2017Do19568 Ga. Violation of the Trademark Act

(b) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes;

1. (a) A;

2. A. B (former Trade Name: C)

Defendants

Law Firm (Limited LLC, Attorneys E, F, G, and H (For the Defendants)

Busan High Court Decision 2017 358 decided November 9, 2017

February 14, 2019

The part of the judgment of the court below against Defendant A is reversed, and that part of the case is remanded to Busan High Court.

Defendant B’s appeal is dismissed.

The grounds of appeal are examined.

1. As to the Defendants’ violation of the Trademark Act among the facts charged in the instant case

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, the lower court is justifiable to have determined that all of the facts charged against the Defendants were guilty, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by exceeding the bounds of the principle of free evaluation of evidence or by misapprehending the legal doctrine

2. Of the facts charged in this case, as to Defendant A's violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

A. Determination on the assertion in the grounds of appeal that this part of the facts charged was not specified

1) The purport of the Act, which stipulates the date, time, place, and method of a crime, to specify the facts charged, is to limit the object of the trial to the court and to facilitate the exercise of the right of defense by specifying the scope of defense against the defendant. Therefore, the facts charged are sufficient if it is stated to the extent that it is possible to distinguish the relevant facts from other facts by integrating these elements (see Supreme Court Decision 2004Do6646, Jan. 14, 2005, etc.). The main text of this part of the facts charged is as follows. (A) The summary of this part of the facts charged is as follows: “Defendant A paid part of the charges to the victim C (hereinafter referred to as “victim C”)’s business entity, who is the customer of the victim C (hereinafter referred to as “the victim”), with the payment of value-added tax by falsely or in excess, and then embezzlement the remaining amount after deducting the value-added tax, from 30 days in total, 200 to 317 days in daily consumption and 27 days in advance.

B) However, the embezzlement method column of the above attached crime list (2) states "Embezzlement" as "Embezzlement by means of falsely or excessively appropriating and returning parts". "277 times" as stated in the main text of the above charges is "21, 374, 309 won" as the total number of times deposited into the instant non-funds account returned from customers, not the total amount of voluntary consumption, is entered as the total sum of deposits made into the instant non-funds account from customers. Meanwhile, for each deposit amount, the "user's supervision, seafarer's cash, entertainment expense, golf course use expense (gldump), cash balance, personal cash appropriation expense, individual loan, personal loan, and non-consumption, etc., and there is no specific time and place of consumption as stated in the attached Table (2). However, there is no specific number of times and place of consumption as stated in the attached Table No. A. 3, the total amount of money to be deposited into the instant non-funds account.

On the other hand, while the creation date and amount are specified in the embezzlement method, the use is comprehensively and collectively recorded without specifying the date and time and place. In full view of the composition and contents of these facts charged, it can be sufficiently known that the performance of the creation of the non-funds itself is regarded as embezzlement and the prosecution has been instituted.

Examining these circumstances in light of the above legal principles, although the first instance court or the lower court did not clarify this part of the facts charged based on the right to command the lawsuit or the right to order the presence of the court, it cannot be deemed that the subject of the trial is unclear to the court or that the Defendant caused the difficulty of defense to the court. In so doing, the lower court did not err by misapprehending the legal doctrine on the specification of facts charged, as alleged by the Defendant A, thereby affecting the conclusion of the judgment.

B. Judgment on the ground of appeal as to whether to recognize an intention to obtain unlawful acquisition

1) For the purpose of establishing the crime of occupational embezzlement, there is an intention of unlawful acquisition, referring to the intent of disposal of the property of another person in his/her custody, as in fact or by law, in breach of his/her occupational duty, for the purpose of pursuing the benefit of himself/herself or a third party. Even if an operator or a manager of a corporation created a secret fund by using a corporation’s funds, it is difficult to recognize the intent of unlawful acquisition where it is recognized as a means of raising funds necessary for the operation of the corporation. However, if the operator or the manager of a corporation has no relations with a corporation, or otherwise raised a secret fund for the purpose of returning the corporation’s funds for personal purposes, not for a corporation, without any connection with a corporation, or for personal purposes, it can be deemed that the intent of unlawful acquisition was realized by the act of raising the secret fund. In this case, whether there was the purpose of deducting the corporation’s funds from the corporation’s funds should be determined by comprehensively taking into account the nature of the corporation’s funds and the motive, method, size, period, method of storage, method of

9. Supreme Court Decision 2010Do11015 Decided January 1, 200

In addition, the fact that there was embezzlement as an act of realizing the intent of unlawful acquisition should be proved by strict evidence of probative value, which makes the judge not more likely to have any reasonable doubt. If there is no such evidence, even if there is doubt about the defendant's guilt, it is inevitable to determine it as the benefit of the defendant (Supreme Court Decision 2008.8.)

21. See, e.g., Supreme Court Decision 2007Do9318, supra)

2) According to the reasoning of the lower judgment and the record, the following facts are revealed. (A) The victimized Company was established around 1981 and engaged in vessel parts sales business, etc., and Defendant A is a shareholder who actually owns all the shares of the victimized Company.

B) The instant non-financial account was opened under the name of J, Defendant A’s wife, but the said account was used only for the purpose related to the non-financial funds of the victimized company, and was managed by K by the staff in charge of accounting of the victimized company.

C) Defendant A created funds in a way that received goods payment from a trader in a false or excessive manner. Defendant A, as well as Defendant A, was aware of the fact that the officer or the head of the business team, who is in charge of issuing and receiving tax invoices from the trader, was involved in the process of raising funds.

D) The first instance court maintained by the lower court, from February 1, 2006 to July 3, 2012, deemed that KRW 821,374,309 was deposited and raised as non-funds. However, the actual use of the instant account was from July 2, 2005 to July 2012, the said account was 2,325,492,543 won in total in cash or in life account. Of that, the amount deposited from the said account was 409,376,302 won in total, and the amount deposited from individuals or companies presumed to be the other party to the transaction was 1,916,116, and 241 won in total, and the remaining amount was 300 won in the company’s statement for public prosecution with the exception of the initial amount deposited by the other party to the transaction, and the public prosecutor was 209,260 won in the first instance court’s statement for the remainder of the amount charged to Defendant 26.26.

F) From July 2012, Defendant A discontinued the creation of the aforementioned funds from around July 2012, and the investigation into the instant case was conducted from around July 2015.

G) Defendant A did not have been punished for re-violation of trust in relation to the use of entertainment expenses for the trading company or crew members.

3) Examining these facts in light of the legal principles as seen earlier, it cannot be deemed that Defendant A created the instant rain funds for personal purposes without any connection with the victimized company and the formation of the funds itself to the extent that there is no reasonable doubt that the intent of unlawful acquisition was realized. The reasons are as follows. (A) Although Defendant A actually owns it, the victimized company is separate from the personal account of Defendant A, and the raising, keeping, and enforcement of the funds was carried out by Company A and K in charge of its business team and accounting.

B) In light of the statement of K in charge of accounting, some of the above funds have been used as entertainment expenses, cash expenses, etc. for the company’s business needs (in this case where three years have elapsed since July 2012 when the creation of the instant funds was interrupted, even if Defendant A was unable to submit data related to the use and accounting of the funds, it is necessary to be carefully assessed to the disadvantage of the Defendant.) The above entertainment expenses or cash expenses were used for illegal purposes contrary to the interests of the victim company, such as misappropriation, which are associated with illegal solicitation.

C) From the total amount deposited in the instant non-funds account of KRW 2,325,492,543, the amount paid for personal purposes, such as personal deposits and loans in the name of Defendant A recognized by the lower court is merely KRW 358,092,403, and it is difficult to readily conclude that the entire amount of the instant non-funds was created for the personal interest of Defendant A.

4) Nevertheless, the lower court did not have objective evidence that Defendant A used the funds for the purpose alleged by Defendant A, and determined that Defendant A had an intent to obtain unlawful acquisition regarding the raising of funds for the purpose of personal use, such as the payment of entertainment expenses and receipts and disbursements of funds in the name of a customer, among the places of use claimed by Defendant A, constitute capital in breach of trust. It is reasonable to deem that the disbursement was made for the purpose of promoting the other party’s interest, rather than for the purpose of the company’s interest, or for other purposes. Of KRW 821,374,309, the amount of KRW 358,092,40,092, and 403, out of KRW 821,374, and 309, was used for the purpose of the company’s interest.

5) In so determining, the lower court erred by misapprehending the legal doctrine on the intent to illegally obtain the crime of occupational embezzlement with respect to the creation of funds and the burden of proof therefor, thereby adversely affecting the conclusion of the judgment. The Defendant A’s ground of appeal assigning this error is with merit.

3. Scope of reversal

For the above reasons, the part of the judgment of the court below on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) against Defendant A should be reversed. Since the court below rendered a single sentence against Defendant A on the ground that this part of the judgment of the court below and the remainder of the facts charged against Defendant A are concurrent crimes under the former part of Article 37 of the Criminal Act, the part on Defendant

4. Conclusion

Therefore, the part of the lower judgment against Defendant A is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. Defendant B’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok

Justices Noh Jeong-chul

Jeju High Court Decision 201No. 50

Justices Kim Gi-hwan.