Defendant

Defendant

Lee Jong-hee (Court of Prosecution) and Kim Dong-hee (Court of Justice)

Law Firm Gangnam-nam, Attorney Cho Byung-chul

Suwon District Court Decision 2014 Godan6951 Decided January 23, 2015

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. Error of mistake

Since the Defendant received a loan of KRW 120 million from the victim and did not repay the total amount of KRW 95 million among them, the judgment of the court below that recognized the crime of breach of trust on the total amount of KRW 160,000,000,000, which affected the conclusion of the judgment by misunderstanding the fact that the judgment of the court below recognized the crime of breach of trust.

B. Legal principles

Since the obligation to repay loans is not another person's business, it constitutes a case where a civil obligation is not performed, and it does not constitute a crime of breach of trust under the Criminal Act.

C. Unreasonable sentencing

The punishment of the court below (one year of imprisonment) is too unreasonable.

2. Determination

A. Judgment on misconception of facts and misapprehension of legal principles

Since the crime of breach of trust is established when a person who administers another's business obtains pecuniary benefits through an unlawful act of breach of trust and causes damage to another person who is the principal subject of the business, the principal of the crime must be a person who administers another's business. In order to be "a person who administers another's business", the principal of the crime must be a person who administers another's business, which goes beyond a mere obligation under a fiduciary relationship between the two

In addition, when property damage has been inflicted on the crime of breach of trust includes not only a case where a real damage has been inflicted but also a case where a risk of actual damage to property has been caused, and the judgment on the existence of property damage has to be grasped from an economic point of view without legal judgment in relation to the property condition of the principal. Therefore, even if the act of breach of trust is null and void by legal judgment, where a real damage has been inflicted on the principal or a risk of actual damage to property has been inflicted on the principal due to an act of breach of trust in an economic point of view, it constitutes a crime of breach of trust (see Supreme Court Decision 2010Do4613, Aug. 26, 201

In this case, as to whether the defendant is "a person who administers another's business," the borrower's obligation to repay the loan to the borrower in a relationship of commercial cash loan is merely his/her own obligation and cannot be deemed as another person's business. However, in case where the borrower and the borrower have entered into a contract to establish a right of pledge with the borrower as a secured obligation, the borrower is in a position to cooperate in protecting or managing the lessee's property, such as the right of pledge, in accordance with the contract to establish a right of pledge. Thus, it is reasonable to view that the defendant, the pledgee of a right, falls under "a

In addition, the pledge of a right guarantees all the principal, interest, penalty, expenses for the exercise of the right of pledge, damages liability due to nonperformance, etc. (Articles 355 and 334 of the Civil Act). Since it is reasonable to view that even if the amount of the secured claim is less than the amount of the claim for the refund of the secured claim of this case, the effect of the pledge extends to all the above claim for the refund of the leased deposit, if the Defendant created a pledge of the right to the claim for the refund of the leased deposit in order to secure the amount of KRW 120 million borrowed from the victim, it does not interfere with the establishment of the crime of breach of trust regarding the total amount of the claim for the refund of the leased deposit of KRW 160 million (the circumstance after the crime of breach of trust was already established by the Defendant to pay KRW 25 million to the victim is nothing more than the circumstance after the crime was committed).

Therefore, we cannot accept this part of the defendant's assertion.

B. Determination on the assertion of unfair sentencing

Despite the fact that the amount of damage caused by the instant crime is a considerable amount of KRW 160 million, damage has not been properly recovered to the trial court, and in full view of all the sentencing conditions indicated in the instant pleadings, such as the Defendant’s age, character and conduct, environment, family relationship, motive and circumstance after the instant crime, etc., the lower court’s punishment is too unreasonable. Thus, this part of the Defendant’s assertion is also rejected.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges or higher-ranking (Presiding Judge)