2013Do5386 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), tourism

Violation of the Promotion Act, Violation of the Aggravated Punishment Act

(Misappropriation of Trust)

A

Defendant

Law Firm EN

Attorney EO, EP, EP, Q, ER, ES

Law Firm B

Attorney EI, ET, C

Seoul High Court Decision 2012No3711, 2013No243 (Joint Judgment) Decided April 18, 2013

September 12, 2013

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), this part of the Defendant’s allegation in the grounds of appeal is that the Defendant used money in order to overcome the managerial crisis of F Co., Ltd. (hereinafter “F”) and to expand its normal business and to secure financial soundness, and thus, the Defendant did not have any intent to obtain unlawful acquisition, the lower court erred by misapprehending the legal doctrine thereon and convicted him of the remainder of the facts charged in violation of the rules of evidence. The purport of the ground of appeal is that this is unlawful.

However, examining the reasoning of the lower judgment in light of the records, the lower court’s adoption of the evidence consistent with this part of the facts charged on the grounds as stated in its reasoning and the judgment of conviction is justifiable. In so doing, the lower court did not seem to have erred

2. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust)

A. The Defendant’s assertion in the grounds of appeal is as follows. In other words, the Defendant’s act of borrowing funds under F’s name for personal purposes, regardless of F’s profit or business necessity, and providing F’s property as security is an abuse of the Defendant’s power of representation, and the Defendant’s act of abusing the Defendant’s power of representation was known. In addition, the Defendant’s act of lending KRW 2 billion to F and agreed to receive interest of KRW 300 million for one month, KRW 50 million for two months, KRW 70 million for three months, and KRW 2 billion for four months constitutes anti-social order. Accordingly, the Defendant’s act of offering the above security becomes invalid against F and thus, it cannot be said that there is no risk of damage to F. Nevertheless, the lower court convicted the Defendant, and thus, the lower court erred by misapprehending the legal doctrine on property damage arising from occupational breach of trust.

B. However, when property damage is incurred in breach of trust, it includes not only a case of causing a real loss but also a case of causing a risk of actual damage to property, and this should be understood from an economic point of view without legal judgment. Therefore, even if the act can be null and void, in a case where the act is judged from an economic point of view and causes a real damage to the principal or a risk of actual damage to property, it shall be deemed that the act constitutes a case of causing property damage which is a constituent element of the crime of breach of trust (Supreme Court Decision 91Do2963 delivered on May 26, 192).

According to the records, the following facts can be revealed: (i) the Z applied for an auction on the basis of the right to collateral created by the defendant; (ii) the F is pending in the lawsuit to confirm the existence of the obligation against the Z; and (iii) the possibility that F will be liable for tort or other legal liability against the Z even if the act of occupational breach of trust in this case is null and void under the law as alleged by the defendant, even if the act of occupational breach of trust in this case is null and void under the law as alleged by the defendant, it is reasonable to view F to have concrete danger of actual damage caused by the above act of the defendant, etc.

Therefore, it is justifiable for the court below to find the defendant guilty of this part of the facts charged on the ground that the defendant's debt burden and the offer of collateral caused a risk of actual damage to the F's property. There is no violation of law such as misunderstanding of legal principles as to property damage in the occupational breach of trust, as otherwise alleged in the ground of appeal.

3. Conclusion

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

Justices Kim Chang-suk

Justices Yang Chang-soo

Chief Justice Park Poe-dae

Justices Go Young-young