업무상배임
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 10,000,000.
The above fine shall not be paid by the defendant.
1. The summary of the grounds for appeal explicitly withdrawn the misapprehension of the legal principles stated in the petition of appeal on the first trial date.
A. Fact-misunderstanding victim F Co., Ltd. (hereinafter “victim Co., Ltd.”)’s acquisition of the debt to D Co., Ltd. (hereinafter “D”)’s G is only a natural consequence that occurred in the process of taking over D’s business.
In other words, since the victim company and D are substantially the same companies, the acquisition of such obligations causes damage to the victim company, there is no financial profit for the defendant, and there is no intention to commit occupational breach of trust against the defendant.
B. The sentence of the lower court (6 months of imprisonment and 2 years of suspended execution) against the illegal defendant is too unreasonable.
2. We examine ex officio the reasons for ex officio appeal prior to the determination of the reasons for appeal.
In the event a sentence of imprisonment without prison labor or any heavier punishment is imposed for a crime committed within three years after the execution of the sentence is completed or exempted, a suspended sentence may not be imposed (proviso of Article 62 (1) of the Criminal Act). However, according to the records of this case, the Defendant is deemed to have been sentenced to six months of imprisonment with prison labor for a violation of road traffic law at the Jung-gu District Court on March 31, 201 and completed the execution of the above sentence on June 17, 2011. Thus, the suspended sentence cannot be imposed for this case that occurred on August 14, 2012.
In this respect, the judgment of the court below which sentenced the suspension of execution can no longer be maintained.
However, despite the above reasons for reversal of authority, the defendant's assertion of mistake is still subject to the judgment of this court, and this is examined.
3. Determination on the grounds for appeal (misunderstanding of facts)
A. The inter-company and the stock company and the shareholders are not the same person as the existence of a separate corporate entity. Thus, one shareholder or lender is deemed to be a single shareholder or lender.