(영문) 대법원 2020.4.9. 선고 2019도17016 판결

The non-guilty part of the judgment below shall be reversed, and that part of the case shall be remanded to the Daejeon District Court Panel Division.

Reasons

The grounds of appeal are examined.

1. Summary of the charge of attempted occupational breach of trust

The defendant, the representative director of the Co., Ltd. (hereinafter referred to as the "Co., Ltd.") issued a promissory note with a face value of KRW 150 million in the name of the victimized Co., Ltd. (hereinafter referred to as the "Co., Ltd.") to pay his personal debt to F, and prepared and issued a notarial deed as to the claim of the victimized Co., Ltd. (hereinafter referred to as the "Co., Ltd."). Based on this, F issued a seizure and collection order on the claim of the victimized Co., Ltd., but the judgment became final and conclusive upon receiving a favorable judgment by filing a suit of objection against F to seek non-performance of compulsory execution based on the notarial deed of this case against F. The defendant in violation of his duties did not intend to obtain property interest of KRW 150,000,000 to F. 2. The court below reversed the judgment of the court below finding that the victimized Co., Ltd. was not guilty solely on the ground that the act of the victimized Co., Ltd., in the lawsuit against F’s claim against F was not guilty due to the extent of property risk.

3. According to the Supreme Court en banc Decision 2014Do104 Decided July 20, 2017, which is invoked by the court below, the issuance of a promissory note in the name of the company in violation of its duties, such as abuse of the representative director’s power of representation, etc., is effective as the act of the company, and the other party to the issuance of a promissory note knew or could have known the representative director’s intention. As such, if the issuance of a promissory note is null and void, and if the promissory note is not distributed, it cannot be deemed that the company actually suffered damage to the company or has caused the risk of actual damage, barring any special circumstance, since the issuance of the promissory note is not a party to the issuance of the promissory note, it shall be punished as an attempted breach of trust,

Nevertheless, the lower court rendered a not guilty verdict on the charges of attempted occupational breach of trust solely on the grounds that it is difficult to deem that the risk of property loss has reached a concrete and realistic level. In so doing, the lower court erred by misapprehending the legal doctrine on the establishment of attempted occupational breach of trust, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit

4. Meanwhile, the first instance court convicted the Defendant of the entire facts charged, sentenced two years of suspended sentence of one year, 40 hours of order to attend a community service order, and 120 hours of community service order, and only the Defendant appealed. The lower court sentenced not guilty of the charge of attempted occupational breach of trust, and sentenced 1 year suspended sentence of one year, 2 hours of education, and 40 hours of education, and only the prosecutor appealed on the part of innocence. The lower court’s judgment that found the Defendant guilty of the part of concurrent crimes, which found the Defendant guilty and the prosecutor guilty of the part of the charge of attempted occupational breach of trust, did not err. In so doing, the lower court’s judgment that found the Defendant guilty of the part of the charge of attempted occupational breach of trust was determined by the expiration of the period of appeal, and the part of the judgment of the lower court that did not appeal is not only the part of the verdict pending in the final appellate court, but also reversed the part of the judgment of the lower court that did not err by misapprehending the legal principles as seen above, and thus, should not be remanded to the lower court’s judgment.