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Reasons
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(영문) 서울고등법원 2013.05.16 2013노326
특정경제범죄가중처벌등에관한법률위반(횡령)등
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All appeals by the Defendants are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Fact-finding or misapprehension of legal principle

C. As to paragraph (1), around June 30, 201, the Defendants did not receive KRW 600,000,000,000 from Defendant A (hereinafter “victim”) to sell the membership of the J (hereinafter “the instant golf course”) operated by the Victim L Co., Ltd. (hereinafter “victim”) and deposit the membership to the victim company. However, upon filing a lawsuit claiming the return of the membership fee of the instant golf course against the victim company, the Defendants demanded additional security and offered it as security. As such, the Defendants took measures for the benefit of the victim company to avoid the lawsuit with the creditors to resolve the dispute smoothly, the lower court found the Defendants guilty of this part of the charges, in so doing, by misapprehending the legal principles or erroneous determination of facts, which affected the conclusion of the judgment.

B. The lower court’s sentence on the Defendants of unreasonable sentencing (one year and six months of imprisonment) is too unreasonable.

2. Determination:

A. In the crime of occupational breach of trust regarding an assertion of mistake of facts or misapprehension of legal principles, the term “act in violation of one’s duty” includes any act in violation of a fiduciary relationship with the principal by failing to perform an act that is naturally expected under the provisions of law, the terms of a contract, or the good faith principle, or by performing an act that is anticipated not to perform as a matter of course in light of specific circumstances

Furthermore, in order to establish the crime of occupational breach of trust, there should be subjective requirements such as awareness of occupational breach of trust and recognition that he or a third party acquires the benefit and causes damage to himself, i.e., intent of breach of trust.

Since these perceptions are sufficient to do so, the result of the act is part of the recognition.

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