[2] The case reversing the court below's decision that recognized the defendant's act of receiving the defendant's act of receiving the defendant's act of receiving the defendant's act of receiving the defendant's act of receiving the defendant's act of receiving the defendant's act of receiving it directly from the graduate students or through their guidance professors in light of social norms, on the ground of insufficient deliberation, etc., in case where the defendant, who is a professor of another university, prepares the plaintiff for the experiment and the thesis

[3] The meaning and scope of aiding and abetting act under the Criminal Code

1. Regarding ground of appeal No. 1

The lower court determined that the Defendant was a principal offender of the crime of taking property in breach of trust on the ground that the Defendant, after remanding, prepared an experiment agent and a thesis necessary for preparing a degree thesis of graduate school students as indicated in the attached Table 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 48, 49, and received compensation therefor, thereby facilitating the Defendant to commit the crime of taking property in breach of trust.

However, we cannot agree with the above judgment of the court below.

The crime of taking property or 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 property benefits in exchange for an illegal solicitation in connection with his/her duties. Even if a person who administers another person's business receives an illegal solicitation in connection with his/her duties, if he/she and other persons obtain property or property benefits, the crime is not established. However, the crime can be established only where there is a relation that can be evaluated as being directly received by a person who receives an illegal solicitation in accordance with social norms as being directly receiving property or property benefits (see Supreme Court Decision 2004Do2581, Dec. 22, 2006). Class Offense refers to aiding and abetting a principal offender before or during the principal's act of practice, and thus, it is necessary that the principal offender has committed the crime (see, e.g., Supreme Court Decisions 78Do3113, Feb. 27, 197; 200Do857, Nov. 29, 2007).

However, according to the evidence duly adopted and examined by the court below, the relation between the defendant and the above leader's receipt of money in accordance with the above legal principles should be evaluated as being directly received by Non-Indicted 3 (if the above leader's receipt of money was a principal offender for the crime of breach of trust, the relation between Non-Indicted 3's receipt of money in accordance with the above legal principles and the above leader's receipt of money is able to be assessed as being directly received by the above leader's above leader's execution of the crime of breach of trust (However, according to Non-Indicted 3's legal statement (the trial record No. 1051 pages) and non-Indicted 7,00,00 won for non-Indicted 3's delivery of non-indicted 3 as experiment expenses, and the defendant's remaining statement is 300,500 won for non-indicted 3,00 won for non-indicted 1,000 won for non-indicted 3's instruction.

However, even after examining all the evidence submitted by the prosecutor, there is no evidence to find that the above guidance professor and the defendant have such close relationship.

Nevertheless, without sufficiently examining the above points, the court below acknowledged that the above guidance professor performed a principal offender in breach of trust. Thus, the court below erred by failing to exhaust all necessary deliberations or by misapprehending the legal principles on the establishment of a crime of taking property in breach of trust, which affected the conclusion of the judgment.

The ground of appeal pointing this out is with merit.

2. As to ground of appeal No. 2 as to the part other than the acts described in paragraph (1)

An act of aiding and abetting under the Criminal Act refers to all direct and indirect acts that facilitate the commission of a principal offender while knowing the fact that the principal offender is committing a crime. It also constitutes an act of aiding and abetting and aiding and abetting and aiding and abetting and aiding and abetting the principal offender as well as tangible and material aiding and abetting and strengthening the resolution of the crime (see Supreme Court Decisions 2007Do1303, Apr. 27, 2007). It is not only a case where the principal offender aids and abetting and abetting the principal offender during the commission of the principal offender, but also a case where aiding and abetting and abetting and aiding and abetting the future conduct before the commencement of the commission (see Supreme Court Decisions 95Do2551, Sept. 6, 1996; 2002Do995, Jun. 24, 2004; 2008Do996, Dec. 24, 2008). Thus, it cannot be seen as an act of aiding and abetting and abetting and abetting the principal offender after the commencement of the crime.

According to the reasoning of the judgment below, the court below found the defendant guilty of aiding and abetting in breach of trust, on the ground that it is reasonable to view that the defendant's act (excluding the act described in paragraph (1)) was an act expected and easy to conduct the future prior to the commencement of execution by guidance professors, or an act of aiding and abetting the resolution of the crime of aiding and abetting in breach of trust prior to the receipt of the thesis examination fees by guidance professors in the final thesis examination stage, and such act constitutes an act of aiding and abetting in the act of facilitating the implementation thereof prior to the receipt of the thesis examination fees by guidance professors. Although the reasoning of the judgment below is not somewhat insufficient, in light of the above legal principles and records, the above judgment of the court below is just,

This part of the grounds for appeal is not accepted.

3. As to the fourth ground for appeal

In sentencing, judges shall determine the sentence in consideration of the conditions of sentencing within the scope of the applicable sentences formed through the reduction, exemption, and aggravation of the sentence in the statutory penalty.

The lower court sentenced the Defendant to a fine of KRW 20,00,000, by applying Articles 357(1) and 32(1) of the Criminal Act to the Defendant’s respective acts of aiding and abetting and aiding and abetting in breach of trust, selected a fine among the statutory punishments for each offense, and mitigated by applying Article 32(2) of the Criminal Act, and based on the rate of each of the above crimes as concurrent crimes, and sentenced the Defendant to a fine of KRW

However, when statutory mitigation is made with respect to a fine, it shall be 1/2 of the maximum amount of the fine pursuant to Article 55(1)6 of the Criminal Act; when concurrent crimes are aggravated, the maximum amount of the fine stipulated for the most severe crime pursuant to Article 38(1)2 of the Criminal Act and Article 50 of the Criminal Act shall be aggravated by up to 1/2 of the total amount of the fine; however, the maximum amount of the fine stipulated for each crime shall not exceed the total amount of the fine specified for each of the crimes. The maximum amount of the fine for the crime of taking property in breach of trust shall be 10,000,000, and the maximum amount of the fine provided for the crime of taking property in breach of trust, which is the most severe crime, shall be mitigated by 1/2 of the maximum amount of the fine provided for the crime of taking property in breach of trust, which is 10,000,000,000 won after mitigation by one-half thereof, the lower court, despite its determination of the punishment, has erred in the judgment.

The ground of appeal pointing this out is with merit.

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench (it is so decided as per Disposition by the assent of all participating Justices on the bench that there is omission of judgment on the part of aiding and abetting in breach of trust, which is the ancillary charge as stated in the previous judgment of the court below Nos. 3, 4, 3, 3, 34, 48, 66, 67, 12, 12 through 16, 53 or 58)

Justices Jeon Soo-ahn (Presiding Justice)