Defendant

Both parties

Lee Jin-hun

Attorney Hong-soo

Seoul Central District Court Decision 2008Da1040, 1159 (Consolidated) Decided June 24, 2010

All appeals filed by the defendant and prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant

(1) misunderstanding of facts

A) The point of occupational breach of trust due to the lease of the parking lot

In fact, Nonindicted Co. 1, which managed the instant ○○ Parking Lot and △△△ Parking Lot (hereinafter “Nonindicted Co. 1”), is the Defendant’s husband, and Nonindicted Co. 2 made all decisions. In particular, the ○○ Parking Lot, the area of which is much wider than that of the Defendant, is owned by Nonindicted 2 individual. The Defendant leased the instant parking lot to Nonindicted 5, who is the words Nonindicted 2’s consent, and the lease of the instant parking lot cannot be deemed objectively disadvantageous to Nonindicted Co. 1. Therefore, this part of the facts charged does not constitute occupational breach of trust.

B) The point of occupational embezzlement with respect to KRW 745.10 million

In around 2004, Nonindicted Party 2 asked the Defendant to secure additional cash when borrowing KRW 1.75 million from Nonindicted Company 1. The Defendant paid that Nonindicted Company 2 would purchase the instant real estate in the name of Nonindicted Company 1 in the event of Non-Indicted Company 1’s default, and that Nonindicted Company 2 would pay the purchase price to Non-Indicted Company 3 in the name of the Defendant for the remaining real estate in the event of Non-Indicted Company 1’s default, and paid the purchase price to Non-Indicted Company 3 in the amount of 24.4m2 and 69.1m2 on the ground of the previous land and the four-story building (the 2m2 omitted) on the 69.1m3m2 in Seoul, Namdong-dong (the 2m2 omitted). Accordingly, the Defendant borrowed Non-Indicted Company 1’s debt to Nonindicted Company 3 in the form of money for the remaining real estate in the event of Non-Indicted Company 1’s default.

C) Occupational breach of trust due to the use of corporate cards

In charge of managing and operating the real estate owned by Nonindicted Company 2, Nonindicted Co. 1 bears the obligation to pay profits therefrom to Nonindicted Co. 2. In the event of a claim, such as a loan to Nonindicted Co. 2, the profits that should first be paid to Nonindicted Co. 2 have been offset or repaid, and the remaining claims have been settled later. Therefore, even if Nonindicted Co. 2 used the funds of Nonindicted Co. 1 for an individual purpose, it cannot be said that the damage to Nonindicted Co. 1 was inflicted immediately on the sole basis of such fact, and it can be confirmed whether Nonindicted Co. 2 accounts the above expenses as a debt to Nonindicted Co. 1, or offset or settled the claims against Nonindicted Co. 1. It can be determined whether the above expenses have been occupational breach of trust. The Defendant on the cargo is sufficient to obtain the consent or consent of Nonindicted Co. 2, a shareholder of Nonindicted Co. 1, and as such, the obligation to normally handle or reimburse the above expenses exists to Nonindicted Co. 2, 200, it can be subject to punishment for occupational breach of trust.

2) Unreasonable sentencing

In light of all the circumstances, the punishment of the court below (two years of imprisonment, three years of suspended execution, and 80 hours of community service order) is too unreasonable.

(b) A prosecutor;

According to the evidence submitted by the prosecutor, each of the facts charged in the instant case that the lower court rendered a not-guilty verdict is found guilty.

2. Judgment on the defendant's assertion of mistake of facts

A. The point of occupational breach of trust due to the lease of the parking lot

The defendant and his defense counsel at the court below asserted similar to this part of the grounds for appeal, and the court below held that the defendant, based on evidence, concluded a lease contract on the parking lot of this case under the name of the non-indicted 5 and operated it by himself, thereby violating his duties and thereby causing damage to the non-indicted 1. The court below's judgment is justified in light of the records and closely examining the above judgment.

Since the Defendant alleged to the effect that the instant parking lot was leased to Nonindicted 5, a shareholder of Nonindicted Company 1, with the consent of Nonindicted 2, the Defendant did not constitute occupational breach of trust, according to the records, it is acknowledged that Nonindicted 2 held 62.07% of the shares of Nonindicted Company 1 at the time, but it is difficult to view Nonindicted Company 1 as one of the Nonindicted Company 2-1, and furthermore, as long as it is deemed that the Defendant, not Nonindicted 5, was the leased the instant parking lot, there is no room to accept the said assertion, and there is no material to deem that Nonindicted 2 consented. In fact, even if the Defendant obtained the consent of Nonindicted 2 on the lease and operation of the instant parking lot, it cannot be deemed that the Plaintiff and the shareholder were the same person as the existence of separate legal personality, and thus, even if the shareholder and the major shareholder were the same as one, if an executive of Nonindicted Company 1, a shareholder or a major shareholder, thereby causing damage to the Defendant’s duty of breach of trust or causing damage to the Defendant’s property.

B. The point of occupational embezzlement with respect to KRW 745.10 million

The defendant and his defense counsel asserted the same as the grounds for appeal in this part of the judgment below, and the court below rejected the above assertion by stating in detail the judgment on the "the judgment on the defendant and his defense counsel's assertion, and on the facts constituting a crime No. 2" in the judgment of the court below. The judgment of the court below is just in comparison with the above judgment, and the judgment of the court below is not consistent with the records, and there is no credibility or lack of probative value of the witness's statement

C. Breach of trust due to the use of the corporate card

The defendant and the defense counsel of the court below asserted that the defendant had no criminal intent in breach of trust since they used the corporate card under the consent of non-indicted 2 in the court below. Accordingly, the court below rejected the above assertion by stating in detail the judgment on the defendant and his defense counsel's assertion, and the judgment on the criminal facts No. 3 of April, 200.

The defendant asserts that the character of the non-indicted 1 company or the special status of the defendant should be considered as shown in the summary of the grounds for appeal above. However, as seen earlier, it cannot be deemed that the non-indicted 1 company was one of the non-indicted 2 company, and even according to the above argument of the family defendant, it may be problematic whether the defendant and the non-indicted 2 are recruited or not, and there is no obstacle to recognizing the defendant's criminal intent of occupational breach of trust

3. Judgment on the prosecutor's assertion of mistake of facts

A. Summary of the judgment below regarding the acquittal portion of the court below

The court below acquitted all of the facts charged in the case of embezzlement and occupational embezzlement. The summary of the judgment is as follows.

1) The point of embezzlement relating to wages and bonuses

① On March 25, 2005, the Defendant was appointed as a director at the general meeting of Nonindicted Company 1, who was held on or around March 25, 2005, and worked as the president under the consent of Nonindicted Company 2, who was the representative director, and actually carried out the business affairs of Nonindicted Company 1; ② Nonindicted Party 2 directly approved the Defendant’s salary in the letter of gift that was set at KRW 10 million; and furthermore, ordered the Defendant to transfer his salary in the Defendant’s account; ③ Nonindicted Party 2 dismissed the Defendant from the representative director on or around October 2004 on the ground of embezzlement; and thereafter, it is difficult to readily understand that the Defendant was appointed as the representative director and the Defendant did not impose any limit on the payment of the said salary and bonus; ④ Nonindicted Party 2 stated that Nonindicted Company 1 paid KRW 20 million in the relevant civil procedure to the Defendant as the payment of KRW 20 million. In full view of the evidence presented by the prosecutor, it is insufficient to recognize that the Defendant’s own bonus or the money as the Defendant’s bonus.

2) The point of embezzlement related to retirement pay

① On October 26, 1995, the Defendant was appointed as the representative director of Nonindicted Company 1, but retired on October 26, 2004. Nonindicted Company 9 was appointed as a director of Nonindicted Company 1 on May 27, 1999, and retired on May 7, 2005. ② Nonindicted Company 10, who was in charge of Nonindicted Company 1’s corporate tax return, was requested by the Defendant and Nonindicted Company 9 to calculate the amount of tax related to the retirement allowance from the former, on January 2005. At the time, Nonindicted Company 1 already planned Nonindicted Company 1’s retirement allowance to be KRW 46,726,00 for the Defendant, KRW 64,61,440 for the Defendant’s retirement allowance from Nonindicted Company 1; ③ Nonindicted Company 2’s representative director at the time of its dismissal from Nonindicted Company 1 to the latter’s retirement allowance from Nonindicted Company 1; and ④ Nonindicted Company 10, who was in charge of Nonindicted Company 2’s retirement allowance from the latter.

3) The point of occupational embezzlement with respect to short-term loans to Nonindicted 2

① Comprehensively taking account of the fact that Nonindicted Co. 1’s short-term loans were recognized by Nonindicted Co. 2 on March 22, 2004 and KRW 750 million on April 19, 2004, Nonindicted Co. 1’s ordinary accounts on Nonindicted Co. 2 for short-term loans in 2003 and 2004, Nonindicted Co. 2 was arranged as the amount embezzled by Nonindicted Co. 2 on the grounds that the said short-term loans were not borrowed by himself; ② Nonindicted Co. 2 received a report on the management of Nonindicted Co. 1’s funds from Nonindicted Co. 10 even before he was appointed as the representative director; ② Nonindicted Co. 2 was also subject to Nonindicted Co. 1’s own short-term loans from Nonindicted Co. 2’s own funds to Nonindicted Co. 2,129,260, and there were no other evidence to view that the said short-term loans were imposed on Nonindicted Co. 2, 204 on Nonindicted Co. 1’s balance sheet that was used for the said short-term loans.

4) The point of occupational embezzlement in relation to automobiles

① Although the Defendant retired from the representative director of Nonindicted Company 1 on October 26, 2004, the Defendant was appointed as a director at the regular general meeting of shareholders on March 25, 2005, and had Nonindicted Company 1 work as the president under the consent of Nonindicted Company 2, the representative director from around that time. ② Meanwhile, Nonindicted Company 2 approved the Defendant to continue to use the instant vehicle used before and around that time; ③ there is no evidence suggesting that the Defendant was lawfully dismissed or was notified of his dismissal; ④ Nonindicted Company 1 demanded the Defendant to return the said vehicle around December 20, 2005. However, the grounds for return were “the Defendant owned without title until before and after the retirement of 204,” and the Defendant refused to return the said vehicle to Nonindicted Company 1 on the ground that there was no intention to return it by Nonindicted Company 2, the representative director, at the general meeting of shareholders, and the evidence was insufficient to recognize that the Defendant did not return the said vehicle to the Defendant on March 28, 2005.

5) The point of occupational embezzlement in relation to the payment to Nonindicted 13

① From May 2001 to Nonindicted 2’s request, the Defendant began to appear as if Nonindicted 13 worked as the employee of Nonindicted Company 1 and paid benefits to Nonindicted 13; ② Nonindicted 13 or Nonindicted 14 made a statement to the effect that he was paid money from Nonindicted Company 1 until 2005; ③ Nonindicted 2 did not pay wages to Nonindicted 13 from January 2005 but began to withdraw money under its pretext; but at that time, Nonindicted 2 was the representative director of Nonindicted Company 1; the Defendant was dismissed from office at the representative director and was unable to participate in the Nonindicted Company 1; ④ In full view of the following: (a) the evidence submitted by the Prosecutor was insufficient to recognize that the Defendant embezzled the money by using the said money for personal purposes.

6) The point of occupational embezzlement such as employee pay

① Around October 26, 2004, the Defendant could not be involved in the business of Nonindicted Company 1 until the date of his retirement from the representative director of Nonindicted Company 1’s company until the date of appointment as a director at a general meeting of shareholders held on March 25, 2005 after his retirement from the general meeting of shareholders held on March 25, 2005. Thus, the money withdrawn on March 4, 2005 appears to have been withdrawn in accordance with Nonindicted Company 2’s instruction or approval, the representative director of Nonindicted Company 1, and ② the said money was legally accounted for the employee’s benefits and travel expenses, ③ the fact that the Defendant used the said money, and ③ the amount was lawfully accounted for the employee’s expenses, ③ the Defendant was denied, and the investigation was not conducted on whether the Defendant withdrawn and used voluntarily for personal purposes unrelated to Nonindicted Company 1. In full view of the evidence submitted by the prosecutor alone, it is insufficient to recognize that the Defendant embezzled the said money.

B. The judgment of this Court

In light of the records, a thorough examination of the evidence of this case is justifiable in the court below's decision that all facts charged are not guilty on the basis of the evidence judgment and reasoning mentioned above, and the statement of each payment decision, disbursement decision, salary payment statement, statement of payment, written statement of money, deposit resolution, and sales resolution which are additionally examined by this court does not affect the above judgment.

4. Judgment on the Defendant’s assertion of unreasonable sentencing

It is recognized that the Defendant, who had no previous criminal record, was a primary offender, who had been employed as the representative director for a considerable period before the instant crime, and would have made efforts to develop Nonindicted Company 1, and that Nonindicted Company 1, the husband of the Defendant, was in fact operating Nonindicted Company 2 with a stake of at least 60%, and the Defendant was living with Nonindicted Company 1 due to the payment of benefits received from Nonindicted Company 2 since he was separated from Nonindicted Company 2 in 200, and was in a situation where he will drive away from Nonindicted Company 2, due to the indivation with Nonindicted Company 2, it seems that he was forced to stop the instant embezzlement crime, and currently in a divorce lawsuit with Nonindicted Company 2.

However, in light of the following: (a) each of the instant crimes committed by the Defendant for embezzlement of more than KRW 700 million corporate funds while in his/her custody; and (b) in violation of his/her duties as the representative director or the president, the nature of the offense is not less than that of the company; (c) the damage recovery was not entirely made; (d) the Defendant’s age, character and conduct, motive, means and consequence of the offense; and (e) other various circumstances, which are the sentencing conditions specified in the records and pleadings of the instant case, the lower court’

5. Conclusion

Therefore, the appeal filed by the defendant and the prosecutor is dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition by the court below (However, the judgment of the court below 2.17 and 18 are to acquire a certain amount of non-property gains," and "the victim" as stated in the 3th 12th 8th 8th 8th 8th 8th 2,129,026,465 "B" and "the 2,129,026,465th 23th 15 and 24th 3th 24th 24th 3th 3th 3th 3th 3th 5th 5th 5th 5th 5th each 5th 5th 5th 5th 3th 5th 3th 3th 3th 3th).

Judges Ansan-jin (Presiding Judge)

(1) According to the record, Nonindicted 2’s son’s son was holding 30% of the shares of Nonindicted Company 1 at the time, and Nonindicted 2, in the course of managing and disposing of the assets of Nonindicted Company 1, he appears to have been under criminal trial due to the occurrence with Nonindicted 7.