특정경제범죄가중처벌등에관한법률위반(배임)
1. The part of the lower judgment against Defendant A is reversed.
Defendant
A shall be punished by imprisonment with prison labor for ten months.
except that this judgment.
1. Of the facts charged in the instant case, the lower court: (a) obtained a loan of KRW 7 billion at the interest rate of 9.5% per annum from the YF and the ASEAN Savings Bank on August 6, 2012 by the Defendants in collusion with the Defendants (hereinafter “victim Company”) at the interest rate of 9.5% per annum; and (b) again lent it to Defendant A at the interest rate of 8.5% per annum; (c) thereby, in violation of Defendant B’s occupational duties, the lower court obtained profits equivalent to KRW 7 billion per annum from Defendant A and caused the victim Company to incur damages equivalent to the same amount.
Only one percent (=9.5%) of the year (=9.5% - 8.5%) of the interest in the relation of the crime was found not guilty on the grounds of the judgment, and only the defendants appealed the guilty portion, and the prosecutor did not appeal.
In such a case, the portion of innocence as well as the portion of acquittal on the grounds of indivisible principle is brought to the trial court. However, since the part of innocence was already out of the object of attack and defense between the parties, it cannot be judged again by the court (see, e.g., Supreme Court Decisions 2004Do5014, Oct. 28, 2004; 2009Do12934, Jan. 14, 2010). Therefore, the conclusion of the judgment of the court below is followed with respect to the part of innocence on the grounds against the defendants, and it is not judged separately in the trial court.
2. Summary of the Defendants’ grounds for appeal
A. In light of the fact that the victim company is a family company of the defendant A, the defendants are mechanically in accordance with the interest rate publicly notified by the National Tax Service, and the victim company profits much more than the interest difference due to the loan of this case, etc., the intent of breach of trust and illegal acquisition of the difference in the loan interest are not recognized to the defendants.
In particular, the lower court shall lend the instant loan on the grounds of the motive, circumstance, etc. of the loan and loan.