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

(b) Occupational embezzlement;

(c) Offering of bribe;

(d) Acceptance of bribe;

1.(a)(c) A;

2.B

Encouragement failure to institute prosecutions, and public trial.

Attorney C, D (for Defendant A)

Law Firm E (for Defendant A)

[Defendant-Appellee]

Attorney G (Defendant B)

September 15, 2017

[Defendant A]

A defendant shall be punished by imprisonment for a term of one year and eight months.

However, the execution of the above punishment shall be suspended for three years from the date this judgment became final and conclusive.

[Defendant B]

A defendant shall be punished by imprisonment for six months and by a fine of fourteen thousand won.

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

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

6,688,700 won shall be additionally collected from the defendant.

The amount equivalent to the above fine and the additional collection charge shall be ordered to be paid provisionally.

Criminal facts

1. Defendant A

(a) Occupational embezzlement of victims H;

The defendant is the representative director of the HH of a manufacturing company, such as electronic equipment, who is engaged in business management and general management of funds.

On January 14, 2011, while the Defendant was in the custody of the company’s funds in the Jeju-si Office, the Defendant voluntarily consumed KRW 274,196,252 of the said company’s funds in total 50 times by pretending the payment of the J’s benefits and the bonus to its executives and employees from October 21, 201, notwithstanding the fact that the Defendant did not work in the H-si Office in the K-si Office, the Defendant, despite of the fact that the K-si had been in the business operation, he remitted from the H-si account to the J-si account in terms of audit salary, from the H-si account to the J-si account.

Accordingly, the Defendant embezzled the sum of the funds of the victim company 274,196,252.

(b) Violation of the Act on the Punishment, etc. of Specific Economic Leave (Embezzlement) to the victims K;

The defendant is the representative director of the K K in charge of a business management plan, such as automobile parts, who is engaged in the business management and general administration of funds.

On May 14, 2012, the Defendant voluntarily consumed KRW 717,00,000,000 of the company’s funds in total on 111 occasions, as shown in the crime list (2) of the attached Table, from February 27, 2014 to February 27, 2014, when the representative director of the company in question has been in custody for the company the operating funds of KRW 1 billion borrowed from the Korea Development Bank from the Korea Development Bank.

Accordingly, the Defendant embezzled 717,00,000 won in total of the funds of the victim company.

(c) Offering of bribe to B

(i)the current status of the extension of loans to K in the Korea Development Bank (hereinafter referred to as the "Industrial Bank");

On December 29, 2011, K Co., Ltd. entered into a contract with the Defense Acquisition Program Administration to manufacture "M development machine" and deliver it to the Gun. On March 2012, the Defendant: (a) issued a certificate of payment guarantee for the amount of KRW 7 billion to be submitted by the Defense Acquisition Program Administration to receive the advance payment; and (b) requested a refund loan of KRW 9.34 billion; (c) on April 2012, the approval of the head office of an industrial bank was refused due to the excessive credit extended by K in the K Co., Ltd.; and (d) on May 11, 2012, the Industrial Bank L branch of the K Co., Ltd. first loaned KRW 1 billion operating fund to the K Co., Ltd.

After that, from August 2012, the head office of an industrial bank issued a review of the K-In-House loan loan amounting to KRW 8.9 billion on September 21, 2012, issued a certificate of payment guarantee for KRW 8.5 billion on January 18, 2013, and issued a letter of credit amounting to USD 7.7 billion on January 2018, 2013 in sequence. Accordingly, the industrial bank L branch paid to K- in-house loan amounting to KRW 8.9 billion on October 25, 2012, issued the above letter of credit payment guarantee on January 18, 2013, and issued the letter of credit.

2) Offering entertainment

As above, while the Defendant requested K L branch of the Industrial Bank L branch to provide a loan to the Industrial Bank L branch and the examination procedure was in progress, on July 2, 2012, the Defendant provided the amount of meals equivalent to KRW 105,000,000, which is the total amount of KRW 1,688,700, to B, including the above L branch B, at the 'O' restaurant located N in Suwon-gu, Suwon-si, Suwon-si, Suwon-si, and provided the amount of meals equivalent to KRW 420,00,000, from that time to February 7, 2013.

As a result, the defendant provided a benefit equivalent to KRW 1,688,700 in relation to the duties deemed as a public official.

(iii) cash delivery;

On July 23, 2013, the Defendant received a request from the above L Branch B to send money of five million won from the above L Branch B at the above K Office, and deposited KRW 5 million into the agricultural bank account in the name of P requested by B.

As a result, the defendant provided money and valuables of KRW 5 million in cash in connection with the duties deemed public officials B.

(d) Offering of bribe to Q and R;

1) Offering entertainment to Q Q (the military court rendered a conviction for the crime of bribery to good offices on November 29, 2016, and the final judgment on December 17 of the same year)

On March 18, 2012, the Defendant provided Q Q with a meal amounting to KRW 111,750,00 for four company members present at the Defense Acquisition Program Administration at the request of the Administrator of the Defense Acquisition Program Administration, who is the team leader of the contract management headquarters, in order to facilitate the supply of the KM development machine, and provided Q Q with a meal amounting to KRW 27,750, a total of KRW 12 times in total, as shown in the attached Table of Crimes (4), from that time until December 30, 2013, for the benefit of KRW 12,209,170 in total.

As a result, the Defendant offered Q who is a public official a bribe equivalent to KRW 1,209,170 on good offices belonging to the duties of other public officials.

2) Offering entertainment to R (the military court rendered conviction for the crime of acceptance of bribe on November 29, 2016, and the final judgment on December 16 of the same year)

On November 15, 2012, the Defendant provided R with the benefit of KRW 59,666,00, totaling KRW 179,540,165, as shown in the attached Table of Crimes (5), to the head of the Defense Acquisition Program Administration’s project management headquarters, who is in charge of the MP purchase project, and the head of the Y Team (Y Team leader from January 2, 2013, and the Z Team Team leader from March 23, 2013) naval Ra, who is in charge of the MP purchase project, for the convenience of convenience in relation to the supply of the MO of the K MM to the K MM development, and provided R with the benefit of KRW 59,666,00, from that time to April 2, 2013.

Accordingly, the defendant offered a bribe in relation to the duties of R who is a public official.

2. Defendant B

From January 19, 2012 to January 20, 2014, the Defendant is a person who has overall control over the tasks of a branch from a branch office of an industrial bank in A and second floors to a branch office.

The Defendant was provided with meals equivalent to KRW 105,00,000 from A on July 2, 2012 in the course of examining and providing the loans to K as described in the foregoing paragraph 1-C. The Defendant received profits equivalent to KRW 1,688,700 in total on seven occasions until February 7, 2013 from that time, and received money and valuables of KRW 5 million in cash on July 24, 2013.

As a result, the Defendant received money and valuables worth KRW 1,688,700 from A in relation to his duties and KRW 5 million in cash.

Summary of Evidence

[Judgment of the court below]

1. The defendant A's partial statement

1. Each police statement made to AB, AC, AD, and J;

1. The current status of each K bonus, the current status of K executives' bonus, the current status of K loan payments (201-2014), the current status of K credit account deposits (201-2014), the details of account deposits in the name of K, copies of passbook (2010-2014), K-type corporate bank accounts (J, J, AF), K-type corporate bank account details, cash transfer statement, cashier's checks temporary payment statement, copies of checks (AG presentation), AG CCI reply data, K-type bank transactions, cash presentation and use (from January 1, 201 to 6, 30.30), the details of payment of K-type bonus payments, the details of deposit funds in the name of K-type bank transactions (2011-2014-3-2014), the details of deposit funds in the name of K-type bank transactions, the details of deposit funds in the name of 500 million won, the details of deposit funds in the name of K-type bank transactions (201-23 billion won deposit funds).

【Facts 1-C and 2 at the Time of Sales】

1. Defendant A’s legal statement

1. Defendant B’s partial statement

1. Third prosecutor's protocol of examination of the defendant B;

1. A copy of an interrogation protocol of an AI suspect;

1. Each police protocol on AB, AH, P, AJ, AK,L, AM, AO, AP, Q, AR, AS, ATS, and AU;

1. K. H. The details of an application for approval for the extension of 00 billion won of K's Account Book No. 1, the Director of the Account Book No. 1, the disbursement records of K's executives and employees, AB entertainment expense records, copies of each business management book No. 2012 and 2013, A2.2013 office No. 2013, No. 2012.200, each request for approval for the extension of 00 billion won of K's Account No. 1, the details of an application for approval for the extension of 05 billion won of K's Card No. 1, the details of an application for approval for the extension of 00 billion won of K's Account No. 1, the details of an application for approval for the extension of 00 billion won of K's Account No. 1, the details of an application for approval for the extension of 1,500,0000 won of K's Account No. 2, the review records of credit Guarantee No. 3, the Account No. 3 Record No.

【No. 1-D.】

1. Defendant A’s legal statement

1. Copies of the suspect examination protocol of Q and R by the military prosecutor;

1. Goods purchase contract, the details of entertainment expenses by transaction partner in 2013, the entertainment expenses of each representative director in 2012, the bonus and entertainment expenses, the current status of (K and H) corporation cards.xls files, the current status of K. H corporation cards ( February 5, 2014), seven copies of the receipt and delivery of messages with AB (the Director in charge of H Accounting), two copies of the receipt and reception of messages with QB (the Director in charge of H Accounting), two copies of the receipt and reception of messages with Q2, seven copies of the receipt of text messages with Q2, the current status of entertainment expenses, two copies of the receipt and reception of text messages with Q2, the results of the search of text messages from each representative director in 2013, and two copies of the A-S corporation and Q2, the current status of receipt and reception of text messages of each of the A-S corporation and Q2, the current status of receipt and reception of text messages materials from each of the A-S corporation and Q2, and the details of entertainment expenses from each of the B-type No.

Application of Statutes

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

A. Defendant A: Articles 356 and 355(1) of the Criminal Act (the embezzlement of the victim H, including the embezzlement of the victim H, the choice of imprisonment), Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356 and 355(1) of the Criminal Act (including the embezzlement of the victim K), Articles 133(1) and 129(1) of the Criminal Act, Article 4(1)2 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 2 subparag. 2 of the Enforcement Decree of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 133(1) and Article 132 of the Criminal Act, Article 133(1) and Article 132 of the Criminal Act, Article 133(1) and Article 129(1) of the Criminal Act

B. Defendant B: Article 129(1) of the Criminal Act, Article 4(1)2 of the Act on the Aggravated Punishment, etc. of Specific Crimes, and Article 2 Subparag. 2 of the Enforcement Decree of the same Act (generally, choice of imprisonment with prison labor and concurrent punishment of fines pursuant to Article 2(2) of the Act on the Aggravated Punishment, etc

1. Aggravation for concurrent crimes;

Defendant A: The punishment provided for in the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act, which is the largest penalty, shall be aggravated for concurrent crimes with punishment provided for in the Act on the Aggravated Punishment, etc.

1. Discretionary mitigation;

Defendant A: Articles 53 and 55(1)3 of the Criminal Act (The conditions favorable to the reasons for sentencing below)

1. Detention in a workhouse;

Defendant B: Articles 70(1) and 69(2) of the Criminal Act

1. Suspension of execution;

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

1. Additional collection:

Defendant B: the latter part of Article 134 of the Criminal Act

1. Order of provisional payment;

Defendant B: Article 334(1) of the Criminal Procedure Act

Judgment on the Issues

1. The point of embezzlement of KRW 500 million (attached Form 1-b) in the judgment No. 1-b. 500 million (attached Form 1-2)

A. Summary of Defendant A’s assertion

The defendant, while participating in the capital increase with the capital increase of the K in question of the K in the Industrial Bank (hereinafter referred to as the "K"), borrowed and used 500 million won out of 1 billion won as stated in the decision that K obtained a loan from the Industrial Bank, with the confirmation of the director general of the Industrial Bank Re-K. In fact, K is a single-person company of the defendant, and K was in charge of accounting as a "short-term loan" for the above loan. Since it has repaid the total amount of 538,249,972 won, there is no intention to acquire the above 500 million won in the act

B. Relevant legal principles

The representative director of a company or a person who has carried out de facto administrative affairs related to the custody or management of the company's funds corresponding thereto is not an agreement on interest or maturity for the withdrawal and use of large company funds for purposes other than expenditure for the company, and the use of funds is not subject to lawful procedures such as the resolution by the board of directors, etc. It is nothing more than that of arbitrarily lending and disposing of the company funds for private purposes by taking advantage of the status of representative director and others beyond the generally acceptable scope. Meanwhile, in the crime of embezzlement, the intent of unlawful acquisition refers to the intention of disposing of the company's assets in violation of his/her duties for the purpose of pursuing his/her own or a third party's interest, and even if there is an intention to return or compensate it later, it does not interfere with the recognition of the intention of unlawful acquisition, and it is not necessary to deduct the amount paid ex post facto or compensated from the embezzlement amount (see, e.g., Supreme Court Decision 2010Do3399, May 27, 2010).

C. Determination

1) In full view of the evidence duly admitted and examined by this Court, the following facts or circumstances are revealed.

A) On March 2012, the Defendant requested an industrial bank to issue K’s “M development project fund a refund loan of KRW 9.34 billion and a payment guarantee of KRW 7 billion guaranteed to be submitted to the Defense Acquisition Program Administration, but the approval of the head office was refused. On April 2012, the Defendant applied for a loan to L branch and applied for a credit loan of KRW 1 billion around May 14, 2012 according to K’s credit rating (B), and even around June 2012, the Defendant applied for the loan of KRW 9.34 billion, the payment guarantee certificate, and the credit issuance credit were rejected on July 8, 2012.

B) According to an application for approval for extension of a L branch of the Industrial Bank L branch of the Industrial Bank (Operation) (Evidence Record 8133,8134 pages), with respect to the request of K for credit loans of one billion won to the Industrial Bank in order to use it for the purpose of operating funds, such as purchase of raw materials, the Industrial Bank provides that “K shall support K’s smooth management activities and grant credit loans from a point of view of expanding its business assets, as it is anticipated that the financial structure is weak due to the deterioration of its operating capacity due to the bankruptcy of both automobiles and the increase of loans by new plant construction, etc., or that the sales recovery due to the normalization of management of both automobiles, the promotion of the diversification of sales into modern and Arabic automobiles, and the expansion of its business assets.”

C) On May 14, 2012, the Defendant transferred KRW 500,000,000,000, out of KRW 1 billion of the loans paid to K’s Industrial Bank account to K’s bank account on the same day, and then withdrawn the check (not less than KRW 100,000,000, KRW 10,000) and used it as its purchase fund.

D) After November 2012, K accounting of the above KRW 500 million as “short-term loan,” and it did not undergo a resolution of the board of directors with respect to the above lending and lending, and there was no other interest or payment period agreement. In addition, in view of the Defendant’s financial status at the time of withdrawal and use of the above KRW 500 million, the Defendant appears not to have been able to return K’s short-term loan within a considerable period of time.

2) In light of the financial status of K in the above facts, the purpose of the above loan and the actual use of the withdrawn loan, the Defendant’s financial status at the time, etc., the Defendant’s act of withdrawing the company’s funds without the resolution of the board of directors, interest, and the agreement on the due date for payment, and the disposal of the company’s funds for private purposes by taking advantage of the representative director’s status beyond the generally accepted official authority or business scope, and thus, the intent of unlawful acquisition is sufficiently recognized, and it does not change from the point of view that K actually repaid all principal and interest after conducting accounting, or that K is the Defendant’

2. Whether the case constitutes a bribe of five million won under paragraph (2) of the judgment;

A. Summary of Defendant B’s assertion

The defendant's decision that he received KRW 5 million from A is merely a money borrowed on the basis of personal friendship, and K has already been provided with all necessary credit from the Industrial Bank, so there is no relationship between the defendant's receipt of the above KRW 5 million and the defendant's duty.

B. Relevant legal principles

In the context of the crime of bribery, if the accepter claims that he/she has received money from the accepter but not received the money from the accepter, whether or not the accepter actually borrows the money shall be determined by taking full account of all the objective circumstances revealed through evidence, such as the motive, reason for delivery, and method of receiving the money from the accepter, the relationship between the accepter and the accepter, the position and work experience of the accepter, the need for borrowing the money, the possibility of borrowing the money from the person other than the accepter, the amount of the borrowed money and the circumstances of the accepter, the economic situation of the accepter, the amount of the borrowed money, the amount of the borrowed money, the amount of the borrowed money, the amount of the guaranteed money, the amount of the guaranteed economic interest related to the accepter, the existence of payment period and interest agreement, the possibility of compulsory execution (see, e.g., Supreme Court Decision 2007Do3943, Sept. 7, 207).

C. Determination

1) In full view of the evidence duly admitted and examined by this Court, the following facts or circumstances are revealed.

A) On February 2 to 3, 2012, the Defendant and the K representative director of the Industrial Bank L branch of the Industrial Bank, and A, the Defendant and the K representative director, were first known in the course of obtaining loans from the Industrial Bank for the development of M, and were regularly met at “AZ, which is a group of the Industrial Bank L branch and the trading companies.”

B) The Defendant asked A to send KRW 5 million, as indicated in its holding, when the business partner AV, who had provided financial support, was bound by other cases, and requested the assistance of attorney fees and criminal agreement. In this regard, the Defendant stated that AV requested A to assist by threatening that it would help the past monetary (Evidence Record 12240 pages), and that A could not be able to refuse the Defendant’s demand because it is difficult for K to pay back the loans if the Defendant is absent (Evidence Record 13172 pages).

C) A, upon the Defendant’s request, made AC, the Vice-President of H H H H H H team and withdrawn approximately KRW 5 million in cash from the national bank account in the name of the K head office BA branch of the National Bank BA branch of the K K headquarters at approximately 11km, and made it deposited into the agricultural bank account in the name of AV P by the passbook without passbook.

D) K was provided by the Industrial Bank from January 2013 to the Industrial Bank with loans totaling KRW 29 billion, such as substitution loans, issuance of payment guarantee certificates, and issuance of letters of credit. However, even when the above five million won was granted, K would have been able to expect the Defendant’s help or convenience in extending loans, additional loans, and repayment of loans.

E) The Defendant, while receiving KRW 5 million from A, did not use a loan certificate or did not specify the due date and interest (which did not provide water as collateral) and returned the said money to A only when the investigation into A was conducted with respect to the foregoing development project. In the prosecutor’s investigation, the Defendant stated that, although he/she was verbally lent money to A, he/she and A knew that all of the above money was not borrowed (the steam record 12242 pages), he/she stated in this court that: (a) even though he/she expressed in the form of lending when he/she requested money, he/she did not actually demand the Defendant to pay the money or receive the said money (2 pages of the A witness examination record).

2) According to the above facts, it is reasonable to view that the defendant's KRW 5 million received from A constitutes a bribe, not as a loan, but as an unfair profit having a quid pro quo relationship with the defendant's duties.

Reasons for sentencing

1. Defendant A

(a) Scope of applicable sentences under Acts: Imprisonment with prison labor for a period of one year and six months from June to twenty years; and

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

1) The crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and occupational embezzlement

[Determination of Punishment] Embezzlement/Offense Group, Type 3 (not less than KRW 500,00 but less than KRW 5 billion)

[Special Mitigation] substantial one company or family company, penalty not being imposed, or substantial damage has been recovered.

[Scope of Recommendation] Imprisonment from September to 3 years (Special Mitigation Area)

2) Each crime of offering of bribe

[Determination of Type] Bribery, Bribery, and Type 1 (less than KRW 30 million)

【Special Convicted Person】

[Scope of Recommendation] Imprisonment from April to October (Basic Area)

3) Imprisonment with prison labor for 9 months to 3 years (=3 years + (10 months x 1/2))

(c) Determination of sentence;

The Defendant, while operating two manufacturing companies, withdrawn and used company funds by accounting methods, such as payment of salaries and bonuses to wife, executives, and employees, and offered cash and several times to the head of the branch office of the National Bank of Korea, and offered more entertainment than KRW 3,700,000 to the officer in charge of active duty service, upon soliciting the ordering project of the Defense Acquisition Program Administration. The amount of embezzlement is not large, and the Defendant’s crime is not weak in that the amount of embezzlement damages the fairness in the duties of the National Bank, defense acquisition programs, and the fairness in the duties of the National Bank and defense acquisition programs, etc.

However, the Defendant selected a capital increase in order to avoid the financial difficulties of the company, and appeared to have been liable for personal debt, thereby causing the crime of embezzlement. Also, the Defendant returned the embezzled money to the company, and renounced retirement benefits, etc. In addition, the amount of bribe granted by the Defendant was not so large, and there is no aspect that the Defendant issued cash or provided entertainment based on the friendly relationship with Q and R, in response to the demand of B. Furthermore, the Defendant’s age, character and behavior and environment, motive and consequence of the crime, and circumstances revealed in the oral proceedings, etc. In addition, the Defendant determined the punishment as ordered within the scope of the recommended sentencing guidelines, and suspended its execution.

2. Defendant B

(a) Scope of applicable sentences under law: Imprisonment of one to five years, and fine of 13,377,400 to 33,443,50 won; and

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

[Determination of Punishment] Bribery, Acceptance of Bribery, Type 1 (less than KRW 10 million)

【Special Convicted Person】

[Scope of Recommendation] From April to one year (Basic Area) of imprisonment

(c) Determination of sentence;

The instant crime was committed by the Defendant, the head of the branch office of the central bank, who received cash and entertainment from the representative of the company that received credit, and is a crime that may undermine the fairness and appropriateness of the lending business of the central bank and the social trust in this regard.

However, the amount of money and valuables received is relatively small, five million won in cash has been fully repaid, approximately 40 years have been faithfully working at the National Bank, and there is no criminal record.

In addition, considering the age, character, conduct and environment of the defendant, motive and consequence of the crime, the circumstances after the crime, etc. and various circumstances shown in the oral proceedings, the punishment as ordered shall be determined within the scope of recommended sentencing guidelines and the execution thereof shall be suspended.

The presiding judge and judges;

Judges Sung Jae-in

Judges' Index

1) The indictment is deemed to have been remitted on July 23, 2013. However, according to the record, it is obvious that the date when the defendant remitted KRW 5 million is July 24, 2013, and thus, the indictment is corrected.

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.

A person shall be appointed.