찰에서의 진술만 놓고 보더라도 이는 주관적인 판단에 불과하여 이를 근거로 이 사건 공사금액의 적정한 수준이 42,320,000,000원 미만이라고 인정하기는 어렵다.

D. Conclusion

Therefore, each of the above evidences alone is less than 42,320,00,000 won, and therefore, it is insufficient to recognize that Defendant 1 suffered property damage from Nonindicted Co. 4 under the instant construction contract, and there is no other evidence to recognize otherwise. The relationship between Defendant 1 and Nonindicted Co. 3, the representative of Nonindicted Co. 5, became a factor for which Nonindicted Co. 5, decided to be the subcontractor of the instant construction. Nonindicted Co. 5, the shortage of the performance or experience in receiving orders of large plant construction like the instant construction, and the capacity of execution is insufficient, Defendant 1 contracted the instant construction to Nonindicted Co. 5 without comparing it with any other private contract, and Defendant 1 received rebates of KRW 3 billion in return for giving orders for the construction order from Nonindicted Co. 3 and for giving orders in the future (it is difficult to see that rebates is the price for the instant construction work only).

3. Violation of the Company Reorganization Act against Defendant 1 and 4

A. Summary of the facts charged

(1) Defendant 1, at the office of Nonindicted Co. 4 on December 2001, designated a person who will take over new shares with Nonindicted Co. 4’s new shares based on the side agreement with Nonindicted Co. 16 Co. 16 who will take over new shares with Nonindicted Co. 4’s company. After the completion of the company reorganization procedure, Defendant 4, a legal administrator, raised an objection to the change of the company reorganization plan and did not cooperate in submitting the draft approval or change to the reorganization court, it would hinder Defendant 4’s approval of the company reorganization plan from the reorganization court. The remaining, Defendant 4 raised the company reorganization plan from Nonindicted Co. 4 to the defendant for 5’s taking over the management right through the company reorganization procedure, and Defendant 4 provided the above 100 billion won shares from Nonindicted Co. 4’s new shares to 160 billion won, and provided 200 billion won shares to 160 billion won shares to be acquired from Defendant Co. 4 and 1500 billion won shares to the above company reorganization plan.

(2) Defendant 4 received opportunities to acquire 189,753 new shares issued by Nonindicted Co. 4 with property value of KRW 13,110 per share at the time of the completion of the company reorganization procedure as above from Defendant 1 on the same date and time and place, and accordingly, deposited KRW 1,00,000 in the Defendant account of the Hanmi Bank around March 6, 2002, and made it available to Nonindicted Co. 16 to obtain a loan for acquiring stocks as security, and received financial benefits equivalent to KRW 1,417,454,910 per share by acquiring the above shares from Nonindicted Co. 16 around May 29, 2003.

B. Defendants and defense counsel’s assertion

The above Defendants and defense counsel asserted that ① the above Defendants agreed to jointly make investments in the company reorganization process and jointly secure the management right of the non-indicted 4 corporation, Defendant 4 also made investments in their own funds under such agreement, and Defendant 4 was in a position to supervise the completion of the company reorganization procedure of the non-indicted 4 corporation as the representative of the non-indicted 4 corporation, and thus, Defendant 1 did not exercise the right to transfer or provide the opportunity to acquire new shares to Defendant 4. Thus, Defendant 4’s investment in the new shares of non-indicted 4 corporation in cooperation with Defendant 1 does not accept a quid pro quo in relation to his duties, not giving a quid pro quo, and accordingly, Defendant 1 does not offer a bribe. ② Since the non-indicted 4 corporation was a non-indicted 4 corporation, it is difficult to expect the market value of the shares, so even if Defendant 4 obtained an opportunity to invest in the stock, it cannot be viewed as property profits.

C. Determination

(1) Issues and evidence relations

Therefore, Defendant 1’s offering of an opportunity of investment equivalent to KRW 1 billion to Defendant 4 is Defendant 1’s “price for the performance of duties” (as to Defendant 4’s offering of financial benefits to Defendant 1 in connection with the progress of the company reorganization procedure and in the future, “for example, prior assistance to enable Defendant 1 to exercise the right of management through the completion of the company reorganization procedure) and as to whether Defendant 4 received such benefits, there are some statements at the prosecutor’s office as follows. Defendant 4 appears to have made a statement at the first interrogation protocol of the prosecutor’s office that “I would like to make an investment of KRW 1 billion at the time of Defendant 1’s request for cooperation with the author at the time of the first interrogation protocol of the prosecutor’s office,” and Defendant 1 appears to have been “I would not have been able to take advantage of the fact that Defendant 1 would not have been able to take part of the suspect’s stocks at the time of concluding the company reorganization procedure and would not have been able to cooperate with the chairman at the time of the prosecutor’s office’s office.”

However, Defendant 4 stated in the second protocol of interrogation that “Although it is unaware of whether Defendant 1 had it acquire new stocks (in case of the completion of illegal company reorganization procedures and internal general affairs, it is not easy to make an investment of KRW 1 billion in a manner that leads to an erroneous perception that the manager is an employee of the company, even though it is not possible to make an investment in the company).” As such, it is doubtful whether the aforementioned statement is sufficiently understood and stated in the prosecutor’s purpose of examination, and it is insufficient to recognize the facts charged merely by Defendant 4’s prosecutor’s statement in this part of this case. Thus, it is difficult to determine whether to acknowledge the facts charged in the above indictment in light of the specific circumstance where Defendant 4 acquired new stocks with a consideration equivalent to KRW 1 billion.

Therefore, first of all, we examine the circumstances in which Defendant 4 acquired new shares with compensation equivalent to one billion won during the completion of the company reorganization procedure of Nonindicted Co. 4.

(2) Facts recognized (the process for the completion of the company reorganization procedure of Nonindicted 4 Company)

Defendant 1 (1), 2, 3, 7, 8, and 9), Defendant 4 (the protocol of examination of a suspect, the protocol of examination of a public prosecutor, the protocol of examination of a suspect, the protocol of examination of a suspect), Defendant 5 (the statement on the date eight, the protocol of examination of a public prosecutor, the protocol of examination of a suspect), Nonindicted 33 (the protocol of examination of a witness, the protocol of examination of a public prosecutor, the protocol of examination of a suspect), Nonindicted 46 (the protocol of examination of a public prosecutor), Nonindicted 46 (the protocol of examination of a prosecutor), Nonindicted 12 (the protocol of examination of a prosecutor), Nonindicted 23 (the second protocol of examination of a public prosecutor), Nonindicted 5 (the protocol of examination of a suspect), Nonindicted 4, the protocol of examination of a suspect, the protocol of examination of a suspect, the protocol of examination of a suspect, Nonindicted 1, 2, and the protocol of examination of a suspect), Nonindicted 66, 15, 201.

(A) On December 18, 1995, the decision to commence the company reorganization procedure for Nonindicted Co. 4 was made by the Gwangju District Court on December 18, 1995, Defendant 4 was appointed by the administrator, and on October 13, 1997, the reorganization program was approved. According to the above reorganization program (hereinafter “the draft”), Nonindicted Co. 4’s debt was to be repaid in installments by 2011 at the time of Non-Indicted. 4’s bankruptcy.

(B) Since then, despite the increase in sales and operating profits of Nonindicted Co. 4, it was anticipated that it is practically impossible to repay obligations arising from the draft of the reorganization plan, such as the amount of debt repayment arising from the draft of the reorganization plan was KRW 7.5 billion in 2001, KRW 6.4 billion in 2002, KRW 19 billion in 2002, and in particular, in the case where deemed cement as a joint surety (the implementation of the reorganization plan was anticipated to be practically impossible since 2005) would take liquidation proceedings since 2005, and there was a move to promote hostile mergers and acquisitions by means of restructuring by a third party and purchasing claims against Nonindicted Co. 4.

(C) Defendant 1 and Defendant 4 established a management strategy team on July 2001 as a countermeasure against this, and did not pay off obligations over a long-term period, but changed the draft of the reorganization plan in a way that partial debts were paid off with funds raised through capital increase with new loans, thereby seeking early termination of the company reorganization procedure against Nonindicted 4 Company.

(D) On September 2001, Defendant 1: (a) borrowed 30 billion won from the foreign exchange bank with the repayment of the liquidation debt; (b) raised 8 billion won from the foreign exchange bank through the capital increase with the capital increase; and (c) made an early conclusion of the company reorganization procedure; (d) Defendant 4 invested 2.5 billion won to the capital increase with the capital increase with the capital increase; and (d) the remaining employees defend against the management right from the hostile merger of the cement that is considered as the representative director; (b) Defendant 4, as the president, was to secure the management right as the president and operate the company; and (c) Defendant 4 consented thereto.

(E) On October 8, 2001, Defendant 4, a manager of Nonindicted Co. 4, prepared a draft revision of the reorganization plan [main contents shall be repaid in lump sum, 50% of them shall be calculated as of the present value of the reorganization claim pursuant to the draft reorganization plan, and 50% of them shall be paid in cash, and 50% of them shall be paid in equity swap (as above, 5,000 won and 130,00 won of issuance shall be issued and 130,00 won of new shares) shall be paid in equity swap (as above, 1/2 of them shall be paid in installments) and opinion of reorganization creditors was not obtained from the creditors. However, on November 26, 2001, Defendant 4, a manager of Nonindicted Co. 4, prepared a draft amendment of the reorganization plan [main contents shall be paid in cash, 20% of the reorganization claim to be paid in cash by the reorganization company, 100% of the total amount of the reorganization claim to be paid in cash, 20.0% of new shares shall be paid in installments.

(F) In order to avoid the above objection of the creditor financial institutions, Defendant 1 obtained advice from the Kim & Ko office in Seoul, and completed a consultation with the non-indicted 16 corporation, which is the specialized company for restructuring, part of the liquidation obligation shall be paid out at once through the non-indicted 16 corporation's external capital (the funds raised through loans and capital increase) and completed the company reorganization procedure. The officers and employees of non-indicted 4 corporation, including Defendant 1 and 4, shall participate in the company reorganization plan and secure management right at the same time, 36 billion won from the financial institution for repayment of the principal amount of 60 billion won, and 12 billion won from the company's own funds for the company 400 billion won for the above 60 billion won, and the remaining amount of the liquidation obligation shall be paid out by the non-indicted 16 corporation's new stocks increase and 50 billion won for the above 600 billion won new stocks issued by the non-indicted 4 corporation's new stocks increase and 500 billion won (the existing administrator of the company 4000 billion won investment contract shall be made up to 1606 billion.

(G) However, on January 3, 2002, prior to the preparation of the above official investment contract, Defendant 1 and Nonindicted Co. 16 entered into a side agreement (the name of the contract is referred to as “special agreement”) on which January 3, 2002, which is the date on which the above official investment contract was entered into. The main contents are as follows: (a) the total amount of investment of Nonindicted Co. 16 Co. 3 is KRW 5.27 billion; (b) the amount of investment of the executives and employees of Nonindicted Co. 4, including Defendant 1, is KRW 5.7 billion; (c) the amount of investment of Nonindicted Co. 16 Co. 4 is KRW 270 million; (d) the amount of investment of Nonindicted Co. 4’s executives and employees of Nonindicted Co. 4 Co. , Ltd. is KRW 300 million in the name of Nonindicted Co. 4 Co. 16’s employees; and (e) the amount of investment shares is distributed to Defendant Co. 160 billion won in the name of the Association (as seen thereafter.).

(h) Unlike Defendant 1’s initial draft revision of the reorganization plan, at the time of the establishment of the new draft revision of the reorganization plan by making an investment of KRW 2.5 billion or KRW 3 billion with Defendant 4, and securing and operating the company, Defendant 1 excluded Defendant 4 from the management and, in order to take charge of the management right alone, Defendant 4 invested KRW 2 billion in the association No. 16 corporation No. 3 (1 billion investment), unlike Defendant 4 (1 billion investment), and Nonindicted 16 corporation’s 60,000 won (3 billion won) and 16 corporation’s new shares purchased from creditor financial institutions (3 billion won for conversion) and concealed the fact that Nonindicted 16 corporation’s 4 billion shares were purchased from creditor financial institutions, and Defendant 16 corporation borrowed Defendant 4 billion or 4.5 billion shares in the name of Defendant 16 corporation and 4.5 billion employee, and Defendant 16 billion shares in the name of each of Defendant 16 corporation.

(E) On March 25, 2002, Nonindicted Co. 16 paid the contract deposit (which is converted into the acquisition price of new stocks during the subscription period) and Nonindicted Co. 4 was decided to complete the reorganization procedure at the Gwangju District Court on May 17, 2002, following the resolution of the revised reorganization plan (the major contents are the same as those of the above investment contract) which was revised at the meeting of interested persons on the 26th of the same month. On the 29th of the same month, Nonindicted Co. 16 was decided to authorize the revision of the reorganization plan by the court, such as reduction of capital, issuance of new stocks for consideration and conversion of investment, 36 billion won of borrowed stocks, 8 billion won of the acquisition price of new stocks for consideration, and 12 billion won of funds of Nonindicted Co. 4 Co.

(j) Meanwhile, Defendant 4 deposited KRW 1 billion in his own savings account in Korea-U.S. bank. On March 6, 2002, Defendant 16 received a loan from Defendant 4 as security on March 6, 2002, and paid the loan as a payment for acquiring new stocks in the name of Nonindicted Co. 16, and Defendant 4 purchased the above KRW 1 billion from Nonindicted Co. 16 at the time of dissolution of Nonindicted Co. 16, 3, and the payment was settled in lieu of the repayment of the above loan under the name of Nonindicted Co. 16, May 12, 2003, Defendant 4 took over 189,753 shares for consideration in the name of Nonindicted Co. 4, by borrowing the name of Nonindicted Co. 16 in the name of Nonindicted Co. 16 (Defendant 1 also borrowed KRW 16 in the name of Nonindicted Co. 16 to make an investment in 200 million for consideration of new stocks).

(k) Defendant 1, in accordance with the side agreement with Nonindicted Co. 16, purchased shares in exchange for investment amounting to KRW 2 billion with respect to Nonindicted Co. 16 Co. 3, as well as the shares in exchange for a debt-to-equity swap with respect to Nonindicted Co. 16, which was purchased from creditor financial institutions, purchased new shares in KRW 3 billion with respect to which Nonindicted Co. 16 acquired from creditor financial institutions, and became the largest shareholder of Nonindicted Co. 4, and became the situation where the management right can be secured only with their own shares after the completion of the company reorganization procedure, unlike the initial promise, Defendant 4 was inferred to legal advisers from July 2002 to 20 years, and excluded from management.

(3) Judgment on the issue

In light of the above facts, if Defendant 4 entered into a new company reorganization plan with Defendant 4 for the first time to acquire new shares for consideration under the mutual consent of Defendant 1 for the management right, it is difficult to conclude the company reorganization plan with Defendant 4 with an opportunity to acquire the new shares for consideration from Defendant 1 for the first time to acquire the new shares for the first time to acquire the company's management right, or with an opportunity to acquire the new shares for consideration by Defendant 4 for consideration for the first time to acquire the new shares for the first time to acquire the new shares for the first time to acquire the company's management right. However, it is difficult to conclude the company reorganization plan with Defendant 4 with an intention to acquire the new shares for consideration from Defendant 1 for the first time to acquire the new shares for consideration by Defendant 4 with an intention to acquire the new shares for consideration from Defendant 1 for the first time to acquire the new shares for consideration by the first time to acquire the new shares for consideration by Defendant 4 with the former time to acquire the new shares for consideration. However, it is difficult for Defendant 4 to acquire the new shares with an early shareholders.

Therefore, Defendant 1, in substance, led to the completion of the company reorganization procedure and allocated new stocks for consideration (Provided, That this does not result from Defendant 4’s assistance, but from a side agreement entered into with Defendant 16 after sunset), Defendant 1, who opposed to the change of the company reorganization plan, was unable to secure the right to manage the company. As a result, Defendant 4 led to the change of the company reorganization plan. Defendant 4 obtained an opportunity to make an investment in the new stocks expected to boost the market price, and Defendant 1 personally bears a considerable portion of the cost associated with the completion of the company reorganization procedure. Thus, as seen in the above, Defendant 1’s appearance and appearance were that Nonindicted Company 16 acquired the company through the reorganization of new stocks for consideration, but in substance, the company reorganization was jointly invested by the Defendants to acquire the company and share some property profits in the process, but there was no evidence that Defendant 1 would cause Defendant 1 to exercise the right to manage the company solely from Defendant 4 and Defendant 1 to the extent that Defendant 1 did not have any other financial profits.

4. The point of embezzlement on October 7, 2002 against Defendant 1, 5 million won of public funds

A. Summary of the facts charged

Defendant 1, in collusion with Nonindicted 23 on October 7, 2002, kept public funds at the office of Nonindicted Co. 4 located in Gwangjubuk-dong (hereinafter omitted), and for Nonindicted Co. 4, Defendant 1: (a) withdrawn KRW 5,500,000 under the same name in addition to withdrawing KRW 5,50,000 under the name of construction price as stated in the first-A of criminal facts; and (b) arbitrarily used it for the personal purpose of the Defendant around that time.

B. Defendant and defense counsel’s assertion

Defendant 1 and his defense counsel had no knowledge of what circumstances the above five million won was withdrawn. However, on October 7, 2002, Defendant 1 and his defense counsel asserted to the effect that there was no intention of embezzlement since they only dealt with the funds that were previously withdrawn as a long-term injury.

C. Determination

Therefore, as to whether Defendant 1 withdrawn 5 million won from the above 50,000 won on October 7, 2002 to 50,000 won and embezzled it, Defendant 1 (the protocol 2, 4, and 5 of the preparation of the prosecutor), Nonindicted 23 (the first protocol of examination of prosecutor), Nonindicted 24 (the protocol of examination of suspect prepared by prosecutor), investigation report prepared by Nonindicted 21 in Gwangju District Public Prosecutor's Office assistant 50 (the statement of suspect's bank transactions, four books of investigation records, one book of 4th) of the first instance judgment (the one book of KRW 1,202 of the investigation records), and the fact that Nonindicted 2, 400,000 won were recorded in the report of Kim Chang-chul and the list of total amount of value-added tax attached to the inquiry document submitted by Nonindicted 50 on April 13, 205, and the labor union used the above data to 300,000 won on its own account.

Therefore, Defendant 1’s withdrawal of KRW 5,500,000 from the company’s fund to the creative company that issued a false tax invoice on October 7, 2002 to preserve the amount equivalent to the value-added tax, as stated in Article 1-A of the Criminal Act, is recognized, but it does not seem to have actually withdrawn the company fund of KRW 5 million around that time, but rather, even if the amount was not actually disbursed at that time, the amount of KRW 55,00,000,000 used by himself as the name of the 50,000,000 won and the 55,000,000,000,000,000 won, which was paid before that time, was paid to the creative company on behalf of the head, on the basis that it was actually disbursed before that time, and as such, was prepared as if it was paid on October 7, 2002.

Therefore, the above evidence alone is insufficient to recognize the fact that Defendant 1 embezzleds corporate public funds exceeding KRW 5,500,000 as stated in Article 1-1-A of the criminal facts on October 7, 2002. There is no other evidence to acknowledge it ( even if it is acknowledged that Defendant 1 used corporate public funds in the name of provisional payment, it is not known whether the statute of limitations has expired at the time of the instant indictment except that it is prior to October 7, 2002, with regard to the date and time of the instant indictment, regardless of the fact that Defendant 1 used funds in the name of provisional payment).

5. The point of occupational breach of trust, which is the primary charge against Defendant 4

A. Summary of the facts charged

Defendant 4 in collusion with Defendant 1 and 5, and around March 30, 202, in order to borrow KRW 6 billion from the above bank in order to lend the liquidation debt repayment funds to Nonindicted Co. 4, Defendant 4 received additional loans of KRW 460,450,000 from the above bank. Defendant 4 did not offer the property of Nonindicted Co. 4 as security for the operation fund of Nonindicted Co. 16, which is irrelevant to Nonindicted Co. 4, even though it was not offered as security for the operation fund of Nonindicted Co. 16, which is irrelevant to Nonindicted Co. 4, it is in violation of its duty that Nonindicted Co. 16 obtained the above loans of KRW 460,450,00 and caused property damage equivalent to the same amount to Nonindicted Co. 4.

B. Defendant’s assertion

In the process of borrowing KRW 6 billion from Nonindicted Co. 4 with the court’s permission to repay the liquidation obligation from Nonindicted Co. 16 to the second date of trial, Defendant 4 took advantage of the documents necessary for borrowing KRW 6 billion and signed on a pledge agreement. However, Nonindicted Co. 16 is denying the intention of occupational breach of trust by asserting that Nonindicted Co. 16 was to receive an additional loan of KRW 46,0450,000 (the amount calculated by deducting KRW 39,550,000 from the total loan KRW 50,000,000) from one bank, or that there was no awareness that Nonindicted Co. 4 would offer the certificate of deposit as security.

C. Determination

(1) Facts recognized

Defendant 5 (First Trial Records, Prosecutor’s Examination Records, Prosecutor’s Record No. 1, 2, Prosecutor’s Examination Record No. 1), Defendant 1 (Examination Record No. 3, Prosecutor’s Examination Record No. 8), Nonindicted 24, Nonindicted 34 (Examination Record No. 1), Nonindicted 36 (Statement of Prosecutor’s Preparation), Nonindicted 38 (Statement of Prosecutor’s Preparation), Nonindicted 39 (Statement of Prosecutor’s Preparation), Nonindicted 261’s Investigation Report No. 600 million won on Loan No. 4, Nonindicted 600, and Nonindicted 2400 million won on Loan No. 650, and Nonindicted 64 of the Seoul District Public Prosecutor’s Office’s loan No. 3060,000,000 won were transferred to Nonindicted Company No. 360,000,000 won on Loan No. 4650,000,000 won on Loan No. 3604).

(2) Issues and evidence relations

Therefore, in relation to this part of the facts charged, the issue is whether Defendant 4 additionally borrowed KRW 500 million for the purpose of self-management fund of Nonindicted Co. 16 regardless of Nonindicted Co. 4 Co. 4 Co. 4 Co. 4 Co. 16, and whether Defendant 4 signed and sealed the above contract to establish a pledge contract with the knowledge that the transfer of deposit money owned by Nonindicted Co. 4 is offered as security for such additional loan, and as such, Nonindicted Co. 3’s statement (the third protocol of examination of the prosecutor’s preparation) is consistent with the evidence first. As Nonindicted Co. 3 did not leave his official seal from the prosecutor’s office to another person, Nonindicted Co. 16 Co. 4 was stated to the effect that he was aware that the transfer of deposit money equivalent to KRW 7 billion owned by Nonindicted Co. 4 Co. 4 Co. 16 Co. , Ltd. was made as security when he received a loan from one bank, and the reason why Defendant 1’s statement (the interrogation protocol of Nonindicted Co. 4’s memory) was made as security.

(3) Determination

(A) Therefore, in relation to Defendant 1’s prosecutor’s statement, Defendant 1, who received an additional loan of KRW 500 million from Nonindicted Co. 16 Company, stated that the fact of offering the certificate of deposit owned by Nonindicted Co. 4 Company as security is not consistent, and on the other hand, recognized such fact as long as the documents related to the loan have been prepared, and provided that Defendant 1 reported and accepted such fact to Defendant 4.

However, Defendant 1’s statement that Defendant 1 did not associate with the process of providing a security for an additional loan of KRW 500 million on the other hand is in itself contradictory to the statement that Defendant 4 obtained the consent of Defendant 4, and it appears that this is merely a statement to exempt Defendant 4 from his responsibility and to transfer it to Defendant 4. Thus, Defendant 1’s statement cannot be believed as it is. However, Defendant 1’s statement cannot be said to be reliance on the act of offering a security for an additional loan, and it cannot be said that Defendant 1’s offering of a company’s property as a security under the legal management system (if it is acknowledged that it was made by Defendant 1’s instruction, as seen earlier), even at the time of considering that it cannot be done without the approval of the legal administrator, it cannot be viewed to the effect that Defendant 4, a legal administrator, obtained his consent.

(B) Meanwhile, according to each of the above evidence, Defendant 4, as the legal administrator of Nonindicted Co. 4, obtained permission for borrowing KRW 6 billion from the court. However, Defendant 4 did not obtain permission to provide collateral in borrowing the above money; ② Defendant 4 puts his signature and seal on the contract to establish a collateral in an unwritten state with Defendant 1’s request for approval; and Defendant 4 puts his signature and seal on the above contract to provide KRW 7 billion in the transfer deposit document of Nonindicted Co. 4 as collateral. Defendant 1 was detained in the previous case, one bank to find out that the contents of the loan document related to Nonindicted Co. 4 were omitted and stated in order to supplement the above document. In addition, Defendant 4 was aware of the fact that Nonindicted Co. 4 and Nonindicted Co. 4 did not directly obtain an order from Nonindicted Co. 4 in the process of offering the above loan to Nonindicted Co. 4’s company as collateral and did not directly obtain an order from Nonindicted Co. 16’s company’s signature and seal. However, it appears that Defendant 1 and Defendant 4 did not have been aware of the content of the contract.

6. Conclusion

Therefore, among the facts charged in this case, the facts charged in this case are as follows: ① Occupational embezzlement as of November 30, 1997 and December 31, 1997 against Defendant 1; ② Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) against Defendant 1; ③ Provision of property benefits in relation to Defendant 1 and 4 and violation of the Company Reorganization Act due to waterway constitutes a case where there is no proof of crime, and thus, acquitted Defendant 1 pursuant to the latter part of Article 325 of the Criminal Procedure Act; ④ Occupational embezzlement as of October 7, 2002 against Defendant 1; ⑤ Occupational Breach of Trust as of Defendant 4, which is the primary facts charged against Defendant 4, also constitutes a case where there is no proof of crime; ④ Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes against Defendant 1, which is a separate offense of embezzlement as to property in relation to a separate offense of embezzlement as to property in relation to Defendant 1’s official business.

[Attachment Offense List omitted]

Judges Lee Chang-chul (Presiding Judge)