Defendant

Both parties

Kim Su-soo

Law Firm Sung-woo, Attorney Lee Jong-hoon

Suwon District Court Decision 2007Ma1706, 1879 (Consolidated Judgment) Decided October 10, 2008

The guilty portion of the judgment of the court below shall be reversed.

Defendant shall be punished by a fine of KRW 1,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

Of the facts charged in this case, the charge of occupational breach of trust is acquitted.

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

A. Defendant (as to occupational breach of trust, fabrication of private documents, and uttering of private documents)

1) As to occupational breach of trust, among the 139 franchise stores listed in the attached Form 139 franchise stores, ① on June 9, 2005, 24 of the 139 franchise stores, the 139 franchise stores remains as the complainant's franchise stores until the contract is terminated with the non-indicted 7 Co., Ltd. (hereinafter "non-indicted 8 Co., Ltd.") on June 9, 2005; ② there was no conversion into another company; ② 45 franchise stores away from their own judgment without their relation with the defendant, or closed down their business; ③ The remaining 70 franchise stores were not managed by the defendant's non-indicted 1 Co., Ltd. (hereinafter "non-indicted 1") or were converted into a franchise store independently recruited and managed by the non-indicted 1's own agencies without the defendant's instruction or consent; and eventually, the defendant did not have to arbitrarily convert credit card member stores into another company's credit card brokerage terminal, as described in paragraph 1 of the judgment below.

2) With respect to the fabrication of private documents and the uttering of falsified Documents, the credit card transaction approval service contract made in the name of credit card member stores, complainants, and non-indicted 1's third party is formally prepared in order to receive the grant paid by the complainants to the chain store, and even though the complainants knew that the contract was made without the consent of the relevant chain store for this purpose, the judgment of the court below which recognized the defendant's liability for the crime of forging private documents and the uttering of falsified Documents.

(b) Prosecutors;

In full view of the evidence submitted by the prosecutor, the complainant company reduced the fee according to the council's decision among the companies of the same industry and did not withhold the agency fees, but the defendant prepared and distributed a written appeal as stated in this part of the facts charged, thereby impairing the reputation of the complainant. Thus, the judgment of the court below which acquitted this part of the facts charged is erroneous in the misunderstanding of facts.

2. Determination on occupational breach of trust

A. Summary of the facts charged

On March 31, 2004, the Defendant is the representative director of Nonindicted Company 1, and around March 31, 2004, the Defendant: (a) concluded a contract with Nonindicted Company 1 in the management of the Defendant for a credit card company, which is an information and communications division business (hereinafter “VN network”); (b) concluded a credit card table management agency contract with each credit card affiliate business on behalf of the complainant; (c) concluded a contract with each credit card affiliate business operator for credit card inquiry, credit card transaction approval, and demand for replacement of credit card affiliate business operators; and (d) was obligated to manage each affiliated store on behalf of the complainant; and (e) made the existing affiliated business operator arbitrarily convert the revenue of Nonindicted Company 1 into another affiliated business operator; and (e) made Nonindicted Company 2, the vice president of the said company, the vice president of the said company, and (e) made Nonindicted Company 1, the 2005 affiliated business operator, the 205 affiliated business operator, from the time of the 3rd affiliated business operators, to the 25th affiliated business operators.

B. The judgment of the court below

The court below found the defendant guilty of the above facts charged on the premise that the defendant's act constitutes a person in charge of managing member stores, who is a complainant's business.

C. Judgment of the court below

1) Facts of recognition

(1) A complainant shall conduct information and communications network business [service] by using a credit card circuit device (if a credit card merchant send information and payment information to a credit card company's electronic data processing device via a device, then the complainant sent the information to the credit card company after receiving approval from the credit card company], automatic transfer of credit sales proceeds [a service], automatic transfer of credit cards (a credit card company notifies the credit card company of the result of approval by receiving approval from the credit card company after the complainant sent the information to the credit card company], a credit card company's request for payment of sales proceeds on behalf of the credit card merchant so that the credit card company deposits the credit card price from the credit card company to the credit bank account of the chain bank of the merchant (DA CAPURE) (a credit card company collects the credit card slip from the credit card company on behalf of the complainant and manages it for a certain period of time, and submits it at the request of the credit card company, the complainant company concluded the credit card company's business with the credit card company's credit card company's credit card company's agent contract and sales contract's agent's agent's 200 years.

② According to each of the above contracts entered into between the complainant and Nonindicted Company 1, Nonindicted Company 1, upon receipt of an application for the use of “DC (DC) services” from the credit card merchant under the contract for the management of the franchise store, shall be provided by each franchise store with the above services from the complainant, and when there is a defective franchise store in the process of collecting sales slips from the complainant and providing the above “DC services,” the complainant shall be obligated to notify and process such sales slips to the complainant, and under the contract for the agent contract and the contract for the contract for the franchise, the complainant shall sell and install the terminal of the company, which is the complainant, to the franchise store and bear the obligation of managing the above terminal repair, etc.

③ In addition, in the above agency contract, when the place of business of Nonindicted Company 1 was used as the business place of the company in competition with the complainant company, or when the employee of Nonindicted Company 1 acts as an agent or broker for the business of the company in competition with the complainant company, the complainant may take measures, such as warning and demand for correction, against the Nonindicted Company 1. If it is determined that either Nonindicted Company 1 or its joint guarantor concludes a contract for the same type of business and agency of the complainant company or that it acts as an agent or broker for the competitor company, the complainant may give notice to Nonindicted Company 1 for a fixed period of

④ However, as the vice president of Nonindicted Company 1 was unable to recover KRW 300,000 from the Defendant for Nonindicted Company 1’s business operations, Nonindicted Party 2 demanded the Defendant to move 300,000 member stores of Nonindicted Company 1 to himself/herself around the end of 2004, and around December 2004, established ○○○ Company, which is engaged in the same business as that of Nonindicted Company 1, at the office of Nonindicted Company 1.

⑤ On January 2005, 2005, the ○○○○○○ established by Nonindicted Company 2, who was an employee of Nonindicted Company 5 and 6, was mainly engaged in the business against the existing member stores of Nonindicted Company 1, and most member stores of Nonindicted Company 1, from January 2005 to May 2005, were registered as the member stores of Nonindicted Company 3 (English name omitted) or Nonindicted Company 4 (English name omitted) in competition with the complainant through ○○○○○.

6. Upon becoming aware of the breakout of such chain store, the complainant notified Nonindicted Company 1 of the cancellation of the agency contract for reasons of business performance arising from the prohibition of concurrent operation of the same type of business as determined by the agency contract and the breakout of the chain store.

7) Meanwhile, in a lawsuit claiming damages against Nonindicted Company 1 and Defendant, Nonindicted Company 1 was sentenced to a judgment in favor of the Plaintiff to the effect that Nonindicted Company 1 and the Defendant, a joint guarantor, are liable to compensate for damages equivalent to the loss of profit in its services, on the ground that there was a breach of contract committed by Nonindicted Company 1, and the Defendant, a joint guarantor, are liable for compensating for damages equivalent to the loss of profit in its services, on the ground that Nonindicted Company 1 and a joint guarantor, were liable to manage a franchise store in good faith according to an agency contract with the complainant company, and not sell or provide services of the same or similar card terminals that are sold and leased by the complainant company, and they should not act as an agent for or act as an intermediary for an enterprise in competition with the complainant company (Seoul High Court Decision 2006Na1494 delivered on January 16, 208).

2) Determination

Since the crime of breach of trust is established when a person who administers another person's business obtains pecuniary benefits through an unlawful act of breach of trust and causes damage to another person who is the principal agent of the business, the principal agent of the crime must be in charge of another person's business. In this context, in order to be "a person who administers another's business", the principal agent of the crime must be in charge of another person's business, and the principal agent must be in charge of protecting and managing another person's property based on a fiduciary relationship between the two parties beyond a mere obligation under a fiduciary relationship. If the business is not a person's business but a person's own business, the principal agent does not constitute a person who administers another person's business (see Supreme Court Decision 2008Do11722, Feb. 2

In the instant case, prior to determining whether the Defendant, as stated in the facts charged above, allowed the 139 member stores listed in the separate sheet to be arbitrarily converted into a different group, prior to the determination of whether the accused was in the position of “person who administers another’s business” against the accused company, the accused company concluded a separate franchise management agency contract, agency contract, etc. with the non-indicted company to provide credit card inquiry service, credit sales proceeds automatic transfer service, etc. with each credit card member store, and to facilitate the provision of such services and management of the store, the non-indicted company 1 merely sold and installed the terminal of the accused company to the affiliated store, and collected sales slips through regular business of the affiliated store, and thus, it is unreasonable to view that the Defendant’s principal business is not in the relationship between the accused company and the non-indicted company’s principal business to collect certain fees from the non-indicted company, and thus, it should not be deemed that the defendant’s management of the same kind of business as the defendant company’s sales and management of the franchise store by himself/herself constitutes one’s own own trust or another company’s trust relationship with the defendant company.

3) Sub-decisions

Therefore, the judgment of the court below which recognized the defendant's crime of occupational breach of trust on the premise that the defendant is a person who administers another's business to the complainant company is erroneous and erroneous.

3. Determination as to the fabrication of private documents and the uttering of private documents

Comprehensively taking account of the evidence duly adopted and examined by the court below and the trial court, the defendant prepared "credit card transaction approval service contract" in the name of the representative of six stations as shown in the attached list of crimes, and submitted each of the above contracts to Nonindicted 9, who is the employee of the complainant, in order to receive sales incentives from the complainant company, and it is sufficiently recognized that the defendant used it. As alleged by the defendant, it is practically impossible to receive a third party contract from the franchisee, and it is practically impossible to prepare each of the above contracts in a formal form, or Nonindicted 9 made "I would give a sales incentive if I would make a third party contract." It is difficult to see that the defendant did not have the purpose to exercise the above contract, or that Nonindicted 9 knew that it was the above forgery."

4. Determination as to defamation

A. Summary of the facts charged

On June 28, 2005, the defendant prepared an appeal stating that "I have been able to do an act contrary to the intention of unilaterally reducing fees and reserving payments" and "I have been able to do so without any fact that the complainant company unilaterally reduced fees to the agency," and damaged the honor of the complainant company by openly distributing them by mail to the chain store located at 500s and by openly pointing out false facts.

B. Judgment of the court below

The defendant prepared and distributed an appeal stating that "the defendant unilaterally reduced the fees and suspended payments to the complainant company against the intention to do any act contrary to the intention to unilaterally reduce the fees," and the following circumstances acknowledged by the records of this case are as follows: ① the complainant company notifies the head office and the agency before May 10, 2005 to reduce the agency fees pursuant to the agreement between the card company and the pre-user company, and the time of application falls under the notification from the transaction occurred on March 3, 2005; ② the Fair Trade Commission decided on March 10, 2008 that the agreement on the payment level of the DC fees paid to the agency constitutes an unfair collaborative act; ③ the employee of the complainant company of the non-indicted 10 did not pay the fees to the agencies at the court of first instance and stated that there is no evidence to acknowledge that there is a lack of evidence to prove that there is a lack of evidence to prove that the defendant submitted the remaining evidence to the prosecutor.

In addition, it seems that the defendant's act was the purpose of informing other agencies of the fact that the reduction of the payment fee of the complainant company was done without consultation with the agency. It is difficult to see that the defendant had the intention of defamation at the time.

Therefore, the decision of the court below that acquitted the defendant under the latter part of Article 325 of the Criminal Procedure Act on the ground that there is no proof of a crime as to this part of the facts charged is just and acceptable, and there is no error of misunderstanding of facts as alleged by the prosecutor. Thus

5. Conclusion

Therefore, since the prosecutor's appeal is without merit, it is dismissed pursuant to Article 364 (4) of the Criminal Procedure Act, and the defendant's appeal as to occupational breach of trust is with merit, this part of the judgment of the court below should be reversed pursuant to Article 364 (6) of the Criminal Procedure Act. However, since the crime of forging private documents and the crime of uttering of each of the remaining judgment of the court below constitutes concurrent crimes under the former part of Article 37 of the Criminal Act, the entire conviction part of the judgment of the court below

The Defendant changed the procedure to receive sales incentives from Nonindicted Co. 7 to receive the sales incentives from the superior chain store, and required a three-way contract between Nonindicted Co. 1 and Nonindicted Co. 7 and the chain store. However, the chain store had the intent to forge the contract, with the intent to make it available at the office of Nonindicted Co. 1 located in the Government-Si 2 Dong (hereinafter omitted) on December 8, 2004, without authority, for the purpose of exercising the contract form for the credit card transaction approval service contract with the intent to obtain credit card approval from Nonindicted Co. 7, the Defendant stated “one year from August 1, 2004 to July 31, 2005” in the item welfare column of the special agreement as “35 won per case of approval,” and submitted the signature and seal of Nonindicted Co. 1, Nonindicted Co. 11, 77, and 11, in the name of each of the above Nonindicted Co. 1, the Defendant made the signature and seal of Nonindicted Co. 6’s “B” in the name of each Co. 1.

1. Statement of the defendant in the third protocol of the trial by the court below;

1. Each of the original judgments made by Nonindicted 10 and 9

1. Each credit card transaction approval service contract;

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

Article 231 of the Criminal Act (Incompetence of Private Document) Article 231 of the Criminal Act, Article 234 of the Criminal Act, and Selection of each fine.

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Until now, the defendant has no record of punishment for the crime of forging the private document in this case and uttering of the falsified investigation document in this case, and the personal benefits acquired through the crime of forging the private document in this case can be seen as not much significant, and other factors of sentencing specified in the arguments in this case, such as the defendant's age, character and conduct, environment, motive, means and method of the crime, results, etc., shall be determined as ordered by taking into

The summary of the charge of occupational breach of trust among the facts charged in the instant case is the same as that of the above 2-A-C, and as seen in the above 2-C-C, this part of the facts charged falls under the case where there is no proof of facts constituting the crime, and thus, is acquitted under the latter part of

[Attachment]

Judges Park Jae-sik (Presiding Judge)