In a case where executives such as the president of a reconstruction association and the president of a partnership concluded a contract with a construction company to increase the construction cost for reconstruction without a resolution of a general meeting of partners, the case holding that the crime of breach of trust is not established on the ground that the contract did not have the effect of a reconstruction association, and it cannot be deemed that the reconstruction association did not incur property damage to the reconstruction association, or that there was a risk of property loss

The case holding that even if officers such as the president of a reconstruction association and the president of a partnership enter into a contract to increase the reconstruction construction cost with the construction company without a resolution of the members' general meeting, the crime of breach of trust is not established on the ground that this cannot be viewed as causing property damage to the reconstruction association or causing risk of property loss.

Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes and Article 355 (2) of the Criminal Act

Defendant

Defendant

Dual Refund

Attorney Park Jong-young

Seoul Western District Court Decision 2002Gohap294 delivered on September 25, 2003

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

Although the Defendant entered into a construction contract with Hyundai Construction Co., Ltd. with the same content as that stated in the facts charged at the time of being employed as a director of the Eunpyeong-dong 382, Eunpyeong-gu, Seoul. However, since the construction cost to be completed under the contract would be paid, it cannot be said that the Defendant entered into the contract alone that caused damage to the said association. Therefore, the lower court convicting the Defendant of the entire facts charged of the instant case or erred by misapprehending the legal principles on

2. Determination:

A. Facts charged

The Defendant was a director of the Eunpyeong-dong Housing Reconstruction Association located in Eunpyeong-gu, Seoul, 382, in collusion with Non-Indicted 1, Non-Indicted 2, Non-Indicted 3, and Non-Indicted 4, who was the president of the said Association;

On October 11, 1998, at the above partnership office located in Eunpyeong-gu Seoul, Eunpyeong-gu, 520-35, 1998, Hyundai Construction Co., Ltd., the constructor of apartment reconstruction, held a general meeting to deal with the above agenda, but did not conclude any conclusion with the opinion that some members cannot comply with the above company's demand. On October 30, 1998, the above office held a general meeting to deal with the same agenda again, but it presented an opinion to the same effect as the above general meeting was held at the above office, but some members were closed below the quorum of the general meeting. In such a case, the defendants in charge of the above affairs of the association did not reach any conclusion, and they did not hold a general meeting again and concluded the above agenda, and did not violate the first general meeting's duty to deal with the above agenda, and did not obtain any damages to the company, which was equivalent to 3606, 47486, 4767, 4757, 1998.

(b) Markets:

(1) In order to establish a crime of breach of trust, the act of breach of trust should be identified from an economic point of view and should be recognized as having caused a real loss to the principal or at least a risk of causing property loss. Moreover, even if an officer such as the president of a reconstruction association concludes an existing contract with the construction company without the resolution of a general meeting or changes the existing contract with additional burden to the members, such contract does not have any effect on the reconstruction association, and further if the construction company was aware of such fact, the reconstruction association cannot be held liable to compensate the construction company under the Civil Act. Thus, it cannot be deemed that the act such as the president of the association, etc. causes property loss to the reconstruction association or causes a risk of property loss (see Supreme Court Decision 2004Do771, Apr. 9, 2004).

(2) Meanwhile, in full view of Nonindicted 1’s testimony by Nonindicted 1 of the witness at the trial of the evidence duly examined and adopted by the court below, the following facts are acknowledged: (a) on November 21, 1998, three weeks after the date of the execution of the instant construction contract; (b) on November 21, 1998, the notice of non-management and disposal notice sent by the said Nonindicted 1 to Hyundai Construction Co., Ltd. on the part of Hyundai Construction Co., Ltd. 200; (c) on the ground that there was no resolution by the members’ general meeting regarding the increase of construction cost, the management and disposal notice can not be made pursuant to the above construction contract; and (d) on November 23, 1998, Hyundai Construction Co., Ltd. did not raise any objection against the above notice; and (e) on November 23, 1998, the part regarding the increase or decrease of construction cost in the instant construction contract to each member of the association is allowed to make additional payment notice to each member of the company who calculated and notified in full payment of individual apartment charges in accordance with its own standards (i.

(3) Even according to the facts charged in this case, since the defendant entered into a contract to alter the construction cost without a resolution of the general meeting of the members, the facts charged themselves are premised on the fact that there is no resolution of the general meeting. Thus, there is no room for causing any damage to the reconstruction association due to the conclusion of a contract that does not affect the said reconstruction association. Furthermore, as long as it is judged to have been aware of this, the above reconstruction association does not have any room for liability for damages under the Civil Act against the Hyundai Construction Corporation, so the above reconstruction association cannot be deemed to have caused property damage to the said reconstruction association or caused the risk of property loss.

(4) Nevertheless, the court below imposed the defendant on the charge of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation). In so doing, the court below erred by misapprehending the legal principles as to the occurrence of property damage in misunderstanding of facts or breach of trust, and the defendant's assertion pointing this out is with merit.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act and it is again decided as follows.

The facts charged in the instant case and the facts charged thereof constitute a crime or a case where there is no evidence is found shall be found not guilty in accordance with Article 325 of the Criminal Procedure Act, as examined earlier in detail in the determination of the grounds for appeal.

Judges Min Il-young (Presiding Judge)