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The judgment below
The non-guilty part is reversed, and that part of the case is remanded to the Daejeon District Court Panel Division.
Reasons
The grounds of appeal are examined.
1. The Defendant, the representative director of the Co., Ltd. (hereinafter “victim”) of the charge of attempted occupational breach of trust, issued to F a promissory note with a face value of KRW 150 million in the name of the victimized Co., Ltd. (hereinafter “instant promissory note”) for the purpose of repaying his personal debt to his own F, and prepared and executed a notarial deed for this purpose.
F Based on this, the F issued a seizure and collection order with respect to the claim of the victimized company, but the victimized company filed a lawsuit of objection against F to refuse compulsory execution based on the Notarial Deed of the Promissory Notes in this case against F, and the said judgment became final and conclusive upon winning the lawsuit.
As a result, the Defendant violated his duties, thereby obtaining financial benefits equivalent to KRW 150,000,000 from F, and did not bring a loss to the injured company equivalent to the same amount, but did not commit an attempted crime.
2. The lower court determined that the act of preparing the Notarial Deed was invalid in relation to the victimized company, and there was no reason to deem the victimized company to bear a separate obligation, such as employer liability. Thus, solely on the fact that F was in receipt of a seizure and collection order, it is difficult to deem that the risk of property damage to the victimized company has reached a concrete realistic level. Accordingly, the lower court reversed the first instance judgment convicting the victimized company of the charges of attempted occupational breach of trust, and acquitted the Defendant.
3. According to the Supreme Court en banc Decision 2014Do1104 Decided July 20, 2017, which is invoked by the lower court, the issuance of a promissory note in violation of its duties, such as abuse of the representative authority, etc. by the representative director of a stock company, is effective as an act of the company, and when the other party to the issuance of a promissory note knew or could have known the representative director’s intention,