(영문) 서울중앙지방법원 2017.7.6. 선고 2017고합292 판결

On June 27, 2012, the Defendant was sentenced to imprisonment with prison labor for a crime of fraud, etc. in the branch court of Suwon District Court on June 27, 2012, and the execution of the sentence was terminated on December 24, 2012.

【Criminal Facts】

1. Violation of the Act on the Aggravated Punishment of Specific Economic Crimes;

From March 23, 2013 to March 28, 2015, the Defendant is a person who has been in charge of the management and enforcement of the property of the victim clan while serving as the financial secretary of the victim clan C (hereinafter referred to as the "victim clan") from March 23, 2013.

Since financial assets owned by the victim clan 2,092,664,129 won was deposited in the Korea Exchange Bank account (Account Number E) in the name of the chairperson of the victim clan, the defendant had a duty to manage the above property with due care not to infringe on the interests of the victim clan.

On April 8, 2014, the Defendant proposed that D leave the financial assets of the victim’s clan deposited in D’s name as above and obtained the consent to use them as business funds. On April 9, 2014, the Defendant found at the International Electronic Center of the Korea Exchange Bank at the first floor of Seocho-gu Seoul, Seocho-gu, Seoul, the first floor of Seocho-gu, such as D, set up a pledge on the maximum amount of KRW 960 million against the said account at the Korea Exchange Bank, and received a loan of KRW 80 million from the Korea Exchange Bank as collateral, and transferred it to D’s account in the name of Korea Exchange Bank (F).

Since April 9, 2014, from April 15, 2014 to April 15, 2014, the Defendant withdrawn KRW 800 million from the above D’s account of Korea Exchange Bank (Account NumberF) and used it for personal purposes, such as business funds.

On July 21, 2014, the Defendant continued to search again at the International Electronic Center of Korea Exchange Bank, as D, in the same way, established a pledge right of KRW 1.44 billion with the maximum debt amount (Account Number E) on the Korea Exchange Bank Account in the said D name, and received a loan of KRW 1.2 billion from the Korea Exchange Bank as security, and received a loan of KRW 1.2 billion from the Korea Exchange Bank in the name of D.

After that, from July 21, 2014, the Defendant withdrawn 1.2 billion won from the Korea Exchange Bank account (Account Number F) in the above D name and used it for personal purposes such as business funds.

Accordingly, after the defendant recruited D with D, the defendant acquired a sum of 2 billion won property interest in violation of his/her duties as a member of the financial affairs of the victim's clan, and caused property damage equivalent to the same amount to the victim's clan.

2. Occupational embezzlement;

On October 20, 2014, the Defendant: (a) knew that D received KRW 199,638,310, which is the funds owned by the victim’s clan, from the account in the name of one bank account (Account Number G); and (b) proposed D to “a request D to lend the clan deposit to allow D to use the clan deposit to business funds in a lump sum including the clan funds brought for relocation up up to KRW 2 billion; and (c) offered to embezzled the funds of the victim’s clan by obtaining the consent.

Around October 31, 2014, D transferred KRW 140 million, out of KRW 199,638,310,000 to the Agricultural Cooperative (Account Number H) in the name of the defendant, at the 125-3 location of the Seocheon-gu, Seocheon-gu, Chungcheongnam-gu, Chungcheongnam-gu, Chungcheongnam-gu, the sum of KRW 170 million, including KRW 20 million, from January 25, 2015 to the defendant at the 199,638,310, and KRW 100,000,000,000 to the defendant.

Since October 31, 2014 to February 8, 2015, the Defendant used the above KRW 170 million for personal purposes, such as the Defendant’s business fund.

Accordingly, the Defendant embezzled the victim clan funds of KRW 170,000,000, which were kept in the account in the name of one bank in collusion with D.

Summary of Evidence

1. Defendant's legal statement;

1. Each protocol of examination of the suspect to the prosecution against D, I, J, and K;

1. Each prosecutor's statement of L, M, N,O, and P;

1. A written statement of Q and R, and a written petition;

1. Each complaint;

1. Investigation report (report on the results of trials of A and D, which are suspects and accomplicess, and reports on the attachment of relevant judgments) - judgment attached to the judgment, investigation report attached (report on the results of execution of a warrant of search and seizure, search and inspection

1. A copy of each passbook, each loan transaction agreement, account transaction details, business takeover agreement, deposit balance certificate, certificate, certificate of deposit balance, deposit-free deposit receipt, full certificate of registered matters, and a copy of the financial transaction statement of the Nonghyup Bank (A) ;

1. Previous records: A written inquiry report and personal confinement records;

Application of Statutes

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

Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356, 355(2), 30 (Occupational Breach of Trust), 356, 355(1), and 30 (Occupational Embezzlement), Article 356, 355(1), and 30 (Occupational Embezzlement) of the Criminal Act, since the defendant has no identity as a person in charge of occupational embezzlement, the defendant does not have a status as a person in charge of occupational embezzlement, the punishment prescribed in the proviso to Article 3 and Article 50 of the Criminal Act,

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act: Provided, That in the case of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation), it shall not be limited in

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (limited to the proviso of Article 42 of the Criminal Act)

Reasons for sentencing

1. The scope of applicable sentences by law: Imprisonment for not less than three years nor more than 50 years; and

2. Application of the sentencing criteria;

[Determination of Punishment] Type 3 (not less than 500 million won but less than 5 billion won)

[Specially Undersided Persons] Where mass victims have been caused or where serious damage has been caused to the victim.

[Scope of Recommendation] Aggravated Punishment, Three years to Six years

3. Determination of sentence: Imprisonment with prison labor for not less than three years and six months;

【Unfavorable Circumstances】

The defendant, in collusion with D, who is the chairperson of the victim clan, established a pledge on the deposits of the victim clan deposited in the accounts in violation of his/her duties as a member of the financial affairs of the victim clan, and embezzled the money of the victim clan by remitting it to the defendant's account. In light of the background of the crime of this case and the use of the amount of profit from the crime of this case, etc., the crime of this case appears to have led by the defendant. The crime of this case is deemed to have been led by the defendant. The total amount of damage caused by the crime of this case exceeds 2.177 million won, and the victim clan comprised of more than 100 members has lost most of its property. Nevertheless, the defendant was punished by the criminal investigation authority to escape from the crime of this case until D, who is an accomplice, was finally affirmed by the criminal trial. In addition, it is inevitable that the defendant has not agreed with the victim until now. In addition, the defendant has been punished for more severe punishment than the crime of this case.

【Free Circumstances】

However, the Defendant has led to the confession of the instant crime from the investigative agency and against his mistake. D, an accomplice, has reached an agreement with the victim's clan on the condition that he transfers his land in his criminal trial to the victim's clans, and the damage of the victim's clans has been partially recovered. While the Defendant is attempting to reach an agreement with the victim's clans, it seems that the victim's clans agree to pay D pecuniary benefits received from a third party in connection with the instant case while the victim's clans agree with D, it seems that they are unable to comply with the agreement actively. The Defendant's health is not good.

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