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Joo and Kim - Seoul High Court - The 22nd Criminal Panel - Decision

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  • Damian J. Anderson
    *[Paraphrased Translation]* *Seoul High Court* *The 22nd Criminal Panel* *Decision * *Case No.:* 2011 Chojae 3875 Petition for
    Message 1 of 1 , Oct 11, 2012

    [Paraphrased Translation]
    Seoul High Court
    The 22nd Criminal Panel
    Decision

    Case No.:                         2011 Chojae 3875 Petition for Prosecution
    Petitioner:                       Washington Times Aviation USA LLC
                                           3600 New York Ave. N.E.Washington D.C., 20002, USA
                                           Representative and President Richard Perea
    Counsel for Petitioner:    Attorney-at-law Seok-Soo Lee (Seung-Jae Law Office)
    Defendants:                     1.    Dong-Moon Joo (Douglas D.M. Joo; Birth Date: 
                                                  July 14, 1945)
                                           2.    Hyo-Yul Kim (470204-1051523)
    Non-Indictment Decision:      Seoul Central District Public Prosecutors’ Office Decision 
                                                  No. 2011 Hyungje 44404 dated August 26, 2011

    Decision

    This Court hereby concludes that a public prosecution against the Defendants be commenced 
    with respect to the case described in the Attachment [(the “Case”)].

    All other petitions by the Petitioner for prosecution against the Defendants are hereby 
    dismissed. 

    Grounds for Decision

    The Petitioner accused the Defendants of (a) the criminal violation the Act on the Aggravated 
    Punishment of Specific Economic Crimes (Embezzlement)  [and secondarily,  the criminal 
    violation  the  Act on the Aggravated Punishment of Specific Economic Crimes 
    (Misappropriation 1)] and (b) the criminal violation of the Foreign Exchange Transactions Act. 
    The prosecutor decided not to institute prosecution (no suspicion) with respect thereto.

    According to the records, it is  appropriate to institute a public prosecution against the 
    Defendants in connection with the Case.

    With respect to the  remaining  portion [of the Petitioner’s petition], however, when the 
    prosecutor’s grounds for deciding not to institute prosecution and the various circumstances 
    appearing in the records are taken as a whole, the prosecutor’s decision not to institute                                   

    1 [Translator’s Note: OR Breach of Fiduciary Duty] 

    prosecution can be accepted as justifiable and cannot be deemed to be flawed as the Petitioner 
    argues (in  addition, with respect to the  [alleged]  violation of the Foreign Exchange 
    Transactions Act,  the petition  for  prosecution of the same  fails to satisfy  the procedural 
    requirements under the Criminal Procedures Act (the “CPA”) because the Petitioner cannot be 
    viewed as the proper victim of a criminal violation of the Foreign Exchange Transactions Act, 
    whereas (x) under Article 260, Paragraph (4) of the CPA, the facts of the case being petitioned 
    and the grounds for such petition must be stated in  a petition application, (y) under Article 
    260, Paragraph (1) of the CPA, only the  person who  filed a complaint as the person with 
    standing to file such  complaint  (other than in connection with crimes under Articles 123 
    through 125 of the Criminal Act) can petition for determination of whether the prosecutor’s 
    non-indictment decision was proper and (z) under Article 223 of the CPA, [only] the victim of 
    the crime has standing to file a complaint).

    Therefore, this Court hereby  decides that a public prosecution should be commenced with 
    respect to the Case in accordance with Article 262, Paragraph (2), Item 2 of the CPA and that 
    the remainder of the Petitioner’s petition for prosecution of the Defendants does not satisfy 
    procedural legal requirements or does not have [adequate] grounds and therefore should  be 
    dismissed in accordance with Article 262, Paragraph (2), Item 1 of the CPA.

    February 22, 2012

                              Presiding Judge Judge Chang-Bo Kim
                                                     Judge Mun-Seong Jeong
                                                     Judge Seong-Hwan Byeon

    Crimes Subject to Public Prosecution

    Name of Crime:  Violation of  Act on the Aggravated Punishment of Specific Economic 
    Crimes, etc (Misappropriation 2)

    Applicable Provisions:  Article 3, Paragraph  (1), Item  1 of the  Act on the Aggravated 
    Punishment of Specific Economic Crimes  and Article 356,  Article  355, Paragraph  (2) and
    Article 30 of the Criminal Act

    Facts of the Crime:

    Defendant Dong-Moon Joo [(“Joo”)] is the representative director of the victim, Washington 
    Times Aviation USA  LLC (“WTA”),  and  its  100%  parent company, Times Aerospace 
    International LLC (“TAI”) and Defendant Hyo-Yul Kim [(“Kim”)] is the secretary general of 
    the Mission Church of the Family Federation for World Peace and Unification (the “Mission 
    Foundation”) who oversees [the Mission Foundation’s] daily operations.  On November 5, 
    2009, the Defendants conspired with each other and [incomplete sentence in original]

    around November 9, 2009,  [(a)] Defendant Joo, as  the representative  director  or  the 
    immediately prior representative  director  of WTA and TAI,  was aware  that a considerable 
    amount of WTA’s funds was expected to be spent in the near future in connection with the 
    project  then being undertaken  by Times Aerospace Korea LLC (“TAK”), a subsidiary of 
    WTA, and therefore, [Defendant Joo] had the duty to retain WTA’s funds;  [(b)] Article  6, 
    Paragraph  (2) of  WTA’s Management Regulations provides that the written approval or 
    consent of TAI, the sole member, is required for matters related to the sale or transfer of the
    company’s assets or the lease or other disposition or transfer in fact of a substantial part of the 
    [company’s] assets; [(c)] TAI’s Management Regulations amended as of August 14, 2009 
    provides that the directors and officers of TAI have the obligation to use their best efforts to 
    cause TAI’s subsidiaries, including WTA, not to lend funds (other than trade receivables 
    arising in the ordinary course of business of providing goods and services) without the 
    consent of One Up Enterprises, Inc. (“OUE”), the sole member of TAI; [(d)] accordingly, 
    [Defendant Joo] had an obligation to obtain the consent of OUE with respect to the lending of 
    WTA’s funds to a third party other than in the ordinary course of business of WTA; [(e)]
    notwithstanding the existence of such obligation, without OUE’s consent and in violation of 
    such obligation,  at the Incheon International Airport,  [Defendant Joo] instructed Seong-Jin 
    Ahn, who was the secretary of Defendant Joo, to transfer funds held by WTA in the amounts 
    of KRW 16 billion and USD 7 million for a total of approximately KRW 23.7 billion to the 
    account of the Mission Foundation; [(f)] [Defendant Joo thereby caused the above amount to 
    be] lent to the Mission Foundation by having Seong-Jin Ahn transfer  such amount from 
    WTA’s accounts to the Missions Foundation’s account; [(g)] [Defendant Joo also] made it 
    difficult for WTA to collect on such loan amount; [(h)] with the result that [Defendant Joo] 
    caused the Mission Foundation to profit in the amount of the above loan amount and caused 
    WTA to suffer a loss in the equivalent amount.
                                                   
    2 [Translator’s Note: OR Breach of Fiduciary Duty]

    Damian J. Anderson
    Damian.Anderson@...
    +1-301-921-0082

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