Defendant

Prosecutor

The e-ray;

Law Firm Flara, Attorney Kim commercial-use

Seoul Central District Court Decision 2008 Godan7140 Decided March 19, 2009

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 2,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

The defendant shall be ordered to pay the amount equivalent to the above fine.

1. Summary of grounds for appeal;

Kwikset service is the principal obligation of the contract to promptly and kindly deliver. As long as the company having delayed delivery by having the defendant act as stated in the facts charged and let the customer recognize as if the company was not the defendant company but the company operated by the victim, it constitutes an act of damaging the victim's credit, i.e., "incompetence" or "incompetence", the court below acquitted the defendant. Thus, the judgment of the court below is erroneous by misapprehending the legal principles on credit in the crime of damaging credit, which affected the conclusion of the judgment.

2. Determination

A. Ex officio determination

Before the public prosecutor's judgment on the grounds for appeal, the public prosecutor examined ex officio prior to the judgment on the grounds for appeal, and the public prosecutor applied for changes in the indictment to add the charges of interference with business as stated below to the charges of interference with business as stated in the following facts, while maintaining the facts charged of credit damage as the primary charges. Since this court permitted this, the judgment of the court below cannot be maintained further

However, the reason for appeal against the primary facts charged by the prosecutor is still subject to the judgment of this court.

B. Determination of the Prosecutor’s argument

(1) Summary of the main facts charged

The Defendant: (a) was a person who runs the business of delivering and transporting to the name of “○○ Kwikset service” in Seoul Jung-gu; (b) was in possession of Nonindicted Party, who was an employee of “○○ Kwikset service” operated by the Nonindicted Party before operating the ○○ Kwikset service; and (c) was in possession of the receipt at will at the time of withdrawal from the above ○○ Kwikset service; (d) was in the delivery of the above ○○ Kwikset service; and (e) was in the delivery of the receipt for which the customer’s complaint is anticipated, the Defendant issued the receipt at will using the receipt paper from the above, in the name of the Nonindicted Party, the customer’s complaint to the victim; and (e) had Nonindicted Party, from March 12, 2008 to July 10, 2008, the Defendant delayed the delivery of the receipt in the name of the victim and delayed the delivery of the receipt to Nonindicted Party 6, who was the victim’s trust service.

(2) The judgment of the court below

The lower court determined that the crime of undermining credit under Article 313 of the Criminal Act requires that the credibility of a person be damaged by spreading false facts or by other fraudulent means, and that the “credit” here means the economic credit, i.e., human payment ability or social trust in the intent of payment. It is difficult to see that the Defendant’s act constitutes a case that does not constitute a crime, and therefore, the facts charged constitute a case that does not constitute a crime, and thus, acquitted the Defendant pursuant to the former part of Article 325 of the Criminal Act.

(3) Judgment of the court below

As the prosecutor asserts, even if Kwikset's main contents of the contract for Kwikset service are delivered promptly and kindly, such circumstance alone does not lead to the defendant's act that undermines the victim's economic credit, i.e., payment ability or the public trust in the intent of payment. Thus, the judgment of the court below is just and it is not recognized that there is an error

3. Conclusion

On the other hand, the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act, and it is again decided as follows after pleading.

The Defendant: (a) was a person running the business of delivering and transporting to the name of “○○ Kwikset Service” in Jung-gu, Seoul; (b) was an employee of “○○ Kwikset Service” operated by the Nonindicted Party prior to the operation of the ○○ Kwikset Service; (c) was infinite to the fact that the Nonindicted Party had been arbitrarily held and kept in custody at the time of withdrawal from the above ○ Kwikset Service; and (d) was in the delivery business of the above ○○ Kwikset Service; (c) was in the delivery business of the case of delivery for which the customer’s complaint is anticipated; (d) issued a receipt using the receipt form from his own discretion to the Nonindicted Party in the name of the customer; and (e) had the customer raise the customer’s complaint to the victim; and (e) from March 2, 2008 to July 12, 2008, the Defendant delayed the delivery of the receipt form to the victim, who was in the name of the victim’s business.

1. Statement by the defendant in this court;

1. Prosecution's interrogation protocol of the defendant (including the non-indicted 1's interrogation protocol)

1. The police statement of the Nonindicted Party

1. Receipts:

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

Articles 314(1) and 313 of the Criminal Act, selection of fines (including the fact that the mistake of a person is recognized, and the fact that there is no particular penalty power, other than once a minor fine is imposed)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The summary of the damage on credit, which is the primary charge of this case, is the same as the above 2-b. (1). This constitutes a case that does not constitute a crime as seen in the above 2-b. (3) and thus, a not-guilty verdict should be rendered pursuant to the former part of Article 325 of the Criminal Procedure Act. However, as long as the facts charged in this case are found guilty, a separate verdict of innocence shall not be rendered in the text.

Judges Yang Jae-young (Presiding Judge)