[2] The meaning of "where an occupational breach of trust causes damage to property"

[3] The case holding that even if part of a new loan due to the act of occupational breach of trust was used for the payment of interest on existing loan or new loan, it does not exclude it from the property damage of occupational breach of trust, and the necessary expenses arising in relation to the loan such as loan fees are also included in the amount of property damage

A. Regarding fact-finding

In light of the records, it is just that the court below found the defendant 1 and 2 guilty of the crime of occupational breach of trust in consideration of the adopted evidence, and there is no error of misconception of facts due to violation of the rules of evidence.

B. As to the blanket crime

Even if multiple occupational breach of trust are committed, if the legal interest of damage is a single and the attitude of crime is the same, and if such multiple breach of trust can be seen as a series of acts based on a single criminal intent, such multiple breach of trust constitutes a single crime (see Supreme Court Decision 2004Do810, Jul. 9, 2004).

The court below determined that each act of occupational breach of trust committed by the above defendants 1 and 2, the head of the branch office of the Victim's Republic of Korea Bank (hereinafter "Korea Bank"), and defendant 1, the vice head of the branch office of the Victim's Republic of Korea (hereinafter "Korea Bank"), and the non-indicted 1 Co., Ltd., in order to support the purchase fund of the non-indicted 1 Co., Ltd. following the purchase of the (name omitted) building from the non-indicted 2 Co., Ltd., and subsequently, each act of occupational breach of trust as stated in Paragraph 2 of the judgment in order to resolve the financial difficulties of the non-indicted 1 Co., Ltd., which became difficult to sell due to the provisional disposition prohibiting the disposal of the above building by the creditors of the non-indicted 2 Co., Ltd. after the purchase of the above building, each act of occupational breach of trust was committed in a series of process to resolve the non-indicted 2 Co., Ltd. of the Bank's bank's non-indicted 2 Co., Ltd., and therefore, the victim and beneficiary and

In light of the above legal principles and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to blanket crimes, as otherwise alleged in the ground of appeal.

C. As to property damage caused by occupational breach of trust

In the case of occupational breach of trust, the term "when property damage is incurred" includes not only a real damage but also a case where the risk of actual damage to property has been caused, and once the risk of damage has been caused, it does not affect the establishment of the crime of breach of trust even after the collateral has been acquired or the damage has been restored (see Supreme Court Decision 2005Do5996, Oct. 28, 2005).

According to the records, the non-indicted 1 Co., Ltd. took over the existing loan obligations of the non-indicted 2 limited company to our banks and received new loans from our banks as shown in paragraphs 1 and 2 of the judgment. The new loan is difficult to find the identity of the existing loan with respect to the name of the lender, the name of the loan, the principal of the loan, etc., and its purpose was also to raise the building purchase fund or the operating fund of the non-indicted 1 Co., Ltd. Thus, it can be seen that the new loan actually was used only when some of it was deposited into the account of the name of the lender and used to pay the interest on the existing loan and to pay the principal.

Considering the circumstances, since the act of occupational breach of trust is completed, even if a part of the new loan is used for the payment of the interest on the existing loan or the interest on the new loan, it shall not be deemed that the necessary expenses incurred in relation to the loan should be paid separately from the original loan, and it is only a deduction from the loan, and as such, it shall be included in the amount of damage to property caused by occupational breach of trust, insofar as the new loan was deposited in the account of the name of the lender, and its use can be used by the above Defendants, who are delegated with the management of the above account by Nonindicted Co. 1 or Nonindicted Co. 1 Co. 1.

In the same purport, the court below should consider the amount of property loss of each occupational breach of trust as the total amount of new loan in its holding in relation to a single comprehensive crime, and it is just to rate each occupational breach of trust as a violation of Article 3 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, and there is no error of law such as misunderstanding of legal principles as to property loss of occupational breach of trust, violation of the Act on the Aggravated Punishment,

D. As to Amendments to Bill of Indictment

The prosecutor applied Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes to the facts charged for occupational breach of trust and the facts charged for occupational breach of trust as stated in paragraph (2) of the judgment which originally prosecuted Defendant 2, on the ground that the amount of profit is between 500 million and 5 billion won, respectively, on the ground that the facts charged for occupational breach of trust and the facts charged for occupational breach of trust as stated in paragraph (1) of the judgment which subsequently indicted Defendant 2, but the court below appealed the judgment of the first instance which found Defendant guilty on the grounds of unfair sentencing, and applied for amendment of the applicable Act to the cases where the amount of profit is more than 5 billion won as stated in the above facts charged on the ground that each of the facts charged was in the judgment of the court of first instance, and applied for amendment of the applicable Act to the cases where the amount of profit is more than 5 billion won as stated in Article 3 (1) 1 of the above Act, and the court below recognized Defendant 2 guilty each of the above facts charged after permission. The court below's

Meanwhile, unlike the above facts charged against Defendant 2, the facts charged in breach of trust against Co-Defendant 3 in the judgment of the court below are as follows: (a) the sum of the amount of profit is more than five billion won but less than five billion won; and (b) it can be punished only as prescribed by Article 3(1)2 of the above Act; and (c) it cannot be applied Article 3(1)1 of the above Act; (d) there is no circumstance to see that the amendment to the indictment against Defendant 2 is contrary to equity in relation to Nonindicted 3. There is no reason to hold the appeal on this issue.

E. Regarding sentencing

In this case where Defendant 1 and 2 are sentenced to a minor punishment more than ten years of imprisonment, the argument of unfair sentencing cannot be a legitimate ground for appeal.

2. We examine the grounds of appeal on Defendant’s motion picture.

For the reasons indicated in its holding, the court below judged that the motion picture of the defendant had the intent to jointly process the act of occupational breach of trust as stated in Paragraph (b) of Paragraph (1) of the judgment and to illegally obtain it, and found the defendant guilty of the charge of occupational breach of trust against the defendant's motion picture. In light of the records, the court below's measures are just, and there is no error of law by mistake of facts

3. Conclusion

Therefore, all appeals are dismissed, and part of the detention days after the appeal is included in each original sentence against Defendant 1 and 2. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)