beta
(영문) 서울고등법원 2017.03.31 2016노3603

배임수재

Text

The judgment of the court below is reversed.

The accused shall disclose the summary of the judgment of innocence.

Reasons

1. Summary of grounds for appeal;

A. In fact, the Defendant was not in a position that could have an impact on the selection of the purchasing company by G Co., Ltd. (the name of the company is indicated only for the first time, and thereafter, the Defendant did not actually engage in any action that could have an impact on the selection of the purchasing company.

Since H did not have a competitive relationship with G, there was no need to become a cooperative company in G.

Therefore, the money that I delivered to the defendant is not related to the transaction relation with G, but related to the experience, expertise, and network of the defendant's individual, so there is no illegal solicitation in the process, and the money is not received in return.

Nevertheless, the judgment of the court below that recognized the defendant's total amount of KRW 25 million received from I as the consideration for illegal solicitation against H H's G is erroneous in the misapprehension of facts.

B. In light of the fact that the punishment of the lower court (two years of suspended execution in June, additional collection 25 million won) is too unreasonable in view of the fact that the Defendant 38 or more years of serving in the Army of the Republic of Korea, served as the Army of the Republic of Korea for the purpose of national security, was not going to the illegal act in relation to the Defendant’s business, and that the Defendant was an initial offender who has not been punished by criminal punishment.

2. Judgment on the assertion of mistake of facts

A. The lower court, on the grounds delineated below, received an illegal solicitation from I to explicitly maintain existing supply contracts and provide convenience in selecting a subcontractor in the future, etc., or received money and valuables in return for an illegal solicitation with such an implied solicitation, at least, for the following reasons.

The decision was determined.

1) The Defendant, the head of the G Business Headquarters, may directly or indirectly affect the determination of whether to maintain the existing supply contract with the subcontractor, and select a new subcontractor.