(영문) 서울남부지방법원 2020.09.17 2019노2040

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(영문) 서울남부지방법원 2020.09.17 2019노2040

업무상배임등

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The judgment below

The guilty part (including the acquittal part of the reason) shall be reversed.

A defendant shall be punished by a fine of one million won.

Reasons

1. The court below found the Defendant not guilty on each of the charges of fraud, and found the Defendant not guilty on the charges of occupational breach of trust as stated in the attached Table Nos. 2, 4, 7, 12, 15, 18, 21, 26, 28.

As a prosecutor filed an appeal only against the innocent portion of the order, the part which was judged not guilty on the ground that it was remanded to the court, along with the convicted part, but was already separated from the object of attack and defense between the parties, and thus, the part which was found not guilty on the ground of the judgment below is not judged again, but should follow the conclusion of the judgment below.

2. Summary of grounds for appeal;

A. Defendant 1) Defendant E (hereinafter “victim”) with respect to the use of a corporate card.

As the executive officers and shareholders’ consent was used, there was no intention in occupational breach of trust, and as such, the purchase of 3D printers with the consent of the representative director B of the victim company, it does not constitute occupational embezzlement. Nevertheless, the judgment of the court below which found the Defendant guilty of this part of the charges of occupational breach of trust, occupational embezzlement, and attempted occupational embezzlement, erred by misapprehending the facts or by misapprehending the legal principles, thereby adversely affecting the conclusion of the judgment. 2) The sentence of the court below (the fine of KRW 3 million) is excessively unreasonable.

B. A prosecutor 1) Notwithstanding the fact that the Defendant had no intent or ability to repay money at the time of borrowing, the lower court acquitted the Defendant on the charges of fraud, by misapprehending the facts or misapprehending the legal principles, thereby adversely affecting the conclusion of the judgment. 2) The sentence of the lower court (three million won of a fine) is excessively uneasible and thus unfair.

3. Determination

A. The defendant's assertion of mistake of facts and misapprehension of legal principles is identical to the grounds for appeal of this case at the court below.

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