A defendant shall be punished by imprisonment for six months.

However, the execution of the above punishment shall be suspended for one year from the date this judgment becomes final and conclusive.

A. Defendant

1) misunderstanding of facts and misapprehension of legal principles

The Defendant entered into a contract to transfer 50,000 shares (hereinafter “instant shares”) of Nonindicted Co. 2 (hereinafter “instant company”) to the victim Nonindicted Co. 1 for KRW 500 million (hereinafter “instant contract”). On December 31, 2010, the Defendant agreed to purchase the shares again upon the victim’s request (hereinafter “instant agreement”), and Nonindicted 3, the victim’s agent, requested the Defendant to purchase the shares again in accordance with the instant agreement. According to the instant agreement, when exercising the right to request purchase of shares, the ownership of shares belongs to the Defendant and the Defendant is merely a debtor liable for paying the purchase price of shares to the victim, and the Defendant does not constitute a person in charge of another’s business. In addition, as long as the Defendant, who was the representative director of the instant company, already aware of the fact when transferring the shares of the instant company to the victim, as long as the Defendant had agreed to do so, it is difficult to view that the Defendant had no economic value to pay the victim the shares for breach of trust.

Therefore, even if the defendant did not establish the crime of breach of trust, the judgment of the court below that recognized the crime of breach of trust is erroneous and erroneous.

2) Unreasonable sentencing

The punishment of the lower court (two years of suspended execution for six months of imprisonment and one hundred and twenty hours of community service) is too unreasonable.

(b) Prosecutors;

The sentence of the court below is too unhued so as to be unfair.

2. Determination:

A. As to the Defendant’s assertion of mistake and misapprehension of legal principles

1) Relevant legal principles

The transfer of shares before the issuance of share certificates takes effect only by the agreement between the transferor and the transferee. As such, upon the conclusion of a contract of stock transfer, the transferor loses the shares which become the object of the transfer, and takes over them to become its shareholders. As can be seen, the transferee may request the company which issued the share certificates to certify that he/she has acquired the shares, barring any other special circumstances, and the transferor is entitled to exercise his/her rights as a shareholder in relation to the company. Meanwhile, the transferor is not obliged to obtain full rights or interests with respect to the shares which are the object of the transfer under such contract, unless otherwise agreed in the contract of sale, donation or other bonds which are the cause of the transfer of shares. In addition, the transferor cannot be held liable for infringement of the rights of the transferee as a shareholder of the second transferee by re-transfer to a third party to whom the already transferred shares are transferred to a third party within the extent of 10th of the date of transfer of shares and thus, the transferee becomes subject to the notification of the transfer of shares by the transferee to such third party (hereinafter referred to as “third party”).

(ii) the facts of recognition

According to the evidence duly adopted and examined by the court below, the defendant entered into the contract of this case with the victim non-indicted 1 on October 23, 2009 that sells the shares of this case to the victim for KRW 500 million. The defendant agreed to purchase the shares of this case after December 31, 2010 with the special agreement that the defendant would purchase the shares of this case with KRW 100 million plus KRW 500 million. The defendant was fully paid KRW 500 million from the victim but did not take the procedure of transferring the list of shareholders or notifying the transfer of the shares. Non-indicted 3, the victim's agent, requested that the defendant acquire the shares of this case to the victim again in accordance with the agreement of this case on March 2012, the defendant did not pay KRW 400,000,000 to the victim for KRW 1401,000,000,000,000,000.

3) Whether the defendant is a person who administers another's business

The following circumstances revealed by the fact of recognition: ① Transfer of shares before issuance of share certificates means the agreement between the parties’ expression of intent to transfer ownership of all the transferor and transferee shares to the transferee. When the contract of this case is concluded between the defendant and the victim, the defendant agreed to the effect that, “At the request of the victim after December 31, 2010, the defendant purchases shares equal to 10% of the purchase price of the shares purchased by the victim," and did not make any particular agreement as to the attribution of ownership of the shares (the defendant asserts that such agreement exists, but Non-Indicted 3 does not recognize the existence of such agreement consistent with the investigation agency from the court below to the court below). ② The defendant would have to again conclude the agreement on transfer and acquisition of shares of this case to the defendant pursuant to the agreement of this case, which would have been unfavorable to the victim, even if the defendant would have failed to acquire ownership of the shares of this case as the result of the victim’s expression of intent to transfer ownership of the shares of this case. Furthermore, if the defendant would not have been able to acquire ownership of the shares of this case.

Therefore, the defendant still remains with the duty to set up against the third party by the victim, who is the owner of the shares of this case, so the defendant constitutes a person who administers another's business in the course of the crime of breach of trust, and thus, the defendant and his defense counsel'

4) Whether the defendant acted in violation of his duty

The defendant was fully paid KRW 500 million from the victim, but the list of shareholders or the fact that he did not take the procedure of notification of the transfer of shares with respect to the shares sold to the victim is as seen earlier. According to the above legal principles, the defendant's obligation to bear the victim under the contract of this case is provided with the third party's requisite for setting up against the transfer of shares in order to enable the victim not only the company of this case but also the third party to oppose the transferee of the shares. Thus, even if the defendant can be deemed to have been notified of the transfer of shares as a representative of the company of this case, and as a matter of course, he can be deemed to have been notified of the transfer of shares to the company of this case, the defendant still bears the duty to set up against the third party in accordance with the contract of this case unless it is notified or approved by the certificate with a fixed date. Accordingly, the defendant's transfer of all shares of this case including the shares of this case to the non-indicted 4 constitutes a double transfer of shares in relation to the management right of the victim and thus, the defendant and the defense counsel do not accept this part.

5) Whether the Defendant either acquired property benefits or inflicted damage on the victim

The defendant transferred the shares and management rights of the company of this case including the shares of this case to non-indicted 4, and the reason for acquiring the company of this case was that the company of this case had the brand called '○○○ coffee', and it was thought that there was a winning in the coffee market (Evidence No. 98 pages). Thus, the judgment of whether or not property damage was inflicted on the crime of breach of trust should be judged in substance from an economic point of view. Although the company of this case was in a state of capital erosion but it cannot be deemed that there was no economic value with the above company, the economic value of the shares of this case can be acknowledged. Thus, the defendant and his defense counsel's assertion on this part

6) Whether the criminal defendant can be found to have the criminal intent of breach of trust

As long as the Defendant made a double transfer of the instant shares to Nonindicted 4 and made it impossible to oppose Nonindicted 4 on the fact that the Defendant acquired the instant shares without meeting the requirements for setting up against the victim under the instant contract, the Defendant cannot be deemed to have committed the crime of breach of trust solely on the ground that the Defendant was aware of the intent to commit the crime of breach of trust, and that the Defendant promised to return the purchase price of the instant shares to the victim, and thus, the Defendant and his defense counsel cannot be

7) Sub-committee

Therefore, the defendant can sufficiently recognize the crime of breach of trust, and it cannot be said that there is an error of misunderstanding facts or misunderstanding legal principles in the judgment of the court below that share the same conclusion, so the defendant and his defense counsel's mistake of facts and

B. As to the allegation of unfair sentencing by the defendant and prosecutor

In light of the Defendant’s nature of the crime of this case’s crime, although the Defendant did not seem to be less vulnerable to the Defendant’s crime of this case’s crime, the Defendant agreed to the Defendant’s first instance trial only with the victim, and since the instant company was in a state of capital erosion, it appears that the value per share of the instant shares was less than KRW 5,00,00, and other circumstances that form the conditions for sentencing as indicated in the instant case’s case’s sentencing, such as the Defendant’s age, character and conduct, environment, family relationship, circumstances after the crime, etc., the sentence imposed by the lower court is somewhat unreasonable, and thus, the Defendant’s and his attorney’s allegation of unfair sentencing is reasonable, and the Prosecutor’

3. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below shall be reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it shall be decided again after the pleading as follows (as long as the appeal by the defendant is accepted and the judgment of the court below is reversed, the

Article 355(2) and (1) of the Criminal Act (Selection of Imprisonment)

1. Suspension of execution;

Article 62(1) of the Criminal Act (Consideration of Sentencing favorable to the foregoing)

Judges Choi Jong-il (Presiding Judge)