Defendant

Defendant

Final pencs (prosecutions) and scambling (public trial)

Law Firm Cheongn Law, Attorney Lee Han-mun

Busan District Court Decision 2014 High Court Decision 1122 Decided October 30, 2014

The judgment of the court below is reversed.

Defendant shall be punished by a fine of two million won.

When the defendant fails to pay the above fine, the defendant shall be confined in the old house for the period calculated by converting 100,000 won into one day.

1. Summary of grounds for appeal;

A. Error of mistake

The court below found the defendant guilty of the facts charged in this case that he leased the fundamental property of the non-indicted 1 social welfare foundation (hereinafter referred to as "non-indicted 1 foundation") without permission of the authority, and thereby caused damage equivalent to the rent to the non-indicted 1 foundation. However, the defendant prepared a lease agreement with the non-indicted 2 corporation (hereinafter referred to as "non-indicted 2 corporation") whose representative director is the non-indicted 1 foundation as to the part of the building of the non-indicted 33 square meters (hereinafter referred to as "the part of the building of this case") without compensation. Since the part of the building of this case was actually used as the office of the non-indicted 2 corporation, the court below erred by misapprehending the facts and adversely affecting

B. Unreasonable sentencing

Even if it is not a domestic work, the punishment of the lower court (a fine of three million won) is too unreasonable.

2. Determination:

A. Ex officio determination

The defendant was sentenced to a suspended sentence of one year and eight months at the Busan District Court on November 27, 2013 due to a violation of the Punishment of Violences, etc. Act (a group, deadly weapon, etc.), and the above judgment became final and conclusive on December 5, 2013. The defendant's crime of this case is a concurrent crime between the crime for which the above judgment became final and the latter part of Article 37 of the Criminal Act, and is in a concurrent crime under Article 39 (1) of the Criminal Act, and has to be sentenced at the same time in consideration of equity in the case where the judgment is to be rendered pursuant to Article 39 (1) of the Criminal Act, but the court below determined the sentence without considering such circumstances. In this regard, the decision of the court below is not exempt from reversal.

However, the defendant's assertion of mistake is still subject to the judgment of this court, and this is examined.

B. Judgment on mistake of fact

1) Comprehensively taking account of the evidence duly adopted and examined by the court below, the following circumstances, namely, ① there exists a real estate lease contract prepared by the defendant between a non-indicted 1 and a non-indicted 2 regarding the instant building part; ② the defendant was subject to warning and corrective measures on September 28, 2010 to the effect that the meeting room of the non-indicted 1 was used by the non-indicted 2 as a personal office of the defendant as a result of the instruction and inspection of the social welfare foundation conducted by the ○○ Metropolitan City with respect to the non-indicted 1 corporation; ③ the defendant did not raise any objection to the above measures in the ○○ Metropolitan City; ③ The defendant did not raise any objection to the above measures in the ○○ City; and other various circumstances revealed in the records of this case, the fact that the defendant actually used the instant building part leased by the defendant as the office of the non-indicted

2) Home affairs, even though the defendant merely leased the building portion of this case on the pretext of the name of the non-indicted 2 and did not actually use it as the office of the non-indicted 2, the time of causing property damage in the crime of breach of trust includes not only a case where a real damage was inflicted but also a case where a risk of actual damage to property has been inflicted, and the judgment of whether or not property damage was inflicted should be based on the legal judgment in relation to the property status of the defendant and be understood from an economic point of view without any legal judgment (see Supreme Court Decision 91Do2963 delivered on May 26, 192, etc.). Examining the case in light of the above legal principles, the defendant requires an office lease contract, etc. for at least the non-indicted 2's business registration, and actually entered into a lease contract, and the contents of this case's lease contract were free lease, and there was sufficient possibility that the building portion of this case could be leased at other places or used for any other purpose for free lease in the non-indicted 2 company.

3. Conclusion

As above, the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act without examining the grounds for appeal of unfair sentencing on the grounds of ex officio reversal, and the judgment below is reversed and it is again decided as follows.

The summary of the facts constituting the crime recognized by this court and the evidence related thereto are as follows: (a) on November 27, 2013, the defendant was sentenced to a suspended sentence of two years in the year and August 1, 2013 due to a violation of the Punishment of Violences, etc. Act (a collective, deadly weapons, etc.) at the Busan District Court; and (b) on December 5, 2013, the above judgment was finalized on December 5, 2013; and (c) on the ground that it is stated in each corresponding column of the judgment below, it is cited as it is in accordance with

1. Article applicable to criminal facts;

Article 53 subparag. 1, Article 23(3)1 (a) of the Social Welfare Services Act, Article 356 and Article 355(2) of the Criminal Act (a point of occupational breach of trust)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (Punishments defined as Punishment for Occupational Breach of Trust in Judgment with More Penalties)

1. Selection of punishment;

Selection of Fines

1. Handling concurrent crimes;

The latter part of Article 37 and Article 39(1) of the Criminal Act

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

Although the defendant immediately takes corrective measures against the violation of this case and deposited KRW 3.2 million for non-indicted corporation 1, in light of the purpose of legislation of the Social Welfare Services Act, purpose and role of the social welfare foundation, etc., the defendant, despite being the representative director of non-indicted 1 corporation established for the social welfare business, is in violation of his/her duty and is likely to be subject to criticism by using his/her fundamental property for personal purposes, such as free lease to another company whose representative director is the defendant, etc., and must take into account equity with the case of violation of the Punishment of Violence, etc. Act (a collective action, deadly weapons, etc.) for which

Judges Sung-jin (Presiding Judge) Kim Tae-jin