특정경제범죄가중처벌등에관한법률위반(배임)
The prosecutor's appeal is dismissed.
1. Summary of grounds for appeal;
A. Although the Defendant offered the instant real estate, which was owned by the victim company, as security for personal interests without a resolution of the board of directors of the victim company, the lower court’s decision that G knew or could have known that the instant mortgage establishment was achieved without a resolution of the board of directors of the victim company is merely a trend, and whether the establishment of the instant mortgage becomes invalid due to abuse of power of representation can only be finalized after undergoing legal procedures. Thus, the lower court did not cause damage to the victim company on the ground that the instant mortgage establishment was null and void due to abuse of power of representation.
The decision is based on the error of fact.
B. At the time of the establishment of the instant right to collateral security, the appraised value of the instant real estate was KRW 4.4 billion, and the maximum amount of the claim of senior collateral security was KRW 2.2 billion, so there was considerable possibility that the dividend funds to be distributed to G of the mortgagee G of the instant right to collateral security could remain. Thus, the establishment of the instant right to collateral security could cause a specific risk of damage to
must be viewed.
In real auction, the instant real estate was sold in approximately KRW 2 billion and was distributed only to a senior mortgagee is an friendly and ex post facto circumstance, and thus, the lower court did not create a specific risk of damage to the victim company due to the instant right to collateral security.
The decision is based on the error of fact.
2. Determination
A. In full view of the developments leading up to the establishment of the instant right to collateral security, G’s intent on the enforcement of the instant right to collateral security, the current status of the existing right to collateral security and lien on the instant real estate, the progress of the auction procedure on the instant real estate, the actual sale price of the instant real estate, and the situation at the time of cancellation of the registration of the instant right to collateral security, the evidence submitted by the prosecutor alone.