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The judgment below
The conviction part against Defendant A and the part against Defendant B and C shall be reversed, and this part shall be reversed.
Reasons
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. As to the Defendants’ grounds of appeal
A. (1) As to Defendant A and B’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) (hereinafter “Special Economic Crimes Act”) for an urban development project in Pyeongtaek Qu District, the term “act in violation of the duty of breach of trust” includes any act in violation of the trust relationship with the principal by failing to perform an act that should be naturally expected under the statutory provisions, the terms of the contract, or the good faith principle, in light of the content and nature of the business to be handled, or by performing an act that should not be expected to be done naturally.
In addition, in determining whether there was an intentional breach of trust to a manager of a company in relation to the so-called management judgment, the same legal doctrine as the method of proving an intentional breach of trust is applied to the general crime of occupational breach of trust. However, considering the inherent characteristics in the management of the company, the strict interpretation criteria for recognizing an intentional breach of trust should be maintained only in cases where it is recognized that the act is an intentional act by itself or a third party, in light of all the circumstances, such as the developments and motive leading up to the management judgment in question, the contents of the business subject to the determination, the economic situation of the company in question, the probability of incurring losses and the possibility of acquiring profits, etc. (see Supreme Court Decision 2010Do7546, Jul. 28, 2011).
(See Supreme Court Decision 2002Do4229 delivered on July 22, 2004). Meanwhile, the recognition of conviction in a criminal trial is a judge.