(영문) 서울중앙지방법원 2018.7.12. 선고 2017고합1221 판결

Defendant shall be punished by a fine of KRW 3,000,000. Where the Defendant fails to pay the above fine, the Defendant shall be confined in the workhouse for a period calculated by converting KRW 100,000 into one day.

The above fine is ordered to pay an amount equivalent to the provisional payment.The charge of occupational breach of trust among the facts charged in the instant case is not guilty. The summary of the judgment on the acquittal is publicly notified.

Reasons

Criminal 1)

From June 2002 to July 1, 2016, the Defendant served as the chairperson of the Victim B from June 2002 to July 2, 2016, and has been engaged in the operation, management expenses and the collection, management and enforcement of the above B.

Around November 11, 2009, the Defendant embezzled KRW 5,000,000,000 from the D Association accounts (E) accounts in the name of the Defendant used for the management of public funds in Seoul Jung-gu, Seoul, as attorney fees, for personal use. From November 11, 2009 to January 12, 2015, the Defendant embezzled KRW 10,000,000, total amount of the victim’s public funds in attached Table 1, Nos. 81, 129, and 157, for four times in total, as indicated in each of the following items: (a) from November 11, 2009 to January 12, 2015.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of witness F and G;

1. The statements of witnesses H and I in the first trial records;

1. The second examination protocol of the accused by the prosecution (including each statement of H, I, and J (F) among the examination of the substitution);

1. Each prosecutor's protocol of statement concerning H, I, and J (F);

1. Each police officer's statement to H and J (F);

1. Application of Acts and subordinate statutes to each account transaction, each copy of withdrawal and payment of money, each receipt without passbook, each written application for the 201Ma2296 case, and the preparatory documents of the Seoul Western District Court AP case;

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

Articles 356 and 355(1) of the Criminal Act (generally, choice of fine)

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Judgment on the key issue of Article 334(1) of the Criminal Procedure Act (the point of occupational embezzlement) 2

1. Summary of the facts charged

From June 2002 to July 1, 2016, the Defendant served as the Chairperson of the Victim B, and has been engaged in the operation, management, collection, management, and enforcement of the above B, and support money. On May 20, 2008, the Defendant withdrawn KRW 10,000,000 from the D Union passbook (E) in the name of the Defendant used for the management of public funds in the above B, and embezzled KRW 6,430,240 among them for personal purposes. From May 20, 2008 to May 13, 2016, the Defendant embezzled KRW 536,39,240 for total amount of the victim’s public funds for 176 occasions, such as the list of crimes in attached Form 1.

2. Summary of the defendant and his defense counsel's assertion

The Defendant did not use the public funds of B for personal purposes while working as the chairperson of the Victim B (hereinafter referred to as “B”). The Defendant transferred some amount from the public funds account of B to the Defendant or a third party’s account, or withdrawn cash, but this is a result of the Defendant’s payment of expenses with the personal funds in the situation where operating funds fall short of the funds. The Defendant attempted to take over the fireworks at the time when the Defendant was in charge of the president of B, but all of the funds listed in the attached Table 1 of the facts charged were disbursed as litigation costs related to legal disputes with the said developer, or used normally as necessary costs, such as other entertainment expenses, employee leave expenses, cleaning expenses, goods installation and repair expenses.

3. Determination

A. Relevant legal principles

In the crime of occupational embezzlement, the intent of unlawful acquisition of property of another person who is in violation of his/her duties for the purpose of avoiding his/her own or a third party’s interest refers to the intent of disposal of property of another person, such as that of his/her own property, which is in fact or in law. If the defendant denies it, the subjective element of the crime is bound to prove it by means of indirect facts or circumstantial facts that have considerable relevance to the nature of things given the object. However, even if the whereabouts or use of money in the circumstances where the whereabouts or use of the money was not revealed, it is insufficient to recognize that the defendant used the money in the place of use, as alleged by the defendant, because there is insufficient material to acknowledge that the defendant used it with funds different from the above money, and rather, if reliable material exists for the defendant to use the money for his/her personal purpose, it can be determined that the defendant embezzled the money with the intent of unlawful acquisition (see, e.g., Supreme Court Decision 200Do17149, Mar. 14, 200).

(b) Fact of recognition;

According to the evidence duly adopted and examined by this court, the following facts can be acknowledged.

1) The Defendant, while working as the Chairperson of B from June 2002 to July 1, 2016, managed the public funds of B using three deposits in the name of the Defendant. Daehan account in the name of the Defendant (hereinafter “DDR account”) is an account in which merchants deposited and managed the management expenses paid in cash, and the K Bank account in the name of the Defendant (hereinafter “K Bank Management Expenses Account”) is paid by the merchants by account transfer. The management expenses transferred to the said account was deposited into the D Association account after cash was withdrawn. The K Bank account in the name of the Defendant (hereinafter “K Bank Support Account”) is the account in which the merchants deposited and paid the management expenses in cash. The K Bank account in the name of the Defendant (hereinafter “K Bank Support Account”) is the account in which the merchants received the management expenses paid in a non-regular manner by a person operating a commercial building or a new member, etc. in the name of the Plaintiff.

2) Article 10 of the B’s articles of incorporation provides that one chairperson, one vice-chairperson, two auditors, seven to nine directors, and two advisers shall be appointed as executive officers. Article 13 of the B represents B and observing the articles of incorporation as the chairperson of the executive organ, and is responsible and responsible for overall management of the affairs as the chairperson of the general assembly and the board of directors. Article 24 of the B’s finance provides that management expenses, business income, supporting funds, and other income shall be appropriated (Evidence No. 20 pages of the evidence record). In addition, Article 5 of the B’s management regulations provides that the president may exercise his/her right to manage matters concerning the collection and enforcement of management expenses, supporting funds, etc. (Evidence No. 28 of the evidence record).

3) From around 2006 to July 2012 during the period when the Defendant served as the Chairperson, G served as an accounting employee. From around September 2012 to around December 2015, F (nameJ prior to the opening name) served as an accounting employee, and from March 2016 to June 2016, N used as an accounting employee. The Defendant directed G, F, and N to withdraw a certain amount of money from B’s public fund accounts and made it a cash bring out, or made it deposited into another account or a user account. G, F, and N drafted a cash receipt book every day with respect to the details of deposits and deposits in D association accounts, and prepared a cash book with the total sum of revenue and expenditure details as of D association accounts.

4) The merchants in B paid the management expenses of KRW 270,000 per month for each commercial building. The total amount of the management expenses paid every month based on the market value table is KRW 20 million to KRW 27 million. The merchant’s management expenses paid for B employees, the management expenses such as wages for the cleaning company, electricity fees paid to the cleaning company, cleaning expenses paid to the cleaning company, etc., and other expenses such as entertainment expenses, congratulatory research expenses, and office supplies expenses used by the executives of the Defendant, etc. were frequently paid. As such, the amount paid from the management expenses is the amount of KRW 20 million to KRW 26 million every month based on the market value table.

C. Specific determination

In addition to the above facts, in light of the following facts and circumstances acknowledged by the evidence duly adopted and investigated by this court, namely, the scale of B management expenses and assistance funds, the current status of revenues and assistance funds, the circumstance that some of the expenses including management expenses were embezzled by the defendant in the case of the president, the frequency and scale of the litigation related to the fireworks where the defendant was involved, the financial situation in B, and the method of management of the receipt and disbursement of money, etc., the defendant does not indicate the use of the cash receipt and disbursement account prepared by the accounting staff on part of the funds deposited from the government funds accounts of B, and even if the defendant did not provide specific and clear explanation on the use of the funds, it is difficult to conclude that the defendant voluntarily withdrawn and used the money exceeding KRW 50 million by adding all the funds as stated in the facts charged, as long as it appears that the defendant explained that he had agreed on the use of the funds, as stated in the facts charged, and further, it is difficult to conclude that the defendant did not have any intent to withdraw the funds for each item of crime.

1) On October 18, 2016, H, who was appointed as the president of B around July 2, 2016, filed a complaint with the police against the Defendant on the content that the Defendant embezzled the public funds of B (Evidence No. 20 pages). H examined the details of the public funds account at the time when the Defendant worked as the president, together with the vice president I, the accounting staff F, and the receipt and receipt of the money, and then did not indicate the name of the disbursement in the cash receipt book or the third party, even if the Defendant was withdrawn or remitted in cash, or could not receive evidence of the usage sources, such as receipts, etc., such contents as “the money returned by the president,” and the details that the Defendant could not receive evidence on the receipt, etc. were embezzled by the Defendant. He, I, and F did not hear the entries of G’s witness’s personal explanation during the reorganization process, or did not confirm the intent that the Defendant did not directly hear the payment of the money (Evidence No. 1, 2012).

2) Examining the current status of revenue and expenditure of monthly management expenses in B based on the calculation table prepared each month, it can be confirmed that expenses of KRW 22 million to KRW 26 million have been spent each month from revenue of KRW 20 million to KRW 27 million. Thus, it seems that there are cases where management expenses of KRW 200 to KRW 26 million each month remain more than or less than revenues are less than management expenses. P, who worked as an auditor from July 2012 to June 2014, which was unpaid management expenses, did not remain more than public funds of KRW 20 million due to the lack of litigation expenses, was stated that KRW 20 million was borrowed from the public funds of KRW 20 million from July 2012 to June 2016, Article 2012 was insufficient or insufficient to pay the public funds.

3) In particular, an amount of KRW 40 million No. 1, 121 of the annexed Table 1 is divided into KRW 30 million and KRW 10 million among the commercial buildings belonging to the Association and KRW 30 million. The Defendant stated that the Defendant has paid litigation costs in the process of litigation for partition of co-owned property and obstruction of business, which may have been reduced since the investigation agency. In light of the number of actual litigation cases related to B, etc., it appears that it was insufficient to cover only the attorney fees or supporting fees to cover the money required for the related cases, such as attorney fees and contingent fees, and the insufficient money was personally lent by the Defendant. Furthermore, considering the records, it appears that the monthly balance of the Defendant’s office at the time of the Defendant’s office at the time of the president and the K Bank’s office, and the monthly balance of the supporting account did not appear to have been recorded at least as the time of the settlement of accounts, which would not have been reflected in the amount of expenditure for the Defendant’s remaining before the settlement of accounts.

In light of the facts and circumstances, it is not easy to explain that the Defendant voluntarily withdrawn and used more than 500 million won in management expenses or support funds in B from 2008 to 2016, as stated in the facts charged, as since 2002 when the Defendant was in office as the president.

4) Although there was a support fund from the revenue of B to the non-regular deposit in addition to the management expenses, even after examining the details of the support fund account of K Bank (Evidence No. 224 of the evidence record) in 2008, U.S. deposited on June 23, 2008, and V deposited on June 23, 2008, 30,000,000 won, which was deposited on June 23, 2008. The Defendant stated in the investigative agency and this court that most of the support funds were disbursed as the litigation expenses related to B, and that, since around 202, there was a dispute with the business operators who want to develop the support fund of K Bank from the 2002, and that it was doubtful that the Defendant had spent more than 50,000,000 won in cash other than the Seoul Central District Court's 206,70,000 won in the process of embezzlement, and that it was doubtful that most of the support funds was appropriated by the Defendant.

5) G stated in this court that the phrase, such as “the amount of money received and disbursed as part of the expenditure items,” “the amount returned to the president,” etc. The reason why the phrase was written is not memory, and that whether the Defendant would bring the money in personal use is gathering. F stated in this court that, upon the Defendant’s instruction, withdrawn cash from the public fund account and deliver it to the Defendant without knowing the exact place of use, and that whether the Defendant used such cash as personal litigation expenses is ambiguous. N stated in this court that it did not arbitrarily revise the classification of expenditure items in the public fund immediately before the general meeting but did not raise the total amount paid by the Defendant for the period of his/her personal use of the public fund. However, it appears that G appears that the Defendant’s personal use of the public fund was only passive in the explanation of the payment of money in this court or the statement on each page, but it appears that it did not appear that the Defendant’s personal user or his/her personal manager’s use of the fund was not known.

6) The details of the Defendant’s embezzlement in this part of the facts charged are disbursed from 2008 to 2016 from 2016 to 8 years, and its items are too diverse. As such, it appears that it is difficult to specifically and accurately memory the public fund user that the Defendant disbursed from 2 to 10 years now, and that it is not easy to collect relevant evidence. Therefore, it is difficult to readily conclude that the Defendant used the above funds for personal purposes on the grounds that the Defendant made a somewhat abstract statement about each user of the public fund that the Defendant disbursed or failed to submit relevant evidence.

D. Determination of each item of the list of crimes (not guilty part)

1) Attached Table 1 No. 2, 4, 6, 8, 14, 21, 23, 27, 28, 30, 31, 33, 34, 37, 38, 51, 52, 53, 56, 59, 60, 62, 65, 70, 72, 77, 79, 82, 84, 89, 89, 91, 93, 95, 101, 103, 106, 107, 113, 118, 124, 127, 128, 314, 315, 164, 164, 165, 97, 101, 106, 106, 106, 1461, 315

A) Defendant and defense counsel’s assertion

Since the Defendant, at around 2007, when he was unable to seek a tenant, he was able to consider the transfer of his commercial building to the developer, he agreed to pay W 2,70,000 won of the management fee paid by the said merchant to W as a rent, instead of having W her shop rent and operate a fireworks. Therefore, the Defendant merely remitted W 2,70,000 won to W in order to prevent the transfer of his commercial building to the developer.

B) Determination

Comprehensively taking account of the following facts and circumstances acknowledged by the evidence duly adopted and examined by the court, it is difficult to view that the evidence submitted by the prosecutor alone was proven beyond a reasonable doubt that the Defendant transferred KRW 270,000 per month to W with the intent to obtain unlawful acquisition.

(1) The Defendant directed G and F, who is a accounting official, to transfer KRW 2.70,00 won per month among the management expenses paid by a specific merchant in B, and accordingly, G and F, from February 20, 208 to December 7, 2015, remitted 2.70,000 won per month among the management expenses paid as shown in the attached Table 1, from February 20, 208 to December 7, 2015. If the Defendant was deemed to have been to have deducted public funds in B for personal purposes, it does not seem that the Defendant would have selected a method that could have been revealed and known through the transfer of the public funds in B to W.

(2) The Defendant had actively corresponded to the City/Do in which the development business operator of the Mari-Sa shop from around 2002 was seeking to take over the Mari-Sa shop from around September 6, 2005 (Evidence No. 521 of the record) that was one of the commercial buildings managed by B from around September 6, 2005, and the third floor X of the building on the 197th floor (Evidence No. 521 of the record) of Jung-gu Seoul, Jung-gu, Seoul, and in fact, the Defendant could not exclude the possibility that Wri-Sa shop transferred KRW 270,00 per month out of the management expenses to W in order to prevent the development business operator from taking the Mari-Sa shop from being in excess of the development business operator. There is no other data showing the reason why W received KRW 270,000 won per month, and there is no other statement in W related thereto.

2) Part 1, 5, 9, 10, 15, 22, 32, 45, 46, 49, 58, 85, 97, 117, 120, 121, 145, 165, 173, 176 No. 176 of the annexed list of crimes

A) Defendant and defense counsel’s assertion

Each of the above amounts was disbursed for various costs of litigation in connection with operation due to the dispute with the developer. Specifically, Nos. 1, 15, 32, 145 were Seoul Central District Court No. 2006Na7630; No. 9 was Y, Y8206Gahap3203, Seoul Central District Court No. 2006; No. 45 was 2006Gahap38203; No. 46 was 1406, Seoul Central District Court No. 2006; No. 143962; No. 2008; No. 2008; No. 1657; No. 167; No. 2015; No. 2015; No. 8516; No. 20156; No. 2015; No. 20156; No. 2015; No. 2014; No. 15700; No. 201.

B) Determination

Comprehensively taking account of the following facts and circumstances acknowledged by the evidence duly adopted and examined by this court, the possibility that the above amount was actually used as various litigation costs related to B cannot be ruled out. The evidence submitted by the prosecutor alone is insufficient to view that the Defendant had withdrawn the above amount with the intention of unlawful acquisition.

(1) Examining the Seoul Central District Court case 2006Na7630 case (Evidence Record No. 577, 1365), Y, and Z in relation to the claim for existence of ownership, etc. (Evidence Record No. 1410), the Seoul Central District Court case (Evidence Record No. 601, 1373), the Seoul Central District Court 2006 group 143962 case (Evidence Record No. 608,1375), the Seoul Central District Court 2008da16492 case (Evidence Record No. 1381), the Seoul Central District Court 2010Na37454 case (Evidence Record No. 1386), the Seoul Central District Court 2010Na37542 case (Evidence Record No. 621,1386), the Seoul Central District Court 's legal relation with the partition of co-owned property (Evidence Record No. 488, 1391, 51515) and the above legal evidence No.3515751.57

(2) The Seoul Central District Court 2006Kahap38203 B Resolution (Evidence No. 578, 1370 of the Evidence Record) and the Seoul Central District Court 2010Kadan321578 Management Expenses (Evidence No. 637, 1402 of the Evidence No. 637 of the Evidence No. 637 of the Evidence No. 1402 of the Evidence No. 201) are lawsuits in which B directly become the parties in relation

(3) The Seoul Central District Court 20104.14 (Evidence No. 1389 of the Evidence Record) and the Seoul Central District Court 2005. 1297 business obstruction case (Evidence No. 1368 of the Evidence Record) are criminal cases in which A, the defendant, and the AB are each defendants. The Seoul Central District Prosecutors' Office BO obstruction case (Evidence No. 486 of the Evidence Record) appears to be a criminal case in which the defendant filed an appeal against a non-prosecution disposition with the prosecutor as the complainant. Taking into account the name of the defendant and the crime in the above criminal case, and the content of the counsel agreement in the appeal case, the above cases may be seen as those related to B.

(4) As such, if a variety of civil and criminal cases involving more than 10 cases during which the Defendant had worked as the president, it seems that considerable litigation costs have been paid. However, in light of the number and details of litigation cases, the attorney fee in the trial table in B is only stated in several times, and it does not seem that all the litigation costs actually paid are reflected. Meanwhile, from 2008 to 29,821,50 won, which can be verified by receipt and deposit certificate (Evidence No. 129-1 of the record) were prepared and submitted to the prosecution by the Defendant. However, in light of the timing and details of litigation cases, the possibility that the Defendant would have actually spent more than the above litigation costs than the above KRW 29,821,50,00, the amount of the litigation expenses could not be excluded from the period and progress of the litigation proceedings, and the possibility that the Defendant would have actually paid more than the above amount of the litigation expenses out of the period and progress.

4) Part 13, 18, 35, and 36 No. 1 of the annexed list of crimes

A) Defendant and defense counsel’s assertion

Each of the above money was remitted to AC, etc. as the litigation cost of the Seoul Central District Court 2006da443198, a lawsuit related to B, and the Seoul Central District Court 2007dan336853, a third party’s case. The Defendant did not embezzled these money.

B) Determination

The Seoul Central District Court 2006dan 443198 (Evidence No. 313, 1377 of the Evidence No. 313, and 1377 of the Seoul Central District Court), and the case of the third party (Evidence No. 301, 1379 of the Evidence No. 301) by the Seoul Central District Court 2007Kadan36853, which held the Defendant’s fireworks as the other party to the Defendant’s husband AD, appears to be a lawsuit that was initiated regardless of B in the personal domain of the Defendant.

However, the Defendant, from the police to this court, refused the Defendant’s request from the developer for cooperation in acceptance, and the Defendant filed a lawsuit against the Defendant and AD in connection with the developer, and the Defendant consistently stated that the Defendant was provided with B’s public funds with the consent of the executives. From this court, the Defendant’s legal expenses related to the Defendant’s personal fireworks may be deemed to have been incurred by the Defendant’s operation of the president. As such, the Plaintiff made a statement in line with the Defendant’s statement to the effect that the board of directors decided to grant the Defendant’s public funds to support the Defendant’s legal expenses, I explained from this court that the Defendant had filed a lawsuit to submit the Defendant’s public funds to the Plaintiff, the president, and the Defendant’s explanation stated to the effect that the merchants supported the legal expenses from B’s public funds. If the same is the same, each of the above litigation expenses is not sufficient to acknowledge that the Defendant had been provided with the evidence that there was a lack of evidence to acknowledge the Defendant’s unlawful intent to withdraw the litigation expenses from B’s public funds.

5) Parts Nos. 26,29,44 per annum of Annex 1 List of Offenses

A) Defendant and defense counsel’s assertion

No 26 once a year remitted to AF is not memory of who is the AF. No 29 times a year remitted to AG is that the AG, the merchant of B, has temporarily lent funds necessary for the operation of AH. No 44 times a year remitted to AH, the U.S. AI widely known source, was paid as a tool for B. Accordingly, the Defendant did not embezzled each of the above money.

B) Determination

Comprehensively taking account of the following facts and circumstances acknowledged by the evidence duly adopted and examined by this court, it is difficult to view that the evidence submitted by the prosecutor alone is sufficient to prove that the Defendant transferred B public funds to AF, AG, and AH for the benefit of himself/herself or a third party with intent to obtain unlawful acquisition.

(1) On October 15, 2008, the Defendant stated that the remittance of KRW 1,300,000 from the D Association account to KRW 1,30,000 is not to memory as to who is the AF and the reasons why the remittance was made.

In the instant case where it is difficult to view that all of the money listed in attached Table 1, as stated in the facts charged, was embezzled as the Chairperson B at the time, the Defendant was in charge of the receipt and disbursement of management expenses, etc., and it is difficult to presume that the Defendant did not explain the source of use of KRW 1,300,000,000 that the Defendant spent about about 10 years prior to the Defendant did not immediately withdraw and use the said money for personal purposes. In addition, there is no other material to deem that AF is a person related to the Defendant, and there is no statement by AF on

(2) Although it is somewhat inappropriate for the Defendant to lend public funds to AG for business purposes or to disburse public funds under the pretext of money consumption loan for a specific religion without the procedures for seeking the consent of the merchants through the general assembly, etc., the lending of money consumption loan incurred within the fireworks falls under the bonds owned by B, and in fact, it seems that such a loan has been held within the fireworks, and there is no material suggesting that such an event has caused a religious problem at the time. There is no evidence suggesting that the Defendant lent public funds to AG for personal interest or has paid money to AH. Thus, it is difficult to evaluate this as the origin of the intent of unlawful acquisition.

6) Attached Table 1 No. 169 per annum

A) Defendant and defense counsel’s assertion

810,000 won paid 810,000 won to the Seoul Central District Court 2015da5089157 relating to B as appraisal cost for unjust enrichment. Therefore, the Defendant did not embezzled the said money.

B) Determination

The following facts and circumstances acknowledged by the evidence duly adopted and examined by the court: (i) The F stated that B merchant AE did not pay management expenses for a considerable period of 8.10,00 won from the prosecutor’s office until this Court was at issue among merchants, and that BE’s order to pay management expenses for the three-month management expenses on behalf of the Defendant (Evidence No. 957 of the evidence record, 2012) was clearly stated (Evidence No. 957 of the evidence record, 2016) to the auditor from July 2, 2012 to June 2016, Q, who had been employed from this court, came to know that BE did not pay management expenses for the above period of time, correspond to the statement of FF, and (iii) it can be found that BE bank’s account was withdrawn from the Seoul Central District Court’s account for 815,000,000 won to the 3th anniversary of the payment of management expenses.

Thus, the defendant appears to have ordered the F of the Accounting Staff to conduct accounting as above with regard to the unpaid management expenses of the AE raised by the merchants, and since the above 8.10,000 won was accounted for as management expenses paid by AE, it still remains as B's public funds. Thus, apart from the existence of unpaid management expenses claims against AE, the evidence submitted by the prosecutor alone is insufficient to deem that the defendant withdrawn 8.10,000 won with intent to obtain unlawful acquisition and has been useful for personal purposes as stated in the facts charged, and there is no other evidence to acknowledge this otherwise

7) Attached Table 1 No. 3, 7, 11, 12, 16, 17, 19, 20, 24, 25, 20, 40 through 43, 48, 50, 54, 55, 57, 63, 64, 66 through 69, 71, 73 through 76, 78, 80, 83, 86, 87, 87, 88, 90, 92, 94, 96, 100, 102, 104, 105, 107, 105, 115, 123, 125, 616, 137, 164, 165, 167, 165, 1631, 164, 167

A) Defendant and defense counsel’s assertion

Each of the above money has been disbursed for expenses related to B, or when the operating fund falls short of the funds, the defendant paid the expenses with personal funds and received the refund thereof. Therefore, the defendant does not embezzled each of the above money.

B) Determination

The above amounts are ① there are items such as ① lack of specific place of use in the monetary receipts and disbursements book among the contents withdrawn from the D Association accounts, ② deposit of more than one million won out of the details withdrawn from the K Bank management expenses account into the D Association account and not handled as the revenue and disbursements book of management expenses. ③ It was not found that there was no data to identify the place of use among the details withdrawn from the K Bank Support Account, and the prosecutor regarded the above amount as embezzlement.

However, in light of the facts and circumstances as seen in the above 3(c), in order to recognize this part of the facts charged, the defendant must separately prove that the defendant withdrawn the above money and used it for personal purposes. However, since the statement of H et al. cannot be found in light of the statement in the receipt and receipt book of money, the defendant embezzled each of the above money, as it is merely deemed that the defendant embezzled the above money, and there is no other evidence to prove that the defendant collected the above money and used it individually. Thus, there is no evidence to prove that the evidence submitted by the prosecutor alone is insufficient to recognize that the defendant had expressed his intent to acquire the illegal acquisition in withdrawing the above money, and there is no other evidence to prove this otherwise.

E. Determination by item of each list of crime sights (part of crime)

1) Part 47 No. 1 per annum of the annexed crime sight table 1

A) Defendant and defense counsel’s assertion

The above money is paid as the contingent fee for the attorney-at-law in the Seoul Central District Court BS ownership confirmation case, which is related to B.

B) Determination

The court duly adopted and examined the following facts and the circumstances that can be inferred from the above facts. ① On November 1, 2009, the payment of the money produced by G was stated as “the remittance of the AJ thickness” (Evidence No. 827 pages), and on November 11, 2009, the deposit amount of KRW 5 million was made to the AJ account (Evidence No. 829 pages), so it is reasonable to view that the above five million won was paid to AJ. ② The defendant was involved in the case of the Supreme Court Order No. 2011Ma2296 Decided 1, 2009, and the defendant appears not to have been involved in the case of the AJ and K, and the defendant's withdrawal of the money transferred the money to the AJ account No. 130,000 won regardless of the defendant's request for the successful transfer of the money (Evidence No. 8300, Mar. 11, 2009).

2) Part 81, 129, No. 1 of the annexed list of crimes

A) No. 81 annually asserted by the Defendant and the defense counsel is the money paid to the employees of B by Gu administration. There is no particular assertion as to the 129 times a year.

B) Determination

On February 21, 201, G, the cash withdrawal payment written on February 21, 201, stated that the "doggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggglggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggg

3) Part 157 Nos. 157 per annum of the annexed list of crimes

A) Defendant and defense counsel’s assertion

AA who filed a lawsuit on behalf of the defendant on behalf of B with personal funds has been supported with KRW 3 million and has been returned from the public funds of B.

B) Determination

The court below duly adopted and examined the following facts and circumstances that can be inferred from them. ① On January 12, 2015, 2015, F entered that the payment of money was made on January 12, 2015 (the "transfer of money to the President") that was made on January 12, 2015 (Evidence No. 894 pages), and there was a deposit certificate with no passbook that was made on January 12, 2015 (Evidence No. 896 pages), and it is reasonable to view that the above one million won was paid to NN. ② The applicant for the Seoul Western District Court AP Provisional case filed by the defendant against A0 association, and the above provisional disposition case appears to have no relation to B (Evidence No. 897). ③ The defendant stated that the defendant's personal money was remitted to B100,000 won regardless of the defendant's personal intent to use the money (Evidence No. 201385, Feb. 12, 2015).

1. The grounds for sentencing; 1. The scope of applicable sentences by law: the fine not exceeding 30 million won;

2. Scope of recommendations on the sentencing criteria: The sentencing criteria shall not apply by a fine.

3. Determination of sentence;

The Defendant, while working as the president of B for about 14 years, used public funds that should be disbursed for the interests of merchants for personal purposes several times, and the aggregate amount thereof is recognized as KRW 10 million. The Defendant did not return the embezzled amount, and thus the Defendant did not pay damages therefrom at all. There is doubt as to whether the instant crime is seriously against the misunderstanding and conspiracy of the current B executives. Considering these points, there is a need for a strict punishment for the Defendant.

However, the Defendant assumed office as the president of B around 2002 and appears to have worked in good faith on behalf of the merchants of B, including, but not limited to, taking advantage of the following facts: (a) while having taken office as the president of B in 2002, he would have been convicted of criminal punishment due to a previous offense or a crime of the same kind in excess of a fine; (b) the Defendant has no record of criminal punishment

In addition, the defendant's age, character and conduct, environment, family relationship, motive and circumstances of the crime of this case, and various conditions of sentencing as shown in the pleadings of this case shall be comprehensively considered.

The acquittal portion

1. Judgment on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

From June 2002 to July 1, 2016, the Defendant served as the Chairperson of “B” and has been engaged in the operation, management, collection, management, and enforcement of the above B, and support fund. On May 20, 2008, the Defendant, at the B office located in Seoul Jung-gu, withdrawn KRW 10,000 from the D Union passbook (E) in the name of the Defendant used for the management of public funds in the above B, and embezzled KRW 6,430,240 among them for personal purposes from May 20, 2008 to May 13, 2016, the Defendant embezzled KRW 536,39,240 over a total amount of KRW 176 as indicated in attached Table 1.

B. Determination

Of the facts charged in this case, the sum of KRW 526,39,240 as stated in the attached Table 1 No. 47, 81, 129, and 157, excluding No. 1 through 46, 48 through 80, 82 through 128, 130 through 156, 158 through 176, 172, and 178 through 176, among the facts charged in this case, shall be sentenced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, on the ground that there is no proof of criminal facts as stated in subparagraph 3(d) of the judgment on the above issues (the point of occupational embezzlement). However, as long as it is found that a crime of occupational embezzlement as stated in the judgment on a comprehensive crime is guilty, it shall not be sentenced

2. Determination on occupational breach of trust

A. Summary of the facts charged

Although there is a job duty to collect and execute management expenses from the shop occupants every month while working as the chairperson of "B", the defendant did not collect management expenses from AE operating Q in a commercial building around the end of January 2008, and did not collect management expenses of KRW 270,000 from AE during the period from the end of February 2016 to the end of February 2016, the defendant did not collect management expenses of KRW 26,460,000 in total for the same business establishment over 98 times, as shown in the attached crime list 2 from the end of February 2016 and did not collect management expenses of KRW 26,460,000 in total, and caused damage to the victim.

B. Summary of the defendant and his defense counsel's assertion

From around 2002 to 2010, AE carried out various duties related to AE with the Defendant, including the Defendant, in response to the dispute with the developers, while running the AE-related business. As a result, the Defendant did not pay the AE management expenses. Considering the above circumstances of AE, the Defendant discussed the AE’s management expenses at the board of directors, and did not actively urge AE to pay the management expenses.

In addition, even if the defendant did not collect management expenses from AE as stated in the facts charged, it is difficult to deem that the damage was caused to B, and there is a criminal intent to commit a breach of trust against the defendant.

C. Determination

1) The crime of occupational breach of trust is established when a person who is legally obligated to handle affairs in accordance with a certain duty in a trust relationship with another person fails to perform an act naturally expected under the pertinent circumstances, and the crime is established. In order to establish such crime, the actor must be aware of the likelihood of causing or causing property damage to the principal, in addition to the perception that the actor is subjectively in breach of his/her duty (see, e.g., Supreme Court Decision 2001Do4035, Apr. 25, 2003).

2) In full view of the following facts acknowledged by the evidence duly adopted and examined by this court and the circumstances that can be inferred therefrom, the Defendant appears to have failed to actively urge AE to pay management fees by taking into account the unconstitutional circumstances without any monetary compensation for AE for the purpose of B, and otherwise, it does not appear that AE has been exempted from management expenses on a conclusive basis by violating the duties of the Chairperson. Therefore, it is difficult to deem that the Defendant had awareness of a breach of duty in failure to collect management expenses, as stated in the facts charged, and there is a doubt as to whether the Defendant caused property damage. The evidence submitted by the Prosecutor alone is insufficient to acknowledge this part of the facts charged, and there is no other evidence to acknowledge this otherwise.

A) In this Court, AE, when the dispute between the Defendant and the developer was created, conducted the discussion of response methods and the preparation of documents, etc., and accordingly, AB made it difficult to operate the commercial building, making it difficult to pay management fees. AB, who was employed as the vice president of the commercial building with the Defendant, stated to the same purport. I participated in filing a complaint with the Defendant as the current B Vice-Chairperson, and I, in this Court, have set three copies of “AE, when there is a lawsuit related to B, has been filed with the Defendant. AE worked as an auditor for about two years from around 2010 to around 2012, and even if not, it appears that B had tried many days.” Thus, AE appears to have even been operated as a merchant or a merchant belonging to B while the Defendant is working as the president.

B) The extent of KRW 20-300,000 per month from the B public fund was paid to the president and the vice president of B as the sales fund (Article 1299 of the witness H’s statement records and evidence records in the first public trial record), but there was no activity or sales fund separately paid to the auditor (the witness I’s statement in the first public trial record). Therefore, even though the auditor actively performed his duties, the Defendant, who is the president, appears to have failed to receive specific monetary compensation different from the Defendant or AB. Therefore, the Defendant, as the president, appears to have been to have been in any way sent or preserved in such manner as to the AE’s labor or damages arising therefrom, appears to have been in question at the board of directors’ meeting, and as seen thereafter, it appears that it appears that the Defendant had become aware of the unpaid management expenses of the AE and did not take active measures to collect them, and as seen earlier, it is difficult to readily conclude that the damage was caused by the violation or failure to take active measures to collect them immediately.

C) AB and AE have been discussed at the meeting of the board of directors on the part of the Defendant’s proposal. However, the articles of incorporation and management regulations in B state that the consent of the other merchants was not explicitly obtained through the general meeting, etc. The procedures for exempting members from the management expenses by the authority of the president or the board of directors’ meeting are not separately prescribed. In addition, around August 2015, the issue was raised regarding the fact that other merchants did not pay the management expenses in this court, and the Defendant ordered the payment of 810,000 won from the K Bank’s Supporting Fund on September 2, 2015 in lieu of the management expenses in lieu of the AE’s 3-month, and the AE stated to the effect that “it was economically difficult to pay the management expenses in lieu of the Plaintiff’s request for the payment of the management expenses.” Thus, it is difficult to conclude that the Defendant’s act was still exempt from the management expenses in accordance with the civil law or its demand to pay the management expenses in lieu of the AE’s demand.

D. Sub-committee

Thus, this part of the facts charged constitutes a case where there is no proof of criminal facts, and thus, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of this part of the judgment is publicly announced pursuant to Article 58

Judges

The presiding judge, judge Kim Jong-tae

Judges Park Jae-ran

Judges Chief Democratic

Note tin

1) Based on facts acknowledged by the argument and records of the instant case, the facts charged to the extent that the Defendant’s defense right is not infringed.

Some revisions are recognized.

2) As examined below, there are parts that are found guilty and not guilty of the facts charged, and they are understood as follows.

subsection (1) of this subsection shall be examined for purposes of this subsection.

3) The defense counsel’s opinion on May 23, 2018 is written as Seoul Central District Court Decision 2010Na27454 Decided May 23, 201, but is written as a case of building name, which is erroneous.

I seem to be.