Defendant

Defendant and Prosecutor

Kim Jong-soo

Law Firm International Law Firm, Attorney Kim Dong-jin

Busan District Court Decision 2008 Godan1435 Decided July 21, 2009

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 3,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 60,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of grounds for appeal;

A. Defendant

(1) misunderstanding of legal principles

For the following reasons, the Defendant and his defense counsel asserts that the lower court erred by misapprehending the legal doctrine on occupational breach of trust, thereby affecting the conclusion of the judgment.

(1) The instant agreement entered into between the head of the Busan Military Trade Union and the head of the Busan Military Trade Union and the defendant who is a negotiating member is one of his/her own business affairs, and there is no judicial right for taxi workers to seek the amount of value-added tax reductions against the taxi company or business cooperative. Therefore, the defendant is not in

② In determining the method of use of value-added tax, the Ministry of Construction and Transportation’s guidelines stipulating that the consent of more than a majority of each place of business shall be obtained in determining the method of use of value-added tax are merely an administrative guidelines and thus, the Defendant’s act of violating this guidelines cannot be deemed a violation of legal provisions. In the absence of the right to claim the amount of value-added tax reduced, the conclusion of a collective agreement with an industrial cooperative that belongs to

③ Since the taxi company has no obligation to pay the amount of value-added tax reductions to its employees in cash, the taxi company did not cause property damage to its employees in breach of trust in the course of occupational breach of trust.

(2) The assertion of unreasonable sentencing

The sentence of the court below against the defendant (the fine of KRW 3,00,000) is too unreasonable.

B. Prosecutor’s assertion of unreasonable sentencing

The sentence of the court below against the defendant is too uncomfortable and unfair.

2. Determination

A. Ex officio determination

Before the judgment on the grounds for appeal by the Defendant and the Prosecutor, the Prosecutor applied for amendments to the Bill of Indictment with the content of the facts charged as stated below in the judgment below, and the subject of the judgment by this Court was changed by permitting it. Thus, the judgment of the court below cannot be maintained any more.

However, the defendant's assertion of misapprehension of legal principles is still subject to the judgment of this court, and this is examined.

B. Judgment on the Defendant’s misapprehension of legal principle

The crime of occupational breach of trust is established when a person who administers another's business obtains pecuniary benefits or causes a third party to obtain such benefits from an act in violation of one's duty and thereby inflicts loss on the principal. Here, "the person who administers another's business" refers not only to a case where the person acts as an agent for another's business or cooperates in the act of preserving another's property on the basis of a bilateral trust relationship (see, e.g., Supreme Court Decision 2008Do373, Mar. 13, 2008). "an act in violation of one's duty" refers to an act in violation of one's duty under the provisions of Acts and subordinate statutes, the content of a contract, or the principle of good faith, or an act in violation of one's duty, which is expected not to perform as a matter of course to perform the duty, but also to a case where the person who performs the duty does not perform such duty, including a case where the person inflicts practical damage on another's property, but also to a case where the person has suffered pecuniary damage.

According to the records, from May 10, 1995, the defendant, the head of the labor union branch of the non-indicted 1 corporation located in Busan from around January 10, 2004 to the head of the headquarters of the Korea Labor-General Military Workers' Union and the head of the Busan District Headquarters of Busan District Headquarters for negotiations and coordinations on workers' wage, welfare, etc. In principle, according to the Special Act on Taxation Restriction in 2005 and the guidelines for the use of the value-added tax reduction under the Ministry of Construction and Transportation, the employer shall pay all the amount of value-added tax to workers in cash. However, if the majority of the workers of the place of business request that they be employed by any other method than cash, the defendant can be used only for improvement of treatment and welfare of workers. Nevertheless, the defendant, without the consent of the majority of workers of the Busan District taxi company, made only a part of the value-added tax reduction tax amount to the non-indicted 1 corporation to the 6th quarter of December 31, 2005, the remaining amount of value-added tax should be paid to the worker.

Comprehensively taking account of the above legal principles and facts acknowledged, the Defendant, as the chief of the headquarters of a trade union, is in the position to negotiate the issue of wages and welfare with the employees on behalf of the employees, and the effect of the Defendant’s negotiations with the company extends to the employees, and the Defendant cannot be deemed as constituting the Defendant’s business, and the Defendant is in the position to deal with another’s business. In addition, in light of the content and nature of the Defendant’s business dealt with in his/her position, and the Defendant’s guidelines for the payment of value-added tax reductions, etc., the Defendant did not pay the entire value-added tax reductions in cash and should naturally obtain prior consent of the majority of the employees of the workplace before the signing of the agreement, but the Defendant did not have committed an act in breach of trust with the employees delegated with his/her business, and thus, the Defendant did not have the right to claim the payment of the value-added tax reductions in the company even if there was no right to claim the payment of the value-added tax on the employees (determination in related civil procedure).

Therefore, the defendant's assertion of legal principles is without merit.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act, and the judgment of the court below is reversed, and it is again decided as follows.

The summary of the facts charged by this court and the evidence thereof are as follows: "for workers of non-indicted 1 corporation, including non-indicted 7, they engaged in the business of protecting and representing the property rights of the above workers by negotiating and coordinating the issues of wages, welfare, treatment, etc. of the company and workers on behalf of the workers of non-indicted 1 corporation, including non-indicted 7," among the facts constituting the crime of the judgment of the court below. "To represent the interests of the employees of the Busan metropolitan taxi business association composed of the representatives of the Busan metropolitan taxi business company, which is the employer, and to act on behalf of the employees in protecting and representing the workers' property rights by representing the interests of the employees of the taxi drivers of non-indicted 1 corporation, while taking charge of labor and management negotiations with the Busan metropolitan taxi business association composed of the representatives of the taxi business operators of the Busan metropolitan metropolitan area, which is the employer," and the second eight parts of the judgment of the court below are as stated in

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 356 and 355(2) of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The Defendant, prior to the instant crime, has no other criminal records, except for the past and one time prior to the minor punishment of a fine (However, the record of punishment of a fine for breach of trust after this case is deemed to have no economic benefits acquired separately by the Defendant due to the instant agreement, and the Defendant, who is in violation of this agreement, represents the interests of workers and is in the position to promote the expansion of their rights and interests, thereby causing property damage exceeding KRW 30 million to employees, thereby obtaining profits equivalent to the same amount of money, and thereby denying the instant crime until the first instance trial. The Defendant was in violation of this agreement, and thus, did not have good faith. The Defendant denied the instant crime until the first instance trial, which is unfavorable circumstances, such as the details and details of the instant crime, circumstances of the instant crime, after the crime, the Defendant’s age, personality and conduct, family relation, occupation, criminal records, etc., shall be determined in full view of all the circumstances such as the order and punishment like the order.

It is so decided as per Disposition for the above reasons.

Judges Yoon Jin-won (Presiding Judge) (Presiding Judge)