The case holding that the act of returning money to the company without the consent of the village residents after the expiration of the deposit return period while keeping the same in custody without transferring the deposit money to the next president even after the head of the village, which was kept by the newly built company of the village warehouse deposits for compensation for damage from the corporation, has been withdrawn by impeachment, constitutes

Article 355(2) of the Criminal Act

Defendant

Prosecutor

Suwon District Court Decision 2008No3802 decided Nov. 4, 2008

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined.

1. Review of the facts and records acknowledged by the lower court reveals the following facts.

A. On January 24, 2005, the Defendant, who was employed as the head of Ansan-si (hereinafter referred to as “village”), agreed to use the deposit of KRW 20 million (hereinafter referred to as “the deposit of this case”) from the Nonindicted Company as the Defendant’s personal head of Tong-si (hereinafter referred to as “village”), and had the village residents keep the deposit of KRW 20 million (hereinafter referred to as “the deposit of this case”) for the sake of the village residents in relation to the clif project implemented by the Nonindicted Company, in relation to the clif project implemented by the Nonindicted Company, in the capacity of the residents of the village in the capacity of the village.

B. Around May 2005, the Defendant continued to keep the instant deposit money without transferring it to Nonindicted 1, who was appointed as a new village head, even though the Defendant had retired from office due to the impeachment of village residents.

C. After the commencement of the above rock wave construction, the village conference was held as a matter of damages compensation around August 2005, and Nonindicted 1 was the shipment of data on this part to village residents, but there was no person who submitted data in writing by the end of December of the same year among village residents.

D. On December 26, 2005, the Defendant continued to keep the instant deposit and returned the instant deposit to the Nonindicted Company without the consent of the village residents, including Nonindicted Party 1, on the ground that the deposit repayment period has expired.

2. After compiling the adopted evidence, the court below acknowledged the above facts, and determined that the deposited money of this case was agreed to return to the non-indicted company if there is no damage to the village residents due to the rock wave work, and there is no evidence to prove that the rupture, etc., generated by village residents, such as non-indicted 2, etc., was caused by the rupture wave work of this case and that there was damage to village residents. Thus, it cannot be deemed that the defendant's act of refunding the deposited money of this case obtained property profit equivalent to KRW 20 million from the non-indicted company and caused damage to village residents, and therefore, the facts charged of this case constitute a case where there is no proof of crime.

3. However, it is difficult to accept such a determination by the lower court for the following reasons.

According to the above facts, the deposit money of this case is the money given to secure damages that may arise from the building of village residents due to the marbing operations during the above deposit period, and it is merely the fact that the defendant was in custody in the capacity of representative of village residents. Since the defendant who was impeachmentd by village residents around May 2005 is a duty to transfer the deposit money of this case to non-indicted 1 newly appointed as a new head, and this constitutes "other person's business" for village residents.

In addition, the defendant's act of not transferring the deposit of this case to the non-indicted 1 in violation of the above duty, and furthermore, around December 26, 2005, when the defendant was not confirmed to have caused damage to the building of village residents, the act of returning the full amount of deposit of this case to the non-indicted 1 and the non-indicted 1 who is the head of the village and the village residents without the intention of the non-indicted 1 and the non-indicted 1 and the village residents without the intention of the non-indicted 1 to dispose of it and causing damage to the non-indicted 1 to lose the security for damages to the village residents constitutes the act of breach of trust under Article 35

Nevertheless, the judgment of the court below that the facts charged in this case constitute a case where there is no proof of crime, is erroneous in the misapprehension of legal principles as to the occurrence of loss in breach of trust, which affected the conclusion of the judgment. The ground of appeal assigning this error

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)