2015 Highis449, 2015 Highis982 (Joint), 2015 Highis145 (Joint), 2016 Highis

combined 870(combined)

(a) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes;

(b) Fraud;

(c) A violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes;

(d) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

(e) Embezzlement;

1. A.D. e. A;

2. (c) B

Park Ho-young, Lee Dong-young, Lee Ho-soo, Lee Ho-sung (Court of Justice)

Han Jong-sung, Kim Jong-tae, Kim Jong-tae, Kim Jong-ok, Kim Jong-ok, and Kim Jong-chul (Trial)

Law Firm Man (for Defendant A)

Attorney Lee Young-hoon in charge

Attorney Lee Jong-sung, Counsel for the defendant-appellee

August 25, 2017

Defendant A shall be punished by imprisonment with prison labor for a year and six months, and imprisonment with prison labor for a period of ten months.

However, for Defendant A, for three years from the date this judgment becomes final and conclusive, and for Defendant B, for two years from the date this judgment becomes final and conclusive.

Defendant A's fraud to the Dispute Resolution Co., Ltd. (2015Da449), the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation in Trust) against Victim D (2015Dahap982), the embezzlement to Victim E (2015Dahap1145) and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) against Victim A's A's A's Dispute Resolution Co., That is not guilty (2016Gahap870).

Defendant A’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlements) concerning embezzlement of KRW 530 million in the disposal price of KRW 1720,000,000,000 in the converted shares to the victim G (the charges No. 2015Da449) shall be acquitted.

Criminal facts

【Criminal Power】

On November 12, 2010, Defendant A was sentenced to two years (the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and one year and six months (the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes) and four years (the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes at the Seoul East District Court) and the suspended execution of each of the above punishment, and the above judgment was finalized on July 1, 201. On September 26, 2014, the Seoul High Court sentenced Defendant A to one year and four months of imprisonment and the above judgment was finalized on December 15, 2016.

【Criminal Facts】

"2015, 449"

The status quo of the defendants and the persons involved

Defendant A is a certified public accountant who supports the embezzlement and stock price of the company by acquiring the company's funds by pretending the new business, etc. after acquiring the company's financial status in connection with the company's company's stock listed company based on the company's work experience such as accounting corporation, and disposes of the acquired stocks, thereby acquiring only economic benefits through the target listing company without substantial business management and business activities, and has served as a joint manager of G.

In May 201, Defendant B served as a management manager of G in the middle of the mid-201, and upon Defendant A’s instruction, Defendant B kept, managed, and executed the subscription fund for capital increase, etc. of LA.

H is a major shareholder of the KOSDAQ-listed corporation in Guro-gu Seoul Metropolitan Government, and the I is a representative director of the G in charge of the dispute resolution plan, which is a company that manufactures and sells the car diagnosis machine in Guro-gu, and the I is a professional manager.

1. Defendant A’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement);

On May 5, 2011, the Defendant, with the knowledge that it is necessary to raise a large amount of funds due to the management dispute, obtained by the KJ, etc., which is a Cheongju-si KOSDAQ Listing Co., Ltd., in order to support a fund of KRW 2 billion to acquire the management right of the Cheongju-si, thereby attracting a large amount of investment through G, and securing a favorable share by investing in the F.S., thereby promising to secure the management right of the KF by promising to secure a stable management right of the KF.

On the other hand, if the defendant has a patent technology for wind power generation plants at the same time and has access to the representative, K, directors, etc. of the Dispute Resolution Co., Ltd. which was seeking to attract investment and bypass listing to acquire the management right of the company, he agreed to attract high-amount investment funds through the Dispute Resolution Co., Ltd. and make it possible to undertake the wind power generation business through the Dispute Resolution Co., Ltd., and agreed to receive cooperation such as K, etc. in acquiring the management right of the company.

On May 201, the Defendant knew that a new investment is needed due to the lack of the financial situation of the KFG G, and accessed the said H, etc. with the knowledge that it is necessary to make a new investment. The Defendant made an agreement with H, etc. to attract investment of approximately KRW 2 billion in the KFG G through capital increase and acquisition of convertible bonds. By granting capital increase of KRW 8 billion through the acquisition of new stocks through a preemptive right of KRW 8 billion in the KFG, which was secured by the said H, to attract the investment of KRW 10 billion in total to the KFG by offering new stocks through the acquisition of KRW 8 billion in the KFG by using the preemptive right of KRW 8 billion in the KFG. The vehicle diagnosis business is in charge of the former management, and

On May 16, 2011, according to the above agreement, the Defendant kept the amount of KRW 2 billion, including the capital increase with stock and the amount of convertible bonds secured through F in accordance with the agreement, in order to keep the investment in the Dispute Settlement Bank G via F in accordance with the method of issuing and acquiring convertible bonds (including KRW 99,99,500, KRW 99,500, KRW 99,000, KRW 99,000, and KRW 2 billion,000,000,000,000, which is a victim, in the course of business by having the said B, a management manager of G, who is a management manager of G, separately keep and manage the said investment amount, etc.

On May 21, 201, the Defendant: (a) received KRW 35 million from the aforementioned B around May 21, 201, and used it for private purposes, such as personal expenses; and (b) thereafter, embezzled KRW 770,000,00 in total, including the weekly G subscription money, for private purposes, from July 6, 201, until July 6, 201, as indicated in the remaining order except for Nos. 5, 6, 7, 10, 17, 18, 22, 35, 59 (the sum of KRW 540,762,380 in the attached list of crimes).

2. Defendant B’s each violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

(a) Embezzlements and aids for subscription fund for new shares, etc.;

From May 21, 201 to July 6, 2011, the Defendant, a victim, has kept and managed approximately KRW 2 billion, such as the G capital increase in Korea, in accordance with the direction of the said A, as the management manager of the LAB, which was the victim, from May 21, 201 to July 6, 201. In embezzlement of KRW 770,037,00 in the aggregate of the G capital in the manner described in paragraph (1), as described in paragraph (1), by being aware that the said funds are used regardless of the operation of the LAB or used for the private purpose of A, the Defendant made it easier to commit embezzlement by withdrawing the funds of the victim to A, etc., or by doing harm on A’s behalf.

(b) Assistance in embezzlement with respect to 1720,000 shares converted to G-type savings banks;

On July 6, 2011, the Defendant lent the Fund to the management department of the Fund in charge of the Dispute Resolution Co., Ltd., and then, the Defendant kept the convertible bonds issued by the Fund in the Dispute Resolution Co., Ltd. as collateral in the course of business for the victim by disposing of the convertible stocks at will to the bond company at will, and borrowing KRW 480,000,000,000,000,000 from the settlement of accounts, in lieu of the procedures to assign the said convertible stocks to the bond company as collateral, and by creating the Defendant’s account and check card, etc., which is 530,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000).

Summary of Evidence

1. Partial statement of Defendant A (the 18th trial date);

1. Defendant B’s legal statement (the eighteenth trial date);

1. The entry of each part of the criminal defendant A in the trial records which are 13 and 17 times;

1. The statements made by the witness I and B in the fourth and fifth trial records;

1. Entry of each part of the protocol of interrogation of suspects by the prosecution against Defendant A and each copy of the same protocol (Provided, That the part concerning the H statement in the protocol of interrogation of suspects by the prosecution as of July 31, 2014 against Defendant A shall be excluded);

1. Protocol concerning the examination of the suspect against the defendant B by the prosecution;

1. A copy of each protocol of examination of suspects to the prosecution against M, N, and J (including part of investigation records 1,702 pages, 1,702 pages, and 1);

1. Each prosecutor's protocol of statement against L, I, J, M, andO and a copy thereof;

1. Protocol concerning each police suspect examination;

1. A copy of each of the statements B and I, and P;

1. Indictment (Seoul 201-type 201-type 7, 96357, etc.), G deposit transaction statement, detailed statement of actual use of funds, detailed statement of use of public offering funds, copy of deposit certificate, statement of provision of financial transaction information, deposit sheet, deposit sheet, etc., certificate of deposit transaction performance, check copy, C deposit transaction statement, report on material facts, investigation report, public notice of the issuance of securities, receipt certificate and repayment certificate, copy of investigation report (general public offering, BW issuance-type 2 billion won related to embezzlement), copy of investigation report (the reason for additional account tracking), copy of investigation report (the reason for additional account tracking), copy of stock transaction information in the name of the F-type office, summary of deposit transaction report, deposit certificate, statement provision of financial transaction information, etc., certificate of deposit transaction performance, C deposit transaction agreement, C deposit transaction statement statement, report on stock exchange and investigation report on each of the above 90-type 10 billion won stock exchange report and investigation report on each of the above 190-type 190-10-type public disclosure report and investigation report on each of bank;

1. Previous convictions in the judgment: Criminal records and investigation records of Defendant A (6: 3,172 pages of investigation records), copies of each judgment (not less than 2015 Gohap449) and Supreme Court rulings No. 2014Do13632 (public trial records);

Application of Statutes

1. Article applicable to criminal facts;

A. Defendant A: Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 11304, Feb. 10, 2012; hereinafter the same) and Articles 356 and 355(1) of the Criminal Act

B. Defendant B: Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356, 355(1), and 32(1) of the Criminal Act (including the case of Article 2-A(a) of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes)

1. Aid and mitigation;

Defendant B: Articles 32(2) and 55(1)3 of the Criminal Act

1. Handling concurrent crimes;

Defendant A: The latter part of Article 37 and the first sentence of Article 39(1) of the Criminal Act

[1] As stated in the column of crime at the time of the market, the Defendant, as stated in the judgment below, was sentenced to two years of imprisonment (the crime No. 1 through No. 4 at the market) for the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) at the Seoul Eastern District Court on November 1, 201, and one year and six months of imprisonment (the crime No. 5 at the market), and the above judgment becomes final and conclusive on July 1, 201 (the crime No. 1) and on September 26, 2014, and the crime No. 1 and four years of imprisonment with prison labor for the crime of this case at the same time (the crime No. 20 before the beginning of the judgment) at the Seoul East East District Court on September 1, 201, and the crime No. 1 and the crime No. 2 before the beginning of the judgment on the crime of this case (the crime of this case No. 1 and the crime of this case No. 1 and the crime of this case No. 2 before the beginning of this case are deemed to be definite. 71). . . .

1. Aggravation for concurrent crimes;

Defendant B: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act [Aggravated Punishment, etc. of Specific Economic Crimes Act (Embezzlement) [Aggravated Punishment, etc. of Specific Economic Crimes (ggravated Punishment, etc. of Specific Economic Crimes Act No. 2)]

1. Discretionary mitigation;

Defendants: Articles 53 and 55(1)3 of the Criminal Act (see, e.g., Articles 55(1)3 of the Criminal Act)

1. Suspension of execution;

Defendants: Article 62(1) of the Criminal Act (The following sentencing grounds have been repeatedly taken into account):

Judgment on the assertion of Defendant A and Defense Counsel

1. As to the money paid to the employees of the Defendant, for the purposes of expenses, progress expenses, vehicle siren expenses, etc. (attached Form 8, 12 through 15, 23 through 28, 34, 37, 38, 42, 43, 44, 48, 54, 57, 57, 60 in total, 57,00 won)

A. Summary of the assertion

According to the agreement on joint management between the defendant and H (hereinafter referred to as "G") entered into with the defendant as stated in paragraph (1) of the criminal facts, the department of new business [the wind power generation business operated by the Dispute Resolution Co., Ltd. (hereinafter referred to as "C")] was established in G by the agreement on joint management (hereinafter referred to as "joint management agreement of this case"), and the defendant was individually engaged in the business for G when he works for the above department in a normal manner at work. Since each part of the funds is fairly disbursed to the defendant's employees as expenses incurred in the performance of the above business, vehicle rental expenses, etc., it cannot be said that the defendant had the intent of embezzlement and intent of unlawful acquisition of each of the above funds.

B. Relevant legal principles

In the crime of embezzlement, the intent of unlawful acquisition refers to the intent of a person who keeps another’s property to dispose of it by himself/herself without authority contrary to the purport of entrustment. As such, in cases where a person who keeps the company’s property disposes of the company’s property for the purpose of promoting his/her own interest or a third party’s interest, not for his/her own interest, barring special circumstances, the intent of unlawful acquisition cannot be recognized unless there are special circumstances. However, it is reasonable to view that the liability for the crime of embezzlement should not be exempted against the company in cases where it was made for the benefit of the company or for another purpose, rather than for promoting the company’s interest (see, e.g., Supreme Court Decisions 2009Do495, Apr. 23, 2009; 2003Do5519, May 26, 2005).

C. Determination

According to the above evidence, the Defendant entered into the instant joint management agreement with G around May 20, 201 on the grounds of the facts constituting the crime Paragraph (1) and around May 20, 201, with G’s existing management (large shareholder) and determined that the Defendant will take charge of the Defendant by acquiring wind power generation projects carried out by G after acquiring the joint management right of G. ② The existing management, including H, established a new business division in G immediately after the instant joint management agreement, and provided an office. ③ At that time, the G board of directors recommended by the Defendant was appointed as a management manager of G; ④ In accordance with the instant joint management agreement, the Defendant’s employees, who were in charge of G, as a new business assistant, may be recognized.

However, in light of the above facts and circumstances revealed by the aforementioned evidence, it is reasonable to view that each part of the money paid to Defendant’s employees under the name of the remaining expenses, progress expenses, vehicle sirens expenses, etc. excluding the portion paid as salary (attached Table 7, 18, 59) out of the amount paid to Defendant’s employees (attached Table 7, 18, 59) is actually paid for the personal interest of the Defendant who intends to acquire management right of G, which is actually disbursed for the personal interest of the Defendant who intends to acquire management right of G, and is disbursed for the purpose unrelated to the interests of G company. Therefore, the Defendant’s intent of embezzlement and the intent of unlawful acquisition of each of the above money can be

① Defendant’s employees did not have almost few duties related to the operation of G at the time of the instant case, and most of the Defendant appears to have performed duties necessary to acquire management rights of G for personal interests.

C) At the time of the prosecution’s joint management agreement in this case, the Defendant’s employees stated to the effect that, according to the joint management agreement in this case, the Defendant had engaged in the duties necessary for acquiring G’s management rights (the duties related to the recovery of preemptive rights equivalent to KRW 8 billion held by H), and that there was no affair related to the operation of G except the aforementioned duties or no cost required therefor (as for the investigation records in the case No. 2015 Gohap449, July 7, 2015).

In the prosecutorial office of Mado, one of the Defendant’s employees, there was no specific date in fact, and the part of G operation was entirely entrusted by the I representative, and us stated to the effect that it was not related to G at all in the situation where the acquisition was not made because the Defendant was willing to work together with G, and that it was impossible to do so (3,561-3,562 pages of the investigation record).

The defendant also stated in the prosecution that B, V, and M engaged in the business related to the defendant's acquisition of management rights, and that he focused mainly on recovering the preemptive rights equivalent to eight billion won held by H, and that W was a person who imports coal-related in his own form, and that C's new business was prepared for any case in which C's new business did not take any effect (the above investigation record 7 rights 3,651, 3,652 pages).

The purpose of business related to the collection of the Defendant’s preemptive right is to secure the management right for the Defendant’s individual G, and it is difficult to view it as business for G company.

A director of C with technology necessary for wind power generation projects, in which G was seeking to operate a new project according to the instant joint management agreement, who appears to have been performing part of the business related to the said new project only at the time (6°2,749, 2,750 pages, 7° 3,651 pages of the investigation record). There is no fact that he was receiving progress costs or expenses separately except the amount paid as benefits).

③ At the time, G’s financial situation was extremely deteriorated, such as the overdue payment of benefits to the existing employees of G and the seizure of company’s building deposits. Nevertheless, the amount of benefits to the Defendant’s employees appears to have been set at a higher amount from the level of KRW 5 million per month according to the Defendant’s unilateral order (as seen earlier, the investigation record Nos. 7, 3449, 3450), and as seen earlier, it is difficult to recognize that the Defendant’s employees received money from time to time in the name of expenses for proceeding, expenses, and entertainment expenses (at least KRW 100,000,000,000,000) apart from the above amount under the pretext of the said benefits, even though they had never performed the business for G.

④ In addition, the Defendant’s employees leased high-priced vehicles, such as V, M, W, Ecoo, and Cubas (the monthly rent of KRW 200 to KRW 3 million) under the personal name, and the lease fee was disbursed as G funds. Even if W had been used prior to entering the G, up to KRW 2 million for the overdue rent of the vehicle of the body-ray that was used before W was in arrears (attached Form No. 15 No. 5, the investigation record No. 7, 3444).

⑤ As the preemptive right equivalent to KRW 8 billion owned by H, which is the core premise of the instant joint management agreement, was provided to a third party as a personal debt security, the common management of G was substantially difficult due to the instant joint management agreement. Even if the instant joint management agreement aims at the joint management of G between the Defendant and H, it is merely that the Defendant may spend the company’s funds in the position of joint management manager on the premise that the Defendant would normally acquire the right of management of G in accordance with the said agreement. Therefore, in such a situation, it is difficult to recognize the Defendant’s employees, separately from the Defendant’s payment, as expenses incurred in performing the business related to the Defendant’s acquisition of management rights, such as expenses additionally disbursed for the purpose of G.

6) The Defendant and his defense counsel inevitably handled expenses, such as expenses, progress expenses, etc. to the family account according to G’s transition situation. If the Defendant normally takes over the management right, it is argued that there was no intention of unlawful acquisition because it was a plan to settle the above expenses paid to Defendant’s employees in a regular manner and handle accounts. However, as seen earlier, insofar as each of the above funds cannot be deemed as expenses paid for G company, it is difficult to view that the Defendant’s formal accounting process obstructs the recognition of the Defendant’s intent of unlawful acquisition.

2. As to the money paid by the Defendant to recover the preemptive right owned by H (attached Form Nos. 29, 32, 33, 40, 41, 45, 51, 52, 48,290,00 won in total)

A. Summary of the assertion

H had a duty to secure a preemptive right equivalent to eight billion won in accordance with the instant joint management agreement and to enable the Defendant to exercise the right at a general meeting of shareholders. However, at the time, the said preemptive right was provided to the bond company for the personal debt security of H, and thereafter, it was virtually impossible for H to perform the said duty due to seizure from the tax office. Accordingly, the Defendant paid each of the above money to recover the above preemptive right as litigation expenses, entertainment expenses, etc., and the Defendant secured the above preemptive right and thereby enables G to raise funds by exercising the above preemptive right, and thus, it cannot be deemed that the Defendant was a business irrelevant to G in substance. Accordingly, the Defendant did not have any intention to embezzlement or intent to acquire unlawful profits with respect to each of the above money.

B. Determination

In light of the following circumstances revealed by the evidence stated in the above legal principles as seen in Section A-B, the Defendant spent each of the above money with the main purpose of promoting the individual’s interest. Thus, the Defendant’s intent of embezzlement or unlawful acquisition can be recognized. Thus, the above assertion against this is rejected.

① The Defendant entered into a joint management agreement with H, an existing management of G in order to acquire the management right of G. As such, the Defendant’s primary purpose is to recover and exercise the preemptive right equivalent to KRW 8 billion owned by H in accordance with the above agreement is to deem that the Defendant himself/herself intended to acquire personal benefits by acquiring the management right of G.

② There is no evidence that G corporation is not a direct party to the lawsuit, and there is no such legal dispute with G or there was a need to file a lawsuit for the benefit of the company.

G With respect to the expenses separately paid by the Defendant as a result of the violation of the matters stipulated in the joint management agreement in this case by the existing management of H, a party to the agreement, aside from the liability for damages incurred by the Defendant due to nonperformance, G, who is not the party to the agreement, cannot be deemed to bear the liability for damages due to the breach of the agreement.

④ Even if the capital of G increases by securing and exercising the above preemptive right, it is an indirect and incidental effect, and it is difficult to view that G has a direct interest in relation to the subject or exercise right holder of the preemptive right.

3. As to the money claimed to F to have been disbursed as a loan within the scope of security of convertible bonds (as to the sum total of KRW 590,00,00,00,000 in attached Table Nos. 1,5,6,10,17,17,20,20,22, 36, and 56)

A. Summary of the assertion

1) The Defendant, in collusion with J, embezzled KRW 100 million from KRW 400 million (the portion of each money listed in [Attachment Table 5 and 17] that the F borrowed from G as interest, and embezzled KRW 100 million from KRW 400 million, as the bond broker, was sentenced to not guilty and finally affirmed. Therefore, the Defendant’s charge of embezzlement of KRW 400 million and the remainder of KRW 190 million related thereto is related to all the charges of the above final judgment and the res judicata effect of the final judgment is not limited, and thus, the acquittal judgment should be pronounced.

2) The Defendant, while lending a sum of KRW 590 million to F and its management members, secured as security 1.28 million shares of G subscription shares acquired by F from F with investment of KRW 2 billion in G and acquired by F with KRW 1.2 billion shares of G subscription shares, or 1 billion shares of KRW 1.2 billion.

As above, the Defendant, while securing sufficient collateral from F, paid the above KRW 590 million to F as a loan. As such, the Defendant did not have the intent of embezzlement or illegal acquisition, and there was no actual damage caused by G.

B. Determination

1) First, we examine the allegation that the final and conclusive judgment in a prior suit should be acquitted by res judicata.

A) According to the records of the instant case including the indictment (Seoul Central District Court Decision 901No. 2011No. 90127, 96357, etc.), a copy of the ruling of 2011 type No. 90127 (No. 892 of investigation records) and a copy of the ruling of 201 type No. 90127 (No. 2011 type No. 13632, Apr. 27, 2017, the following facts are acknowledged.

① On January 6, 2012, the Defendant was indicted for embezzlement in the course of business as to the suspected facts of 1280,000 shares G with F’s assets and 1.72,000 convertible bonds with F’s assets. On June 1, 2011, the Defendant borrowed KRW 1280,000 from L as collateral and borrowed KRW 300,000,000 to use the F’s operating capital, and the remaining KRW 100,000,000 was embezzled by using the interest payment to the bond company’s interest payment.

On September 10, 2013, the Seoul Central District Court rendered a judgment of innocence (2012 Gohap25-1 (Separation), 201 Gohap1378 (Joint)) on the charges of this portion of the charges, and the judgment of innocence was finalized by the Supreme Court (2014Do13632) on September 12, 2016, following the procedure of appeal and final appeal against the judgment.

B) However, the facts charged in the above final judgment and the facts charged in the instant case are identical in that the date and time of the commission of the crime (on June 1, 201 and May 1, 201) and the victim (F and G) are different, and the social factual relations, which form the basis of the facts charged, are identical in the basic point of view, different from those of the victim (F and G).

Therefore, this part of the defendant's assertion on the premise that res judicata of the final and conclusive judgment extends to the facts charged in this case is rejected.

2) Next, we examine the assertion that there is no intention of embezzlement or illegal acquisition, since this part of the money was paid with a loan while securing adequate collateral from F.

A) According to the above evidence, the following facts are acknowledged.

① As F makes an investment of KRW 2 billion in sequence G through C with the Defendant’s initiative on the grounds of the facts stated in paragraph (1) of the crime, C acquired and held shares of KRW 638,977,500 (hereinafter referred to as “instant shares”) with G shares of KRW 1280,000 (hereinafter referred to as “instant shares”) and convertible bonds with KRW 1720,000,000 (hereinafter referred to as “instant convertible bonds” in this paragraph) equivalent to KRW 1,720,000 of G shares of KRW 1 billion.7)

② However, as the financial situation becomes extreme, such as seizure of major sales bonds, F entered into an early repayment agreement with C to obtain redemption of KRW 2 billion of convertible bonds paid by F to C in the said investment process, with a view to financing the instant stocks and convertible bonds owned by C, and accordingly, F received and possessed the instant stocks and convertible bonds in lieu of receiving redemption of KRW 1.63 billion out of the said convertible bonds amount of KRW 2 billion from C at the end of May 2011.

③ On June 1, 2011, the Defendant received the instant shares from F management upon the request of FJ, and lent KRW 300 million (attached Form No. 17) to F. Around that time, upon the said J’s request, the Defendant additionally granted KRW 150 million (attached Form No. 5 and 6) to J.

④ In addition, on May 201, the Defendant received 10 million won (attached Table Nos. 10) from the police officer on May 201, 201, and 5 million won (attached Table No. 22) from the first patrol officer on June 201, 201, respectively, under the pretext that the Defendant would pay F.

⑤ On June 5, 2011, at the request of the J, the Defendant returned the instant shares and received the instant convertible bonds from the J as a substitute security.

B) In light of the background, name, and timing of withdrawal of each of the above facts revealed in the above facts, it is difficult to avoid the possibility that the sum of the amounts listed in the [Attachment 5, 6, 10, 17, and 22 [Attachment 5] 5,500,000 won is a loan to F within the scope of the purpose of securing the stocks or convertible bonds of this case (Therefore, as seen in the judgment No. 1-b. 2 of the non-guilty part 1-2 of the judgment below (No. 30-31 of the judgment), the defendant was acquitted on the grounds that it is difficult to recognize the defendant's intent of embezzlement and illegal acquisition.

C) However, comprehensively taking account of the following facts and circumstances revealed by the above facts and each of the above evidence, it is difficult to view that G was paid to F as a loan within the scope of the purpose of securing the stocks or convertible bonds of this case. Rather, as it was used for a purpose unrelated to G’s interest, the Defendant’s intent of embezzlement or unlawful acquisition of each of the above amounts can be inferred. Accordingly, the part against this Opinion is rejected.

① The Defendant appears to have used G funds for personal purposes, such as expenses to achieve the purpose of securing the management right at the time of the instant case. According to the Defendant’s request for withdrawal of G funds each time. According to the Defendant’s statement at the time, each part of the funds was received under the name of his/her own expense or proceeding expenses, clearly distinguishable from the funds that the Defendant would have incurred when paying to F. The Defendant would have received under the pretext of his/her own expense or proceeding expenses.

② In particular, the amount set forth in paragraph (1) of the attached Table Nos. 1 appears to be between the Defendant and the time when the joint management agreement of the instant case was concluded. In light of the time and interval between the withdrawal time and the time when the F acquired the instant stocks and convertible bonds offered as collateral for bonds to G by obtaining a refund from C, it is difficult to view that the amount paid as a loan to F within the scope of the secured purpose of the said stocks and convertible bonds is difficult.

③ On October 13, 2011, the Defendant, at the request of J on June 1, 201, lent KRW 400 million of G shares as security at KRW 600 million, and G Fund KRW 400 million. By the end of the same month, the Defendant stated to the effect that the instant convertible bonds received replacement as security were disposed of after converting the shares (No. 400 million of the investigation record No. 1,819-1,821 of the above investigation record). The Defendant confirmed the detailed statement of spending B’s actual use of the funds prepared during the subsequent investigation process, by June 1, 201, up to KRW 300,00 of the total amount of KRW 450 million [30,000 or KRW 480,000 of the total amount of KRW 50,000,000, KRW 37030,000 of the personal records], but the Defendant stated to the effect that it was 300,3000,000.

(4) The Defendant asserts to the effect that this part of the money is the money that the Defendant lent to a person who is the F management, by paying a debt on behalf of his creditor at the request of the JJ, the F management.

① However, as in the initial statement of the Defendant, the J consistently states that there was no money separately received by F in addition to the loan amount of KRW 400 million from the Defendant. On June 1, 2011, the Defendant’s argument that the monetary loan contract for consumption (the first investigation record 1:508,509 pages) was written in the column of the lender, and all other loan holders, maturity, interest rates, etc. are in public space. Thus, it is difficult to view F as a disposal document separate from the monetary loan contract for consumption (the first investigation record 504,505 pages) for F written on the same day, and even if the form of the above contract was written, it is difficult to confirm that the money was not additionally lent to J within the limit of the value of the instant stocks or convertible bonds offered as collateral to F, as otherwise alleged by the Defendant, and it is difficult to confirm that each of the above parts of the Defendant’s statement was made differently from the Defendant’s assertion.

4. As to the amount claimed to have been paid by G in the capacity of creditor against F by a prior agreement between three parties (attached Form Nos. 9, 11, 11, 16, 19, 39, 58, 62, 63, and 66 in total, 379,70,000)

A. Summary of the assertion

According to the instant joint management agreement, the Defendant disbursed a total of KRW 179,700,000 (attached Table 9,11,16,19,39,58,62, and63) in order to prepare for the increase in capital for the exercise of preemptive rights equivalent to KRW 8 billion held by H (attached Table 9, 11, 16, 19, 39, 58, 62, and 63), and disbursed KRW 200,000 (attached Table 66) out of the additional fund for the purchase of stocks to secure the preferred share.

However, at the time, the Defendant had a claim of KRW 50 million against F with the F management prior to the execution of each of the above money, and as seen in paragraph (3) of the aforementioned part of the judgment on the Defendant A and the defense counsel’s assertion with the F management prior to the execution of each of the above money, the Defendant agreed to use the expenses necessary for securing the management right of G first and then F in the way of offsetting the Defendant’s claim against F instead of claiming the refund of the remaining collateral value.

According to the above agreement, the Defendant directly received and used the total sum of KRW 379,200,000 from G within the remaining collateral value of the above convertible bonds, and thus, the Defendant did not intend to obtain the above 379,200,000 or to obtain the above 379,200,000.

B. Relevant legal principles

The crime of embezzlement is a dangerous crime established even if the legal interest of the principal right, such as the ownership of another person’s property, is protected, and if there is a risk of infringement upon the principal right, it is established even if the intent of unlawful acquisition of the property has not occurred (see, e.g., Supreme Court Decision 2002Do2219, Nov. 13, 2002). In addition, the crime of embezzlement is established when the intent of unlawful acquisition of the property was explicitly expressed externally. Thus, even if a person who committed the crime of embezzlement has a separate monetary claim against the owner of the property, such circumstance alone may not affect the crime of occupational embezzlement (see, e.g., Supreme Court Decisions 201Do7566, Mar. 13, 2014; 2004Do7585, Jun. 16, 2006). Such legal principle also applies to cases where a person who committed the crime of embezzlement has the owner’s pecuniary claim against the owner and the creditor thereof.

C. According to the judgment of the court below and a copy of each check (the above investigation record No. 769 pages 769) it is acknowledged that the Defendant had held the claim amounting to KRW 550 million against F at the time, as alleged.

However, the J stated in the Prosecutor’s Office that, as alleged above, the Defendant used G funds first, and that there was no agreement on the settlement with F in the end, and there was no other evidence to acknowledge that there was an agreement between G, F, and the Defendant prior to the enforcement of each of the funds as alleged in the Defendant’s assertion (3,482-3,484 pages of the above investigation record). Thus, the amount used for G cannot be recognized as the amount used for G, as alleged in the Defendant’s assertion.

Therefore, this part of the assertion, which is premised on the existence of an agreement as alleged by the defendant, is rejected.

5. As to the money paid to the Defendant as the expenses for expenses, proceeding, entertainment, and vehicle maintenance (attached Form Nos. 2, 3, 4, 21, 30, 31, 46, 49, 50, 55, 61, 64, 65 in total 154,87,009)

A. Summary of the assertion

Each of the above amounts was paid to the defendant while the defendant involved in the management of G and worked as an executive officer of the new business division for the payment, expenses related to the business, entertainment expenses, or expenses (attached Table 21, 30, 31, 46, 49, 50, 55, 64, 65 in total 49,80,000), or was paid as security deposit, insurance premium, lease fee, etc. (attached Table 2, 3, 4, 61 in total 105,00,000) by the defendant when he leases the BM7 business vehicle necessary to perform the business for G (attached Table 2, 3, 4, 61 in the list of crimes).

In addition, the above vehicle was leased in the name of the individual in order to avoid seizure problems due to the aggravation of the financial situation of G, and the defendant plans to transfer the management right of G to G corporation when the process of acquiring the management right of G is completed normally, so there is no intention of embezzlement or illegal acquisition.

B. Determination

In light of the following facts and circumstances, the Defendant’s intent of embezzlement and unlawful acquisition of each of the above money can be inferred, and the above assertion against this is rejected. In light of the aforementioned facts and circumstances, the Defendant’s intent of embezzlement and unlawful acquisition of each of the above money can be inferred.

① After the agreement on joint management of the instant case, the Defendant only performed an act to acquire management rights of G, such as the act necessary to recover preemptive rights equivalent to eight billion won H’s possession after the agreement on joint management of the instant case. It is difficult to view such Defendant’s act as an act to operate G.

② Considering that G’s company size and the current financial situation significantly deteriorated, such as the delinquency in payment of wages to the existing employees and the seizure of company’s building deposit, it is difficult to recognize that the Defendant, who was not actually engaged in the business of operating G, frequently brought money from KRW 2.5 million to KRW 10 million on the pretext of personal expenses, entertainment expenses, etc., and it is difficult to recognize that the Defendant used the said company for the said company. It is also difficult to recognize the need to operate an expensive external vehicle with a rent of KRW 180 million to KRW 6.2 million on the monthly rent, and there is no fact that he/she obtained the consent of the existing management of G.

③ The Defendant appears to have maintained the lease agreement with respect to the said ditches for a certain period even after the common management agreement of the instant case was de facto nonexistent (37 pages of the witness B’s testimony in the investigation record No. 3,439, 3,440, 3,574, and the fifth trial record).

④ Even after the termination of the lease contract with respect to the foregoing vehicle, there is no data to verify that KRW 120 million returned to the account of G corporation or that it was used for the interest of G company.

⑤ As long as the Defendant used a vehicle with the company’s funds for the personal interest, it is difficult to view that the circumstance of the intention to transfer the above lease status to G ex post would have an impact on the recognition of the intention to acquire unlawful acquisition.

Reasons for sentencing

Defendant

(a) The scope of punishment by law;

Imprisonment with prison labor for not less than one year and not more than 6 months but not more than 15 years;

(b) Non-application of the sentencing criteria;

The sentencing guidelines do not apply to each crime of the judgment that has become final and conclusive, as the latter concurrent crimes of Article 37 of the Criminal Act are related to each of the crimes of violation of the Act on the Aggravated Punishment, etc.

[However, the crime in the sentencing guidelines falls under the mitigation area (the case where punishment is not imposed or a significant damage is recovered) of the category 3 (not less than 500 million won but less than 5 billion won) of embezzlement and breach of trust, and the scope of the recommendation is 1 year and 6 months to 3 years.

(c) Determination of sentence: Imprisonment with prison labor for one year and six months, and three years of suspended sentence; and

The crime of this case is an embezzlement of company funds for personal interests in the process of acquiring the right of management of the victim without equity capital. Considering that the amount of damage is KRW 770 million,000,000, and that the embezzlement of this case, such as this case, may cause indirect damage to the victim company as well as its creditors and minority shareholders, the crime of this case is heavy. Furthermore, the defendant committed the crime of this case again in the process of being tried through a trial due to the same criminal act, and as a certified public accountant, committed the crime of this case repeatedly by using the experience and knowledge acquired while engaging in the acquisition and merger of the corporation as a certified public accountant, and there is a high possibility of criticism. If the defendant denies the crime from the investigation process, if it is found that there was any fact different from his defense, it is consistent with the attitude of avoiding his liability.

However, it is difficult to view that the Defendant’s confessions and reflects the Defendant’s partial crime; the funds embezzled by the Defendant are not the funds of the existing victim company; the funds of the Defendant separately invested to acquire management rights in accordance with the joint management agreement of the instant case; not the funds of the victim company; the actual damage suffered by the victim company due to the instant crime is difficult; part of the investment funds the Defendant has been used as the fund for the management of the company, such as the company’s payment of employee, etc.; the Defendant appears to have been partly resolved; the Defendant’s joint management agreement of the instant case appears to have been resolved as a result of the agreement; the Defendant’s crime of the instant case was abolished immediately after the listing of the instant case by the victim company, but it is difficult to deem that the direct cause of the crime of the instant case occurred; the Defendant’s remaining principal obligation of the convertible bonds that the victim company owes to F with respect to the Defendant is deemed to have recovered considerable damage in the manner of repaying the Defendant’s bonds on behalf of the Defendant; and the amount remaining after payment was made efforts to recover damage, etc.

In addition, the crime of this case, which is judged as concurrent crimes under the latter part of Article 37 of the Criminal Act, should consider equity in the case of being tried together with the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), and the defendant's age, character and conduct, environment, motive and circumstance of the crime of this case, motive and consequence of the crime of this case, and all of the sentencing conditions specified in the argument of this case, such as circumstances after

2. Defendant B

(a) The scope of punishment by law;

Imprisonment with prison labor for not less than 9 months and not more than 11 months;

(b) Non-application of the sentencing criteria;

Since each crime in the judgment is an aiding and abetting offender, the sentencing criteria shall not apply.

(b) Determination of sentence: Imprisonment with prison labor for not more than ten months and two years of suspended sentence; and

The crime of aiding and abetting A’s act of aiding and abetting a victim’s management manager, etc., was in a position to manage the property, such as the company’s funds, etc., which the Defendant kept in his custody, for the benefit of the above company, but caused A to use the company’s assets as a result for a purpose unrelated to the operation of the above company. As such, the crime of aiding and abetting A’s act of aiding and abetting a victim’s funds is easy to be used for a purpose unrelated to the operation

However, the Defendant is the primary offender, and the Defendant is a passively committing the instant aiding and abetting in compliance with A’s unilateral instruction, and the Defendant’s profits from the instant aiding and abetting, the Defendant’s profits less than the victim’s actual losses, the Defendant’s entire confessions from an investigative agency to this court, and reflects in depth, etc., shall be considered as the circumstances favorable to the Defendant.

In addition, the punishment to be sentenced to a principal offender shall be determined in the same manner as the order, comprehensively taking into account the equity of the defendant, age, character and conduct, environment, motive and background of the crime in this case, the means and consequence of the crime in this case, and all the sentencing conditions shown in the arguments in this case

The acquittal portion

1. Of the facts charged in 2015 High 449, the part concerning the embezzlement of Defendant A’s victim A’s embezzlement, including capital increase with consideration, etc., for the company in charge of the settlement of accounts, as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and Defendant B’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) concerning the embezzlement of capital increase with consideration, etc., to Defendant B, including capital increase in return for the settlement of accounts, among the following: 5, 6, 7, 10, 17, 18, 22, 35, 59 in total;

A. Summary of the facts charged

1) Defendant A embezzled approximately KRW 2 billion, including capital increase for new shares, of G (hereinafter referred to as “G”) for the purpose of G, using 5, 6, 7, 10, 17, 18, 22, 35, and 59 in total for private purposes, as described in the attached Table of Crimes (hereinafter referred to as “Crimes”) in the course of business management for G.

2) While Defendant B, as a manager of G, kept approximately KRW 2 billion, such as the above capital increase with capital increase, as in the crime of the crime, he embezzled KRW 540,762,380 of the G company’s funds as in paragraph (1) as in paragraph (1) of the same Article, he was well aware that the said funds were used regardless of the operation of G or used for the private purpose of A, thereby facilitating the crime of embezzlement by withdrawing G funds to A, etc. according to A’s instruction or request, with the knowledge that they were used regardless of its operation or used for the private purpose.

B. Determination

1) As to the money paid as salary to the employees of Defendant A (attached Form Nos. 7, 18, 59 totaling 69,60,000,00) Defendant A established a new business department in G, including H, according to the agreement on the joint management of G concluded between Defendant A and his defense counsel in the same manner as the facts constituting a crime (hereinafter “instant joint management agreement”), and the fact that Defendant A issued a new business schedule to Defendant A as an employee of the new business department (hereinafter “Defendant’s employees”) was as seen in Section 1(c) of the aforementioned part of the determination of Defendant A and his defense counsel.

As above, as long as the employees of the defendant side were issued a regular appointment as G employee, G bears the legal obligation to pay the benefits to the employees of the defendant side according to the employment relationship. Thus, even if the above employees were actually engaged in only the business for the defendant A or unilaterally determined the amount of the benefits, it is difficult to conclude that this part of the amount paid as the benefits to the above employees was embezzled by the defendant A, and there is no other evidence to prove otherwise.

2) As to the money paid as the refund of bonds to F (attached Form Nos. 5, 6, 10, 17, and 22 plus KRW 465,00,000)

① At the request of the J on June 1, 201, Defendant A was provided with 12.8 million won of G shares held by F as collateral, and leased 300 million won (attached Table 17) to F. A around that time, at the above J’s request, again delivered KRW 150 million (attached Table 50 million No. 6) to J. ② Defendant A received the money of KRW 10 million (attached Table 10 million No. 10 million of crime) from the lower police officer on May 201, 201 (attached Table 10), KRW 50,00 won of the above convertible bonds (attached Table 22) from the first police officer on June 1, 201, and KRW 150,000 of the above convertible bonds (attached Table 170,000 won of crime list No. 1650,000 of the above list of crimes), and Defendant A received the money from each of the above Defendant’s defense counsel on June 28, 20111.

However, the above fact that Defendant A lent KRW 465 million to F is insufficient to recognize that Defendant A had the intent to embezzled the above G funds. The above fact that Defendant A provided more than KRW 1,280,000 of G stocks exceeding the loan amount as at the time of the above loan and replaced the bonds with convertible bonds that can be mainly converted into more than KRW 1,720,000 of G stocks with KRW 1,000,000 and KRW 1720,000,000, the evidence submitted by the Prosecutor alone is insufficient to recognize that Defendant A had the intent to arbitrarily dispose of the said funds as his own possession, and there is no other evidence to acknowledge this otherwise.

3) According to the detailed statement of actual use of funds, investigation report (report on the check tracking amounting to KRW 99,99,500 and KRW 99,00,000 issued from the G Q Bank account on May 17, 201), one copy of the check tracking result, and one copy of each statement of financial transaction information, etc. of Q Bank (see, e.g., Supreme Court Decision 2015Da449, Jun. 16, 201) with respect to the registration expenses of convertible bonds and money paid for tax purposes (attached Form 35, 6,162,380, etc.) and the fact that Defendant A disbursed KRW 6,162,380, as stated in attached Table 35, under the pretext of registration expenses and taxes of convertible bonds issued by G around June 16, 201.

However, in principle, the expenses required for the registration of convertible bonds issued by a company shall be deemed to be the obligation to pay by the relevant company (Article 514-2(1) of the Commercial Act). Thus, this part of the amount is deemed to be the expense to be paid by G. In addition, even if the above act of registering convertible bonds was conducted for the purpose of converting the above convertible bonds into stocks and providing them as a security for an individual’s obligation as stated in the facts charged in the judgment below, the crime of embezzlement against the convertible stocks is established, apart from the fact that the crime of embezzlement is established.

It is difficult to recognize high recognition.

Ultimately, the evidence submitted by the prosecutor alone is difficult to recognize Defendant A as having expressed an intent to obtain unlawful acquisition of the above money, and there is no other evidence to acknowledge it.

C. Sub-committee

Therefore, this part of the facts charged against Defendant A constitutes a case where there is no proof of crime, and the crime of aiding and abetting Defendant B, which is premised on the establishment of the crime by Defendant A, also constitutes a case where there is no proof of crime. Thus, each part of the facts charged should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act. However, as long as Defendant A, which is related to each of such a comprehensive crimes, is found guilty of the crime of aiding and abetting the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and Article 2-A of the Decision on the A of the Specific Economic Crimes (Embezzlement)

2. The fraud in relation to Defendant A’s damage-generating bank C (the facts charged against Defendant A’s damage-generating bank)

A. Facts charged

K and L are executive officers of the Guro-gu Seoul Metropolitan Government Emergency Bank Co., Ltd. (hereinafter referred to as the "C"), who have the core patent technology related to the production of propellers necessary for the development of small and medium wind power generation plants.

On May 16, 201, the Defendant applied for the capital increase of KRW 1 billion to G on or around May 16, 201, but distributed approximately KRW 639 million shares. On or around May 17, 201, approximately KRW 361 million of the remainder of the funds was returned to C, the Defendant was able to acquire and use the relevant funds by fraud.

The Defendant, around May 17, 201, had a place where KRW 361 million was used by the Defendant, and at the same time, demanded money from the victim C, and the representative K et al. refused the Defendant’s demand, thereby allowing C officer L et al. to acquire the right to manage the G in a normal way to secure additional “G shares,” and allowing C et al. to make a bypass listing of the funds, and allowing C et al. to promptly return the money to F. by finding out the money on the face, and allowing C et al. to deceiving K et al. at the above end.

However, even if the defendant received the above money, he was merely intended to use it for private purposes, and did not have to purchase G shares promptly to secure management rights, and there was no intention to return it to F normally.

Ultimately, as above, the Defendant deceivings C, which is the victim, and acquired the victim’s 260 million won out of the above 361 million won owned by the victim and acquired the victim’s 260 million won by deception.

B. Summary of the defendant and his defense counsel's assertion

Although it is recognized that the Defendant received KRW 260 million from C and used it, the Defendant requested this loan, as agreed at the time, and the Defendant paid the same amount directly to F due to the use of the said money, as long as it was not long as it was committed. Therefore, it cannot be deemed that no damage has occurred in C, and that there was an intention to acquire money by the Defendant.

(c) Fact of recognition;

The following facts may be acknowledged by comprehensively taking account of the evidence No. 1-2, etc. submitted by the Defendant A and the defense counsel’s assertion as set forth in Article 3-2(b)(2)(A)(18-19(the text of the judgment) or the aforementioned evidence.

1) According to the circumstances stated in paragraph (1) of the crime, F decided to invest KRW 2 billion in G via C in sequence according to the Defendant’s proposal, and recruited KRW 2 billion under the Defendant’s initiative.

2) Around May 16, 2011, F entered into an underwriting contract with C, and as mentioned above, F subscribed to convertible bonds worth KRW 2 billion in total face value of the face value issued by C with the subscription amount (hereinafter in this paragraph referred to as “first convertible bonds”).

3) Around that time, C participated in a public offering offered by G as KRW 2 billion and allocated more than KRW 638,977,500 G shares in an amount equivalent to KRW 1,280,000,000, and acquired convertible bonds equivalent to KRW 1,000,000,000 in total face value issued by G (hereinafter in this paragraph “No. 2 convertible bonds”).

4) C took part in G’s capital increase with the initial KRW 1 billion, but as a result, upon the participation of the general subscribers, the amount of KRW 361 million out of the outstanding shares was returned to C.

5) C entered into an agreement with F to provide F with an early repayment of KRW 2 billion for the first convertible bonds with F at F’s request, and accordingly returned KRW 100 million out of the above KRW 361 million to F on May 17, 201.

6) As indicated in this part of the facts charged on the same day, the Defendant: L/Z, a director of C, is to return KRW 260 million, out of the amount to be repaid to F in accordance with the aforementioned early redemption agreement, to F in a normal way after having used the additional purchase price of shares in G in G; and thereby, to F in a normal way, it was delivered from C in a check (the KRW 260 million worth).

7) Around that time, the Defendant appears to have used the foregoing KRW 200 million as lease deposit, personal debt repayment, etc. of the vehicle to be operated by himself. 14)

8) Meanwhile, around May 201, C issued 1.280,000 shares of the G and 2 convertible bonds in lieu of repayment of KRW 1.63 billion out of the remaining 1 convertible bonds of the end of May 2011.

9) On August 26, 2011, the Defendant remitted KRW 270 million to the F account under C’s name.

10) However, inasmuch as F did not receive repayment of KRW 260,000,000 remaining convertible bonds, and C demanded the return of KRW 1 convertible bonds with the face value of KRW 1,000,000,000,000,000 to C to the effect that it cannot be deemed that the face value of the second convertible bonds was repaid, C filed a lawsuit for the confirmation of the existence of the obligation with the Seoul Central District Court 2012Gahap469 (hereinafter referred to as “F”) against F in early 2012, and C filed a counterclaim for the said lawsuit against C to the effect that the aforementioned court 2012Gahap4741 (hereinafter referred to as “C”) and KRW 115,000,000,000,000,000,000,000,000,000,000,000,000,000 won, which were 301,0163).

D. Determination

In light of the fact that the Defendant lent KRW 260 million from C as above and used it for private purposes, such as vehicle lease deposit or personal debt repayment, etc. around that time, the Defendant did not have an intention to use it as additional fund for purchase of stocks in order to secure the right to manage G management, which was first notified at the time of borrowing the said money from C.

① However, according to the early repayment agreement with F at the time, C was the most important situation that the first convertible bonds, including the above KRW 260 million, were repaid to F normally, and ② The representative director K, etc. of C continued to verify whether the Defendant lent the above KRW 260 million to F actually returned to F. On the other hand, it appears that there was no particular confirmation as to the use of the bonds (the above investigation record No. 6309, 3010 pages). In light of the fact that C believed that the Defendant believed the use of the money as the end and lent the above KRW 260 million, rather than lending the above KRW 260,000,000,000,000 to F, it seems that C lent it to the Defendant, instead of the above KRW 260,000,000,000,000,000 to C.

However, according to the above facts, it can be known that C’s obligation to repay C’s 1 convertible bonds with KRW 260 million to F has been lawfully extinguished by the Defendant’s repayment act. In light of such circumstances, it is difficult to conclude that the evidence submitted by the prosecutor alone intended to acquire the above money from C from the original point of view, and there is no other evidence to acknowledge this.

E. Sub-committee

Thus, this part of the facts charged constitutes a case where there is no proof of a crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

3. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) with respect to Defendant A's holding a victim's interest in the case of violation of the victim's profit-making agreement.

A. Summary of the facts charged

From October 26, 2007 to the representative director of the Dispute Resolution Co., Ltd. (hereinafter referred to as the "AC"), and from January 17, 2008 to the director of the Dispute Resolution Co., Ltd. (hereinafter referred to as the "D"), the defendant works for the director of the Dispute Resolution Co., Ltd. (hereinafter referred to as the "AC") which is a subsidiary of AC, and has overall control over all related companies, including the above companies, such as business, finance, personnel

On August 12, 2008, the Defendant decided to transfer AC common shares of KRW 2,00,000 to AD with a fixed price of KRW 16.5 billion, and decided to receive KRW 7.8 billion on the date of the contract, intermediate payment of KRW 1.7 billion until August 19, 2008, and KRW 7 billion before the temporary general meeting of shareholders of AC scheduled as of October 2008.

The Defendant used the amount equivalent to KRW 4.5 billion out of down payment 7.8 billion to repay the Defendant’s debt owed to D in relation to the company’s funds embezzled by the Defendant from AD, or agreed to have AD succeed to the Defendant’s debt. Accordingly, around August 13, 2008, the Defendant received KRW 4.5 billion from AD and deposited it into D account and appropriated it for the Defendant’s repayment of the embezzlement fund.

The defendant as a director of D, the representative director of parent company AC, who is responsible for the duty of care and the duty of loyalty under the Civil Act and the Commercial Act, and the performance of the business of the company such as disposal and transfer of important assets of the company shall be conducted by a resolution of the board of directors, and each director may request the convocation of the board of directors in case where the person who has the authority to convene the board of directors does not convene the board of directors in the performance of transactions that can be seen as the target thereof. Therefore,

Each director shall do his best to recover the company fund so long as he has become aware of the embezzlement of the company fund of a major shareholder. As such, in the event that a major shareholder intends to sell a management right to a third party and repay part of the embezzlement fund into the company’s account as a repayment of the company’s debt, he shall make every effort to prevent the outflow of the fund. In addition, if a major shareholder who embezzled the company fund is exempted from his liability in the manner that he bears to a third party who wishes to obtain a new repayment liability for the previous embezzlement fund, each director must check closely whether it is more easy to recover the company’s embezzlement fund through such transaction, or not to lower the possibility of recovery, and examine whether to allow such transaction. In particular, in the event of an exempted assumption of liability to exempt a director who is a major shareholder from liability for embezzlement, it may be viewed as a self-transaction between a director and a company, and as such, the board of directors may confirm in advance the important facts related to the relevant transaction in accordance with the provisions of the Commercial Act and approve it by more than 2/300,00.

Nevertheless, on August 13, 2008, the Defendant deposited KRW 4.5 billion received as part of the down payment from AE in the account in the name of the Defendant’s previous embezzlement fund. In such a case, a director holding the responsibility and authority for the disposal, transfer, etc. of important assets for the victim and the possibility of withdrawal, etc. of the funds deposited into the company account in the board of directors by reporting to the board of directors and closely examining the appropriateness and possibility of withdrawal of the funds and taking measures to preserve the company’s assets through a resolution or approval of the board of directors, even though he had a duty to take such measures so that the company’s assets can be preserved by examining the appropriateness and possibility of withdrawal, and immediately after he neglected to deposit KRW 4.5 billion, the Defendant’s embezzlement fund again transferred from AD account to be treated as repaid and the Defendant’s embezzlement fund to be returned to AD at the same time.

After that, the defendant, who succeeded to the status of the transferee of the management right from AD and AD, failed to pay the above 4.5 billion won to the third party, thereby making it impossible for the victim to recover the above funds.

Accordingly, the defendant violated his duty and took property benefits that are exempt from the debt amounting to KRW 4.5 billion, and suffered damages equivalent to the same amount from the victim.

B. Determination

1) The premise of the discussion

This part of the facts charged is based on the premise that the defendant acquired property benefits equivalent to the above 4.5 billion won from embezzlement that he bears against D by voluntarily withdrawing the amount of 4.5 billion won deposited from AD under the name of D as the acquisition price under a contract for acquisition by transfer of management rights (hereinafter referred to as "the acquisition by transfer of this case") between AD and AD, which was concluded by the defendant.

However, if the above 4.5 billion won as stated in the facts charged above was appropriated to the defendant's liability for damages against D, the defendant, the representative director of D, is in the position of keeping the above 4.5 billion won for the above company, and then the withdrawal of the above 4.5 billion won as to the above 4.5 billion won, can be at issue whether the crime of embezzlement is established against the above company, and it cannot be evaluated that the defendant obtained property benefits in the form of re-exempt the above 4.5 billion won as a result of such withdrawal from the above company. Thus, there is no room for the defendant to establish the crime of embezzlement.

In regard to this, the prosecutor argued to the effect that "the above KRW 4.5 billion was merely the fact that the defendant was formally deposited and was not repaid to D, so the withdrawal of the fund thereafter cannot be deemed embezzlement." In light of the background of the entry and withdrawal, although it is difficult to view that the above KRW 4.5 billion was owned by D as alleged by the defendant, the defendant's series of acts of withdrawing the above money from the account under the name of D without the approval of the board of directors and changing the debtor to AD due to the embezzlement can be evaluated as acts attributable to the intention of breach of trust against the above company. Thus, the prosecutor asserts to the effect that the defendant was indicted for the crime of breach of trust, not the crime of embezzlement (each opinion written on January 4, 2016 and on March 2, 2017).

However, if the defendant's act constitutes a crime of breach of trust as alleged by the prosecutor, it should first be premised on the fact that the defendant has a duty to preserve the amount of KRW 4.5 billion deposited into the D's account, as it is, as it is.

(ii) the facts of recognition

In full view of the statement of the defendant in the 13th trial records, the statement of the witness AD in the 12th trial records, each prosecutor's office examination records on the defendant and AD, receipts without passbook, certificates of deposit transaction, each corporate register, AG account transaction records, records of management rights and transfer of stocks, copies of contracts for stock security loan and loan agreement (including investigation records in the case of above 2015 Gohap982), etc., the following facts may be recognized:

A) From April 2008, when the Defendant was investigated by the prosecution due to suspicion of embezzlement of funds in the course of operating D by AC and AC’s subsidiaries with a major shareholder and a representative director, the Defendant, from around April 2008, intended to respond to an investigation by transferring the stocks and management rights of each of the above companies to a third party and compensating for the amount of embezzlement damage as part of the transfer proceeds received in return.

B) Around August 12, 2008, the Defendant entered into a contract (i.e., one right 341 pages of the investigation record) with respect to the acquisition of the instant shares with the content that the Defendant would fix the acquisition price of KRW 2 million and the management right of KRW 16.5 billion.

C) Article 3(1) of the instant contract also provides that the down payment shall be KRW 7.8 billion, and among them, KRW 2.6 billion shall be substituted by AD’s acceptance of the Defendant’s obligation, and KRW 4.5 billion shall be immediately repaid with the down payment received by the Defendant from AD to AC and D’s debt (compensation liability due to embezzlement) or the payment may be substituted by AD’s succession to the said obligation.

D) Pursuant to the above provision, AD decided to pay the down payment of KRW 7.8 billion upon the conclusion of the contract, and KRW 2.6 billion upon the Defendant’s separate obligation, while the remainder of KRW 4.5 billion is to substitute the payment by succeeding to the Defendant’s obligations to AC and D, that is, by succeeding to the Defendant’s obligations to AC and D, but the actual payment was to complete a due diligence on the said company, and to secure management rights through a temporary general meeting of shareholders scheduled on October 6, 2008.

E) However, as the Defendant demanded that 4.5 billion won be deposited in the first place in order to be equipped with the appearance of the above succession, AD raised funds from the bond company on August 13, 2008 following the date following the conclusion of the contract, and deposited KRW 4.5 billion in the corporate account in the name of the Defendant newly opened on the day, and withdrawn the same amount as KRW 5.5 million in the name of the Defendant as a check, and again, deposited it into the account in the name of AD in the name of AD children.

F) Since then AD transferred the status of the underwriter under the contract to AH and withdrawn from the contract before a temporary general meeting of shareholders was held.

3) Specific determination

A) In light of the process of concluding a contract and the process of entering and withdrawing KRW 4.5 billion, the acquisition of the instant case, known by the above fact, appears to be merely a temporary deposit on the premise that the Defendant was immediately withdrawn from the beginning for the purpose of creating only the appearance that he succeeded to AD, in a short term, the Defendant’s liability for compensating for damages incurred by the said company due to the said company’s embezzlement within the short term, and the liability for compensating for such damages is merely a temporary deposit on the premise that the Defendant would be immediately withdrawn from the beginning. Considering such circumstance, it is difficult to view that the Defendant had a duty to preserve the above KRW 4.5 billion as its assets, and there is no other evidence

B) In addition, if the above amount of KRW 4.5 billion is not confirmed as a result of the Defendant’s embezzlement against D, the above company still holds the same amount of damage claim against the Defendant; ② even if the Defendant’s above amount of KRW 4.5 billion remains in a trace of successive transfer from the Defendant to D and AD, the above amount of damage liability was created in the whole process of deposit and withdrawal of the money, the above company’s assets do not have any substantial change in terms of the above company’s assets; ③ thereafter, it is difficult to recognize that the transferee of the contractual transferee’s position in succession to AD or the above transfer from AD did not repay its debts to the company; and there is no evidence to acknowledge otherwise.

C. Conclusion

Thus, this part of the facts charged constitutes a case where there is no proof of crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

4. The embezzlement of Defendant A-victim E (the facts charged in relation to the 2015 High Gohap1145)

A. Facts charged

AJ, around July 2012, at the E office located on the fourth floor of the Gangnam-gu Seoul Building Co., Ltd. (hereinafter referred to as the "E"), drafted a "Agreement on Investment Declaration and Joint Investment" with the content that AJ shall invest KRW 600 million in E and acquire convertible bonds equivalent to the same amount, and directly or bypassing E and guarantee the principal and interest of the investment, and AJ agreed to borrow KRW 100 million out of the amount invested by AJ around August 20, 2012, after making an investment of KRW 200 million.

On August 21, 2012, upon receipt of a request from AJ according to the above Investment Agreement, the Defendant transferred KRW 1,100,000,000 to AJ and embezzled the remainder of KRW 51 million for personal use, such as living expenses, while the Defendant was in custody for the victim under the name of AL in the name of AL administered by the Defendant.

B. Summary of the defendant and his defense counsel's assertion

This part of the facts charged is recognized on the basis of the facts charged. However, the Defendant provided advisory services, such as arranging investment agreements as described in the facts charged in the above facts charged, prior to the instant case, and providing advisory services, such as analyzing contracts in connection with a case in which a company operated by the AJ had been in the process of a lawsuit. Before receiving KRW 1.1 million from E, the Defendant agreed to deduct an amount equivalent to KRW 51 million out of the Defendant’s above fees from the AJ and money, and delivered the remainder of KRW 50 million from the Defendant’s above fees to the AJ, and clearly notified the AI of this fact. Accordingly, the Defendant did not have any intent or intent to acquire embezzlement or illegal acquisition.

C. Determination

1) Considering the following facts and circumstances revealed by the records of the instant case (2015 Gohap1145), there is doubt as to whether the Defendant, upon the request of the Defendant, arbitrarily deducted KRW 51 million from KRW 1100,000,000,000, which was delivered by the Defendant to AJ, from KRW 50,000,000,000, which was delivered by the Defendant to AJ, is not delivered to AJ.

① The AJ has consistently stated to the effect that, according to the investment agreement with E, it remitted KRW 200 million out of the investment amount pursuant to the said agreement, 100 million out of the investment amount would have been lent again pursuant to the said agreement. However, in fact, there was no specific mentioning about the settlement and deduction of the personal obligation and obligation with the Defendant.

AI also stated to the effect that there is no fact about the settlement or deduction of fees from the defendant in the investigative agency, and that it was known that it was delivered to AJ through the defendant clearly through the defendant. However, around 2014, the amount received at the time of AJ was paid more than KRW 50 million and then the defendant became aware of the fact that he did not deliver to AJ the amount of KRW 51 million.

Unlike the above assertion in this court, the Defendant was kept in Sck under the permission of both E and AJ for the use of investment brokerage commission and other actual expenses to be received from E, and stated to the effect that he subsequently requested settlement at the time when investment is completed (Article 101-103 of the investigation records of the case No. 2015Dahap1145, and the Defendant’s written opinion submitted by the Defendant’s defense counsel during the prosecution investigation process are agreed to pay the Defendant a approximately KRW 50 million to AJ. The above investigation records 118 of the investigation records are stated to the effect that he sent the Defendant a approximately KRW 50 million to the Defendant. The first examination process of the Defendant was conducted in this court, 51 million, and 20 million, which was deducted from the Defendant’s defense counsel’s appointment of another case (Article 132 of the investigation records of the case). The content of the Defendant’s defense counsel’s statement to the effect that the Defendant and the Defendant’s defense counsel were not consistent with the objective content of the Defendant’s defense obligation.

2) On the other hand, according to the records of the instant case, including the statement of AI during the second prosecutorial examination protocol against the Defendant, each police interrogation protocol against AI, the protocol of prosecutorial examination against AJ, the protocol of police testimony against AJ, the protocol of prosecutorial statement against AO, the complaint, and the evidence No. 3 (Evidence No. 2015, 1145) submitted by the Defendant, the following facts can be acknowledged.

① At around November 7, 2014, the first AJ filed a complaint with the Defendant and AI with the purport that “When the Defendant and AI conspired to make an investment of KRW 600 million, they will acquire the listed company and pay the principal and interest of the investment after 70 days,” and that “I will enter into an investment agreement as described in the above facts charged, and receive KRW 200 million from themselves as investment money on or around August 21, 2012, but receive it, but until now, they did not return KRW 150 million.”

On November 1, 2015, 300, the prosecutor, on the ground that there is not sufficient evidence to acknowledge the intention of deception with respect to the above suspicion of fraud by the defendant and AI, and on the other hand, on the fact that the defendant received KRW 1.1 million from E and delivered KRW 51 million after deducting KRW 51 million from E, he/she deemed that the defendant embezzled E money as in this part of the charges, and prosecuted the defendant on the charge of embezzlement.

③ On December 16, 2015, AJ filed an appeal with the Seoul High Prosecutor’s Office against the disposition of non-prosecutions (suspects) against the charge of fraud of AI. At that time, AJ’s written statement of the reason for appeal prepared and submitted by AJ stated that the Defendant’s embezzlement of the instant case (this part of the facts charged) for which the Defendant was separately prosecuted and consultation fees for other services and the amount that the complainant paid to the Defendant for the purpose of the Defendant is separate from KRW 200 million of the instant investment amount against AAI. Since the instant investment was not normally conducted, the said consulting service charges and loans are naturally returned to the complainant, and accordingly, the Defendant agreed to the effect that the fees that the Defendant received and the amount that the complainant paid to the Defendant, such as the full repayment of the principal and interest of the loans, are to be resolved by increase in the amount of the above civil disputes (No. 13).

④ In addition, the facts of the AJ’s drafting of the Defendant’s defense counsel’s submission as reference materials 2 May 31, 2017 are indicated as follows: “AJ allows the Defendant to use approximately KRW 50 million out of KRW 100 million received from E.”

⑤ Meanwhile, AI only stated to the effect that the Defendant’s deduction of KRW 1.1 billion to KRW 51 million from the Defendant’s 1.1 billion is an issue of settlement between the Defendant and the AJ two, and therefore, it does not seem to have sustained certain damages until now.

3) According to the above facts and circumstances or the evidence submitted by the prosecutor alone, it is difficult to eliminate without reasonable doubt the possibility that the defendant would have deducted the debt equivalent to KRW 51 million that the AI owes to the defendant under the AJ’s explicit or implied understanding, which he received upon the request of the defendant to deliver it to AJ as a loan, as alleged above. If the defendant, as above, deducted KRW 51 million under the AJ’s understanding, and delivered the remainder to AJ, 50 million after deducting KRW 51 million from the defendant. If the defendant delivered the remainder to AJ, it is merely a reduced payment to be made in order from AJ and AJ to the defendant, and in substance, the full amount of KRW 11 million should be attributed to AJ, in accordance with the entrusted purport of E. Thus, even if the truster was not approved in advance, or the defendant did not return the above KRW 51 million for any reason, he could not return it to the above AJ at will.

4) Ultimately, it is difficult to view that the evidence submitted by the prosecutor alone is sufficient to prove that the Defendant had the intent of embezzlement or illegal acquisition of KRW 51 million to the extent that there is no reasonable doubt, and there is no other evidence to acknowledge it.

C. Conclusion

Thus, this part of the facts charged constitutes a case where there is no proof of crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

5. The violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlements) against the F in relation to the victim's holding company by Defendant A (the facts charged by Defendant A)

A. Summary of the facts charged

From March 2011, the Defendant, as a corporation listed on KOSDAQ, participated in the management dispute in the form of consultation with the management dispute of the K and N, etc., which is a corporation listed on KOSDAQ, thereby helping to maintain the management right of the existing management.

On the other hand, the existing management, such as J, committed an illegal act such as embezzlement of company funds in the course of management dispute, and was investigated by the prosecution from May 201, and was planned to transfer management rights to A Q Q for about KRW 3.5 billion through introduction of AP, etc., which owned a majority of the shares of the above company, and to be exempted or mitigated from their illegal acts by paying the acquisition price to the company funds.

J, etc.: (a) drafted a written agreement from July 4, 201 to July 5, 2011, which transferred management rights of Q and the company A to KRW 3.5 billion; (b) appointed Q as a management manager on the 22th of the same month; and (c) granted the company’s corporate reduction and passbook to the company on the 25th of the same month; (b) made it possible to prepare for regular audit and inspection by allowing Q to exercise their management rights; (c) however, on the grounds that Q did not comply with the terms and conditions of the agreement, Q was dismissed from the management manager.

However, on August 17, 2011, J et al. expressed its intention to refuse to express its opinion on a half-yearly report by the accounting firm auditing F, and on August 23, 2011, the prosecution conducted the investigation such as searching and seizing the F Office for the embezzlement of former management, such as J et al. at the prosecution, and again requested Q Q to transfer its management right again, and to proceed with the renegotiation process on behalf of the accounting firm.

On the other hand, the Defendant assisted the maintenance of the management rights of J, etc., and subsequently came to hold shares of G, a KOSDAQ-listed corporation, which he tried to secure the management rights with F’s funds. On the other hand, upon the commencement of the investigation into J, etc., there is a concern that the investigation into the crime of embezzlement will proceed with the investigation into the crime of embezzlement due to the fact that it is related to the above stockholding, and that Q and additional negotiations were conducted upon such request.

As a result, the J et al. agreed to transfer management rights (hereinafter referred to as the "agreement on transfer of management rights") by setting the acquisition price of management rights between F and AB (hereinafter referred to as "AB") on August 26, 201 through the Defendant who performed his/her duties as a proxy, from September 2, 201, to September 2, 201, the amount of KRW 2 billion was paid to the F account until September 2, 201, and the remainder of KRW 1.5 billion was paid to the F account until September 30, 201, by appointing a majority of registered directors at the temporary general meeting of shareholders from A Q.

However, despite the above agreement, as the investigation of F F, including J, conducted a serious strength of investigation by the prosecution, F, etc., demanded that the F, if the acquisition price is not paid in advance, would delay the temporary general meeting of shareholders of F, which was scheduled on September 6, 201, to pay in advance the management price, and Q, against this demand, was at the risk that the agreement on the transfer of F, including J, would be reconsigned.

Accordingly, on August 201, 201, the Defendant proposed that "If the agreement on the acquisition of the instant shares was not reached, it would be likely that the investigation will be conducted even to oneself due to the problem of purchasing the shares of the company that he operated by using some part of the F's funds," and that "the amount of KRW 2 billion out of the acquisition price of the management rights would be raised to Q Q for the sake of maintaining the above agreement. However, if the corporate bonds are issued and paid to the corporate bonds company, the existing management is not known if the corporate bonds are paid after paying the acquisition price, and the amount of KRW 2 billion will be added to the company by again seeking the amount of KRW 1.5 billion from the acquisition of the management rights and then the expiration date of the corporate bills, the Defendant approved A Q Q to this effect."

A Q established three accounts of Q Bank (Account Number: AR,S, and AT) in the name of F using the aforesaid corporation’s seal imprint certificate, which was held by F as a management manager around August 26, 2011, according to the above public offering with the Defendant, and agreed to pay the acquisition price in advance to all management prior to the agreed date, and paid KRW 3.3 billion in total to the said Q Bank account from August 26, 201 to August 31, 201.

In addition, according to the above public offering with the Defendant, Q deposited KRW 1.95 billion in F’s account with the Defendant around August 30, 201 through the Defendant, and deposited it in the course of business for F for the victim F, the Defendant issued a certificate of deposit with the maturity of KRW 1.95 million as of September 29, 201 and offered it as security to the said bond company on September 29, 201, and thereafter, on September 29, 201, the said bond company issued the certificate of deposit with the maturity of KRW 1.95 billion in cash.

Accordingly, the Defendant, in collusion with A Q, embezzled KRW 1.95 billion out of the victim F’s corporate funds of KRW 330 million, which Q had been in custody for business purposes.

B. Summary of the defendant and his defense counsel's assertion

This part of the facts charged also recognizes the facts related to the process of the conclusion of the agreement.

However, at the time, Q could not pay the F for the acquisition price before acquiring the right of management at a general meeting of shareholders, while the existing management such as J demanded the repayment of the amount of embezzlement damage, and the defendant in the middle to coordinate both sides, and first, Q made the deposit of the transfer price to the company by lending the funds from the bond company from the bond company, and then offered the certificate of deposit with the bond company as collateral and prepared a plan to recover the certificate of deposit by paying the above loan after acquiring the right of management at a general meeting of shareholders.

Accordingly, the Defendant and Q temporarily paid the acquisition price on the premise of a subsequent separate repayment, and issuing the certificate of deposit and offering it as security was only for the purpose of creating the appearance of the performance of damage from the beginning. Moreover, the aforementioned temporary payment alone cannot be deemed as a conclusive repayment to F and substantial company property. Therefore, the Defendant did not intend to acquire the intent of embezzlement or illegal acquisition of the above money.

C. Determination

1) First, we examine whether the Defendant and Q conspired with each other to deposit the acquisition price according to the instant transfer agreement with F in F’s account prior to the due date set in the said agreement and then whether the existing management, such as J, etc., was committed by issuing a certificate of deposit and providing it as security.

2) In line with the above, the main evidence of the J’s statement (the acquisition of this case was agreed upon in order to make the F embezzlement amount and received the transfer amount in the F account, and the transfer amount was deposited in the F account, and the fact that the transfer amount was also deposited in the F account after lending the deposit amount from the bond company and providing the certificate of deposit as collateral, was completely different; the investigation records of the case No. 2,861-2,866, 5, 293) and part of the Defendant’s statement (F’s damage was compensated as transfer amount) (the acquisition of this case was agreed to compensate for the F’s damage) and part of the Defendant’s statement (the acquisition date was 2,861-2, 866, 53). The fact that Q did not believe that it would have to pay 3.5 billion won in advance after the temporary general meeting of shareholders, and the fact that Q et al. was immediately deposited in Q when it transferred management rights to Q.

3) However, the Defendant: (a) had no record of the pertinent case (Seoul District Court 2015 High Court 11); (b) had no record of the instant case to be kept as a witness at the general meeting of shareholders; (c) had no record of the instant case at the time of the instant transfer agreement; and (d) had no record of the instant case to be kept as a 1950 million won; (d) had no record of the instant transfer to the effect that the Defendant made a statement to the effect that the Defendant would have made a statement to the effect that there would have been KRW 30 billion; and (e) had no record of the instant transfer to the effect that the Defendant would have made a statement to the effect that there would have been no record of the instant transfer; and (e) had no record of the instant transfer to the effect that the Defendant would have made a statement to the effect that there would have been 60 billion won prior to the instant transfer; (e) had no record of the instant transfer to the effect that Q 1 would have been made available to the existing officers.

4) The above statement is that it is difficult for the Defendant to enter the statement of Q Q Q in the 17th trial records, each witness examination protocol to the Defendant, and Q Q Q Q, each prosecutor examination protocol to the Defendant, Q Q, and each copy of the management right agreement to the J, and the records of the instant transfer agreement (this case’s investigation records, No. 2016Da870), which were known by the Defendant’s prior to the expiration date of the 10th trial records, and it is difficult for the Defendant to find out the transferee who would suffer damages from the above 9th half of the 2011 and the above 9th half of the 9th half of the 196667777, which would have been under the control of Q Q Q, which would not have been under the control of the Defendant to the extent that the Defendant would have been under the control of the 10th of the 9th half of the 201.

5) However, even if the acquisition price was temporarily paid only to F in order to make the appearance of the performance of damage under the separate agreement between the Defendant and Q, and even if the former management, such as J, etc., was accepted, if the former management, such as J, etc., was deemed to have paid the debt owed to F with the former management, such deposited money constitutes embezzlement, and it constitutes an unlawful acquisition intent (see, e.g., Supreme Court Decisions 2013Do1174, Dec. 26, 2013; 2013No124, Sept. 12, 2013).

However, in light of the following circumstances revealed through the records of this case, i.e., (i) the Defendant and Q stated to the effect that the actual damage was separately repaid, as seen earlier, and (ii) after the payment of the purchase price, J sent a content certification (not more than 3,185 pages 3,185 of the above investigation records) confirming whether the funds under the agreement on the transfer price have been paid normally to A Q Q Q Q Q Q Q Q Q Q Q Q Q Q, and without disputing that the transfer price was paid in full, the J notified the termination of the agreement on the acquisition of this case on the ground that the transfer price was not submitted by the FF, without claiming that the transfer price was paid in full (not more than 3,190 pages of the investigation records of this case). In light of the above facts, it is difficult to conclude that the transfer price was paid in full by the agreement between A Q Q and the transferor, etc. after temporary payment of the above money and the transfer price was paid in full to AF, etc.

Therefore, the above-paid money was repaid to F and became a substantial asset of the company. As such, it cannot be deemed that the Defendant and Q have an intent to acquire unlawful profits with respect to the issuance of certificates of deposit and the act of offering security based on the above money.

D. Conclusion

Ultimately, the evidence submitted by the prosecutor alone is insufficient to acknowledge that there was an intention to acquire illegal gains by arbitrarily using the F money to the Defendant and Q at the time of the instant case, and there is no other evidence to acknowledge it.

Thus, this part of the facts charged constitutes a case where there is no proof of crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

Acquittal (of the facts charged in 2015Gohap449, Defendant A’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) for embezzlement of KRW 530 million with the disposal price of KRW 1720,000,000,000,000,000.

1. Facts charged;

Before July 2011, the Defendant lent funds to the managementJ of the Fund in charge of the settlement of accounts for the victims (hereinafter referred to as the "G") to the management of the Fund in charge of the settlement of accounts for the settlement of accounts for the settlement of accounts for the settlement of accounts for the settlement of accounts for the settlement of accounts for the settlement of accounts for the settlement of accounts for the settlement of accounts for the settlement of accounts for the settlement of accounts for the settlement of accounts for the settlement of accounts for the settlement of

On July 6, 2011, the Defendant: (a) borrowed KRW 480 million from a mutual bond company called “AV” as collateral through AU, which is a bond hub of the above converted shares; (b) borrowed the above shares as collateral; and (c) received a refund of KRW 50 million from the settlement money; and (d) embezzled the total amount of KRW 530 million for the purpose of private use around that time when the Defendant kept in custody for the victim for business purposes.

2. Relevant legal principles

A. A. When a criminal trial becomes final and conclusive substantially, it shall not be repeatedly punished for the same crime, and when a public prosecution is instituted against the same case with a final and conclusive judgment, a judgment of acquittal shall be pronounced. The identity of the facts charged or the facts charged shall be based on the defendant's act and social facts, and its normative elements shall be also considered (see, e.g., Supreme Court en banc Decision 93Do2080, Mar. 22, 1994; Supreme Court Decision 2005Do9678, Mar. 23, 2006).

B. In appearance, in a case where a series of acts by a defendant, which forms the basis of the facts charged, constitute multiple crimes, but the legal evaluation of such acts is combined and constitutes a single social factual relationship, and in other words, where a crime by a party is constituted, the other party’s crime cannot be established, and the other party’s crime may not be established, and the other party’s crime may be in an infeasible relationship where the other party’s crime may be constituted only when he/she is acquitted of a crime (see Supreme Court Decision 2011Do1442, May 13, 201);

C. In a case where there are circumstances to deem that the facts charged in the final and conclusive judgment and the facts charged are compatible with the facts charged, there is a risk of different social facts, which are the basis thereof. Therefore, the basic facts cannot be deemed identical. However, in a case where one of the crimes is established, if both are closely related to the extent that the establishment of the other party cannot be recognized, it is reasonable to deem that the facts of the two are identical (see Supreme Court Decision 2010Do3950, May 24, 2012, etc.).

3. Determination

A. According to the indictment (Seoul Central District Court Decision 2011No. 90127, 96357, etc.), a copy of the judgment in 2011 type No. 90127 (No. 892 of the investigation records) and the investigation report (Attachment of the judgment in Seoul High Court Decision No. 2013Do292, Sept. 22, 201), and reference materials (Supreme Court Decision 2014Do13632, Apr. 27, 2017), the following facts can be acknowledged.

1) On January 6, 2012, the Defendant was transferred to the Seoul Central District Court on or around June 5, 2011 by the Defendant at the F Branch Office upon the request of J and F Representative P to exercise the right to convert KRW 1720,000 shares of G shares through the exercise of the right to convert into G around June 24, 201, and the Defendant was issued and kept 1720,00 shares of G shares through the exercise of the right to convert into G around June 24, 201. At that time, the Defendant provided the said shares to a person whose name is unknown and disposed of them as collateral to raise funds for his/her business, thereby embezzlementing approximately KRW 1720,00 won at the market price of KRW 1,720,00,000,000, which is owned by the victim FF and kept on duty. The Defendant was prosecuted for a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) against the suspected facts.

2) On September 26, 2014, the Seoul High Court rendered a judgment of innocence on the facts charged (2013Do2922). The Supreme Court became final and conclusive on December 15, 2016 through the final appeal procedure against the said judgment (2014Do13632).

B. Examining the instant case in light of the legal principles as seen earlier, since the identity of the facts charged and this part of the facts charged are recognized for the following reasons, the final judgment of innocence extends to this part of the facts charged.

① The facts charged in the final and conclusive judgment and the facts charged in this part are several differences in the specification of the date and time, and it is evident in the record that the Defendant, from F around June 201 to F, converted the shares into the shares by exercising its conversion right after converting the shares into the shares, offered the bond business operator for the purpose of securing an individual’s liability for the converted shares, it is based on the same series of facts.

② This part of the facts charged does not constitute embezzlement of 1720,00 shares converted from the facts charged in the above final judgment, but rather, embezzlement of the total amount of KRW 530,000,000,000,000,000,000 won received as collateral from the bond company and received as collateral and received as collateral from the bond company. However, even according to this part of the facts charged, the crime of embezzlement of the entire converted shares is established by clearly expressing the intention of unlawful acquisition when the defendant provided and disposed of the shares to the bond company as personal debt security, and it is apparent that the use of the money acquired as collateral is not an ex post facto act, which includes risks assessed in the crime of embezzlement and does not entail any infringement of new legal interests. Ultimately, the object of this part of the facts charged also constitutes 1720,000 shares converted from the above converted shares, and thus, the act and normative act of the above final judgment should be deemed identical to the act and the object of the final judgment.

③ The facts charged in the final judgment and this part of the facts charged are different from the victim.

However, this is merely a difference in the legal evaluation of the consignment relationship of the convertible bonds as the Defendant received the above convertible bonds from F, and the Defendant received them under any pretext. In other words, the facts charged in the final judgment at issue is premised on the premise that the Defendant received the exercise of convertible rights from F and received the said convertible bonds from F and kept them for F. On the other hand, this part of the facts charged is premised on the premise that the Defendant received the above convertible bonds for the purpose of securing F’s obligation to G and kept them for G, and thus, it is incompatible with the legal evaluation of the same facts.

4. Conclusion

Thus, this part of the facts charged constitutes a case where a final judgment is rendered, and thus, a judgment of acquittal is rendered pursuant to Article 326 subparagraph 1 of the Criminal Procedure Act.

The presiding judge, the Kim Jong-dong

Judges Kim Gin-han

Judges Doi-ro

1) The crime of Articles 1 through 4 of the above previous conviction is a crime committed on or before December 14, 2007, which committed a violation of the Punishment of Violences, etc. Act (the Seoul Central District Court Decision 2007. Jun. 8, 2007, the suspension of the execution of imprisonment with prison labor of 10.0) and the crime of violation of the Punishment of Violences, etc. Act (joint injury) for which the judgment became final and conclusive, and the crime of violation of the latter part of Article 37 of the Criminal Act was sentenced to the crime of violation of the latter part of Article 37 of the Criminal Act.

2) The original facts charged in this part stated as follows: (a) after entrusting A with a bond company the 1720,000 shares converted into G convertible bonds as security, the loaned KRW 480,000,000,000 and KRW 530,000,000,000,000,000 remaining after the opposing shares were traded; and (b) facilitating the embezzlement of the said converted shares for private purposes during the occupational custody; (c) however, as seen below, at the time of disposal of the said converted shares kept for G for private purposes, embezzlement of the said converted shares was established; (d) the use of money acquired in return for the disposal was merely an act after the fact-finding; and (b) the original facts charged also contain the attitude of aiding and abetting the embezzlement of the Defendant by replacing the said converted shares to the bond company; (e) considering that all these series of acts have been consistently admitted, the Defendant recognized all these series of acts and acknowledged the facts that are different from the Defendant’s exercise of rights to defense within the same criminal facts as the indictment.

3) Recording notes of witness testimony in the fourth protocol of trial 19,26,27 pages.

4) As seen in Articles 1-B and 1-2 (No. 29-30 of the Judgment), the lower court acquitted the Defendant on the grounds that it is difficult to recognize the Defendant’s intent of embezzlement or of unlawful acquisition.

5) The amount listed in [Attachment 33, 41, and 53] Nos. 33, 41, and 53 paid to L, other than as remuneration, is the amount paid by the Defendant as entertainment expenses to recover H’s preemptive rights, as seen in paragraph 2 below.

6) According to the underwriting agreement with C, F subscribed to convertible bonds worth KRW 2 billion in total issued by C in accordance with the underwriting agreement with C, and C participated in the subscription to new shares issued by G as a general public offering and subscription to new shares issued and subscription to new shares issued on May 16, 201.

7) However, among the 1 billion capital invested in capital increase with capital increase, approximately KRW 361 billion of outstanding shares was returned to C.

8) At the time of the instant case, the Defendant informed B of the detailed method of ex post facto accounting to the extent that B had concerns over the withdrawal of the company’s funds at the time of the instant case, and tried to know B (the fifth protocol of the trial, 5,6 pages of the testimony of the witness B). There is no reason that such Defendant did not say that each of these money was lent to F in the form of redemption of convertible bonds.

9) The defendant and his defense counsel asserted that the amount of KRW 1.8 million in [Attachment 46] Nos. 46 and KRW 55 million in [Attachment 46] and KRW 3 million in [Attachment 55] were the expenses paid to the defendant's employees as the expense in accordance with the above Paragraph 1. However, each part of the money is deemed to be the amount between the defendant's own entertainment expenses and liquor payment and the amount between the defendant's withdrawal under the name of his own entertainment expenses and other items in the name of entertainment expenses, and it is not reasonable to distinguish it from other items in the name of entertainment expenses.

10) The Defendant: (a) paid a personal fine to the Defendant; and (b) paid a company’s appearance for a company that is not related to G on behalf of the Defendant; and (c) acknowledged that it was used for private purposes (only for the purpose of making a confession in part at the court, and was arranged in the final attorney’s written opinion as above).

11) However, KRW 100,000,00,000 was raised separately from the funds raised in G due to capital increase with respect to the instant capital increase and conversion company issuance.

12) G may, even if the above loans are not recovered, be treated as having been repaid by the amount equivalent to that of the above convertible bonds, thereby getting exempted from the obligation to repay the bonds equivalent to the amount of F.

13) At the time, I, the representative director of G, stated in this Court that the expenses incurred for the registration of G’s above convertible bonds will be borne by the company (the fourth protocol of the trial, in which the witness I testified, 33 pages).

14) The Defendant stated to the effect that he was to use KRW 100 million among KRW 260,000,000 received from C by the prosecution (part of the money listed in [Attachment Table No. 4] as part of the rent of BM W 7 Simp vehicle to be used by him (No. 2015Dahap449), and that B was to pay KRW 100,000,000 to the prosecution around May 24, 201, and the Defendant was to pay KRW 17,00,000 as part of the BM vehicle lease deposit to be used by the Defendant (the above investigation record No. 6305-3057,70,73,437).

The degree of KRW 170,000,000, which was confirmed as a result of tracking checks on KRW 20,000,000 (the amount of KRW 170,000,000,000,000,000,000 is used for vehicle lease deposit or personal debt repayment, etc.

15) At the time, F’s trade name was changed to AA, and it was merged into AB with the aforesaid dispute resolution committee.

16) It seems that the Defendant did not specifically agree at the time when he lent the above money to F.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.