Defendant

Emotion picture:

Attorney Lee Ho-sung et al.

A defendant shall be punished by imprisonment for six months.

However, the execution of the above punishment shall be suspended for one year from the date this judgment becomes final and conclusive.

The Defendant, from August 4, 2002 to June 2005, was engaged in the business of selling products such as fruits produced at the above company to customers and collecting the price thereof while working for the Victim ○○ System and the North Busan Branch Corporation as business employees.

1. On January 4, 2004, at the ○○-dong, Busan, ○○○○-dong (number 1 omitted), there was a occupational duty to sell and supply goods to the above △ distribution office, and supply the goods to prevent any damage to the victim's company by complying with the discount rate designated by the victim's company. However, despite the occupational duty to prevent damage to the victim's company by selling and supplying the goods, the goods to be sold at the rate of 1.8% higher than the 28.2% higher than the 28.2% higher than the 30% higher than the 69.344% higher than the 30% higher than the 69.3% higher than the 30% higher than the 10.3% higher than the 10.3% higher than the 10.3% higher than the 10.3% higher than the 10.3% higher than the 10.3% higher than the 10.3% higher than the 2005.

2. On June 29, 2005, the office of the non-indicted 2 Co., Ltd., which purchased goods from the victim company located in Busan Shipping Daegu ○○○ (number 2 omitted), and the sales proceeds from the recovered goods after selling the fruit, etc. to the above non-indicted 2 Co., Ltd. to the above non-indicted 2 Co., Ltd. was kept in custody for the victim company on the same day, the amount equivalent to KRW 4,053,199, out of that day, shall not be deposited into the corporate passbook in the name of the victim company, and shall be embezzled by arbitrarily depositing

3. On July 11, 2005, the office of the above non-indicted 2 was embezzled in a way that the amount of KRW 2,534,760, out of the same day, was not deposited into the head of the bank in the name of the victim company, but deposited to the Busan bank account in the name of the defendant.

1. Partial statement of the defendant;

1. Legal statement of the witness Nonindicted 3

1. Partial statement of the witness Nonindicted 4 in the court

1. The prosecutor's protocol of interrogation of the defendant (including Nonindicted 3's statement)

1. The police statement of Nonindicted 4

1. A written statement of Nonindicted 3’s preparation

1. A copy of a deposit certificate, a copy of a statement of details of transactions and a statement of collection, a discount rate table, embezzlement, and a statement of breach of trust;

1. Investigation report (to hear Nonindicted 5’s statements);

1. Article applicable to criminal facts;

Articles 356 and 355(2) of the Criminal Act (in the case of occupational breach of trust, inclusive) of the Criminal Act, Articles 356 and 355(1) of the Criminal Act (in the case of occupational embezzlement)

1. Selection of punishment;

Each Imprisonment Selection

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (Article 62(1) of the Criminal Act provides that there is no previous conviction for the defendant, and the crime of this case is committed by the defendant who is a business employee to achieve the excessively set sales target, and there are circumstances to take into account some of the circumstances of the crime, and thereby, there is no benefit that the defendant gains other than sales allowances, and considering that the defendant works faithfully

1. Part on occupational breach of trust

A. The defense counsel has strongly demanded the victim company to increase sales to its employees, and the victim company would not take a question even if it applies a discount rate higher than the discount rate set by the victim company, or at least would have been virtually silent. Thus, the crime of occupational breach of trust in this case is justified by the victim company's explicit or implied consent.

However, according to the above evidence, there is a case where a product is supplied at a price at which a discount rate of 50% is applied to a large discount rate with a period and quantity set at a large discount rate for only a part of the products in the victim company. At the time of the crime of this case, the defendant and its employees at the time of the crime of this case were partially involved in business activities by applying discount rate of 28.2% set by the victim company in order to raise business performance among the employees of the same business as the defendant at the time of the crime of this case. However, it is not sufficient to recognize that the evidence submitted by the defense counsel does not issue the victim company's business activities even if the defendant and its employees are engaged in business activities by applying discount rate higher than the discount rate set by the company. The defendant's business employees

B. In other words, the defendant, a business employee, sold products exceeding the discount rate set by the victim company in order to increase sales, and the director of the victim company's business office, which can be seen as the representative of the victim company, allowed the business employee, such as the defendant, to engage in business activities by applying a discount rate of 30% exceeding the official discount rate set by the company, the defendant's act of occupational breach of trust is justified as a justifiable act that does not violate the social rules.

The phrase "act which does not violate the social rules" as stipulated in Article 20 of the Criminal Act refers to an act which can be accepted in light of the overall spirit of legal order or the social ethics or social norms, and therefore, in order for a certain act to constitute a justifiable act, the requirements such as legitimacy of the motive or purpose of the act, reasonableness of the means or method of the act, balance between the protected legal interest and the infringed legal interest, urgency, and the supplementary nature that there is no other means or method than the act (see Supreme Court Decision 2004Do8530, Feb. 25, 2005, etc.).

From this point of view, as seen earlier, there were some practices to conduct business activities by applying a discount rate of 30% higher than that of 28.2% set by the victim company in order to raise business performance between the defendant and employees, and the defendant also appears to have sold the products in excess of the discount rate set by the victim company in order to collect sales target amount allocated to himself. However, from the victim company, the victim company suffered losses equivalent to the difference between the discount rate set by the company and the official discount rate set by the victim company. Even though the difference between the discount rate applied by the defendant while conducting business activities and the official discount rate set by the victim company is merely 1.8% or 6.8%, the victim company that sells large quantities of goods through the defendant company's business offices can be seen to have been remarkably large, and the defendant's sales performance by violating the provisions of the victim company due to the lack of the defendant's sales performance, and the defendant's act of selling the products in excess of the new discount rate or its new sales performance can not be seen to have been justified by the defendant's new sales performance.

2. Part on occupational embezzlement

The defense counsel ordered the defendant to take a virtual sales (the sales entered in the computer as if the sales were sold to raise business performance) by the non-indicted 1, the head of the victim company North Busan District Office, where the defendant was a business employee, and the defendant paid part of the amount of the virtual sales from the non-indicted 2 corporation to the issuer of a promissory note already deposited in the victim company as the price of the virtual sales in the process of settling the virtual sales price after taking the virtual sales in accordance with the non-indicted 1's order. The remaining price was used to purchase the product in order to raise the shortage of products caused by the sale of the product in excess of the discount rate set by the victim company. Thus, each of the of the of the of the of the of the of the instant business embezzlements in this case is by the victim company's explicit or implied consent, and thus the illegality is denied.

However, according to the above evidence, even if the defendant's office did not actually sell in order to meet the sales volume allocated from the head office under the instruction of the head office at the place of business, it seems that there were some practices of allocating them to each member of the business by means of computer sales. However, the above assertion by the counsel cannot be accepted inasmuch as it is difficult to deem that the defendant's business employees, such as the defendant's business employees, engaged in the business by the method of virtual sales or sell products in excess of the discount rate set forth in the company's company's business in return for the sales performance, as long as it is difficult to deem that the defendant's business employees explicitly or implicitly permitted the purchase of the products in order to secure the shortage of the sales volume by selling them in excess of the discount rate set by the company with the normal cash amount from other business partners.

【Crime Disturbing Table】

Judges Park Jong-tae