Defendant

Defendant

Lee Jae-in

Attorney Kim Sung-soo

Busan District Court Decision 2003Ma449 Decided April 21, 2005

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 3,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for a period calculated by converting 50,000 won into one day.

The provisional payment of the amount equivalent to the above fine shall be ordered.

1. Summary of grounds for appeal;

A. Error of mistake

① Since September 17, 1999, the Defendant did not hold any position in the victim DDR Co., Ltd. (hereinafter referred to as “DS”), it cannot be deemed that there was trust relationship with the victim with whom he was assigned duties in its own position. ② The Defendant resolved the issue of ordering money to external business in the course of consultation on business as stated in the holding of the lower court, as the Defendant did not intentionally resolve the issue, and the non-indicted 1, who was the representative director of DDR, did not intentionally perform the duty of manufacturing and executing supply contracts for 9 days, which was not affected the conclusion of the judgment by the Defendant’s non-indicted 1’s decision, and the Defendant did not err in the misapprehension of the law regarding the performance of the contract during the 9-day grace period from August 7, 2001 to April 31, 2005 by misapprehending the fact that the Defendant was not aware of the fact that it had been necessary to perform the duty of producing and executing the contract during the 9-day grace period.

B. The logic and logic net

① The judgment of the court below also resolved the issue of ordering the out-of-the-counter enterprise to be handled in KS, and urged the execution of the contract. Although the defendant had a occupational duty to only implement the contract with NAS, if the defendant had a certain occupational duty based on trust relationship, it is not a business duty for NAS, a third party, and if the defendant had a certain occupational duty based on trust relationship, it is not a business duty for NAS, which is the principal. Thus, the reasoning of the judgment of the court below is inconsistent with the logic. ② The judgment of the court below appears to have offered 1, the main cause of the defendant's breach of trust as in this case, as the representative director, the contract of this case was rescinded as the defendant, and the contract of this case should be punished with the defendant, the defendant should not be held liable for the breach of trust, and there is no logic that the defendant and the representative director of this case should be even involved in the execution of the contract of this case. However, there is no reason to believe that the defendant's breach of trust and the defendant's accomplice's accomplice's duty.

C. Legal principles

The crime of breach of trust is an essential element for the acquisition of profits by a criminal or a third party and his/her own loss and intent. Of the amount of profit 198,654,420 won, the amount of profit 103,50,420 won, which was acquired in the facts charged in this case, is 95,150,000 won, which was returned to the original state due to the cancellation of the contract without being awarded the contract, and the interest, etc., which was returned to the original state due to the cancellation of the contract, and thus, it is not a gain of the steg. Therefore, it is not a loss, and the remaining amount of 95,150,00 won is the amount acquired with the penalty for breach of contract. It is not a creditor of the contract in this case as a creditor of the contract in this case, and it is not a gain that the above steging period received damages due to the default of the contract in this case, and the defendant did not have any intention to obtain the profits due to the execution of the contract in this case.

2. Determination

A. Judgment on the assertion of mistake of fact

(1) According to the records, since the defendant, from December 12, 1986, operated measuring instruments manufacturing and selling companies of the same luminous industry Co., Ltd., and on May 25, 1996, upon Non-Party 1's participation in real estate brokerage business, changed his trade name to D., and the defendant is specialized in manufacturing and selling measuring instruments, and Non-Party 1 is engaged in the sale of Hong Jaedong apartment, and Non-Party 1 agreed to take exclusive charge of the above apartment sales business, and on June 19, 198, the defendant, as the representative director of D. K, concluded the contract of this case on behalf of Non-Party 1, as the representative director of D. 9, and the director of D. 9 was changed to d. d. 1, the representative director of D. d. d. d. 9, and the defendant still did not appear to have carried out the business of this case on behalf of Non-Party 1, 1998.

(2) According to the records, the defendant's failure to perform his/her duties on August 25, 199 and August 28, 199. The defendant's failure to perform his/her duties on the basis of the contract of this case to deliver 38 bits under the contract of this case to the non-compliance company until October 15, 199. The defendant's failure to perform his/her duties on the non-compliance with the above schedule is recognized to be impossible to execute the contract of this case. The defendant's failure to perform his/her duties on the non-compliance with the contract of this case to deliver a copy of the contract of this case to the non-compliance company. The defendant's failure to perform his/her duties on the non-compliance with the above schedule reaches the contract of this case's non-compliance with the contract of this case's non-compliance company's non-compliance with the contract of this case's non-compliance with the contract of this case's non-compliance with the contract of this case's non-compliance with the contract of this case's.

(3) According to the records, the defendant appealed on August 7, 2001, after being sentenced to a suspended sentence of two years for embezzlement, the crime of forging securities, and the crime of uttering of forged securities, and the defendant appealed on June 27, 2002, and the above judgment became final and conclusive on the same day. On May 31, 2002, the defendant filed an appeal after being sentenced to a suspended sentence of two years for August, 200, and the appeal was withdrawn and confirmed on June 27, 2002. Thus, the period of suspended sentence was deemed to have lapsed around April 21, 2005, which is the date of the judgment of the court below. Thus, in the criminal facts of the court below, the defendant's decision that the defendant was a person under suspended sentence by the above judgment of the court below, but if examining the damaged amount of the fine and the amount of the fine imposed by the defendant in this case in light of the overall circumstances and the sentencing stated by the court below, the defendant's allegation that the defendant was erroneous in this part of fine.

(4) The judgment of the court below stated that the defendant committed the act of breach of trust between Sep. 7, 199 and Oct. 16, 199 when the defendant committed the act of breach of trust as an executive officer of DDR. The defendant alleged that there was an error of law that affected the conclusion of the judgment by misunderstanding of facts, as it was 11 days from Sep. 7, 1999 to Sept. 17, 199. However, according to the above 2-A. (1) of the above 2-A, the defendant was a representative director of DDR, who was already delegated business duties from DDR and the defendant was discharged from DDR's director. Thus, this part of the defendant's assertion is without merit.

(5) 기록에 의하면, 피고인은 1998. 6. 19. 디케이에스의 대표이사로서 포철산기와 이 사건 계약을 체결한 사실, 피고인은 공소외 1과 이 사건 계약과 같은 계량기 제조, 판매 분야에 대하여는 피고인이 전담하여 업무를 처리하기로 합의하고 디케이에스를 대표하여 1999. 8. 28.까지 샘플제작, 도면출도 및 업무협의 등의 계약이행업무를 진행하여 왔으며 공소외 1은 이에 대하여 형식적으로 보고만 받은 사실, 피고인은 1999. 8. 25. 및 1999. 8. 28. 포철산기와 업무협의를 통하여 이 사건 계약에 따른 1차 컨베이어 38세트를 1999. 10. 15.까지 납품하기로 하되, 위 일정을 준수하지 못할 경우 디케이에스는 계약이행이 불가능함을 인정하고, 위 일정을 준수하지 못한 이후는 계약이행여부를 포함한 본 작업의 모든 결정은 포철산기에서 주관, 처리한다는 내용의 합의를 한 사실, 그리고 위 업무협의를 한 5일후 1999. 9. 2. 포철산기로부터 제작착수지연에 대한 경고 및 계약이행 촉구의 내용증명이 도달한 사실, 1999. 9. 7. 위와 같은 포철산기의 내용증명을 받은 이후 공소외 1은 이사회를 소집하여 공장이 협소하여 이전 완료하고, 포철산기와의 컨베이어 제작, 납품건, 하도급업체 계약 발주건, 포철산기와의 납기지연에 따라 납기연기 문제를 1999. 9. 9.까지 완료하면 공소외 1이 피고인에게 대표이사의 지위를 넘겨주는 내용으로 이사회 결의를 한 사실, 그런데 피고인은 위 이사회 결의에서 1999. 9. 9.까지 위 사항을 집행하지 아니하면 피고인이 이사직을 포기한다는 조항을 문제삼아 이에 동의할 수 없다고 하면서 이 사건 계약의 이행업무를 하지 아니한 사실, 한편 디케이에스의 외주업체인 삼우특강, 창성공업사, 성원기업 등에서 납품대금에 대하여 포철산기에서 보증을 서주지 않으면 일을 못하겠다고 하여 1999. 9. 8. 포철산기에서 피고인과 위 외주업체 관련자를 불러 업무협의를 하여 가장 금액이 큰 스테인레스 철판에 대하여 포철산기에서 직접 삼우특강으로부터 구매하여 공급하여 주고, 스테인레를 가공하는 창성공업사와 로울러류를 가공하는 성원기업에 대하여는 디케이에스와 위 외주업체 사이의 계약서 사본을 포철산기에 송부하여 주면 포철산기에서 위 외주업체에 대한 납품대금을 보증하여 주겠으니, 삼우특강은 철판을 가공하는 창성공업사로 납품하라는 취지로 합의하고, 디케이에스에서는 1999. 9. 13.까지 포철산기로 계약서를 송부하면 삼우특강에서 납품을 하도록 포철산기에서 디케이에스의 선수금으로 처리해야 할 위 외주업체 납품대금 문제를 해결하여 주고, 디케이에스의 공장이 협소하다면 영종도 현장에서 조립하도록 합의한 사실, 위와 같은 합의에 따라 삼우특강은 스테인레스 철판을 납품하고 포철산기로부터 1999. 10. 중순경 납품대금을 수령한 사실, 그런데 위와 같은 업무협의가 있었음에도 피고인은 공소외 1과의 의견충돌로 인하여 피고인에게 대표이사직을 넘겨주지 아니하고 공소외 1이 독단적으로 회사운영을 하여 의욕을 상실하였다는 이유로 위 외주업체에 대한 발주도 하지 아니하여 계약을 체결하지 못하고 합의된 기일인 1999. 9. 13.까지 계약서를 포철산기에 송부하지 아니한 사실, 1999. 10. 1. 디케이에스의 이사회에서 피고인이 7,000만 원 이상의 자금 조달계획을 마련하여 오거나 포철산기의 공사가능 확인서를 1999. 10. 9.까지 받아오는 조건으로 피고인과 공소외 1을 각자 대표이사로 하기로 하고, 디케이에스의 모든 경영부분에 대하여 회계감사를 시행하기로 결의하였는데, 피고인은 1999. 10. 13. 5,000만 원을 마련하여 왔으나, 공소외 1이 회계감사를 거부하면서 대표이사를 넘겨주기를 거부한다는 이유로 포철산기에서는 피고인이 1차분 38세트를 전부 제작하지 못하거나 일부만 제작하였더라도 피고인이 외주업체와의 발주계약서를 제출하여 제작의지만 보였다면 충분히 납기를 연기하여 줄 의사가 있었고 피고인도 충분히 납기를 연기할 능력이 있었음에도 불구하고 결국 포철산기와의 이 사건 계약을 포기하기로 결정하고 외주업체와의 발주계약을 하지 아니한 상태에서 1999. 10. 17. 디케이에스를 퇴사한 사실, 포철산기는 1999. 10. 16. 이 사건 계약을 해제한 사실을 인정할 수 있다.

In addition, from September 199 to December 29, 199, the Defendant had a patent right to manufacture and sell measuring instruments, and the instant contract with DDR and DDR will be rescinded, and the Defendant is no longer capable of running both Non-Indicted 1 and DDR. Since the consortiums produced under the instant contract are more profits earned from maintaining and repairing rather than profits from production, they would make an investment to jointly establish and operate the company, and the Defendant would make a proposal that they would have made an operation of the company by jointly establishing and operating the company. In addition, the Defendant would have received an investment of KRW 135,100,000 from Non-Indicted 2 and the Dong business to install the dong mining industry equipment, a corporation with Non-Indicted 2 and the Dong business around December 29, 199; and the Defendant would have received an investment of KRW 135,510,000,000,000,000 from DDRs established to maintain the Incheon 19,000 for 199.

In light of the above circumstances, the Defendant purchased the ice iron plates so that he can deliver 38 feet from the Posteging machine to October 15, 1999, which is the first payment period of the instant contract. The Defendant guaranteed the supply price to be paid by disteging companies, and the contract of this case is performed when disging only with the outsourcing company and sent it to the Posteging machine upon entering into the contract with the outsourcing company. Despite the fact that the dispute over the management of Nonindicted Party 1 and the Company had not been terminated, it can be deemed that the contract of this case was rescinded by intentionally neglecting the execution of the instant contract with the purpose of maintaining the Posging machine and obtaining profits from receiving the repair business from the Posteging machine.

The defendant asserts that the contract of this case with the company is terminated because of insufficient funds to conclude a contract with the company with the company with the company with the company with the company with the company with the company with the company with the company without entering into the contract of this case. However, according to the above facts of recognition, the company with the company with the company with the company with the company with the company with the contract for the supply of goods had already been awarded the guarantee for the contract with the company with the company with the company with the company for the contract with the company with the company with the company without any need to demand the payment. In addition, according to the records, the funds necessary to enter into the contract with the company with the company with the company with the company with the company with the company with the company with the company with the company with the amount of KRW 50,000,000,000,000 which the defendant is able to sufficiently mobilize with his mind, and in fact, the defendant did not perform the contract of this case with the company with the company with the company with the company with the company without the reason.

In the end, the defendant's assertion of mistake is without merit.

B. Determination of the logical inconsistency argument

(1) According to the judgment of the court below, the defendant was a representative director and a director of DNA and was in charge of performing the contract of this case after concluding the contract of this case and entering into the contract of this case with DDR, and therefore, he had a duty to perform the contract. The defendant demanded DDR's duty to perform the contract as a person entrusted with DDR's duty to perform the contract with DDR. Thus, the defendant has a duty to perform the contract with DDR as a person entrusted with DDR's duty to perform the contract. Thus, if the defendant has any duty under the trust relationship with the defendant because he resolved this problem, the defendant's argument that it is a duty of performing the duty of performing the duty of performing the duty of trust with the third party is without merit as seen in the above 2-A.1 (1) and (2). Thus, this part of the ground for appeal by the defendant is without merit.

(2) According to the judgment below, Nonindicted Party 1, the complainant, as the representative director, was released the contract of this case, and was punished with the defendant. Rather, it seems that the defendant and Nonindicted Party 1 should be held liable with the defendant. The reasoning of the judgment below does not seem to have the purport that the defendant and Nonindicted Party 1 should be held liable with the accomplice. It appears to the purport that Nonindicted Party 1 tried to independently cancel the contract of this case for the purpose of having the defendant be held liable upon the cancellation of the contract of this case without the conspiracy with the defendant, and that he tried to have the defendant cancel the contract of this case for the purpose of getting the contract of this case to go against the management of DK. Even though the defendant is merely an officer of DK, who is the debtor of the contract of this case, the defendant is in the status of the person entrusted with occupational duties from DK, and if the defendant involved in the default of the duty of DK in violation of the above duty, such act constitutes a crime of breach of trust. The defendant's assertion that all of these days can be done to perform his duty with DK.

C. Judgment on misapprehension of legal principles

In the case of breach of trust, the term "when property damage is incurred" includes not only the case where a real property damage is caused but also the case where a realistic damage is caused by a risk of actual damage (see, e.g., Supreme Court Decisions 2002Do5679, Feb. 11, 2003; 2002Do4229, Jul. 22, 2004). This refers to the case where a property state of a person is assessed from an economic perspective and the value of the person's property does not increase or decrease by the defendant's act (see, e.g., Supreme Court Decision 2004Do5731, Mar. 25, 2005); property interest means an increase in all property value; and it is not a passive or passive interest.

According to the records, the defendant's breach of trust in this case paid KRW 103,50,50,00 in advance payment and interest thereon together with KRW 103,504,420 as the order of recovery of advance payment related to termination of trust insurance, and received KRW 198,654,420 in aggregate as the deposit for termination of trust, and paid KRW 198,654,420 in advance. Although the amount that the period was paid was paid for restitution due to termination of contract due to default by DS and the penalty due to default, if the period was actually paid with the above amount and received the satisfaction of the above claim, it shall be deemed that the property value of the period was increased. Therefore, 198,654,420 won received in the period of Masan shall be deemed as property interest of the period of Masan.

In addition, DNA paid KRW 236,193,362 to Seoul Guarantee Insurance Co., Ltd. for insurance money and overdue interest paid on behalf of the defendant during the period of Poste delivery. The above amount is that if the defendant did not cancel the contract of this case, it would have been held by DS, but it would have reduced its property value by having it paid due to the defendant's breach of trust.

Finally, the defendant, as the representative director of D. S., entered into the contract of this case with D. S., and as a joint and several surety for the guarantee insurance contract of Seoul Guarantee Insurance Co., Ltd., the contract of this case was cancelled, it seems that he had been aware that he had been aware that he had the right to claim advance payment of D. S. and the penalty for delay was entitled to receive penalty, and D.S had the obligation to pay the above amount, so the defendant was aware that he would benefit from the delivery of the contract of this case, and the intention of the crime of breach of trust would not be necessary to obtain profit from the act of breach of trust of this case. Thus, this part of the defendant's assertion is without merit.

D. Sub-determination

Therefore, the defendant's appeal is without merit.

3. Ex officio determination

After recognizing the fact that the defendant had a criminal record which became final and conclusive, the court below sentenced the criminal record which was committed before the crime and its punishment become final and conclusive as concurrent crimes under the latter part of Article 37 of the Criminal Act, and sentenced the criminal record which was established in accordance with Article 39(1) of the Criminal Act.

However, when there is a crime which was revised by Act No. 7623 of July 29, 2005, which was subsequent to the decision of the court below, and was not adjudicated among concurrent crimes, Article 39 (1) of the Criminal Act, Article 39 (1) of the Criminal Act shall be sentenced to punishment for the crime in consideration of equity and the case where the crime for which the judgment became final and conclusive is adjudicated at the same time. In this case, the punishment may be mitigated or exempted, and application of the previous provisions in the Addenda shall, in principle, be applied to the crime committed before the enforcement of the Act, except for the case where the former provisions are favorable to the person who committed the act. Thus, in this case where the application of the previous provisions is not more favorable, the amended Act is applied to the crime committed before the final judgment of the previous punishment. Thus, the above facts charged constitute "when there is a change in punishment after the judgment" as provided in Article 361-5 subparagraph 2

4. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364 (2) and (6) of the Criminal Procedure Act, and it is again decided after pleading.

The summary of facts constituting an offense and evidence recognized by this court is the same as the corresponding column of the judgment of the court below, and thus, it is cited in accordance with Article 369 of the Criminal Procedure Act

1. Relevant provisions of criminal facts: Articles 356 and 355 (2) of the Criminal Act;

2. Selection of punishment: Selection of a fine;

3. Concurrent treatment: The latter part of Article 37 of the Criminal Act and Article 39 (1) of the Criminal Act;

4. Attraction of a workhouse: Articles 70 and 69 (2) of the Criminal Act.

5. Provisional payment order: Article 334 (1) of the Criminal Procedure Act.

Judges Kim Su-cheon (Presiding Judge)