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(영문) 서울고등법원 2013.04.25 2012노4297
특정경제범죄가중처벌등에관한법률위반(배임)
Text

The judgment below

Part concerning Defendant B and C shall be reversed.

Defendant

B Imprisonment with prison labor of two and half years, and Defendant C.

Reasons

1. Summary of grounds for appeal;

A. Defendant A (1) misunderstanding of facts and misunderstanding of legal principles, Defendant A did not know that each sales contract (hereinafter “each of the instant sales contracts”) used for the application for a loan at the time of each of the instant loans (hereinafter “each of the instant loans”) was “the so-called “business contract” made by raising the purchase price compared to the actual purchase price, and there was no instruction to the relevant employees to omit on-site inspection and verification of market price, or to order the loan holders to continue the loan even if the credit rating of the loan holders is inappropriate for the loan.

In light of the provisions of "credit service method" of the victim Nonghyup at the time of each of the loans of this case, Defendant A’s failure to conduct an on-site investigation with respect to each of the loans of this case cannot be deemed as an act violating his duties.

Defendant

A, inasmuch as each of the instant sales contracts was different from the fact that it was a so-called “business contract,” there is no intention to commit a breach of trust against Defendant A.

(2) In light of the circumstances against Defendant A of unreasonable sentencing, the sentence imposed by the lower court (three years of imprisonment) is too unreasonable.

B. Defendant B (1) In the misapprehension of the legal principle, Defendant B was unaware of the fact that each of the instant sales contracts was a so-called “business contract,” and Defendant B was unaware of the fact that the lender was merely a so-called “B” and was not a person who actually borrowed the loan.

Therefore, Defendant B has no principal offender’s intent in relation to each of the instant loans, and therefore, Defendant B cannot be recognized as a principal offender’s intent.

(2) In light of the circumstances on Defendant B’s unfair sentencing, the sentence imposed by the lower court (two years of imprisonment) is too unreasonable.

C. Defendant C (1) In collusion with M, L, etc., Defendant C did not commit fraud in connection with each of the instant loans.

(2) In light of the circumstances on the Defendant C of unreasonable sentencing, the sentence imposed by the lower court (four years of imprisonment) is too unreasonable.

prosecutor (1) mistake of facts and

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