(b) Bidding interference;

2. B

Attorney Yellow-gu et al.

Law Firm Tae Young (for Defendant B)

[Defendant-Appellee]

The summary of the judgment against the Defendants is published.

A. The defendants' identity

From August 1, 2007 to February 28, 2008, and from March 3, 2008 to August 1, 2010, Defendant B is the representative director of C (the first trade name was changed to D, but the trade name was changed to that of October 28, 2009; hereinafter referred to as “victim”) who is the victim and who performs the affairs of the Victim Company as the representative director.

Defendant A, along with the victim company on October 2007, removed the Flue House on the ground of Bupyeong-gu Incheon Metropolitan Government E (hereinafter referred to as “instant land”) where the structural construction was discontinued at around October 2007, and newly constructed one unit of “GG apartment on the scale of 17 apartment units” (hereinafter referred to as “instant apartment units”), which is the 8 household units of apartment units, and 12 residents of Flue Housing (hereinafter referred to as “members of this case”) including Defendant B’s wife H, who were the owner of the building at the time, was the owner of the instant apartment units, and completed the remaining construction on January 208 after acquiring all business rights, such as the ownership of the instant land and the building permit.

B. On October 207, 2007, the members of the instant case transferred all of the instant project rights, such as ownership and building permit, to the victim company that Defendant A and Defendant B was appointed as the representative director for the purpose of avoiding compulsory execution based on the construction cost of the existing construction business operator and completing the remaining construction work. Defendant A completed the said construction work and transferred the instant apartment unit to each of the instant members, and entered into a contract to cover the construction cost by selling the remainder or receiving payment in lieu of the instant apartment unit. The instant members and the Defendant A agreed to terminate and settle the instant apartment unit to be completed with the instant land and the instant apartment unit to be completed after the completion of the construction work after the completion of the construction work in order to secure the performance of the said contract. Accordingly, the victim trust secured the instant apartment unit, respectively. < Amended by Presidential Decree No. 20360, Feb. 1, 2008>

On the other hand, around February 2008, it was impossible for Defendant A to agree on the trust agreement with one of the beneficiaries of the above collateral trust agreement against J, one of the beneficiaries of the above collateral trust agreement, making it difficult for Defendant A to dispose of the apartment of this case and recover the construction price. The land of this case and the apartment of this case are to be sold through public auction in accordance with the contents of the trust property disposal method in the collateral trust agreement.

The Defendants received a false payment order to the effect that Defendant A has a claim for the construction cost of KRW 3.5 billion against the instant apartment and the instant land to be referred to the public auction procedure conducted by the Defendants, based on which Defendant A had the right to retention in the public auction procedure, and subsequently Defendant A conspired to receive the successful bid. Defendant A applied for the payment order to the Seoul Central District Court for the payment of KRW 3.5 billion against the victim company around December 5, 2008 (hereinafter “instant payment order”). Defendant B entered the address to be served as the victim company’s principal office in the Defendant B’s residence rather than the location of the victim company, and Defendant B received the payment order of KRW 20091 from the Seoul Central District Court on January 5, 2009, and the victim company knew that the Defendant did not have the obligation to pay the construction cost of KRW 3.5 billion to the Defendant Company A without raising any objection thereto, but it became final and conclusive on January 20, 2009.

As a result, the Defendants recruited the Defendants, and Defendant B did not comply with the representative director’s duty, acquired the financial benefits equivalent to KRW 3.5 billion, which is the amount of the finalized payment order, and suffered damages equivalent to the same amount in the victim company.

(d) Interference with bidding;

Defendant A, according to the above public offering with Defendant B, had been exercising a lien of KRW 3.5 billion with respect to the false construction price claim on the instant apartment constructed on the instant land from January 2009, Defendant A reported a lien in the public auction procedure with respect to the instant apartment that was in progress on January 12, 2009, and exercised a lien until K Co., Ltd received the final bid for the instant land and the instant apartment.

As a result, the Defendants conspired in collusion to impair the fairness of bidding by deceptive means.

2. Summary of the Defendants and the defense counsel’s assertion

A. Defendant A

1) Opinion on the charge of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

1. The Victim A shall be guaranteed the claim for the construction cost of the Defendant A around November 2007.

The contract for the construction work of KRW 3.5 billion (hereinafter referred to as the "contract for the construction work of this case") was entered into with the private company and applied for the payment order of this case to the court on the basis of the contract for the construction work of this case. Defendant A did not have conspired with Defendant B as to the objection against the payment order of this case, and there was no intention of occupational breach of trust.

② Even if Defendant A’s act of entering into the instant construction contract with the victim company, the representative director, and subsequently filing an application with the court for the instant payment order, constitutes occupational breach of trust, it shall be deemed that Defendant A had already committed occupational breach of trust on or around November 2007, when the said construction contract was entered into with the victim company. The crime of occupational breach of trust is not established when the instant payment order became final and conclusive.

2) As to the charges of interference with bidding

Since from around 2007, Defendant A had lawfully exercised the right of retention with regard to the claim for the construction cost of the apartment in this case as the secured claim, Defendant A could not be deemed to have interfered with the tender through fraudulent means by exercising a false lien, or Defendant A cannot be deemed to have had intention to interfere with the tender.

B. Defendant B

1) Opinion on the charge of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

① Members of the instant apartment building, the initial owner of the instant apartment building, transferred all the project rights, such as the ownership of the instant land and the building permit, to Defendant A and the victim company. Even if Defendant B did not raise an objection to the instant payment order as the representative director of the victim company, the intent of breach of trust cannot be deemed to exist, and if the instant construction contract and the payment order were invalid as a false declaration of conspiracy as indicated in the facts charged, it cannot be deemed that there was a risk of property damage to the victim

② A prosecutor instituted a public prosecution after the ten-year statute of limitations has expired from November 2007 upon which the instant construction contract was concluded. It is unreasonable to institute a public prosecution on the grounds that the instant payment order issued based on the said construction contract was final and conclusive as a separate occupational breach of trust.

2) As to the charges of interference with bidding

Defendant B had never participated in the exercise of the right of retention by Defendant A.

3. Determination

(a) Facts of recognition;

The following facts are significant in this court, or the evidence submitted by a prosecutor and the defense counsel of the defendant A can be acknowledged.

1) The circumstances and extent of each contract concluded between the parties related to the reconstruction project of the apartment of this case

A) On June 2004, the members of the instant apartment reconstruction association concluded a contract for construction work in succession with L Co., Ltd. (hereinafter “L”) and M Co., Ltd. (hereinafter “M”), and conducted the reconstruction work of the instant apartment. However, since early 2007, due to the said construction company’s demand for payment of construction cost and default on payment, etc., the instant apartment reconstruction construction was not performed properly. The members of the instant apartment reconstruction association decided to complete the instant apartment reconstruction project with the Defendant A, who received part of the instant apartment reconstruction project from M, and agreed to complete the instant apartment construction project and transfer all of the right to the instant apartment reconstruction project to Defendant A and the victim company. On October 2007, the victim company represented by Defendant A and Defendant B and the members of the instant association concluded a contract for acquisition or transfer of business rights, etc. (hereinafter “the instant apartment reconstruction project right”).

The transfer contract for business rights, etc. 1) N2) and 11 (hereinafter referred to as "A") and the defendant A and the victim company (hereinafter referred to as "B together") shall transfer to B all the land ownership and the business rights related to the Firre-building project in Bupyeong-gu Incheon Metropolitan City, the owner of the building was promoted as the owner under the following conditions, and Eul agrees to acquire it and complete the reconstruction work and complete the completion inspection and complete the completion inspection and complete the registration of the transfer of the ownership of the building corresponding to the shares of each member of the members of the Council.Article 1 (Indication of Right of Purpose, etc. of Contract)

(2) 갑이 이 계약에 의하여 을에게 양도하고자 하는 부동산 혹은 부동산 관련 권리는 아래 지번의 대지에 관한 자신의 지분권을 말한다.목적부동산 : 이 사건 토지(3) 갑이 이 계약에 의해 을에게 양도하고자 하는 재건축사업권은 아래와 같이 위 (2) 기재 대지 위에 관할구청으로부터 허가받은 구 F연립 재건축사업권 일체를 말한다.명칭 : 인천 부평구 F연립 재건축사업제2조(계약의 전제사실)갑과 을은 제1조 기재 재건축사업의 추진과 관련하여 아래 사실들을 함께 인식하고 있다.(1) 같은 종전에 ㈜O, M 등 시행사와 재건축시행계약을 체결하여 재건축을 추진하다가상대방의 계약위반으로 계약을 해지한 사실(2) 갑은 시공사로서 L 등과 계약을 체결한 사실이 있으나, L의 계약위반을 이유로 위 계약을 해지한 사실(3) 위 재건축사업과 관련하여 P 또는 Q(주)가 관련되어 권리를 주장하고 있으나, 갑은 P혹은 Q(주)와 직접 계약을 체결한 사실이 없다는 사실(4) 종전의 건축주인 갑은 이 사건 F연립 재건축공사 및 기성공사대금과 관련하여 Q(주)로부터 손해배상청구소송을 제기당하였고, 향후에도 위 (1), (2) 혹은 (3)의 관계자와사이에 잠재적으로 분쟁이 발생할 소지가 있다는 사실(6) 갑과 을은, 을 중 피고인 A의 시공능력과 자금력을 신뢰하여 이 사건 계약이 체결된다는 점과 피고인 A이 주도적으로 재건축사업에 책임을 진다는 점에 대하여 인식을함께한다.제3조(사업권 등의 양도양수 등)(1) 이 계약에 의하여, 갑의 구성원들은 각자 을로부터 5,000만 원의 대금을 받는 조건으로, (가) 현재 자기 명의로 된 이 사건 토지에 관한 소유권지분 일체와 (나) 재건축사업권 일체를 을 중 피해자 회사 명의로 이전하기로 한다.(4) 을은 갑의 구성원들에게 (1)항 기재 금액을 지급하는 대신, 자신의 비용과 책임으로갑이 이 사건 재건축공사, 기성 공사대금 혹은 이와 관련하여 ㈜Q, P, ㈜M 기타 관련자들로부터 제기되는 소송 등 법적분쟁을 수행하여 갑을 면책시키기로 한다.(5) 갑은 을이 계약에 의하여 이 사건 토지 및 이 사건 재건축사업권을 이전받음으로써

재건축주의 지위에서 벗어나게 되며, 을은 재건축주 겸 시공자의 지위를 가진다.제4조(갑의 의무)(1) 갑은 이 계약 체결과 동시에, 을 앞으로 이 사건 토지소유권 및 이 사건 재건축사업권의 명의를 이전할 수 있도록 필요한 서류를 을에게 제공하고, 절차에 협조하여야한다.(2) 갑은 을이 이 사건 아파트 중 일반분양분 건물을 제3자에게 분양하여 공사대금을 회수할 수 있도록 이 사건 토지(및 향후 준공될 이 사건 아파트)에 대한 조합원들 명의의 신탁계약을 해지할 수 있도록 모든 협조를 다하여야 한다.(3) 갑은 이 사건 아파트가 준공된 이후 을로부터 자신의 몫이 이 사건 아파트 1칸의 소유권을 이전받음과 동시에, 을에게 종전에 금융기관으로부터 지원받은 이주비 전액및 재건축사업 개시 당시 약정한 각 세대별 분담금을 을에게 지급하여야 한다.(4) 갑이 재건축사업의 결과 을로부터 소유권이전을 받은 이 사건 아파트에 대한 소유권이전등기비용 등 제세공과는 갑이 부담한다.제5조(을의 의무)(2) 을은 조속한 시일 이내에 이 사건 아파트를 완공하고 준공검사를 득한 후 조합원(갑의 구성원)들에게 각자 1세대 분의 이 사건 아파트에 관해 소유권이전등기를 경료하여야 한다.(3) 을은 이 계약의 체결 당시 진행 중이던 갑과 Q 사이의 손해배상(기) 사건(인천지법2007가합8118 손해배상)을 포함하여, 장차 ㈜Q, L, P(혹은 그 상속인), M(R 혹은 S)이갑을 상대로 공사대금, 손해배상 기타 명목 여하를 불문하고 재건축사업과 관련하여소송 등을 제기할 경우, 자신의 비용과 책임 아래 위 소송을 승계하고 분쟁당사자로서 소송을 수행하여 갑을 면책시킬 의무가 있다.(4) 을은 갑이 이 계약에 의하여 을에게 이 사건 토지의 양도와 관련하여 갑에게 부과되는 양도소득세 등을 부담할 의무가 있고, 또 갑의 구성원 일부에 부과된 사전입주로인한 벌금을 대납하기로 한다.(5) 갑과 을은, 이 계약으로 인하여 이 사건 재건축공사와 관련하여 건축주로서의 모든지위와 권리의무가 을에게 이전되었음을 확인하고, 향후 이 사건 아파트에 대한 조합원(갑의 구성원) 혹은 일반분양자로부터 하자보수책임이 문제되었을 때 을이 전적으

Of Article 6 (Internal Relationship B)(1), the defendant A becomes the primary party and is obligated to perform the obligations set forth in this contract first with his own cost and responsibility.(2) The victim company shall cooperate with the necessary administrative procedures to prevent the defendant A as the primary party from causing acute damage in connection with the reconstruction project of this case.

B) In accordance with the instant contract for the transfer of business rights, around October 2007, the agreement was reached between Defendant A and the victim company with respect to the instant reconstruction project (hereinafter “instant agreement”) as follows (Evidence No. 4 submitted by Defendant A’s defense counsel);

The defendant A of the Agreement (hereinafter referred to as "A") and the victim company (hereinafter referred to as "B") jointly take over the reconstruction project in the vicinity of the land of this case, and agree as follows.In this regard, Article 1 (Structure of Acquisition of Right of Reconstruction) A and B confirm the following facts in relation to the acquisition of the right of reconstruction of the land of this case: (1) Gap and Eul jointly take over the adjacent Fitre rebuilding project of this case and the land of this case from H and 11, the former owner of the reconstruction project of this case. (2) Gap and Eul first take over the completion and completion inspection of the apartment of this case under their own cost and responsibility, and Eul transferred the ownership of the reconstruction project of this case and the land of this case to the name of Eul.In the event that the apartment of this case is completed under Article 2 (1) (including the members of the association and the shares of this case) (1) the apartment of this case, the ownership transfer registration of the apartment of this case will take the lead in the sale registration of this case, etc.

(2) A, the title holder of the building permit, such as the receipt and management of the sale price and the receipt and management of the registration cost, shall also be in charge of B. Article 3(1) of B (the Protection of Benefits) provides that “A may actually secure the construction cost incurred in connection with the instant reconstruction project, such as sale price, registration cost, etc., shall be executed; “B shall not have any particular interest other than necessary expenses; and “B” shall be executed and accounted for the accounts in the direction that the interests of A who actually carried out the construction project are protected. (2) A shall complete the reconstruction project under his/her own cost and responsibility and ensure that ownership preservation is completed in the name of the reconstruction owner B; and in relation to the instant reconstruction project in the future, the former implementer, contractor, or interested person (including L, Q, P, R, and S) shall be exempted from liability by performing a lawsuit at his/her own expense.

C) On November 1, 2007, the members of the instant association entered into a sales contract with the victim company as to shares in the instant land (hereinafter “the instant sales contract”) on or around November 1, 2007, and entered into a contract to change the name of the owner of the instant apartment building to the victim (hereinafter “the instant contract to change the name of the owner of the instant apartment building”) (Evidence No. 3, No. 508, No. 554 of the evidence record), and the victim company entered into the registration of transfer of each share in the instant land from the members of the instant association on or around November 5, 2007, and thereafter, the competent authorities also reported the change of the name of the owner of the instant apartment building (Evidence No. 4, No. 194, No. 207 of the evidence record).

D) On November 5, 2007, the victim company entered into a real estate security trust agreement with the beneficiary of the first trust principal between the date when the transfer registration of ownership of each share in the land of this case was completed. On the same day, the victim company entered into a real estate security trust agreement with the following purport: "The beneficiary of the first trust principal" means the branch of Twest (business financing amount: KRW 624 million), the beneficiary of the second trust principal, U.S., and the beneficiary of the second trust principal. The beneficiary of the trust principal and trust proceeds are the victim company." On the same day, the beneficiary of the trust principal and the beneficiary of the trust proceeds are the victim company. The registration of ownership transfer for the land of this case was completed (No. 37 through 50 of the evidence No. 1, No. 212 through No. 222 of the evidence Records).

E) In addition, Defendant A and the Victim Company concluded the instant construction contract with respect to the reconstruction construction of the instant apartment before and after November 5, 2007 (Evidence Nos. 1, 132, 135 of the evidence record).

The victim company (hereinafter referred to as "A") and the defendant A (hereinafter referred to as "B") enter into an agreement with each other to determine necessary matters concerning the new construction of the apartment in this case as follows: 5. The contract amount: The contract amount: 3.5 billion won (the above money shall include the above contract amount, and the construction cost shall be paid in full until the acquisition of the previous construction and the completion of the remaining construction) of the new construction of the apartment in this case on the land owned by Gap: Eul shall be responsible for the new construction of the apartment in this case and settled with the previous business operators; Eul shall be fully responsible for the settlement of the claim and obligation for M among the new construction works undertaken after May 207 and the apartment in this case; Eul shall be fully responsible for the settlement of the sale price of the apartment in this case at the expiration of 5.7 months after the completion of the construction in this case, the average sale price of the apartment in this case shall be paid directly to Gap or the previous business owners at the expiration of 5.7 months after the completion of the construction in this case.

Where an officetel is unable to be liquidated immediately due to provisional attachment, provisional disposition, etc., payment in kind may be refused.

F) After January 2008, Defendant A completed the instant apartment on or around January 2008, and the injured company obtained approval for the use of the instant apartment as of January 24, 2008, and after obtaining approval for the use of the instant apartment, Defendant A completed the instant apartment.

On February 1, 2008, at the same time, registration of ownership preservation has been completed, at the same time, with I enter into a real estate security trust agreement with I, and the beneficiary and beneficiary and beneficiary premium of the real estate security trust agreement are the same as the contents of the real estate security trust agreement for the land of this case recognized in the preceding paragraph. The evidence record Nos. 1, 223 through 236 of the evidence record] I completed the registration of ownership transfer for the apartment of this case on the ground of the said security trust (Evidence No. 1, 51, 131 of the

2) Details of the appointment of the representative director of Defendant B

A) Around August 1, 2007, Defendant B, the husband of H, one of the instant members, was appointed as the representative director of the victim company. Around November 2, 2007, Defendant B and directors V, and directors W prepared the minutes of the board of directors’ meeting as follows (Evidence No. 408 of the Evidence No. 408 of the Record);

The representative director, who is the chairperson of the minutes of the board of directors, declares that the meeting has been duly constituted and seeks deliberation by referring to the following items.The agenda is the security of collateral and the real estate security trust contract 1. Loan 2. Loan 00: Loan 3. Loan : Loan 4.0 million won: Loan 480 million won: Loan 480 million won: Loan 5.0 million won: Loan 6. Resolution 6. Loan 1. Real estate security trust contract for loans and real estate held by him/her from the loan date to the repayment of this obligation:

7. Other: The amount of the certificate of common beneficiary - the amount of KRW 624 billion - the amount of KRW 3.5 billion - the 3.5 billion - The above agenda shall be referred to the above agenda, and three of the four directors shall be declared to have been resolved and closed.

B) After March 208, 2008, a contract was made between the Defendants and W with the following contents (hereinafter referred to as the “Agreement of March 20, 2008”). (No evidence Nos. 1, 34, and 36).

The victim company of the contract (the supervisor), the defendant B (hereinafter referred to as "B"), and the joint and several surety (the defendant A) shall enter into the contract as follows.Article 2 (Business) A shall enter B into the contract as the representative director (the representative director).Article 3 (Authority, Responsibilities and Obligations) shall be responsible for the disposal of the land of this case and the entire apartment of this case as the representative director, and the land, apartment, and officetel which are the owner of the headquarters of this case.Article 4 (Scope of Conduct) shall be limited to the authority, responsibility and obligations under Article 3, and shall be the representative director.Article 4 (Scope of Conduct) shall not use the representative director's official seal on the debt to the head office, the act of claim, and the act of law. Article 9 (Liability and Security) shall be limited to the act for the interest of the head office as the representative director, and shall not cause any damage to the representative director.

3) Application for the instant payment order by Defendant A, and the exercise of the right of retention thereunder

A) On December 9, 2008, Defendant A applied for a payment order of KRW 3.5 billion against the victim company based on the instant construction contract at the Seoul Central District Court (Seoul Central District Court) around December 23, 2008 and issued the instant payment order under the Seoul Central District Court Order No. 2008 tea 10091 around December 23, 2008. Defendant B did not raise an objection despite being served with the instant payment order at his own residence on January 5, 2009, and the said payment order became final and conclusive around January 20, 2009 (Evidence 1, Title 185 through 189 of the Evidence Records).

B) On the other hand, around December 24, 2008, Defendant B sent to I a certificate of contents on behalf of the victim company that requested the public auction of the instant land and the instant apartment, and the above certificate of contents contains that “Defendant A exercises a lien on the construction price of KRW 3.5 billion (Evidence No. 4, Title 561, Title 562 of the Evidence Records),” and Defendant A notified Defendant A of the fact that he exercises a lien by submitting the instant payment order document to around January 12, 2009 (Evidence No. 4, Title 563, page 577 of the Evidence Records).

4) Results of civil litigation related to the above reconstruction project

A) Y, a creditor of the instant association members, filed a lawsuit against the instant association members on November 5, 2007 against the instant association members on behalf of the instant association members, claiming for the cancellation of the registration of transfer of ownership and the registration of cancellation of ownership preservation on the instant apartment on February 1, 2008 on shares in ownership of the instant land. The court of first instance (Seoul Central District Court 2013Gahap48796) rendered a favorable judgment on May 29, 2014 when it rendered a judgment in favor of the Plaintiff on May 29, 2014, the instant sales contract and the change of the name of the owner between the instant association members and the instant association members, which were concluded between the instant association members, were in collusion with the instant association members in order to avoid compulsory execution from the creditors, and thus, each of the above contracts was invalid as a false declaration in collusion with the victim company (Article 3 rights 508 to 554 of the evidence record).

B) During the public sale of I, the Z and AA, who acquired the ownership of the instant land and the instant apartment, filed a lawsuit against the Defendant A against the Defendant for removal of the container installed by the Defendant A and for delivery of the instant apartment, and the instant land and the instant apartment. The first instance court (Seoul Central District Court 2015Gahap54857) decided on May 25, 2016 that the instant payment order became final and conclusive, it is difficult to deem that Defendant A has a claim for construction cost of KRW 3.5 billion against the Defendant, and that Defendant A’s claim for construction cost due to the actual construction was extinguished in full by payment, and rendered a favorable judgment of the Plaintiff (Evidence No. 450 to 184 of the Evidence Record No. 150 to 184 of the Evidence Record), and thereafter Defendant A’s appeal was dismissed, but the final and conclusive judgment became final and conclusive as it became final and conclusive (Evidence No. 4236 through 581 of the evidence record).

C) The victim company filed a lawsuit of demurrer against the defendant A seeking non-performance of compulsory execution based on the instant payment order. On August 25, 2016, the first instance court (Seoul Central District Court 2015 Gohap549415) declared the plaintiff's winning judgment in collusion with the defendant A for the purpose of evading compulsory execution of the members of the instant case and preserving the defendant A's claim for the construction payment against the members of the instant case without the victim company's intent to substantially bear the obligation for the construction payment. Thus, the contract for the construction of the instant case is deemed to have been concluded in collusion with the defendant A without the victim company's intent to assume the obligation for the payment of the construction payment, and thus the judgment became final and conclusive upon the issuance of the rejection order of the petition of appeal.

B. Judgment on the charge of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) (hereafter in this paragraph, referred to as "the charge" in this part)

1) Whether Defendant B’s failure to file an objection to the instant payment order constitutes occupational breach of trust

The crime of occupational breach of trust is established when a person who administers another’s business obtains pecuniary advantage or causes a third party to obtain such pecuniary advantage through an act in violation of one’s duty, thereby causing loss to the principal. The term “act in violation of one’s duty” refers to any act in violation of a fiduciary relationship with the principal by failing to perform an act that is naturally expected under the provisions of law, the content of the contract, or the good faith principle, or by performing an act that is expected not to perform an act that is naturally expected not to perform (see Supreme Court Decision 2009Da8244, Mar. 11, 2010).

In light of the aforementioned legal principles, the facts charged are as examined in the facts acknowledged earlier, as follows: (a) Defendant A filed an application for the instant payment order with the court; (b) Defendant B, the representative director of the victim company, was served with the instant payment order, and thus, the instant payment order became final and conclusive as it was due to the failure to file an objection; (c) however, in full view of the following facts and circumstances acknowledged by the prosecutor and Defendant A’s evidence submitted by the defense counsel, the sole evidence submitted by the prosecutor alone is insufficient to acknowledge that the Defendants’ above acts constitute occupational breach of trust against the victim company.

① Defendant B stated to the effect that “Defendant A acquires the victim company at an investigative agency as the representative director of the victim company,” and that the victim company was the representative director of the victim company at the request of Defendant A, and that the victim company was appointed as the representative director of the victim company at the request of Defendant A. In addition, the victim company’s representative director at the victim company (“Defendant A”) also determined KRW 3.5 billion as construction cost including all existing construction cost, litigation cost, etc. (Evidence No. 2, No. 10, No. 11), and that this court stated to the same effect (Article 7 of the witness B’s examination record). However, Article 3 of the Construction Contract Agreement provides that “Defendant A shall be entitled to the payment of construction cost from the victim company at the expense of Defendant A’s association members and the owner of the apartment company’s liabilities and the contents of the contract shall be referred to as “the previous owner’s liabilities and the contents of the contract of this case before the completion of the construction contract,” instead of setting the amount of construction cost to be paid from the victim company.

② ① 이 사건 아파트와 관련한 각 계약들이 체결된 경위를 전체적으로 살펴보면, 이 사건 공사도급계약은 다른 계약들과 별개로 체결된 것이 아니라 이 사건 사업권 양도계약과 이를 기초로 한 이 사건 매매계약 및 건축주명의변경계약 등의 계약을 체결하는 과정에서 그 무렵 함께 체결된 것으로 보이는 점, ㉡ 피해자 회사는 이 사건 매매계약 및 건축주명의변경계약에 따라 2007. 11. 5.경 이 사건 토지에 관하여 각 지분소유권이전등기를 마치고 2008. 2. 1.경 그 무렵 완공된 이 사건 아파트에 관하여도 건축주로서 소유권보존등기를 마쳤던 점, Ⓒ 2007년경 당시 이 사건 토지의 공시지가는 약 4억 5,972만 원(634.1m x 2007년경 개별공시지가 725,000원/m²)이었고, 이 사건 아파트의 시가가 37억 7,200만 원으로 감정되기도 한 점(증거기록 제3권 제523면), @ 피해자 회사 명의의 위 각 지분소유권이전등기 및 소유권보존등기와 동시에 각각 이 사건 토지 및 아파트가 I에 담보신탁되기는 하였으나, 피고인들은 당초 의 공매가 아니라 신탁해지를 하여 피해자 회사로 하여금 소유권을 다시 회복하도록 한 후 이 사건 아파트 중 일부 세대를 분양할 계획이었던 것으로 보이는 점(이 사건 각 부동산담 보신탁계약의 공동 제2순위 신탁원본 수익자 중 1명인 J이 신탁해지에 동의하지 않음에 따라 당초 계획과는 달리 위 각 부동산담보신탁계약이 해지되지 못한 것으로 보인다. 피고인 A의 변호인이 제출한 증 제6호증), ① 이 사건 토지 및 아파트에 관한 각 부동산담보신탁계약에서 U 등 10명 명의로 설정된 공동 제2순위 신탁원본 수익에 관한 권리(수익권리금 : 35억 원)는 실질적으로 이 사건 사업권 양도계약, 이 사건 합의의 내용에서도 확인되는 바와 같이 이 사건 조합원들이 ㈜Q, L, P, M 등과 사이의 법률관계에 따라 부담하거나 부담하게 될지도 모르는 각종 채무를 피고인 A이 자기 부담으로 정산하거나 해결하는 것을 전제로 소송비용을 포함하여 그에 소요되는 금액과 피고인 A 자신이 실제로 공사한 금액까지 모두 고려하여 산정한 액수인 35억 원 상당을 피고인 A이 회수할 수 있도록 하기 위하여 이를 피고인 A의 공사대금채권 명목으로 인정하기로 하고, 그에 따라 피고인 A의 위와 같이 정산금채권의 실질을 갖는 명목상 공사대금채권의 지급을 담보하기 위한 것으로 보이는 점, ① 이와 같은 처리방식은 당초 이 사건 조합원들이 피해자 회사에 이 사건 아파트 재건축사업 및 이 사건 토지에 관한 권리를 모두 이전해 준 취지에도 부합하는 점 등을 고려하면, 경제적 관점에서 볼 때에도 피해자 회사가 이 사건 공사도급계약으로 인하여 아무런 대가 없이 일방적으로 채무만을 부담한다고 평가하기는 어렵다.

2) Whether the Defendants had the intent to commit occupational breach of trust

In order to establish the crime of occupational breach of trust, the perception and consequence of the act of occupational breach of trust requires the perception that one or a third party acquires his or her benefit and causes damage to himself or herself. In other words, where the accused denies the criminal intent of the crime of occupational breach of trust, the subjective element of the crime of occupational breach of trust in light of the nature of the object is bound to prove by the method of proving indirect facts having considerable relevance with the intention, and what constitutes indirect facts should be reasonably determined by the method of strict observation or analysis based on normal empirical rule (see Supreme Court Decision 2008Do9066, Jul. 15, 2010). The burden of proving the criminal fact prosecuted in the criminal trial lies in the prosecutor’s burden of proving the criminal fact, and the conviction in the criminal trial ought to be based on evidence with probative value that the judge has no reasonable doubt, so if the prosecutor’s proof is insufficient to establish the crime of occupational breach of trust, and the evidence submitted by the prosecutor or the defendant is insufficient to establish the crime of occupational breach of trust.

① Defendant B stated to the effect that “The grounds for not raising an objection against the instant order for payment was based on the documents prepared by the Plaintiff (the instant order for payment).” However, Defendant B, as one of the members of the instant case, was aware of the fact that the instant order for the execution of the instant apartment reconstruction project on April 207, when it was actually carried out by the instant association members, it was difficult to readily conclude that Defendant B was in a position to acquire economic benefits with Defendant A due to the conclusion of the instant order for the instant order for payment. It was difficult to conclude that Defendant B was in a position of being aware of the fact that the instant order for the execution of the instant order for the transfer of ownership, which was concluded by the Defendants A and the instant order for the execution of the instant construction project on behalf of the instant association members, and that there was no possibility that the instant order for the transfer of ownership, which was concluded in accordance with the instant order for the execution of the instant construction project, was invalid after the conclusion of each of the instant order for sale of ownership, in light of the fact that each of the instant contracts was concluded ex post facto.

② On the other hand, Defendant A stated in this court that Defendant B sent the place of delivery of the instant payment order to Defendant B as the representative director of the victim company because Defendant B had responsibility and authority for the instant apartment reconstruction project as the representative director of the victim company. A certified judicial scrivener stated to the effect that he was aware that Defendant B had a telephone sent to Defendant B (the witness witness witness’s record page No. 13), and Defendant B also stated to the effect that “At the time of this court, he did not work almost at the victim company’s office, he would inform the certified judicial scrivener of the place of delivery (the witness witness’s record record page No. 32).” According to the written contract as of March 20, 2008, Defendant B could have been entitled to represent the victim company in relation to the instant apartment reconstruction project, and Defendant B could not immediately have the right to represent the victim company in relation to the instant apartment reconstruction project, and Defendant B may not immediately concluded the instant order with Defendant B’s first right to request the payment of construction expenses and evidence to the effect that Defendant B made Defendant B’s statement and evidence No. 4.

3) Whether property damage was inflicted on the victim company

In the crime of breach of trust, "when property damage is inflicted" includes not only a case where a real loss is inflicted but also a case where a risk of actual loss of property has been caused. However, if the risk of such loss has not been caused, the crime of breach of trust is not established, and accordingly, if a representative of the corporation has no legal effect, it cannot be said that there has been any loss or risk to occur to the corporation, unless there are special circumstances (see, e.g., Supreme Court Decision 2010Do6490, Sept. 30, 2010).

In light of the above legal principles, considering the following facts and circumstances acknowledged by the evidence submitted by the Prosecutor and the Defendant’s defense counsel, even if the instant contract for construction work concluded between the Defendant A and the Victim Company is legally null and void as a false representation in consultation, it is difficult to readily conclude that the instant payment order was final and conclusive, thereby causing the risk of actual damage or property damage to the Victim Company.

① The facts that the instant payment order has become final and conclusive are as seen earlier. However, in the case of the final and conclusive payment order, Article 56 of the Civil Execution Act does not apply to the lawsuit of demurrer based on the time limit of res judicata. As such, the grounds for failure or invalidation, etc. occurred prior to the issuance of the payment order can be asserted in the lawsuit of objection against the said payment order (see Articles 58(3) and 44(2) of the Civil Execution Act). The burden of proof as to the grounds for objection in the lawsuit of objection should be in accordance with the principle of allocation of burden of proof in general civil procedure (see Supreme Court Decision 2010Da12852, Jun. 24, 2010). In view of the fact that, in the case of the final and conclusive payment order, a notary public is bound to have no executory power in the process of executing a notarial deed, and thus, the same is invalid in view of the fact that there is no legally binding power in the process of executing a notarial deed that is an executory act of the victim.

② Defendant A consistently made a statement to the effect that “I had no idea of compulsory execution against the victim company” in the investigative agency and this court (Evidence No. 4, No. 340 of the evidence record, and No. 3 of the witness examination record). In fact, Defendant A did not attempt to enforce compulsory execution against the victim company’s property by disposing of the claim against Defendant A from January 20, 2009 to August 25, 2016, which was lost by the victim company’s objection suit filed by the victim company against Defendant A (Evidence No. 4, No. 337 of the record) with the title of execution of the instant payment order (Evidence No. 4, the record No. 337 of the record), and there is no evidence to deem that the disposal of the claim for construction price under the instant construction contract, such as transfer of the claim to others.

③ The actual owner of the victim company asserts to the effect that the Defendants did not pay taxes, etc. imposed on the victim company regarding the transfer of ownership of the instant land and apartment complex, thereby causing property damage. However, the aforementioned damage claimed by W is not included in the property damage of this part of the facts charged charged by the prosecutor, and even if the Defendants did not pay taxes, etc. imposed on the victim company unlike the agreement with W, such damage is merely merely a non-performance of obligations under the agreement and cannot be deemed as a property damage arising from the confirmation of the instant payment order.

4) Sub-committee

Ultimately, the evidence presented by the prosecutor alone cannot be deemed to have proved this part of the facts charged against the Defendants to the extent that the judge would not have any reasonable doubt.In this paragraph, the judgment on the facts charged for interference with bidding (hereinafter referred to as the "fact-finding charge") is made.

In the relevant civil case, it is difficult to recognize that the claim for the construction cost of the above 3.5 billion won against the victim company A exists, and it can be recognized that the judgment rejecting the defendant A's right of retention defense has become final and conclusive on the ground that the construction cost of the portion actually executed by the defendant A was fully paid. However, as seen earlier, the judgment in the civil case related to the criminal trial is subject to

Even if the facts determined are valuable evidence to prove the facts charged, the criminal court does not necessarily have to be bound by the confirmation of the civil judgment resolution, and therefore, can find facts different from the facts established in the civil judgment by evidence. In full view of the following facts and circumstances acknowledged by the evidence submitted by the prosecutor and the defense counsel, it is difficult to readily conclude that the prosecutor’s evidence alone submitted by the prosecutor had the intent to obstruct the tender through the exercise of false lien. Thus, this part of the facts charged against the Defendants cannot be deemed to have been proven to the extent that there is no reasonable doubt by the judge.

① In light of the contents of the instant contract for construction works and the content of the instant contract for construction works, it appears that the instant association members had a considerable portion of the construction cost not paid to the construction business operator at the time of November 2007, when the instant contract for construction works was concluded and the instant association members had a dispute over the construction cost payment between the instant association members and the construction business operator.

② In the event of the occurrence of the dispute over the construction cost as above, Defendant A entered into the instant contract for the transfer of business rights on the condition that the remaining construction work of the instant apartment and the settlement of the legal dispute between the instant members, and entered into the instant agreement and the instant contract for construction works with the victim company.

However, in light of the fact that Defendant A was responsible for the remaining construction of the instant apartment and agreed to receive the construction cost, including the part previously executed by another construction business operator while entering into the construction contract with the owner of the building, there is no ground to deem that Defendant A already agreed to be exempted from the instant association members in the instant business right transfer contract, the instant agreement, and the instant construction contract, etc., as seen above, Defendant A and the victim company, while entering into the instant construction contract, cannot be deemed to be unfair to have determined to be paid KRW 3.5 billion under the pretext of the construction cost instead of entirely resolving legal disputes related to the instant apartment.

③ Defendant A completed the instant apartment construction by performing the aforementioned construction work in accordance with the agreement on the transfer of the instant apartment right and the construction contract. Defendant A, as a matter of principle, appears to have been granted a lien on the remaining claims for the construction work of the instant apartment. Moreover, even if the agreement on the transfer of the instant construction contract has no legal effect as a false declaration on agreement between Defendant A and the victim, Defendant B actively participated in the instant apartment contract as one husband among the instant members, so it is difficult for the instant members to readily conclude that the instant agreement on the payment of construction work price was in accord with the intention of the instant members, and rather, Defendant A’s agreement on the payment of construction price was difficult to conclude that the instant apartment construction cost was in accord with the intention of the instant members, even if the purpose of the instant agreement on the sale of the instant apartment to the effect that the instant apartment construction contract was concluded after the date of the instant agreement, and that the instant agreement on the payment of construction price was not concluded by the Plaintiff at least 1,000,000,000 won.

⑤ Meanwhile, in this court, Defendant B stated to the effect that “the construction was carried out while exercising the right of retention from July 2007, when the construction was interrupted due to Defendant A’s failure to receive the construction cost (as witness B, the record book of examination of witness B), Defendant A, the victim company, and one household among the apartment buildings of this case, stated that “Defendant A exercises the right of retention as a construction contractor from January 2008 to February 201, 207 regarding the construction cost” (Evidence No. 451 to 498 of the evidence record), and regardless of the payment order of this case, Defendant B had been exercising the right of retention by using the claim for the construction cost of the apartment of this case as the secured claim.

4. Conclusion

Therefore, since all facts charged against the Defendants constitute a case where there is no proof of crime, each of the defendants is acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment is publicly announced under Article 58(2) of the Criminal Act. It is so decided as per Disposition.

Judges Choi Dong-hwan

Judges Kim Gin-han

The same applies to the entry of the contents of other documents in less than 100.

2) According to the contents indicated in the third sphere of evidence 3 and 355 pages, the above N appears to have been erroneous in the H, one of the members of the instant association.

3) Supreme Court Decision 2012Do2142 Decided May 24, 2012

The Specific Economic Crimes Act (hereinafter referred to as the "Special Economic Crimes Act") shall be aggravated on the ground that the company A suffered property loss by preparing a notarial deed for consumption and a promissory note

In a case where a criminal defendant was prosecuted for violating the Punishment, etc. Act (amended by Act No. 11304, Feb. 10, 2012); the criminal defendant’s act

An act of abusing the power of representation by the other party is fair in order for the defendant to gain his own interest or a third party's interest regardless of the interests of Gap company

Since he knew or could sufficiently know that he or she prepared a deed, all of them are null and void, thereby causing property damage to the Company A.

The judgment of the court below which acquitted the defendant on the ground that the risk of actual damage to property or actual damage to property was not caused is justifiable.

4) The court of first instance in the case of claim for the construction cost filed by M against the instant union members (Seoul Eastern District Court 201Gahap151, 2012Gahap16573)

On the premise that such agreement between the parties is valid, M's flag and the construction cost was calculated.