(영문) 서울중앙지방법원 2020.12.22. 선고 2019고단8250 판결

From January 1, 2018 to June 30, 2018, the Defendant served as the head of the marketing department at the Gangnam-gu Seoul building and the victim Dispute Resolution (hereinafter referred to as the "victim Company") in Seoul and the victim Dispute Resolution (hereinafter referred to as the "victim Company") and has been in charge of the business of selling or subleting the above tables to an enterprise that intends to advertise another person's Internet site Ebrog (hereinafter referred to as "brog") after purchasing or renting it.

As above, the Defendant, as an employee of the victim company, violated his duty to trade the tables on behalf of the victim company, and thus was willing to sell or sublease the tables that he purchased or leased by using the equipment and human resources of the victim company following the victim company.

Around January 22, 2018, the Defendant sold or sub-leaseed the tables that he personally purchased from the above victim company's office to the KCAF and received KRW 900,000 from that time to June 26, 2018 by using the equipment and human resources of the victim company for 73 times in total, as shown in the separate crime list between the victim company and the victim company from June 26, 2018, the Defendant acquired the amount of non-property benefits equivalent to the cost of the victim company's equipment and human resources and suffered losses in the amount of the victim company.

2. Occupational embezzlement;

On June 30, 2018, the Defendant, while working as the team leader of the marketing department of the above company at the victim company’s office as stated in the above Paragraph (1) around June 30, 2018, he embezzled the above Nompt North Korea and mobile phones of the amount equivalent to the market value of 155,000 won, which is the victim company, for the victim company, while he kept one Samsung mobile phone of the amount equivalent to the market value of 139,000 won, for the victim company, at the victim company’s office.

Summary of Evidence

1. The defendant's legal statement (as at the trial date of the nine or ten times) ;

1. Each legal statement of a witness G, H, I, and J;

1. The police statement of K;

1. Business registration certificate and full certificate of registered matters;

1. Each employment contract;

1. AD details of transactions, details of deposits and transactions, details of transactions by account, and outputs from H accounts;

1. Articles printed on the Internet screen and e-mail output;

1. Details of conversation with Kakaoo;

1. Blue transfer contract;

1. Each investigation report (F personnel, telephone conversations, L and M with persons in charge of telephone conversations, telephone call, the president of the company involved in suspect transactions, and hearing None's statement);

Application of Statutes

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

Articles 356 and 355(2) of the Criminal Act (the occupation of occupational breach of trust, universality of penalty), Articles 356 and 355(1) of the Criminal Act (the occupation of occupational embezzlement, the choice of imprisonment)

1. Aggravation 1);

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act

Reasons for sentencing

The nature of the crime is not good, even though the defendant was under suspension of the execution of imprisonment with prison labor due to other crimes (see each state 1). However, the defendant shows the appearance of recognizing and opposing all the crimes that are late behind, and the victim company did not have to punish the defendant. The amount of embezzlement damage is a relatively small amount of money that is merely 30,000 won for the defendant’s age, character and behavior, family relation, home environment, motive and means of the crime, and circumstances after the crime. The punishment as set forth in the order is determined by comprehensively taking account of all the factors of sentencing as seen above, including the above circumstances and the defendant’s age, character and behavior, family relation, home environment, motive and means of the crime, and the circumstances after the crime.

Judges

Judges Bo Jae-cheon

Note tin

1) On December 12, 2018, the Defendant was sentenced to a suspended sentence of three years on December 27, 2018 by the Daegu District Court for the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter “Fraud”) (hereinafter “related crime”). both the prosecutor and the defense counsel seek application of Article 39(1) of the Criminal Act on the premise that the pertinent crime and the crime in question are concurrent crimes under Article 37 of the Criminal Act. However, if the crime for which judgment has not yet become final and conclusive cannot be judged concurrently with the crime for which judgment has already become final and conclusive, it is reasonable to interpret that the latter part of Article 37 of the Criminal Act cannot establish concurrent crimes under Article 39(1) of the Criminal Act, and that the sentence may not be mitigated or exempted (see Supreme Court Decision 2014Do469, Mar. 27, 2014); the Defendant was sentenced to imprisonment with prison labor of the Busan District Court on August 27, 2017.

Therefore, since the crime in the judgment was not simultaneously sentenced to the judgment from the beginning with the crime related to this case, the crime in the judgment and the related crime of this case are not related to the latter concurrent crimes of Article 37 of the Criminal Act, and Article 39 (1) of the Criminal Act cannot be applied to the crime in the judgment.