2018Do1461 A. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

(Recognized Crime : Occupational Breach of Trust)

(b) Violation of the Financial Investment Services and Capital Markets Act;

(c) Occupational embezzlement;

A person shall be appointed.

Defendant and Prosecutor

Law Firm B

Attorney C, D, E, F, G

Seoul High Court Decision 2017No2906 Decided January 11, 2018

May 15, 2018

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. While examining the legal principles and evidence related to occupational breach of trust, the lower court did not err by misapprehending the facts contrary to the empirical rule or rules of evidence, or by misapprehending the legal principles as to the business judgment rule or intent of breach of trust, contrary to what is alleged in the grounds of appeal.

B. Examining the violation portion of the Financial Investment Services and Capital Markets Act (hereinafter “Capital Markets Act”) due to the acquisition of the amount, based on relevant legal principles and evidence, the lower court, on the grounds stated in its reasoning, found the Defendant guilty of the facts charged in the instant case, of “interest arising from the violation” under Article 443(1) and (2)2 of the former Financial Investment Services and Capital Markets Act (amended by Act No. 11845, May 28, 2013; hereinafter “former Financial Investment Services and Capital Markets Act”), cannot be said to have erred by misapprehending the legal principles as to intentional breach of the Capital Markets Act or by misapprehending the legal doctrine.

2. As to the Prosecutor’s Grounds of Appeal

A. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter "Special Economic Crimes Act") (Misappropriation of trust)

On the grounds indicated in its reasoning, the lower court rendered a not guilty verdict on the ground that it is difficult to view that the property damage amount of Latte Electric Co., Ltd. to be more than KRW 500 million, which is the lowest limit stipulated in Article 3 (1) 2 of the Specific Economic Crimes Act, was proved without any reasonable doubt as to the violation of the Specific Economic Crimes Act (Misappropriation of trust) and it constitutes a case where there is no other evidence to recognize it. While examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in

B. The portion of violation of the Capital Markets Act due to acquisition of unrealizedd profits of KRW 1,195,693,250

For reasons indicated in its reasoning, the lower court rendered a not guilty verdict on the ground that the violation of the Capital Markets Act was due to the acquisition of 1,195,693, and KRW 250,000, on the grounds that the prosecutor’s proof as to the calculation of profits earned from the violation of the said Act was insufficient, and thus, constitutes a case where there is no proof of criminal facts. In light of relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal principles as to “profit gained from the violation of Article 443(1) and (2) of the former Capital Markets Act”

The Supreme Court precedents cited by the prosecutor as the grounds of appeal are different from this case, and thus, it is inappropriate to invoke this case.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik

Jeju High Court Decision 201Na1548

Justices Park Sang-ok

Justices Park Il-san