Violation of the Heavy Punishment, etc. Act (Misappropriation of Trust), occupational embezzlement

A defendant shall be punished by imprisonment for five years.

In light of the various sentencing conditions in the instant case, the sentence (four years of imprisonment) imposed by the lower court is too unfluent and unfair.

2. Determination

The defendant divided his mistake, the defendant seems to have contributed to the normalization of community credit cooperatives for victims around 2004, the defendant has no record of criminal punishment except for one fine due to drinking driving, the considerable part of the damage amount seems to have been used for the repayment of the borrower's interest to the amount illegally used, and the fact that the defendant made efforts to recover damage while repaying some of the damage amount (as approximately KRW 200,000), is favorable to the defendant.

However, the crime of this case is deemed to be unfair by taking into account the following factors: (a) the general manager of a financial institution, for a long period of about ten years, using the status of the Defendant who is a managing director of a financial institution in charge of lending the loans, and the nature of the crime is significant; (b) the total amount of damages is a large amount of KRW 3 billion and most damages are not recovered; and (c) such crime is likely to have a significant negative impact on the national economy by undermining the general trust in the financial system; and (d) the financial foundation of the community credit cooperatives is also at risk to the financial foundation of the community credit cooperatives; and (e) other factors of sentencing indicated in the argument of this case, such as the Defendant’s age, character, conduct, and environment, the punishment imposed by the lower court is too uneas

Therefore, the prosecutor's assertion of unreasonable sentencing is justified.

3. Conclusion

Therefore, the prosecutor's appeal is justified, and the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

Criminal facts and summary of evidence

The summary of facts constituting an offense and evidence recognized by this court is the same as that of the judgment of the court below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356 and 355(1) (a) of the Criminal Act, Articles 356 and 355(1) of the Criminal Act (as a whole, the crime of occupational embezzlement by omitting payment of loan repayment); Articles 356 and 355(1) (as a whole, Article 2-b) of the Criminal Act (as a whole, the crime of occupational embezzlement by withdrawing customer deposits entrusted, and Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356 and 355(2) of the Criminal Act (as a whole, Article 3

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, Article 50 of the Criminal Act, and Article 50 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) with the largest penalty for concurrent crimes

Judges Kang Gyeong-hee

Judges Kim Hyun-seok