Whether or not there is a possibility that a father in a relationship of command and happiness on duty will not participate in the act of law of a workplace company (affirmative)

Articles 12 and 356 of the Criminal Act

Supreme Court Decision 99Do1911 delivered on July 23, 1999 (Gong1999Ha, 1832) Supreme Court Decision 2004Do5685 Delivered on July 29, 2005

Defendant 1 and two others

Defendants

Attorney Park Jong-hwan et al.

Busan High Court Decision 2006No654 decided January 25, 2007

All appeals are dismissed. As to Defendant 1, 100 days out of the number of detention days after the appeal shall be included in the original sentence.

The grounds of appeal are examined.

1. As to Defendant 1’s ground of appeal

A. As to each Acceptance of Materials

The crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes is established when an officer or employee of a financial institution gives or receives money, etc. in connection with his/her duties, and it does not affect the establishment of the above crime on the ground that it has given or received money to another person.

In light of the above legal principles and records, the court below's decision that affirmed the judgment of the court of first instance which found Defendant 1 guilty of each acceptance of the evidence after compiling the adopted evidences is just and acceptable, and there is no error of misunderstanding of facts against the rules of evidence or misunderstanding of legal principles as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, as otherwise alleged in the ground of appeal.

B. As to each occupational breach of trust

The intention of the crime of occupational breach of trust is established in combination with the awareness that the person handling another's business affairs causes property damage to the principal and that the intention of his or her or a third party is in violation of his or her duties. The subjective element of the crime of occupational breach of trust (such as intention, motive, etc.) is the subjective element of the crime of occupational breach of trust in a case where the defendant denies the criminal intent by asserting that he or she committed an act at issue in his or her own interest was an act at issue, it is inevitable to prove an indirect fact that has considerable relation with the intention given the nature of the object, and what constitutes an indirect fact that has considerable relation with the intention should be determined by the method of reasonably determining the link of facts based on the sound observation or analysis power based on normal experience (see, e.g., Supreme Court Decision 9Do334, Apr. 11, 200). If the defendant had an intention to have his or her own interest, and if it is proved that he or she had had an intent to obtain property benefit or profit from the principal, it should not be determined as 200.

In light of the above legal principles and records, each of the loans of this case, etc. of this case, the purpose of using them for private purposes, such as raising funds for capital increase to the non-indicted 2 mutual savings bank of this case, among each of the loans of this case, and the loan to the non-indicted 1, the non-indicted 1 or the non-indicted 1, who is the major shareholder, includes the loan to the non-indicted 1 or the non-indicted 1, etc. for the purpose of using them for the purpose of private purposes, such as raising funds for capital increase, etc., shall be deemed to have the intention of occupational breach of trust in carrying out each of the loans of this case, and it shall not be deemed that each of the loans of

In the same purport, the court below is justified in finding Defendant 1 guilty of each occupational breach of trust, and there is no error of law such as misunderstanding of facts against the rules of evidence or misunderstanding of legal principles as to occupational breach of trust. The ground of appeal related to this is without merit.

C. As to the lending to each investor and the alteration and uttering of private documents

In light of the records, the court below was justified in finding Defendant 1 guilty of violating the Mutual Savings Banks Act and of altering or exercising private documents by comprehensively taking account of the adopted evidence and lending loans to Nonindicted 1, etc. who are the investors of Nonindicted 2 Mutual Savings Banks, and there is no error of law such as misunderstanding of facts or misunderstanding of legal principles due to violation of the rules of evidence, as otherwise

D. On the issue of unfair sentencing

In this case where Defendant 1 was sentenced to imprisonment for less than 10 years, the argument that sentencing is unfair cannot be a legitimate ground for appeal.

2. As to Defendant 2’s ground of appeal

In general, in relation to accomplices who are co-processed with more than two persons in a crime, the conspiracy does not require any legal punishment, and is only a combination of intent to realize the crime through the joint and processing of a crime. Even if there was no process of conspiracy, if there was a combination of intent in order or impliedly, among several persons, the conspiracy relationship is established, and even if there was no direct participation in the act of conspiracy, even if there was a person who did not participate in the act of conspiracy, he/she is held liable for the other co-principal's act (see Supreme Court Decision 2004Do1465, May 28, 2004, etc.).

In light of the above legal principles and records, the court below was justified in finding Defendant 2 guilty of each crime of this case by integrating the adopted evidence, and there is no error of law such as misunderstanding of facts or misunderstanding of legal principles due to violation of the rules of evidence as otherwise alleged in the

3. As to Defendant 3’s ground of appeal

It cannot be said that there is no possibility of not participating in the act of law solely on the ground that the part of the employee's participation in the act of law is in the relation of command and punishment on duties (see Supreme Court Decision 2004Do5685, Jul. 29, 2005, etc.).

In light of the above legal principles and the records, the court below recognized the fact that Defendant 3, in collusion with Defendant 1, etc., performed the loan business with the knowledge that each loan listed in the annexed list of crimes in the judgment of the court of first instance was made against investors, etc. and performed without reasonable claims preservation measures. Even if Defendant 3 stated a somewhat dissenting opinion in the first examination process of the loan, the court below is just in holding that Defendant 3 may not be held liable as an accomplice as long as he participated in the loan business with the knowledge of the fact that the loan is an insolvent loan and gave considerable consent, and there is no error of law such as misunderstanding of facts against the rules of evidence or misunderstanding of legal principles as to the crime of occupational breach of trust due to

4. Therefore, all appeals are dismissed, and part of the number of detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)