(영문) 서울중앙지방법원 2017.8.31. 선고 2016고합1060 판결

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(영문) 서울중앙지방법원 2017.8.31. 선고 2016고합1060 판결

특정경제범죄가중처벌등에관한법률위반(횡령),업무상횡령,배임수재

Cases

2016Gohap1060 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

(p) occupational embezzlement, occupational embezzlement and breach of trust;

Defendant

Prosecutor

Kim Chang-jin (prosecution), and the encouragement of the trial

Defense Counsel

Law Firm B

C. Attorney C.

Law Firm D

Attorney E

Imposition of Judgment

August 31, 2017

Text

A defendant shall be punished by imprisonment for two years.

256,000,000 won shall be additionally collected from the defendant.

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

Of the facts charged in this case, the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlements) and occupational embezzlement

Reasons

Criminal History Office

【Maternal Facts】

The Defendant is a person who served as a representative director from February 2002 to January 2005 as the head of the integrated headquarters in the business and production sector of F Co., Ltd. (hereinafter referred to as “F”), from February 2002 to January 2005, as the head of the integrated headquarters in the field of business and production, from February 2005 to January 201, 201, and from February 201 to January 2014.

【Criminal Facts: Acceptance of Breach of Trust】

Around January 2003, the Defendant received KRW 7,100,000 in cash from January 2003 to April 201, 2010 in the same manner as indicated in the attached Table of Crimes (6) in the same manner, along with an illegal solicitation that the Defendant requested the representative director I of H, a company specializing in F’s advertising production, to receive F’s advertising production from the representative director I, a company specializing in F’s advertising production, and received KRW 256,00,000 in cash in return.

As a result, the defendant acquired a total of KRW 256,00,000 from a person who administers another's business in return for an illegal solicitation in relation to his duties.

Summary of Evidence

1. The defendant's partial statement in the third protocol of trial;

1. Statement made by the witness J in the first protocol of trial;

1. Statement made by K witnesses in the second trial records;

1. Statement made by a witness I in the third protocol of the trial;

1. Examination protocol of the accused by prosecution;

1. Details on the restoration of mobile phone text messages by a person who has made a statement to the prosecution against K;

1. Statement by the prosecution concerning L;

1. Each prosecutor's statement concerning I;

- List of Transactions, etc.

- List of Unfair Transactions

1. A criminal investigation report (a copy of the record of a petition filed against A or I);

-1.A copy of the petition

-a copy of investigation report [a copy of the summary of the K/M company].

-4. A certified copy of the HU corporate register and a copy of the credit investigation set;

-a certified copy of the corporate registry and a copy of the credit investigation sheet; and

- a copy of the investigation report (AF verification of his/her reappointment);

-7. Copy of the results of inquiries into A health insurance subscribers;

-11. Investigation Report(States) and Confirmation of the fact of the financing transaction by the Bank of Korea

-12. Copy of account transactions between the F and the M in charge of the accounts;

-13. Copies of investigation reports (a copy of the restoration of J text messages);

-14. Copies of text messages restoration (J mobile phones)

1. A report on investigation (abundance of an annual organization forF years);

The FUF System (2008 2016)

1. Investigation report (attachingM seized articles);

- Documents referred to in the N

- Contract between the Bank F and H

1. A investigation report (specific data and data relating to money and other valuables provided to A);

- A copy of the data relating to FA Representative pay Back

Application of Statutes

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

Article 357(1) of the former Criminal Act (amended by Act No. 14178, May 29, 2016; hereinafter referred to as the “former Criminal Act”) (amended by Act No. 14178, May 29, 201); and

1. Additional collection:

Article 357(3) of the former Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judgment on the argument of the defendant and his/her defense counsel (the grounds for the crime)

1. Summary of the assertion

A. Expiration of the statute of limitations on some criminal facts

Considering that the crime of taking property in breach of trust extends over a long period from January 2003 to April 2010, the interval of receiving money is not fixed, the advertiser and content of the advertisement contract, which is the basis of the crime, are different in the annual number (6) of the list of crimes (hereinafter referred to as "decision on the argument of the accused and the defense counsel" in the item (6) of the list of crimes, and whether to grant money to the accused or not and the amount thereof are decided according to I's intent, the crime of taking property in breach of trust in this case cannot be assessed as one crime, including all of the crimes of taking property in breach of trust in this case, and therefore, the statute of limitations has expired since the statute of limitations has expired for seven years.

B. It is true that the defendant who denies the receipt of money for some criminal facts has received money from I, but I does not have a note or book on the details of payment of money, and I is also unable to specifically memory the current situation, in 2014, L which has been in charge of H's accounting, and only prepared F A's representative Pock data (Evidence Nos. 2, 318, 2,599, hereinafter referred to as "Phock data") on the basis of the crime log Nos. 24, 26, 27, 29 through 38, 42, and 43 of the list of crimes. In light of the fact that I had a strong appraisal about the fact that the transaction was suspended from F and has not been resumed after the transaction, it is distorted or distorted by I except for the particulars listed in the crime log No. 6.

C. Denial of illegal solicitation of total criminal facts

In light of the relationship between the Defendant and 1, the process of paying this amount to the Defendant, the amount and method of determining the amount paid, the influence of the Defendant in the process of selecting advertisement producers, etc., the Defendant cannot be deemed to have received unjust solicitation from the Defendant regarding the conclusion of the contract for specific advertisement producers, and thus, the crime of misappropriation is not established.

2. Determination as to whether the statute of limitations has expired

A. Relevant legal principles

Where a person who administers another person's business receives money and valuables from the same person several times in exchange for an illegal solicitation in connection with his/her duties, it shall be deemed a single and continuous crime committed repeatedly for a certain period under the criminal intent, and if such legal interests are the same, it shall be deemed a single crime (see Supreme Court Decision 2008Do6987, Dec. 11, 2008).

B. Whether the crime of taking property in breach of trust is a comprehensive crime

In light of the above legal principles, the following facts and circumstances acknowledged by the evidence duly adopted and investigated by this court are revealed as follows: (a) the Defendant received the amount from I in response to unlawful solicitation in the selection of an advertising production company; (b) the Defendant received the maximum amount of KRW 256 million over 7 years from I to 44 times; (c) the Defendant requested or discussed the payment of the amount in addition to the first Defendant, except when agreed on the payment of the amount between the Defendant and the first Defendant; and (d) the first Defendant paid the amount of the advertising production from F if the H was to receive the advertising production from F, the Defendant paid the amount of KRW 10 to 6 million. The method of raising and granting the amount provided for the act of breach of trust is the same; (d) the Defendant had the final authority to select an advertising production company in the position of the head of the headquarters in charge of overall management of the business sector during the continuous production of breach of trust; and (e) the Defendant’s act of receiving the amount from H to all the advertisement contents of a single contract.

C. Sub-committee

According to Article 357(1) of the former Criminal Act, the crime of taking property in breach of trust is punished by imprisonment with prison labor for not more than five years or by a fine not exceeding ten million won, and the statute of limitations under Article 249(1)4 of the Criminal Procedure Act is seven years. Moreover, it is evident that the instant indictment was filed on October 19, 2016, before the expiration of seven years from April 2010, when the final criminal act of the Defendant was completed. Accordingly, this part of the Defendant and the defense counsel’s assertion is rejected.

3. Determination on whether to receive money

In full view of the following facts and circumstances acknowledged by the evidence duly adopted and examined by this court, the defendant can be recognized as having received a total of KRW 256 million from January 2003 to April 201, 44 times as stated in the list of crimes (6). Thus, this part of the defendant and defense counsel’s assertion is rejected.

(a) good offices - The credibility of the data on days Bak;

The key issue is to determine whether the credibility of the date Back data prepared by L, who is in charge of the accounting and funding of the Defendant and H, is denied the amount of money by the Defendant, because he did not prepare a separate account book or a camera whenever he pays cash to the Defendant, and each case states that the specific situation is not memory (A record No. 23-24 of the recording of the I).

(b) The process of preparation of the data on days Bak;

First of all, L, at the investigation agency prior to two months prior to the preparation of the data, asked L to keep the cash content corresponding to L, with the intention of making it difficult to keep the data. By making it different, L, along with the details of the tax invoice, the statement of transaction, and the details of cash withdrawal of the passbook, was arranged. After doing so, L, with the direction of arranging F, the advertisement content and advertising price requested by F, was arranged, and the advertisement content and advertising price were arranged, and the advertisement content and the cash amount deposited at the time were ordered to make the draft of the above data based on this advertisement contents and the cash amount deposited at the time, and thereafter, I stated that the above data was finally made on May 26, 2014 after several revisions in accordance with I’s instructions (Evidence Nos. 2, 329-2, 330 pages of the evidentiary records). Moreover, at the same time, L, at the same time, was made to the effect that the aforementioned contents were corrected to the extent that L, 203 times or 3.

Although L did not keep the statement on the process of preparing the above L day Back data at time, L did not keep the details of cash payment for the Defendant at that time, the above L prepared the details of cash withdrawal and delivery to I who memoryed L on the basis of objective data, such as the statement of withdrawal stated in the passbook, and arranged the details related to F on the basis of objective data, such as advertisement production contract and tax invoice, which are entered into between F and H, and finally prepared the amount paid by I to the Defendant according to his memory, and finally prepared the above pro-day Back data. However, the above pro-day Back data is a factor dependent on some and L memory, and its credibility is high as it is objectively proven by the advertisement production contract, tax invoice, and cash details collected on the business day.

(d) The I's statement supporting the credibility of the date Back data;

Furthermore, I stated that, with respect to the preparation process and contents of the date Bak data, I stated that ① in the case of a commencement, â€˜s memory of the case and memory of the last time' (as to â…………§ 24 of the record of recording of the case), â‘, â……………‘, after making an agreement on the receipt of money with the accused, the first contract has been 0 cases and the first contract has been progress almost at the same time (as to â…………§ 10 of the record of the above recording), â………………………………â……â……â………â……â………â……â……â……â…â……â……â……â……ââ………âââ……ââ………ââ……ââââââ………âââââââââ………ââââââââââââââââââ…………ââââââââââââââââââââââââââââââââââââââââââââââââââââ

E. Judgment on the defendant's defense of the defendant

The defendant also does not specify the receipt of a certain amount of money from the defendant, even though it is recognized that it received a certain amount of money, it does not specify when and how much money has been received. With regard to individual contents of payment, it is argued that there is no difference between the date of withdrawal of cash and the date of payment (No. 3, No. 14, No. 16, and No. 18), ② where it is not possible to regard the withdrawal of money in cash (no. 4, no. 5 per year), ③ where the number of withdrawal is unclear (no. 7, no. 13, no. 18, no. 19, no. 22, no. 25, no. 28, no. 40, no. 41, and no. 444).

Of the grounds alleged by the defendant, the arguments of the defendant are not accepted in light of the following: (i) the case of the defendant's assertion (No. 1, 2) and as seen earlier, which started to pay the money to the defendant, and the circumstance and contents of the advertisement are specifically memoryed.

(2) In the case (No. 4,5 per annum), it is difficult to see that the details of withdrawal stated in the passbook details are unclear, and 1), in the case (No. 14 through 16, and 18 per annum), in the case (No. 14 through 16, and 18), in the case of a person who was in charge of H’s withdrawal of funds, as L, it is difficult to see that the fact that L was paid in cash to the defendant due to a substitute transaction that the defendant was not well aware of the method of withdrawal (No. 24 of the record of I), and that it is difficult to see that L was paid in cash. Such fact alone does not reverse the credibility of the above pro rata data. (4) In the case of ① (No. 7 through 13, 18, 19 through 22, 25, 28, 40, 41, and 444) also withdrawn cash at a place far away from the defendant’s office in charge of withdrawal of funds. Even if such circumstances are above, it cannot be deemed to be too reliable.

4. Determination on whether to make an illegal solicitation

A. In the relevant legal doctrine, “illegal solicitation” is not necessarily necessary to the extent that it is the substance of occupational breach of trust, and it is sufficient that it goes against social rules or the principle of good faith.

In determining whether a case constitutes “illegal solicitation”, a comprehensive consideration should be given to the details of the solicitation, the amount of the consideration related thereto, the form, and the integrity of transactions, which are protected by the law, should be given, and such solicitation does not necessarily have to be explicitly and implicitly made (see, e.g., Supreme Court Decision 2015Do3080, Jul. 23, 2015).

B. Specific determination

In full view of the following facts and circumstances acknowledged by the evidence duly adopted and examined by the court, it is reasonable to view that the Defendant received money from the prior Defendant and the defense counsel on a different premise, as stated in the list of crimes (6) in exchange for the wrongful solicitation that H is allowed to be selected as an advertising production company from Ghana, and recognized the content thereof. Thus, the Defendant’s assertion on this part is not acceptable.

1) The first retired from F in 1993 and around July 1996, H created and operated H. The H’s main trading office accounts for F to the degree of 50 to 70% of the annual sales, and I maintained a smooth relationship with F, and was the most important task of operating the business.

2) On the other hand, the Defendant, as the head of the headquarters in charge of F’s production from around 2002 to around 2010, has the final authority to decide on the selection of an advertising production company. The Defendant’s allegation.

However, even if the selection of an advertising production company was based on the decision of the competent PD and the head of the production team, the Defendant was in a position to exercise influence as a final decision-making authority to select an advertising production company, and the I also stated that, even if the advertising contract was not expected to increase or increase with F in return for payment of the above amount, the advertising contract was anticipated not to be terminated at least, even if the advertising contract was not expected to increase or decrease.

(A) Recording No. 36 of the Record for I

3) As seen earlier, the Defendant received KRW 256 million in total over 44 times for a long period of seven years from I, and even if there was a private relationship with the Defendant even after the withdrawal from this F, the Defendant’s intent to support the Defendant’s business activities expenses or to maintain a good relationship with the Defendant is a large amount of money received over a long period of time.

4) The I ordered H to make an advertising production contract from F and paid part of the price to the Defendant, which is called 'Maber', which is also called 'Maber', and the background and method of payment that I paid to the Defendant is also premised on the conclusion of an advertising production contract between H and F.

5) On the background leading up to which I first granted money to the investigative agency and the defendant in this court, I consistently stated that the defendant requires a large number of cash in carrying out business activities during the drinking Do and that the defendant demanded 10% of the purchase price to enter into an advertising production contract with H (No. 2,294 of the evidence record, and No. 2 of the recording as to I). On the other hand, the defendant argued that it was difficult for I to say that cash needs to be given to I [the defendant first tried to do so, and thereafter, he constantly paid a certain amount to the defendant.

On the other hand, ① 1 refers to the time and place of the Defendant’s first demand for the money, and made a concrete statement, while the Defendant made a statement that he does not have any specific memory as to the circumstances, ② 1 refers to the amount paid to the Defendant by the investigative agency, ② 1 refers to the amount paid to the Defendant, which is set at 10% of the first price, and made a statement that 6 million won was requested by the Defendant because of the lack of circumstances, etc. ③ 35-40% of the profits if H produces advertising and receives the payment, ③ 35-40% of the profits if H produces an advertisement, which is smaller than H’s size or sales, and it is difficult to easily understand that 10 million won or 6 million won is said to have tried to do so without the Defendant’s request, and it is reasonable to deem that I concluded an advertisement production contract and paid a certain amount to the Defendant each time it is paid.

6) In this Court, I stated that the Defendant did not grant money to the Defendant unless it is related to one’s own business (I No. 36 pages of record No. 36 of record No. 1) although I made a statement to the effect that there was no solicitation for the selection of an external company with regard to a specific advertising contract, and that there was no expectation that the conclusion of an advertising contract would increase, and that the Defendant was given money due to an individual-friendly relationship with the Defendant.

Reasons for sentencing

1. The scope of punishment by law: Imprisonment for not more than five years;

2. Application of the sentencing criteria;

[Determination of Punishment] Type 4 (at least KRW 100 million)

[Specially Convicted Persons] A mitigated Persons: A person who is not subject to punishment for a victim (person who requested the handling of affairs)

[Scope of Recommendation] Reduction Area, one year and six months of imprisonment to three years

3. Determination of sentence: Imprisonment for 2 years; and

【Unfavorable Circumstances】

The Defendant received money from the head of headquarters that covers the production sector of F, in return for the illegal solicitation regarding the selection of advertising production companies. The instant crime continues to have been committed for a long time, and the Defendant’s total amount of money up to KRW 256 million is the maximum amount of money. The Defendant’s crime of this case led to the damage of interested parties and social trust on the adequacy and fairness of the selection of advertising production companies.

【Free Circumstances】

It is difficult to view that the Defendant actually exercised any influence in the selection of an advertising production company. The Defendant and I’s private friendly relationship appears to have become one of the causes of the instant crime. The F does not want to be punished against the Defendant. The Defendant did not have any history of being punished for the same crime.

Considering the above circumstances, the defendant's age, character and conduct, environment, motive, means and consequence of the crime, the circumstances after the crime, and all of the sentencing factors indicated in the arguments and records of this case shall be determined as ordered.

Parts of innocence

1. Summary of this part of the facts charged

The Defendant, as stated in the facts constituting the crime, served as F’s representative director from February 2010 to January 2014, and served as a representative director of Q from April 201 to February 2014.

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

The defendant, while working as the representative director of the victim F, received cash created by reducing the funds of the victim F who kept in business for business activities under the jurisdiction of the head of the management strategy headquarters, the head of the re-investment team (the head of the post-management strategy headquarters), and the merchandise coupon purchased with the funds of the victim F, and received merchandise coupons from the victim F and received them at his discretion.

(i)the giving and receiving of cash in a false manner;

On February 2, 2010, the Defendant instructed R, the head of the management strategy headquarters, in his office located in G in Jung-gu Seoul, Jung-gu, to the effect that “the preparation of cash necessary for business activities,” was “the preparation of cash necessary for business activities,” and then, the Defendant voluntarily released KRW 678,000,000 from January 28, 2014 to January 28, 2014 as stated in the attached Table of Crimes (1) by withdrawing KRW 678,00,000,000 from the total amount of the victim’s corporate funds kept for business activities, as stated in the attached Table of Crimes, to the effect that R would have received the Defendant’s above instructions from R, and would have received the Defendant’s delivery of the subsidies to the advertiser, etc. by using the J, accounting accelerator S, financial interpreter T, and the receipt and disbursement staff T, as if he would deliver the subsidies to the advertiser, etc., and embezzled them by using them at will.

2) Acceptance of gift certificates purchased with the company’s funds

On April 5, 2010, the Defendant received gift certificates worth KRW 302,300,000 from the victim F’s capital as stated in the attached Form Table (2) in the above manner, and embezzled it at will, by arbitrarily using it, through the employees in charge of the management strategy headquarters, etc., purchased with the victim F’s corporate card through an employee in charge of the management strategy headquarters, etc., under the pretext that the Defendant would deliver it to the advertiser, etc. for business.

3) Acceptance of cash through false transactions with the outing company for advertisement production.

On May 12, 2010, the Defendant instructed R to the effect that “the cash necessary for business activities is prepared.” On or around May 12, 2010, the Defendant received from R to the effect that “the head of the management strategy headquarters, V, and W, who received the Defendant’s above instructions, sent the Defendant’s above instructions, and pretended to have produced X advertising-related press videos in H, an external business entity of the victim F, the victim FF, who had been kept in business for advertising production expenses, paid KRW 22,00,000 to H, and then arbitrarily used KRW 20,000,000, which was returned after deducting value-added tax, by means of R, from November 30, 201, the Defendant arbitrarily received advertising production, HY, HA, AB, AB, and 100,000,000 won in cash, as indicated in the attached Form No. 3, and arbitrarily acquired them through cash transactions with the victim and the victim 10,0050.

(b) Occupational embezzlement;

The Defendant, while working as the representative director of the victim Q Q, received cash created by deducting the funds of the victim Q Q kept in business for business activities through the management director V, and merchandise coupons purchased from the funds of the victim Q, and had the victim Q used them at his own discretion.

(i) the giving and receiving of cash in the name of false congratulatory expenses;

On November 2011, 201, the Defendant instructed the victim Q Q management director, at the above F’s office, to the effect that “the preparation of cash necessary for business activities” was “the request is made.” On November 201, 201, the Defendant voluntarily released the sum of KRW 3,00,000,000 in cash owned by the victim Q Q from the victim’s office, which was sent by the Defendant’s above instructions from V, from the end to the end of October 28, 201, to the effect that it would be anticipated that the Plaintiff would deliver the money to the advertiser, etc. by using the end of the house page published in the newspaper by the victim Q management director A, who was sent the above instructions from V, and embezzled the money by arbitrarily using it as a donation investigation expense.

2) Acceptance of gift certificates purchased with the company’s funds

On October 10, 201, the Defendant received gift certificates worth KRW 40,000,000 from the victim Q Q’s corporate card to the advertiser, etc. under the pretext of issuing them to the advertiser, etc. for his/her business at his/her office, as well as arbitrarily used them after receiving gift certificates from the victim Q’s corporate card. From that time until January 25, 2014, the Defendant received gift certificates worth KRW 40,000,000, which were purchased from the victim Q Q’s corporate fund as stated in the separate crime list (5) by the aforementioned method, and embezzled them at his/her discretion.

(iii)the receipt of foreign currency exchanged for Company’s funds;

A) Around July 17, 2013, the Defendant, at his office, embezzled USD 3,00 ($ 3,418,170 equivalent to KRW 3,418,170) exchanged from V to the victim Q ownership fund that was kept in business through the victim QD, management directorsV, AC, etc. at his office, using the Defendant’s study expenses, etc.

B) On October 11, 2013, the Defendant, at his office, withdrawn the victim Q Q owned by the victim who had been in business for the provisional payment of V, through V and AC, and embezzled the amount of 2,000 oil (the amount equivalent to KRW 2,956,240) exchanged from V, using the Defendant’s wife and his/her overseas travel expenses as his/her overseas travel expenses.

2. Determination on whether to accept cash and foreign currency

(a) Cash receipt and payment through false transactions with an outsourcing company (Article 1(a)(1) and crime sight table(3))

1) Summary of the assertion

The defendant asserts that, as stated in paragraph (3) of the crime sight table, it was true that the victim F’s extra capital was created by means of false transaction that would be deducted value-added tax and return the remainder in cash by pretending that the foreign company, such as H, produced the relevant press videos, and received money from the victim F for advertising production costs. However, the defendant did not have received the above money from R, J, W, etc.

2) Specific determination

In full view of the following facts and circumstances acknowledged by the evidence duly adopted and examined by this court, the Defendant’s assertion on the Defendant and the defense counsel is not acceptable on a different premise, since it is recognized that the Defendant received the extra funds created through false transactions with the company producing the advertisement, as stated in the facts charged, from R, J, W, etc.

R, who was in general in charge of financial affairs by February 2, 2011, as the head of the F's head of the F's Management Strategy Headquarters, stated that the Defendant, after the representative director's inauguration, talked that cash needs to be used as activity expenses, consulted with the Defendant to create an extra fund in the way that the amount after deducting value-added tax is refunded by pretending transaction, after deducting the value-added tax, and that the cash created in such a way has been delivered directly to the Defendant from KRW 10 million to KRW 20 million at one time (No. 27 pages of the record of R).

② During the period of the R’s employment, the J, who was in charge of the head of the re-election team and after the R’s retirement, stated that at the time of the date when R’s employment, the J sent the cash created through false transactions to R, and that the cash created through false transactions was delivered to the Defendant at least once by one time after R’s retirement (a record of the record of the J). In addition, the J stated that, at the time of the business department’s preparation of the false letter, “the Defendant’s letter” was approved by the Defendant, along with the head of the pertinent business division or the head of the pertinent business division, (a) as “the cash creation through false transactions)” (Evidence record 2,909).

③ W, as the head of F’s traffic strategy team, has been in charge of reviewing the cost settlement and adequacy, had the J contact with external enterprises when ordering him/her to make a tax invoice, and had him/her prepare a false statement in excess of the operating department. The cash so created stated that most of the cash was delivered to J, but it was directly delivered to the Defendant at least once and twice (No. 5 pages, No. 10, No. 3,109). He/she stated that the false statement prepared by the operating department was in attendance at least once and twice in the process of approving the Defendant (Evidence No. 3,110 pages).

④ As above, R, J, and W made a statement to the effect that the number of times involved in the creation of side funds through false transactions differs, but all of them directly delivered cash created through false transactions to the Defendant. The method of raising side funds through false transactions, and most consistent statements concerning the delivery of side funds created, are high credibility.

⑤ In addition, R, J, and W are well aware of the Defendant’s creation of extra capital through such false transactions, and the J and W stated that when the business department prepares a false letter of goods, the Defendant notified the Defendant that it was a letter of goods through false transactions and obtained approval. The Defendant was well aware of the fact of raising extra capital through false transactions. However, even though denying the receipt, the Defendant did not explain the source of the use of extra capital created as such.

6) While the Defendant asserts that the amount of extra capital created through false transactions may be included in expenses for business activities paid in cash by the J, the Defendant stated that the amount of extra capital created through false transactions was paid to the Defendant separately from the amount of extra capital paid in cash, which was created under the name of the false division of every week.

7) There is no clear circumstance to deem that R, J, and W, which has made a consistent statement on the fact of raising funds outside Korea through false transactions, and on whether the funds outside Korea have been delivered to the Defendant by himself/herself, there is only one or more times in delivery of the funds to the Defendant. W only states that the number of times when the funds outside Korea have been delivered to the Defendant is the only one or more times.

(b) Part of the withdrawal, receipt, and payment of the cash of the victim Q for a false border survey expense (part 1-b(1) and part of the year No. 16 through 62 in the crime sight table (4))

1) Summary of the assertion

The amount of KRW 3 million out of the cash 12,00,000 of the victim Q Q, withdrawn as false background investigation expenses, was paid only by the Defendant, and the remainder was used for other purposes by the employees of the victim Q, such as V.

2) Specific determination

In full view of the following facts and circumstances acknowledged by the evidence duly adopted and examined by this court, the Defendant’s assertion on the Defendant and the defense counsel is not acceptable on a different premise, since the Defendant’s withdrawal of KRW 12 million from the victim Q’s cash under the pretext of false background investigation expenses through V.

① AC, who takes charge of the accounting and funding of the Victim Q Q Q and was directly involved in the act of withdrawing cash on the pretext of false bordering expenses, stated that: (a) around November 201, the investigative agency ordered the Victim Q Q Q’s management director V to raise the extra fund under the name of the Defendant’s instruction and false bordering expenses; and (b) up to October 201, he withdrawn the total of KRW 12 million on six occasions with the approval of the disbursement resolution accompanied by false documentary evidence and delivered it to V (Article 833, 3266 of the record of documentary evidence). The details of raising the extra fund under the pretext of false bordering expenses, as seen above, of AC, are objectively confirmed by the documents prepared by the accounting table and AC.

② At the request of the J, V, who instructed AC to withdraw cash in the name of the false border investigation expenses, was in the middle and middle of 2011. At the request of the J, the victim Q Q also made a statement to the effect that AC had talked about the complaint, and then did not create a false border investigation expense. (No. 413 of the record of evidence) At this court, it was true that AC was in charge of the practice, and it was only made in the middle of raising a false border investigation expense under the direction of the J, but it was stated that AC was not aware of the accurate number of times or amount, and that the number of withdrawals of cash was more than once and more than once (No. 6 or 8 of the record of the record of the V).

③ On the other hand, the J directed V to raise a false extra loan under the pretext of the false extra loan investigation expense, which led to the F to the purport that the amount of raising the extra loan under the pretext of false extra loan would be high, and thus, the victim Q Q Q would also retire from office within the same manner. However, the victim Q Q stated that the amount raised under the pretext of false extra loan investigation expense would have been created separately from the J. (Evidence No. 3, 233 through 3,235 of the evidence record).

④ Meanwhile, according to the J’s statement, the amount created after 2 months have elapsed since V ordered the first creation of the foreign loan, that is, the Defendant did not appear to have been involved in the transfer of the part disputing the receipt of the loan, and the Defendant also signed the statement when he received money from V, and the Defendant was bound to write his signature on the statement, and the cash in the name of the false light survey expense is not stated in the statement signed by the Defendant.

① However, the Defendant, who was clearly investigated by the investigative agency and testified that he was paid the amount of KRW 3 million from KRW 3 million to KRW 4 million whenever necessary for business operations. The Defendant’s entry in the statement signed by him with activity expenses, etc. from KRW 5,000 is solely pertaining to merchandise coupons and foreign currency, and the Defendant’s receipt of cash from KRW 50,000 is not clearly indicated in the investigation agency. The Defendant had been asked at the investigation agency about whether he received cash from KRW 5. As such, the Defendant cannot be deemed to have made a statement at the investigation agency that there was a fact that the Defendant received cash from KRW 5, although there was no fact that the Defendant received cash from KRW 5. Rather, there is a strong doubt that the Defendant was denied the Defendant’s criminal act on the part of cash received from KRW 5,000,000. The Defendant’s statement was made in the investigation agency to the effect that the Defendant had withdrawn the cash from KRW 2012-2013 under the name of the victim.

C. The portion of receipt of gift certificates purchased with the funds of the victim Q [the part of paragraph (1)-2 of this Article, No. 1, 6, 8 of the crime sight table (5)]

The defendant asserts that when he receives gift certificates from the victim Q’s funds, the defendant always signed a written statement, and the part 1, 6, and 8 of the crime sight table (5) cannot be deemed to have received gift certificates on the ground that there was no document stating the defendant’s signature.

First of all, with respect to the part No. 1 of the crime sight table (5), the health team, and V, from this court to October 10, 201, with respect to the process of purchasing gift certificates of KRW 700,000,000,000 in this court, the victim Q Q was awarded the case at the time. Around that time, the former personnel took a workshop by strengthening the office and the defendant clearly stated that it was divided into employees at a level of encouragement (as for V, the record No. 11 and No. 42 of the record). In light of the fact that the defendant received this part of gift certificates is sufficiently recognized.

Next, with regard to the part Nos. 6, 8 of the crime daily list (5), 1, V directly delivered merchandise coupons to the defendant or through AD, V stated that the merchandise coupons were signed by the defendant directly at the time of delivery to the defendant. There is no document signed by the defendant in relation to this part of merchandise coupons, 2, V stated that this part of merchandise coupons was delivered to the defendant through AC by the investigative agency (Evidence No. 3,257 of the evidence record) and stated that AD was used in this court (No. 12 of the record of V), AD purchased merchandise coupons also to the defendant only once the breathbbbr, and 3) there is no evidence that it is difficult for the prosecutor to recognize that the defendant was actually in use of the merchandise coupons or that there is no other evidence that the defendant was actually in use of the merchandise coupons (No. 5 of the record of February 15, 2017).

D. Part on the receipt of 2,000 oil which was exchanged into the funds of the victim Q Q [the part on the receipt of 2,00 oil]

In full view of the following facts and circumstances acknowledged by the evidence duly adopted and examined by this court, it is not sufficient to recognize the fact that the defendant received 2,000 dollars from the victim Q’s funds through V or AD, and there is no other evidence to acknowledge otherwise.

① On October 11, 2013, AC made a provisional payment of KRW 3 million in accordance with the direction of V, and exchanged KRW 2,000 with KRW 2,00. On December 3, 2013, V made a statement that V deposited KRW 3 million in the victim Q Q’s account and made a provisional payment anti-payment system (Evidence No. 3,263). However, the flow of money is objectively proven by means of evidence, account details, and account transfer table, etc. (Evidence No. 3,278 through 3,282).

② At an investigative agency, V stated that, at the first time, the Defendant instructed the exchange of 2,00 U.K. dollars to the said 2,00 U.K. (Evidence Nos. 3,264, 3265 of the Evidence Nos. 3,264, and 3265 of the Evidence Nos. 3,265 of the record). In this court, the content of the exchange of emulation is not well memory, and AC merely instructs AC to exchange emulation with emulation without direct memory, and it is not consistent to the Defendant’s instructions (No. 25 through 27 of the Record No. 5 of the V).

③ Although AD clearly memorys the facts created from this Court, it is not well memoryed as to whether the Defendant gave instructions to exchange 2,000 oil directly from the Defendant, and whether he/she followed V: Provided, That AD does not directly deliver 2,000 oil to the Defendant; and V sent 2,000 oil to the Defendant (AD’s page 3 through 5 of a record of March 17, 2017).

4. As such, AC, V, and AD’s statements involved in the act of converting the victim Q Q into the capital of the company are different or unclear with regard to the developments leading up to the creation, delivery method, etc. However, it is consistent with the statement that anyone did not directly deliver 2,000 oil to the defendant. Although V and AD have made a statement to the effect that they were instructed by the defendant regarding the creation of 2,00 oil, they did not clearly memory whether they reverse the statement or directly consider the circumstances. Thus, it is difficult to recognize the credibility of the statement.

E. Sub-committee

Therefore, among the facts charged in relation to the gift certificates that the defendant purchased with the funds of the victim Q company, the charges on the part of the victim Q company's 2,00 log, which was exchanged to the funds of the victim Q company, are limited to the case where there is no proof of crime.

4. Determination as to whether there exist unlawful acquisition intent of the facts charged, which is recognized as acceptance

A. Relevant legal principles

The so-called non-financial funds, which are not raised in the accounting books of a juristic person and separately managed by an operator or manager of a juristic person, may be deemed as realizing the intent of unlawful acquisition by creating the funds, if it is clearly revealed that the funds of a juristic person were created for the purpose of exploitation by deducting the funds of a juristic person, not for the purpose of a juristic person. If the defendant explains the whereabouts or sources of illegal acquisition on the ground that it is difficult to recognize the existence of an intention of unlawful acquisition, and relevant materials are also presented, it shall not be readily concluded that the defendant embezzled the funds by withdrawing or using the funds with the intent of unlawful acquisition. The issue of whether the defendant may be recognized as the intention of unlawful acquisition if he claims that the funds were used for the company even though he recognized the fact that the funds were used for the purpose of a juristic person, in light of the motive, method, size, period, safekeeping and management method, etc. of non-financial funds raised by a juristic person, whether the use of the funds was maintained after being raised after being raised, whether it is reasonable and reasonable in light of the purpose of the judgment 20.

(b) Fact of recognition;

The following facts are acknowledged according to the evidence duly adopted and examined by this Court.

1) The victim F has long been appointed as the representative director, and the amount of the extra capital created by the defendant prior to his taking office is not accurately known. However, the defendant worked as the representative director, and the size of the extra capital increased to two to three times. Specifically, for four years, the defendant worked as the victim F and Q representative director, the total amount of the extra capital created by means of false transactions, false light survey expenses, purchase of merchandise coupons using the corporation card of the above company (hereinafter referred to as the "the extra capital of this case") is about KRW 1.1 billion, only on the basis of the amount written in the facts charged.

2) From the day immediately after the Defendant was appointed as the representative director, the Defendant: (a) R et al. entered into an agreement with the Defendant that there was insufficient cash expenses; and (b) R and J specifically set a method of creating extra funds through consultation with the Defendant; (c) the cash expense was created by means of cash withdrawal from the time of the former representative director, cash withdrawal through false transactions, etc. used for the creation of cash expenses; and (d) purchased gift certificates using the corporate card in the name of the company and used them for the Defendant.

3) Each State Defendant requested the head of the Victim F Management Strategy Headquarters to pay cash costs necessary for J. Where gift certificates are necessary, the amount of the instant side funds was determined by the Defendant, such as requesting the employee in charge to purchase gift certificates. After the Defendant concurrently held the representative director of the Victim Q Q Q’s office, the Defendant requested necessary gift certificates or cash costs through the Victim Q Q Q management director, etc.

4) The employees in charge of finance-related affairs in the victim F and Q created the extra funds by obtaining approval of a false disbursement resolution by attaching false evidentiary data, such as attaching an error in the column in newspapers, to raise the extra funds. In the case of merchandise coupons, if they are purchased at the Defendant’s order, they were to be managed as the teaching expenses. The extra funds through false transactions were created by means of issuing a tax invoice with the cooperation of the business department and the advertising production company, and receiving a refund of cash after deducting value-added tax, which was paid to the external company as the transaction price.

5) When the Defendant raises the extra funds from the Victim F in the name of false background inquiry expenses, he directly obtained approval on the false expenditure resolution (the approval of the representative director is unnecessary according to the F’s discretionary rules), and even though the current account book remains, it seems that the Defendant had an AI and prepared the details thereof when ordering the purchase of merchandise coupons. In addition, even if the Defendant received merchandise coupons through V or received foreign currency, he/she prepared a detailed statement and signed it.

6) There was no separate account book stating the place of use, details of use, and balance of out-of-the-counter funds, and no other employee, other than the Defendant, was aware of the specific place of use or details of use of out-of-counter funds. The place of use or amount of out-of-the-counter funds did not provide a standard and the Defendant solely determined and executed it.

7) The victim F and Q separately had a corporate card that can be used by the representative director. The degree of use of the card was KRW 20 million per month for F, and KRW 10 million per month for Q. The Defendant used the corporate card of the victim Q was almost not used, but the victim F’s corporate card was used for KRW 530 million per month during the term of office for the representative director (averagely KRW 11 million per month) and used for the corporate card in the company, including entertainment tavern and entertainment bar, which was limited to the use of KRW 250 million by the corporate card in the company.

C. Specific determination

Although the Defendant asserted that the Defendant used the funds for cash-related expenses, etc. without almost all objective evidentiary data to verify the use of the funds for the extra loan in an investigative agency and this court, the Defendant asserted that the funds for extra loan was used for cash-related expenses, etc. The Defendant’s assertion that the funds for extra loan-related expenses could be raised to a certain extent through the corporate card or the company’s official budget accounting through the Defendant’s official budget. However, considering the following circumstances acknowledged by the evidence duly adopted and investigated by this court in light of the legal principles as seen earlier, the evidence submitted by the Prosecutor alone cannot be ruled out that the funds for extra loan in this case were created and used for the purpose of using the funds for an individual purpose, or that the funds for extra loan-related expenses are not related to the company.

① Among the methods of raising off-the-counter funds in this case, the method of creating cash, along with false evidential data, or receiving cash refunds from cash via false transactions is likely to be criticized in terms of writing false transaction appearance or false evidential data. However, the act of raising off-the-counter funds in such a manner is deemed to have been practically performed prior to the Defendant’s inauguration as the representative director of F. Even after the Defendant’s retirement, data created out of-the-counter funds under the pretext of false light survey (Evidence No. 1, 619 through 1, 641 of the evidence record) can be found (Evidence No. 1, 619 through 1, 641 of the evidence record). As a result of the tax investigation conducted by the Defendant who retired from the representative director in 2014, gift vouchers irrelevant to the amount of money equivalent to that prior to that of the Defendant

Although the Defendant requested R or J to determine the amount of cash needed for the business operation, the Defendant did not specifically instruct R or J to raise the amount of cash needed for the business operation, and instead, in the case of raising the funds through false transactions, the Defendant ordered J to order the out-of-the-counter company not to raise the funds in such a way as above on the ground that not only the issues resolved within the company but also the issues related to the out-of-the-counter company and the issuance of false tax invoices are high in its illegality and criticism. At the time of proceeding with the audit of the victim F in the AF management improvement office around 2011, the Defendant first tried to make false evidence against the occurrence of the funds through false transactions, and then directly reported that the funds were raised in such a way as above.

③ Although the amount of extra capital of the Defendant appears to have been significantly larger than the former representative director, the Defendant appears to have requested a certain amount of extra capital for each week. In raising the instant extra capital, regardless of the provisions on the internal decision of the company, the Defendant directly approved the disbursement of the Defendant’s false ordinary investigation expenses, and even in receiving gift certificates and foreign currency from Q via Q, it appears that the Defendant tried to take part in the creation of the instant extra capital by preparing and signing a detailed statement.

④ In light of the characteristics of the advertising industry, most employees of the victim F and Q stated that, although they were unaware of how much the Defendant used the instant side capital in an investigative agency and this court, they need cash costs for business operations and that the Defendant used the said funds for the same purpose. Even though the Defendant was aware of certain degree of time in the AF’s audit of the victim F, the Defendant did not take any measures such as warning or disciplinary action against the Defendant. In light of the characteristics of the company’s operation, it appears that the representative director impliedly expressed a practice of raising the side capital for the purpose of using the said funds for cash expenses. The Defendant was prosecuted for raising and using the side capital like the facts charged, and the F and Q, which were the victim, expressed that the Defendant did not want to be punished against the Defendant.

⑤ R is understood to have been very active before the Defendant became a representative director. Since the Defendant assumed office as the representative director, the increase of the F and Q sales and operating profits each year as follows may be the result of the Defendant’s active business activities: F’s sales and operating profits.

A person shall be appointed.

6) The Defendant used the funds of this case for business activities of advertisers, members of related academic societies, leave expenses, entertainment expenses, golf expenses, meal and drinking place expenses, etc. A part of the Defendant asserted that the funds of this case were used as non-public benefits to employees and their family members, such as encouragement money, consolation money, food expenses, advance money, entertainment expenses, and juvenile class goods. Although the Defendant did not submit objective data to support this, it is sufficient to recognize the circumstance that the Defendant used the funds of this case to a certain extent, according to the Defendant’s factual confirmation, recording records, etc., according to what extent the Defendant submitted, it is sufficient to recognize the circumstance that the Defendant used the funds of this case for the purpose of his own assertion, and there is a probability that the funds of this case may be more than the amount actually used for the same purpose, other than the amount verified by the factual confirmation confirmation and recording records, etc. However, it is evident that the raising of funds of this case was inappropriate. However, it cannot be denied that the funds of this case were used for smooth operation, management and boosting morale of officers and employees of the company.

7) As to the details of the use of gift certificates purchased from Q’s funds, in the case of No. 1 in each year among the crime sight table (5), the Defendant appears to have divided it to employees in terms of encouragement according to advertising orders. In the case of No. 7 in each year among the crime sight table (5), it appears that the Defendant paid the victim Q Q from the victim F at the time of receiving the victim Q Q from the victim F for the purpose of the company, which can be deemed to have been used for the purpose of the company.

③ Meanwhile, in light of the fact that: (a) as to the part received USD 3,00 from V, V made a statement at an investigative agency to the effect that, through AD, V gave the Defendant an instruction to exchange USD 3,000 to use it for children’s study expenses; (b) this court stated from AD to the effect that the Defendant was going to leave the Republic of Korea due to its advertising system; (c) he made an advertiser’s talk to the same foreign country; and (d) he made an advertiser’s talk to the same effect at the continuous newspaper; (c) the time when V paid USD 3,00 by exchanging USD 3,00 on July 17, 2013; and (d) the time when the Defendant left the Republic of Korea on August 16, 2013; and (d) there was a difference between the time when the Defendant left the Republic of Korea and approximately one month, the possibility that the Defendant received KRW 3,000 was used for the Defendant’s personal purpose, such as study expenses, etc.

5. Conclusion

Thus, this part of the facts charged constitutes a case where there is no proof of crime, and thus, a verdict of innocence is rendered under the latter part of Article 325 of the Criminal Procedure Act, and as the defendant does not consent to the public notice of acquittal, the summary of the judgment of innocence is not publicly notified under the proviso of

Judges

The presiding judge; and

Judges in the order of precedence

Judge Kang Dong-hun

Note tin

1) In the case of Nos. 4 a year, comprehensively taking account of the details of the passbook, it can be seen that the KRW 64,050,000 from the I’s account was withdrawn on January 27, 2013, and KRW 55,00,000 from the same day was deposited into H’s account, and the cash corresponding to the difference was withdrawn on April 28, 2003. In the case of No. 5 a year, the fact that KRW 48,028,00 was withdrawn from the I’s account and KRW 36,324,000 was deposited into H’s account on the same day.