[1] In a case where a number of acts falling under the crime of occupational breach of trust is assessed as a comprehensive crime, and the amount of property profit meets the requirements for the constituent elements of the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust), matters to be

[2] The case holding that in case where the defendant, an employee in charge of accounting of Eul University's Eul, operated by the school foundation Gap, suffered losses to Eul corporation by again purchasing gift certificates using the corporate card under his management and selling them again and repaying his debts, etc. with the payment of his own loans, etc., and was prosecuted as violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation), the defendant cannot be held liable for the crime of occupational breach of trust as to this part, such as that the series of acts by purchasing gift certificates again with a corporate card for the purpose of preparing cash to pay the former month's corporate card price, and then using the card price repayment cannot be viewed as an unlawful acquisition intent

[1] The value of property gains is more than a certain amount of property gains as part of the constituent elements of the crime, and accordingly the punishment is aggravated accordingly, the value of property gains shall be strictly and carefully determined as to the degree that the value of property gains is more than a certain amount of property gains. If multiple acts constituting occupational breach of trust continue to be conducted for a certain period under a single and continuous criminal intent and thus the value of property gains meets the constituent elements of the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) by considering the single and continuous criminal intent in relation to the existence of the crime, it shall be strictly and carefully determined as to whether the intent of property gains is incidental to one's own interest by taking into account the single and continuous criminal intent

[2] The case holding that in case where the defendant, an employee in charge of accounting of Eul University's educational foundation Eul, purchased gift certificates using Eul's corporate card 51 which he manages and sold them again, and incurred losses to Gap corporation by means of paying his loans, etc., or private use of the above corporate card in restaurant, etc., and was prosecuted for violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) on the ground that the principal purpose of purchasing gift certificates is to settle the corporate card price that occurred in the preceding month, and the defendant continuously paid the corporate card price that occurred in the preceding month after deducting a certain discount rate (5-7%) from the purchase of gift certificates, the principal purpose of purchasing gift certificates is to pay the corporate card price that occurred in the preceding month, and the defendant cannot be deemed to have suffered losses from his own or the third party's intent to acquire the gift certificates, and the series of acts (the prevention of return of name) using the card price cannot be deemed to have accrued from his own account or the third party's intent to use the card price.

[1] Articles 37, 355(2), and 356 of the Criminal Act; Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes / [2] Articles 355(2) and 356 of the Criminal Act; Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes; Article 298 of the Criminal Procedure Act

[1] Supreme Court en banc Decision 2005Do7288 Decided April 19, 2007 (Gong2007Sang, 923) Supreme Court Decision 2012Do5220 Decided August 30, 2012, Supreme Court Decision 2012Do3840 Decided September 13, 2012

Defendant

Defendant

Epick et al.

Attorney Cho Jae-chul

Daejeon District Court Decision 2014Gohap9 Decided March 28, 2014

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for three years.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

The Defendant purchased gift certificates with the corporate card under the name of ○○ University and discounted the purchase of gift certificates, and paid the purchase price of the corporate card for the last month. The corporate card price for which the Defendant was finally unable to pay was KRW 589,328,381, and paid the corporate card price for KRW 189,951,69,694 used by other departments. Accordingly, the Defendant’s actual outstanding amount was merely KRW 39,376,687 (= KRW 589,328,381, the corporate card price for which the Defendant was actually paid - KRW 189,951,694 on behalf of the Defendant) and the amount should be calculated by applying the amount of breach of trust. Nevertheless, the lower court erred by misapprehending the legal principles and misapprehending the legal principles that held that the amount of breach of trust is KRW 7,848,015,981, on the ground that there was no influence on the establishment of the crime of breach of trust.

B. Unreasonable sentencing

The sentencing of the lower court (four years of imprisonment) is too unreasonable.

2. Judgment on misconception of facts and misapprehension of legal principles

A. Summary of the facts charged

The Defendant is a person who served as a team leader or a fund manager of the accounting team under the jurisdiction of the Secretariat of ○○ University operated and managed by the victim Nonindicted Incorporated Foundation (hereinafter referred to as “Nonindicted Incorporated Foundation”).

From March 1, 2008, the Defendant, from March 1, 2008, was engaged in the affairs of issuing, keeping, and distributing the corporate card name of ○ University, receiving and distributing a request for card payment, and the affairs of confirmation of expenditure according to the resolution of expenditure of each department, the management of the account claiming payment of corporate card, keeping the passbook, and managing the revenue and expenditure of school expenses in the name of ○○ University.

The Defendant violated the duty to use the corporate card under the name of ○ University, notwithstanding the existence of an occupational duty to use it, and purchased gift certificates equivalent to KRW 8,007,840,00 on a total of 2,635 occasions from September 23, 2009 to April 25, 2013, with a total of KRW 8,635 times from around September 23, 2009 to around April 25, 2013, and repaid its loans, credit card payments, etc. (the remainder of KRW 189,951,694 out of the sales proceeds was used to pay the corporate card on behalf of the Defendant) to 7,817,88,306 out of the sales proceeds of the gift certificates sold to the gift certificate establishment, and paid its loans, credit card payments, etc. (the remaining amount of KRW 189,951,694 from April 20 to February 28, 2013).

Accordingly, the Defendant acquired property benefits equivalent to the sum of KRW 7,848,015,981 (=7,817,888,306 + KRW 30,127,675) and suffered damages equivalent to the same amount as the victim non-indicted corporation.

B. Relevant legal principles

The intention of the crime of occupational breach of trust is established in combination with the awareness that the person who deals with another's business is in violation of his/her duty to cause property damage to the principal and that the person's or a third party's intent to gain property gain is in violation of his/her duty. If the actor has expressed his/her intent to gain his/her own interest, the intention to gain his/her own interest is only incidental, and unless it is proved that the intention to gain or harm is the principal, it cannot be readily concluded that there was the intention of this crime (see Supreme Court Decision 88Do1523, Nov. 22, 198

Meanwhile, as the value of property gains exceeds a certain amount, the value of the property gains should be determined strictly and carefully as it is part of the constituent elements of the crime, and as the punishment is aggravated accordingly (see Supreme Court en banc Decision 2005Do7288, Apr. 19, 2007). If multiple acts constituting occupational breach of trust are continuously conducted for a certain period under a single and continuous criminal intent, and the value of the property gains meets the constituent elements of the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) in relation to the intentional existence of the crime, if the value of the property gains meets the requirement of the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation), it should be determined strictly and carefully, with regard to the intentional existence of the crime, by taking into account the unity and continuity of the criminal's intent in a single comprehensive crime

C. Judgment of the court below

The lower court determined that the Defendant acquired property benefits equivalent to KRW 7,848,015,981 as stated in the judgment, and incurred damages equivalent to the same amount to the victim, on the ground that, as long as the risk of damage was caused by the Defendant’s purchase of gift certificates using a corporate card under the name of ○○ University, it is reasonable to view that the Defendant violated his duties and caused the risk of actual damage to the victim’s property by purchasing gift certificates, and that the Defendant used the proceeds of selling the said gift certificates in settlement of corporate card payment, apart from the fact that it constitutes a ground for normal participation.

D. Judgment of the court below

(1) Facts of recognition

According to the evidence duly admitted and investigated by the court below, the following facts are recognized:

① The Defendant, while serving as the team member or the fund manager of the accounting team under the Secretariat of the ○○ University operated by the victim Nonindicted Corporation, purchased gift certificates worth KRW 8,007,840,000 in total over 2,635 times from September 23, 2009 to April 25, 2013, using 51 copies of the corporate card in the name of ○○ University.

② The primary purpose of the Defendant’s purchase of merchandise coupons is to settle the corporate card price that occurred during the preceding month, and immediately after the purchase of merchandise coupons, the Defendant has continuously repaid the corporate card price that occurred during the preceding month after deducting a certain discount rate (5-7%) from the sales and purchase of merchandise coupons.

③ The Defendant paid the corporate card price of KRW 7,448,530,294 with discounted gift certificates sales, and the corporate card price of KRW 589,328,381 is KRW 589,328,381.

④ The Defendant used the corporate card at ○ University’s department, which was part of 189,951,694 won, to pay for the card use amount which was not timely decided upon.

⑤ From April 20, 2009 to February 28, 2013, the Defendant used restaurants, main stations, etc. irrespective of his/her business, and paid a total of 30,127,675 won by using the corporate card under the name of ○ University over 518 occasions.

(2) Determination

According to the above facts, for the purpose of preparing cash to pay the corporate card price in the previous month, the defendant purchased gift certificates again by using a corporate card and realized them and used them to pay the card price to him/herself or a third party cannot be deemed to have accrued from the intention of illegal gains for himself/herself or the third party, and thus, he/she cannot be deemed to have actually inflicted any loss on the victim non-indicted corporation. Therefore, the amount of loss (amount of breach of trust) inflicted on the victim non-indicted corporation is the amount calculated by deducting 189,951,694 won, which was paid by the defendant for the corporate card price in another department without the defendant's responsibility, 30,504,362 won (=589,328,381 won - 189,951,6940,6940,375 won, which was paid by the defendant for the corporate card price in another department without the defendant's responsibility.

Therefore, since the part of the facts charged in this case exceeds KRW 429,504,362, the liability for the crime of occupational breach of trust cannot be imposed, since there is no proof of the facts charged. Therefore, the court below erred by misapprehending the legal principles on mistake of facts or the crime of occupational breach of trust.

3. Conclusion

Therefore, the defendant's appeal is reasonable, and it is reversed under Article 364 (6) of the Criminal Procedure Act, and it is again decided after pleading as follows. [In the event that there is no concern about actual disadvantage to the defendant's exercise of the defendant's right of defense in light of the progress of trial, the court may recognize ex officio a crime different from the facts charged within the scope recognized as identical to the facts charged even if the indictment was not modified. In this case, if the indictment is not punished for the reason that the facts charged are serious in comparison with the facts charged, and if it is not punished for the reason that the indictment was not modified, it would be remarkably contrary to justice and equity in light of the purpose of the criminal procedure, such as prompt discovery of substantial truth by due process, the court shall recognize the facts charged ex officio (see Supreme Court Decision 2005Do9268, Apr. 13, 2006). Since the facts charged in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) stated in the indictment of this case include occupational breach of trust, even if the defendant is punished as a crime of occupational breach of trust, there is no concern to change in its exercise of defense.

From March 1, 2006 to February 28, 2010, the Defendant served as a team member of the accounting team under the Secretariat of ○○ University, which is located in Daejeon (hereinafter omitted) operated and managed by the victim Nonindicted Corporation. From March 1, 2010 to May 31, 2013, the Defendant served as the head of the accounting team.

From March 1, 2008, the Defendant, from around March 1, 2008, engaged in the overall management of matters concerning the issuance, custody, and distribution of the corporate card name of ○○ University, receipt of a written request for card payment, distribution of each department, and disbursement confirmation according to the resolution of expenditure, management of the claim settlement account for corporate card payment, keeping of passbook, and receipt and disbursement of school expenses, and managed Chapter 51 corporate card under the name of ○○ University, such as the attached list of crimes.

The Defendant violated the duty to use the corporate card under the name of ○ University, notwithstanding the existence of an occupational duty, and accordingly, purchased a total of KRW 8,635 times from September 23, 2009 to April 25, 2013, a total of KRW 8,007,840,000 from around September 23, 2009 to around April 25, 2013, and deposited KRW 7,48,530,294 out of the total amount of KRW 189,951,694 out of the sales amount to the victim’s card settlement account. The Defendant used the corporate card at some departments of ○ University to pay the amount of KRW 189,951,694 out of the sales amount in lieu of the payment resolution. In addition, the Defendant used the corporate card to pay the total amount of KRW 575,70,000 from around April 20, 2009 to February 28, 2013.

Accordingly, the Defendant acquired a total of KRW 429,504,362 [the amount of KRW 589,328,381 [the amount of final unpaid payment out of the corporate card payment [the amount of KRW 8,007,840,00 - 7,448,530,294] - The amount of subrogated 189,951,694 + the card amount used in restaurants, etc. + KRW 30,127,675]; and the Defendant suffered a loss equivalent to the same amount of the non-indicted corporation.

The relevant column of the lower judgment is as stated in the judgment.

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

Articles 356 and 355(2) of the Criminal Act; the choice of imprisonment

1. Scope of punishment: Imprisonment with prison labor for one month to ten years;

2. Application of the sentencing criteria;

【Scope of Recommendation】

Type 2 (at least KRW 100,000 or less than KRW 500,00) Basic Area : 1 year or 3 years

【Special Convicted Persons】

None

3. Determination of sentence: Three years of imprisonment;

The Defendant used a corporate card in violation of his duties in the position of the manager of the corporate card for a multi-year period, thereby causing property damage exceeding KRW 400 million to the victim, which is disadvantageous to the Defendant. However, the Defendant did not have any history of criminal punishment, and led to the failure to recover the damage, etc. However, in the course of the instant crime, most of the damage occurred in the course of the instant crime, as it appears to have occurred through the gift certificate discount rate, and the Defendant’s profit appears to be less than the amount of damage, the Defendant’s profit appears to have been less than the amount of damage, the Defendant’s age, the background and method of the crime, the method of the crime, and the circumstances after the crime, etc., shall be determined as per the order,

1. Summary of the facts charged

2.As described in paragraph A(a) above.

2. Determination

With respect to the defendant, the prosecutor prosecuted the defendant against the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) on the ground that the defendant acquired a total of KRW 7,848,015,981 and suffered damage equivalent to the same amount to the victim non-indicted corporation. However, the part exceeding KRW 429,504,362 falls under the case where there is no proof of the criminal facts as seen earlier, and thus, the defendant must be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as it is found that the defendant guilty of the occupational breach of trust as stated in the above facts charged, it shall not be sentenced separately to

Judges Lee Jae-won (Presiding Judge)