[1] The case holding that where the representative director of a credit cooperative delivers a deposit passbook to the name of a nominal holder after business process as if the deposit was made by fraudulent means, the occurrence of actual damage to property may be caused

[2] The case holding that in the case of paragraph (1), even if a separate deposit passbook and seal with a deposit amount exceeding the false deposit amount were deposited and withdrawn the deposit amount and made it possible to deposit it into a false deposit passbook, there is a risk of actual damage to a credit safe

[1] The case holding that if the defendant did not actually deposit the transferor's name in his representative director's credit safe and delivered the deposit passbook to the nominal owner after preparing a deposit slip and a trading ledger as if the deposit was already deposited, and completing computerized inputs, the defendant's false deposit account is likely to cause property damage to the credit safe, even if the deposit contract under the civil law between the snow and the above nominal owner is not lawfully concluded, and it does not cause any obligation to return the deposit to the credit safe, because it is in a state of being able to be withdrawn at any time from the credit safe.

[2] The case holding that even if the defendants were to keep the deposit passbook and seal in the name of a corporation whose amount exceeds the false deposit amount under [1] in accordance with the stock transfer contract, and the deposit money can be withdrawn and deposited in a false deposit passbook, the defendants' arbitrary withdrawal of the corporation's deposit money is not a criminal act, and each of the above deposits cannot be viewed as a security for damage caused by the withdrawal of the false deposit money in any case different from the name of the deposit owner, and thus, there is a risk of actual damage to the credit safe.

[1] Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 355 (2) of the former Criminal Code (amended by Act No. 5057 of Dec. 29, 1995) / [2] Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 355 (2) of the former Criminal Code (amended by Act No. 5057 of Dec. 29, 1995)

Defendant 1 and one other

Defendants

East Western Law Firm et al.

Seoul High Court Decision 96No305 delivered on June 13, 1996

All appeals are dismissed. As regards Defendant 2, 70 days out of the number of detention days after the appeal shall be included in the original sentence.

The defendants' defense counsel and the defendant 2 and their state appointed defense counsel each ground of appeal (including the supplement of the grounds of appeal in case of supplemental appellate briefs not timely filed by the defense counsel of the defendant 2) are examined together.

1. Examining the adopted evidence of the first instance judgment maintained by the court below in light of the records, each criminal fact in the judgment against the defendants can be sufficiently recognized, and there is no violation of the rules of evidence as pointed out in the grounds of appeal in the process of evidence preparation and fact-finding, and in light of the degree of the conspiracy and participation of the defendants, the measures of the court below that punished the defendants as co-principal is just, and there is no violation of the rules of evidence in the misapprehension of the legal principles as to co-offenders

2. As duly determined by the court below, if Defendant 1 did not actually deposit money in the name of Trade Union and Finance Company 1 (hereinafter “Non-Indicted Company 1”) with the representative director, and the deposit passbook is delivered to the nominal owner after completing the deposit slip and the transaction ledger as if the deposit money was already deposited, as well as after completing the computerized input, the deposit deposit contract between the Non-Indicted 1 and the above nominal holders is not lawfully concluded, and thus, even if the deposit deposit contract between the Non-Indicted 1 and the above nominal holders is not legally established, it shall be deemed that the false deposit is in a state that can be withdrawn at any time from the Non-Indicted 1, thereby causing the risk of property damage to the Non-Indicted 1.

In addition, even if the Defendants received and kept the deposit passbook and the seal from the transferor under the name of Nonindicted Co. 2 (international mother) in which the amount exceeding the above false deposit amount was deposited due to a stock transfer agreement, and the Defendants withdrawn the deposit and made it possible to deposit it into the above deposit passbook, the Defendants’ arbitrary withdrawal of the corporate deposit money is not only a criminal act, but also it cannot be said that each of the above deposits is a security for damage caused by the withdrawal of the above false deposit money under the name of the deposit owner. Thus, it cannot be said that there is no risk of damage to Nonindicted Co. 1.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to occupational breach of trust.

3. Although the victims sold the total shares of Nonindicted Co. 2 up to 10.8 billion won and demanded the payment of the purchase price with separate funds not for the deposit of Nonindicted Co. 2, the Defendants, despite the fact that the actual deposit passbook was delivered to the victims and then withdrawn the deposit money of Nonindicted Co. 2 and paid the purchase price by depositing it in the deposit passbook, the Defendants are clearly aware that they acquired property or pecuniary gains by deceiving the victims, without taking the minimum form that the purchase price should be paid out separately from the deposit money.

The decision of the court below that the defendants guilty of the acts is proper, and there is no error of law by misunderstanding the legal principles as to deception or disposal in fraud.

4. Defendant 2’s arbitrary withdrawal of the deposit of Nonindicted Co. 2 as the representative director of Nonindicted Co. 2 and use it as the acquisition price of his own stocks constitutes occupational embezzlement in itself, and even if the said Defendant separately purchased real estate and registered in the name of Nonindicted Co. 2, the liability for such crime cannot be exempted. Defendant 1 who participated in the said Defendant’s act shall also be liable for the same crime. Thus, the grounds for appeal disputing this issue cannot be accepted.

5. In this case where a sentence of less than 10 years to Defendant 2 is imposed, no appeal may be filed on the grounds that the sentencing of a sentence is unreasonable. All of the arguments are groundless.

6. Therefore, all appeals are dismissed, and as to Defendant 2, part of the number of detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Yong-sik (Presiding Justice)