Defendant

Prosecutor

Kim Jong-chul

Seoul Southern District Court Decision 2007Ma3950 Decided April 30, 2008

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

The court below reversed the judgment on the evidence and sentenced the defendant not guilty. Thus, the court below erred in the misapprehension of the rules of evidence, which affected the conclusion of the judgment.

2. Summary of the facts charged in this case

피고인은 서울 금천구 가산동 (지번 1 생략)에서 ‘ ○○○’를 운영하면서 도시바 운전기 1대 및 현상기, 소부기, 판꺽기(이하 ‘인쇄기’라 한다)를 소유하고 있었고, 위 인쇄기를 고양시 덕양구 관산동 (지번 2 생략)에 있는 공소외 2 운영의 인쇄업체에 보관하여 두고 있었다.

Around April 1, 2005, the Defendant transferred the above printing machine to the victim non-indicted 1 in KRW 135 million, and received the original 17,026,007 won as the first down payment around April 30, 2005, and the second down payment around June 2, 2005, respectively, as the second down payment of KRW 14,313,215 in KRW. On June 28, 2005, the Defendant agreed to deliver and deliver the above printing machine to the victim around June 28, 2005. Accordingly, the Defendant received up to KRW 12,270,860 as the intermediate payment around July 8, 2005.

Nevertheless, the Defendant expressed his intent to transfer the above printing machine to the above non-indicted 2 as business funds are required, and the above non-indicted 2 also concluded a sales contract for the above printing machine with the Defendant’s proposal, but decided to substitute the above non-indicted 2’s existing debt amounting to KRW 84 million for the purchase price. On December 20, 2005, the above non-indicted 2 violated the above duties in the above "○○○" around December 20, and thereby, transferred the above printing machine to the above non-indicted 2, thereby obtaining pecuniary benefits of KRW 84 million and causing damage equivalent to the same amount to the victim.

3. The judgment of the court below

(a) Facts of recognition;

Comprehensively taking account of the witness Nonindicted 2 and 1’s respective legal statements, the statement made by the prosecution of the defendant in the suspect interrogation protocol of the defendant (including Nonindicted 2 and Nonindicted 1 substituted part), sales contract, transfer confirmation, and written judgment (Investigation Record 149 pages), the defendant and the victim agreed to set the sales price of the instant printing machine at KRW 135 million and to simultaneously implement the payment of the purchase price and delivery of the printing machine. However, the defendant stated that he would deliver the printing machine to the victim in advance from June 28, 2005 when he received the down payment only from the victim, such as the charge, until June 28, 2005. The victim demanded delivery of the printing machine to the defendant from July 2005 to July 28, 2005, the defendant refused to deliver the printing machine to the defendant before receiving the balance due to the change of the payment of the printing machine, but the defendant continued to pay part of the remaining part of the printing machine to the victim on July 28, 2005.

B. Whether it constitutes an intentional breach of trust

As seen earlier, the Defendant intended to deliver the printing machine to the victim in advance on or around June 28, 2005. However, in light of the fact that the Defendant did not secure the balance of KRW 90 million at the time and would give up the delivery of the printing machine and the balance and deliver the printing machine in advance without securing the payment of the balance, and that there was no special benefit or circumstance to make such a promise, it is reasonable to deem that the Defendant was merely a speech that was done in favor of the victim for the convenience of the victim. Thus, even if the Defendant sold the printing machine twice to Nonindicted Party 2, it is difficult to deem that the Defendant had a duty to send the printing machine to the Defendant. Accordingly, even if the printing machine was sold twice to the Defendant, it is difficult to deem that the Defendant had the intention to sell the printing machine under a condition subsequent to the cancellation, and thus, it cannot be deemed that there was an intentional act contrary to the Defendant’s duty to receive the balance from Nonindicted Party 2 and return it from the victim at any time, and thus, it cannot be deemed that there was no intention to conclude that there was an intention to conclude that the Defendant made a sales contract.

4. Judgment of the court below

The crime of breach of trust is established when a person who administers another's business obtains pecuniary advantage or has a third party obtain it through an act in violation of one's duty, thereby causing damage to the principal. Here, "the person who administers another's business", the subject of which is "the person who administers another's business", refers to cases where a certain authority is exercised for the principal to assume the duty of managing and preserving another's property under a contract such as delegation, employment, etc., or where a person who cooperates in the preservation of another's property, for instance, is a person who has a duty to cooperate in preserving another's property, such as sale and purchase as a duty of cooperation, creation of a security right, etc., and where a person bears an obligation to cooperate in preserving another's property, it is not recognized as the principal's business, but it does not constitute another person's business (see Supreme Court Decisions 81Do3137, Feb. 8, 198; 9Do3219, Sept. 17, 199).

Therefore, first of all, as to whether the defendant was in the position of the person in charge of another's business as to non-indicted 1, the duty of the transferor (the defendant) to deliver the printing machine of this case to the transferee (non-indicted 1) as movable property is merely a civil obligation under the transfer contract, and it cannot be deemed as another person's business. Therefore, the defendant cannot be deemed as in relation to the transfer of the printing machine.

Therefore, since this part of the facts charged is not a crime or there is no proof of a crime, the judgment of the court below that acquitted the defendant is just, and the prosecutor's above assertion is without merit.

5. Conclusion

Therefore, since the prosecutor's appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Han Byung-chul (Presiding Judge)