In a case where Defendant, a person in charge of the loan business, etc. of the union A, offered land owned by the wife and the mother and received a loan under his name, and cancelled the registration of the establishment of the neighboring land offered as security by forging the power of attorney, etc., and was prosecuted for violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation), the case holding that the lower court erred by misapprehending the legal doctrine on the grounds that the damage was inflicted on the union

Articles 355(2) and 356 of the Criminal Act, and Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

Defendant

Defendant and Prosecutor

Attorney Kim Sung-jin

Seoul High Court Decision 2013No3458 decided February 6, 2014

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

According to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, an appeal on the grounds of unfair sentencing is allowed. Thus, in this case where a minor sentence has been imposed on the defendant, the argument that the amount of punishment is unreasonable cannot

2. As to the Prosecutor’s ground of appeal

A. Of the facts charged in this case, the summary of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) is as follows: “The defendant is working for the victim non-indicted 1 cooperative (hereinafter “victim cooperative”) as a person in charge of loan business and credit management at the 00 Dong branch, and provided the victim cooperative as security and obtained loans in the name of Non-indicted 2 and Non-indicted 3 and Non-indicted 3 under the name of the defendant’s wife's wife and non-indicted 3 (number 1 omitted) and the same (number 2 omitted). Thus, until the loan is repaid, although there was an occupational duty to maintain the registration without cancelling the registration of the establishment of the neighboring mortgage of the land offered as security until the time the loan is repaid, there was a forgery of two copies of the termination certificate necessary to cancel the registration of the establishment on May 8, 2012, and submitted two proxy copies to the Incheon District Court on the same day, thereby causing the victim non-indicted 2 and non-indicted 3 to incur property loss equivalent to KRW 2000 million.”

B. According to the reasoning of the judgment below, the court below reversed the judgment of the court of first instance on the ground that it is difficult to deem that the above establishment registration was illegally cancelled without any cause, and that the validity of the right was not affected even before the completion of the restoration registration, and thus, the victim union still holds the right as a mortgagee, and that the third party with interest in each of the above land is obligated to accept the above restoration registration without asking her good faith and bad faith, and that the victim union is obligated to accept the above restoration registration, and that the victim union cannot be held liable for tort due to the defendant's employer or any other reason, and thus, it is difficult to deem that the

C. However, as recognized by the court below, if the defendant, who was in charge of loan business, etc. of the victim union, cancels the registration of establishment of a mortgage on the part of the victim union by forging the power of delegation and the certificate of termination, the victim union can dispose of the above collateral along with the secured debt, or not file an application for auction to recover the secured debt, thereby causing damage not to be different from the actual loss of the collateral. It does not change on the ground that the victim union can seek the registration of restoration of the registered mortgage on the part of the cancelled collateral.

Nevertheless, the court below erred by misapprehending the legal principles as to damages incurred in breach of trust, which found the Defendant not guilty on the part of the victim's act of breach of duty as above.

Supreme Court Decision 2010Do6490 Decided September 30, 2010, and Supreme Court Decision 2009Do14585 Decided March 25, 2010, cited by the lower court, are related to the act of breach of trust where the act of breach of trust is an act of assuming obligations, and it is inappropriate to invoke the instant case differently.

3. Conclusion

Therefore, among the judgment of the court below, the part of the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) that the court below acquitted is reversed, and the appeal against the guilty part of the defendant is without merit. However, since the crime of violation of the former part of Article 37 of the Criminal Act and the crime of not guilty are concurrent crimes under the former part of Article 37 of the Criminal Act, one sentence shall be sentenced. Thus, the judgment of the court below is reversed in whole, and the case is remanded

Justices Park Poe-young (Presiding Justice)