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(영문) 인천지방법원 2013.04.19 2012노3198

업무상배임

Text

All appeals by the Defendants and the Prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal (misunderstanding of facts and unreasonable sentencing)

A. Defendant A1) misunderstanding of facts, the Defendant, an owner of Ansan-si Lane Building No. 102 (hereinafter “instant commercial building”).

(1) provide a security and provide a victim K Saemaul Savings Depository (hereinafter referred to as “victim Savings Depository”).

(2) In obtaining a loan of KRW 220 million from the Plaintiff, the Plaintiff cannot be deemed to have obtained a loan of KRW 220 million from the Plaintiff’s Fund in consideration of the following: (a) the Defendant’s actual purchase price of the instant commercial building was falsely notified to M who is a certified public appraiser of the purchase price of KRW 350 million; (b) however, due to the characteristics of the instant commercial building transaction, the Defendant’s actual purchase price of the said commercial building was not fully reflected in the actual transaction price; and (c) the appraised amount was determined by the appraiser’s professional judgment by comprehensively taking into account various factors other than the purchase price into account; and (d) the fact that the Defendant did not raise any objection during the process of changing the debtor of the right to collateral security established in the instant commercial building into AD and AE, the Defendant cannot be deemed to have obtained a loan of KRW 220 million from the Defendant’s Fund. (b) The penalty of KRW 5 million against the Defendant of unfair sentencing

B. Defendant B (A) misunderstanding of facts) Defendant’s receiving a loan of KRW 50 million from the damaged safe was made through lawful procedures, such as a resolution by the board of directors of the victimized safe. Thus, it cannot be deemed unlawful, and thereafter, Defendant took measures to preserve claims in accordance with D’s instructions. On July 18, 2011, all principal and interest of the above loan were repaid on the same day, this part of the facts charged does not constitute occupational breach of trust, and the intention of intent to acquire unlawful acquisition is not recognized.

B. Even if the defendant's act constitutes an occupational breach of trust, the amount of damage shall be interest according to the interest rate on the loan principal of the above loan.