특정경제범죄가중처벌등에관한법률위반(횡령)등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for three years.
Provided, That the above punishment shall be imposed for a period of four years from the date this judgment becomes final and conclusive.
1. The gist of the grounds for appeal and the prosecutor asserted that all of the Defendant and the prosecutor were misunderstanding the facts and misapprehending the legal doctrine regarding the crime of occupational breach of trust.
A. Defendant 1) misunderstanding the legal doctrine, the victim F Co., Ltd. (former trade name: E; hereinafter “F”) is obliged to pay at least KRW 900 million to H (hereinafter “H”). As such, the victim F’s crime of occupational breach of trust is not established against KRW 345 million borrowed by the Defendant from H among KRW 9.6 million he remitted to H.
The victim G Co., Ltd. (hereinafter “G”) is not a crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter “Aggravated Punishment, etc.”) since it is possible for the victim G to claim the amount remitted to H on behalf of F as necessary expenses for the ker’s money business, and there is no risk of damage to the victim G.
2) The accounting of a misunderstanding loan does not constitute a violation of duties, as it aims to achieve the victim F’s operating profit and to secure asset soundness, and thus, it does not constitute a violation of a fiduciary relationship with F.
H’s reasonable cost for services to be paid by the victim F, excluding value added tax, is KRW 1.626 billion in total (i.e., 90 billion production cost for advertising film production x KRW 15 million in total for each month’s reasonable production cost x KRW 1.5 million in total x 24 months in the period of carrying out 1.64.5 billion in total (i.e., 96 billion in breach of trust of the victim F). If value added tax is included, the sum of the charges charged for breach of trust exceeds KRW 1.6 million in total (i.e., KRW 698.5 million in breach of trust of the victim G victim G 1.6 million in total).
The victim F has reduced the overall value of property or increased the risk of property;
It is difficult to see it.
In the idea that the defendant should prevent the normalization and abolition of the victim F's business management, he/she was accounted for as a loan, and did not take personal benefits.
The defendant's intention of occupational breach of trust is not recognized.
(iii)..