2020Do12927 A. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

(A) The name of the conjunctive crime and the name of the breach of trust against Defendant 1

(b) Violation of the Act on the Aggravated Punishment of Specific Economic Crimes;

(c) Attempted robbery;

(d)Violation of the Punishment of Tax Evaders Act;

Defendant 1 and one other

Defendant 1 and Prosecutor (as to the Defendant)

Law Firm Appellant et al.

Busan High Court Decision 2020No52 delivered on September 7, 2020

February 25, 2021

All appeals are dismissed.

The grounds of appeal are examined.

1. Judgment on the grounds of appeal by the prosecutor

A. In the event that Defendant 1 transferred other monetary claims to a creditor in order to secure the existing monetary obligation, “the obligation to maintain and preserve the collateral value of the secured claim to be borne by the debtor to the creditor” is merely the content of the obligation owed by the debtor according to the bond transfer contract. In addition, the ordinary contract for the assignment of claims is the principal contract whose purpose is to transfer the creditor’s status, and the intrinsic relationship between the parties is to ensure the transferee’s status and ensure the transferee’s status and is effectively repaid the claim from the debtor. However, the contract for the transfer of claims is merely a subordinate contract for the creation of the secured claim (e.g., a monetary loan contract, etc.) and the above obligation borne by the debtor pursuant to the bond transfer contract is to achieve the purpose of the secured claim, and its essential and essential relationship between the parties is the realization of the secured claim. As can be seen, the purpose or essential content of the bond transfer contract cannot be seen as a usual contract for the transfer of claims.

Therefore, the obligation of a debtor to maintain and preserve the value of a secured claim under a contract for security by collateral transfer is limited to his/her own obligation pursuant to the contract, and a fiduciary relationship between a creditor and a debtor cannot be deemed to exist that the creditor attains the purpose of security through the management of the debtor's business by handling the preservation and preservation of the value of security for the creditor. Therefore, in cases where a debtor receives reimbursement from a third-party debtor with the intent to use without notifying the third-party debtor of the assignment of the assignment of the claim, it is merely a civil nonperformance, and the debtor cannot be deemed to have a status of keeping the above repayment for the debtor according to the trust relationship with the creditor, and even if the debtor

2) Based on the evidence duly admitted, the lower court reversed the judgment of the first instance court convicting Defendant 1 on the ground that it does not constitute embezzlement even if Defendant 1 demanded repayment of KRW 1.1 billion out of the above monetary claims to Nonindicted Co. 3 without notice of transfer, and used them arbitrarily after receiving payment in the deposit account in the name of Nonindicted Co. 2’s name, on the ground that it does not constitute embezzlement, on the grounds that Defendant 1 borrowed KRW 1.75 million from Nonindicted Co. 1 for business purposes, and transferred the monetary claims equivalent to KRW 2.2 billion to Nonindicted Co. 3 Co. 1 for the purpose of securing the above loan obligation.

3) Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the establishment of embezzlement

The Supreme Court's decision cited in the grounds of appeal differs from this case, and thus is inappropriate to be invoked in this case.

B. Defendant 2's violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

For the reasons indicated in its holding, the lower court upheld the first instance judgment that acquitted the Defendant on this part of the charges on the grounds that there was no proof of crime. Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

2. Judgment on Defendant 1’s grounds of appeal

For the reasons indicated in its holding, the lower court convicted Defendant 1 of the facts charged (excluding the part on acquittal). Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on property damage in the crime of breach of trust, the establishment of conflict, and the establishment of a crime of violating the Punishment

The argument that the lower court erred by significantly deviating from the limit of sentencing discretion constitutes an allegation of unfair sentencing. However, pursuant to Article 383 Subparag. 4 of the Criminal Procedure Act, an appeal on the ground of unfair sentencing is allowed only in cases where death penalty, life imprisonment, or imprisonment with or without labor for not less than ten years has been imposed. In this case where Defendant 1 was sentenced to a more minor sentence against Defendant 1, the allegation that the sentence is too unreasonable does not constitute

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won

Justices Park Il-san

Justices Kim In-bok, Counsel for the defendant

Justices Heung-gu