2013Gohap192 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), specific competition

Violation of the Act on the Aggravated Punishment, etc. of Crimes (Misappropriation), occupational embezzlement

A

Gambal interference (prosecutions) and Written Judgment (Public Trial)

Attorney B

September 13, 2013

A defendant shall be punished by imprisonment for four years.

Criminal facts

On July 1, 1989, the Defendant entered the D Saemaul Savings Depository located in the Busan Young-gu, Busan, and from October 200 to October 16, 200 to work as the head of the above D Saemaul Savings Depository, and from July 2004 to January 16, 201 as the managing director, the Defendant was engaged in the business of keeping the loan repayment from the borrower to the community credit cooperatives in order to deposit the loan repayment from the above community credit cooperatives into the community credit cooperatives.

1. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement): Embezzlement by omitting deposits in loan repayment;

On October 16, 2008, the Defendant: (a) on October 4, 2006, the borrower E, who borrowed KRW 55 million from the above community credit cooperative on October 4, 2006 from the above community credit cooperative, granted the Defendant KRW 55 million to repay the loan amount; and (b) on October 16, 2008, the Defendant kept the above amount in custody for the victim’s community credit cooperative.

The Defendant received KRW 1,203,200,000 from around April 2003 to June 29, 2012 as loan repayment and embezzled it for personal purposes while keeping the aforementioned money for the victim's D Saemaul Depository, such as arbitrarily using it for personal purposes.

2. Occupational embezzlement: Embezzlement by means of withdrawing customer deposits entrusted;

A. On November 23, 2012, the Defendant: (a) voluntarily withdrawn KRW 33.5 million from the said deposit account from the Defendant’s personal debt repayment, etc. and embezzled the said deposit by requesting the management of the said bank account from the victim F, the deposit owner of the D Saemaul Savings Depository; and (b) subsequently, on November 23, 2012, the Defendant embezzled the said deposit for the victim’s personal debt repayment, etc.

B. The Defendant voluntarily withdrawn KRW 50 million from the said deposit account on November 22, 2012, and embezzled KRW 26,20 million on November 27, 2012, and KRW 50 million on November 27, 2012 from the said deposit account in the said community credit cooperative while receiving a request from the victim H, who is the deposit owner of the D community credit cooperative, for the management of the said deposit account (I) and was in the custody of the said deposit for the victim.

3. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

(a) Breach of trust by means of lending under another person’s name;

Around July 22, 2010, the Defendant borrowed funds of community credit cooperatives by taking charge of lending business of community credit cooperatives in the above community credit cooperatives, thereby enhancing the soundness and profitability of asset management of community credit cooperatives, and checking the credit standing, etc. subject to credit, and despite the fact that the Defendant violated his/her duties, even though he/she was to use funds for his/her own personal use, it was subject to the application procedure for the loan under the name of the J and received a loan of KRW 15 million.

As a result, the Defendant acquired the pecuniary benefits equivalent to KRW 15 million, and incurred property damage equivalent to the same amount to the above community credit cooperatives from August 20, 2002 to December 6, 2012 by the above methods, such as the list of crimes (a breach of trust for processing loans) in attached Form 25,00, and acquired the pecuniary benefits equivalent to KRW 725,000,000 from August 20, 202 to December 6, 2012, and suffered property damage equivalent to the same amount to the above community credit cooperatives.

(b) Breach of trust by means of increasing loans to customers who apply for loans;

Around June 20, 2012, the Defendant received an application for a loan of KRW 10 million from K to undergo an examination on the loan, and even if there were occupational duties to provide the loan equivalent to the above loan, in violation of his/her duties, the Defendant obtained a loan of KRW 40 million from the documents related to the application for a loan of KRW 40 million to K and paid the remainder of KRW 30 million to K as a loan, and received it by the Defendant. Accordingly, the Defendant acquired the pecuniary benefits of KRW 30 million and incurred property damage equivalent to the above amount of KRW 30 million from November 28, 2008 to November 24, 2012, the Defendant acquired the above property benefits of KRW 894,500,000 from the above community credit cooperatives in violation of his/her duties and received the loan of KRW 30 million from the above community credit cooperatives as stated in the list of crimes in the attached Form.

Summary of Evidence

1. Partial statement of the defendant;

1. Each statutory statement of the witness L, M and N; 1. Each prosecutor's protocol of examination of the accused by a part of the prosecutor's office (including a substitute);

1. Each prosecutor's statement concerning 0, P, Q, L, R, S, and T;

1. Prosecution investigation report (verification of the user of a check issued in U.S. account);

1. One copy of loans provided by D community credit cooperatives;

1. Application of statutes to each fact-finding reply to the Federation of community credit cooperatives;

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

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 business by the method of omitting the deposit of loan repayment), Articles 356 and 355 (1) of the Criminal Act (including the embezzlement of business by the method of withdrawing the deposit of the entrusted customer deposit), Articles 356 and 355 (1) of the Criminal Act (including the embezzlement of business by the method of withdrawing the deposit of the entrusted customer deposit), Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356 and 35

1. Aggravation for concurrent crimes;

Determination on the assertion of the defendant and defense counsel in the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act, and Article 50 of the Criminal Act, which are the largest penalty, shall be aggravated for concurrent crimes in violation of the Act on the Aggravated Punishment

1. Summary of the assertion

① As to the No. 2, 14, 22, and 23 of the [Attachment 3-A] of the judgment, each of the above loans was executed with the consent of the title trustee on the security of real estate held in title trust by the Defendant, and thus, the Defendant cannot be deemed to have violated his/her duties, and thus, the crime of occupational breach of trust is not established.

In the judgment of the court, the crime Nos. 20, 21, 22 and No. 3-A. 13, 15, 17, and 18 listed in the list of crimes listed in the [Attachment 1] of [Attachment 1] and [Attachment 1] of [Attachment 1] are separate crimes in which the interval between the remaining crimes charged for a single comprehensive crime and the other crimes is larger, and the statute of limitations has expired for each of the above crimes.

A. As to the allegation No. 1

1) The crime of occupational breach of trust is established when a person who administers another’s business obtains pecuniary advantage or causes a third party to obtain such benefit from an act in violation of one’s duty, thereby causing damage to the principal. In such cases, an act in violation of one’s duty includes any act in violation of a fiduciary relationship with the principal by failing to perform an act that is naturally expected not to perform or not to perform an act that is naturally expected under the provisions of law, the content of the contract, or the good faith principle, in light of specific circumstances, such as the content and nature of the business to be handled (see, e.g., Supreme Court Decision 2003Do3516, Oct.

2) According to the aforementioned evidence, the real estate offered as security for each loan claimed by the Defendant and his defense counsel is a real estate title trusted by the Defendant to Ma and N, a lender, and the Defendant provided as security and obtained the loan from D Saemaul Savings Depository, and at least implicitly and implicitly, obtained the consent from Ma and N, a trustee in the name of the trustee.

However, according to the above evidence, ① loans to employees of community credit cooperatives and employees of community credit cooperatives under Articles 644 through 650 of the Credit Guarantee Fund Act, except for loans within the scope of pre-paid and installment savings under the name of executive officers and employees, mortgage loans under the name of executive officers and employees, mortgage loans under the name of the principal, and deposits under five million won or less, are implemented within a certain lending limit and guarantee limit by restricting the kinds and purposes of funds for livelihood stabilization, housing funds, accident settlement funds, and ② Defendant is required to obtain loans under the name of the principal in the name of the Defendant in order to provide real estate under a title trust as collateral and obtain loans from community credit cooperatives in accordance with due process. However, since the above regulations on limitation of loans to employees of community credit cooperatives were impossible, the Defendant did not have the right to use the loans under the name of the principal in the name of the Defendant for the personal purpose. ③ On the other hand, community credit cooperatives did not have the right to use credit information of individual debt-related persons as a bank.

B. As to the above argument

It is recognized that each of the above crimes alleged by the defendant and his defense counsel has a considerable time [3 years and two months from August 5, 2005 (No. 22) to October 16, 2008 (No. 1, 2008), and the part No. 3-A. 3 of the judgment (No. 17) to September 13 (No. 17) to June 7 (No. 22), 2006).

However, the following circumstances acknowledged by the evidence, i.e., (i) the embezzlement of Paragraph (1) of the judgment, without depositing the loan repaid by the borrower into a community credit cooperative, and (ii) the Defendant used the loan voluntarily from the community credit cooperative in the name of the processed lender, and the victim's legal benefits are identical; and (iii) the Defendant borrowed personal funds for lending V and W from 201 to 202 to 102 to 3rd the term deposit under the name of this mother and the community credit cooperative in the name of this mother's name; and (iv) the Defendant continued to commit the crime as stated in its reasoning after the commencement of the embezzlement of the above loan and the embezzlement of the processing loan; and (v) the Defendant's assertion that some of the above crimes were committed by each of the above facts, including the motive and circumstances of each crime; and (iii) the circumstances that each of the above crimes was committed by the Defendant during the period of 10 years, and there is no difference between each of the above facts and the profits used by each of the above crimes.

Reasons for sentencing

[Scope of Punishment] Imprisonment of 3 years to 45 years

【Scope of Recommendation】

○ Determination: Embezzlement and Misappropriation, 50 million won or more, and less than 5 billion won (type 3)

○ Special Convicts

- Aggravations: Where serious damage is caused to the injured party, the method of commission is very poor;

○ General Convicts

- Aggravations: in the case of embezzlement

○ Scope of Recommendation: Imprisonment of up to nine years (special aggravation)

[Determination of Sentence] Four years of imprisonment

The crime of this case is highly likely to be committed by the defendant, who is a regular manager of a financial institution, using the status in which the defendant is in charge of lending business independently, as useful funds of community credit cooperatives and customers for a long time. The above crime of this case by the employees of a financial institution is likely to seriously affect the national economy by undermining the general public's trust in the entire financial system that forms the foundation of the capitalistic economic system, and undermining the financial and foundation of community credit cooperatives mainly used by ordinary people and small merchants, thereby undermining the financial and foundation of community credit cooperatives. As a result, a serious criminal who can lead to a serious risk to the economically weak, the total amount of damages is a large amount of KRW 3 billion, and most damages are not recovered.

However, the defendant is against most of the criminal acts; the defendant seems to have contributed to the normalization of victim community credit cooperatives around 2004; the defendant has no record of criminal punishment other than a single fine due to drunk driving; the considerable part of the damage amount is deemed to have been used to repay the loan interest, etc.; the defendant has made efforts to recover damage while repaying part of the damage amount (as approximately KRW 200,000), and the punishment is determined as ordered in consideration of the defendant's age, character and conduct, family relation, and other various sentencing conditions specified in the arguments of this case, such as the defendant's age, personality and conduct, family relation.

Chief Judge Park Jong-chul

Judge Lee Young-young

Judges Cho Jong-sung

1) For concurrent crimes of the same kind, the type shall be determined on the basis of the sum of the amount of profit from embezzlement and breach of trust.

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.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.