[2] The meaning and the method of proving "inward" as an element for establishing an aiding and abetting crime

[3] Whether the court can recognize the facts charged as aiding and abetting a co-principal ex officio without any changes in the indictment (affirmative with qualification)

[4] Whether an incomplete hearing on the ordinary circumstances may be used as a ground for appeal in a case where an unfair sentencing cannot be used as a ground for appeal (negative)

[5] The meaning of "when property damage is inflicted on property" in the crime of breach of trust and the standard for determining whether property damage has been inflicted

1. As to Defendant 1 and 2’s grounds of appeal

Since a stock company is an independent right holder separate from its shareholders, its understanding does not necessarily coincide, if a shareholder or representative director arbitrarily disposes of the company’s property for private purposes, such as offering it as collateral for a third party’s financing, then the crime of embezzlement cannot be exempted regardless of whether there was a resolution by the general meeting of shareholders or the board of directors regarding the disposal (see, e.g., Supreme Court Decisions 2005Do3045, Aug. 19, 2005; 2008Do8851, Dec. 23, 2010).

According to the reasoning of the judgment below, the court below determined that the act of Defendant 1 and Defendant 2, in collusion with Defendant 5, etc., entered into a contract with Defendant 1 to acquire the shares and the right of management of the non-indicted 1 corporation on July 28, 2009 and delivered them to the bond company by withdrawing cashier's checks from the bank account in the name of the non-indicted 1 corporation as collateral for the repayment of borrowed money and payment of some interest, etc. in the course of borrowing the acquired money from the bond company from Defendant 5, and then delivered them to the bond company.

Examining the above legal principles and records, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, as alleged in the grounds of appeal, or by misapprehending the legal principles on the requirements for establishment of occupational embezzlement and ex post facto

In the instant case where imprisonment for less than 10 years is sentenced, Defendant 1 and Defendant 2’s assertion that the sentencing of the lower court is unfair cannot be a legitimate ground for appeal.

2. As to Defendant 4’s ground of appeal

Inasmuch as an act of aiding and abetting under the Criminal Act refers to a direct and indirect act that facilitates the principal offender’s act while knowing the fact that the principal offender is committing a crime, the principal offender’s act of aiding and abetting the principal offender and the principal offender’s act of aiding and abetting and aiding and abetting the principal offender ought to have the principal offender’s intent to commit an act that constitutes a constituent element. However, since such intent is in depth, if the principal offender denies it, it is inevitable to prove indirect facts that have considerable relevance to the principal offender due to the nature of the object, and in such a case, there is no other way to reasonably determine the connection of the fact by using the detailed observation or analysis power based on normal empirical rule. In addition, in the case of an aiding and abetting offender, the principal offender’s intent is not required to reasonably recognize the specific contents of the crime realized by the principal offender, and it is sufficient to have dolusence or predictability (see Supreme Court Decision 2003Do6056, Apr. 29, 2005).

In addition, in a case where a court recognizes a minor criminal facts that have been prosecuted within the extent that the identity of the facts charged is recognized, the court can recognize the minor criminal facts ex officio without changing the indictment if it does not substantially disadvantage the defendant's defense in light of the progress of the trial (see, e.g., Supreme Court Decisions 2002Do995, Jun. 24, 2004; 2009Do7166, Nov. 24, 201).

According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance that, in collusion with the defendant 1 and 5 on July 28, 2009, the defendant 4 embezzled the total amount of KRW 8.25 billion of the funds of the non-indicted 1 corporation on July 28, 2009, and that, without any amendment to the indictment, the court below assisted the act of occupational embezzlement of KRW 8.25 billion of the funds of the non-indicted 1 corporation by introducing the bonds company to the defendant 1 and 5 and mediating it with the bonds company by introducing the bonds company to the defendant 1 and 5 and acting as the bond company's broker, and aiding and abetting the act of occupational embezzlement of KRW 8.25 billion of the total amount of the funds of the non-indicted 1 corporation on July 28, 2009.

Examining the aforementioned legal principles and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal, or by misapprehending the legal doctrine on the requirements for establishment of an aiding and abetting

In addition, according to the records of this case, although Defendant 4 denied the liability for the crime of this case committed intentionally or jointly in the court of first instance, even if the involvement is recognized, he did not assert as the grounds for appeal the aiding and abetting ex officio without any changes in the indictment. Thus, in light of the above, it does not seem that recognizing the aiding and abetting ex officio without any changes in the indictment as mentioned above in the court of first instance would have inflicted substantial disadvantage on Defendant 4's defense, and therefore, there is no error in the misapprehension of legal principles as to the changes in the indictment in the judgment of the court of first instance which maintained the judgment.

Furthermore, Defendant 4’s assertion that the sentencing of the lower court is unfair cannot be a legitimate ground for appeal in this case where imprisonment for less than 10 years was sentenced.

3. As to Defendant 5’s ground of appeal

Article 383 Subparag. 4 of the Criminal Procedure Act limits a case in which the determination of a sentence is deemed extremely unfair, and the grounds for appeal against a case which does not fall under the grounds for appeal are unlawful. As such, the grounds for appeal of unfair sentencing as to a case which does not fall under the grounds for appeal are unlawful. In such a case, the lower court, as a fact-finding court, did not properly examine all the circumstances such as the motive and method of the crime which are the conditions for sentencing against the Defendant, or the circumstances before and after the crime, etc. (see, e.g., Supreme Court Decisions 2008Do198, May 8, 2008; 2009Do12627, Feb. 11, 2010).

In this case where the court below sentenced Defendant 5 to three years of imprisonment, Defendant 5 asserted that, as the grounds of appeal, Defendant 5 transferred the shares and management rights of Nonindicted Co. 1 to Nonindicted Co. 2 on March 12, 2010 and paid the total amount of damages to Nonindicted Co. 1 with the proceeds of the transfer, the court below did not recognize it. However, Defendant 5’s ground of appeal purporting that the court below did not properly deliberate or did not take into account all circumstances before and after the crime, such as whether the amount of damages, which are unfair in sentencing or the conditions of sentencing, were repaid, and thus, it cannot be a legitimate ground of appeal in light of the above legal

4. As to the Prosecutor’s Grounds of Appeal

When property damage is inflicted on the crime of breach of trust, it includes not only a case of causing a real loss but also a case of causing a risk of actual damage to property. Determination on the existence of property damage shall be based on the legal judgment in relation to the former property condition of the principal, but also from an economic point of view. Even if the pertinent act of breach of trust is not recognized by the legal judgment, where the latter causes a real loss to the principal or a risk of actual damage to property, it shall be recognized from an economic point of view, and where the latter causes a risk of actual damage to the property, it shall be deemed that the latter causes a property damage, but where the risk of such damage is not caused by the risk of actual damage, it shall not be established (see Supreme Court Decisions 2009Do14585, Mar. 25, 2010; 201Do10525, Dec. 13, 201

According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance, which found Defendant 1 et al. not guilty on the ground that the act of preparing a promissory note in the name of the non-indicted 1 corporation as of August 19, 2009 was an abuse of power of representation, but Defendant 1 et al. was sufficiently aware or could have sufficiently known that such act was committed by abusing authority for the purpose of promoting the profit of the defendant 1 regardless of the purpose of profit-making of the company. Thus, the above act of issuing a promissory note by the defendant 1 et al. is not effective against the non-indicted 1 corporation, and there is no room for the non-indicted 1 corporation to bear liability for damages caused by the employer's responsibility or illegal act, and therefore, it cannot be deemed that the damage was caused to the property of the non-indicted 1 corporation or the risk of damage to the property.

In light of the above legal principles and records, the lower court did not err in its judgment by misapprehending the legal principles on promissory notes and occupational breach of trust, contrary to what is alleged in the grounds of appeal.

5. Conclusion

Therefore, all appeals by Defendant 1, 2, 4, and 5 and prosecutor's appeals by Defendant 1, 2, 3, and 5 are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)