(영문) 창원지방법원 2018.5.3.선고 2017고합283 판결

Defendant shall be punished by a fine of KRW 15,000,000. Where the Defendant fails to pay the above fine, the Defendant shall be confined in the workhouse for the period calculated by converting KRW 100,000 into one day.

The defendant shall be ordered to pay an amount equivalent to the above fine by provisional payment.

Reasons

Criminal facts

Around August 28, 2015, the Defendant, as the actual operator of the Company B, purchased 572 million won off air (PE-26AS40, hereinafter referred to as “the instant machinery”) from the Victim C Co., Ltd. (hereinafter referred to as “victim”), and concluded a contract deposit of KRW 52 million on the date of the contract, the remainder of KRW 52 million shall be paid on September 25, 2015, and the instant machinery shall be paid on or around September 16, 2015, and until all balance is paid, the ownership of the instant machinery shall accrue to the victimized Company (hereinafter referred to as “the instant contract”). The Defendant paid KRW 497 million as the price of the instant machinery, and paid KRW 57 million as the remainder of the machinery, which was kept at will, according to the instant contract, at around 27, 2015, the instant machinery shall be sold at will, and the ownership of the instant machinery shall be paid on or around September 16, 2015.

Summary of Evidence

1. Partial statement of the defendant;

1. Statements made by witnesses F and G in the second protocol of the trial;

1. Police suspect interrogation protocol of the accused;

1. The police statement concerning F;

1. The petition for complaint, the full certificate of registered matters, each sales contract for goods, estimates, requests for the payment of goods under a contract, the case of urging the performance of the obligation to pay the price for goods, the business registration certificate, and the details of the transactions for admission

1. A criminal investigation report (a business registration certificate, etc. attached), investigation report (a sales contract and deposit data attached thereto);

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 355(1) of the Criminal Act (Selection of Fine)

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The defendant and defense counsel's assertion

1. Summary of the assertion

Since the contract between the defendant and the injured company was concluded that the defendant disposed of the machinery and paid the price to the injured company, there was a justifiable reason to believe that the defendant was entitled to dispose of the machinery or that the defendant was authorized to dispose of the machinery of this case.

2. Relevant legal principles

In concluding a contract of sale and purchase of movable property, where the seller delivers the object to the buyer before the price is paid in full, but until the price is paid in full, the ownership of the object is reserved to the seller and the so-called special agreement for the reservation of ownership that the ownership is transferred to the buyer at the time when the price is paid in full, the agreement between the parties to transfer the ownership of the object is a condition precedent that the purchase and sale contract is concluded and the price is paid in full at the time when the object is delivered. Thus, even if the object is delivered to the buyer, barring any special circumstance, the seller may claim the ownership of the object reserved against the buyer as well as the third party until the price is paid in full (see Supreme Court Decisions 9Da30534, Sept. 7, 199; 2006Do8400, Jun. 1, 2007).

3. Determination

A. Comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and investigated by the court, the instant contract cannot be deemed as having been a contract under which the Defendant disposed of the machinery and paid the price to the victimized company, and the Defendant is deemed not to have the right to dispose of the machinery of this case at his discretion. Accordingly, the Defendant and the defense counsel’s assertion on this issue is rejected.

1) It cannot be deemed that the instant contract concluded on August 28, 2015 was a contract under which the Defendant disposed of the instant machinery and paid the price to the victimized company.

① On August 28, 2015, when the Defendant entered into a contract to purchase the instant machinery from the victimized Company B, the Defendant paid 52 million won on the date of the contract, and the remaining 520 million won on September 25, 2015, and paid in lump sum at the time of the completion of construction and operation of the machinery. The instant contract includes “the place of delivery of the machinery” (Article 6), “the place of delivery of the machinery shall be the place designated by B (Article 6), and the ownership of the goods shall belong to the victimized Company until full payment of the price for the goods is made in cash, and “B shall not perform any act infringing on the ownership of the victimized Company, such as transfer, lease, or establishment of collateral security, without the consent of the victimized Company, and the victimized Company may freely enter the place where the goods are located (Articles 7, 9, and 10) without the consent of B (Article 7, 10). The content of the instant contract is not included in the content of the instant construction contract.

② Around September 25, 2015, the injured company supplied the instant machinery and completed the verification of the performance of the machinery (the inspection of whether the product is processed in the figures entered into the instant machinery) by conducting a trial run after installing it in B (the inspection of the level of equipment): (The damaged company shall undergo the examination of the witness F in the second protocol of the protocol of the trial), and thereby, the injured company shall perform the "the completion of the delivery and operation of the goods, which are the terms and conditions for the payment of the remainder specified in the instant mechanical sales contract," and received KRW 40 million from B on September 24, 2015, and KRW 5 million from B on October 84, 2015, and urged B to pay the unpaid amount of KRW 75 million (Evidence 32 through 35 of the evidence record).

③ At the side of the victimized Company, G conducted the business of the victimized Company’s agency, and entered into the instant contract with the Defendant upon delegation from the victimized Company to trade the instant machinery. G was present at this court as a witness and stated in this court that “The terms and conditions for the payment of the remainder upon completion of delivery, delivery, and operation at the time of concluding the contract on August 28, 2015” do not mean that the machinery is sold to a third party and the machinery is not paid any balance after the completion of installation.” (The second trial record of the trial record of the witness G is the third page of the witness examination record).

2) As examined below, G entered “specific matters” as stated in the contract (Evidence No. 1) held by the Defendant around 2016, but it cannot be deemed that the content thereof constitutes a part of the Defendant’s arbitrary disposal of the instant machinery. Not only did G have the right to modify the instant contract without the approval of the victimized Company, but also did not have the right to modify the instant contract with G to the victimized Company, and there is no fact that G obtained approval for stating “specific matters” to the victimized Company. As such, the content of the instant contract cannot be deemed to have changed into a contract with the content that the Defendant disposes of the machinery and pays the amount to the victimized Company.

① As the instant mechanical sales contract kept by the Defendant, G entered “1. The expenses incurred in the sale and purchase of the instant mechanical sales contract and the public announcement of the withdrawal and transfer shall be transferred and installed in separate consultations. 2. At the time of the release of the sale and purchase, A/S shall enter into force (temporary storage). 3. The level of equipment shall correspond to the inspection record.”

② G appears as a witness in this court and “specific matters indicated in the sales contract held by B” are written in 2016 to personally assist a third party in the ex post facto management of equipment on the ground that G sells machinery from B to a third party due to its failure to pay a balance in full.

No approval has been obtained from the victimized Company with regard to the entries of the special issues, and special issues have been written only in the contract B (Article 3 to 5, 7, and 8 of the second protocol of trial).

③ In addition, G stated that “the procedural problems as well as the price for the sale of the instant machinery shall be reported to and approved by the victimized Company” (Article 10, 11 of the Examination Record of Witnesses in the second protocol of trial).

④ F, an employee of the victimized Company, was present in this court as a witness, and stated in this court that “F did not have any doubt about the contents of “special director under a sales contract of goods”, and did not submit any relevant civil procedure, and is now considered first.” (The second trial record of witness F in the trial record, Nos. 2 and 3);

3) Even if the instant contract was concluded with the intention to sell the instant machinery to a third party, it is difficult to view that the damaged company granted the Defendant general disposal authority on the instant machinery due to such circumstance, and thus, the Defendant’s selling of the instant machinery without the consent of the victimized company constitutes embezzlement of the instant machinery.

① Around May 2017, G stated that “No telephone from the Defendant requesting the transfer of machinery was received, and the Defendant was unable to hear that the machinery was sold to Dtech.” (The second protocol of the trial, the examination record of witness G in the witness examination record).

② In order to verify the Defendant’s statement (the statement that the instant machine was sold to G) in the course of investigation, G did not appear to have called the instant machine from the Defendant around March 2017, and there was no call from the Defendant to send the instant machine to the DNA test, and there was no request from the Defendant to send the installing team of the instant machine to the DNA test. On August 24, 2017, the instant machine was sold to the DNA test. In addition, “AS for the installation of the machinery was known from the DNA test to the Defendant.”

③ The F appeared as a witness in this Court, and stated, “F became aware of the transfer of the instant machinery after having been asked about how the instant machinery would have a problem with the installation of the instant machinery from Dtec.” (the second protocol of the trial, the examination record of the witness F, and the examination record of the witness F, are page 1 through 3).

④ The buyer, who purchased the instant machinery from the injured company, is a corporation B.

The defendant, as the representative of the private business chain, concluded the contract for the sale of the machinery of this case as the representative, seems to have disposed of the property of the damaged company as the property owned by the defendant.

B. In full view of the circumstances as seen earlier, namely, the content of the instant contract, the process of preparation of a director call, and the process of sale of the instant machinery, it cannot be deemed that there was a justifiable reason to believe that the Defendant had the right to dispose of the instant machinery. Accordingly, the Defendant and the defense counsel do not accept this part of the allegation.

The reason for sentencing shall be the range of applicable sentences under the law: 50,000 won to 15,000,000 won.

The scope of recommendations based on the sentencing criteria: Where a fine is selected, the sentencing criteria shall not apply.

The actual circumstances which are unfavorable to the determination of sentence.

The defendant has been punished for embezzlement, which is the same crime, and is sentenced to a suspended sentence of imprisonment due to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and is committed during the suspended sentence.

◎ 유리한 정상

The Defendant paid a considerable portion of the purchase price of the instant machinery to the victimized company prior to the instant crime.

- The Defendant sold the instant machinery and sold the instant machinery with the intent to pay the balance unpaid to the victimized company due to the purchase price, but was almost not paid the purchase price from E, and the part of the purchase price received was used for the expenses incurred in transferring and installing the instant machinery, and deemed that the Defendant failed to pay the remainder of the purchase price to the victimized company.

After committing the instant crime, the Defendant paid the full amount of the unpaid purchase price to the victimized Company, and the victimized Company expressed its intent not to be punished by the Defendant.

(1) The punishment as ordered shall be determined by comprehensively taking into account all the factors of sentencing as shown in the trial process of this case, such as the age, character and conduct, motive and means of a crime, and circumstances before and after a crime.

The acquittal portion

1. Summary of the facts charged

The summary of this part of the facts charged is that "the defendant has committed a crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) by embezzlement of machines equivalent to KRW 583 million at the market price by arbitrarily selling the machinery of this case in DNA while keeping the machinery of this case for the damaged company, as shown in the judgment.

2. Relevant legal principles

A. The crime of embezzlement under Article 355(1) of the Criminal Act is established by a person who keeps another's property to embezzlement or to refuse to return the property, and the amount of the property is still not affected by the establishment of the crime. On the other hand, the crime of embezzlement under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter "the Act on the Aggravated Punishment, etc.") is that the value of the property or profits on property acquired is at least five hundred million won, or five billion won, and the punishment is also aggravated depending on the amount of profit. Therefore, in applying Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, the principle of balanced punishment and punishment that should be calculated strictly and carefully to ensure a proper balance between the crime and the punishment should be maintained, based on the principle of liability and the liability should be proportional (see, e.g., Supreme Court en banc Decision 2005Do72888, Apr. 19, 2007; 2013Do5165381, Mar. 19, 2013.

B. The sale and purchase of movable property means the sale and delivery of movable property under a special agreement to reserve ownership of the movable property to the seller until the full payment of the purchase price is made. Such a contract is derived from the intent of the seller of movable property to acquire and pay the effect of security on the claim for payment until the seller receives the purchase price in full (see, e.g., Supreme Court Decisions 2009Do5064, Feb. 25, 2010; 2013Da61190, Apr. 10, 2014).

3. Determination

A. According to the evidence duly adopted and examined by this court, the following facts are acknowledged.

① On August 28, 2015, the Defendant, as a de facto operator of B, purchased the instant machinery from the victimized Company in the name of KRW 572 million, and paid interest in arrears calculated at the rate of 25% per annum from the day following the date of the agreement on the payment of the purchase price, and entered into the instant contract to vest in the victimized Company until B fully pays the purchase price.

② By October 8, 2015, B paid 497 million won out of the sales price of the instant machinery to the victimized company.

③ Around March 25, 2017, the Defendant, as a representative of the Btech, sold the instant machinery to E at KRW 583 billion (including value-added tax).

④ On February 2, 2018, the custodian C, a rehabilitation corporation, received KRW 75 million from the Defendant for the remainder of the purchase price under the instant contract, and the Defendant and B, such as the revocation of a complaint against the Defendant around February 2, 2018, shall prepare an agreement with the Defendant and the B, and obtain permission from the rehabilitation court on February 7, 2018.

B. Examining the following facts in light of the legal principles as seen earlier, the Defendant, as a de facto operator of B, is in the position of a custodian for the victimized company of the instant machinery delivered through the ownership reservation agreement until the remainder of the purchase price of KRW 75 million under the instant contract and damages for delay therefrom are fully paid. The amount of profit the Defendant acquired to the victimized company by arbitrarily selling the instant machinery is not deemed to exceed KRW 572 million after deducting KRW 497 million already paid to the victimized company from the purchase price of the instant machinery at KRW 572 million. In the case of the sale of one movable property, the ownership reserved by the seller has the substance of security interest (see Supreme Court Decision 2013Da61190, Apr. 10, 2014). The remainder of the purchase price of the instant machinery, which the victimized company reserved under the instant contract, was not paid, and damages for delay as well as damages for delay.

② Damage incurred by a victimized company by the Defendant’s embezzlement of the instant machinery is the loss of security for the remainder of the purchase price to be paid under the instant contract.

③ As long as B, the buyer of the instant machine, paid KRW 497 million out of the purchase price of the instant machine to the victimized company, the Defendant, when selling the instant machine to a third party, deemed that the economic profit acquired with respect to the victimized company is in excess of the remaining purchase price of KRW 75 million and damages for delay, and is in excess of the sales price of the instant machine’s KRW 583 million and the entire amount equivalent to the market price of the instant machine’s KRW 583 million and the compensation for delay is in violation of the principle of balance and the principle of liability.

4. Conclusion

Therefore, the amount of profit that the defendant acquired through the embezzlement of this case does not reach KRW 500 million, and the evidence submitted by the prosecutor alone is insufficient to recognize that the amount of profit is at least KRW 500 million. Thus, the facts charged of this case must be pronounced not guilty pursuant to the latter part of Article 327 of the Criminal Procedure Act because the facts charged of this case fall under the case without proof of criminal facts, but if it is found not guilty in the judgment of embezzlement which

Judges

The presiding judge, judge and chief offender;

Judges Indices

Judges Gangseo-gu

Note tin

1) The indictment contains that the Defendant purchased the instant machinery from the victimized Company and entered into a sales contract for the ownership reservation register, but this is stated in the indictment.

Since the sales contract of the machinery of this case was concluded between B and the victimized company (Evidence No. 27) it is revised as such.

2) The indictment contains a statement that the Defendant sold the instant machine to D.D. (business registration number: 320-86-00683) but it is actually sold.

Since each contract was concluded between the defendant (Btek) and EDtek (Evidence No. 81, No. 86 of the Evidence Records), it shall be amended accordingly.

참조조문

-특정경제범죄 가중처벌 등에 관한 법률

-특정경제범죄 가중처벌 등에 관한 법률 제3조

참조판례

-대법원 1999. 9. 7. 선고 99다30534 판결

-대법원 2007. 4. 19. 선고 2005도7288 전원합의체 판결

-대법원 2007. 6. 1. 선고 2006도8400 판결