Defendant

Both parties

decoration;

Law Firm Don Law Firm Choi-young et al.

Incheon District Court Decision 2010Ma1188 Decided January 13, 2011

The judgment of the court below is reversed.

The punishment of the accused shall be eight months by imprisonment.

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

The defendant shall be ordered to provide community service for 80 hours.

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts or misapprehension of legal principles

The Defendant voluntarily renounced the right to enter into a gold production and delivery contract with Nonindicted 3, and did not agree to enter into a gold production and supply contract only on behalf of Nonindicted 4 Co. 3 operated by Nonindicted 3 (hereinafter “victim Co. 4”) or even after the expiration of the term of validity of the contract, the lower court recognized that the Defendant committed a breach of trust against the victim by misapprehending the legal doctrine or by violating the said agreement.

In addition, the Defendant independently entered into a gold production and supply contract with the victim company, and the pecuniary loss to the victim company is the remainder after deducting the production costs from the contract amount and the profits the Defendant would have to have. Property profits in the attached Table No. 3 shall be deducted from the amount of the non-receiving amount. Property profits in the attached Table No. 40,122,120, and property profits in the attached Table No. 5 shall be deducted from the amount of the contract. Although the Defendant did not receive the total amount of 38,00,000 won, the lower court recognized the total contract amount as property

2) Unreasonable sentencing

The punishment sentenced by the court below against the defendant (two years of suspended execution in August, and eight hours of community service order) is too unreasonable.

(b) Prosecutors;

The sentence imposed by the court below against the defendant is too uneasible and unfair.

2. Ex officio determination

Before determining the grounds for appeal by the Defendant and the Prosecutor, the lower court ex officio determined each of the instant breach of trust crimes as substantive concurrent crimes.

However, even if multiple occupational breach of trust is committed as shown in the facts charged in this case, if the legal interest of damage is a single and the form of crime is the same, and if such multiple breach of trust can be seen as a series of acts based on a single criminal intent, such multiple breach of trust constitutes a single crime (see Supreme Court Decision 2007Do541, Jul. 23, 2009).

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the number of crimes, which affected the conclusion of judgment, and the judgment below cannot be maintained

Even if there is a ground for ex officio reversal, the legal principles of the defendant or the argument of mistake is still subject to the judgment of the court.

3. Determination

(a) Defendant’s breach of trust;

According to the evidence duly admitted and adopted by the court below, the defendant agreed to enter into a gold production and supply contract for the victim company with non-indicted 3, but it can be acknowledged that the defendant acquired property benefits and incurred property damage to the victim company by violating his/her duties.

① On January 2, 2008, while engaging in gold production and withdrawal business, Nonindicted Co. 1 Company (hereinafter “Nonindicted Co. 1”) and Nonindicted Co. 3 operated by the Defendant, on which the Defendant carried out external business activities in the vice president position of the Victim Co. 1 Company and reverted its activities and contracts to the victim company, and 50% of the gold production quantity to implement the gold production and supply contract reverted to the victim company, Nonindicted Co. 1 and the remainder 50% of the gold production amount to be produced from the victim company and divided its profits from the victim company by 1/2 (hereinafter “instant agreement”); 33 of the trial record; and 161 of the evidence record).

② On January 28, 2008, the Defendant closed down Nonindicted Company 1, and established Nonindicted Company 2 on April 7, 2008 (Evidence Records No. 135, 202).

③ In accordance with the instant agreement, the Defendant concluded a gold-making and delivery contract with Nonindicted Co. 5 and Nonindicted Co. 6 Co., Ltd. on May 16, 2008, and with Nonindicted Co. 6 on September 8, 2008, with Nonindicted Co. 80 million won on September 8, 2008, respectively, and agreed to receive 50% of the net profit generated under each contract from Nonindicted Co. 3 (the trial record Nos. 33, 34, evidence Nos. 7, 107 through 117).

④ Nevertheless, the Defendant did not notify the victim company of the violation of the occupational duties under the instant agreement, and concluded a gold production and delivery contract under the name of Nonindicted Co. 2, a company with which the Defendant was established, such as the facts charged (Evidence Records No. 57, 66, 85, 179).

With respect to the validity of the instant agreement, the Defendant asserted that: (a) around December 2007, the Defendant made an oral agreement with Nonindicted 3 to conclude a gold production and supply contract independently with the victim company; (b) however, as the Defendant’s assertion, it is inconsistent with Nonindicted 3’s written agreement to vest all contracts in the victim company at the request of Nonindicted 3 after about three months from that time; and (c) there is no reason to not prepare any objection in writing in part of the contract (Evidence No. 178 of the evidence record); and (b) there is no reason to claim that the term of validity of the instant agreement is only one year (Evidence No. 178 of the record). However, the instant agreement set the fee for the parts within three percent and set the standard time limit only for one year (Paragraph 3), and the remaining provisions of the instant agreement were not set the term of validity (Article 41 of the trial record, No. 161 of the evidence record). Therefore, the Defendant’s assertion is without merit.

(b) Property profits and losses;

First, among the facts charged in the instant case, we examine the property interests in the No. 1, 2, and 4 of the List of Crimes No. 1, 4. The Defendant concluded a contract with the above act of breach of trust and concluded the contract with the above act of breach of trust, and the whole amount acquired by the contract shall be "property interests" of the crime of breach of trust, and the amount of production costs incurred by the Defendant or the amount that the Defendant agreed to receive ex post facto settlement from the victim cannot be deducted from property interests. Accordingly, property interests in the instant facts charged can be recognized as stated in the

Next, among the facts charged in this case, we examine the property interests in the attached Forms 3 and 5 of the List of Crimes. The evidence on the part that the defendant acquired more than KRW 40,122,120, out of KRW 90,000,000,000 (=90,000-40,122,122,120) out of the financial interests in the attached Table 3 of the List of Crimes No. 3 is the only contract entered into between the defendant and the non-indicted 7. In light of the fact that the non-indicted 3 of the court below found that the defendant had not yet received KRW 40,122,120 out of the contract amount from the non-indicted 7 corporation (the trial record No. 47 of the trial record), the above contract alone is insufficient to acknowledge this part of the facts charged, and there is no other evidence to prove this otherwise.

In addition, we examine the property profits of KRW 38 million in the attached Table No. 5. According to the contract and the contract cancellation agreement on this part, the defendant will produce and deliver gold in the non-indicted 8 corporation with KRW 38 million and receive KRW 16.72 million and then cancel the contract later (Evidence No. 54 through 59 of the evidence record), but there is no evidence to prove that the defendant acquired the above amount in excess of KRW 16.72 million.

Therefore, the portion exceeding 49,877,880 won out of the property profits in the attached Table No. 3 and the portion exceeding 16,720,000 won out of the property profits in the attached Table No. 5 of the crime List No. 5 constitutes a case where there is no proof of a crime, but the judgment of the court below which found the defendant guilty of this portion is erroneous and has

4. Conclusion

Therefore, the judgment of the court below is reversed under Article 364(2) and (6) of the Criminal Procedure Act without examining the grounds for appeal on the grounds of unfair sentencing by the prosecutor and the defendant, and the judgment of the court below is reversed, and it is again decided as follows.

The summary of the facts constituting an offense and evidence acknowledged by this court is changed to "the sum of financial gains equivalent to KRW 163.6 million in total, and the victim company suffered property damage equivalent to the same amount" in the second class (2) at the bottom of the facts constituting an offense of the court below. It changed to "the victim company obtained property gains equivalent to KRW 105,697,80 in aggregate and suffered property damage equivalent to the same amount to the victim company" and the victim company suffered property damage equivalent to the same amount. The facts constituting an offense of the court below attached to the court below are the same as the corresponding column of the court below, except for the replacement into the list of crimes attached to the annexed Form.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 356 and 355(2) of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (Consideration of Grounds, etc. for Sentencing below)

1. Social service order;

Article 62-2 (1) of the Criminal Act, Article 59 of the Act on Probation, etc.

The fact that the actual amount of profit acquired by the defendant after deducting production cost is not significant is favorable to the defendant.

However, the crime of this case is repeatedly committed by the defendant in breach of trust, which has a significant nature of the crime, and the defendant has a record of criminal punishment on August 8, 2007, other than the punishment of a fine in the Busan District Court Branch Branch of the Incheon District Court, which was sentenced to criminal punishment on several occasions, etc., are disadvantageous to the defendant.

In addition to the above circumstances, the sentence shall be determined as ordered in consideration of the various sentencing conditions shown in the records and arguments of this case, such as the circumstances before and after the crime, the age, character and conduct of the defendant, family environment, etc.

Of the facts charged in this case, the portion exceeding 49,87,880 won out of the property profits in No. 3 of the crime sight table of this case and the portion exceeding 16,720,000 won out of the property profits in No. 5 of the crime sight table of this case shall be judged not guilty where there is no proof of each crime. However, as long as the conviction of occupational breach of trust in the judgment of a single crime is found in the relation of a single crime

[Attachment]

Judges Lee Sung-won (Presiding Judge)