In a case where a person who has no status relationship as an occupational duty commits an occupational breach of trust in collusion with a person who has a status relationship, whether an accomplice who has no status relationship should be sentenced to the punishment prescribed in the simple breach of trust pursuant to the proviso to Article 33 of the Criminal Act

Articles 30, 33, 355(2), and 356 of the Criminal Act

Supreme Court Decision 86Do1517 Decided October 28, 1986 (Gong1986, 3153) Supreme Court Decision 99Do883 Decided April 27, 199 (Gong1999Sang, 1122) Supreme Court Decision 2010Do6507 Decided September 9, 2010

Defendant

Defendant

Attorney Cho Hong-soo

Seoul High Court Decision 2017No3487, 2018No768 decided June 8, 2018

The appeal is dismissed.

The grounds of appeal are examined.

1. Fraud against the victim non-indicted 1

Of the facts charged in the instant case, the lower court convicted the victim Nonindicted 1 of fraud. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by failing to exhaust all necessary deliberations and exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on fraud.

2. Occupational breach of trust;

A. The assertion of misapprehension of legal principles as to accomplices and status

(1) The crime of occupational breach of trust is established when a person in a position to manage another person's business commits an act in violation of his/her duty and obtains it from a third party to cause damage to the principal. This is a case where the punishment is serious due to the status of simple breach of trust as an aggravated provision for the crime of occupational breach of trust. Therefore, if a person who has no such status as an occupational duty has committed an occupational breach of trust in collusion with a person in a status relationship, then the person who has no such status relationship should be sentenced to the punishment prescribed in the crime of simple breach of trust pursuant to the proviso to Article 33 of the Criminal Act. In such cases, the criminal punishment for the crime of occupational breach of trust, which is one of the personal offenders, shall be established pursuant to the main sentence of Article 33 of the Criminal Act, and the criminal punishment for the crime of simple breach of trust shall be applied, not only to a person who has no status relationship (see, e.g., Supreme Court Decisions 86Do1517, Oct. 28, 1986; 2010Do65

(2) This part of the facts charged is that the defendant conspireds with the victim non-indicted 2 in the conduct of occupational breach of trust by the non-indicted 1, who is in the position of dealing with another person's business. As such, with respect to the defendant who has not a personal relation as an occupational duty, the crime of occupational breach of trust is established pursuant to the main sentence of Article 33 of the Criminal Act, but the statutory punishment for the crime of simple breach of trust should be applied pursuant to the proviso of Article 33 of the Criminal Act. Nevertheless, the court below, applying only Articles 356, 355(2), and 30 of the Criminal Act to the crime of occupational breach of trust, decided to imprisonment among the statutory punishment under Article 356 of the Criminal Act, which constitutes the crime of occupational breach of trust

(3) However, the lower court, in relation to the crime of occupational breach of trust and the crime of occupational breach of trust, determined the punishment by adding a concurrent punishment to the punishment for the crime of occupational breach of trust against Nonindicted 1, who is heavier than the crime of occupational breach of trust, and thus, did not affect the conclusion of the judgment of the lower court. The allegation in the grounds of appeal on this point is without merit.

B. The remainder of the assertion

The lower court found the Defendant guilty of occupational breach of trust among the facts charged in the instant case. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err by failing to exhaust all necessary deliberations, thereby exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine

3. The argument on unreasonable sentencing

According to Article 383 subparag. 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years has been imposed, an appeal may be filed on the ground of unfair sentencing. Therefore, in this case where a more minor sentence has been imposed on the defendant, the argument that the sentence is too unreasonable

4. Conclusion

The Defendant’s appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won (Presiding Justice)