A defendant shall be punished by imprisonment for not more than ten months.

However, the execution of the above punishment shall be suspended for two years from the date of the final judgment.

The defendant's appeal as to the second crime in the judgment of the court below is dismissed.

A. misunderstanding of facts and misapprehension of legal principles

(1) The point of occupational breach of trust as stated in Paragraph (1) of the judgment below

(A) At the time when the Defendant, as the representative director of Nonindicted Co. 1, had Nonindicted Co. 1 purchase the shares of Nonindicted Co. 2, it was not revealed that there was an enemy in Nonindicted Co. 2, and the Defendant did not actually operate Nonindicted Co. 2, and the Defendant received a report from the head of the fund team of Nonindicted Co. 1 on the specific status of Nonindicted Co. 2, such as non-performing loans which could not be recovered from Nonindicted Co. 2, and thus, it is not attributable to the intent of breach of trust against Nonindicted Co. 1.

(B) In other words, the Defendant: (a) was a company that sells the products produced or imported by Nonindicted Co. 2; (b) owned all the shares of Nonindicted Co. 1 and directly operated Nonindicted Co. 2; and (c) at the time, Nonindicted Co. 2 purchased the shares at par value; (d) it cannot be deemed that the Defendant failed to fulfill the duty of due care generally required for the purchase of the above shares; and (e) even if the Defendant purchased the above shares without closely examining the reasonable price of the above shares, it cannot be required to demand such duty of due care in light of the fact that Nonindicted Co. 2 was a company with capital of KRW 70 million; and (b) the value of the shares is not determined only by business performance, but also affected by other factors, such as corporate stability, growth, and activity. Therefore, it cannot be readily concluded that the Defendant’s purchase of the above shares was based solely on the fact that there was a hostile and irrecoverable non-performing loans to Nonindicted Co. 2 at the time of the purchase of the shares.

(C) In addition, the Defendant was required to purchase the shares of Nonindicted Co. 2 through the resolution of the board of directors of Nonindicted Co. 1, and even if not, there was no director opposing the purchase of the shares of Nonindicted Co. 1 at the time of holding the board of directors or gathering the opinions of the directors. As such, the mere fact that the above resolution of the board of directors was not made cannot be said to constitute a crime of breach of trust against the Defendant.

(D) Furthermore, insofar as the reasonable transaction price of the shares of Nonindicted Co. 2 at the time of the instant case was not revealed and there is no evidence to acknowledge it, it cannot be readily concluded that the pertinent transaction price of the shares is lower than their par value. Therefore, it is difficult to view that the Defendant suffered property damage on the shares of Nonindicted Co. 1 through the said purchase of shares.

(E) Therefore, the above occupational breach of trust constitutes a case where there is no proof of crime, and the court below found the defendant guilty, and the court below erred by misunderstanding the facts or by misunderstanding the legal principles of breach of trust, which affected the conclusion of

(2) The point of defamation as stated in Paragraph (2) of the judgment below

(A) The Defendant’s preparation and delivery of printed matter as stated in the judgment of the court below was sent a document stating that the Defendant’s series of acts, such as a series of acts against Nonindicted 1, the administrator of Nonindicted Company 1, and a request for dismissal against Nonindicted Company 1, in the civil procedure, which was punished against Nonindicted 1, is for the benefit of the Defendant, without any grounds, and thus, constitutes an act undermining the interests of the Defendant, and thus, it may no longer be used in the future. Accordingly, the Defendant’s notification of Nonindicted 1’s actual behavior to the above officers and employees of Nonindicted Company 1 is intended to answer the question after determining that it is the length of informing Nonindicted 1 of the fact that the Defendant was punished between Nonindicted 1 and Nonindicted 1, stating the reasons and contents of the legal strike, and thus, the content of the above printed matter was denied by the Defendant against the above officers and employees, and thus, the Defendant’s evaluation of the series of acts during that period does not constitute a publicly alleged crime of defamation.

(B) Even if the above inducements for domestic affairs contain the fact that Nonindicted 1’s reputation is undermined, the above document that the above officers and employees sent to the Defendant is a letter demanding the Defendant to release the Defendant’s acts. As such, as the Defendant sent the above inducements by reply to the above request for explanation, it cannot be deemed that there was an intentional intent for the Defendant to impair Nonindicted 1’s reputation, and the Defendant did not only have a conviction as to the charge of Nonindicted 1’s crime as stated in the above inducements, but also sent the above inducements in a state where the basis therefor is sufficiently secured. Therefore, the Defendant did not recognize that the facts indicated in the above inducements were false.

(C) Also, as the above inducement was a response to the above officers and employees who sent the above documents to the defendant, the defendant cannot be deemed to have been aware that the above officers and employees who received the above inducement were aware that they were spreading it to other persons, and there is no evidence to deem that the above officers and employees were spreading it to other persons. Therefore, the defendant's above act does not constitute a crime of defamation due to the lack of public performance.

(D) In addition, even if the defendant's act constitutes the element of defamation, in light of the circumstances in which the defendant sent the above printed matter, the defendant's act is not unlawful since it exercises one of the counter-defense rights (or counter-defense) against the above officers and employees' attack.

(E) Therefore, even if the above defamation constitutes a case where there is no proof of crime or no crime, the court below convicted the Defendant, thereby misunderstanding facts or misunderstanding the legal principles on the crime of defamation, thereby affecting the conclusion of the judgment.

B. Omission of hearing and unfair sentencing

In the determination of punishment on the crime of occupational breach of trust as stated in Paragraph (1) of the above holding, the court below should have deliberated on the crime of occupational breach of trust in accordance with Article 39 (1) of the Criminal Act, since the above crime of occupational breach of trust, which became final and conclusive on January 19, 201, and the latter part of Article 37 of the Criminal Act, and thus, should have deliberated on the crime of violation of the above Securities and Exchange Act, etc. in order to consider equality in the case where the above crime of occupational breach of trust is judged simultaneously with the above crime of violation of the Securities and Exchange Act, etc., but it is unfair for the court below to balance each of the offenses sentenced to the defendant (the crime of occupational breach of trust as stated in Paragraph (1) of

2. Determination

A. As to the assertion of mistake of facts and misapprehension of legal principles

(1) The point of occupational breach of trust as stated in Paragraph (1) of the judgment below

(A) The judgment of the court below

The court below found the above facts guilty for the following reasons.

(1) In the case of breach of trust, an act in violation of one’s duty includes any act in violation of a fiduciary relationship with the principal by failing to perform an act that is naturally expected under the provisions of law, the content of a contract, or the good faith principle, or by expectationing not to perform as a matter of course in light of specific circumstances, such as the content and nature of the business performed. In particular, in a case where the representative director, etc. of a company, etc. makes the company buy stocks of another company at a higher price, the act in breach of trust with the company is established. In this case, it is reasonable to view that the amount of damages incurred to the company is the difference between the market price of the relevant stocks and the sales price of the stocks at an appropriate price. In the case of trading unlisted stocks, if there is a normal transaction practice that reflects the objective exchange value, the market price shall be deemed the market price, and if there is no such transaction example, it shall be considered that the relevant laws and regulations provided for in the evaluation method apply different standards to each other according to the purpose of its establishment.

② 이 사건 증거들을 종합하면, ㈀ 공소외 2 주식회사는 피고인에 의해 1990. 6. 15. 설립된 이래 공소외 1 주식회사 제품의 원자재를 수입하여 공소외 1 주식회사에 판매하거나 공소외 1 주식회사에서 생산한 제품을 시중에 판매하는 공소외 1 주식회사의 자회사 역할을 담당하였고, 실제에 있어서 발행주식 140,000주 전부에 관하여 피고인과 그 일가 친척, 친구가 주주로 등재된 채로 피고인이 공소외 2 주식회사에 관하여 사실상 경영권을 행사해 온 사실, ㈁ 공소외 1 주식회사의 대표이사이던 피고인은 1996. 7. 18.경 총무팀장 이태균에게 지시하여 공소외 2 주식회사의 발행주식 140,000주 전부를 액면가 5,000원에 매수하도록 하였는바, 당시 공소외 2 주식회사는 1995년에 442,982,658원의 적자가, 1996년에 2,022,780,810원의 적자가 각 발생하는 상황이었고, 공소외 1 주식회사 자금부팀장인 공소외 3이 위 주식매수 전인 1996. 6.경 공소외 2 주식회사에 대한 현황보고서(공판기록 1권 473면 이하)를 작성하여 피고인에게 보고하였는데, 그 보고서에 의하면 공소외 2 주식회사 채권 중 회수불가능한 부실채권이 11억 6,600만 원에 달하고, 공소외 2 주식회사를 정상화시키기 위해서는 8억 원의 자금이 추가로 필요할 정도로 공소외 2 주식회사의 부실징후가 매우 뚜렷하였던 사실(피고인은 공소외 2 주식회사를 사실상 경영하고 있었기 때문에 이와 같은 사정을 잘 알고 있었다), ㈂ 그럼에도 불구하고 피고인은 이사회결의를 거치지도 아니하고, 공소외 2 주식회사에 대한 실사작업을 생략하였으며, 매수할 주식의 수, 매수시기, 위 주식을 매수하는 경우 문제점과 구체적 운용계획 및 주식의 적정가격 등에 대한 면밀한 검토도 하지 않고, 공소외 2 주식회사 주식의 적정거래가격에 관하여 전문회계법인이나 기타 기업평가기관에 평가를 의뢰하여 적정한 거래가격을 찾는 노력은 전혀 하지 아니한 채 공소외 2 주식회사의 주식매수를 강행한 사실, ㈃ 1996. 6. 30. 공소외 2 주식회사의 제무제표에 대하여 산동회계법인이 작성한 1996년도 감사보고서를 기준으로 공소외 2 주식회사 주식 1주의 가치를 상속세 및 증여세법에 의하여 평가하면 0원, 순자산가치법에 의하여 평가하면 1,297원(원심판결상의 ‘1,267원’은 오기로 보인다)이 산출되는 사실(공판기록 2권 685면), ㈄ 실제로 공소외 2 주식회사는 1998. 9.경 부도가 나 기업구조조정 대상기업으로 선정되었으나, 끝내 2001. 8. 24. 해산된 후 2001. 10. 26. 청산종결된 사실을 인정할 수 있다.

③ According to the above facts, Nonindicted Co. 2, who is in possession of control shares through relatives and friendship, is de facto subsidiary of Nonindicted Co. 1 and there was no business need to create it as a subsidiary by acquiring the shares of Nonindicted Co. 2. However, in light of the above legal principles, the crime of occupational breach of trust is established against the Defendant in light of the above legal principles, even though the Defendant, who owns the shares of Nonindicted Co. 2 and owned the shares of Nonindicted Co. 1, who had a much less than 5,000 won at the time, purchased the shares of Nonindicted Co. 2 at the face value, thereby promoting the personal interests of the Defendant and the persons related to the Defendant, who own the shares of Nonindicted Co. 2, and causing property damage equivalent to the difference between the face value and the reasonable market value (the above purchase of shares, Nonindicted Co. 1, by acquiring unlisted shares that cannot be commercialized as a cash amount of KRW 700 million, thereby property damage decreased).

(B) The judgment of this Court

In light of the evidence duly examined and adopted by the court below (excluding the statement of preparation of non-indicted 4 among the trial evidences of the court below, since it was not submitted as evidence at the court below), it is just in accordance with the above legal principles to find that the defendant violated his duties as representative director of non-indicted 1 corporation, and caused the non-indicted 1 corporation to purchase the shares of non-indicted 2 corporation at a higher price than the reasonable market price as stated in the court below's decision, and thereby, the defendant, etc. who is the shareholder of non-indicted 2 corporation, acquired the financial benefits equivalent to the difference (the judgment of the court below stated only as "non-indicted 2 corporation" but it is a clerical error) and convicted the non-indicted 1 corporation of the above crime that caused property damage equivalent to the difference (this is a clerical error in the judgment of the court below, and it is not a violation of the legal principles as seen above, or because the defendant did not have a duty of care to examine the proper market price of the shares of non-indicted 2 corporation, and it does not constitute the defendant's representative director of non-indicted.

However, in light of the statements in the court below's decision by non-indicted 4, as alleged in the above grounds for appeal, if the board of directors of the non-indicted 1 corporation at the time of the purchase of the above shares or gather opinions from the directors, it is deemed that the directors did not object to the purchase of the above shares (see, e.g., Supreme Court Decision 2005Do4915, Oct. 28, 2005). However, if the representative director of the corporation committed an act that causes damage to the company due to the violation of his duties and caused the risk of damage to the company, the crime of breach of trust is not established or the act of breach of trust is not justified (see, e.g., Supreme Court Decision 2005Do4915, Oct. 28, 2005). Thus, the above assertion denying the liability for the crime of occupational breach of trust on the ground that the directors of the non-indicted 1 corporation

Therefore, the above mistake of fact is without merit.

(2) The point of defamation as stated in Paragraph (2) of the judgment below

(A) The judgment of the court below

The court below also found the above facts of crime guilty as follows.

① 이 사건 증거들에 의하면, ㈀ 공소외 1 주식회사는 1999. 3. 19. 인천지방법원에 회사정리절차를 신청하여 위 법원은 1999. 9. 7. 정리절차개시결정을 함과 동시에 피해자 공소외 1(이하 ‘피해자’라 한다)을 관리인으로 선임한 사실, ㈁ 피고인은 2002. 4. 11.경 원심 판시 유인물을 작성하여 공소외 1 주식회사 및 계열사들의 임직원 약 309명에게 이를 우송하였는바, ⒜ 피해자가 정리계획안을 작성함에 있어, 공소외 1 주식회사의 보증채무를 부채로 보고한 것은 회사정리법에 부합하는 정당한 업무처리로서 부채를 과다계상한 것이 아니고, 공소외 1 주식회사의 부천공장부지 매각대금을 자산으로 계산하지 아니한 것은 위 부지가 개발제한구역 내에 있어 부지의 매각이 불투명한 관계로 그렇게 한 것으로 이를 두고 허위보고를 한 것이라 볼 수 없음에도(피해자는 위 부지가 매각되는 경우의 채무상환계획을 별도로 작성하여 이해관계인에게 설명한 바 있다), 피해자가 공소외 1 주식회사의 부채를 과다계상하여 공소외 1 주식회사의 채무상환능력을 축소시킨 허위의 서류를 작성하는 범죄를 저질렀다고 허위의 사실을 공연히 적시하고, ⒝ ⅰ) PNS(콘크리트혼화제) 기술(피고인이 유인물에 파워콘 기술이라고 말한 것은 위 PNS 기술을 말하는 것으로 보인다)은 세계적으로 특허가 말소되어 생산기술이 공개된 것으로 공소외 3 주식회사에서도 그 기술을 보유하고 있었는데, 공소외 4 주식회사가 공소외 3 주식회사를 인수하면서 공소외 3 주식회사의 PNS 기술을 사용해 사업을 하고 있는 것으로 피해자가 공소외 4 주식회사에 위 기술을 유출한 사실이 없고, ⅱ) 공소외 1 주식회사의 자회사인 공소외 5 주식회사가 물류비를 절감하고자 공소외 3 주식회사 내 공장 일부를 임차하여 공소외 5 주식회사 명의로 PACS(상수처리제) 제품을 생산하되, 다만 그 제조관리를 공소외 3 주식회사에 맡기고 있을 뿐 피해자가 공소외 3 주식회사에 PACS 제조기술을 유출한 사실이 없으며, ⅲ) 공소외 1 주식회사의 자회사인 공소외 6 주식회사가 공소외 7 주식회사에 대하여 토목·건물공사 및 기계설치공사만 해 주었을 뿐 비료조립기술을 유출한 사실이 없음에도, 피고인은 피해자가 PNS 기술을 공소외 4 주식회사에, PACS 기술을 공소외 3 주식회사에, 비료조립기술을 공소외 7 주식회사에 각 유출하는 범죄를 저질렀다고 허위의 사실을 공연히 적시하였으며, ⒞ 피해자는 공소외 4 주식회사와는 아무런 관련이 없고 공소외 4 주식회사가 공소외 1 주식회사를 인수하도록 공개경쟁입찰을 조작한 사실이 없음에도 불구하고, 피고인은 피해자가 주축이 되어 공소외 4 주식회사를 세워 공소외 4 주식회사가 공소외 1 주식회사를 인수하도록 공개경쟁입찰을 조작하는 범죄를 저질렀다고 허위의 사실을 공연히 적시한 사실, ㈂ 피고인은 피해자가 위 ⒜, ⒝ 기재와 같은 범죄를 저질렀다고 주장하며 피해자를 고소하였으나 인천지방검찰청 부천지청은 2001. 10. 26. 피해자에 대하여 혐의없음 처분을 하였고, 이에 피고인이 서울고등검찰청에 항고하였으나 2002. 1. 9. 항고기각 결정을 받았으며, 다시 불복하여 대검찰청에 재항고하였으나 2002. 3. 20. 재항고기각 결정을 받았고(이 시점 무렵에 위 유인물이 작성되었다), 다시 불복하여 헌법재판소에 위 불기소처분에 대한 헌법소원심판을 청구하였으나 2002. 7. 18. 심판청구기각 결정을 받은 사실, ㈃ 또한 피고인은 피해자가 위 ⒜, ⒝ 기재 범죄를 저질렀다고 주장하며 피해자를 상대로 인천지방법원 부천지원 2001가합1675호 로 손해배상 청구소송을 제기하였으나 위 법원은 2002. 8. 23. 피고인(원고)의 청구를 기각하는 판결을 선고하였고, 피고인이 이에 불복하여 항소하였으나 서울고등법원은 2003. 6. 3. 항소기각 판결(2002나52703호) 을 선고하여 그 후 위 판결이 그대로 확정된 사실을 인정할 수 있다.

② According to the above facts acknowledged, all of the facts constituting a crime committed by the Defendant, where the Defendant committed the crime of defamation, is false. The Defendant cannot be exempted from liability for the crime of defamation, since there are no other evidence supporting the above facts constituting a crime of defamation, depending on his vague trend, and it is difficult to view that there are reasonable grounds to believe that the Defendant is true.

(B) The judgment of this Court

Examining the evidence legitimately examined and adopted by the court below, the court below's finding of facts or the action that found the defendant guilty of the above crime is just, and the contents of the above inducement cannot be deemed to have recorded the victim's evaluation of his acts, not the statement of specific facts, as asserted in the grounds of appeal. Further, even if the above inducement was prepared and sent in the response form to the document of "an act detrimental to the interests of the company" of the above officers and employees sent by the above officers and employees, it is acknowledged that the defendant had the intent to impair the victim's reputation and had the awareness of the falsity of the above inducement. Since the defendant sent the above inducement to the above officers and employees, as long as it was possible for the above officers and employees to spread it, the public performance is recognized without relation as to whether the above officers and employees could spread it, and even if the defendant's act was conducted in the self-defense level of attack against the above officers and employees, it cannot be deemed that the defendant's act constitutes a lawful means or act beyond the above 300 persons' right to defense.

Therefore, there is no reason to assert the above mistake of facts.

B. On the argument of inappropriate sentencing and incomplete hearing

(1) Sentencing the crime of occupational breach of trust as stated in Paragraph (1) of the judgment below

The crime of occupational breach of trust was committed by allowing the defendant to purchase shares of the non-indicted 2 corporation, which he actually controlled in violation of his duties as the representative director of the non-indicted 1 corporation, at a high price, so that the defendant acquired a significant benefit directly and indirectly, and caused property loss to the non-indicted 1 corporation, and thus, the case or crime is somewhat weak since the non-indicted 1 corporation became a cause of de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto, but on the other hand, the defendant did not have contributed to the above company while operating the non-indicted 1 corporation. At the present time, the defendant is in a situation where he was unable to lose his previous property with the non-indicted 1 corporation and the company including the non-indicted 1 corporation, and the above crime of occupational breach of trust appeared to be against the judgment of the court below. The above crime of occupational breach of trust was sentenced to imprisonment with prison labor for more than 10 years on September 20, 2000, and the above judgment of unfair sentencing was finalized.

(2) Sentencing the crime of defamation as stated in Paragraph (2) of the judgment below

However, the above crime of defamation was committed during the repeated period after the defendant was sentenced to one year to imprisonment with prison labor due to the violation of the Securities and Exchange Act and completed the above sentence on March 10, 2001. However, according to the company reorganization procedure, when the defendant was deprived of management right of the above company according to the company reorganization procedure, the non-indicted 1 et al. was gathered as a false fact and damaged the honor, and further, the liquidation court made a false statement of the fact that the defendant made an illegal solicitation with the non-indicted 1, thereby causing a single judicial uncompetence. Thus, if considering all sentencing conditions of the above case, such as the defendant's age, character, environment, criminal record, criminal record and the circumstance and result after the crime, the sentence imposed by the court below on the above crime of defamation should be judged to be appropriate and it is not reasonable, and the above assertion of unfair sentencing is not justified.

3. Conclusion

Therefore, since the part of the judgment of the court below as to the crime No. 1 of the judgment of the court below cannot be maintained as it is on the ground of the defendant's appeal, it is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows after pleading. Since the defendant's appeal as to the part of the crime No. 2 of the judgment of the court below

Articles 356 and 355(2) of the Criminal Act

1. Handling concurrent crimes;

The latter part of Article 37 and the first part of Article 39(1) of the Criminal Act (trade between the crime of sale and the violation of the Securities and Exchange Act of the first head which has become final

1. Suspension of execution;

Article 62(1) of the Criminal Act (Taking into account the same points as the reasons for reversal in the preceding paragraph)

It is so decided as per Disposition for the above reasons.

Judges Jin Man (Presiding Judge)