Defendant

Defendant

Gambling machine

Attorney Lee Jong-chul et al.

Suwon District Court Decision 2007Gohap515 Decided July 22, 2009

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

1. Summary of grounds for appeal;

The grounds for appeal filed by the defense counsel on September 4, 2009 after the deadline for submitting the grounds for appeal are examined to the extent that the grounds for appeal are supplemented.

A. misunderstanding of facts or misunderstanding of legal principles

(1) As to the violation of the Act on the Aggravated Punishment of Specific Economic Crimes (Misappropriation)

① The Defendant borrowed KRW 80 million from the victim to use it as the purchase fund of 41,554 square meters of forest land (hereinafter “instant land”) located in the old-gu repair (number 1 omitted), and the victim was engaged in the purchase of the instant land and the construction of warehouse by employing the victim as the employee of the Defendant company, and did not constitute a crime of breach of trust since there was no agreement with the victim to engage in the same business. Nevertheless, the lower court erred by misapprehending the fact, thereby finding the Defendant guilty of this part on the premise of the same business.

② Although the lower court identified the victim as Nonindicted 1, the lower court erred by misapprehending the legal doctrine or recognizing the victim as Nonindicted 1 by misapprehending the fact that, if the criminal facts acknowledged by the lower court were to be found by Nonindicted 1 and the Defendant for the purpose of purchasing the land as a partnership business and operating a logistics warehouse, the purchaser of the land is the Dong business entity, and therefore, it is not a victim by Nonindicted 1, a member of the Dong

In addition, even if the victim company failed to acquire the instant land equivalent to KRW 897,00,00 due to the Defendant’s act, the said land sale is subject to the land within the land transaction permission zone, and thus, the said land sale is a dynamic invalidation condition, and thus the cancellation of the said sale contract cannot be deemed as an act of breach of duty and cannot be deemed as an act of breach of duty, and there is no property damage to the said company. Since the use of the name of the contract between Nonindicted Co. 6 and Nonindicted Co. 1 is a title trust, the said company is entitled to seek the return of the land price paid to Nonindicted Co. 6 or Nonindicted Co. 1, the title trustee, under the provisions of the Act on the Registration of Real Estate under Actual Titleholder’s Name. Furthermore, the said company is exempted from the obligation to pay the purchase price of the said land due to the cancellation of the said sale contract, and thus no property damage occurs to said company. Nevertheless,

(2) As to appeal

The part of the contract for the purchase of the land of this case, which was executed by the victim without the consent of the defendant, was modified by entering “Non-Indicted 1” in the buyer column and affixing the seal, and thus, the defendant who filed the complaint did not constitute an offense of false accusation, thereby being convicted of this part of the judgment. Furthermore, according to the appraisal statement of the appraisal document drawn up, the court below erred by misapprehending the fact that the above contract for the purchase of the land of this case was modified by Non-Indicted 1, although it could be sufficiently recognized that the above contract for the purchase of the land of this case was modified by Non-Indicted 1.

(3) As to the perjury

Since all of the statements that the defendant appeared as a witness in the court of criminal cases against the victim are true, the court below erred by misapprehending the facts, thereby finding the defendant guilty.

B. Unreasonable sentencing

The sentence of the court below is too unreasonable.

2. Determination on the grounds for appeal

A. Judgment on misconception of facts or misapprehension of legal principles

(1) As to the violation of the Act on the Aggravated Punishment of Specific Economic Crimes (Misappropriation)

(A) The judgment of the court below

The lower court determined that the Defendant was merely 0,000 won of the instant sales contract for the Defendant’s 20th anniversary of the purchase and sale price of the instant land, and that it was difficult for the Defendant to enter into a new sales contract for the Defendant to enter into a new sales contract for the Defendant’s 20th anniversary of the purchase and sale price of the instant land, and that the Defendant was merely 10,000 won for the Defendant’s 20th anniversary of the purchase and sale price of the instant land, and that it was difficult for the Defendant to enter into a new sales contract for the Defendant to enter into a new sales contract for the Defendant’s 10th anniversary of the purchase and sale price of the instant land, and that it was difficult for the Defendant to enter into a new sales contract for the Defendant’s 20th anniversary of the purchase and sale price of the instant land, and that it was 80,000 won for the Defendant to enter into a new sales contract for the Defendant’s 2nd of December 5, 203.

(B) The judgment of this Court

Upon examining the records, the court below's decision that rejected the credibility of the defendant's statement and recognized the credibility of the non-indicted 1's statement in light of all the above circumstances as to whether the defendant's business relationship with the victim and the defendant concluded a new sales contract with the contents that the defendant would cancel the initial sales contract for the land of this case and exclude the victim, and then the act of completing the registration of ownership transfer in the name of the non-indicted 2 corporation and the defendant's father constitutes the crime of breach of trust is justified. The court below's decision that recognized the above facts and concluded the above facts is just. The non-indicted 7's statement of the witness in the court below's decision to the purport that is different from the fact-finding of the court below is hard to believe in light of the above various circumstances, and even if the statement in the appraisal statement in the form of solar heat and

Furthermore, among the grounds for appeal against the violation of the Specific Economic Crimes Act (Misappropriation of trust), one of the partners who are engaged in the business of transferring ownership under the business agreement is in the position of a person who administers another's business. A person who is in such position shall register the joint ownership with other partners or consult with other partners to promote the business purpose of the joint ownership transfer registration by determining the contents of the joint ownership transfer registration. However, if one of the partners has entered into a new sales contract that is unrelated to the other partners' business and received the registration of transfer of ownership in the name of the purchaser of the real estate to be incorporated into the same business property without the need to exclude the other partners, it constitutes a breach of trust with the other partners' trust. In light of the records duly examined and adopted by the court below, the defendant's act of transferring ownership to the non-indicted 1 as the victim's first sale contract in the name of the non-indicted 1's new land lot number without the reason that the non-indicted 2's first sale contract was excluded from the sale price of the above land.

Therefore, this part of the defendant's argument is without merit.

(2) As to appeal

The following circumstances are acknowledged by the court below and the court below. ① The defendant, in a criminal case, including the crime of altering a private document against the victim, stated the sale contract for the purchaser managed by the victim, and made the copy and affixed a seal on the copy of the contract. However, in this case, the defendant, who was an employee of the non-indicted 6 corporation immediately after the conclusion of the contract, was in charge of the sale contract for the purchaser and the corporate seal affixed to the victim. The defendant's act of keeping the copy of the contract for the purchase and sale of the non-indicted 6 corporation's name and affixed the seal to the non-indicted 6 corporation's name and affixed it to the non-indicted 7, who was an employee of the non-indicted 6 corporation, without any reasonable ground to believe that the victim's name and affixed it to the non-indicted 6 corporation's name and affixed it to the non-indicted 6 corporation's name and affixed it to the non-indicted 4 corporation's name and affixed it to the non-indicted 6 corporation's name and affixed it to the defendant's name.

In light of the records, although there are some inappropriate points in the reasoning for the judgment of innocence in this part as stated by the court below (the victim stated in the court below that "after the conclusion of the contract of this case for the purchaser and the corporate seal impression was left to the victim," the court below erred in holding on different premise that "it is difficult for the victim to receive all the sales contract of this case and corporate seal from the victim who has not been employed as an employee," but in full view of the circumstances described above, the court below's conclusion to the purport above is just and acceptable, and there is no error of law that affected the conclusion of the judgment by misunderstanding the facts, thereby affecting the conclusion of the judgment.

Therefore, this part of the defendant's assertion is without merit.

(3) As to the perjury

The court below held as follows: (a) as seen above, the defendant was in a partnership business relationship with the victim in purchasing the land of this case; (b) recognized that the defendant received KRW 80 million from the victim as well as the investment money not borrowed; and (c) determined that the non-indicted 7 (the birth of the defendant) who is an employee of the non-indicted 2 corporation, sent the draft of the business agreement to the victim by facsimile around April 10, 204; and (d) stated that "the defendant reported the draft of the business agreement to the victim by telephone" in the court of the court below, the defendant could have acknowledged the fact that he made a false testimony as stated in paragraph 3 of the crime in the

In a thorough examination of records, we affirm the fact-finding and judgment of the court below as just, and it is difficult to believe that the statement of non-indicted 7 witness in the trial of the court below, different from the fact-finding of the court below, in light of the aforementioned overall circumstances, and further, there is no circumstance to reverse the conclusion of the court below even if we look at the contents of the written appraisal in the above solar fever and the attitude of the court below.

Therefore, this part of the defendant's assertion is without merit.

B. Determination on the assertion of unfair sentencing

The crime of this case requires a strict punishment corresponding to its responsibility in view of the fact that the crime of this case was committed by attending the court in relation to the case in which the defendant brought a complaint against the victim, and the crime was not committed, in order to register the real estate under the name of his own headquarters and sell it to the logistics center, and the victim did not have a business relationship with himself, as well as the fact that the defendant appeared in the court in relation to the case in which he brought a complaint against the victim.

However, it seems that the defendant was not punished by a fine due to the violation of the Road Traffic Act, except for the case where the defendant was sentenced to a fine due to the violation of the Road Traffic Act, the actual amount invested by the victim in the same business of this case is limited to KRW 80 million, and it seems that the victim did not build a logistics warehouse after the conclusion of the sales contract for the land of this case and participate in or contribute to the sale of the goods. The victim's actual loss could not be distributed the expected profit that would be gained as a partner. In this case, it is difficult to calculate such expectation profit in money, and it is difficult to calculate such expectation profit in money, and the defendant deposited a total of KRW 180 million for the victim. Considering that the victim filed a civil lawsuit against the defendant and one other than the defendant for the settlement money of the same business of this case, and the defendant's motive and background leading up to the crime of this case, circumstances after the crime, age, character, and environment of the defendant, the above assertion of sentencing is unreasonable.

3. Conclusion

Therefore, the judgment of the court below shall be reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the following judgment shall be rendered after pleading.

The summary of the facts constituting the crime recognized by this court and the summary of the evidence is the same as the corresponding column of the judgment below, and thus, it is quoted in accordance with Article 369 of the Criminal Procedure Act.

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

(a) Breach of trust: Article 1 subparagraph 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes and Article 355 (2) of the Criminal Act;

(b) Point of accusation: Article 156 (Selection of Imprisonment with Labor)

(c) The point of each maternity perjury: Article 152 (2) and (1) of the Criminal Act.

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes with punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, which is the largest penalty]

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act. Article 55(1)3

1. Suspension of execution;

Article 62 (1) of the Criminal Act (Consideration of favorable Circumstances among Grounds for Destruction)

Judges Sung-song-dong (Presiding Judge)