Defendant 1 and two others

Defendant 1, Defendant 2, and Prosecutor

Kim Jong-tae

Attorney Kim Young-young et al.

Seoul Central District Court Decision 2005Gohap726 Decided December 30, 2005

The part of the judgment of the court below concerning prosecuted cases shall be reversed.

Defendant 1 shall be punished by imprisonment for four years, by imprisonment for three years, and by imprisonment for three years, and by imprisonment for one year.

The number of days of detention prior to the pronouncement of the judgment below shall be 181 days per defendant 1, and 165 days shall be included in the above punishment against defendant 2.

However, with respect to the defendant 3, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

1. Summary of grounds for appeal;

A. Defendant 1 and Defendant 2

(1) Defendant 1

In light of the various sentencing conditions shown in this case, including the fact that the defendant is the first offender and is against his mistake, the punishment sentenced by the court below (three years of imprisonment) is too unreasonable.

(2) Defendant 2

(A) misunderstanding of facts

Around March 2004, upon Defendant 1’s request, the Defendant opened and issued a passbook in the name of the Defendant, and around June 2004, Defendant 1 knew from Nonindicted 1 that he received KRW 80 million in the name of a deposit deposit in connection with the establishment of a chain store from Defendant 1 to the above passbook. Around September 2004, Defendant 1 instructed Defendant 3 to delete items of electronic pre-purchase and purchase at Defendant 1’s request, and there was no fact that Defendant 1 and Defendant 1 conspired to commit all the crimes as indicated in the judgment of the court below, or was fully involved in the remaining crimes except the aforementioned part of which was partially involved.

(B) Unreasonable sentencing

In light of the various sentencing conditions shown in this case, the punishment sentenced by the court below to the defendant (two years and six months of imprisonment) is too unreasonable.

(b) Prosecutors;

(1) misunderstanding of facts and misapprehension of legal principles

The chain store shop shop owners were conducted through a normal process through a due diligence by the company. Therefore, if the defendants ordered the sale discount as argued in the motive for the computer manipulation, they should have completed the due diligence by reporting the company in advance or submitting data for the discount of sale to each chain shop owners, and have processed normally through the company's internal settlement process. However, the defendants accepted the request of the chain shop shop owners without such procedure and registered the false total sales discount amount and the pre-sale discount amount as claimed by them in the electronic computer system, and then deleted only the pre-sale discount. As a result, if the computer processing was not revealed, the company would not cause payment to the company if the chain shop owners claimed the discount amount equivalent to the amount of the electronic manipulation, and even in the case of the computer processing, the damage amount caused the company to suffer property damage, the court below erred in the misapprehension of legal principles as to credibility or credibility of the amount of damage caused by the computer processing, and there is no reasonable evidence to prove that the amount of damage was not guilty.

(2) Unreasonable sentencing

Defendant 1 and Defendant 2: (a) the lower court acquitted Defendant 1 and Defendant 2 on the part of occupational breach of trust, which should be found guilty by misunderstanding the above facts and misapprehending the legal doctrine; and (b) the sentence imposed on the said Defendants by taking into account only the sentencing conditions specified in the remaining convictions, is too un

2. Determination

A. Judgment on the assertion of mistake of facts by Defendant 2 (hereinafter in this paragraph referred to as “Defendant 2”)

Defendant 1 and Defendant 2, who had been aware of the following facts regarding Defendant 1’s criminal act, had been committed in the name of Nonindicted Company 1 and was unable to obtain money from Nonindicted Company 1 to Nonindicted Company 1’s bank account, and offered to Defendant 2 all of the instant criminal acts, such as obtaining money from Nonindicted Company 1 for the first time until the opening of a fixed-term agency, with the knowledge of the fact that it was difficult for Defendant 2 to obtain money from Nonindicted Company 1 to Nonindicted Company 3. The Defendant, who had been aware of the fact that it was committed in the name of Defendant 1, had been carried out by Nonindicted Company 4 and then, had 0 to 60 million won, with the intention that it was difficult for the Defendant to obtain money from Nonindicted Company 1 to Defendant 2 to receive money from Nonindicted Company 1. The Defendant, who had been aware of the fact that it was committed in the name of Nonindicted Company 1, 2000, and had been aware of the fact that it was committed in the name of Defendant 1 and Nonindicted Company 2.

B. Judgment on the prosecutor's misconception of facts and misapprehension of legal principles

(1) Of the facts charged against Defendant 1 and Defendant 2, the point of occupational breach of trust and the summary of the facts charged against Defendant 3

The defendants conspired to transmit the goods to another chain store in the course of the company's computer processing, and the company should pay the price for the goods to the chain store. The "pre-sale price" means that the chain store receives the goods from another chain store and the company should recover the price for the goods from the chain store. When settling accounts of the pre-sale price and the pre-sale price items, the above pre-sale price and the pre-sale price are always zero (0). Since the pre-sale price are based on the premise of normal operation of the goods, the above pre-sale price and the pre-sale price are based on the premise of normal operation of the goods, and therefore the company is in violation of its duties, even if there was a occupational duty to avoid damage to the company by manipulating the computer system;

around November 17, 2004, Defendant 1, at the office of the above (business name omitted). Defendant 1, as if he sent the above amount of goods to other chain stores in Busan, without having sent the amount equivalent to KRW 76,652,273, the company's stores (Nonindicted 3) to other chain stores, Defendant 1, as if he sent the above amount of goods, had the former sales and the former sales and input input input of the input. Defendant 3, by eliminating only the former purchase price of the above other chain stores in electronic computer system, had the latter store in Busan, obtain pecuniary benefits equivalent to the above amount of money, thereby causing property damage equivalent to the above amount of money to the company from December 26, 2004. From that time, until December 26, 2004, Defendant 1, as stated in the list of crimes (5) attached to the judgment of the court below, operated computer system over 12 occasions and caused each chain store owner to obtain financial gains equivalent to the total amount of KRW 489,233,140.

(2) Facts recognized

According to the statements of the court below and the court below, in case where the company compensates for the amount of damage caused by the discount sale at the chain store (three days) by the witness non-indicted 5's statement, etc., the company should determine the amount of sales at the chain store by data and determine the amount of the final reduction rate after obtaining approval from the head of the headquarters or higher with regard to the amount applying the rate of compensation agreed upon with the chain store in advance, and then reduce the sales discount amount from the company's chain store's account sales to the "sale discount" in the item item. However, since it was difficult for the company to treat the amount of the company's chain store as a normal discount due to the reason that the data related to the usual sales were not properly arranged, it was planned with the defendant 2 to resolve the above problem by manipulating the pre-sale and the pre-sale and the pre-sale and the pre-sale order of the company to the extent that the products are to be sold by the chain store's employees were moved from the chain store to other chain stores, Defendant 1 entered the above amount of the pre-purchase order to the company's.

(3) Summary of the judgment of the court below

The fact that the amount of computerized manipulation for each chain store was higher than the amount of lawful discount should be acknowledged in order to cause property damage to the company due to the computer manipulation. However, in the case of each chain store other than the chain store with the non-indicted 6 occupying the above crime list (5), the defendant 1 stated that the amount of electronic manipulation is equal to the amount of legitimate discount. There is no evidence to acknowledge that the amount of electronic manipulation for each chain store above is higher than the amount of lawful discount. In addition, in the case of chain store with the non-indicted 6 occupying, the defendant 1 stated that the amount of electronic manipulation was somewhat higher than the amount of reasonable discount for the employees in charge, and in fact, it is more likely that the defendant 1 made a statement that there is no evidence to prove that the amount of electronic manipulation was lower than the amount of other chain stores in the case of the non-indicted 6 occupying, the fact that the amount of electronic manipulation was relatively higher than the amount of the non-indicted 6's own opinion and that there is no other evidence to prove that the amount of electronic manipulation was less than the above non-indicted 6's opinion.

(4) Determination of party members

(가) 이 사건 전산조작의 동기에 관하여, 피고인 1은 검찰에서 ‘입점업체들에 대하여 세일행사할 때마다 그 때 그 때 매출할인을 해 주었어야 했는데, 시일이 지나 근거서류를 제대로 확인할 수 없게 됨으로써 몇 년 동안 매출할인에 대한 정산을 해주지 못하고 있는 상황에서 각 입점업체에서 주장하는 액수만큼 전산조작을 해주었다’라고 진술하였고(수사기록 594쪽), 원심 제8회 공판기일에서 재판장으로부터 전산조작이 2004. 9. 26.부터 같은 해 12. 26.까지 여러 차례에 걸쳐 행해졌는데, 한꺼번에 조작하지 않고 간격을 두고 띄엄띄엄 조작된 이유에 대하여 질문을 받자 “그 당시에 요청했던 사람들 아직도 요청안한 사람들도 있지만 공소외 3 같은 경우는 자기가 받아야 될 돈은 있는데 처리는 안해주고 본사에서 수금을 압박받지 않습니까？ 내것을 정리를 해줘야 입금을 시키지라는 명목에서 요청에 따라 정리가 되었던 것 같습니다”라고 답변한 점, 피고인 2도 검찰 2회 피의자신문시 피고인 1로부터 각 입점업체에서 주장하는 액수만큼 전산조작을 해달라는 부탁을 받았다고 진술한(수사기록 742, 743쪽) 점에 비추어, 피고인 1, 피고인 2는 위 범죄일람표(5) 기재 각 점주들의 요구를 그대로 받아들여 외상매출금을 감액할 목적으로 위와 같은 전산조작을 한 사실을 인정할 수 있다.

(B) The crime of occupational breach of trust is established when a person who administers another's business obtains economic benefits or has a third party obtain such benefits by acting in violation of one's duty and thereby causes losses to the principal. Here, "when losses are inflicted on property" includes not only cases where actual losses are inflicted, but also cases where risks of actual losses on property arise (see Supreme Court Decision 2003Do4382, Oct. 30, 2003). However, in light of the above, health issues are not handled as follows: (a) by using separate items, it is impossible for the company to confirm whether the reduced amount was legitimate by using the separate items; and (b) there is no possibility of a double claim on the books; (c) there is no possibility that the amount of electronic sales would have been reduced due to the increase in the amount of electronic sales to the extent that the electronic sales would have been caused by the increase in the amount of damages caused by the decrease in the amount of electronic sales to the extent that the electronic sales would have been caused by the decrease in the amount of the credit sales to the company.

(C) Nevertheless, the court below acquitted the above facts charged on the ground that there was no proof of the crime. Thus, the court below erred by misapprehending the facts or by misapprehending the legal principles on property damage of the crime of breach of trust.

3. Conclusion

Therefore, the prosecutor's appeal against Defendant 1, Defendant 2, and Defendant 3 among the judgment below is justified, and the part of the judgment below against Defendant 1 and Defendant 2 regarding concurrent crimes under the former part of Article 37 of the Criminal Act cannot be exempted from reversal. Thus, without examining the grounds for appeal by Defendant 1 and the remaining grounds for appeal by Defendant 2, the judgment of the court below is entirely reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided following the pleadings.

The summary of the facts charged and the evidence admitted by this court is as follows: (a) added to the summary of the facts charged as stated in Article 2-2(b)(1) of the Criminal Procedure Act and the list of crimes (5) attached at the end of the judgment of the court below to paragraph (3) of the same Article; and (b) added to the summary of the evidence of the judgment of the court below, other than adding “1. 3’s partial statement of trial at the court below,” and “1. 4’s own trial statement at the court below,” it is identical to each corresponding column of the court below

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

A. Defendant 1 and Defendant 2: Articles 231 and 30 of the Criminal Code (the point of aiding and abetting private documents and the choice of imprisonment);

Articles 234, 231, and 30 of the Criminal Act (the use of the falsified investigative document, the choice of imprisonment), Articles 347 (1), and 30 of the Criminal Act (the use of fraud, the selection of imprisonment), Articles 352, 347 (1), and 30 of the Criminal Act (the attempted use of fraud, the selection of imprisonment), Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356, 35 (1), and 30 of the Criminal Act (the use of occupational embezzlement, the main sentence of Article 3 of the Criminal Act for Defendant 2), Articles 356, 355 (2), and 30 of the Criminal Act (the use of occupational embezzlement, and the appointment of imprisonment)

B. Defendant 3: Articles 356, 355(2), and 30 of the Criminal Act (the point of occupational breach of trust, the choice of imprisonment)

1. Commercial competition;

Defendant 1 and Defendant 2: Each of the above crimes under Articles 40 and 50 of the Criminal Code [Attachment 1] is between the crimes of uttering of each of the above investigation documents in [Attachment 1], and between the crimes of uttering of each of the above investigation documents, and between the cases in 3, 6, 9 through 11, 13 through 16]

1. Aggravation of concurrent crimes;

Defendant 1 and Defendant 2: The aggravated punishment provided for in the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act [In case of sale, the aggravated punishment provided for in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)];

1. Inclusion of days of detention in detention;

Defendant 1 and Defendant 2: Article 57 of the Criminal Act

1. Suspension of execution;

Defendant 3: Article 62(1) of the Criminal Act (Insignificant points and primary charges, etc.)

Defendant 3 asserted that Defendant 1 and Defendant 2 did not participate in the crime of occupational breach of trust with Defendant 2 upon Defendant 1’s request. However, the following circumstances, which can be acknowledged by the evidence of this case, would have been well known that Defendant 3’s deletion of pre-purchase at the computer room staff would cause property damage to the company, and Defendant 2 stated in the lower court that Defendant 3 gave 7.5 million won free of charge to Defendant 3 on December 22, 2003 (the trial record 3.14 pages), Defendant 3 conspired with Defendant 1 to commit the crime of occupational breach of trust with Defendant 3 on December 13, 2004 (the crime record No. 429), and Defendant 3 did not receive the remaining amount of money from Defendant 3 on December 13, 2004 following the crime of occupational breach of trust, and Defendant 2 and Defendant 3 did not receive the same amount of money from Defendant 25 million won after the crime of this case.

The above defendants shall be sentenced to punishment as ordered by the order, taking into account the various sentencing conditions stipulated in Article 51 of the Criminal Act, including the following: (a) the above defendants shall obtain 700 million won as deposit money from the persons who intend to place chain points on 14 occasions; (b) embezzlement of 1.3 billion won as a sum of chain points, such as deposit money, product price, etc.; and (c) by means of computer processing, causing property damage equivalent to KRW 489 million to the victim company; and (d) the nature and result of the crime is considerably heavy in light of the frequency of the crime, method, and amount of damage; and (e) the above defendants have not been given up with no explanation to obtain the payment of the place of using the embezzlement and the amount of money by deception; and (e) the above defendants have not been given up to now.

(Attachment Omission of List of Offenses)

Judges Lee Jae-hwan (Presiding Judge) Kim Jong-ho