207No2434 Occupational Breach of Trust

○ ○

Prosecutor

nan

Attorney Park Do-young

Incheon District Court Decision 2006Ra4623 Decided October 5, 2007

May 29, 2008

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of the prosecutor's grounds for appeal;

As long as the defendant, as a business member of the victim ○○○ Co., Ltd. (hereinafter referred to as “victim”) sold goods below the standard price of the victim company, he/she may be recognized as the defendant's intentional breach of trust. When sold goods according to the standard price, the victim company suffered property damage equivalent to the amount stated in the facts charged, equivalent to the difference between the value of the goods and the actual value of the goods deposited by the defendant. Since the wholesaler who purchased the goods from the defendant at a price below the standard price, the wholesaler who purchased the goods from the defendant acquired property profits equivalent to the same amount, the judgment of the court below which acquitted the defendant, even if the defendant could be recognized

2. Ex officio determination

Before determining the grounds for appeal by the prosecutor, the prosecutor initially prosecuted the defendant for occupational breach of trust. The prosecutor changed the indictment to the effect that "the defendant sold drinking water below the price of the victim company to his customer because he violated his duties, thereby causing property damage to the victim company," and did not state on the acquisition of property profits. In the trial, the defendant did not state on the acquisition of property profits in the above 241,675,526 won in the above 241,675,526 won in the facts charged. The prosecutor changed the indictment to the effect that "the defendant had acquired property profits equivalent to 241,675,526 won in the above 241,675,526 won in the above 200's transaction partners or wholesalers such as ○○ distribution, etc. or wholesalers (the ○○ distribution wholesalers et al.) with the above facts charged prior to the change." The judgment below as to the defendant based on the facts charged prior to the change was no longer maintained.

3. Determination on the grounds for appeal

However, the prosecutor's argument of mistake or misunderstanding of legal principles is still subject to the judgment of this court.

A. Summary of the judgment of the court below

The court below found that ① selling drinking water at the base price of the victim company to be impossible in the market situation to achieve the sales table of the victim company, and all other circumstances revealed in the records, and found that the victim company impliedly infringed on the business form of the "tentative". Under such circumstances, unless the defendant sold drinking water at a virtual price and sold at a discount for personal interests, it cannot be deemed that the defendant had an intentional act in breach of trust even though he did not have any awareness that the defendant sold drinking water below the base price of the victim company. ② Since the defendant did not have any personal profit and the wholesaler who purchased drinking water from the defendant did not gain any profit, there is no profit earned by the defendant or a third party, and ③ even if the victim company sold drinking water at the base price, there is no evidence to prove that the sales quantity stated in the attached list was entirely sold at the time of the original judgment. (In light of the excessive competition situation of the drinking market, it seems impossible to conclude that the sales amount in accordance with the base price and the amount actually sold by the defendant did not have any damage to the victim company.

(b) Fact of recognition;

Comprehensively taking account of the evidence duly examined and adopted by the lower court, the following facts are acknowledged. (1) The Defendant served as the victim company's accelerator business employee from January 1, 2005 to September 30, 2001, and the victim company allowed business employees to sell only at the standard price determined by the victim company within a certain area. However, the Defendant placed one "one-day, as mentioned below during the above service period," and sold the virtual sales volume at a discount to the non-party wholesaler below the standard price of the victim company, thereby causing the outstanding amount equivalent to KRW 241,675,518 as indicated in the facts charged.

(2) In order to achieve sales goals allocated to each branch or group of employees by the injured company, the standards for the Company shall be based on a computer system, even though the members of the Company did not actually sell products.

It means a business behavior in which the commodities are actually sold and money is deposited after entering the price as if they were sold at prices, and after keeping them in a warehouse, etc. by receiving orders from the victim company, it means a business behavior in which the commodities are actually sold.

(3) Once the virtual sales are carried out, a member of the company shall sell the virtual sales and deposit money with the company. Since most of the virtual sales are unable to process the virtual sales volume within his/her jurisdiction, a member of the company shall sell the virtual sales volume to a large wholesaler, such as the Yeongdeungpo-gu Market, and a large market such as the Yeongdeungpo-gu Market has a market distribution price separately formed and a company is considerably less than the company's base price. Therefore, if the virtual sales are carried out, the difference between the company's base price and the market distribution price is less than the company's base price (in addition to the outstanding amounts, it cannot be ruled out that the difference between the outstanding amounts and the operating members may be useful, but there is no supporting document). Accordingly, when the original adjudication is conducted, the sales amount of the daily sales list in the attached Form is determined to be less than the amount actually sold by the defendant, but also the amount of money deposited by the company from the computerized sales amount less the amount actually discounted to the company by the defendant, and the name and the place of sale of the goods actually sold by the defendant.

(5) On the other hand, the head of the branch office of the victim company working for the defendant, the head of the branch office of the victim company, also ○○ by himself, and the head of the branch office of the victim company, when the business performance of the branch was good, the sales of the branch office was cancelled by the market, and so it was customary to catch the market in order to achieve sales goals among the business members of the victim company.

(6) If the difference (outstanding amount) arising from the virtual sales and discount sales exceeds a certain degree, the victim company is liable to the business members through the audit, etc., and the business members, their suretys, parents, etc. have been paid the difference. If the business members do not comply with it, a complaint was filed by embezzlement, etc. In the case of ○○ branch of the victim company where the defendant was working, the victim company is suspected to have utilized the public funds as the defendant due to such virtual sales.

(7) Even in the case of the Defendant, the victim company filed a complaint that the Defendant embezzled all of the difference arising from the virtual plate and the discount sale of this case. However, there is no evidence to prove that the Defendant embezzled the above amount of damage during the investigation process, and such difference occurred due to the difference between the base price of the victim company and the market distribution price, the virtual market price and the discount sale, etc., and the prosecutor was indicted the Defendant on the charge of occupational breach of trust.

C. Judgment of party members (1) Property interest as a constituent element of a crime of occupational breach of trust

In light of the above, the crime of breach of trust on duty requires an actor to acquire property benefits or to have a third party acquire property benefits due to an act of breach of trust in addition to causing property damage to the principal. Thus, even if the perpetrator or the third party has inflicted damage on the principal, the crime of breach of trust cannot be established unless the actor or the third party has acquired property benefits (see Supreme Court Decisions 81Do2601, Feb. 23, 1982; 2005Do6439, Jul. 26, 2007; 2005Do6439, Jul. 26, 2007; 79

27. The phrase “acquisition of a pecuniary benefit” refers to a case where a person gains a pecuniary benefit from the overall perspective, i.e., an increase in the total value of property.

(2) Determination on this case

In accordance with the above legal principles, first of all, we examine whether the sales volume from customers such as ○○ Distribution or the Defendant can be viewed as acquiring pecuniary benefits equivalent to KRW 241,675,518, as stated in the facts charged, due to the Defendant’s breach of trust.

(A) First of all, it is clear that the transaction partner, such as ○○ Distribution, has no interest in the virtual buyers who appear only on a computerized basis due to the virtual sales, as seen in the facts of recognition.

(B) Next, it is recognized that the Plaintiff could have purchased goods at a price lower than the standard price of the victim’s company due to the breach of trust in which the Defendant sold goods below the standard price of the victim company.

However, as to whether the above wholesalers have acquired property benefits, the company's base price is merely the price set regardless of the market situation in order to guarantee the appropriate profit of their company. The product price in the market is not 1010% monopoly, but can be determined by the market order. According to the records of this case, the wholesaler and the market distribution price (i.e., wholesale price) actually exist, and (ii) the victim company knew of the existence of the market price and frequently investigated the market price, and even if it was not from the defendant, it was possible for the wholesaler to purchase the goods from the defendant, in order to recognize that there was an increase in the total property value of the wholesaler by purchasing the goods from the defendant, it should be recognized that the defendant sold the goods at a price below the above market price. However, there is no evidence to acknowledge that the defendant sold the goods to the wholesaler at a price below the market price, and there is no further difference between the wholesaler and the defendant 2 and the above 5 market price.

(3) Sub-decisions

Therefore, the original decision that the facts charged in this case constitute a case where there is no proof of crime is justifiable in conclusion, and there is no error of misapprehending the facts or misapprehending the legal principles on the crime of breach of trust, and therefore, the prosecutor’s appeal is without merit.

4. Conclusion

Therefore, the prosecutor's appeal is without merit, but the judgment of the court below is reversed in accordance with Article 364 (2) and (6) of the Criminal Procedure Act, since there is a ground for ex officio reversal as seen above, and it is again decided as follows.

The summary of the facts charged of this case is that "the defendant worked as an employee of the victim's ○○○ branch of the above company from January 1, 2005 to September 30 of the same year as an employee of the above 2000, and engaged in the sales and collection of drinking products at the above company's 00,000. When selling drinking water at 0,00,000,000,000,000 won around January 6, 2005, the victim's company did not sell drinking water below the standard price, thereby preventing business losses and maintaining a reasonable amount of drinking water. Thus, the defendant, who is an employee of the above company, has a duty to sell drinking water normally according to the sales price set by the above company from around 30,00 to 30,000 won, 70,000 won and 70,000 won and 9,000 won and 7,000 won and 9,000 won and 7,00 won.

Judges of the presiding judge

Judges

Judges