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All appeals filed by the defendant and prosecutor are dismissed.
Reasons
1. Summary of grounds for appeal;
A. In fact, there is no procedural defect in the method that the Defendant paid the national tax of KRW 56,692,140 (hereinafter “the national tax of this case”) to the Cheongju Tax Co., Ltd. (E), the executing company of the instant construction (hereinafter “E”), and there is no damage that the victim suffered as long as the national tax was actually paid.
Nevertheless, the judgment of the court below which found the Defendant guilty of the facts charged of this case is erroneous and adversely affected by the judgment.
B. The sentence of unfair sentencing (two months of imprisonment and two years of a suspended execution) of the lower court is too heavy or (the Defendant) and it is unreasonable to inspect (the prosecutor).
2. Judgment on the defendant's assertion of mistake of facts
A. In the crime of occupational breach of trust, “an act contrary to the duty” in the relevant legal doctrine refers to any act that does not perform any act that is naturally expected under the provisions of law, the content of a contract, or the principle of trust and good faith, or does not perform as a matter of course, in light of specific circumstances, such as the content and nature of the pertinent business, and thereby undermining the fiduciary relationship with the principal by doing so. As long as pecuniary advantage or letting a third party acquire it and inflict loss on the principal, the intention of intentional or unlawful acquisition is recognized (see Supreme Court Decision 2013Do6835, Sept. 27, 2013). In the crime of occupational breach of trust, determination of the existence of property damage is not based on legal judgment, but in substance from an economic point of view. This includes not only cases where an act causes positive damage, such as the decrease of property due to the disposal of property, guarantee, provision of security, etc., but also cases where an act of occupational breach of trust, which is sufficiently anticipated even after being acquired, causes a passive loss, i.
These passive losses are increased in property.