In a case where: (a) the representative director of the Company A acquired the unlisted company Company B at a price equal to the number of objective values; (b) the acquisition price of the Company B from the Company B is received as the borrowed money borrowed immediately from the Company B; and (c) paid losses to Company A, the case holding that

In a case where: (a) the Defendant, the representative director of the Company A, took over the unlisted company B, an unlisted company, under the pretext of investing in the so-called Almaty Amaty Project, under the pretext of investing in the Almaty Project; (b) received the acquisition price from the Company B in the name of borrowed money immediately; and (c) inflicted damages on Company A by taking personal advantage of the acquisition price from the Company B, the case holding that the Defendant committed an occupational breach of trust on the ground that: (a) prior to two months prior to the conclusion of the underwriting contract, 30% of the shares of Company C, the sole asset owned by the Company B, was arranged to deal with USD 1,100,000 (not more than KRW 1,110,000,000,000,000 won, and entered into an underwriting contract with the purchase price, and paid 11,100,000,000 won in advance, thereby causing property losses to the Company A, and caused property gains to the Company A.

Articles 355(2) and 356 of the Criminal Act; Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

Supreme Court Decision 2004Do7027 Decided November 9, 2006 (Gong2006Ha, 2115) Supreme Court Decision 2004Do5742 Decided March 15, 2007 (Gong2007Sang, 569) Supreme Court Decision 2007Do10415 Decided January 14, 2010

Defendant

For the purpose of lectures

Law Firm Squa Law Firm, Attorneys Jeong-ro et al.

A defendant shall be punished by imprisonment for three years.

Of the facts charged in this case, the violation of the Commercial Act, the fact of false entry into public electronic records, etc., and the fact of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) shall be acquitted.

The Defendant served as the representative director of Nonindicted Company 1, the representative director of Nonindicted Company 2 located in Gangnam-gu Seoul Metropolitan Government (hereinafter omitted) and the representative director of Nonindicted Company 3 located in the above (hereinafter omitted) and was in charge of major decision-making such as the execution of funds of said three companies.

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

After acquiring Nonindicted Co. 2 on September 3, 2008 and taking office as the representative director, the Defendant established Nonindicted Co. 3 by investing KRW 7 billion in the funds of Nonindicted Co. 2 on September 8, 2008. The Defendant issued capital increase of KRW 4 billion on September 11, 2008, thereby allowing Nonindicted Co. 4, a KOSDAQ-listed company, to take over the capital increase, thereby allowing Nonindicted Co. 4, a KOSDAQ-listed company to pay KRW 4 billion in its price.

The Defendant acquired Nonindicted Co. 5’s shares from Nonindicted Co. 6, a major shareholder of Nonindicted Co. 3, which he secured as above, with Nonindicted Co. 5’s shares, and subsequently, borrowed the proceeds from Nonindicted Co. 6 again to use them for personal purposes, such as repayment of personal debts.

Meanwhile, on May 10, 2007, Nonindicted Co. 5 was established for the purpose of KRW 100,000 capital, building equipment, and material distribution business, but there was no sales performance at all, and there was no more than KRW 30,000 of the ○○ shares, a limited liability company located in Kazaktan. On July 1, 2008, the Defendant was aware that on July 1, 2008, Nonindicted Co. 5 arranged to purchase KRW 30,00 of the ○○ shares from Nonindicted Co. 7, a limited liability company located in Kazaktan, to purchase USD 1,00,00 shares from USD 1,00,000.

In such a case, the Defendant, as a representative director of Nonindicted Co. 3, has a duty to acquire stocks of Nonindicted Co. 5, an unlisted company, at a reasonable price by fulfilling his duty of care as a good manager, and to prevent damage to Nonindicted Co. 3.

In addition, ○○○, a limited liability company, was established to supply ready-mixeds which will be required when a real estate development plan promoted by Mediditha in Almatha in Almatha, Almatha, Inc. was promoted, but it is unclear whether the development plan was implemented or not, and there was no business performance or sales.

Nevertheless, on September 4, 2008, the Defendant entered into a contract with Nonindicted Co. 3 to purchase 100 billion won of the shares of Nonindicted Co. 5 owned by Nonindicted Co. 6 at the office of Nonindicted Co. 2, Ltd., and deposited KRW 7 billion of the money of Nonindicted Co. 3 as advance payment around September 10, 2008, and KRW 4 billion of the money of Nonindicted Co. 3, a total of KRW 11 billion into a financial account of Nonindicted Co. 6, under the same pretext, around September 11, 2008.

As a result, the Defendant violated the above duties, thereby having Nonindicted 6 acquire pecuniary profits equivalent to the amount excluding USD 1,00,000,000 paid by Nonindicted 6 to acquire the above ○○○○○○○○ in violation of the above duties ($ 1,043, the exchange rate of USD 1,043, as of July 1, 2008, and USD 1,101,00 as of September 10, 2008, since the exchange rate of USD 1,000,000,000 paid by the Defendant to purchase KRW 30,000,000,000, which can be assessed as KRW 1,110,000,000) and suffered economic damages from the victim Nonindicted 3 Co.

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

From September 3, 2008, the defendant has been engaged in overall control over the business operation, fund execution, etc. of the above company as the representative director of the non-indicted 2 corporation.

On November 6, 2008, the Defendant entered into a contract with the representative director of Nonindicted Co. 8 and Nonindicted Co. 2 to sell the land and factories, etc. of Nonindicted Co. 8 to Nonindicted Co. 8, and used them for personal purposes by leasing KRW 3 billion to Nonindicted Co. 9 on the same day as advance payment, KRW 50 million delivered under the same name on December 30, 2008, and KRW 1.99 billion on December 24, 2008, while Nonindicted Co. 2 kept for business purposes without obtaining any security from the board of directors’ resolution on November 10, 2008, and by leasing KRW 40 million to Nonindicted Co. 10 on the same day.

In addition, the Defendant, from the above date to February 5, 2009, consumed a total of KRW 1 billion in the same way seven times as indicated in the attached Table (crime List) and embezzled it in mind.

3. Violation of the Securities and Exchange Act;

A KOSDAQ-listed corporation shall not lend property of economic value, such as money or securities, to a major shareholder, director or auditor of the corporation concerned or for such purpose.

Nevertheless, around December 8, 2008, the Defendant lent KRW 15 million to Nonindicted Co. 1, a major shareholder of Nonindicted Co. 2, a corporation listed on KOSDAQ, to Nonindicted Co. 2, a major shareholder of Nonindicted Co. 2, a major shareholder of Nonindicted Co. 2, and lent KRW 184.1 million to Nonindicted Co. 1 on January 5, 2009, and lent KRW 200 million to Nonindicted Co. 2, a corporation listed on KOSDAQ, to Nonindicted Co. 1 on January 21, 2009.

Accordingly, the defendant lent money to the major shareholders of the corporation listed on KOSDAQ.

1. Part of the accused's legal statement in the protocol of trial;

1. Each legal statement of Nonindicted 6, 11, and 12 in the protocol of trial

1. Each protocol of examination of the accused prepared by the prosecutor;

1. Each prosecutor’s statement on Nonindicted 10, 13, 14, 15, 16, 17, 18, 19, and 20

1. Full certificate of matters to be registered (in the original district public prosecutor's office of 209 and 40 pages 6, 1, 686, 40 investigation records, 209, 1, 1, 176, 1, 286, 1, and copy of the certificate, etc. (in the case of the establishment of non-indicted 3 corporation, 281), each agreement (1, 286, 601), cash loan contract (1, 427), neighborhood pledge contract (1, 430), 234, 1, 29, 30, 30, 30, 30, 1, 1, 1, 49, 30, 1, 549, 1, 549, 30, 1, 549, 30, 1, 1, 59, 275, 276, 65, 67, 465, etc.

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

Article 3 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356 and 355 (2) of the Criminal Act (the occupation of occupational breach of trust, the choice of limited imprisonment), Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356 and 355 (1) (the occupation of occupational embezzlement) of the Criminal Act, Article 207-3 subparagraph 7 of the former Securities and Exchange Act (amended by Act No. 8635 of Feb. 4, 2007), Article 191-19 (1) (the occupation of transactions with interested parties such as major shareholders, etc., and the choice of imprisonment)

1. Aggravation of concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (Aggravated Punishment, etc. of Specific Economic Crimes (Aggravated Punishment, etc. of Specific Economic Crimes with the largest punishment) of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (General Considerations to be Considered in the Grounds for Sentencing below)

1. Summary of the assertion

On August 208, 2008, immediately after the acquisition of the shares of Nonindicted Co. 5, 2008, Albasta project (a city with a population of 100,000 of six Gus, or a new plan with a population of 2,00,000 in a square site with a population of 2,000 square meters) was launched. The Defendant, based on the foregoing article, had Albast project progress and had 1.5 billion won supply a monopoly right to 1.5 billion square development project, was anticipated to make the share value of 00,000,000,000 won to 200,000,000,000 won to 300,000,000 won to 200,000,000,000 won to 300,000,000 won to 20,000,000 won to 200,000.

2. Facts of recognition;

The following facts can be acknowledged in light of the above adopted evidence, the report on the valuation of the manufacturer's shares in ready-mixed located in Samsung Accounting Corporation (2:2: 854); the report on the valuation of shareholders' shares in the preparation of Kudi Accounting Corporation (2: 861); the written statement (2: 989; 2: 986; 2. 3) prepared by the non-indicted 14; the entry and departure status of each individual (2: 986; 4. 2085. - 2096) and a copy of service contract (4:

A. On May 10, 2007, Nonindicted Co. 5 was an unlisted company established on December 31, 2007 by Nonindicted Co. 6’s investment of KRW 100 million in capital for the purpose of building equipment and material distribution business. As of December 31, 2007, as of December 31, 2007, assets amounting to KRW 54 million in assets, liabilities amount to KRW 5 million in assets amount to KRW 50 million in assets amount to KRW 50 million in assets amount to KRW 1 billion in liabilities amount to KRW 1 billion in assets amount to KRW 1 billion in assets amount to KRW 30 million in actual assets amount to KRW 30 percent in assets amount to KRW 1 billion in assets amount to KRW 30 million in assets amount to KRW 1 billion in assets amount to KRW 1 billion in assets amount to KRW 30 percent in assets amount to KRW 12, a director who is an employee other than

나. ○○는 2007. 6. 카자흐스탄 알마티(Almaty)시에 건설 시행업을 목적으로 설립된 최초 자본금 3,000달러의 유한회사로서, 공소외 5 주식회사가 주식 매입대금으로 지불한 100만 달러(약 10억 원)로 설비, 장비 등을 구입하기로 하고, 이를 기초로 2008. 9. 30. 자본금을 약 12억 텡게(약 118억 원)로 변경 등록하였으나, 회사 매출실적은 전혀 없는 상태였다.

C. On July 1, 2008, Nonindicted Co. 5 entered into a contract with Nonindicted Co. 7, 2008, the Defendant, to purchase 30% of the shares of ○○ at USD 1,000 ( KRW 1,000,000), and paid only USD 400,000 on the part of Nonindicted Co. 7 by September 10, 2008. On September 12, 2008, it confirmed the contents of the above sales contract through an agreement with Nonindicted Co. 7 for the payment of the balance of USD 60,000,00, and the remainder of the sales was paid all on April 10, 2009.

D. Around August 24, 2008, the Defendant prepared a basic agreement on the transfer of Nonindicted Co. 5, which Nonindicted Co. 6 had a company designated by the Defendant, to take over the entire shares of Nonindicted Co. 6 at KRW 20 billion. On September 4, 2008, the Defendant entered into a contract on the transfer of the entire shares of Nonindicted Co. 5 with Nonindicted Co. 3 to acquire the shares of Nonindicted Co. 6 at KRW 20 billion. On September 8, 2008, the Defendant entered into an additional agreement on Nonindicted Co. 6’s payment of KRW 7 billion and KRW 11 billion with advance payment to Nonindicted Co. 6 to lend the above shares immediately (hereinafter “instant share purchase agreement”). During the process of the instant share purchase agreement, the Defendant did not immediately enter into the said agreement with Nonindicted Co. 6 as KRW 2 billion and did not accept the terms and conditions of the above share purchase agreement to the Defendant under the name of the said advance payment.

E. On September 8, 2008, Nonindicted Co. 2 deposited KRW 7 billion as a related company’s equity investment in order to acquire Nonindicted Co. 3’s stock company, and Nonindicted Co. 3 transferred KRW 7 billion on September 10, 2008 to Nonindicted Co. 3’s account in the name of Nonindicted Co. 6 as the down payment for the instant share purchase contract, and the Defendant immediately borrowed the said money from Nonindicted Co. 6. Nonindicted Co. 3 borrowed the said money from Nonindicted Co. 4 with capital increase equivalent to KRW 4 billion on the same day. Nonindicted Co. 3 borrowed KRW 4 billion from Nonindicted Co. 3’s account on September 11, 2008, and immediately deposited KRW 4 billion to Nonindicted Co. 3’s account under the name of Nonindicted Co. 6, and the Defendant immediately borrowed the said money from Nonindicted Co. 6.

F. Meanwhile, Nonindicted Co. 5’s director, Nonindicted Co. 12, a director of Nonindicted Co. 5, offered an appraisal for the appraisal of the amount of ready-mixed output data recorded in the Muran Flusium franchise, and the data prepared by suppliers of Kazakhstan, which was directly prepared by the Muran Capital, a financial company located in Kazakhstan, and Nonindicted Co. 12, a director of Nonindicted Co. 5, the said company provided an appraisal of the furnished information, without undergoing an inspection and examination of the reliability and reliability of the data,

G. Each evaluation report by the above accounting firm is based on the Future Cash Flowing Discount Act (DCF), and was premised on the evaluation of the future profit value of ○○○ on the premise of uncertainty on the future, and was premised on the ○○○’s exclusive supply of ready-mixeds in Alba project, a development plan for Alba city, the outer range of Albama City.

H. The assessment report prepared by the accounting company of Samduk accounting corporation was written on September 9, 2008, stating that the head office and factory were visited and inspected by Nonindicted 14, and that the assessment report prepared by the accounting company of Samduk accounting corporation was written on October 20, 208.

I. Nonindicted 14 accountant and staff member of Samsung Accounting Corporation ( Nonindicted 22 at the time Nonindicted 21 accountant was omitted, and Nonindicted 22, who is an employee belonging to the corporation, had Nonindicted 22 inspect the site of Kazaktan on behalf of them) visited Kazaktan from September 26, 2008 to October 1, 2008.

(j) The Defendant intended to use KRW 7 billion out of KRW 11 billion borrowed from Nonindicted 6 for the acquisition of Nonindicted Company 4, but failed so and used the Defendant’s repayment of the Defendant’s debt to △△△, and used KRW 4 billion in repayment of the Defendant’s debt to Nonindicted Company 1’s comprehensive finance.

(k) Nonindicted Co. 3 was unable to pay in full the sales balance of the said share purchase agreement to Nonindicted Co. 6, and thus, was not transferred 30% of the ○○ ownership owned by Nonindicted Co. 5 or Nonindicted Co. 5.

3. Determination

A. The intention of the crime of occupational breach of trust is established in combination with the perception that the person handling another's business affairs causes property damage to the principal and that the intention of his or her or a third party's pecuniary gain is in violation of his or her duties. The subjective element of the crime of occupational breach of trust (such as intention, motive, etc.) is that in a case where the defendant denies the criminal intent by asserting that the defendant committed an act at issue for his or her own interest, it shall be proved by the method of proving indirect facts that have considerable relevance to the intention in light of the nature of the object, and what constitutes indirect facts that have considerable relevance should be determined by the method of reasonably determining the link of the fact by using a close observation or analysis power based on normal empirical rule. Even if the defendant had the intention of seeking for his or her own interest, it is only incidental to the above indirect facts, and if it is proved that the defendant's intent to gain or gain was the principal (see, e.g., Supreme Court Decision 2004Do7027, Nov. 9, 2006).

Meanwhile, even if the management of a company has made a prudent decision with the belief that it would conform to the interests of the company collected in good faith and without any intent to take personal benefits, the risk inherent in the management of the company may lead to the occurrence of losses to the company. Thus, even in such a case, the company cannot be held liable for the crime of occupational breach of trust by relaxing the interpretation standard regarding intentional act. However, the company's financial situation at issue or the possibility of incurring losses and acquiring profits from such act on the basis of the information collected within a reasonable extent, without carefully examining all the circumstances, such as the economic situation of the company in question or the possibility of acquiring profits from such act, in order to escape from the situation where the company or the manager is difficult due to political reasons, it is reasonable to view that there was an intentional act of occupational breach of trust if the representative director, etc. of the company has intentionally committed the act in violation of his duty and caused the company to purchase shares of another company at a higher price, and the amount of damages to the company is not equivalent to 200,000,000.

나. 위와 같은 법리에 비추어, 위 인정 사실들에 의하여 인정되는 다음과 같은 사정, 즉 ① 2008. 12. 31. 현재 공소외 5 주식회사의 자산은 ○○ 지분 30%가 유일한 것이었고 매출실적도 전혀 없었으므로, 공소외 5 주식회사의 가치는 ○○ 지분의 가치에 의해 평가함이 상당한바, 공소외 5 주식회사의 당시 재무제표 상으로도 ○○ 지분 30%를 9억 5,000만 원 상당으로 평가한 점, ② ○○가 2008. 9. 30. 자본금을 변경 등록하여 지분 30%에 해당하는 자본금을 37억 원 상당으로 평가하고 있으나, 이는 공소외 5 주식회사가 지불한 주식 매입대금 10억 원으로 설비, 장비 등을 구입하기로 하고 이를 장부상 평가하여 기재한 것이므로, 실제 가치는 여전히 10억 원 상당에 불과하다고 보이는 점, ③ 공소외 5 주식회사가 2008. 9. 10. 현재 ○○ 지분 30%에 대하여 100만 달러 중 40만 달러밖에 지불하지 않은 상태였고, 나머지 지분 인수대금은 2009. 4. 10.에서야 모두 지급하는 등 피고인이 이 사건 지분매수계약을 추진할 당시 공소외 5 주식회사가 ○○ 지분 30%를 완전히 취득한 상태라고 보기 어려운 상태였음에도 피고인은 2008. 8. 24.경 공소외 6과 사이에 공소외 5 주식회사의 양수도 대금을 200억 원으로 정한 기본합의서를 작성한 점, ④ 피고인이 이 사건 지분매수계약 대금을 공소외 6에게 먼저 제시하는 과정에서 별다른 협상의 노력이 있었다고 보기 어려운 점( 공소외 6도 피고인이 먼저 거액의 매매대금을 제시하여 놀랐다고 진술하고 있음), ⑤ 피고인은 이 사건 지분매수계약의 계약금을 처음에는 70억 원으로 정하였다가 매매대금의 증액이 없는데도 계약금 70억 원과 선급금 40억 원 합계 110억 원을 지급하였고, 이는 통상의 거래보다 현저히 많은 규모의 계약금 내지 선급금인 점(피고인은 공소외 6과 사이에 주식회사 공소외 4 주식회사를 인수하여 아이란꼴 유전 등 개발 사업을 하고자 하는 합의가 있었기 때문이라고 주장하나, 앞서 본 바와 같이 피고인은 증액된 40억 원을 차용하여 금호종합금융으로부터 차용한 금원을 변제하는 데 사용한 점에 비추어, 위와 같이 선급금을 받은 이유는 피고인이 추가로 자금이 필요하였던 것으로 보인다), ⑥ 피고인은 공소외 6에게 계약금 및 선급금 명목으로 110억 원을 지급한 다음 즉시 이를 공소외 6으로부터 차용하여 모두 피고인과 관련된 채무를 변제하는 데 사용한 점, ⑦ 공소외 12가 삼정회계법인과 삼덕회계법인의 ○○ 지분에 대한 감정평가를 위하여 제공한 자료는 정확한 생산량을 확인한 자료가 아닌데도, 위 회계법인의 각 평가보고서는 위 자료의 신뢰성 및 진실성에 대한 실사 및 검토를 거치지 않은 채 제공된 자료를 근거로 추정 가치를 산정해 준 것에 불과하다고 보이는 점, ⑧ 삼덕회계법인의 주주지분가치 평가보고서 작성자 공소외 14는 삼덕회계법인의 보고서는 공소외 5 주식회사가 ○○에 투자를 하여 ○○ 지분을 취득하는 데 참고자료로 제시하기 위해 작성된 것이고 제3자가 공소외 5 주식회사 소유의 지분을 인수하는 과정에서는 이용될 수 없다고 진술하고 있는 점, ⑨ 위 회계법인의 각 평가보고서는 미래에 대한 불확실성을 전제로 하여 ○○의 장래수익가치를 평가한 것이므로 실제 가치와 중요한 차이를 보일 수 있음을 공인회계사인 피고인이 충분히 인식할 수 있었던 점, ⑩ 각 평가보고서는 ○○가 알마티시 외곽의 신도시 개발계획인 알가바스 프로젝트에 레미콘을 독점 공급하는 것을 전제로 하고 있으나, 피고인은 이 사건 지분매수계약 당시 ○○가 실제 독점 공급계약을 체결한 사실이 없고 이후에도 진행되지 않았다고 자인하고 있는 점, ⑪ 공소외 14 회계사가 작성한 평가보고서는 2008. 9. 9. 이전에 카자흐스탄을 방문한 사실이 전혀 없음에도 불구하고 평가보고서에 본사 및 공장이 소재한 카자흐스탄 알마티를 방문하여 실사한 것으로 기재하는 등 사실과 다른 부분이 존재하는 점, ⑫ 피고인은 공소외 14와는 대학 동문으로 1997년경 같이 공인회계사 시험준비를 하면서 알게 된 친밀한 사이이고, 삼정회계법인에서 근무한 경력이 있는 점 등을 종합하여 보면, 피고인은 공소외 5 주식회사와 공소외 7 사이에 ○○ 지분 30%를 100만 달러에 거래하도록 주선하는 등 그 가치 등을 잘 알고 있었으면서도, 이보다 월등히 높은 가격인 200억 원을 매매대금으로 제시하여 계약을 체결하고 계약금 및 선급금으로 110억 원을 지급함으로써 임무위배행위를 하였고, 이로 인하여 피해자 공소외 3 주식회사에 재산상 손해를 가하고 공소외 6으로 하여금 재산상 이득을 얻게 한다는 인식이 있었다고 충분히 인정되므로, 피고인 및 변호인들의 위 주장은 이유 없어 이를 받아들이지 아니한다(이 사건 지분매수계약을 체결하면서 ○○ 지분 30% 가치 평가액이 150억 원에 미달하는 경우 이 사건 지분매수계약을 무효화하기로 하는 조항을 삽입하였다는 점만으로 피고인에게 배임의 범의가 없다고 볼 수 없다).

0 Scope of punishment: Imprisonment with prison labor for up to two years and six months, and one year and three months.

○ Although the Defendant was well aware of the relevant laws and regulations as certified public accountants and certified tax accountants, it appears that the instant crime was committed, and during the instant crime, it would have disturbed economic order due to corporate acquisition by failing to repay a considerable amount of the borrowed money from gold comprehensive finance, Nonindicted 6, etc., and the amount of damages caused by the instant crime is large. Ultimately, the amount of damages caused by the instant crime would have an impact on small shareholders of Nonindicted Co. 2, a KOSDAQ-listed company as the parent company of Nonindicted Co. 3, and the amount would have an impact on the small shareholders of Nonindicted Co. 2, a KOSDAQ-listed company. As the Defendant requires the funds to be used for private purposes, even if the unlisted Co., Ltd. acquired the unlisted Co., Ltd. under the pretext of personal profits by directly receiving the acquisition amount under the pretext of the acquisition amount, and caused damages to the company itself, it cannot be deemed that the ordinary circumstances, such as the fact that the unlisted company’s mistake was not divided, and the act

○, however, the fact that the Defendant repaid most of the embezzled money, and after the Defendant was prosecuted, Nonindicted Co. 2 was subject to examination of delisting, and the Defendant renounced the representative director and the right of management for the normalization of Nonindicted Co. 2’s business, and arranged that the Defendant, the creditor, lost his right to the shares of Nonindicted Co. 2, which he held directly or through Nonindicted Co. 1, by exercising the right of pledge, and thus, the listing of Nonindicted Co. 2 is maintained. In the case of the violation of the Securities and Exchange Act, the Defendant lent money to Nonindicted Co. 1, the principal shareholder with the ability to pay, and the actual damage was almost rare, and the elements of sentencing prescribed in Article 51 of the Criminal Act as stated in the arguments, such as the Defendant’s age, character and conduct, home environment, and circumstances before and after the crime

1. Points concerning any false entry into and false entry into public electromagnetic records, etc. in violation of the Commercial Act;

A. Summary of the facts charged

(1) Violation of the Commercial Act

On August 208, in order to borrow funds necessary to take over Nonindicted Co. 2 in the name of a juristic person from gold comprehensive finance, the Defendant, while establishing Nonindicted Co. 1 corporation, borrowed money from outside of the company and paid the share capital, and subsequently, had the intent to make the best payment of the capital of Nonindicted Co. 1 by withdrawing the total amount of the share capital and repaying the borrowed money.

around August 22, 2008, the Defendant paid KRW 250 million borrowed from Nonindicted Co. 1 at the National Bank Trade Center located in Samsung-dong, Gangnam-gu, Seoul, as stock price for Nonindicted Co. 1 (hereinafter “instant payment”). The Defendant issued a certificate of deposit of stock payment from the said bank, and applied for the registration of incorporation for the registration of incorporation in the registration of the Suwon District Court located in Sung-gu, Sung-dong, Sung-dong, Sung-gu, Sung-dong, Sung-dong, and the registration of incorporation for the establishment of the said bank around September 5, 2008, and then withdrawn full amount of KRW 250 million for stock payment from the said bank.

Accordingly, the defendant pretended to pay the share price of KRW 250 million.

(b) Any false entry into public electronic records, and any event such as false entry into public electronic records;

On August 22, 2008, the Defendant submitted relevant documents necessary for the registration of incorporation of Nonindicted Company 1, such as a certificate of payment of share capital, to a public official who is unaware of the circumstances, and had the above public official enter the same public electronic record as the commercial register of Nonindicted Company 1, the total number of shares issued by Nonindicted Company 1, the total amount of capital of which is 250,000,000,000, etc., in a false report to the public official in charge, and exercised the public electronic record by having the public official in charge enter false facts in the public electronic record, and by having him electronically manage it in the information system so that a computerized inquiry can be made.

B. The gist of the defendant and his defense counsel

In order to acquire the shares of Nonindicted Co. 1, 208, it was established on August 22, 2008 with capital of KRW 250 million on the request of Nonindicted Co. 1, 2008. After its establishment, Nonindicted Co. 1, 200,000 won from the above capital of KRW 250,000 and KRW 12.8 billion from the gold comprehensive financing, deposited the total amount of KRW 1.3 billion into Nonindicted Co. 1, and used KRW 1.4 billion in acquiring the shares of Nonindicted Co. 2, 14.4 billion after the establishment of Nonindicted Co. 1, the Defendant borrowed KRW 250,000 from Nonindicted Co. 1, Sept. 5, 2008, on the premise that the most unlawful payment of the shares of Nonindicted Co. 1, 200,000 won was not established on the premise that there was no intention to use the shares as the assets of Nonindicted Co. 1, 2008.

C. Determination

(1) The purpose of Article 628 (1) of the Commercial Act is to regulate the act of neglecting the intent of the law that intends to lose the company's capital. Thus, in case where the company's capital is paid in the form or temporarily without the intent to secure the company's capital due to the payment of the stock price, and the company deposited this money with the bank and then withdraws the paid money immediately after completing the registration of incorporation or the registration of capital increase after obtaining a certificate of payment of the stock price, the company's capital is not increased, barring any special circumstance that the company used it for the company, and thus, the crime of inducing payment and the crime of not writing in the authentic copy of the authentic deed and the crime of uttering of the authentic copy of the authentic deed is established. However, even if the paid money was immediately withdrawn, if the withdrawn money is used for the company, it shall not be deemed that it damages the capital loss if it was paid without the intent to pay the stock price (see Supreme Court Decision 2003Do7645 delivered on June 17, 2004).

(2) Meanwhile, according to the defendant's legal statement, prosecutor's protocol of interrogation on the defendant, prosecutor's statement on the non-indicted 17, certificate of custody of shares payment (1 right 89 pages), copy of passbook (1 right 107 pages), loan agreement (1 right 150 pages, 2 right 688 pages), written request for execution of loan (1 right 154 pages), each contract for management right and transfer of shares (1 right 159 pages, 161 pages), and explanatory documents (2 right 656 pages), the defendant requested 200 million won to acquire the above funds from the non-indicted 150 million won to the non-indicted 2 corporation. According to the facts that the defendant requested 200 million won to acquire the above funds from the non-indicted 16 corporation's account, the fact that the defendant continued to deposit the funds from the non-indicted 100 million won to the above non-indicted 1 corporation's account in the name of the defendant.

(3) The following circumstances acknowledged by the above facts in light of the legal principles as seen earlier, i.e., ① the Defendant’s acquisition of 250 million won out of the above account on September 5, 2008 from the above account cannot be readily concluded to be the same amount as KRW 250 million paid out of the share capital on August 26, 2008 for the establishment of Nonindicted Incorporated Company 1; ② KRW 250 million paid out of the share capital on August 26, 2008 for the establishment of Nonindicted Incorporated Incorporated Company 1 can be deemed to have been used as funds for acquiring the shares of Nonindicted Incorporated 1 Company 2; ③ The Defendant’s withdrawal of the share capital from the above account at intervals of KRW 2000,000,000,000 paid out from Nonindicted Incorporated Company 1 to Nonindicted Incorporated Company 1; ③ The Defendant could not be deemed to have used the share capital at intervals of KRW 208,000,000,000 from the above facts charged.

(4) On the other hand, insofar as the Defendant did not constitute a crime of false entry into public electronic records, etc., and the use of false entry into public electronic records, etc. against the Defendant is not established.

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

A. Summary of the facts charged

On June 19, 2008, the Defendant entered into a contract to acquire management rights and 18 billion won of shares of Nonindicted Co. 2 from Nonindicted Co. 9 and 23 in the major shareholder, and the automobile business division of Nonindicted Co. 2 was transferred to Nonindicted Co. 9 about 5 billion won, exercising management rights, and the Defendant agreed on a spin-off contract to conduct overseas resources development business at the Seoul office of Nonindicted Co. 2. The Defendant was from September 2008 to not participate in the said automobile business division at all, and received KRW 3.5 billion in total as advance payment for the transfer of the automobile business division.

As above, the Defendant: (a) received demand for repayment of KRW 14 billion loans borrowed from the gold comprehensive financial institution for the purpose of raising funds for acquiring management rights of Nonindicted Co. 2; (b) there was no way to repay the loans; and (c) at the Seoul office of Nonindicted Co. 2 Co., Ltd. operated by the Defendant, there was no way to repay the loans; and (d) the overseas resources development business was not well-run, and (e) obtained a technology credit guarantee certificate from the victims of the Korea Technology Credit Guarantee Fund

However, since the issuance of a technology credit guarantee certificate guarantees the loan of driving funds related to technology development for small and medium enterprises running a new technology business, if the defendant applies for the issuance of a true letter of guarantee, the defendant could not be issued a certificate of guarantee. The defendant continues to operate the automobile business sector, has the technology for the development of eco-friendly parts using the complex materials, and has the technology for the development of eco-friendly motor vehicles using the complex materials, and has the intent to issue a guarantee by deceiving the Korea Technology Finance Corporation as if he applies

Around March 30, 2009, the Defendant issued a technology credit guarantee certificate of KRW 2.85 billion in the amount guaranteed from Nonindicted 25 to Nonindicted 25, on the ground that the Korea Technology Credit Guarantee Fund (hereinafter “Korea Technology Credit Guarantee Fund”) issued a false technology credit guarantee certificate of KRW 3 billion to Nonindicted 25, who is in charge of issuing a technology credit guarantee certificate of the Korea Technology Credit Guarantee Fund affiliated with the Korea Technology Credit Guarantee Fund (hereinafter “Korea Technology Credit Guarantee Fund”) to the employees in charge of issuing the technology credit guarantee certificate of KRW 2.85 billion in the amount to be used for the purchase, etc. of raw materials necessary for the manufacture of automobile parts of Nonindicted Company 2.”

Accordingly, the defendant deceptioned the Victim Technology Evaluation Center and obtained a technology credit guarantee certificate equivalent to KRW 2.85 billion from the victim, thereby acquiring property profits equivalent to the same amount.

B. The gist of the defendant and his defense counsel

In the process of obtaining a credit guarantee certificate equivalent to KRW 2.85 billion from the Korea Technology Credit Guarantee Fund, the Defendant did not request the Korea Technology Credit Guarantee Fund to use the loan only for the automobile business sector. In the process of issuing a guarantee certificate from the Korea Technology Credit Guarantee Fund, there is no specific fact that the use of the loan is “the loan is to be used for the purchase of raw materials necessary for the manufacture of automobile parts.” At first, the Defendant was planned to use the loan of KRW 7 billion as operating funds and the purchase funds for automobile business. However, upon the reduced size of the loan, the Defendant was granted a loan of KRW 3 billion with the operating fund when the loan was reduced, so it cannot be deemed that the Defendant was issued a guarantee certificate by deceiving the Korea Technology Credit Guarantee Fund. In addition, in order to spin-off the automobile business sector in Nonindicted Co. 2, the Defendant applied for a credit guarantee certificate without going through a resolution of the board of directors, procedures for protecting creditors, etc., and without going through it, the automobile business sector was issued with the consent of Nonindicted Co. 9, each of Nonindicted Co. 2.

C. Facts of recognition

The following facts can be acknowledged according to the witness’s statement in the third trial record, Non-Indicted 9’s statement, Non-Indicted 24, 25 of the witness’s statement in the 7th trial record, each protocol of examination of the defendant prepared by the public prosecutor, each protocol of examination of the suspect against Non-Indicted 9, 15, and 20 of the witness in the 4th trial record, each protocol of statement by the public prosecutor against Non-Indicted 9, Non-Indicted 9, 15, and 20, letter of commitment (1st page 41), agreement (1st page 41), copy of substitution slip (1st page 46), supporting documents (2nd page 656), supporting documents (3rd page 176), purpose of use of funds (4rd page 184-187th page), statement of execution of funds (4rd page 1880-1903), statement of commitment (4rd page 2035), Non-Indicted 2035 pages 4219-2319(39).

(1) On July 8, 2008 and August 28, 2008, the Defendant agreed to acquire the shares and management rights of Nonindicted Company 9 and 23 (hereinafter “Nonindicted Company 9, etc.”) from Nonindicted Company 2, the controlling shareholder of Nonindicted Company 2, and that Nonindicted Company 1 established by the Defendant and the Defendant shall take over the shares and management rights of Nonindicted Company 16 billion won. However, on November 6, 2008, Nonindicted Company 9, etc. agreed to take over the existing business division of Nonindicted Company 2 (including the parts of personnel, physical facilities, and automobile business division) for the manufacturing and selling business of the cars and other parts run prior to the above contract, or that a third party designated by Nonindicted Company 9, etc. may take over the shares and management rights of Nonindicted Company 2 under the pretext of Nonindicted Company 9’s representative director. The Defendant, along with the above agreement, prepared an independent promise to receive the existing assets transfer from Nonindicted Company 2, 2008 to Nonindicted Company 30 billion won on the day of receiving the shares transfer.

(2) Around February 2009, Nonindicted 9 et al. knew of the fact that the Defendant intended to obtain a loan with the instant credit guarantee certificate, but the Defendant’s business could not spin-off the automobile business sector due to the difficulty of the Defendant’s business. As such, Nonindicted 9 et al. sent an electronic note stating that the Defendant would not participate in the instant loan application on the premise that the Defendant’s loans are not related to the automobile business sector, and that the obligation to guarantee the technology credit guarantee is not succeeded to a split-off company that will become a spin-off in the future.

(3) In fact, on March 27, 2009, Nonindicted 9 et al. prepared a letter of undertaking to deduct the succeeded amount from the acquisition amount of the divided company’s KRW 5 billion when the liabilities of Nonindicted 2 Co. 2 were succeeded to a new company, and cooperation was made by employees of the Korea Technology Credit Guarantee Fund to visit the classified factory, which is a factory of Nonindicted 2 Co. 2.

(4) When the Korea Technology Finance Corporation issues a technology credit guarantee statement, it will evaluate the technical feasibility, feasibility, and reliability of the applicant company, and to prepare for the non-indicted 2 corporation's failure to repay the loan after issuance of a guarantee certificate, it has importantly examined not only the technology but also the feasibility and reliability, and as a result, the evaluation rating of the non-indicted 2 corporation was the BB grade exceeding the BB grade of the letter of guarantee by obtaining a high score in the process

(5) The Defendant complied with the procedure of going through a resolution of the board of directors of Nonindicted Co. 2 with respect to the instant loan.

(6) At the time of March 2009, Nonindicted Co. 2 had no loan obligation, and Nonindicted Co. 2 had sufficient ability to repay the net asset value of Nonindicted Co. 2’s total assets with total assets of KRW 3.5 billion, sales amount of KRW 25.7 billion, and liabilities with convertible bonds of KRW 2 billion, etc. from financial institutions.

(7) Around November 2009, Nonindicted Co. 2 established a collateral security right on a well-known factory owned by Nonindicted Co. 2 with sufficient collateral value in relation to the instant credit guarantee to the Korea Technology Credit Guarantee Fund.

(8) The purpose of using the funds initially presented by Nonindicted Co. 2 to the Korea Technology Credit Guarantee Fund is to set up as at the time when the loan was KRW 7 billion. However, after changing the loan to KRW 3 billion, the use of the funds at the time of submitting a funding plan to the Korea Technology Credit Guarantee Fund was deemed as driving funds, such as purchase of raw materials. The Korea Technology Credit Guarantee Fund’s guarantee of the Korea Technology Credit Guarantee Fund stated the use of the funds as

(9) The amount of KRW 2.85 billion loaned from a corporate bank was used in the wages for employees of Nonindicted Co. 2, Ltd., office rent, loan interest payment, etc., and the Defendant did not use it individually.

(10) Nonindicted Co. 2 did not delay interest on the amount borrowed from a corporate bank, and the Korea Technology Credit Guarantee Fund did not take measures, such as revoking the instant credit guarantee for Nonindicted Co. 2 or revoking it.

(11) Meanwhile, in the process of issuing a technology credit guarantee certificate, Nonindicted Co. 2 requested the Korea Technology Credit Guarantee Fund to receive the technology credit guarantee certificate from Nonindicted Co. 27 who operated Nonindicted Co. 26 and Nonindicted Co. 28 who had worked for the Korea Technology Credit Guarantee Fund. Nonindicted Co. 27 stated that “The 5% of the loans will be changed because it would be asked to obtain the technology credit guarantee certificate from the Korea Technology Credit Guarantee Fund through Nonindicted Co. 28, who was the applicant of the Technology Credit Guarantee Fund, to obtain the technology credit guarantee certificate, and then the Defendant received the technology credit guarantee certificate from Nonindicted Co. 27 as a branch office other than the Korea Technology Credit Guarantee Fund, and received the technology credit guarantee certificate of KRW 2.5 billion on March 30, 2009, 300,000 from the above technology credit guarantee certificate of KRW 2.5 billion on the same day, 200,000 from the Korea Technology Credit Guarantee Fund’s imprisonment for the business of KRW 26.7 billion on April 1, 20009.

D. Determination

In issuing the letter of credit guarantee in this case, it is examined whether there was a deception of the defendant and whether there was a criminal intent to acquire the defendant.

In light of the following circumstances acknowledged as follows, i.e., ① an internal physical division agreement on Nonindicted Stock Company 2 between the Defendant and Nonindicted Stock Company 2 and Nonindicted Stock Company 9, etc., the former controlling shareholder of the Defendant and Nonindicted Stock Company 2, but Nonindicted Stock Company 2 still continued to have been a single company. As such, it is difficult to deem the Defendant to have an obligation to notify the existence of physical division agreement and its contents with Nonindicted Stock Company 9, etc., ② as the Defendant applied for the issuance of a technology credit guarantee certificate, it is difficult to deem that the Defendant was aware of the usage as it was driving funds and used as operating funds, ③ even if there was a problem related to the large volume complex data among the loan-related documents submitted by Nonindicted Stock Company 2, even if there was a problem in the light of the foregoing facts, it is difficult to recognize that the technical income portion was partially reduced, and it was difficult to obtain evaluation above Grade B or higher, which is the standard for issuing the credit guarantee certificate, and the Korea Technology Credit Guarantee Fund did not have any intent or ability to receive the loan from Nonindicted Stock Company 22.

3. Conclusion

Therefore, among the facts charged in the case of this case, the violation of the Commercial Code, the fact that the public electronic records, etc. are recorded falsely, the fact that the exercise of false entry, public electronic records, etc., and each charge of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) constitutes a case where there is no proof of crime

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

[Separate] Crime List: Omitted

Judges Woo-man (Presiding Judge)

1) The former Securities and Exchange Act was repealed by Article 2 of the Addenda to the Financial Investment Services and Capital Markets Act (Act No. 8635, Aug. 3, 2007; Act No. 932, Feb. 4, 2009); however, Article 41(1) of the Addenda to the said Act provides that the application of penal provisions and administrative fines for violations of the former Securities and Exchange Act prior to the enforcement of this Act shall be governed by the previous provisions.