[건축법위반,업무상횡령][공1991.7.15.(900),1826]
Where the judgment of the first instance court which found the defendant guilty of all the facts charged and thereby dismissed the prosecution as to the crime A, and the defendant appealed against the judgment of the appellate court which found the defendant guilty of the crime No. 20, and only the prosecutor dismissed the prosecution, and the appellate court reversed and remanded the part which dismissed the prosecution, and the appellate court, after which the appellate court reversed and remanded, acquitted the defendant as to the crime No. 20 (negative)
B. The case reversing the judgment of the court below on the ground that, according to the purport of the judgment of remanding the Supreme Court, the court below found the charge of tax evasion not guilty on the ground that there is no proof of the crime, but on the ground that there is no evidence supporting the basic facts and evidence preparation contrary to the logical rules and the empirical rules, thereby finding the guilty part of the facts guilty, thereby violating the rules of evidence
A. In a case where the first instance court, which found the Defendant guilty of all the facts charged, dismissed the public prosecution on the part of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, and found the Defendant guilty only for the crime of occupational embezzlement, before remanding the case where the Defendant filed an appeal on the part of the dismissal of public prosecution without filing an appeal, and the appellate court reversed and remanded only the prosecutor reversed and remanded the part of the dismissal of public prosecution, and the lower court, which was the appellate court, acquitted the Defendant on this part, the part of the crime
B. The case reversing the judgment of the court below on the ground that, according to the purport of the judgment of remanding the Supreme Court, the court below found the charge of tax evasion not guilty on the ground that there is no proof of the crime, but on the ground that there is no evidence supporting the basic facts and evidence preparation contrary to the logical rules and the empirical rules, thereby finding the guilty part of the facts guilty, thereby violating the rules of evidence
(a) Articles 364, 383, and 384(b) of the Criminal Procedure Act; Articles 308 and 391 of the same Act;
Supreme Court Decision 74Do1301 decided Oct. 8, 1974 (Gong1974, 8066) 76Do2962 decided Nov. 9, 1976 (Gong1976, 9470) 90Do1033 decided Jul. 24, 1990 (Gong190, 1830)
Defendant 1 and two others
Defendants
Gwangju High Court Decision 88No692 delivered on January 10, 1991
Supreme Court Decision 85Do1675 Delivered on November 8, 1988
The conviction part of the judgment of the court below against Defendant 1 shall be reversed, and this part of the case shall be remanded to the Gwangju High Court.
All appeals filed by Defendants 2 and 3 limited liability companies are dismissed.
1. Before examining Defendant 2’s grounds of appeal, the appellate court’s judgment prior to remanding the case, reversed the first instance judgment that found Defendant guilty of all the facts charged against the same Defendant, dismissed the prosecution and found Defendant guilty of only the crime of occupational embezzlement. Accordingly, it is evident that the Defendant, without filing an appeal, appealed the part of the dismissal of prosecution as to the part of the dismissal of prosecution by the public prosecutor, and remanded it to a party member, and then the appellate court acquitted Defendant of this part. Thus, the above part of the business which the appellate court found Defendant guilty prior to remand became final and conclusive as the Defendant did not appeal against this part (the original appellate court did not deliberate and decide that this part is not subject to the judgment). Ultimately, the appeal of this case, which the Defendant appears to have been dissatisfied with this part, is unlawful.
2. We examine the grounds of appeal as to Defendant 1’s occupational embezzlement.
According to the reasoning of the judgment below, the court below found Defendant 2 guilty of voluntary consumption of KRW 1,90,920 out of KRW 4,325,490 as stated in the judgment of the court of first instance, and of KRW 1,906,920 among the admission fees received from the head of the theater in collusion with Defendant 2, who was in custody for business purposes during the period as indicated in the judgment, and embezzlement of KRW 2,418,570, the remainder of KRW 2,269,360 during the period as indicated in the judgment of the court (the facts charged after the amendment of the indictment).
In addition, according to the records, the above literature promotion fund was collected pursuant to the Culture and Arts Promotion Act, and the Korea Culture and Arts Promotion Fund was designated as a fund-raising agency for the Association of Culture and Arts at the time, and the head of each theater was required to collect admission fees and pay it to the designated bank. In this case, in collusion with Defendant 2, the prosecutor recognized the fact of embezzlement of money as indicated in the judgment on the premise that the defendant, in collusion with Defendant 2, failed to make a false statement of admission fees and failed to make a return of admission fees, thereby evading taxes, such as value-added tax, etc., and that the literature promotion fund corresponding to the admission income was embezzled without paying part of it to the designated bank. The amount calculated according to a certain ratio based on the fact that the defendant et al. received the revenue by fraud. Accordingly, the court below recognized the above amount 2,269,360 won, which is part of the above amount, as the actual fund-raising amount and found guilty on this premise.
However, the evidence of the first instance court cited by the court below is not sufficient to acknowledge the above facts charged for the same reasons as stated in the reasons for reversal of the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes against Defendant 3 limited liability companies. In other words, among the trial evidence of the first instance court, the film screening certificate (Evidence No. 2) which appears to be the basis for calculating the collected amount recognized by the court below among the trial evidence of the court of first instance is written by Defendant 2, the manager of the above company, and Defendant 1 was prepared on his own name on the basis of the books attached to the company's glnet. The original books that Defendant 2 stated are not seized, and the contents of the books are also inconsistent, and the contents of the books are also contradictory, and according to each court statement of this type, they are presented with the witness inside the second instance court's prior to and after the second instance court's prior prosecutor's office and without any investigation or confirmation process. In addition, it is hard to find out that the above evidence was insufficient.
Nevertheless, the court below found Defendant 1 not guilty of the facts charged as to Defendant 1’s evasion of tax in accordance with the purport of the judgment of remanding party members on the grounds that there is no proof of the crime, but found Defendant 1 guilty of some of the facts charged as to the occupational embezzlement of this case which is based on the facts and evidence relations. Thus, the court below erred in the misapprehension of the rules of evidence and the rules of experience.
3. We examine the violation of the Building Act against Defendant 1 and limited liability companies of Defendant 3 (hereinafter “Defendant Company”).
If the evidence of the first instance court as cited by the court below is examined in light of the records, the court below's decision that found the defendants guilty of the violation of the Building Act as stated by the same defendants is just, and there is no illegality in the theory of lawsuit.
The theory of lawsuit is that the owner of the building in the judgment of the above defendants is not responsible for the violation of the Building Act in the case of the above violation of the Building Act. However, as long as the public contest relationship with the non-indicted 1, the owner of the building in the above violation of the Building Act is recognized, the defendant 1 cannot be exempted from liability as a co-principal, and as long as the above violation of the Building Act was committed in relation to the business of the defendant company, the defendant company is punished together with the joint penal provisions of Article 57 of the Building Act
4. Therefore, the part of the judgment below's conviction against Defendant 1 cannot be maintained as it is. This is related to the violation of the Building Act and the substantive concurrent crimes under the former part of Article 37 of the Criminal Act. Therefore, the entire conviction part of the judgment below against the same Defendant is reversed, and this part of the case is remanded to Gwangju High Court, which is the original judgment. All appeals by Defendant 2 and 3 limited liability companies are dismissed. It is so decided as per Disposition by the assent of all participating Justices.
Justices Yoon Jae-ho (Presiding Justice)