2013Gohap41 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

2013Gohap114 (Consolidation) Violation of the Commercial Act

A person shall be appointed.

Lee Dong-dong (Institution of Prosecution), Manhee (Trial)

Law Firm Jeong, Attorney Kim Jin-jin

July 5, 2013

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

Defendant who converted 50,000 won into one day when the above fine has not been paid;

shall be confined in a workhouse.

Of the facts charged in this case, the charge of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) is acquitted.

Criminal facts

[2013Gohap114]

The defendant, who is working as the representative director, established "C" corporation of KRW 10 million on April 8, 2010 for the purpose of operating "Cpstrut A," which is being executed in "B corporation," and, on February 2012, he was willing to conclude that the capital of "C" corporation was increased by withdrawing money from the account of "B corporation" corporation of the above "B corporation," and immediately withdrawing it.

On February 10, 2012, the Defendant: (a) withdrawn KRW 300 million from the corporate account of the Plaintiff and deposited into the corporate account of the Plaintiff; and (b) issued a certificate of custody of shares payment by the bank; (c) on February 14, 201, the Defendant filed an application for registration to change the total capital of the said company from KRW 10 million to KRW 310,000,000 from KRW 10,000,000,000,000 from the said bank on the same day.

Summary of Evidence

1. Defendant's legal statement;

1. Statement of the police at the due date;

Application of Statutes

1. Relevant Article of the Criminal Act and the selection of punishment for the crime;

Articles 628(1) and 622(1) of the Commercial Act, selection of fines

1. Detention in a workhouse;

Articles 70, 69(2) of the Criminal Act

The acquittal portion

1. Summary of the facts charged [Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)]

A. Presumed facts

The Defendant was a person who served from April 14, 2008 to February 13, 2012, for the representative director of B corporation established for the new construction of the 8th and the 4th underground story (the name at present).

B Around January 12, 2010, the Defendant, the representative director of the corporation, awarded a contract for the construction of the building of the building of the building of the B B at KRW 30.7 billion, and D Construction Co., Ltd., around December 15, 2010, subcontracted the construction amount of KRW 3.74 billion in construction amount to F Co., Ltd., for which E is the representative director, machinery and fire extinguishing equipment work among the construction of the building of the Bring building of the B B at around December 15, 2010.

(b) Criminal facts;

On April 25, 2011, the Defendant drafted a contract under which the Defendant subcontracted the construction of machinery and fire extinguishing equipment to F Co., Ltd. to F Co., Ltd. to KRW 999 and KRW 0 million (the commencement of construction: April 25, 201: October 25, 201) from the office of Yangsan-si, Inc. to B Co., Ltd. (the completion of construction: October 25, 201).

However, in fact, B corporation did not have ordered the F corporation to perform the additional construction work on the part of F corporation. At the time, B corporation was awarded a contract for the construction of a new building, including machinery and fire extinguishing equipment construction, as in the above premise, and there was no reason to separately contract the construction of machinery and fire extinguishing equipment in B corporation.

Nevertheless, the Defendant, as the representative of B Co., Ltd., violated the occupational duty to prevent damage to the company in the course of various construction contracts, and in return for the Defendant’s personal loan of KRW 300 million to the Defendant, the Defendant: (a) prepares a standard subcontract agreement for false construction works with the contract amount of KRW 990 million; (b) has obtained pecuniary benefits equivalent to KRW 1.99 billion from E by means of a notarized act; and (c) has suffered pecuniary damage equivalent to the same amount of property to B Co., Ltd.

2. Determination

This part of the facts charged is that the defendant prepared a standard subcontract agreement for construction works to E, which he personally lent KRW 300 million to the defendant before, and caused property damage to B corporation (hereinafter referred to as "B") by means of notarial acts. However, even according to the evidence duly adopted and investigated by this court, it is only acknowledged that the defendant prepared the above contract document to E on April 25, 201 and gave it to E on April 25, 201, and there is insufficient evidence to recognize that the defendant was liable for the borrowed amount to E, or that the defendant was notarized on the above contract, and there is no lack of evidence to support that the defendant was liable for the borrowed amount to E on the other hand, or that the defendant was liable for the debt to the person against whom the contract was notarized. [The defendant prepared a separate payment note for the construction cost of KRW 990 million and received on November 30, 201, and prepared a notarized subcontract agreement and a notarial contract statement of KRW 3684,105,675.

Meanwhile, “When property damage is incurred” in breach of trust includes not only cases where a real damage is inflicted but also cases where the risk of actual damage is caused, but also where the risk of such damage is not caused, no crime of breach of trust shall be established. Accordingly, in cases where an act of bearing an obligation under the name of a juristic person is not legally effective, the act of the representative of the juristic person does not constitute a crime of breach of trust, unless there are special circumstances, and where the representative of the juristic person, etc. has been aware or could have been aware of the truth of the representative director, etc. when he/she exercised his/her power of representation for the purpose of pursuing his/her own interest or a third party’s interest, not for the benefit of the juristic person, the act becomes null and void for the company, and thus, it shall be viewed as above (see Supreme Court Decision 2012Do2142, May 24, 2012, etc.).

As indicated in the facts charged, although the Defendant was to prepare a standard subcontract agreement for construction works in return for the lending of E, the Defendant’s act of abusing his/her power of representation, and if so, barring such circumstances, the Defendant’s act is invalid since he/she either knew or could sufficiently know that he/she was to prepare a contract for the purpose of pursuing his/her own interest regardless of the interest of B, and thus, it cannot be deemed that the occurrence of property damage in B or the occurrence of property damage caused the examination.

In addition, in light of the fact that the obligation borne by B under the construction contract is based on the bilateral contract, and that E cannot immediately proceed to compulsory execution under the contract, it cannot be said that only the preparation of the construction contract, causes property damage to B or causes risk of property damage.

3. Conclusion

Therefore, this part of the facts charged constitutes a case where there is no proof of crime, and thus, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act.

Judges fixed line

Judges Jin-Law

Judges Mahova-Gyeong