2012Do10139 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation), specific

Violation of the Act on the Punishment, etc. of Economic Crimes (Embezzlement), and Public Document

§ 30, 100, 200, 300,000,00

Alteration of private documents, display of falsified private documents, external audit of the corporation;

Violation of the Act

A

Defendant

Law Firm B

Attorney C, D)

Seoul High Court Decision 2012No480, 2012 early 111 decided July 27, 2012

November 2012, 200

The part of the judgment of the court below regarding the crimes in Articles 2-b, 3-a, 3-b through 5-12 of the judgment of the court below is reversed, and that part of the case is remanded to the Seoul High Court.

The defendant's remaining appeals are dismissed.

The grounds of appeal are examined.

1. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement No. 1), the stock company is an independent right holder separate from shareholders, and its understanding does not necessarily coincide. Thus, if a shareholder or representative director disposes of the company’s property for a private purpose, then the crime of embezzlement may not be exempted regardless of whether there was a resolution by the general meeting of shareholders or the board of directors regarding the disposition. In addition, in the crime of embezzlement, the intent of unlawful acquisition refers to the intention of disposing another person’s property in violation of his/her occupational duties for the purpose of seeking the benefit of himself/herself or a third party, and even if there is an intention to return it later, reimburse it, or transfer it later, it does not interfere with recognizing the intention of unlawful acquisition (see, e.g., Supreme Court Decision 2008Do851, Dec. 23, 201

Examining the evidence legitimately adopted by the court below in light of the above legal principles and records, the court below's decision that found the defendant guilty of this part of the facts charged is justified and it is not recognized that there was an error of law such as misunderstanding of legal principles as alleged in the grounds of appeal

2. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Grounds of Appeal Nos. 2 and 3) due to bad debt depreciation

A. With respect to amendments to indictment, the prosecutor may add, withdraw, or modify the facts charged or the applicable provisions of Acts stated in the indictment with the permission of the court within the extent not impairing the identity of the facts charged. The identity of the facts charged is maintained if the social facts, which form the basis of the facts charged, are the same in basic respect. In determining the identity of the facts charged, not only natural and social facts but also normative elements should also be considered (see, e.g., Supreme Court Decision 2009Do9593, Jun. 24, 2010).

According to the records, the original facts charged as to the above breach of trust were as follows: "the defendant, who actually exercises the right of management, accounts in an amount equivalent to 4 billion won for the defendant of the victim company, as income tax and withholding-related bonds, and thereby, the victim company extinguished the account base on the above claim to the defendant, thereby acquiring property benefits equivalent to the above claim amount and causing property damage equivalent to the same amount to the victim company." However, the prosecutor at the court below stated that "the defendant extinguished the account base as above, and further did not take any measures to recover the claim even if the defendant's repayment obligation is finalized after the above income tax is finalized, the defendant did not take any measures to recover the claim, thereby acquiring property benefits equivalent to the above claim amount, and caused property damage to the victim company." It can be seen that the court below approved the amendment of indictment.

In light of the aforementioned legal principles and records, the above indictments are prepared for the following facts: (a) the change in the facts charged causes the risk of loss to the company by allowing the defendant to account as bad debt depreciation cost as if the defendant's right to demand reimbursement against the defendant was impossible; and (b) the defendant's intent to act in breach of trust revealed thereby causes the risk of loss to the company; and (c) the defendant's intent to act in breach of trust is more clearly revealed by a series of acts that do not take measures to secure the claim even after the cancellation lawsuit against an administrative disposition, which became the cause of the right to demand reimbursement, has become final and conclusive; (d) therefore, the facts charged before and after the change are identical to the basic facts

Therefore, the court below's approval of the above prosecutor's modification of indictment should be justified, and it does not err by misapprehending the legal principles on modification of indictment as asserted in the grounds of appeal.

B. As to the establishment of occupational breach of trust

(1) Whether a crime of breach of trust is applicable to property damage, which is a requirement for establishing a crime of breach of trust, should be understood from an economic point of view, not from a legal judgment. Thus, even if an invalid act is legally null and void, a crime of breach of trust should be established in cases where a person actually inflicts a loss on the principal or causes a risk of actual loss of property (see Supreme Court Decision 201Do15857, Feb. 23, 2012). However, the risk of actual loss should reach the degree of concrete and real risk, and there is a possibility that it may only be a vague possibility or an obstacle to the exercise of rights.

Meanwhile, the crime of occupational breach of trust may also be established by omission in which a person who is legally obligated to handle affairs in accordance with a certain duty in a trust relationship with another person does not perform any act legally anticipated under such circumstance. However, in order for such omission to constitute a new crime, there should be new occurrence of damages or risks, such as whether the exercise of another person’s property rights, which assigned the duty to handle affairs, is at risk or not, or the possibility of execution of another person’s claim is extinguished (see, e.g., Supreme Court Decision 2001Do4035, Apr. 25, 2003).

(2) According to the reasoning of the lower judgment, the lower court acknowledged the facts as indicated in its reasoning after comprehensively taking account of the adopted evidence as to this part of the facts charged as above. ① It is deemed that BA, a person in charge of accounting affairs of the victim company, should bear the obligation of repayment equivalent to the above 4 billion won against the victim company. The Defendant is able to pay taxes due to his high speech and absence of money, and as BA found the method of accounting for "other bad debt depreciation expenses" in the name of the victim company, and reported this to the Defendant at the end, and ② When preparing an accounting audit in the victim company in 2005, it remains an important issue; ② in the case of the victim company, BA reported that it would be treated as bad debt depreciation expenses of the victim company only to the Defendant, and the defendant was ordered that he would be able to pay off the above repayment claim at the expense of the victim company, and ③ BA, a person in charge of accounting affairs at the time of business closure of the victim company's work, was unable to recover the amount of bad debt from the defendant's disposal loss.

(3) However, the above determination by the court below is difficult to accept in light of the legal principles as seen earlier.

First of all, we examine the act of accounting with the initial bad debt depreciation.

According to the records, around December 20, 2004, the victim company received a notice of change of income amount of KRW 9,084,843,00 for the defendant from the director of the Central Tax Office of the Central Tax Office of the Central Tax Office of the year 1999, and accordingly, was faced with the situation where the income tax of KRW 4,010,589,70 for the defendant was to be paid by the method of withholding taxes. Around that time, the victim company requested the legal office to seek advice from the lawyer, and

I determined that there is sufficient room and stated to the effect that the above disposition was filed on January 2005, and around April 2007, and that the above 4,010,589,700 won was processed to the account of "other bad debt depreciation expenses", and that the person who implemented the above 4,010,589,700 won was in charge of the accounts of the victim company at the time, but BA was in charge of the accounting affairs of the victim company at the time of the investigation agency and court, as it is consistent with the investigation agency and court, the procedure for objection to the above disposition of income tax was conducted at the time of "temporary and other bad debt depreciation expenses accounting, and it is sufficient to correct it according to the final result of the above appeal procedure." 3, according to the audit report on financial statements of the victim company in 2004, it is stated that the above 4,014,789,700 won was stated as the total amount of taxes collected at 00,000 won per business year and 309.

In light of these circumstances, it seems that the parties of the victim company including the defendant at the time recognized that the occurrence or scope of the right to indemnity against the defendant of the victim company is not definite, and it is difficult to see that the victim company has realized the specific risk of actual damage on the ground that the above accounting was dealt with.

Next, this paper examines the fact that the judgment did not take measures after the judgment of loss became final and conclusive.

According to the records, the victim company was ruled against and confirmed in the lawsuit seeking the cancellation of the above disposition on August 24, 2009, and at the time, the defendant was found to not only the actual company of the victim company but also the representative director or auditor, and was in the position of the auditor, due to other criminal cases. In such circumstances, it is difficult to deem the defendant to have been subject to a new duty to act by the defendant, and the defendant did not take any measures to recover the claim against the defendant. On the contrary, it is difficult to deem that the exercise of the above claim is in danger, or that such risk is realized, such as the lack of the possibility of executing the claim, or the possibility of executing the claim is lost. This is substantially different from the case where the company did not neglect the collection of the claim against the representative director or the company, and in such a case, the owner or the representative director committed any active act that prevents the company from commencing the preservation of the claim. It cannot be said that the crime of breach of trust is established immediately without any special circumstance.

Therefore, the court below erred by misapprehending the legal principles as to the crime of breach of trust in the measure that found the defendant guilty of the modified facts charged, and the ground of appeal pointing this out has merit.

3. Conclusion

As seen above, the part of the judgment of the court below regarding the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) due to the disposal of bad debt among the judgment below should be reversed. Since the part of the judgment of the court below as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (In the judgment of the court below), No. 2-B, No. 3-A, No. 3-B-2, No. 5-3, and No. 37-C of the judgment of the court below which convicted the defendant is one of the concurrent crimes under the former part of Article 37 of the Criminal Act, this part of the judgment of the court below shall not be reversed. Meanwhile, the remaining part of the judgment of the court below as to the defendant's guilty shall be tried and judged separately, and it shall not be subject to reversal

Accordingly, the part concerning the crimes of Articles 2-B, 3-A, 3-B-5 (5) through 12), 3-3-C, and 4 of the holding of the court below is reversed, and this part of the case is remanded to the Seoul High Court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-sik et al.

Justices Yang Chang-soo

Justices Park Poe-dae

Justices Ko Young-han