The case reversing the judgment of the court below which found guilty of embezzlement of the price by exercising the right of recourse

The case reversing the judgment of the court below which found the defendant guilty of embezzlement of the price by exercising the right of recourse on the ground that it was erroneous in the rules of evidence.

Article 355(1) of the former Criminal Act (amended by Act No. 5057 of Dec. 29, 1995); Article 308 of the Criminal Procedure Act

Defendant

Defendant

Changwon District Court Decision 95No618 delivered on August 18, 1995

The judgment of the court below shall be reversed and the case shall be remanded to the Changwon District Court Panel Division.

We examine the grounds of appeal.

1. As to the grounds of appeal Nos. 1 and 2

Examining the evidence admitted by the court of first instance as cited by the court below in comparison with the records, the defendant embezzled one check of KRW 30,000,000 per face value of the victim Hawhee issuance and acquired one promissory note of KRW 28,00,000 from the above victim. Thus, the court below's judgment which found the defendant guilty of this part of the facts charged cannot be deemed to have erred by misapprehending the rules of evidence and violating the rules of evidence to have affected the conclusion of the judgment. There is no reason to discuss this part of the facts charged.

2. As to the third ground for appeal

A. The court below affirmed the defendant's conviction on the ground that the defendant was guilty of embezzlement of the part of the above charges of embezzlement of 10,000 won and 10,000 won of promissory notes issued at the non-indicted 12 promissory notes owned by the non-indicted 12, the total face value of 87,379,471 won and the total face value of 57,379,471 won among them to the non-indicted 12, and the non-indicted 10,000 won and 10,000 won of the face value of the non-indicted 10,000 won of the issuance of the non-indicted 12,00 won of the non-indicted 12's promissory notes issued at the non-indicted 20,200 won and the non-indicted 10,000 won of the non-indicted 1's face value of the non-indicted 1, 193.

B. However, we cannot agree with the above determination by the court below for the following reasons.

(1) According to the evidence revealed in the record, the above light industry is 50,000,00 won for the above 20,000 won for the above 10,000 won for the above 20,000 won for the above 10,000 won for the above 10,000 won for the above 10,000 won for the above 20,000 won for the above 10,000 won for the above 1,00 won for the above 1,00 won for the above 1,00 won for the above 20,000 won for the issuance of the above 1,00 won for the above 20,000 won for the issuance of the 1,00 won for the above 1,00 won for the above 1,00,000 won for the issuance of the 30,000 won for the above 1,000 won for the issuance of the 1,000 won for the above 7.

(2) However, as to the reasons why the Defendant did not refund the above two copies of the above two promissory notes of the issuance of the above sentence development to the Mahee or Kim Il-tae. In other words, the above two copies of the above two promissory notes of the issuance of the above sentence development are identical to the following reasons: (a) the above two copies of the above two promissory notes of the issuance of the above sentence development have been endorsed to the above two parts of the above order to lend money from the Defendant; and (b) as the above Mahee was unable to discount his own bills because of the low credit rating, it would be impossible for the Defendant to exchange the note with the third party’s issuance of the bill and one’s own issuance of the bill of exchange with the third party’s own issuance of the bill of exchange, and thus, the Defendant had used the above Mahee by exchanging two copies of the two promissory notes of the above issuance of the above sentence development with the two copies of the above bill of exchange of the above Mahee, and later, the Defendant had to own the above two separate contents of the above two promissory notes, 10 (20).

(3) Therefore, first, we examine the credibility of the Defendant’s statement in relation to the circumstances in which two promissory notes in the development of the same text were delivered to the said Mahee.

In light of the above legal principles, the Defendant’s assertion that two promissory notes issued by him and the Defendant’s non-indicted 1 were exchanged with one bill of exchange for the issuance of non-indicted 1 and one bill of exchange for the issuance of non-indicted 1 and non-indicted 51, respectively (see, e.g., Disposition No. 51). The court below reversed the statement that the two promissory notes issued by him and the non-indicted 10,000,000 are exchanged with the bill of exchange for the issuance of the same machine company, and the other 10,000,000 won were exchanged with the bill of exchange for the issuance of the same machine company, and the other 10,000,000 won was completely exchanged with the bill of exchange for the bill of exchange for the issuance of the above Daesan printing Office and the other 30,000 won was owned by the Defendant (see, e.g., Disposition No. 586, the number of shares issued by the above 30, etc.).

However, in light of the actual condition of the exchange of bills, it is difficult to find out that the operator's name of the above-mentioned printing office is a face-to-face stamp, and there is no evidence that the defendant and the above Mascar exchanged a bill with the bill at the same time. The above Mashee first exchanged two copies of his own check and the bill of the above Mascar Development held by the defendant at the stage of the investigation is completed, and there is a lack of detailed statement about the number of the check or the time of exchange, and there is no confirmation at all of the substance of the check, and thus it is difficult to believe this. On the contrary, the defendant presented two promissory notes of the above Mascar issued in exchange with the bill of the above Mascar Development (see the record of seizure in Article 502 of the Investigation Record) and then, it is consistent in settling the relationship between the above Mascar and the above two promissory notes issued by the defendant. Thus, it is reasonable to conclude that the above Mascar was exchanged with the above defendant 2.

(4) However, as the prosecutor institutes a public prosecution on the premise that two promissory notes in the same sentence development are owned by the above Kim Mok, it is examined as to the existence of any evidence that two copies of the Promissory Notes in the same sentence development acquired by the above Mahee as above in the above circumstances and can be seen as owned by the above Maio-o, either later or later.

In the prosecution, the above Ba-hee and Ma-hee stated that the 12 promissory note delivered to the defendant, as mentioned in the above paragraph (1), is a bill lent to the non-indicted Masan Mutual Saving and Finance Company, which is the transaction partner of the above Ma-hee, as a security of the farm (see, e.g., the Ma-hee's statement No. 51 and No. 66 of the investigation record, and the Ma-hee's statement of No. 583). Meanwhile, the above Ma-hee stated that the above bill should be returned to the defendant because it is a quasi-bill (see, e.g., No. 61 of the investigation record). The above Ma-hee did not explain the circumstances in which the bill was the owner of the promissory note. The above Ma-hee first asserted that the above bill was owned by the Ma-Baok's first accusation, and in the middle, it did not explain the above bill only as the above Ma-Baok's bill, but did not explain any extent (see the above 1907).

However, there is no direct evidence to deem that the above Baol's real estate was offered as security to the above Msan Mutual Savings and Finance Company, and rather, according to the copy of the register bound in the investigation records, it is only recognized that the above Baol's real estate was offered as security to the above Msan Mutual Savings and Finance Company

Therefore, as long as there is no explanation from the above Mahee or Kim Il-o on the process of acquiring the two promissory notes in the issuance of the above Mao-si Development, the two promissory notes are owned by the above Mao-hee continuously after the above Mao-hee acquired them through the defendant, and the above Mao-hee continued to be owned by the above Mao-hee in order to collect the per share table of its issuance in order to recover the above Mao-si's issuance, it is more clear in light of the settlement process of claims and obligations as seen earlier.

(5) Lastly, it is examined whether the Defendant agreed to settle any content with the Defendant before exercising the right of recourse against two copies of the above Promissory Notes.

According to the records, the defendant settled the relationship between the defendant and the above Haak-hee on June 23, 1993, immediately after the above Haak-hee was detained for violating the Control of Illegal Check Act. At that time, the defendant, on the premise that the above Haak-hee's rights on two copies of the above Haak-hee's issuance of the above Haak-hee's issuance of the above Haak-hee were offset against one's rights on two copies of the above Haak-hee's issuance of the above Haak-hee's issuance of the above Haak-hee's issuance of the above Haak-hee's bill, the total amount of 53,00,00 won was determined (refer to the above 6th agreement of investigation record, the claim list of 141 of the investigation record, etc.). If 2 copies of the above Haak-hee's issuance of the above Haak-hee's statement were made at the time of the above 5th statement and the above 5th statement were made.

(6) If so, on February 20, 1993, the defendant exercised the right of recourse against the bill of exchange issued in the same region development, it shall be deemed that an implied agreement has been reached between the defendant and the above Madhee to recognize the bill of exchange issued in the same region development as owned by the defendant in return for the defendant to be exempted from the defendant's obligations of the bill of exchange issued in the above Madhee with respect to two promissory notes issued in the above Madhee. Thus, the defendant cannot be deemed to have embezzled the money of others on the ground that the defendant did not return the bill of exchange to the above Madhee or Madon.

C. Thus, the court below's judgment that found the defendant guilty of this part of the facts charged without examining the above points shall not be deemed to have violated the rules of evidence or not to have violated the rules of evidence, and such violation of the rules of evidence has affected the judgment. Therefore, there is a reason to point this out.

3. Therefore, among the judgment of the court below, the part on the embezzlement of KRW 20,00,000 of the two copies of the above promissory note cannot be reversed. Since the above criminal facts against the defendant and the remaining criminal facts found guilty are concurrent crimes under the former part of Article 37 of the Criminal Act, the court below's judgment against the defendant is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Jong-ho (Presiding Justice)