2015Do11840 A. Fraud

(b) the fabrication of private documents;

(c) Exercising a falsified investigation document;

(d) Occupational breach of trust;

1.(a)(c) A;

2.(a)(c) B

Defendants and Prosecutor (Defendants)

Law Firm C (For the defendant)

Attorney D

Busan District Court Decision 2014No4435 decided July 9, 2015, 2015 Seocho230

Application for remedy order

November 26, 2015

The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

1. As to the Defendants’ grounds of appeal

A. As to Defendant A’s occupational breach of trust

(1) The crime of breach of trust is established when a person administering another’s business obtains pecuniary advantage or causes a third party to obtain such benefit by acting in violation of one’s duty, thereby causing loss to the principal. The term “act in violation of one’s duty” refers to specific circumstances, such as the content and nature of

In light of the foregoing, a fiduciary relationship between the principal is set up by failing to perform an act that ought to be naturally expected or performing an act that ought not to be naturally in accordance with the provisions of law, the terms of a contract, or the good faith principle. In addition, a “property damage” includes not only cases where a real loss is inflicted, but also cases where a risk of causing property damage arises (see, e.g., Supreme Court Decisions 83Do1568, Apr. 28, 1987; 91Do2963, May 26, 1992).

Meanwhile, criminal facts have to be proved to the extent that there is no reasonable doubt (Article 307(2) of the Criminal Procedure Act). However, the selection of evidence and probative value of evidence conducted on the premise of fact finding belong to the free judgment of the fact-finding court (Article 308 of the Criminal Procedure Act).

(2) Based on its stated reasoning, the lower court found Defendant A as a joint representative director of KK and entrusted with the business of the victim I corporation (hereinafter “victim company”), and found Defendant A guilty of the modified charges in the lower court on the summary that Defendant A violated his duties and thereby exempted Defendant A (hereinafter “H”) from its liabilities equivalent to the same amount of money, and caused the risk of actual property damage with respect to the secondary contractual obligation of KRW 66 million as indicated in the lower judgment that the damaged company entered into with the Korea Credit Rating Corporation. In full view of these circumstances, the lower court found Defendant A guilty of the modified charges.

(3) The allegation in the grounds of appeal pertains to the purport of disputing such fact-finding by the lower court, and is merely an error of the lower court’s determination as to the selection and probative value of evidence belonging to the free judgment of the fact-finding court. In addition, even when examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules,

B. As to the remainder

(1) (A) The first instance court, on the grounds as indicated in its reasoning, did not accept the Defendants’ assertion asserting that the Defendants conspired to forge a tax invoice under the name of U.S. Co., Ltd. (hereinafter referred to as “U”) and exercised it. The lower court determined that such a first instance judgment is justifiable, and determined that: (a) the Defendant A claimed the initial project cost under the name of AA and AB and acquired it by fraud; and (c) rejected the allegation in the grounds for appeal for mistake of facts.

(B) In addition, the court below reversed the judgment of the court of first instance which acquitted the Defendants of this part of the facts charged, and found them guilty, on the grounds as stated in its reasoning, on the grounds that the Defendants claimed KRW 330,000,000, excluding value-added tax, from among the service costs for U and Q (hereinafter “ Q”) as the initial project cost.

(2) The allegation in the grounds of appeal is the purport of disputing such fact-finding by the lower court, and is merely an error of the lower court’s determination as to the selection of evidence and probative value, which belong to the free judgment of the fact-finding court. In addition, even if examining the reasoning of the lower judgment in light of the aforementioned legal principles and the evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules

A. The prosecutor bears the burden of proving the facts charged in a criminal trial with regard to the fraud related to early death in the name of S, and the conviction is based on the evidence of probative value, which makes the judge feel true to the extent that there is no reasonable doubt. Thus, if there is no such evidence, even if there is doubt as to the defendant's guilt, it is inevitable to determine it as the defendant's benefit (see, e.g., Supreme Court Decisions 2001Do2823, Aug. 21, 2001; 2008Do4467, Jul. 24, 2008).

For the reasons indicated in its holding, the lower court reversed the first instance judgment convicting Defendant A of this part of the facts charged, on the grounds that it is difficult to view that this part of the facts charged was proven without any reasonable deliberation interest, and found the Defendant not guilty.

The allegation in the grounds of appeal is merely an error in the judgment of the lower court on the selection and probative value of evidence, which actually belongs to the free judgment of the fact-finding court. Furthermore, even if examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on the deception of fraud, fraud, criminal intent

B. As to the fraud related to the initial project cost of value-added tax out of the service cost

(1) The probative value of evidence is left to a judge’s free judgment, but such judgment ought to be consistent with logical and empirical rules. Although the degree of formation of a conviction to be found guilty in a criminal trial ought to be such that there is no reasonable doubt, it does not require that the degree of exclusion from all possible doubts is not required, and it is not permissible to punish evidence causing suspicion without reasonable grounds exceeding the bounds of the principle of free evaluation of evidence (see, e.g., Supreme Court Decision 2004Do221, Jun. 25, 2004).

(2) As to the facts charged in this Section, the lower court found the Defendants guilty as to the service cost of KRW 330,000,000 other than the value-added tax, as seen earlier, on the part of the value-added tax, and determined that the Defendants did not claim the amount of the initial project cost, and that there was no evidence to prove that the Defendants did not receive the amount of the value-added tax.

(3) However, examining the reasoning of the lower judgment in light of the evidence and the record duly admitted, the following circumstances are revealed.

(A) The tax invoice on U and Q-related service costs that H appears to have been attached to the victimized company upon claiming the initial project cost includes value-added tax. Therefore, it is reasonable to recognize that H claimed the total amount of service costs, including value-added tax, to the victimized company, barring any particular circumstance.

(B) At the time of the resolution to incur the initial project cost of H, the court of first instance testified to the effect that “Y was the representative director of the victimized company, which was the initial project cost paid to H under the name of U and Q-related service cost, shall be KRW 363 million including value-added tax.”

In addition, the minutes of the board of directors on September 29, 2010 of the victimized company that decided to pay H the initial project cost include the above service cost, stating that “1,234,507,00 won of the initial project cost to be paid to H” is natural in light of the transactional concept.

(C) In addition, there is no particular circumstance suggesting that the injured company would not pay only the amount equivalent to the value-added tax in exceptional cases where the injured company recognizes the above service cost as the reasonable initial contribution cost and pays it to H.

(4) Examining the above circumstances in light of the legal principles as seen earlier, barring any other circumstances, deeming that H had proved to the extent that there is no reasonable doubt as to the facts charged that H had been obtained by the victimized company as to the part of the initial project cost determined by the victimized company [the value-added tax is included in the service cost and Q-related service cost, and the said value-added tax was obtained by the victimized

Nevertheless, the lower court found the Defendant not guilty of this part of the charges for reasons contrary to its stated reasoning. In so doing, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules. The allegation contained in the grounds of appeal on this point is with merit.

C. On the other hand, the Prosecutor appealed to the guilty portion of the judgment of the court below, but the appellate brief did not state the grounds for appeal and did not state the grounds for appeal.

3. Scope of reversal

Of the judgment of the court below, the fraudulent part related to the initial project cost of value-added tax should be reversed. Since this is related to the fraud part related to the initial project cost of the remainder of the service cost, the part related to the fraud related to the initial project cost of the nominal service cost

In addition, the lower court rendered a single sentence on the grounds that the relevant fraud and the remainder guilty part of the remaining initial project cost are concurrent crimes under the former part of Article 37 of the Criminal Act. Since the lower court found the guilty part on the fraud related to the fraud in the initial project cost related to the S wage nominal business, and recognized that the guilty part on the fraud related to the fraud in the initial project cost related to the S wage nominal business, the lower

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim In-bok

Justices Kim In-bok, Counsel for the defendant

Justices Park Young-young

Justices Kim Jong-il