2. B

3. C

Law Firm E, Attorney F (for Defendant C)

Defendant A shall be punished by imprisonment with prison labor for one year and by imprisonment for eight months.

except that the execution of each of the above penalties shall be suspended for two years from the date this judgment becomes final and conclusive.

The prosecutor's appeal against the defendant C is dismissed.

In light of the fact that the construction project as indicated in the facts charged of this case (hereinafter referred to as the "construction project of this case") calculated the price generated by removing the existing pipelines at KRW 50 million, and the Dong branch of this case did not have any connection with the construction project of this case and therefore there was no need to open the above Dong branch to remove the previous pipelines, it cannot be deemed that the above Dong branch did not include the above Dong branch in the pipes that it decided to remove from the construction project of this case. Furthermore, the above Dong branch of the above Dong branch of the 160,000 won for the first waste pipe's disposal amount of KRW 50,000,000,000 for the first waste pipe's disposal amount of KRW 160,000,000 for the first waste pipe's disposal amount of the dong branch of this case, and thereafter, the defendants made an inconsistent statement as to the use process of the above disposal proceeds, and made a statement with each other, it is sufficiently found guilty of the facts charged of this case.

Nevertheless, the lower court determined that the Defendants were not guilty on the facts charged of this case. In so determining, the lower court erred by misapprehending the legal doctrine.

2. Determination:

A. The judgment of the court below

The court below held that the construction work of this case was carried out in collusion with the victim side and H Co., Ltd. (hereinafter referred to as the "H") to the effect that the disposal and transportation of waste pipes and hot water generated in the course of removing pipelines, and other generated materials attached to the contract of this case, and that the construction work of this case was carried out in consideration of the costs of scrap metal and destruction that are replaced or removed, and that the public prosecutor connected the water pumps to the surface side of the water pumps of the pump room. The construction work of this case must naturally connect the water pipes to the water pumps to the water pipes outside of the pump room. Thus, the existing Dong library of this case would not have to become the waste pipe. The construction work of this case seems to have practically impossible unless the existing Dong library of this case was removed from the construction work of this case. In light of the purport of the contract of this case, each of the above defendants' charges of this case could not be found to have been found to have been found to have existed at the time of the completion of construction work of this case, and it could not be found to have been found to have existed.

B. Judgment of the court below

However, we cannot accept the above determination by the court below for the following reasons.

1) The criminal intent of theft

According to the following circumstances acknowledged by the evidence duly adopted and examined by the court below and the court below, the removal of the Dong hall of this case can be sufficiently recognized as an act committed while the victim knew, or at least knew, that it would be against the victim's will.

A) The name of the instant construction works is “heat pipe replacement and ancillary facility construction works (herat pipe, automatic control, circular pumps),” and the removed instant building works are pipes that served as supplying water in the machinery room before the instant construction works, and it does not seem that the instant building project operator, a cooling pipe, was the object of the instant construction works, solely from the name of the instant construction works, “replacement of a hot water pipe,” which is “replacement of a hot water pipe.” In addition, the instant building works did not indicate that the instant building project had been completed or replaced anywhere, such as design drawings and specifications, contract documents, etc., and the instant building works, the victim who ordered the instant construction works, even who is the constructor, appears to have not been aware of the existence of the instant building before the instant construction works were included in the construction works’ design or construction plan. The same appears to have been included in the instant construction works’ plan at the same time.

B) The construction contract document of this case contains a statement that “B” (referring to H) shall be dealt with by mutual consultation (including a supervisor) with the contract document, design drawing, and specifications. (No. 48 pages of investigation record) The construction contract of this case contains a statement that “All the construction work specifications of this case shall be executed in accordance with the design drawing and this specifications, and if there are different parts, according to the direction of the supervisor (the victim’s side or supervision).” The contractor was not aware of the fact that “B” of this case’s 1 case’s design drawings, specifications, and contract documents were removed without any indication, and that there was a duty to remove the building site of this case’s 1 after consultation with L or the party concerned with the victim’s right to supervision or even before the removal of the building site of this case’s 1. The remainder of the Defendants did not know that the construction contract of this case was removed by the investigation officer of this case.

C) During the instant construction project, the victim representative and supervisor L, Defendant B, the field director, Defendant B, Defendant C, the head of the construction site, and Defendant C, the head of the agency, were conducted once a week at least once a week on the construction site. At least once a week on the construction site, Defendant A, the constructor, and Defendant A, the constructor, had been informed L/C of the removal of the instant building site without any indication on the design documents, etc. through the main fair meeting, etc., and had sufficient opportunity for consultation. Nevertheless, Defendant A did not remove the instant building site from around July 201 to around one month on the part of the police officer (No. 104 of the investigation records No. 1, No. 23, 284 of the investigation records No. 1, and No. 3 of the investigation records No. 284 of the instant investigation records) and did not notify the victim of the removal of the building site.

D) The construction site of this case entered into an agreement to remove and dispose of the scrap metal generated during the construction site of this case (No. 52 pages of the investigation record), and the construction cost was calculated in consideration of the cost of scrap metal and waste disposal (No. 7 pages of the investigation record). The design of the construction project of this case is about 118, 671km (no. 12 tons), and the total amount of KRW 49,248, 465 won per 1km was calculated as the total amount of KRW 00,000,000,000,000 won was not at least 00,000 won. The construction project of this case was calculated as KRW 50,000,000,000,000,000 won was not at least KRW 20,000,000,000,000 won was at least KRW 50,000,000,000.

E) Defendant A paid labor cost of KRW 300 million to Defendant A, and had Defendant A take responsibility for and perform part of the instant construction. At the same time, Defendant A paid KRW 120,000 won per day as the present place in addition to granting Defendant A the right to dispose of scrap metal removed. In light of the empirical rule, H, even though he knew that the said scrap metal price was the amount to be paid for the said KRW 300,000 won as the name of labor cost, he cannot easily obtain the right to dispose of scrap metal to be removed as above from the perspective of empirical rule.

6) The Defendants, without removing the instant pipes, have changed the construction of the instant pipes to the effect that they were not able to carry out the construction of the instant pipes. According to the inspection results of the court (106 pages of the investigation records, 28 to 29 pages of the inspection records of the appellate court, 17-dong underground rooms and fire hydrants, 122-dong underground rooms and fire hydrants, and 22-dong pipes were newly installed in the instant pipes to the extent that they were not able to carry out the construction of the instant pipes to the extent that they were not able to carry out the construction of the instant pipes. However, according to the above evidence, the above parts of the apartment pipes, which were newly installed in the instant pipes to the extent that they were not able to carry out the construction of the instant pipes to the extent that they were not able to carry out the construction of the instant pipes to the extent that they were able to carry out the construction of the instant pipes to the extent that they were newly installed in the instant pipes to the extent that they were located.

In light of the fact that V, at the request of the victim, prepared a review report on the overall construction of the instant construction at the request of the victim, is a narrow space, and thus, there may be convenience in the construction of the pipes if the existing pipes are reduced even once the existing pipes are reduced, but the change to the purport that the instant construction could not be performed without the removal of the instant pipes cannot be accepted.

G) ① After receiving the information that the council of occupants’ representatives was removed at the time of the instant construction work, K, which was the president of the council of occupants’ representatives, stated that the Defendant A was aware of the defect in raising the problem, that the Defendant’s act was subject to 70,000,000 won, and that there was an intention to compensate for the damage (183 pages of the trial record), and that the Defendant A was prepared with a apology containing the details of the disposal of the property (183 pages of the trial record). ② According to the above apology, the Defendant A merely stated that he was aware of the victim’s request that the Plaintiff removed the instant building and compensated for the damage by removing the said building, without stating that the removal of the building site was in accordance with the terms and conditions of the contract, and there was no statement that the Defendant A would be the best change in the amount, and that Defendant A was merely the victim’s intent to remove the building site at the time of the instant construction work. However, Defendant A did not know that there was an agreement between the above victim and the victim’s request.

H) Ultimately, according to the statement "in direct connection to the side of the water pumps from the water pumps to the water pumps" with respect to the instant construction project, it is reasonable to deem that the instant Dong management was aware at the time of the instant construction project that the removal of the instant Dong hall was contrary to the intent of the victim, even though it was related to whether it was included in the contents of the instant construction contract to make the instant Dong hall into the non-use pipelines by connecting the directly-use pipelines as above.

2) Whether an intention to obtain unlawful custody is obtained or not

The intent of larceny is to exclude the right holder and to use and dispose of property A as if it were his own property (see Supreme Court Decision 2014Do1919, May 29, 2014). This case’s order was removed against the victim’s will, and the defendant A, B’s statement and I’s statement that it was used for labor expenses after receiving the disposal money from the Dong branch, and that it was recognized as such, namely, ① U.S. operator who directly removed the Dong branch, deposited the money in the account under the name of the defendant A’s wife Q2 for the purpose of using the above transfer money to the defendant’s account under the name of the defendant B or Q2, and the defendant Q2 was transferred to the defendant for the purpose of using the above money in the name of the defendant B or Q2 within 30 million won.

3) Public offering relationship

A) A co-principal under Article 30 of the Criminal Act commits a crime jointly by two or more persons. In order to establish a co-principal, a subjective requirement is the intent and objective requirement for co-processing, which requires the fact of implementation of a crime through functional control over a functional act based on a co-principal’s intent. The intent of co-processing is insufficient to recognize another person’s crime and to deny it without restraint, and it is not sufficient that it is integrated for the purpose of committing a specific criminal act with a co-principal’s intent, and it is to shift to one’s execution by using another’s behavior (see Supreme Court Decision 2012Do3676, May 16, 2014).

B) First, we examine whether Defendant A was in a co-principal relationship by inviting Defendant B to remove the instant building site directly at the construction site of this case and transfer the disposal price to Q’s account in the name of Q used by him. The following circumstances, which are acknowledged by the evidence as follows: ① Defendant B employed Defendant A by the investigative agency as the site manager on behalf of Defendant A, who was the contractor of the instant construction site, and stated that Defendant B had the right to transfer to the site of this case as the site manager (in 373 pages of investigation record), ② Defendant B stated that Defendant A had the right to transfer from the investigation agency to the site of this case, including the building site of this case.

Defendant B stated that he will be entrusted with part of the construction cost calculated (No. 375 of the investigation record) and that he was entrusted with part of the project (No. 375 of the investigation record), that Defendant B entrusted the removal of the Dong Center to Defendant A, and that he was aware of the fact that he directly removed the Dong Center (No. 382 of the investigation record No. 1), that 1 stated that the investigative agency provided instructions to remove the Dong Center, etc. by guiding Defendant A, B, and B with the machinery room or piping room (No. 231 of the investigation record No. 1), and that Defendant B did not make any report on the fact that the apartment scrap metal occurred, and that Defendant B conspired with the investigation officer to remove the Dong Center, and that Defendant B was not aware of the fact that she had been entrusted with the investigation record No. 1 of the investigation record No. 376 of the investigation record No. 1 of the investigation record No. 3000,000,000,000 won, and Defendant B did not know that 1 of the investigation record No.

C) Next, it is recognized that Defendant C participated in the removal of the instant Dong hall, and that Defendant C did not refrain from removing the instant Dong hall in accordance with the direction of Defendant A and B, considering that the removal of the Dong hall was included in the scope of the instant construction contract. However, the police statement statement (Evidence No. 89 No. 3, Investigation Record No. 234 of the Evidence List, Investigation Record No. 234 of the Defendant’s statement) stating that Defendant C conspiredd with Defendant C to remove the Dong hall from Defendant A was made in a situation in which Defendant C did not agree to the removal of the Dong hall as evidence, but Defendant A’s statement, which was prosecuted as an accomplice, was made under particularly reliable circumstances.

Since there is no evidence to prove that the defendant A and B disposed of the Dong branch of this case, it is insufficient to recognize that the defendant C participated in the removal of the Dong branch of this case only with the statement of the police protocol of 0 (No. 140 of the investigation record No. 140 of the investigation record) and the statement of the written complaint (No. 7 of the investigation record No. 1 of the investigation record) of the defendant C, even though he was aware of the fact that the Dong branch of this case was disposed of.

Rather, the following circumstances acknowledged by the evidence as follows: (i) Defendant C did not participate in the conclusion of the instant construction project; (ii) was the director of the victim representative meeting at the time of the instant construction project; (iii) was not the supervisor; and (iv) was likely to have been aware of the method of executing the construction project and the details of the progress; (v) Defendant C was aware of the removal of the instant club; (v) was stated to the effect that Defendant C did not specifically refrain from the removal; and (v) Defendant C was well aware of the fact that it was directly removed from the instant club; (v) Defendant C did not appear in the agency room at the time of the instant removal; (v) there was no evidence to acknowledge that Defendant C did not have any other details of the removal of the investigative records in collusion with Defendant C; (v) Defendant C did not have any other evidence to prove that Defendant C did not have any other details of the removal of the investigative records.

C. Sub-determination

Therefore, Defendant A and B may be found guilty of the facts charged in this case where they conspired to remove the Dong hall of this case, which is the property of the victim, and as to Defendant C, it is insufficient to recognize a public relations relation with Defendant A and B, it cannot be recognized as a crime of negligence. Nevertheless, the lower court, based on the circumstances stated in its reasoning, determined that Defendant A and B brought the Dong hall of this case against the victim’s will of illegal acquisition, and thus, acquitted each of the above Defendants. In so doing, the lower court erred by misapprehending the legal principles, but it is just in its conclusion that the part on which Defendant C acquitted was found not guilty on the grounds that it is insufficient to recognize a public relations relation with the Defendant C is insufficient to determine that Defendant A and B brought the Dong hall hall of this case against the victim’s will.

3. Conclusion

Therefore, since the prosecutor's appeal against the defendant A and B is well-grounded, pursuant to Article 364 (6) of the Criminal Procedure Act, the part concerning the defendant A and B among the judgment below shall be reversed, and it shall be ruled again following the pleading, and since the prosecutor's appeal against the defendant C is without merit, it shall be dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Facts of crime

Defendant A is a person who was the on-site manager of H corporation, a contractor for the replacement of hot water pipes of Seo-gu Daejeon G Apartment (total 27 units), Seo-gu, Daejeon (total 27 units), and Defendant B was a person who was the on-site agent of the said company.

Defendant A, and B, from July 1, 201 to October 31, 2011, when performing the replacement of the above apartment water pipe, Defendant A and B agreed to dispose only of the pipes, calculate the price of the pipes to be KRW 50 million, and entered into an agreement with the above apartment. Although the disused Ri, installed inside the apartment, is irrelevant to the contents of the pipeline replacement work, and is not included within the scope of the “waste pipelines disposed of in H Co., Ltd.,” the victim’s council of occupants’ representatives, which was the victim, was removed, to dispose of them.

On August 2, 2011, Defendant A and B arbitrarily removed the Dong in an amount equivalent to KRW 100 million in the process of replacing the hot water pipe of the above apartment, and disposed of it to I, who is the scrap metal business operator, by arbitrarily removing the Dong in an amount equivalent to KRW 100 million, and then disposing of the Dong in an amount equivalent to KRW 19,320 g in weight and the market value of KRW 15,972,00 in the same way five times from around that time to October 25, 2011, as shown in the attached list of crimes.

As a result, Defendant A and B conspiredd with the victim to cut off the status of KRW 150,720,000,000 owned by the victim.

Summary of Evidence

1. The judgment of the court below and the legal statement of the defendant A and B

1. Part of the judgment of the court below and the legal statement of the trial court

1. The witness J, K, L's legal statement in the original trial

1. The oral statement of the witness V at the trial court;

1. Protocol of inspection by this Court;

1. Protocol of examination of L;

1. The prosecutor's statement of R;

1. Each police statement of 0, I, and Q

1. Each complaint, letter of apology, recording, inspection report;

1. An investigation report (Attachment to a work site);

1. Contract (design of, and supervision over, the hot water pipeline replacement work), copy of the site descriptions, photographs by work process, and completion of supervision;

A copy of the report, a copy of the construction contract, a copy of specifications, a copy of the site descriptions, the details of entry and exit; and

Details (responding), each picture, and each photograph;

Application of Statutes

1. Relevant Article of the Criminal Act and the selection of punishment for the crime;

Articles 329 and 30 of the Criminal Code, each choice of imprisonment

1. Suspension of execution;

Article 62(1) of the Criminal Act (ConsiderationS 1 of the favorable circumstances as seen below)

Reasons for sentencing

Defendant A and B committed the instant crime with the view to the fact that the amount of damage is significant and the amount of damage is very large, and that the victim was not well aware of the existence of the instant club, and the crime was committed under the planned public offering, that the instant crime was committed, that was, the victim did not agree with the victim, that was not recovered from damage; that was, the Defendant A did not deny and reflect the instant crime; that the Defendant contributed to the instant crime; that was, the Defendant A made a critical contribution to the instant crime; that was, most of the profits derived from the instant crime; and that Defendant B appears to have obtained a large amount of profit due to the instant crime; and that Defendant B was also punished for the said Defendants.

reasonable;

On the other hand, since the removed club was eventually a disused pipe, it was infringed only on the value of scrap metal as the crime of this case by the crime of this case, and it was caused to the crime of this case while replacing piping pipes. The degree of awareness about the crime of this case is somewhat weak. Defendant A did not have any history of punishment for the same crime, and Defendant B had the history of criminal punishment.

There may also be circumstances that can be considered such as the first offender.

In full view of the above circumstances and other various sentencing conditions indicated in the records, such as Defendant A and B’s age, character and conduct, environment, motive, means and consequence of the crime, and circumstances after the crime, the sentencing criteria for the crime of this case shall be determined as ordered.

Judges Park Jae-young

Judges Yoon Jin-jin

【No Special Convicted Person】

[General Aggravations] - Aggravations: In the case of two or more joints

- Mitigation elements: None of criminal punishment (as against Defendant B)

[Scope of Recommendation] Six months to one year and six months

A person shall be appointed.