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(영문) 부산고등법원 2018.11.21 2018노316
배임증재등
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for six months.

However, the above punishment shall be imposed for a period of one year from the date this judgment becomes final.

Reasons

1. The decision of the court below on the summary of the grounds for appeal (the imprisonment of six months, the suspension of execution of one year, and the community service 40 hours) is too unreasonable.

2. We examine ex officio prior to judgment on the grounds for ex officio appeal.

Where money and valuables have been given to a person who administers another person's business in connection with his/her duties through several times, they have been repeatedly made for a certain period under the single and continuous criminal intent, and the benefit and interest of such damage are the same, they may be deemed a single crime (see Supreme Court Decision 2012Do535, May 24, 2012). However, in cases where money and valuables have been given to a person who administers another person's business in an unlawful solicitation and each of them has been given, such solicitation cannot be deemed as identical to the benefit and interest of the damage, even if it was made with the same kind of solicitation and with the same and continuous criminal intent, it cannot be deemed as a single comprehensive crime.

The record reveals that the Defendant made an illegal solicitation and provided money and valuables respectively to F, a field dispatch worker who deals with the duties of Samsung Fire Insurance Co., Ltd., and G, a field dispatch worker who deals with the duties of the on-site fire insurance company, and H, a field dispatch worker who deals with the duties of the on-site marine insurance company, and H and Mests Fire Insurance Co., Ltd., a field dispatch worker who deals with the duties of the on-site dispatch agent, and thus, the Defendant cannot be deemed as the legal interest of damage, even if the solicitation was the same kind, and

The Defendant constitutes a crime of re-committing several violations of trust by each of the two parties (i.e., providing money and valuables to the same on-site dispatch personnel several times may be deemed a single comprehensive crime). However, the lower court erred by misapprehending the legal doctrine on the number of crimes committed by deeming the entire provision of money and valuables to the on-site dispatch personnel as a single comprehensive crime, and determining punishment against the Defendant. In so doing, the scope of punishment has changed due to such errors.

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