A. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

(b) Violation of the Act on the Aggravated Punishment of Specific Economic Crimes;

C. Violation of the Securities and Exchange Act

(d) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes;

(e) Occupational embezzlement (title of partially recognized crime: Occupational breach of trust);

A

Defendant

Attorney HN (N)

E. Attorney E.

Attorney GA

Law Firm (LLC) HI

[Defendant-Appellant]

Seoul High Court Decision 2014No1891 Decided October 6, 2016

December 22, 2017

The guilty part of the judgment of the court below (including the acquittal part in the grounds) is reversed, and the Seoul Appellate Court case is reversed.

shall be remanded to the court.

The grounds of appeal (the supplemental appellate brief not timely filed is supplemental appellate brief)

The grounds of appeal are examined to the extent of supplement in case of supplemental appellate grounds.

1. As to the ground of appeal on occupational breach of trust

A. The summary of the charge of occupational breach of trust of this case is as follows. The defendant is the victim from January 2006.

A person who operates a food company (hereinafter referred to as a "victim") and a notary public's law office around October 17, 2006

A corporation HB office shall be 400 million won from DM for personal use regardless of the business affairs of the victimized company

a sum of KRW 50 million for a face value of KRW 450,000,000, which is stated as a victimized company, even if the issuer borrowed KRW 50 million;

The Promissory Notes of this case (hereinafter referred to as the " Promissory Notes of this case") shall be made and their seals shall be affixed thereon.

DM’s agent to HC, and to cause DM to do so, the amount of KRW 450 million.

acquisition of profits and loss of property equivalent to the same amount in the damaged company;

(c)

B. The lower court found the Defendant guilty of the instant charges of occupational breach of trust on the following grounds.

was made.

(1) If the representative director of the company has abused his power of representation and issued a promissory note in the name of the company

corporation because the other party knew of or was grossly negligent in the other party to the abuse;

even if a promissory note is distributed to a third party, the corporation shall be liable for such

A. The risk of having the obligation to pay the bill to the holder has already occurred, so the breach has already occurred.

In economic terms, unless there are special circumstances to the effect that the notes are not distributed to a third party, the economic terms shall not apply.

The risk of actual loss of the company's property in breach of trust has been caused to the company.

(2) However, in this case, the other party at the time when the Defendant issued and delivered the Promissory Notes

there is no evidence to deem that there was an agreement between the Department that the said Promissory Notes does not be distributed.

(2) The Promissory Notes in this case are endorsed and transferred to a third party solely on the ground that the Defendant asserts.

Since it cannot be deemed impossible to do so, from an economic perspective, breach of trust against the victimized company.

It is reasonable to view that the risk of actual damage to property has occurred in a crime.

C. However, we cannot accept the judgment of the court below for the following reasons.

(1) The representative director of a stock company has violated his duties such as abusing his power of representation, etc.

Even if a promissory note is issued, it is effective as an act of the company, but the other party to the issuance is represented.

When directors have known or could have known the truth of directors, they shall be null and void against the company: Provided, That bills of exchange

The drawer of a promissory note under law shall have recourse to any defense arising from personal relations with the previous holder.

Inasmuch as the issuance of a bill is not effective (Articles 77 and 17 of the Bills of Exchange and Promissory Notes Act).

In fact, if distributed to a third party, the risk that the company will assume the obligations of the bill of exchange;

Therefore, even before the obligation of the bill is actually performed, it shall be deemed that the performance occurred.

It is a breach of trust. However, the issuance of a promissory note is null and void, as well as the circulation of such note.

because the company does not bear an obligation to the other party to the issuance of a bill, the company shall not, unless otherwise, do so:

Due to the issuance of such promissory notes, the injured company has actually paid or civilly paid such notes.

Unless there are special circumstances such as bearing liability for damages, actual damages to the company

Therefore, the crime of breach of trust cannot be deemed to have been committed or the risk of actual damage.

It should be punished as an attempted breach of trust, not an attempted crime (Supreme Court Decision 2014Do1104 Decided July 20, 2017).

See en banc Decision)

(2) We examine the instant case in light of such legal principles.

According to the records, the Defendant: (a) since the lower court, the Promissory Notes of this case against the victimized company

DM and its agents, the other party, are issued by abusing their voting rights, and HC are also well aware of such circumstances.

As such, the promissory note in this case is not effective as against the victimized company. <2>

It is attached to the authentic copy of the notarial deed of promissory note drawn up in the form of a bill.

In fact, there is no possibility that the rights under the Promissory Notes No. notarial Deed were not transferred to a third party.

Therefore, it can be seen that there is a change in the purport that the crime of occupational breach of trust is not established.

As alleged by the Defendant, the issuance of Promissory Notes in this case by abusing the power of representation.

was known to the other party that the issuing act is not effective against the injured party; and

If the Promissory Notes of this case were not distributed to a third party, actual damage to the damaged company is not actually caused.

Since it cannot be deemed that there was a risk of causing damage or loss, a criminal defendant's attempted breach of trust.

Only a crime can be punished as a crime. However, even in the case, the injured company actually pays promissory notes.

In the event that the circumstances such as civil liability for damages are recognized, actual damage company

Defendant shall be deemed to have caused damage or a risk of actual damage. Thus, Defendant shall be deemed to have caused such damage

It is possible to punish a person as an attempted crime.

If so, the court below finds that the defendant abused his power of representation and thereby generated the Promissory Notes.

(2) Whether the Promissory Notes of this case were known or could have been known to the other party

(3) In fact the injured company has actually made a promissory note, even if not distributed;

substantial damage to the affected company by urgent or civil liability for damages, etc.

After examining whether there was a risk of death or actual damage, etc., the defendant is in breach of trust.

It should have been judged whether the punishment can be imposed as an attempted crime.

(3) Nevertheless, without reaching this, the Promissory Notes are endorsed and transferred to a third party.

Only on the ground that it cannot be deemed impossible to do so from an economic point of view to the damaged company

The promissory note of this case is concluded to have caused the risk of property loss in breach of trust.

Defendant guilty of the charge of occupational breach of trust on the premise that the act committed has been committed against the breach of trust.

The judgment of the court below is erroneous in the misapprehension of legal principles as to the property damage requirement and time of breach of trust.

There is an error of law that affected the judgment by failing to exhaust all necessary deliberations.

2. As to the remaining grounds of appeal as to the remaining guilty portion (excluding the allegation as to the remaining guilty portion)

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, the lower court’s judgment

For the same reasons, the remainder of the indictment except for occupational breach of trust among the indictments of this case

It is justifiable to have determined that all the courts (excluding the portion of innocence) are guilty. In so determining, the grounds of appeal are justified.

As alleged, money exceeds the bounds of the principle of free evaluation of evidence against logical and empirical rules;

The confirmation of a party to a loan agreement, the burden of proof in the establishment of embezzlement, the Criminal Procedure Act

There is no error in the misapprehension of legal principles as to Article 314.

3. Scope of reversal

For the reasons stated in paragraph (1), the part concerning the crime of occupational breach of trust among the judgment below should be reversed.

The remaining convictions in the judgment are concurrent crimes under the former part of Article 37 of the Criminal Code with the above reversal part.

One sentence shall be imposed on the entire conviction, and the acquittal of the reasons shall be the remainder of the conviction.

Since it is inevitable to reverse the relationship between a part and a single comprehensive crime, the conviction in the judgment of the court below is ultimately guilty.

Part (including the part not guilty) shall be entirely reversed.

4. Conclusion

Therefore, without examining the remaining grounds of appeal, the part of the judgment below's conviction (not guilty in the grounds of appeal)

Part of the case is reversed, and this part of the case is remanded to the court below for a new trial and determination.

It is so decided as per Disposition by the assent of all participating Justices on the bench.

The presiding judge shall keep the record of the Justice

The Chief Justice Park Jae-young

Justices Cho Jong-hee

Justices Cho Jae-chul