When the declaration of consent to evidence may be revoked or removed;

The declaration of consent to evidence may be revoked or withdrawn before the examination of evidence is completed, but may not be revoked or withdrawn after the examination of evidence is completed.

Article 318 of the Criminal Procedure Act

[Plaintiff-Appellant] 83Do267 decided Apr. 26, 1983 (Article 318 (11) of the Criminal Procedure Act, Article 318 (11) of the Criminal Procedure Act, 31 ② 179 No. 706,936)

Defendant

Defendant

Masan District Court of the first instance (83 Gohap233)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for a term of three years and a fine of sixty thousand won.

When the defendant does not pay the above fine, the defendant shall be confined in the workhouse for a period calculated by converting the amount of KRW 400,000 into one day.

One hundred and fifty-five days of detention days prior to the pronouncement of the judgment below shall be included in the period of detention in the workhouse, and twenty-five days in the above imprisonment.

except that the execution of the above imprisonment shall be suspended for five years from the date of the final decision.

The gist of the defendant's appeal is as follows: (a) the defendant entered into a contract with the non-indicted 2 (name omitted); (b) the defendant did not pay 13,00,000 won out of the amount loaned from the Industrial Bank of Korea to the non-indicted 3 (the Industrial Bank of Korea's construction price payment); (c) since the above loan was extended to the defendant company under the name of the defendant company, the right to use the above loan is merely a default and it cannot be deemed that the defendant is in the status of managing the above company; (d) the defendant did not have paid 13,00,000 won for the above 100 won for the above 30 won for the above 00 won for the above 00 won for the above 00 won for the 000 won for the above 00 won for the 000 won for the above 100 won for the above 00 won for the 1300 won for the above 00 won for the above 000 won for the above 00 won for the above 000 won for the above 2000 won for the above company's.

First, the defendant's reasons for appeal are somewhat consistent with the fact that the defendant delivered 21,00,00 won of value-added tax on the disguised construction amount of 281,00,000 won to the general construction company (title omitted) and 28,100,000 won of value-added tax to the non-indicted 1 of this case from the second point of the court below's appeal, the non-indicted 2 and the non-indicted 3's statement of the court below and the prosecutor's office's non-indicted 4,5 can be revoked or withdrawn on the second day of the court below's appeal, but the above contents of the defendant's reply to the fact that the non-indicted 30,00,000 won of value-added tax were delivered to the non-indicted 1 of this case's non-indicted 30,000 won of value-added tax, and the above contents of the defendant's written statement of the non-indicted 1 of this case's 200,0000 won of the above written statement were revoked or withdrawn.

Next, with respect to the third point of the reasons for appeal, if the defendant company entered into only the mechanical supply contract equivalent to the above 330,000,000 won with the defendant company, and there was no delivery at all, the entries of the non-indicted 1's written statement and each written statement of the non-indicted 6 of the prosecution's prosecutor's office, and the defendant, despite the fact that the defendant, as if the above bank was installed in full, submitted the above machine as security along with tax invoices, etc. received in advance from the non-indicted 1 and applied for a loan of the National Investment Fund to the above bank only to the specific company like the defendant company, the court below and the non-indicted 7's written statements by the witness and the prosecutor's office and the non-indicted 7's assistant witness, and the contents of each written

Finally, according to the reasoning of the appeal by the defendant, the first point of first, and the prosecutor's statement of non-indicted 8, the defendant did not pay KRW 133,00,000 to the general construction company (name omitted), but the defendant paid the above money to the above company as if he paid all of the above money to the above company, the defendant's defense counsel cannot be accepted in light of the fact that the office recorded falsely as if he paid the above money to the above company, and what materials can be discovered at all on the records that the defendant acquired the machinery of the above company can be found. However, since the prosecutor changed the facts charged about the occupational breach of trust of this point by occupational embezzlement, the party member omitted the judgment of the court below as to the remaining point of the above grounds for appeal and the grounds for appeal on unfair sentencing, and reversed the whole judgment of the court below ex officio pursuant to Article 364 (2) of the Criminal Procedure Act and decided as follows.

피고인은 1981.9.26. 창원공업기지내 안민단지에 폐유정제를 위한 (명칭 생략)주식회사를 설립하여 1982.6.8.까지는 공소외 9와 함꼐 공동대표이사로서, 그 이후부터 1983.2.9.까지는 단독대표이사로서의 각 업무를 처리하여 오면서 같은해 5.10. 마산지방법원에서 상법위반죄로 벌금 1,000,000원의 선고를 받고 그 판결시 확정된 자인바, 제1. 1982.4.12.경 수원시 매산로 2가 소재 (명칭 생략)종합건설주식회사의 대표이사 공소외 10과의 사이에 (명칭 생략)주식회사의 공장 및 사무실 건물신축공사를 공사대금 300,000,000원에 공사도급계약을 체결하고, 같은해 8.12.경 신축중인 위 사무실의 규모를 확장하기로 하여 추가공사대금을 금 15,000,000원으로 하는 추가공사도급계약을 체결함에 따라 실제 공소외 10과 위 공장 및 사무실의 신축공사를 합계 금 315,000,000원에 계약체결하였으나, 공소외 10과 사이에 위 공사금은 위 건물을 담보로 제공하고 중소기업은행의 국민투자기금 시설자금으로 대출받아 지급하기로 하고, 위 은행의 시설자금은 실공사비에서 약 70퍼센트만 대출되는 관계로 같은해 8.7.공사대금이 전액 융자될수 있도록 실제공사대금보다 높게 공사도급계약서를 허위로 작성해 줄 것을 요구하여 동인의 승낙을 받아, 같은해 8.7. 공소외 10과의 사이에 부가가치세를 포함한 총공사대금 655,600,000원(부가가치세를 제외한 액수는 금 596,000,000원)으로 하는 허위공사도급계약서를 작성한다음, 동인으로부터 같은해 7.10.자 공급가액 310,000,000원의, 같은해 9.10.자 같은 120,000,000원의, 같은해 11.30.자 같은 166,000,000원의 각 세금계산서를 교부받아, 같은해 9.23.과 같은해 11.30. 두차례에 걸쳐 위 각 세금계산서를 첨부하여 중소기업은행 마산지점에 국민투자기금 시설자금 융자신청을 하여 각 그 시경 도합 금 339.000.000원을 (명칭 생략)주식회사 명의로 위 은행으로부터 융자받아 그 대표이사인 피고인이 이를 업무상 보관 관리하게 됨을 기화로 (명칭 생략)종합건설주식회사에 그중 같은해 9.27.경에 금 102,000,000원, 같은해 12.11.경에 금 80,000,000원등 도합 금 182,000,000원만을 공사대금으로 지급하고 나머지 공사대금에 해당하는 금 133,000,000원은 (명칭 생략)주식회사의 경리장부에는 (명칭 생략)종합건설주식회사에 지급한것처럼 허위로 기장하는 방법으로 위 금 133,000,000원을 유출하여 이를 횡령하고,

2. On October 25 of the same year, after submitting an early refund return of value-added tax with each of the tax invoices on July 10 of the same year and September 10 of the same year, which was delivered from the Masan General Construction Co., Ltd. (title omitted) and each of the above tax offices on September 10 of the same year, each of the above tax offices has issued an early refund return of value-added tax, and around November 30 of the same year, 43,00,000 won was refunded from the head office of the Gyeongnam Bank and received an early refund of value-added tax of 11,50,000 won other than the amount of value-added tax 31,50,000 won other than the amount of value-added tax 30,000,000 won other than the amount of value-added tax to be paid at 10,000 won for the same 30,000,0000 won for each of the above new 30,000,0000 won for supply.

Article 3. Around January 31, 1983, the Bank's Mountainous District Bank of Korea attached with the supply contract of machinery and pipes as stated in paragraph (2) above, and received and invested in facilities without being supplied with the machinery and tools equivalent to 330,000,000 won from the non-indicted 1 in the (title omitted) stock company even though they had not been supplied with the machinery and pipes equivalent to 330,000,000 won, and thus, the Bank applied for financing of 220,000,000 won of the National Investment Fund's facility funds within the loan limit amounting to 70 percent of the above investment cost, and tried to deceiving the above bank's employees and obtain them by obtaining financing of the above facility funds from the above bank from the above bank. However, it is found in the fact-finding survey that the above bank's employees were not equipped with the above loans, and thus

The summary of the evidence of the above crime is that the defendant's statement part of the witness non-indicted 7's statement in the trial and the defendant's statement in the trial and the statement in response to the fact inquiry are the same as the time of the original inquiry. Thus, it is cited as it is in accordance with Article 369 of the Criminal Procedure Act.

Article 8(1)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 9(1) of the Punishment of Tax Evaders Act Article 352 and Article 347(1)3 of the Criminal Act are applicable to the crime of attempted fraud of Article 352 and Article 347(1)3 of the same Act. Since the crime of occupational embezzlement of Article 1 of the judgment of the defendant is included in the crime of Article 356 and Article 355(1)2 of the Criminal Act, since Article 30 of the same Act provides that punishment shall be imposed for the crime of occupational embezzlement and attempted fraud of Article 347(1)5 of the same Act, the above punishment shall be imposed for the crime of imprisonment with prison labor for 6 years from the date of the above judgment of the court below, and since Article 39(1)2 of the Criminal Act provides that the above punishment shall be imposed for 6 years prior to the above punishment of imprisonment with prison labor and the fine shall be imposed for 6 years prior to the above punishment, the above punishment shall be imposed separately for the crime of Article 37 of the same Act.

It is so decided as per Disposition for the above reasons.

Judges Jeong Ho-ho (Presiding Judge)