(영문) 서울고등법원 2013.12.06 2013노2549 | 리걸엔진

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(영문) 서울고등법원 2013.12.06 2013노2549

특정경제범죄가중처벌등에관한법률위반(배임)

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1. The defendant's appeal is dismissed;

2. An applicant for compensation shall be dismissed in all by the I and J.

Reasons

1. Summary of grounds for appeal;

A. The term “K” means a fund investment contract between K and E to the effect that on May 24, 2010, K Co., Ltd. (hereinafter “K.”) invested KRW 5 billion in E Co., Ltd. (hereinafter “E”) (hereinafter “E”).

The investment procedure in the part of KRW 3 billion is not subject to any limitation on the investment procedure, and the investment agreement in this case refers to an investment agreement between the defendant and the victims, which specifies that the defendant may spend the amount of KRW 2 billion in the amount of KRW 5 billion invested in E under the name of K, but the amount of KRW 3 billion in the amount of KRW 3 billion in the victim I, J and the victims.

The provision that “the decision-making of KRW 3 billion shall be expressed with the victims,” is merely a simple meaning of “report.” Ultimately, the Defendant cannot be deemed to be in the position of a person who deals with the management of the victims’ property based on a fiduciary relationship under the instant financial investment contract and the investment agreement.

In addition, although the defendant purchased the commercial building No. 101 on the first floor of Gangnam-gu Seoul Metropolitan Government, Seoul Metropolitan Government's OO building of this case with 3 billion won out of the victims' investment funds, this is to purchase the commercial building of this case at a lower price than the market price for the business purpose of investment in real estate and financing for ordinary expenses, and it is not for the personal purpose of the defendant. Thus, the execution of the above 3 billion won fund cannot be said to be an act of breach of duty in relation to the victims.

Nevertheless, the judgment of the court below which found the Defendant guilty of the facts charged of this case is erroneous in misconception of facts and misapprehending legal principles.

B. The lower court’s sentencing on the Defendant of unreasonable sentencing (three years of imprisonment) is too unreasonable.

2. Judgment on the defendant's grounds for appeal

A. 1 Defendant on the assertion of mistake of facts and misapprehension of legal principles.

유사 판례

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