(영문) 서울고등법원 2013.4.18.선고 2012노3711 판결

Of the facts charged, the lower court found the Defendant guilty on the embezzlement of KRW 7,262,50,000 in total over 30 billion, including the purchase price of preemptive rights to new shares, the payment of convertible bonds, and the payment for capital increase with new stocks, etc., of KRW 30 billion in collusion with D, but found the Defendant not guilty on the charge that he embezzled KRW 9,040,709,174 in total over 42 times. However, the lower court found the Defendant guilty on the charge that he embezzled KRW 9,040,70 in total over 42 times. However, the lower court found the Defendant guilty on the grounds that the aforementioned funds kept by the Defendant were used for the company, and the Defendant did not submit any objective data corresponding thereto, and thus, the part of the Defendant’s acquittal also should be deemed as embezzlement and recognized as guilty on the ground that the Defendant, etc. used them at will. However, the lower court erred by misapprehending the facts or misapprehending the legal doctrine on embezzlement.

2) Unreasonable sentencing

The punishment of the first instance judgment against the accused (six years of imprisonment) is too unhued and unfair.

B. Defendant

1) misunderstanding of facts and misapprehension of legal principles

A) The part of the lower judgment’s embezzlement

(1) The absence of unlawful acquisition intent for F’s share price management and sale of preemptive rights to new shares, fees used for success in capital increase with consideration, interest, compensation for losses, etc.

The Defendant and D used the FF’s funds to manage the F’s share price, selling expenses for preemptive rights, fees for raising funds for capital increase, interest, and compensation for losses. However, at the time, there was a need to manage shares to a certain extent in order to ensure the success of the sale of preemptive rights and conversion of shares, and 25 billion won of capital increase. This was inevitable in order to liquidate the company’s short-term liabilities, secure operating funds, and prevent a situation of delisting by refusing to state opinions in an accounting audit as a listed corporation, and it was not for the personal interest of the Defendant, etc., and thus, it cannot be deemed that the Defendant et al. intended unlawful acquisition of embezzlement against the money disbursed for the said purpose.

(2) AY’s deposit in the accounts of AY (hereinafter “AY”) is a company established for the purpose of saving taxes, such as global income tax, as the BY (hereinafter “BM”) received orders from F with the trade name of “BM,” and is not a company established by the Defendant, etc. for the purpose of embezzlement of F’s funds. Furthermore, given that considerable portion of the money deposited in the accounts in the name of AY was paid as the construction cost actually executed, even if part of the money was used for other purposes, it cannot be deemed as embezzlement just because it was deposited in the accounts in the name of AY (i.e., whether or not the relevant amount was established individually).

(3) An AI (hereinafter referred to as “AI”) account deposit amount is a company run by W, and F entered into an advisory contract with W and funding, debt adjustment, and new business-related consulting. Accordingly, the amount deposited into the AI account was paid as the consulting fee for W. Therefore, even if W participated in the share price management of F shares and was compensated for losses arising therefrom, such circumstance alone cannot be deemed as embezzlement.

(4) Even if the fact that Q Q’s deposit amount in the B Q account did not directly lend money to F, rather than making a loan to F, all the said money was used as F’s operating capital. Furthermore, there is room to view that F was also making a substitute payment to B Q, a creditor of F, instead of making a repayment to F, as it is reasonable to view that F made a substitute payment to B Q, a creditor of F, in lieu of making a repayment to F, the determination of F’s embezzlement is either erroneous or erroneous.

(5) It was true that the BR’s deposit amount to the FR account was 0's wife who participated in F's share price management, but at the same time, the N, the representative of N, the real estate company, and N, the N, carried out the project of the Seocho-dong reconstruction Prop. Therefore, even if the money deposited to the BR account was paid advance payment to N, it was erroneous that it was paid to N, and that it was recognized as the money paid in relation to the purchase of shares.

(6) 60 million won deposited in AH (AC) account was properly paid out of the total amount of construction contract equivalent to KRW 2.6 billion entered into between F and AH. However, as the F representative Director’s performance of duties was suspended and the duty agency system was established during the implementation of the Corporation’s authorization and permission, a new performance of duties was suspended, and the loss was incurred after the purchase of MaF shares, and this was appropriated by AC for compensation for losses after the fact that the payment itself was embezzlement.

(7) Money deposited in AX account;

1.70 million won deposited in the above account is re-deposited to the EJ account, one of the F’s borrowed accounts, and used as a fund for the F’s stock price management. Since then, on February 26, 2010, KRW 120 million,00,000,000,000, which sold shares, were re-returned to the F account in the name of F. Therefore, the said money is not embezzled, and even if not, the said money is not embezzled, 120,000 won re-returned should be excluded from the amount of embezzlement.

(8) NN, DE, DG, and AS account deposit amount, NN, and DE purchased approximately KRW 1.5 billion when selling the warrant certificates equivalent to approximately KRW 4.5 billion on September 2, 2009. DG and AS purchased the warrant certificates equivalent to KRW 2 billion on October 23, 2009. The money deposited in the account in the above person’s name was compensated by the company for part of the cost of purchasing the warrant certificates at the time. Since it was necessary to take such measures in order to facilitate the sale and purchase of the warrant certificates from the F’s standpoint, the said money was not properly disbursed for the company by the Defendant, etc.

(9) Money deposited in AP account, Q, AK, and AP account

The above account is an account of bond business entities CB and AE’s interested parties, who lent insufficient funds at the time of capital increase with capital increase issued by F, which was the first day of January 2010, and the said money was paid as commission, interest, and loss security deposit, etc. for collecting and mediating the former CB and AE to participate in capital increase. Therefore, the Defendant, etc. did not constitute embezzlement.

B) The part of the judgment of the court below in violation of the Tourism Promotion Act, S and T paid funds for the purpose of investment and participated in the operation of the casino, and even though the lease agreement was only made out for the purpose of soliciting the transfer sets, and the right to operate the casino is not substantially leased, the court below found the Defendant guilty by misunderstanding

C) The part of the lower judgment in breach of trust

It is true that the Defendant, etc. borrowed KRW 2 billion in the name of F from the Z Co., Ltd. (hereinafter “Z”) and provided the collateral such as promissory notes of KRW 4.5 billion in total and real estate beneficiary certificates of KRW 4 billion in the face value, in addition to the establishment of the right to collateral security of KRW 4.0 billion with the maximum debt amount. However, as the aforementioned borrowed money was deposited in the F’s account and duly executed in F, even if there is doubt that the Defendant, etc. used the borrowed money for private purposes, it cannot be deemed as a breach of trust to borrow and provide the said money properly.

Furthermore, even if a creditor has been provided with a security exceeding the principal and interest of a loan, the effect of the security is limited to the principal and interest of a loan, and the security exceeding the principal and interest of a loan is naturally null and void. Thus, it cannot be deemed that a Z acquired a property profit equivalent to the whole value of a security provided in excess of the scope of the loan principal and interest of a loan, and the F cannot be deemed to have incurred a separate property loss exceeding the loan principal and interest of a loan. Thus, even if a crime of

2) Unreasonable sentencing

The punishment of the lower court against the Defendant (six years of imprisonment with prison labor of the lower court, two years and six months of imprisonment with prison labor of the lower court) is too unreasonable.

2. Determination

A. Ex officio determination

Before the judgment on the grounds for appeal by the prosecutor and the defendant, the first and second court rendered a judgment of conviction on each of the defendant after completing a separate hearing on the grounds for appeal by the prosecutor and the defendant, and the first and second court appealed on both the prosecutor and the defendant, and the second and the second court rendered a decision to concurrently examine the above two appeals cases. However, since the first and the second court's judgment on the defendant are both concurrent offenses under Article 37 of the Criminal Act and the first and the second court's decision on a single sentence within the scope of a sentence imposed on the defendant under Article 38 (1) of the Criminal Act, the first and the second court's decision on the defendant cannot be exempted from the whole reversal in this reason. However, despite the ex officio reasons for reversal, the first and the second court's judgment on the defendant cannot be exempted from the whole reversal. Nevertheless, despite the fact that there are errors of facts and misapprehension of legal principles as to the first and the second court's judgment on the defendant's second and the second court'

B. Determination of the lower judgment on the part of not guilty of embezzlement

1) Summary of the facts charged

The summary of this part of the facts charged is as follows: (a) the Defendant conspireds with D to sell the new stocks held by F more than six times on August 7, 2009, KRW 10,197,989,928, KRW 99,000, KRW 199,000, KRW 16,742,000, KRW 19,742,000, KRW 199, KRW 99,99,50, KRW 800, KRW 18,000, KRW 30,000, KRW 199, KRW 99, KRW 50, KRW 18, KRW 18, KRW 9, KRW 989, KRW 9, KRW 928, KRW 928, Sept. 28, 2009; and (b) KRW 300,000, KRW 300,000, KRW 4,209.

2) The judgment of the court below

The court below found the defendant guilty on the ground that there is an act of embezzlement as an act of realizing the intent of unlawful acquisition in the crime of embezzlement. The prosecutor must only prove the existence of embezzlement. The evidence should be based on strict evidence with probative value that leads to a judge to a reasonable doubt. If there is no such evidence, the defendant's suspicion of guilt should be determined as the defendant's interest even if there is no such evidence. Therefore, if the defendant's whereabouts or use of money in his/her custody has been lost, then he/she can be presumed as embezzlement of money by voluntary consumption. However, if the defendant does not properly explain his/her whereabouts or use of money, it is difficult to recognize the existence of an intention of unlawful acquisition, and if there are materials corresponding thereto, it should be explained about his/her whereabouts or use of money for the reason that it is difficult to recognize the existence of an intention of unlawful acquisition, and then, if there are other materials, it cannot be readily concluded that the defendant withdrawn the entrusted money for another purpose of use, and then embezzlement it cannot be concluded that there is no sufficient evidence to acknowledge this part of the charges.

3) Determination of the immediate deliberation

A) According to the evidence duly adopted by the court below and the court below, although it is apparent that the defendant participated in the F's decision-making process, it is not clear that the defendant exercised the F's right to approve the disbursement of funds or the settlement of accounts, it is mainly dealt with by the representative director D, and each bank passbook in F was also managed as representative director D. In light of these circumstances, since the representative director D used personal money beyond the scope of the defendant's solicitation, or used money in relation to the actual F's operation, it is possible for the defendant to know that he was well aware of it. Even if this is all, it is not possible to presume that the defendant was embezzled by voluntary consumption, and it is necessary to clarify the use of money which can be recognized to have been withdrawn at least by illegal acquisition intent through strict certification.

B) The part maintaining the judgment of the court below

이러한 관점에서 살펴보면, BY[제1 원심판결 별지 범죄일람표 2 순번 1, 12(이하 나)항의 순번 표시는 같은 범죄일람표의 순번을 가리킨다), E의 직원인데, 2009. 8. 31. 및 2009. 9. 29. 입금된 것은 F 운영자금을 차용한 뒤 변제한 것인지 신주인수권 매입비용 등을 지급한 것인지 불분명하다는 원심 증인 E의 진술이 있다], DX[순번 42, E은 수사기관에서 2010. 1.경 D이 카지노의 뱅크롤(Bankroll) 자금이 필요하다고 하여 25억 을 대여해 주었다가 이후 돌려받았다고 진술하였는바, 돌려받았다는 시기가 위 입금을자와 비슷하고 액수가 동일하여 E에게 변제된 돈이 아닌가 하는 의심이 들고, 달리 다른 명목으로 사용되었음을 인정할 만한 증거가 없다], T(순번 2, S과 함께 카지노 운영에 참여하였으며, F와 여러 차례 운영자금 등 금전 거래가 있었다는 원심 증인 S의 진술이 있다.) AM(순번 3, W 운영 AI 직원인데, 2009. 8. 31. 입금된 부분은 F 직원 급여와 관련하여 운영자금을 빌려 주고 변제받은 것이라는 원심 증인 W의 진술이 있다), AT(순번 17, 회사 관련 자금으로 주식담보 융통을 해 주었다가 변제받은 것 같은데, 명동 사무실을 통해서 하기 때문에 어떤 회사에 돈을 빌려주었다가 받았는지 알지 못한다는 AT의 수사기관 전화통화 진술 외 별다른 증거가 없다), BZ(순번 18, CA라는 상호로 물류, 피혁 회사를 운영하고 있고, 지인에게 돈을 빌려주었다가 받은 것 같은데 누구에게 빌려주었다가 받았는지는 오래된 일이어서 기억이 나지 않는다는 수사기관 전화통화 진술 외 별다른 증거가 없다), CB, CE(순번 21, 25, 원심 증인 U의 진술에 의하면 D이 4~5차례 증권 차명계좌를 담보로 하여 CB으로부터 수천만 원씩 F의 운영자금을 차용한 뒤 상환한 적이 있고, CE는 BD의 전 사주인 CD의 기사인데, CD이 2009. 10. 28. 3억 원을 F에 운영자금조로 대여하였고, 2009. 12. 24. F에서 CE에게 2,000만 원을 송금한 것은 그에 대한 이자라고 진술한 바 있다), CG, AJ, V, AX(순번 24, 26, 28, 31, V가 F에 운영자금 등을 빌려 주었는데, F가 V의 채권자 CG, V의 회사 AJ 등에 변제를 위하여 입금한 것이라는 원심 증인 V의 진술이 있다) 등은 회사 운영자금 등과 관련한 금전거래인 것으로 볼 여지가 있고, 달리 볼 만한 특별한 증거가 없다. 또한 DI(순번 4), CJ(순번 5), 신일예담투자(순번 13), DK(순번 14), DL(순번 16), DM(순번 19), CK상호저축은행(순번 20), CM이 DN 명의의 부산은행 계좌에 입금한 3 3. 억(순번 27), 현대백화점에서 사용한 금액(순번 29), DO(순번 30), DR(순번 32), DU 주금(순번 33), AX(순번 34), DV(순번 38), DW(순번 40), CI(순번 41)의 경우 주가 조작을 위하여 사용된 금원이거나 피고인이 사적 용도로 사용한 금원이 아닌가 하는 의심이 들기는 하나 금원의 입금 경위나 최종적인 사용처가 모두 불분명하고, 달리 횡령이라는 점을 인정할 만한 증거가 없으며, J 명의의 신한은행 계좌에 입금된 금원(순번 6, 8, 11) 기재 각 금원 및 K 명의의 계좌로 입금된 금원(순번 9) 역시, 위 계좌들은 모두 F의 차명계좌로서 D이 통장 및 도장을 가지고 관리하였던 것으로 보이는데, J와 피고인의 관계 등에 비추어 보면 피고인의 사적 용도로 사용한 금원이 아닌가 하는 의심이 들기는 하나 역시 회사 운영자금과 관련된 금전거래인 것으로 볼 여지도 있고 해당 금원의 최종적인 사용처가 분명하지 않아 피고인에 대하여 횡령행위를 인정하기 어렵고, 나머지 D 명의 계좌 등에 입금된 금원(순번 7, 22, 23, 35, 36, 37, 39) 역시 D이 피고인과의 공모범위를 넘어서 개인적으로 금원을 사용하였을 가능성을 배제할 수 없고 이에 대하여 피고인의 불법영득의사를 인정할 만한 특별한 증거가 없다.

C) Parts different from the judgment of the court below (No. 2 No. 10, 15)

The court below held that the amount of KRW 100,000,000 deposited in the new bank account under N on September 23, 2009 (No. 10) and the amount of KRW 280,000,000 deposited in the account under the name of one bank under the name of N on October 23, 2009 and the amount of KRW 280,000,000 deposited in the account under the name of one bank under the name of H (No. 15) after false accounting was deposited into other embezzlements and checks, etc.

The Court rendered a not guilty verdict on the charge that the FF funds are likely to be recovered and that it is unclear whether they are deposited directly.

However, the above embezzlement amount of Gap 20 billion won was likely to overlap with the above embezzlement amount of Gap 20 billion won. Since the court below's 20 billion won was charged before October 23, 2009, it seems that the defendant's 20 billion won was not likely to overlap with the money deposited on September 23, 2009 and October 23, 209, even if the court below and the court below duly adopted the evidence, the NF 20 billion won was 10 billion won for the above embezzlement and 200 billion won for the above embezzlement of Gap 20 billion won for the above embezzlement of Eul 20 billion won, and it was also acknowledged that the NF 20 billion won was 10 billion won for each of the above new sale of new shares. The NF 200 billion won for the reasons that the new sale of new shares was not made after the FF 10 billion won was 10 billion won for the new sale of shares.

C. Judgment of the court below of first instance on the Defendant’s assertion of embezzlement guilty

1) The absence of unlawful acquisition intent on the amount used for the FF share price management or the success in capital increase with new stocks

A) On the other hand, the unlawful acquisition intent of embezzlement is an intention to dispose of another person's property in violation of his/her occupational duty for the purpose of pursuing the benefit of himself/herself or a third party, and even if there is an intention to return, compensate, or preserve it later, it does not interfere with the recognition of the intention to acquire unlawful acquisition (see, e.g., Supreme Court Decision 2005Do3045, Aug. 19, 2005): Provided, That if the custodian disposes of it for the benefit of the owner, not for the benefit of himself/herself or a third party, but for the benefit of the owner, it cannot be recognized unless there are special circumstances (see, e.g., Supreme Court Decisions 81Do3009, Mar. 9, 1982; 2009Do495, Apr. 23, 2009). If it is not for the benefit of the owner, it still for the benefit of the owner, or for the benefit of the defendant or individual, it shall not be exempted from the crime of embezzlement (see, 25005Do5.

B) However, according to the evidence duly adopted and examined by the court below and the court below, D, the defendant and the defendant living together with G Co., Ltd. (hereinafter referred to as the "G"), to take over F&M around June 2009, and entered into a contract with 12 billion won for total of 5,555 shares and 6,509,209 out of 12 billion won. (2) However, the defendant, etc. offered 7 billion won out of 12 billion won to K Co., Ltd. and issued 45 billion won as collateral to K Co., Ltd. (hereinafter referred to as 1900 won and 190 billion won, 70 billion won and 90 billion won and 100 billion won and 1.6 billion won and 9 billion won and 200 billion won and more of the total amount of 9 billion won and 100 billion won and more of the above shares acquired as collateral. (3) The defendant and D sold the above shares to K Co., Ltd. (hereinafter referred to the 2098 billion won and 9.).

C) As such, the acquisition process, the timing and method of capital increase increase, the timing and details of the use of the secured funds, the change in the financial status of the FF, and the change in particular, which has been stablely maintained, appears to have been the largest reason for the Defendant, etc. to release large-scale stocks offered to the bond company for the purpose of securing the acquisition price to the market due to the opposite trade. In light of the fact that the Defendant, etc., immediately after the acquisition of the FF, performed large-scale capital increase, etc., not for the expansion of the company’s normal business or securing the financial soundness, but for the bonds and funds secured by the acquisition process, etc., it seems that the Defendant, etc., repaid the debt incurred in the process of acquiring the stocks and funds secured, secure the management right, and try to make profits through the purchase and sale of stocks, etc. Furthermore, the private purpose of the company’s own value and the supply and demand of the stocks distributed to the market is more freely determined. Therefore, in principle, it is difficult to view that the company’s funds used to compensate for losses, etc.

2) Determination on each specific deposit details

A) The lower court determined to the effect that, in light of the following: (a) the amount of deposit in AY account (the first instance court’s judgment) was the most incorporated company in order to avoid compulsory execution, such as provisional seizure from F creditors, and to conceal operating funds, the lower court held that F’s funds have the intent of unlawful acquisition by itself at the time of deposit in the Busan Bank in the name of FY and the account of the Republic of Korea; and (b) the amount of money deposited was used for the purpose of F’s manipulation or F’s purchase; and (c) in light of the fact that F’s funds were already deposited in the account of the Busan Bank in the name of FY and the Republic of Korea at the time of deposit in each account of the Bank in the name of F’s Busan Bank in the name of F and the Republic of Korea.

Considering the evidence duly adopted at the court below and the testimony of the witness BL at the court below, most of these judgments are justified. In other words, BL is a construction business operator who has operated an individual business under the trade name of "BM", and since September 2009, RL clubs was replaced with a substitute president, and it was performed (construction cost of KRW 1,290,710,740) by entrusting the construction of a hotel with a space as a tenant tenant (construction cost of KRW 1,290,710,740), but there was no other construction. However, the amount deposited in AY account exceeds 4 billion won, and the amount actually paid to BL was deducted from part of the amount actually paid to BL, and the representative BK of AY was not "BK head of BY office in W's name such as M&A brokerage, purchase of stocks, etc., and it is recognized that the remainder of AY account was established in the name of AY and No. 2 of the passbook.

B. On January 11, 2010, 310,000 won deposited into the bank account in the name of Y (attached Table 1 5,000 won in the judgment of the court of first instance), BL and Y actually issued eight tax invoices in F from November 2009 to June 201 (total value added tax included 1,360,496,84 won in value added tax). Among them, it is difficult to recognize the payment of 31,000,000 won in the above bank account as evidence for embezzlement and it is difficult to recognize the payment of 50,000,000 won out of the above 31,000 won in the court of first instance to AY, and the remaining 260,000 won in the court of first instance to 260,000 won in consideration of the fact that it is difficult to recognize the payment of the construction price as evidence of the Defendant’s embezzlement.

B) Money deposited in AI, Q, N(BR) and AH account;

The defendant, at the court below, denied the facts charged, and the court below rejected the above argument in D. D. D. case, "specific judgment on embezzlement or embezzlement" under the judgment on the defendant and his defense counsel's assertion. We affirm the judgment of the court below in comparison with the records, and there is no illegality of mistake of facts, such as the defendant's assertion.

C) Money deposited in AX (EJ) account;

According to the evidence duly adopted and examined by the court below, 170 million won deposited in the above account was deposited into the EJ account, one of the F’s borrowed account, and used as a fund for the management of F’s stock price. As seen above, using the company’s funds for the management of illegal stock price should be deemed embezzlement, and even if it was returned after the embezzlement was established, it does not interfere with the establishment of the crime. Thus, this part of the defendant’s assertion is rejected.

D) NN, DE, DG, AS, Q, K, and AP account deposits are both the sales cost of preemptive rights and the commission, interest, and loss security deposit for participation in capital increase with respect to the purchase and sale of preemptive rights, and as seen above, all of them should be deemed embezzlement. Accordingly, the Defendant’s assertion on this part is rejected.

D. Judgment on the Defendant’s assertion on the violation of the Tourism Promotion Act

The Defendant also asserted the same purport as the grounds for appeal in the lower court, and the lower court rejected the Defendant’s assertion in detail in the column of “decision on whether to violate the Tourism Promotion Act” under the title of “decision on the Defendant and his defense counsel’s assertion”. In line with the records, the lower court’s determination on this part is sufficiently acceptable, and the Defendant’s statement by the witness S, which was additionally examined in the lower court, also accords with the lower court’s determination. Accordingly, this part of the Defendant’s assertion is rejected.

E. Judgment on the Defendant’s assertion regarding the judgment of the second instance

1) Determination on the establishment of breach of trust

A) On the other hand, in determining whether there was an intention to acquire the intent to commit a breach of trust or an unlawful acquisition in relation to a business judgment, a strict interpretation criteria for the crime of breach of trust shall be maintained only where it is recognized that the act is an intentional act under the awareness that the person himself or a third party would obtain property benefits and that it would inflict loss on the principal, taking into account various circumstances, such as the developments and motive leading up to the business judgment in question, the contents of the business subject to the determination, the economic situation of the company, and the possibility of incurring loss and the acquisition of profit, etc.

In light of the content, the specific roles and positions of the office executor, and the specific circumstances at the time of the act, whether the act deviates from the ordinary scope of the business performance in light of the good faith principle, and even if considering all the above circumstances as to the business management judgment of the manager, it is necessary to determine whether the intent to acquire, or to have a third party obtain, property benefits by failing to perform, a specific situation in accordance with the provisions of Acts and subordinate statutes, the content of the contract, or an act that is expected not to perform as a matter of course in his/her role and position, or by performing an act that is expected not to perform as a matter of course, and thereby doing harm to the principal (see, e.g., Supreme Court Decision 2007Do6075, Nov. 15, 2007).

B) the board;

According to the evidence duly adopted by the court below, ① Defendant and D borrowed money as collateral from E for F acquisition, and thereafter continued to manage the price of stocks using F for repayment of debts and success of capital increase with new stocks, ② However, under the situation where stocks, etc. offered as collateral fall in a large market, losses guarantee, interest on bond funds, and fees for the stock price management forces continued to exist. As a result, around January 10, 2010, a large amount of money of KRW 19 billion was included in the capital increase for new stocks, but there was still a shortage of funds necessary for the company’s operation; ③ Defendant et al. requested ZF to borrow money of KRW 500 million on February 12, 2010, KRW 1.3 billion on loan of KRW 2 billion on loan of KRW 5 billion, KRW 400 million on loan of KRW 5 billion on loan, and KRW 400 million on loan of KRW 4 billion on loan of KRW 5 billion on the condition that they were issued to the company.

Therefore, the F’s position appears to have no need to have borrowed funds urgently under the above unfavorable condition as at the time, and in fact, it appears that the F borrowed funds under the name of the Company and the Defendant’s personal needs and offered the Company’s property as collateral, and cannot be seen as an act within a reasonable scope of business or a reasonable management judgment. Furthermore, since such debt burden and the offer of collateral thereby bring about a risk of actual loss in the F’s property, this part of the crime of breach of trust does not interfere with the establishment of the crime of breach of trust, and therefore, this part of the Defendant’s

2) Determination on the amount of breach of trust

A) The crime of breach of trust under Article 355 (2) of the Criminal Act is established when a person who administers another's business obtains pecuniary benefits or has a third party obtain it through an act in violation of one's duty and thereby causes loss to the principal. However, in the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes due to the breach of trust, since the amount of profit is more than 500 million won or more than 5 billion won, punishment is aggravated accordingly, the principle of balance between crimes and punishment, that the value of gains acquired should be calculated strictly and carefully, and the principle of accountability that the punishment should be based on the responsibility and proportional liability should not be undermined (see, e.g., Supreme Court en banc Decision 2005Do7288, Apr. 19, 207). Furthermore, in the event of the breach of trust through the provision of security, the profit acquired by a third party is not the collateral itself, but the security right, and therefore, it is reasonable to regard the amount of profit or the amount of secured claim within the maximum debt amount in principle.

B) Determination

However, in light of the above facts and evidence duly admitted by the court below, the Z entered into an agreement with F to receive a fixed profit of KRW 300 million per month, KRW 200 million per month, KRW 300 million per month, KRW 300 million per month, KRW 300 million per month, and KRW 2 billion after four months. The amount of claims asserted by the Z is also 4 billion under the above agreement, KRW 4.5 billion, KRW 4.5 billion per promissory notes certificate provided by F, KRW 4 billion, KRW 4.5 billion, KRW 4 billion, and KRW 4 billion as joint collateral for the above 4.5 billion, the court below held that the above Z's claim that the FF's act of offering collateral constitutes an additional amount of KRW 1.5 billion per month, KRW 1.5 billion per month, which is an affiliate of the Z, was 1.5 billion per month, and thus, it appears that the above part of the charge was 4.5 billion per cent of the total value of the crime.

3. Conclusion

Therefore, the judgment of the court below is reversed under Article 364 (2) and (6) of the Criminal Procedure Act without examining the defendant and the prosecutor's assertion of unfair sentencing, and the judgment of the court below is reversed and it is again decided as follows.

Criminal facts

On June 8, 2009, the defendant borrowed the acquisition price of F Co., Ltd. (hereinafter referred to as "F"), a company established for the purpose of casino business and tourist hotel operation business from E, etc. on June 1, 2009, and listed on the securities market, and entered into a contract with G Co., Ltd. (hereinafter referred to as "G") to acquire 5,55 shares and warrant certificates in the name of H Co., Ltd. (hereinafter referred to as "G") 6,709,209 shares in the name of H Co., Ltd. (hereinafter referred to as "T"), and removed 12 billion won in the name of "I" (hereinafter referred to as "T"), on June 29, 2009; on August 31, 2009, the defendant was removed from office as F Co., Ltd. (hereinafter referred to as "F"); on the same date, the defendant was removed from office 12 billion won in the name of F Co., Ltd. (hereinafter referred to as the representative director), 20.

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

In collusion with D, the Defendant: (a) issued non-guaranteed convertible bonds on September 28, 200; (b) issued the funds 10,197,989,928 won from August 7, 2009 to six times; and (c) paid-in capital through capital increase on January 15, 2010; (b) paid-in capital increase on January 19, 16,742,00 won; (c) paid-in capital increase through capital increase on June 6, 2009 to KRW 3 billion from around 00,00,000 to KRW 3 billion in total; and (d) paid-in capital increase on September 29, 2009 to Seoul; and (d) paid-in capital increase on May 3, 2009 to KRW 19,99,50,000; and (e) paid-in capital increase on May 29, 2009 to the company; and (e) made up capital increase on September 29, 20009.

In collusion with D, from September 1, 2009 to February 10, 201, the Defendant: (a) in Qua casino in P on Jeju, the Defendant: (b) leased the R Q casino operating right to operate the casino to S and T, for which F is operating the casino with permission from the competent authority; and (c) had them operate the casino facilities to other persons.

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

Although the Defendant, who is engaged in the foregoing duties of F, has a duty to faithfully manage the F’s assets and liabilities and to cause any loss to the company, the Defendant, in collusion with D, intended to borrow a large amount of funds in the name of the company to use them as personal repayment, purchase price of stocks to operate the F’s stock price, etc., and, around February 2, 2010, borrowed the amount of KRW 2 billion from DY in the name of Gangnam-gu Seoul, Seoul, from DY to pay interest of KRW 30 million in the name of F, the Defendant agreed to pay interest of KRW 2 billion in the amount of KRW 30,50,000,000,000,000,000 won in the aggregate, KRW 2,50,000,000,000 in the name of the company, and issued the D’s 4,50,000,000 won in the aggregate to the D’s real property and 4,000,000 won in real property.

Summary of Evidence

1. Partial statement of the defendant;

1. Statement of the accused in the trial records of the original court (2012Gohap158), the 9th and the 10th trial records;

1. Each legal statement of witness EM, EK, BL, and V;

1. Each statement in the witness E, AA, AB,C, and the fifth protocol of the trial among the third protocol of the trial of the original court (2012 Gohap158), the witness V in the sixth protocol of the trial of the witness V, W in the seventh protocol of the trial of the first time, X, S, U, Y, K, K, and Z in the eighth protocol of the trial of the second time of the trial of the original court (2012 Gohap158) and Y in the fourth protocol of the trial of the second time of the trial of the second time;

1. An interrogation protocol of the prosecution against EA (including the statement section of EB);

1. Each prosecutor's protocol of statement concerning M, AD, AE, AF, AG, Z, and E;

1. The police statement of E;

1. A certified copy of a register, a copy of a cash car certificate, a copy of a joint management annexed agreement, a copy of a lease agreement, a copy of a receipt, a copy of a cashier's check, a copy of a cash receipt, a copy of a loan agreement, a copy of a cash receipt, a copy of a cash receipt, a copy of each cashier's check, or a copy of a

1. Sales contracts, minutes of each board of directors' meeting, details of transactions in foreign exchange banks, copies of the I Account of a stock company, investment contract, and borrowed money;

1. The accompanying documents of the investigation report (for each individual, the report on accompanying the current status of entry and departure), the investigation report (the accompanying documents of the F Financial Remark), the accompanying documents of the investigation report (AH and F copy of the register), the accompanying documents of the investigation report (AL, the accompanying documents of the investigation report (the attachment of the NJ copy of the register), the accompanying documents of the investigation report (the report on the result of the execution of the warrant of search and seizure (the tracking of the account), the accompanying documents of the investigation report (the report on the result of the execution of the warrant of search and seizure), the investigation report (L, the AL, the AM, the APO, the AP statement hearing report), the investigation report (a Q, the ATR statement hearing report), the investigation report (aS, the AT, the AV statement hearing report), the investigation report (a report on accompanying documents, such as the Z and BF authentic copy of the register), the report on the execution

1. Results of tracking a copy of a bankbook (AW), account tracking data 1, F bank account, (State), AX, (State), H, N. (State), and (State) AW account; results of tracking a bank account out of the F name; results of tracking a bank account out of the F name; results of tracking a bank account out of the F name (national, Busan, Busan, New, Postal, Postal, Postal); and results of tracking a bank account deposit and use place; results of tracking a bank account out of the FF bank account in the name of Y;

1. The application of the investment agreement, the principal of investment, the statement of payment of finalized profits, the certificate of beneficial rights, the application for auction of real estate, the copy of the register of land, the filing of a lawsuit, the filing of a copy of the register of land, the filing of

1. Article applicable to criminal facts;

As a whole, Article 3 (1) 1 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 11304, Feb. 10, 2012); Articles 356, 35 (1), and 30 of the Criminal Act [the main sentence of Article 42 of the former Criminal Act (Amended by Act No. 10259, Apr. 15, 201)] shall apply to the operation of casino facilities by others: Article 7 of the Addenda of the Tourism Promotion Act (Amended by Act No. 10556, Apr. 5, 2011); Articles 83 subparagraph 3 and 11 of the former Tourism Promotion Act (Amended by Act No. 10556, Apr. 5, 201); Article 30 of the Criminal Act shall apply to the selection of imprisonment).

The point of breach of trust: 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); Articles 356, 355 (2), and 30 of the Criminal Act (the upper limit of a penalty shall be governed by the main sentence of Article 42 of the former Criminal Act (Amended by Act No. 10259, Apr. 15, 2010))

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act / [Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Concurrent Punishment of Punishment of Embezzlement)]

The reason for sentencing was that the Defendant, without equity capital, acquired F by means of a typical capital M&A; the Defendant acquired the shares of the company subject to acquisition by using the company’s capital; the Defendant sold preemptive rights by artificially supporting the company’s share price; and created appearance that the company’s capital increased through capital increase through issuing new shares with capital increase by using the company’s funds; thereby disturbing the market order and causing serious damage to the minority shareholders. Ultimately, F has gone through its process, its financial status has deteriorated, listed its listing or abolition; it has been difficult for the company to recover due to its enormous debts until now; the Defendant’s market disturbance has suffered enormous damage; the risk of repayment was unlikely; the Defendant’s act undermines transparency and trust in the overall financial industry including the financial industry; and the Defendant’s act undermines transparency and trust in the national economy; the Defendant’s considerable punishment equivalent thereto is inevitable. However, given that the Defendant’s position and degree of participation, personality and conduct, intelligence and environment; the motive and consequence of the instant crime; the Defendant’s profits acquired by taking into account all the following circumstances and circumstances after the Defendant’s criminal act.

The acquittal portion

1. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) against the nominal amount of lease deposit received from S or T;

A. Summary of the facts charged

Around June 2009, the Defendant, in collusion with D, embezzled by using the acquisition price to be paid by transfer of F’s stocks and management rights, while the Defendant leased the right to operate Q2 casino in Q2 in Q2 P in Jeju, to S and T, received KRW 2.5 billion as lease deposit, and was in custody for the said victimized company.

B. Determination

In embezzlement, custody refers not only to cases where property is actually controlled but also to cases where legal control is possible (see, e.g., Supreme Court Decision 2000Do1856, Aug. 18, 200). The custody should be based on a consignment relationship. Of course, it does not necessarily require that it is established by a contract such as loan of use, lease, delegation, etc., but it is also established by business management, customs, cooking, and good faith principle (see, e.g., Supreme Court Decisions 87Do1778, Oct. 13, 1987; 2003Do2077, Jul. 11, 2003). In cases where a corporation’s employee received money under the name of entering into a contract between a third party and a corporation and if it is useful, employees cannot be punished for the said corporation’s occupational custody and thus, employees cannot be punished for the crime of embezzlement (see, e.g., Supreme Court Decision 198Do165, May 15, 1995).

In full view of the evidence duly admitted by the court below, (1) D was appointed as the manager of F head office on June 29, 2009, and resigned from the manager on August 31, 2009, and (2) was appointed as the representative director, and (3) was also established in Jeju-si P as a branch office on November 2007 and March 20, 2008; (2) "I received the casino deposit from T, 2 billion won on August 26, 2009, and 2.5 billion won for the remainder of 200 million won after the date of preparation; (3) the receipt was prepared to the effect that "The casino deposit was received from T, 2.5 billion won from S, and 2.5 billion won for the remainder of 200 billion won after the entry "FD's representative director" and "F, a corporation," and (4) billion won for the remainder of 200 billion won after the date of the receipt.

The Defendant introduced S through V in order to raise the F Acceptance Fund, and S agreed to lend money to the F-owned R casino business so that it can lease its casino business rights, and Fifth, the Defendant held a temporary general meeting of shareholders of F on August 31, 2009, which held on August 31, 2009, that T directly paid KRW 2 billion to G head office on the remainder of the F-owned acquisition price.

Therefore, the defendant, around August 26, 2009, ordered T to pay 2 billion won directly to G as part of the F acquisition price of the defendant, etc. Around June 2009, the defendant cannot be deemed to have been in custody for the victim F. Furthermore, the lease agreement between F and S is established after the date of the establishment, while the manager was appointed as the manager of DOF head office at the time of August 26, 2009, the authority of the manager was limited to specific business as individual business by the place of business, and it does not affect the overall business like the representative director. Therefore, in light of the fact that the defendant cannot be deemed to have been found not guilty of the above violation of the Act since it constitutes an embezzlement under the premise that the defendant was not guilty of the above part of the charges under the premise that it was not in the position of the F. 2 under the premise that it was not in force at the time of the execution of the contract and the above part of the charges under the premise that the defendant was not guilty.

2. A violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) on the sale price of preemptive rights, payment of convertible bonds and capital increase

A. Summary of the facts charged

In collusion with D, as stated in paragraph (1) of the same year, the Defendant: (a) sold the new stocks held by F from August 7, 2009 to June 18, 2009 to KRW 10,197,989,928 won; (b) issued non-guaranteed convertible bonds on September 28, 2009 to KRW 99,00,000; (c) paid-in capital through capital increase; (d) KRW 19,16,742,000; and (e) KRW 99,99,50,000; and (e) KRW 80,000,000,000,000 won, including KRW 19,197,99,500,000,000 won, including KRW 80,000,000,000 won, from around 300,719,209; and (e) recorded the amount in attached Form 30130.

B. Determination

As examined in the above 2-B. C., since this part of the facts charged constitutes a case where there is no proof of facts constituting the crime, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as it is found guilty of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) in which a prosecution was filed for a single comprehensive crime

3. The point of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) to 1145,000 treasury shares.

A. Summary of the facts charged

The Defendant promised to guarantee the principal of AH with D and asked F to purchase F’s shares and support or reflect the F’s shares. However, the Defendant purchased the shares of the said Company and offered to compensate for the loss from the AC and CX, and offered to pay for the compensation for the loss by issuing F’s share certificates held by F, which were owned by the victimized Company,.

On January 2010, the Defendant, at the office of 8th floor in Gangnam-gu Seoul Metropolitan Government CY building, embezzled F shares of 1145,000 shares owned by the damaged company (500,000 won in total, 572,500,000 won in total) to CX.

B. Determination

Since embezzlement is a crime in state, the act of disposal of embezzlement conducted after the completion of the embezzlement does not constitute a separate crime if it is so-called an act ex post facto ex post facto crime that does not entail any infringement of new legal interests (see Supreme Court Decision 2006Do4034, Oct. 13, 2006).

According to the statements of the court below AC, U and Y, and the documents attached to the investigation report (based on the results of execution of a warrant of search and seizure), ① after offering 4 million won of the shares held by F as security to HK Savings Bank, F was disposed of to a third party, and F was not holding the shares at the time of offering capital with capital increase, around January 8, 2010. ② Subsequent Y appears not to have acquired the shares in the name of 1.1 billion won of the KF bank account in the name of 1.1 billion won of the KF bank, and there was no evidence to acknowledge that the Defendant purchased the shares in the name of 1.2 billion won of the KF bank account in the name of 1.1 billion won of the KF bank from January 13, 2010 to the KF bank from 1.2 billion won of the transfer of the shares in the name of 1.1 billion won of the KF bank from 201 billion won of the transfer of shares in the name of 1.3 billion won of the KF bank.

Thus, this part of the facts charged should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act because it constitutes a case where there is no proof of facts of crime. However, as long as it is found guilty of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) in which a prosecution is

4. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) through the provision of security in 12.5 billion won

A. Summary of the facts charged

The Defendant, while faithfully managing the F’s assets and liabilities, provided excessive collateral to the F with respect to the F’s obligations, and provided the F with excessive collateral to avoid any loss to the company, in collusion with D, despite the existence of an occupational duty, the Defendant would borrow a large amount of funds in the name of the company to use it as personal repayment, purchase price of stocks to manipulate F’s stock price, etc., and around February 12, 2010, at DY located in Gangnam-gu Seoul, Gangnam-gu, Seoul, the Defendant agreed to pay interest of KRW 2 billion from DY in the F’s name at a high rate of KRW 30 million, KRW 2 billion, KRW 500,000,000,000,000,000 won, KRW 1 billion,50,000,000,000,000,000,000,000 won, and issued the same real estate to D’s 4,50,000,00,00 won,00 won.

Accordingly, the defendant, in collusion with D, obtained property benefits equivalent to 12.5 billion won in the DZ, and suffered damage equivalent to F in the same amount.

B. Determination

The above facts charged constitute a case where there is no proof of crime as seen in the above 2. E., and thus, a not-guilty verdict should be rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as the defendant is found guilty of a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

Judges

Judgment of the presiding judge;

Judge Lee Young-young

Judges Kim Gin-tae

Note tin

(i) a certificate No. 12, a consulting contract

(ii) evidence Nos. 7-1 to 4

(iii) No. 9 Certificate No. 9

4) It is difficult to recognize any different evidence No. 41 with the financial statements of evidence No. 41 and the statement of EK by the witness of the trial.

(v) A report on the verification of assets and liabilities of the certificate No. 17.

6) No. 14-4

7) Report on the execution of a warrant of search and seizure (2013243 related investigation records 464 pages)