(b) Violation of the Act on the Aggravated Punishment of Specific Economic Crimes;

(c) Property in breach of trust;

2.(c) B

Law Firm Barun (Defendant B)

Attorney Lee Jae-hee, Counsel for the plaintiff-appellant

Law Firm Sejong (for Defendant B)

Attorney Cho Young-chul, Justice Kim So-young

A. Defendants

1) misunderstanding of facts and misapprehension of legal principles

A) As to the receipt of property in breach of trust (defendants)

(1) Defendant A is the copyright holder of the instant historical book, and G Co., Ltd. (hereinafter referred to as “G”) is the publishing company of the instant historical book. The money Defendant A received from Defendant A from Defendant B is paid from Defendant A, the copyright holder, the publishing company, as a human resource, and it is not received as a consideration.

(2) Defendant A was an adviser of Company E (hereinafter referred to as “E”), but was not an employee of the JJ, and there was no fact that Defendant A did not take charge of or exercise the power to decide on the selection of a printing company in the J. Thus, Defendant A does not constitute “a person who administers another’s business”, called “J’s selection of a printing company.”

B) As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), this part of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) is premised on the fact that the money offered by the defendant to A was established in return for an illegal solicitation, and this part of the crime is not established unless the defendant constitutes a crime of giving property in breach of trust since the money offered to A is the tax amount.

2) Unreasonable sentencing

Punishment of the lower judgment against the Defendants (Defendant A: Imprisonment with prison labor for one year and six months, two years of suspended execution, and additional collection;

3,256,520,000 won, Defendant B's suspended sentence of one year and six months of imprisonment is too unreasonable.(b) The prosecutor (unjustifiable) is too unreasonable.

The sentence of the court below against the defendants is too uneasible and unfair.

2. Determination

A. As to the assertion of mistake of facts and misapprehension of legal principles

1) As to the assertion on the receipt of a bribe in breach of trust (defendants)

A) As to whether Defendant A constitutes “a person who administers another’s business”

(1) Relevant legal principles

The crime of taking property in breach of trust under Article 357 (1) of the Criminal Act is established when a person who administers another person's business obtains property or pecuniary benefits in exchange for an illegal solicitation in connection with his/her duties. The person who administers another person's business as the principal agent of taking property in breach of trust refers to a person who is deemed to have a trust relationship to handle the business in light of the principle of trust and good faith in an internal relationship with the other person, and it does not necessarily require that a third person has a right to the business in an external relationship with the third person, and it does not require that the business is a comprehensive entrusted business, and the ground for taking property in breach of trust, that is, the ground for taking property in breach of trust, can also arise through statutory provisions, legal acts, customs, or administrative management (see, e.g., Supreme Court Decisions 9Do5195, Mar. 14, 200; 200Do6834, Feb. 26, 2003).

On the other hand, in relation to the crime of taking property in breach of trust under Article 357 of the Criminal Act, the term "duty" means a business entrusted by a person who administers another's business, but includes not only the original business due to the consignment relationship but also the business within the scope closely related thereto (see, e.g., Supreme Court Decision 80Do2130, Feb. 9, 1982). In order to become a "person who administers another's business," a person who administers another's business, as the subject of the crime of taking property in breach of trust, a certain degree of judgment, freedom and independence of activities, and responsibility must be determined, and thus, a person who performs mechanical business according to his/her own instruction shall not be deemed as a person who performs such business, but also may be included in a person who directly or indirectly, as an auxiliary agency, not a person who administers such business with its own authority (see, e.g., Supreme Court Decision 2002Do3074, Sept. 27,

(2) Determination

The Defendants also asserted as the grounds for appeal on this part in the lower court, and the lower court determined that Defendant A was a person in charge of the business of selecting a printing company by J and constitutes a person in charge of another’s business, taking full account of the circumstances cited by the lower court and the evidence adopted and examined by the lower court and the lower court.

In full view of the following circumstances, the lower court’s determination is reasonable, and there is no error of law by misapprehending the legal doctrine regarding “a person who administers another’s business in the crime of misappropriation.” This part of the Defendants’ assertion is recognized. Defendant A was commissioned as an adviser of E and received advisory fees, etc. However, Defendant A directly writes the instant historical book after being commissioned to E, and participated in the instant historical compilation work, such as recommending those who will assist in the collection, organization, correction, etc. of the instant historical book, or taking part in the marking design. In full view of these circumstances, Defendant A appears to have been in charge of the instant historical compilation work, which is, the most of the instant historical book, as well as Defendant A’s historical experience in the process of publishing the instant book, and thus, Defendant A was in fact aware that Defendant A had been in charge of the instant historical book compilation work, which is the most difficult history of the instant publishing business. However, Defendant A had been in fact in the process of publishing the instant book and Defendant J’s historical history.

B) As to whether the money received between the Defendants is the consideration for an unlawful solicitation

(1) The following circumstances acknowledged by the court below and the court below adopted and examined evidence, namely, ① the form of creative expression, such as arranging data collected in the course of compilation of the historical book of this case, which is a one-year historical book, was actually made by Defendant A, and I merely contributed to the draft of the historical book or the draft prepared by Defendant A, and it seems that there was no ability to write the historical book of this case. ② Defendant A had been commissioned as the adviser of the instant historical book and received advisory fees from Defendant E in view of the fact that all the costs necessary for the historical book or publication of this case were borne by Defendant 6’s historical book or material that was used in the history of this case, including that of this case’s historical book or material that was used in the history of this case’s historical book or material that was used in the history of this case’s historical book or material that could not be seen as being limited to Defendant 2’s initial historical book or material that had been used in the history of this case’s work (see, e.g., Supreme Court Decision 2002Da31329, etc.).

(2) However, comprehensively taking account of the following circumstances acknowledged by the court below and the evidence adopted and examined by the court below, it is sufficiently recognized that the amount received between the Defendants regardless of whether the contract between J and G is "publication contract" or "print contract" is a nominal seal, and the fact is not a seal, but it is sufficiently recognized that Defendant A received money in return for the illegal solicitation that Defendant A would be able to receive a continuous printing supply contract from Defendant B in relation to the historical book that Defendant A written by J.

(A) In order to compile a historical book in one’s own name, Defendant A entered the Republic of Korea as an adviser, and Defendant A was mainly appointed as an adviser, and Defendant A performed the instant historical book work. All of the costs of writing and publishing the instant historical book are indicated in most of the instant historical book as “Ler (or author) I and Week A.” In full view of these circumstances, without regard to who is the legal copyright holder of the instant historical book, 1 is the copyright of the instant historical book, which is written by the principal and bears all relevant costs, and as a matter of course, Defendant A appears to have no objection to the instant historical book. Ultimately, Defendant A and I appears to have agreed to assign the copyright of the instant historical book to the I, and Defendant A and I appears to have not been subject to the duty of publication in light of the fact that there was no agreement between Defendant B and the second of the instant copyright contract, and Defendant B would have been in the process of publishing the instant copyrighted book to the outside, and thus, Defendant B and the second of the instant copyrighted work of publication (hereinafter referred to as “Defendant B’s publication”).

In view of the fact that the E-I and J affairs were recognized as the printing company, it seems that the E-I and the E-I were recognized as the printing company. Defendant A also stated in the investigative agency and the original court that “I recommended G as the printing company.” In most of the instant historical records: J is written, and certain historical records are recorded as “G”. In full view of these circumstances, it appears that the J and G are the publishing company of the instant historical records, regardless of whether the contract entered into between J and G is a “publication contract” or “printed contract,” and that G is not recognized as the printing company 1). In view of the fact that the printing company did not have the duty to pay royalties to the copyright holder in the instant historical records, it appears that there is no reason to view that there was no higher rate of return between Defendant B and the investigating agency (which is the most print cost paid to G in the instant historical records) and that there was no higher rate of return between Defendant B and the printing company.

The Defendants appears to have not prepared a separate contract related to personal taxes while receiving large amounts of money. The Defendants appears to have stated that “the publication contract for personal taxes related to books submitted by the Defendants to an investigation agency” was “no fact that the Defendants entered into a personal tax contract” at the initial investigation stage, ② the date of the actual preparation of each contract is confirmed as February 22, 2016 through February 23, 2016, ③ the head of the G Management Support Department T received a request for a revised income tax return from Defendant A’s certified tax accountant on February 25, 2016, and stated that “the said contract was received from Defendant B and used in Defendant A’s revised income tax return on February 25, 2016.” In light of the purport that “the history of the instant case” constitutes a creation work for Defendant A, and that it constitutes a provision for a revised income tax return on February 25, 2016, which constitutes a violation of the empirical rule that was paid to the clients for the instant work.

Comprehensively taking account of these circumstances, the money received between the Defendants cannot be deemed as a seal to the instant historical book regardless of the pretext thereof.

(B) As seen earlier, 1 appears to have been entirely new Defendant A with respect to the publication of the instant historical book. Based on such fiduciary relationship, Defendant A could exercise considerable influence on the selection of the printing company of the instant historical book. Defendant B stated to the effect that “Defendant A requested the investigative agency to publish the books relating to the Korean War 6/25 that Defendant A would have been written with I’s aid.” Accordingly, Defendant A would have been able to have been able to receive an excessive amount of money from 00,000,000,000,0000,0000,0000,0000,0000,0000,0000,0000,0000,0000,0000,000,0000,000,000,0000,000,000,000,000,000,000,00,000,00.

In full view of these circumstances, it is sufficiently recognized that the money received by the Defendants is included in the name of the consideration for illegal solicitation that Defendant A selected and maintained as a printing company with the recommendation of Defendant A, in addition to the name of the audit as to what G was selected as a printing company, and in the future, with the support of Defendant A, as well as for the historical book published through J as to the historical book published through J.

2) As to the assertion on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Defendantq b)

In the lower court, the Defendant also asserted the same as the grounds for appeal on this part, and the lower court determined that the Defendant’s act constituted embezzlement insofar as it is recognized that the Defendant provided G funds to A with an illegal solicitation.

Examining the reasoning of the judgment of the court below in light of the relevant legal principles and records, the judgment of the court below is reasonable, and there is no error of law by misapprehending the legal principles on embezzlement. This part of the defendant's assertion

B. As to the assertion on unfair sentencing, the crime of giving and receiving property in breach of trust, such as the instant case, is highly harmful to society by an act detrimental to the fairness and integrity of transaction. In light of the fact that the Defendants received large amounts of money from the Defendants over a long-term period of time to the 3,256,520,000 won, the liability for the crime is not easy. The Defendants denied the crime from the investigative agency to the trial, and do not repent their errors. This is disadvantageous to the Defendants.

The money received by the Defendants appears to include considerable part of the name as a pure garment indication for the selection of G as a printing company upon Defendant A’s recommendation. It does not seem to have caused damage to the Defendants, such as that G received a large amount of printing costs compared to other companies in connection with the Defendants’ crime of giving property in breach of trust. Moreover, Defendant A also sought a preference against the Defendants. Defendant A does not have any other criminal power as well as having been sentenced to the suspended sentence in violation of the Military Service Act in 1972. G is a substantial one person owned by Defendant B and his family members. This is favorable to the Defendants.

In addition, considering the Defendants’ age, character and conduct, environment, family relation, criminal record, circumstances after the crime, and result of the crime, etc., the lower court’s punishment cannot be deemed unfair to the extent that it goes beyond the reasonable scope of discretion because it is too excessive or excessive. The Defendants and the prosecutor’s assertion of unfair sentencing is without merit.

3. Conclusion

The appeal by the Defendants and the prosecutor is dismissed in accordance with Article 364(4) of the Criminal Procedure Act, since all of the appeals by the Defendants and the

Judges Cho Jin-jin

Judge associates

(c)