[1] Where an act of bearing an obligation under the name of a juristic person is legally null and void, whether it constitutes a crime of breach of trust against a juristic person (negative in principle), and where the representative director of a juristic person exercises his power of representation for personal interests and the other party knew or could have known such intention, the validity of the act (=

[2] The case affirming the judgment below which acquitted the defendant on the ground that, in case where the defendant, the representative director of the corporation, prepared a notarial deed for a loan for consumption of money in his company's name to his creditors and was prosecuted for violation of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust), the defendant's act was invalid as the abuse of power of representation because the other party knew or could have known it, and it cannot be deemed that the loss of company's property was caused

[1] In the crime of breach of trust, the term “when a loss was inflicted on property” includes not only a case where a real loss was inflicted but also a case where a risk of actual loss was caused. However, if the risk of such loss was not caused, the crime of breach of trust is not established. Accordingly, unless there are special circumstances, the act of the representative of a corporation does not constitute a crime of breach of trust, since the act of the representative of the corporation does not constitute a crime of breach of trust, and where the representative of the corporation, etc. has been aware or could have been aware of the intention of the representative director, etc. when he exercised his power of representation for the purpose of pursuing his own or a third party’s interest, not for the benefit of the corporation, the act

[2] In a case where the defendant, the representative director of Gap corporation, prepared a notarial deed for a loan for consumption and a promissory note in the name of Gap company to his creditors, thereby causing property damage to Gap company, and was prosecuted for violation of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 11304, Feb. 10, 2012) (Misappropriation), the case affirming the judgment below which acquitted the defendant on the grounds that the defendant's act constitutes an abuse of power of representation and the other party knew or could have sufficiently known that he prepared a notarial deed for the purpose of promoting his own or a third party's interest regardless of the company's interest, and thus, it is null and void, and thus, the other party's act was also aware or could not be deemed as having known that

[1] Articles 355(2) and 356 of the Criminal Act / [2] Articles 355(2) and 356 of the Criminal Act; Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 11304, Feb. 10, 2012); Article 325 of the Criminal Procedure Act

[1] Supreme Court Decision 93Da1391 Decided June 25, 1993 (Gong1993Ha, 2117), Supreme Court Decision 2010Do6490 Decided May 27, 2010 (Gong2010Ha, 2044), Supreme Court Decision 2011Do3180 Decided July 14, 201 (Gong2011Ha, 1686)

Defendant 1 and three others

Prosecutor

Attorney Lee Sung-jin et al.

Seoul High Court Decision 2011No2649, 3207 decided January 19, 2012

The appeal is dismissed.

The grounds of appeal are examined.

1. As to Defendant 1, 3, and 4’s loan on March 28, 2008 and each occupational breach of trust due to the loan on May 2, 2008

Examining the reasoning of the judgment of the court below in light of the records, it is just to maintain the judgment of the court of first instance that acquitted of this part of the facts charged, and there is no error of exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules or misapprehending the legal principles on

2. As to Defendant 3’s occupational breach of trust due to Defendant 3’s loan on August 18, 2009

In order to recognize a beneficiary who benefits from the commission of the crime of occupational breach of trust or a third party closely related thereto as a co-principal with the perpetrator of the crime of occupational breach of trust, it is insufficient to have acquired profits by passively taking advantage of the act of breach of trust with the awareness that the act of the perpetrator constitutes the act of breach of trust against the principal who is the victim. It is necessary to actively participate in the act of breach of trust by inducing the perpetrator to commit the act of breach of trust or participating in the whole process of the act of breach of trust (see, e.g., Supreme Court Decisions 2009Do5630, Sept. 10, 2009; 2010Do3909, Aug. 26, 2010).

As to this part of the facts charged, the court below affirmed the judgment of the court of first instance which acquitted Defendant 3 of this part of the facts charged on the ground that it is difficult to deem that Defendant 3 instigated or participated in the entire process of the act of breach of trust at the time of lending money to Defendant 1 and 4 on August 18, 2009. Such judgment of the court below is in accordance with the legal principles as seen earlier, and it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles as to the establishment of breach of trust

3. As to the defendants' violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) due to one billion won loan under the name of the non-indicted 1 corporation

A. According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance which acquitted the Defendants of this part of the facts charged on the ground that, in light of the overall circumstances as stated in its reasoning, it is difficult to view that the issue of golf membership membership in this case is invalid or the establishment of a pledge is not possible, and it is difficult to view that Defendant 1 and 4 inevitably lent the above golf membership without taking reasonable and reasonable measures without disregarding the procedures they should take in the process of implementing the above golf membership loan as collateral. It is difficult to readily conclude that at the time of the above loan, the Defendants did not know that there was no value of the above golf membership collateral security or that there was insufficient knowledge that the above golf membership

Examining the reasoning of the lower judgment in light of the record, 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 doctrine on the subject and effect of pledge rights.

B. The court shall dismiss an application for changes in indictment only to the extent that the identity of the facts charged is recognized, and where there exists an application for changes in indictment to the effect that the facts charged are added as the facts charged (Article 298(1) of the Criminal Procedure Act). The identity of the facts charged can be recognized as identical in the basic point of view with the social facts that form the basis of the facts. In determining the identity of the basic facts, the identity of the facts charged shall be based on the Defendant’s act and social factual relations with the function of the identity of the facts, and shall also take into account normative elements (see, e.g., Supreme Court Decisions 2004Do580, Aug. 20, 2004; 2010Do3092, Apr. 29, 2010).

According to the records, the prosecutor initially brought a public prosecution to the effect that "the defendants conspired with the non-indicted 2 to know that the golf membership of this case does not have value as collateral, and thus unduly loans KRW 1 billion to the non-indicted 1 corporation as collateral on December 16, 2010, the defendants and the non-indicted 2 acquired financial benefits equivalent to KRW 1 billion, and suffered losses equivalent to KRW 1 billion to the non-indicted 3 cooperatives, thereby causing occupational breach of trust." The court below found the defendant not guilty of this part of the facts charged, and it did not err in the misapprehension of the legal principles as to the above facts charged, as stated in the ground of appeal, since the court below did not know that the golf membership of this case does not have value as collateral, it did not violate the above duty, and it did not err in the misapprehension of legal principles as to the defendant's act of borrowing KRW 1 billion to the non-indicted 1 corporation as collateral, and it did not use the remaining part of the facts charged as collateral to the non-indicted 1 corporation's funds for 2.8 billion won.

4. As to Defendant 2’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) and occupational breach of trust

In the crime of breach of trust, “when any loss has been inflicted on property” includes not only cases where a real loss has been inflicted but also cases where the risk of actual loss has not been caused, but also cases where the risk of such loss has not been caused, the crime of breach of trust shall not be established. Accordingly, where a representative of a corporation has no legal effect, barring any special circumstance, the act of the representative of the corporation does not constitute a crime of breach of trust (see, e.g., Supreme Court Decisions 2010Do6490, Sept. 30, 2010; 200Do1391, Jun. 25, 1993; 201Do13814, May 27, 2010). The act of the representative of the corporation, etc., when the representative of the corporation, etc., has been aware or could have been aware of the intention of the representative director, etc. for the purpose of pursuing his own interest or a third party’s interest, is null and void against the company.

According to the reasoning of the judgment below, after compiling the adopted evidence, the court below acknowledged the facts as stated in its reasoning. Defendant 2’s act of preparing to his creditors a notarial deed for cash consumption and a promissory note in the name of Nonindicted Co. 4’s representative director, constitutes an abuse of his power of representation. The other party who prepared each of the above notarial deeds also knew or could have sufficiently known that Defendant 2 abused his authority for the purpose of promoting his own interest or a third party’s interest, regardless of the profit of Nonindicted Co. 4, and thus, Defendant 2’s act constitutes both null and void. Accordingly, it cannot be deemed that the occurrence of property damage to Nonindicted Co. 4 or the risk of property damage was caused, and there is no other evidence to acknowledge this, and thus, this part of the facts charged constitutes a case where there is no evidence of crime.

Examining the reasoning of the lower judgment in light of the record, the lower court’s aforementioned determination is in accordance with the legal doctrine as seen earlier. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine

5. As to Defendant 1’s violation of the Political Funds Act

After compiling the adopted evidence, the court below maintained the judgment of the first instance that acquitted Defendant 1 of this part of the facts charged on the ground that there is insufficient evidence to acknowledge that Defendant 1 had either publicly recruited in advance or had an essential functional control over a criminal act, with respect to the crime of contributing political funds in connection with the solicitation by Nonindicted 6, the head of the non-indicted 5 cooperative, the executive director of the above cooperative, and Nonindicted 7, etc. of the executive director in charge of the public official's business with funds related

Examining the reasoning of the lower judgment in light of the record, 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 doctrine on co-principal.

6. As to the remaining grounds of appeal

The prosecutor also appealed the guilty portion of the judgment of the court below, but did not submit the appellate brief on this part within the statutory period, and the appellate brief does not contain any indication in the grounds of appeal.

7. Conclusion

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

Justices Yang Chang-soo (Presiding Justice)