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(영문) 서울고등법원 2015.05.22 2015노1030

특정경제범죄가중처벌등에관한법률위반(배임)

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All appeals by the Defendants and the Prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Each sentence (one and half years of imprisonment with prison labor for Defendant A, two years of suspended execution, two years of imprisonment with prison labor for Defendant B, three years of suspended execution) sentenced by the court below to the Defendants is too unfasible and unfair.

B. Defendants 1) Of the evidence of conviction presented by the court below against the rules of evidence, the part of the evidence of conviction stated as follows: ① The statement of K and L in the court below is merely an emotional assertion or a vague trend; ② The fifth prosecutor's protocol of interrogation of the defendant B as to the defendant 2 that the above defendant did not know about the investment of this case, is due to the leading question by the prosecutor.

B) Misappropriation and intentional non-existence of intent (1) The Defendants trust the misunderstanding of the J’s erroneous explanation that the subject of the instant investment constitutes the fund product, and pursuant to the practice, the victim E (hereinafter “victim E”) is the victim foundation.

2) The Defendants decided to make the instant investment without the resolution of the board of directors.

(2) Each of the above types of penalties imposed by the lower court on the Defendants, are too unreasonable, by taking into account the facts charged to the investment of the instant case, such as directly attending the investment briefing session and visiting the site, and by taking account of G’s notarial act or receiving a provisional registration of its real estate.

2. Judgment on the defendants' assertion of mistake of facts

A. The court below found the defendants guilty of the facts charged in this case by compiling the evidence presented at the time. As examined below, the court below did not err by violating the rules of evidence against the defendants as alleged above.

1 K and L’s legal statement victim K and K, the secretary general of the victim foundation, in the original court’s court, filed a complaint against the Defendants on the ground that “The directors of the victim foundation and the pastors of the religious order are well-known with the Defendants, and there is no money in the situation where money has already been invested.”