[1] The degree of probative value of evidence for conviction in a criminal trial

[2] The probative value of the facts admitted in the judgment of the relevant civil case in a criminal trial

[3] The method of determining whether testimony in perjury is a false statement contrary to memory, and the method of determining whether testimony is false or not in a case where the meaning of testimony is unclear or it can be understood differently

[4] Criteria for recognition as to whether false facts reported in the crime of false accusation

[5] The meaning of "Refusal to return" in the crime of embezzlement, and refusal to return due to justifiable grounds, and intent of unlawful acquisition

[6] The case holding that it is difficult to conclude that the defendant refused to return with the intent of unlawful acquisition

[1] Article 308 of the Criminal Procedure Act / [2] Article 308 of the Criminal Procedure Act / [3] Article 152 (1) of the Criminal Act / [4] Article 156 of the Criminal Act / [5] Article 355 (1) of the Criminal Act / [6] Article 355

[1] Supreme Court Decision 95Do3081 delivered on March 8, 1996 (Gong1996Sang, 1315) Supreme Court Decision 94Do3309 delivered on April 12, 1996 (Gong1996Sang, 1627) / [2] Supreme Court Decision 81Do301 delivered on June 28, 1983 (Gong1983, 1148), Supreme Court Decision 95Do192 delivered on August 23, 1996 (Gong196Ha, 2931) / [3] Supreme Court Decision 95Do2864 delivered on March 12, 196 (Gong196Sang, 1324) / [2] Supreme Court Decision 2019Do19499 delivered on December 27, 2019 (Gong196Do13294 delivered on March 29, 2015]

Defendant

Defendant and one other

Law Firm Roh School, Attorneys Doh-il et al.

Suwon District Court Decision 2001No3093 delivered on November 11, 2003

The conviction part of the judgment of the court below is reversed, and that part of the case is remanded to Suwon District Court Panel Division. The prosecutor's appeal is dismissed.

We examine the grounds of appeal.

1. As to the Prosecutor’s Grounds of Appeal

A. Part of occupational breach of trust

In a criminal trial, the conviction shall be based on evidence with probative value sufficient to cause a judge to feel true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is doubt of guilt against the defendant, it shall be determined in the interests of the defendant (see, e.g., Supreme Court Decisions 95Do3081, Mar. 8, 1996; 94Do3309, Apr. 12, 1996; 94Do309, Apr. 12, 1996). In addition, even if the facts recognized in the judgment in a civil case related to a criminal trial are valuable supporting materials for the facts charged, the facts that have been found in the judgment in the civil trial are not bound by the confirmation of such civil judgment, and thus, the criminal court may recognize facts different from the facts established in the civil judgment by evidence (see, e.g., Supreme Court Decision 81Do3011, Jun. 28, 1983

In light of the above legal principles and records, the court below, based on the adopted evidence, found the defendant as representative director of the non-indicted 1 Co., Ltd. (name omitted of the company) of this case and borrowed a total of KRW 325 million from non-indicted 2, etc. due to insufficient funds due to the payment of the purchase price of parking lots from around 191 to around 1992, such as repayment of loans to financial institutions, repayment of interest, operating expenses, etc., and the defendant transferred the management right of the company to non-indicted 3 around May 1994, the non-indicted 2, etc. demanded the defendant to guarantee repayment of the obligation, and the defendant issued each of the promissory notes of this case (name omitted of the company) of this case to the non-indicted 3 of this case that the defendant issued before the defendant to the non-indicted 3 of this case (name of the non-indicted 25 and promissory notes issued in blank as collateral purchase price of shares to the defendant). The court below rejected the judgment of the first instance court's judgment finding that there was no error in violation of law.

However, the lower court erred by misapprehending the legal doctrine that the promissory notes of this case were printed in the same text, despite the fact that the face value, the addressee, the date of issuance, and the place of payment of the Promissory Notes of this case were written by other parties, but they did not affect the conclusion of the judgment. The

B. Perjury part

Whether a witness's testimony constitutes a false statement contrary to memory or not shall be determined by understanding the whole of the testimony during the relevant examination procedure as a whole, rather than by the simple Section of the witness's testimony. Where the meaning of testimony in itself is unclear or diverse, it shall be determined clearly after considering the ordinary meaning and usage of language, the context before and after the testimony in question was made, the purpose of the examination, the circumstances in which the testimony was made, etc. (see Supreme Court Decisions 95Do2864, Mar. 12, 1996; 2001Do5252, Dec. 27, 2001, etc.).

In light of the above legal principles and the records, the court below is justified in finding the defendant's testimony that "the plaintiff demanded that the new representative director be able to guarantee the loan obligation to the non-indicted 3", and that "the non-indicted 3 has accepted it and affixed his signature and seal on the back of the bill" as to the defendant's testimony that "the non-indicted 3 has made it possible to judge that the non-indicted 3 has made a false statement against his awareness as a guarantee for the loan obligation, and it cannot be deemed that the defendant made a false statement against his awareness. The defendant was sentenced by the Suwon District Court on February 11, 1998 to a fine of one million won for perjury, but the above judgment became final and conclusive on February 19, 198, and it is different from this case, and there is no other evidence to prove this part of the facts charged, and there is no violation of the rules of evidence selection as to this part of the facts charged, and there is no violation of the rules of evidence determination as to this part of the facts charged.

2. As to the Defendant’s ground of appeal

A. The part concerning the false accusation

The crime of false accusation is established when the reported fact goes against the objective truth with the intention of having another person subject to criminal punishment. Whether or not the reported fact is false or not should be determined depending on whether or not the core or important contents of the reported fact are false or not in connection with the elements of the crime, and should be decided depending on whether or not the crime of false accusation is established (see Supreme Court Decision 91Do1950 delivered on October 11, 191).

In light of the above legal principles and the records, the court below found that the above company operated the bus transport business by 75 buses (104 urban buses, 104-1 urban buses, 704 seat buses, and 74 buses of the court below are likely to be erroneous) and that the non-indicted 4, a creditor of the company, participated in the request for the sale of 74 buses owned by the company on March 1995, and obtained approval of the closure of the route of 17 buses from the Seoul Metropolitan Government on June 1995, 13 shareholders and employees, etc., including the non-indicted 3, were well aware of the facts that the above company violated the rules of evidence 74 buses and the above auction price of the non-indicted 1, 74 buses and the above auction price of the non-indicted 1, 195, and there was no violation of the rules of evidence at the general meeting of the board of directors on July 5, 199.

B. The embezzlement part

In full view of the evidence adopted by the court below, even if the defendant, on December 21, 1997, took over 48,00 bus recovery rights owned by the non-indicted 6, who was the chairperson of the company at the office of the defendant, at the office of the non-indicted 8,00, and was in custody of the non-indicted 6, who was the representative director of the company, until January 15, 1998, the court below acknowledged the fact that he embezzled the total face value of the bus recovery rights of 14,826,716 won for the reason that he did not comply with the request, and further, on December 21, 1997, the defendant issued the right of bus recovery from the non-indicted 6, who was the chairperson of the company's union and kept it in custody on behalf of the non-indicted 8,000 after receiving the notification of return, and the defendant cannot be found to have received the right of bus recovery in cash from the non-indicted 98's office.

However, this part of the judgment of the court below is not acceptable in the following respect.

“Refusal of return” under Article 355(1) of the Criminal Act refers to an act of expressing intent to exclude the owner’s right against a custodian. Thus, in order for a custodian to constitute embezzlement, the fact that the custodian of another’s property simply refuses to return is insufficient to the extent that the act of refusing to return is the same as the act of embezzlement by taking account of the grounds for refusal of return and the subjective intent. In embezzlement, so-called unlawful acquisition intent refers to the intention to dispose of the property as the owner without a legitimate title against the purport of embezzlement. Thus, even if the return was refused, if the return was not returned on the justifiable grounds for refusal of return, the intent of unlawful acquisition cannot be deemed to exist (see Supreme Court Decision 98Do126, Jul. 10, 1998, etc.).

According to the records, the above company obtained a loan of KRW 30 million from the Namnam Bank around April 1993. around April 1994, the non-indicted 1 was to repay KRW 60 million, which is 20% of the above around April 1994, and the remaining repayment date is postponed. The amount of KRW 50 million was loaned from the Namnam Bank to KRW 30 million in the name of non-indicted 9 and KRW 20 million in the name of the non-indicted 8. The defendant was to use it in cash for the defendant 9's own joint and several liability, the defendant was to use it for the non-indicted 8's payment, and the non-indicted 6's representative director, who was the non-indicted 8's representative director, who was the non-indicted 98's head of the accounting division for the debt of KRW 98's payment, and the defendant was to use it for the collection of the remaining amount of money deposited by the defendant 16's representative director of the National Pension Fund.

Therefore, as long as the right to recover of this case appears to have originally been used for the repayment of the company's obligation to Nonindicted 8, and the defendant, accordingly, is recognized to have refused to return the above right as a collateral for the company's obligation to Nonindicted 8 or as a substitute payment in lieu of payment, questions may be raised as to the legitimacy of the procedure. However, if the defendant actually delivered it to Nonindicted 8, it cannot be deemed that it is objectively unfair in light of social norms, and thus, it is difficult to conclude that the defendant refused to return it with the intent to obtain unlawful

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to embezzlement due to erroneous recognition of facts or denial of return, which affected the conclusion of the judgment.

3. Conclusion

Of the guilty portion of the judgment of the court below, the part of the judgment of the court below against embezzlement should be reversed, and since the judgment of the court below against this part and the crime without accusation shall be punished as concurrent crimes under the former part of Article 37 of the Criminal Act, one of the convictions

Therefore, the guilty portion of the judgment of the court below shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination, and the prosecutor's appeal shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)