Method of determining whether a manager had the intent to obtain an unjust enrichment with respect to management judgment;

Articles 355(2) and 356 of the Criminal Act

Supreme Court Decision 2009Do14464 Decided October 27, 2011 (Gong2011Ha, 2483) Supreme Court Decision 2014Do753 Decided June 26, 2014

Defendant 1 and one other

Defendants

Attorney Kim Sang-hoon et al.

Seoul High Court Decision 2016No2519 decided January 12, 2017

All appeals are dismissed.

The grounds of appeal are examined.

1. Judgment on Defendant 1’s grounds of appeal

A. Ground of appeal No.1

In the crime of occupational breach of trust, an intentional act is established by combining the perception that a person who deals with another’s business causes property damage to the principal and that such damage or loss is in breach of one’s own duty. Therefore, in determining whether a manager intended to obtain property and an intentional act in breach of one’s duty, an intentional act of breach of trust shall be recognized only when he/she or a third party knowingly and intentionally commits an act, taking into account the following: (a) the developments and motive leading up to the business judgment in question; (b) the details of the business subject to determination; (c) the economic situation at issue; and (d) the probability of incurring loss and profit-making; and (b) the person is not liable solely on the ground that he/she was negligent in acquiring or neglecting the duty of care. However, in light of the substance and nature of the business affairs dealt with in the crime of breach of trust as stated in the crime of occupational breach of trust, an act of breach of trust and good faith, which is not naturally expected to have been performed by the manager and/or an act in breach of one’s own duty.

According to the reasoning of the judgment below, Defendant 1, while substantially operating the victim non-indicted 1 corporation (hereinafter “non-indicted 1 corporation”), lent KRW 849,121,368 on 78 occasions to the non-indicted 2 corporation (hereinafter “non-indicted 2 corporation”). The court below found Defendant 1 guilty of the charges of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (excluding the part of innocence) (excluding the part of the charges of this case), among the charges of this case, in consideration of various circumstances, including the aggravation of the financial standing and its cause, the business situation and future prospects of the non-indicted 2 corporation at the time of lending, the measures to recover claims, the place where the loan was used, the relationship between the transaction partner of the non-indicted 2 corporation alleged by the above defendant and the transfer of money lending.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court’s determination is justifiable. In so determining, the lower court did not err by misapprehending the legal doctrine on the intent of unlawful acquisition of breach of trust

B. Ground of appeal No. 2

The assertion that there was an error in violation of the method of determining a sentence based on the sentencing guidelines constitutes an allegation of unfair sentencing. According to Article 383 Subparag. 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment with or without labor for not less than ten years has been imposed, an appeal may be filed on the ground of unfair sentencing. In this case where Defendant 1 was sentenced to a more minor sentence as to Defendant 1, the allegation that the above assertion or

2. Judgment on Defendant 2’s appeal

The above defendant did not submit a statement of grounds for appeal within the submission period, and did not state the grounds for appeal in the petition of appeal.

3. Conclusion

The Defendants’ final appeals are without merit and all are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)