Defendant

Defendant

Macul metal

Nambu General Law Firm, Attorneys Jeon Chang-ho

Incheon District Court Decision 2010Ma1816 Decided August 18, 2011

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

① Since the Defendant prepared a notarial deed providing the instant golf membership as collateral to the victim Nonindicted 1, a claim for the instant golf membership and providing them as collateral, the victim cannot be deemed to have lawfully acquired the security interest in the instant golf membership. Therefore, the Defendant cannot be deemed to have been in the position to manage the business of the victim, and the Defendant does not constitute a crime of breach of trust. ② Furthermore, the Defendant disposed of the instant golf membership with the consent of Nonindicted 2 delegated with the right to dispose of the instant golf membership membership as the representative of the victim, and thus, did not have an intention to commit the crime of breach of trust. Nevertheless, the lower court erred by misapprehending the

B. Unreasonable sentencing

The punishment sentenced by the court below (one year and two months of imprisonment) is too unreasonable.

2. Determination

A. Determination as to the assertion that the victim did not acquire a legitimate security right

In cases where an obligor transfers other property rights to a creditor in relation to the repayment of obligation, the issue of whether such transfer has such nature is not formally determined by the type of documents given and received, but rather by the substance of the transaction and the interpretation of the intent of the parties (see Supreme Court Decision 2004Du5485 delivered on July 28, 2005).

In light of the above legal principles, on February 8, 2007, the evidence duly adopted and examined by the court below acknowledged the fact that the defendant made a notarial deed of money loan contract for the transfer of the golf membership of this case to the victim by means of the possession and alteration of the ownership of the golf membership of this case. However, on the other hand, the evidence of the court below is comprehensively admitted, the defendant and the victim agreed from the investigative agency to provide the golf membership of this case as security for the defendant's debts of 300 million won to the victim. The defendant borrowed 20 million won from the victim around February 8, 2007 and delivered the victim with the original golf membership card, membership deposit certificate, power of attorney, and certificate of seal impression. Considering that the defendant borrowed 20 million won from the victim around February 8, 2007, the above notarial membership of this case was valid between the defendant and the victim regardless of the form or entries in the notarial deed for money loan contract for transfer of the transfer of this case to the victim. Accordingly, the defendant can not accept the part of the defendant's obligation to keep and manage golf membership.

B. Determination as to the assertion that there was no intention of breach of trust since golf membership of this case was disposed of with the consent of Nonindicted 2

① First, the Defendant alleged that Nonindicted 2 was delegated with the right to dispose of the instant golf membership from the victim at the time of disposal of the instant golf membership by Nonindicted 2, and the Defendant stated that Nonindicted 2 was permitted to recover and use the instant loan from the victim, whose mother was the mother. However, Nonindicted 2 stated that Nonindicted 2 was authorized to use KRW 200 million out of the Defendant’s credit against the Defendant around February 2010, which was after the Defendant disposed of the instant golf membership (Evidence No. 299 of the evidence record), and that Nonindicted 2, even around the time when the Defendant borrowed money from the victim and provided the instant golf membership as collateral, he/she performed business, such as notarial, on behalf of the victim (Evidence No. 299 of the evidence record), but it is difficult to deem that the victim was permitted to dispose of the instant loan by the victim (Evidence No. 200-201 of the evidence record), and there is no other evidence to acknowledge otherwise.

② Next, this case’s golf membership was transferred with Nonindicted 2’s consent on August 5, 2008, and the Defendant asserted that Nonindicted 2 permitted the disposal of the instant golf membership around the end of August 2008. However, Nonindicted 2 consistently stated that the Defendant was unable to consent to the sale of the instant golf membership if the Defendant did not provide the instant golf membership as security, although he requested the Defendant whose financial status has deteriorated by selling the instant golf membership from the Defendant, but he consistently stated that Nonindicted 2 did not consent to the sale of the instant golf membership. In light of the Defendant’s assertion, it is difficult to easily understand that Nonindicted 2 only allowed the Defendant to dispose of the instant golf membership membership, which is the principal security of the victim’s claim KRW 30 million without securing a substitute security, and that the Defendant did not sell the instant golf membership on or around January 5, 2010, it was difficult to accept the Defendant’s disposal of the instant golf membership by intention. In full view of the following, it is difficult to accept the Defendant’s disposal of the instant golf membership.

C. Determination on the assertion of unfair sentencing

Considering the fact that the defendant paid interest to the victim for a considerable period of time, and that it seems that the victim made considerable efforts to recover damage, and that the victim received dividends of KRW 58 million in the auction of real estate which is another security, the amount of damage caused by the crime of this case reaches KRW 248 million, but is not recovered, the damage did not reach an agreement with the victim, and other various sentencing conditions specified in this case, such as the defendant's age, character, character, occupation, occupation, intelligence and environment, motive and circumstance of the crime, means and method of the crime, and circumstances after the crime, etc., the defendant's assertion on this part is without merit.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Jeong Chang-hun (Presiding Judge)