Whether the crimes not adjudicated among concurrent crimes and the crimes already adjudicated should be the same as punishment (negative)

In the case of sentencing a punishment for the concurrent crimes for which judgment has not been rendered under Article 39(1) of the Criminal Act, the punishment for the crimes already sentenced shall not be necessarily chosen for the same kind of punishment.

Article 39(1) of the Criminal Act

Defendant

Defendant

Attorney Jeong Young-ho

Daegu District Court Decision 83No1859 delivered on May 11, 1984

Supreme Court Decision 82Do75 Decided September 13, 1983

The appeal is dismissed.

1. The defendant's defense counsel's grounds of appeal Nos. 1 and 3 are examined together.

According to the facts established by the court below, the defendant, as the managing director of the non-indicted corporation, was engaged in the business of issuing, selling, discounting, cash custody, etc. of the above company and deposited the discount interest rate of the above company in his own personal deposit account by using the following methods: (a) the defendant borrowed bills from an eligible company subject to bill discount or any other person equivalent thereto; (b) the defendant applied for discount to the above company; and (c) issued a discount rate in the name of the above company; and then deposited them into his own personal deposit account by using the bank's cashier's checks; and (d) unlike the above, the defendant first issued the check in the name of the above company in order to withdraw a certain amount in the name of the above company, and deposited it into the bank's own deposit account by changing it into the bank's cashier's cashier's checks; and (e) lent the above company's funds by using the cash settlement method, such as the cash settlement method with which the above company discounted purchase of the bill and paid cash.

According to the above facts, since the defendant's act of withdrawing the company's funds in his/her occupational custody either disposes of the company's assets with the intent of unlawful acquisition, regardless of the method of substitute disposal, or between cash disposal, the court below's decision that decided this as the crime of occupational embezzlement is just, and there is no error of misapprehending the legal principles as to the act of realizing the crime of embezzlement, the legal principles as to bill law, or the intent of unlawful acquisition, as alleged in the arguments.

2. We examine the ground of appeal No. 4.

In the event that a sentence is imposed on a concurrent crime for which a judgment has not been rendered among the concurrent crimes under Article 39(1) of the Criminal Act, the punishment for the crime for which the judgment has already been rendered does not necessarily require choice of the same type of punishment. Therefore, the lower court did not err in the fine for the crime of occupational breach of trust which has already been determined in this case and in the measure of selecting

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Lee Sung-soo (Presiding Justice)