Defendant 1 shall be punished by imprisonment with prison labor for a period of one and half years.

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

The prosecutor's appeal against the non-guilty portion of the judgment of the court below and Defendant 2's appeal are all dismissed.

A. Defendant 1 (misunderstanding of facts or misunderstanding of legal principles as to the part of the crime)

(1) The embezzlement of research funds by Nonindicted Incorporated Association 1

(A) Nonindicted Corporation 1 (hereinafter “Nonindicted Corporation 1”) is a public-service corporation and requires a resolution of the board of directors on the acquisition of basic property. Since the donation was provided from the funding institutions and was not subject to the resolution of the board of directors, the donation in this case is not deemed to belong to Nonindicted Corporation 1. In light of this, Nonindicted Corporation 1 was merely a means of accounting settlement of donations, and there was no articles of association or organization that reflects the basic matters of the corporation as human body, nor did it hold a board of directors or a general meeting since its establishment. There was no provision or procedure on the management and settlement of research funds, and the payment of research funds was withdrawn as requested by the Defendant’s research team. All of them were supported only in biotechnology research by Defendant 1’s research team, and there was no report or confirmation on the research outcomes, and there was no right to acquire equipment and research outcomes acquired from the research funds. In light of this, it is difficult to view that Nonindicted Corporation 1 was not the subject of ownership of another person and the Defendant cannot be deemed to have voluntarily transferred the research funds to the Defendant.

(B) In relation to the list of crimes (2) Attached to the lower judgment, it is generally impossible for the Defendant to purchase the animal or human ovum through normal trade, and as such, the Defendant used the borrowed account inevitably to use it as a cost for acquiring such ovum. Therefore, the fact that Nonindicted 2, etc. deposited the borrowed account again from 7 persons, such as Nonindicted 2, to Nonindicted 10 and Nonindicted 11, cannot be deemed as an act of unlawful acquisition. In particular, there is insufficient evidence to support that the funds deposited in the borrowed account of Nonindicted 11 is research funds of Nonindicted 1, which were kept in the borrowed account of 7 persons, such as Nonindicted 2, etc., and it is difficult to recognize the intention of unlawful acquisition in light of the fact that the Defendant deposited the funds owned by the Defendant in another account used by the research team at the time of withdrawal of the funds paid in the name of Nonindicted 4’s children in the borrowed account.

(2) The fact of deceiving Nonindicted Corporation 1’s research funds

In light of the actual relationship with the Defendant as seen earlier, Non-Indicted 1’s research funds are funds used for the comprehensive purpose of biotechnology research conducted by the Defendant and its research team. The Defendant ordered Co-Defendant 2 of the first instance trial that “I would like to purchase experimental materials or equipment as if the expenses, such as personnel expenses and travel expenses, are needed, and there is no fact that “I would raise operating funds by processing the expenses, as if you purchase experiment materials or equipment.” Even if the Defendant given such a direction, it cannot be deemed that the Defendant obtained it by fraud or inflicted damage on Non-Indicted 1 even if it was used in conformity with the original purpose.

(3) The point of fraud of government research funds

Considering the fact that it is unreasonable to strictly limit the purpose of use due to the unique characteristics, abstractness, universality, and openness of the research, as the government’s research funds were subsidized for the comprehensive research task of “satisfy reproduction and reproduction-based research project,” the Defendant’s use of the research funds to the extent that it does not go beyond the same purpose and scope, the intent of unlawful acquisition cannot be recognized.

(4) Violation of the Bioethics and Safety Act

In light of the legislative purpose and purpose of the Bioethics and Safety Act (hereinafter “Bioethics Act”), legislative history, balance with relevant laws and regulations, and social norms, an ovum donor donated an ovum with pure motive to be identified in biotechnology research, and an ovum donee bears the burden of expenses incurred in collecting ovum by obtaining his/her intent to donate the ovum. As such, the act cannot be included in the elements of providing “money, property interest, and other consideration” prohibited under the Bioethics Act, and the crime is not established due to lack of illegality, and is not established as a result of an act conducted by a legal expert’s advice, and thus, constitutes legal error.

B. The prosecutor (the part against the defendant 1)

(1) misunderstanding of facts or misunderstanding of legal principles concerning the acquittal portion

(A) misunderstanding of facts or misunderstanding of legal principles concerning the manipulation of thesis.

1) Degree of proof as to the prosecutor’s manipulation of thesis

In the event that the test result, which was the basis of this paper, does not go in itself, was fabricated as if such result was produced, or fabricated the test result, and then destroyed the test data, it is practically impossible to prove ex post facto manipulation. Therefore, it is sufficient to the extent that the prosecutor’s proof of facts charged is sufficient to the extent that “the test result or data as indicated in the paper does not exist, and there is no test result or data as indicated in the paper does not exist.”

2) The portion rejected by the lower court from among the manipulation in the thesis in 2004

A) With respect to fingerprint analysis operations, ① Nonindicted 12 and Co-Defendant 5 of the first instance trial changed the statements at the prosecution, but at the time of the first statement, it was difficult for him to learn the Defendant at the time of the first statement, and there was no motive for him to arbitrarily manipulate the sample without the Defendant’s instructions, ② the Defendant was flick time to publish a thesis about NT-1 at the NT-1 at the NT-1 location around May 2003, as well as NT-1 cell numbers that can be used for the inspection, not only NT-1 itself, but also NT-1 cell numbers that can be used for the inspection, it is sufficiently recognized that the Defendant instructed Nonindicted 12 to manipulate the DNA fingerprint analysis results in light of the fact that there was a motive to manipulate the results of DNA fingerprint analysis.

B) With respect to the test operation of each man-electronic calendar (RT-PCR), there is no direct experiment data or any related photograph that Non-Indicted 13 obtained the results of rT-1 by conducting the RT-PC test, and ② on October 6, 2003, experiment photographs consisting of secondary genetic data (SNPN, ARHI), but only ARHI was generated out of the 9th day of the same month. This means that the Defendant’s 13-PCR inspection on the NT-1 was failed, and that there was no possibility that there was a change in the content of the 4-NPC-14-HN-NR test on the 19th day of the same month, and that there was a change in the content of the 20-HNN-14-HN-NR test on the 14th day of the same month.

C) With respect to the operation of immunodeficiency photographs, the use of the photo of a cell used as a voice group in the paper was not made in the process of immuno-chroning test. According to the statements from Co-Defendant 3 of the first instance trial and Non-Party 12, it is recognized that the defendant called “if there is a voice group even if there is no longer than NT-1,” and the defendant called Non-Party 12 as the result of Non-Party 14 (English omitted). Thus, it is evident that the defendant was aware that he used the photo of other stem cell cells than NT-1 for the results of the 2004 thesis.

(B) Whether the act or omission constitutes a deception

1) The most important thing in confirming the establishment of a nuclear embryo stem cell is ① whether a somatic cell donor was accurately reproduced, ② whether an organ differentiation is a stem cell, and the Defendant instructed Nonindicted 12 to conduct an examination only with the donor’s body cells from DNA fingerprint analysis experiment, which is a basic test to verify the accuracy of reproduction, in 2004, and published a false paper in 2004 using the test result. While there was no result of the tetoma test to verify the possibility of institutional differentiation, the △△△△△ operated a paper as if the NT-1 thesis was properly formed using the tetoma photograph of the stem cell line in the NT-1, and operated an embryonic stem cell from the NT-12 to prove that Non-Indicted 12 did not have any vegetable stem cell from the NT-1, an embryo distribution method, not from the NT-1, as the result of the NT-1, an embryo distribution method.

2) After the Defendant’s operation of the thesis in 2004, in 2005, the paper, even though he was aware that only 2 stem cells it created were in existence of NT-2, 3, etc., manipulatings the results of various experiments as if all 11 stem cells were established, even though the number of ovums provided in experiments was 275 and only 185 ovums were provided, thereby manipulating the efficiency of the establishment of stem cells by manipulating that the number of ovums provided in experiments was 275, and all of the stem cells were used in the process of the establishment of stem cells, the Defendant fabricateds the risk of infection of viruses by using human vegetable cells, thereby publishing the thesis in Sarna magazine.

3) On or before the publication of the above two-dimensional thesis, the Defendant’s act of interview and lectures in exaggeration of the research outcome as if it was possible to commercialize the stem cell therapy in the future due to high efficiency and safety in the establishment of stem cells against all citizens and the global media constitutes deception in fraud. The Defendant’s act of running the thesis as above and neglecting the research outcome, resulting in an error in the victim Nonindicted Co. 5 (hereinafter “Nonindicted Co. 5”) and the Nonghyup Federation (hereinafter “CF”) and resulting in the Defendant’s act of interview and lectures that manipulate the research outcome. Therefore, the Defendant is under the fiduciary position to act in accordance with the preceding act.

A) As to the fraud against Nonindicted Co. 5 in July 2005, the Defendant fabricated the verification data to Nonindicted Co. 7, the Technical Director of Nonindicted Co. 5’s Technical Director, such as stem cell-related technology, information, and connection network, and requested Nonindicted Co. 5 to provide a total of KRW 7.5 billion per year for five years while the stem cell commercialization would give favorable opportunity, such as priority, to Nonindicted Co. 5. The Nonindicted Co. 5 demanded that the Defendant pay a total of KRW 1.5 billion per year. As a result of the publication of this paper in 2004 and 2005, it was determined that the Defendant’s research achievements were enhanced, and the Defendant paid KRW 1 billion every three years after the lapse of three years, and provided a research fund to determine whether to provide assistance after the lapse of three years. If Nonindicted Co. 5 had believed to establish the stem cell line, regardless of whether the Defendant believed to establish the stem cell line, it would have not been able to establish the safety and commercialization rate of the stem cell line.

B) With respect to the fraud against Nonghyup, the validity and utility of patient-specific stem cells are important factors in determining the support of research funds, and the Defendant’s receipt of research funds is constituting deception by omission. The NAF’s certificate of contribution stated “the Livestock Development Support Fund” but such a name is merely considered in consideration of the purpose of the establishment of the NAF, and in fact, it was supported by the motive to believe that the Defendant would contribute to livestock development, such as indirectly treating satisfies through animal testing in the course of stem cell research, and that it would contribute to the development of the country by believing that the Defendant would contribute to livestock development, such as indirectly treating satfies through animal testing in the future. In addition, in light of the fact that the Defendant, while explaining the support method in the process of support and recommending personal support methods, the Defendant is deemed to have expressed the intent of unlawful acquisition by the Defendant, and thus, the Defendant cannot be exempt from the liability of fraud by omission or implied deception.

(2) Unreasonable sentencing

The sentence of the lower court (two years of imprisonment, three years of suspended execution) is too unhued and unreasonable.

C. Defendant 2 (Unfair Undue Practices)

The punishment of the lower court (7 million won of a fine) is too unreasonable.

2. Judgment on the misapprehension of facts or misapprehension of legal principles by Defendant 1

A. As to the embezzlement of research funds for Nonindicted Corporation 1

(1) Whether another person's property nature is recognized

(A) The judgment of the court below

After recognizing the facts in its holding, the lower court determined that: (a) if money paid by Nonindicted Corporation 1 as alleged by the Defendant was able to be used for any purpose other than biotechnology research; (b) if the Defendant returned to a bank directly; (c) it appears that it would be unnecessary for the Defendant to use the full amount by re-deposit to a borrowed account in the name of the Defendant’s seat; and (b) the Defendant managed the borrowed account as above for research necessary for security; (c) it is insufficient to verify and supervise the research expenses paid by Nonindicted Corporation 1, such as the Defendant’s assertion; and (d) if the Defendant paid the money as requested by the Defendant without any special examination of the purpose and amount of the research expenses applied for, it appears that there was no need to create a borrowed account for security maintenance; (c) it would be difficult to view the Defendant to use the large amount of funds to be used to a specific individual without any condition on the part of the general public; and (e) it would be reasonable to deem that the research expenses paid by the Defendant to be used for research funds in the name of Nonindicted Corporation 1 without any special terms and conditions.

(B) Judgment of the court below

1) Legal nature of Nonindicted Party 1

A) A public-service corporation regulated by the Act on the Establishment and Operation of Public-Service Corporations (hereinafter “Public-Service Corporations Act”) refers to a foundation or an incorporated association with the purpose of business related to educational expenses, scholarships or research funds, or academic and charity in order to contribute to the general interest of society (Article 2). Specifically, a non-profit corporation under Article 32 of the Civil Act refers to a corporation with the purpose of business under each subparagraph of Article 2(1) of the Enforcement Decree of the Public-Service Corporations Act, such as pure academic and charity, or a corporation with the purpose of business incidental to the above academic and charity (see Supreme Court Decision 77Do4002, Jun. 13, 1978).

B) Articles of incorporation of Nonindicted Party 1 [No. 615 (Investigation Records No. 27, 17051-17063 pages)]

According to Article 2 (Purpose), "The Institute studies the future development strategies of new industries, such as the information and communications industry, biotechnology, design industry, and environmental industry, which are knowledge-based industries leading the knowledge-based society in the 21st century, and the inter-connection strategies between such industries. Based on this, the purpose of this study is to develop future promising new industries and to present and seek advice on policies for fostering such new industries to enhance the international competitiveness of Korean companies, industries, and economy." Article 4 (Business) provides that "the projects carried out by non-indicted 1 by the Corporation."

C) Comprehensively taking account of the motive for establishment or establishment of Nonindicted Corporation 1, which is recognized by the evidence duly adopted and investigated by the lower court, such as the witness Nonindicted Corporation 4’s legal statement in the lower court, Nonindicted Corporation 1’s corporate registry [No. 516 (Investigation Record No. 15041-15042)] as stated in the articles of incorporation of the said Nonindicted Corporation 1, it can be recognized that Nonindicted Corporation 1 was established in order to conduct research on the future development strategies of new industry, such as biotechnology and information and communication industry, and to support research activities, such as subsidization of research expenses for new technology development such as Defendant’s biotechnology. According to the above facts, it can be deemed that Nonindicted Corporation 1 is a non-profit corporation as prescribed in the Public Interest Corporation Act, which is engaged in academic activities such as subsidization of research expenses related to new industry development and its purpose within the necessary scope or incidental research expenses (see, e.g., statement of public interest report and tax base report on corporate tax and tax base submitted by Nonindicted Corporation 1 to the tax office]

(ii)the owner of the donation of the research funds of the funding institution;

A) Comprehensively taking account of the evidence duly adopted and examined by the court below including the witness Nonindicted 4’s statement in the court below and the witness Nonindicted 15 and 16’s testimony at the court of the trial, the court below also acknowledged the fact that Nonindicted 1 received donations from the △△ Group [Nonindicted 17, Nonindicted 18, and Nonindicted 19], △ Group [Nonindicted 20, Nonindicted 21, and Nonindicted 5], and Nonindicted 22 Incorporated Foundation, etc. (hereinafter “the funded organizations in this case”), and received donations from the △△ Group (Nonindicted 20, Nonindicted 21, and Nonindicted 5], and Nonindicted 1 was not subject to the resolution of the board of directors

B) However, the purport of Article 7(1)1 of the Public Interest Corporation Act requiring a resolution of the board of directors as well as the disposal of the property "property" is to promote the sound development of the public interest corporation and to have the public interest corporation faithfully perform its original purpose by ensuring the smooth management, maintenance, protection, and finance of the property in consideration of the special nature of the public interest corporation. In a case where a public interest corporation acquires the property without compensation due to the donation of stocks or other objects, etc. by donation of stocks or other objects, the property foundation of the public interest corporation itself must be more publicly announced. Thus, without the resolution of the board of directors, the purport of invalidating the acquisition of the property should also be achieved. Thus, the purport of invalidating the acquisition of the property shall not be deemed null and void unless there are any special circumstances (see Supreme Court Decision 2007Do8195, Mar. 26, 2009).

C) We examine the facts that Nonindicted Co. 1 requested Nonindicted Co. 19 to subsidize the Defendant’s research expenses related to the industrialization of the Defendant’s life reproduction technology, and the Defendant indicated the Defendant as the person in charge of the research of Nonindicted Co. 1 in a report attached thereto [this is recognized, but it is not evident to the effect that there is no evidence to acknowledge that Nonindicted Co. 1 agreed to receive the consideration from Nonindicted Co. 1 while subsidizing the research expenses to Nonindicted Co. 1 or that Nonindicted Co. 1 agreed to bear any obligation to the said funding institution.

In addition, according to the joint research and development project project agreement, agreement, Annex, and agreement between Nonindicted Co. 1 and Nonindicted Co. 5 with Nonindicted Co. 1 and Nonindicted Co. 5 (the Investigation Record No. 3836, 15713-15718 pages), Nonindicted Co. 1 and Nonindicted Co. 5 jointly carry out research and development projects for the development of new technology and commodities in biotechnology centered on somatic cell cell reproduction technology and their commercialization and commercialization, and it can be acknowledged that Nonindicted Co. 5 paid a sum of five years for research and development expenses and notified Nonindicted Co. 5 in writing of the results of the research and development project in September of each year. However, the overall purport of the above agreement is that Nonindicted Co. 5 provided research and development expenses to Nonindicted Co. 1, while it independently carried out research and development projects, it is difficult to view the outcomes of the research and development project as joint ownership and the third Co. 1’s transfer of the outcomes of the project’s share to the third Co. 1, 2002>

D) Furthermore, Article 11(1) of the Public Interest Corporation Act separates the property of a public-service corporation into a basic property and a common property as prescribed by the Presidential Decree, and Article 16 subparag. 2 of the Enforcement Decree of the same Act stipulates that according to delegation from the above provision of the same Act, the basic property shall be donated or acquired without compensation, but it shall not apply where approval from the competent authority is obtained because it is difficult to become an fundamental property in light of the purpose of donation. Since the instant funding institution appears to have made a donation to Nonindicted Corporation 1, specifying the purpose of “support for Defendant’s biotechnology research,” it is difficult to regard the donation as an basic property of Nonindicted Corporation 1, and even if there was no approval from the competent authority in view of the purpose of donation, it is difficult to regard the donation as an ordinary property. However, if it is difficult to use the donation as an basic property in light of the purpose of donation, it shall be deemed that the transfer of ownership takes place without permission from the competent authority, in principle, the transfer of ownership to Nonindicted Corporation 1’s possession of the donation.

E) Therefore, even if the instant funding institution did not pass a resolution by the board of directors of Nonindicted Corporation 1 regarding the acquisition of research funds contributed by the instant funding institution, it can be sufficiently recognized that the said donation belongs to the ownership of Nonindicted Corporation 1.

3) The grounds for subsidization of research expenses and the nature of donations through Nonindicted Corporation 1

A) The Defendant, as ○○ University professor, is in the position of a public educational official pursuant to Article 2(1)1 and (2)1 of the Public Educational Officials Act and Article 2 of the Higher Education Act. Article 5 of the Act on the Collection and Use of Donations, the State, a local government, and its affiliated institutions and public officials are prohibited from collecting donations (Article 2(1)), and may not receive donations, except as otherwise provided for in any other Act and subordinate statute (Article 16(2)1). In violation of this provision, a person who collects donations in violation of this provision shall be punished by imprisonment with labor for not more than one year or by a fine not exceeding 10 million won (Article 16(2)1). As such, the Defendant’s act of receiving and receiving comprehensive donations from the instant funding institutions without any restriction on the direct use of donations is impermissible under the law.

B) Meanwhile, according to the evidence duly adopted and examined by the court below, the statement of Nonindicted 23 and 24 and the permission for incorporation attached thereto, etc. of the prosecutor's office [No. 540 (No. 24 rights 15816, 1582 of investigation records], it can be recognized that Nonindicted 1 was designated as an organization subject to public interest donation under each of the provisions of Article 24 (1) of the Corporate Tax Act, Article 36 (1) 1 (l) of the Enforcement Decree of the Corporate Tax Act, Article 18 (1) 32 of the Enforcement Decree of the Corporate Tax Act, which was enforced on January 12, 2001. As Nonindicted 1 was designated as an organization subject to public interest donation, it appears that the instant funding institutions could have been able to have included a certain amount of the donation in deductible expenses so that they can enjoy the benefit of tax reduction or exemption by including it in deductible expenses.

C) Therefore, the reason why the instant funding institution subsidized the Defendant’s research expenses through Nonindicted Corporation 1 is that the Defendant’s status is a public official, and thus, it is not permitted to directly subsidize the research expenses, and it is determined that the instant funding institution was committed to prevent any tax disadvantage that may not be accompanied by the subsidization of the research expenses in order to restore the company’s profit to the society, and as properly explained by the lower court, in light of the developments leading up to and purpose of the instant funding institution’s funding to Nonindicted Corporation 1, it is difficult to view the funds that were paid to Nonindicted Corporation 1 as a comprehensive support for the Defendant who is working for the Defendant without any special restriction on its execution, and at least, it is reasonable to view that the funds that were paid to Nonindicted Corporation 1 constituted a donation of public interest entrusted to Nonindicted Corporation 1 on the premise that they should be used for the research

(2) Whether the custodian is recognized

(A) The judgment of the court below

The court below held that, although it cannot be denied that the operation of Nonindicted Corporation 1 was partially abnormal, unlike ordinary associations, it is reasonable to view that there is at least the existence of a decision-making body and executive body as a social organization with independent activities in accordance with the articles of incorporation, which is the organization's bylaws, and so long as it is recognized that Nonindicted Corporation 1 exists as a separate organization, the money which Nonindicted Corporation 1 paid to Nonindicted Corporation 1 naturally belongs to Nonindicted Corporation 1, and the principal business performed by Nonindicted Corporation 1 was the Defendant's research support, and it cannot be deemed that the Defendant is attributed to the beginning on the ground that the principal business performed by Nonindicted Corporation 1 was the Defendant's research support, and the records, such as each investigation report (Evidence No. 530, 571, etc.) and each document attached thereto, were written on the part of Nonindicted Corporation 1, who received support from Nonindicted Corporation 1, as a person in charge of research in charge of research and development, and the Defendant was also designated as a person in charge of research and development project, and the Defendant was also deemed as a person in charge of research.

(B) Judgment of the court below

In light of the circumstances of funding support, such as (i) the instant funding institution’s direct delivery of support payments to the Defendant; (ii) the intent of the instant funding institution is to specify the purpose of research funds to be paid to the Defendant and contribute funds to Nonindicted Corporation 1; (iii) it is interpreted that the Defendant is obliged to use funds to be paid as a person in charge of research of Nonindicted Corporation 1 for the original purpose of donation to Nonindicted Corporation 1; and (iv) even if Nonindicted Corporation 1 did not meet the original purpose of donation to the instant funding institution; (iii) it appears that the Defendant did not properly supervise the use of the Defendant’s research funds; or (iv) it appears that the Defendant was not in violation of the duty of loyalty to the executives of Nonindicted Corporation 1; and (v) the Defendant did not have any other duty to use the research funds to be paid to Nonindicted Corporation 2 for the purpose of research and development of the instant funding institution without any restriction on the research funds; and (v) it appears that the Defendant did not have any error of law in the law regarding the donation management of Nonindicted Corporation 1 or the Defendant 6’s association.

(3) Whether the act of embezzlement is constituted and whether the intent of unlawful acquisition exists

(A) The judgment of the court below

피고인 및 공소외 26의 검찰 및 법정 진술, 각 차명계좌 명의자들의 각 검찰 진술 및 각 계좌 거래내역, 각 수사보고(증제498, 600, 609호 등) 및 이에 첨부된 각 서류의 기재 등 기록에 의하여 인정되는 다음과 같은 여러 사정, 즉 ① 피고인이 공소외 1 법인으로부터 재료비(실험용 소 구입 및 그 유지관리비) 명목의 돈을 지급받을 때 공소외 2 등 7명 명의의 차명계좌로 송금받아 전액 현금으로 인출한 후 총 17회에 걸쳐 합계 금 581,048,000원을 다시 매제인 공소외 10 명의의 차명계좌나 공소외 11 명의의 차명계좌로 분산하여 재입금하는 등 2단계에 걸쳐 자금세탁을 한 점, ② 만약 피고인의 주장대로 공소외 1 법인으로부터 지급받은 돈은 연구비로 용도가 지정된 것이 아니어서 임의로 사용할 수 있는 것이었다면 굳이 허위 증빙자료를 제출할 아무런 이유가 없고 떳떳하게 실제 용도대로 신청해도 될 터임에도, 피고인은 재료비를 신청하면서 실험축구입비 등 증빙자료를 허위로 만들어 제출함으로써 마치 연구비를 지급하면 소구입비나 그 유지관리비로 사용할 것처럼 가장한 점, ③ 피고인이 정당한 목적에 사용하려고 하였다면 위와 같은 차명계좌에서 굳이 수천만 원에 달하는 거액을 현금으로 인출하여 일단 캐비닛에 보관해 두었다가 사용하는 방법으로 불편을 감수할 이유도 없었을 것으로 보이는 점, ④ 공소외 10 명의의 차명계좌에는 피고인 개인에 대한 후원금도 입금되어 있어 공소외 1 법인에서 지급받은 재료비를 현금으로 입금할 경우 그 개인 후원금과 혼재되어 구분이 사실상 불가능하게 되는 점, ⑤ 피고인은 공소외 10 명의의 차명계좌에 입금된 재료비를 현금으로 입출금하면서 같은 은행의 여러 지점을 돌아다니면서 일정 금액 이하로만 입출금하기도 하였을 뿐 아니라, 계좌간 대체의 경우에도 적요란에 현금으로 처리한 것처럼 가장하기도 한 점, ⑥ 피고인이 재료비로 지급받은 돈 31억 5,484만 원 중 1,150만 원은 연구와는 무관한 공소외 1 법인 이사장인 공소외 4 교수의 딸 결혼식 식대로 사용하였음이 밝혀졌고, 나머지 돈 중 피고인이 정당하게 사용하였다면서 그 내역을 제시하고 있는 23억 8,689만 원을 공제한 차액인 7억 5,600여만 원 상당에 대해서는 여전히 그 용처를 구체적으로 명백히 밝히지 못하고 있는 점(위 23억 8,689만 원 부분도 영수증 등 이를 뒷받침할 만한 객관적인 자료는 제시하지 못하고 있다), ⑦ 피고인은 스스로 백두산 호랑이나 매머드 복제연구 등 극도로 보안이 필요한 용도에 사용하기 위해 자금세탁을 하였다고 주장하면서 실제로는 공소외 10 명의의 차명계좌에 입금된 돈을 보안 용도에 사용하지 않고 소구입비로 사용하였다고 진술하기도 한 점, ⑧ 2001. 5. 4.부터 2005. 12. 26.까지 공소외 10의 차명계좌에서 공소외 10이나 그 가족에게 합계 3억 3,000여만 원이 송금된 점, ⑨ 피고인은 업무적으로 관련이 있는 ◎◎◎◎◎◎연구원, 경기도 ◁◁◁◁◁◁소 관계자 등에게 수회에 걸쳐 정기적인 금원교부는 물론, 설날과 추석 등 명절의 선물 외에도 가끔 부서별로 회식을 시켜 주었고, 제1심 공동피고인 2, 3 교수에게는 유학생활비 등도 일부 보조해 주기도 하였다는 취지로 주장하나, 이러한 접대비나 생활비 지원이 연구 목적을 위해 정당하게 사용된 것이라고 보기는 어려운 점 등을 종합하면, 피고인이 공소외 1 법인으로부터 재료비 명목으로 지급받은 연구비 중 적어도 공소사실과 같이 592,548,000원(＝581,048,000원＋11,500,000원) 상당을 사적 용도에 사용할 목적으로 은닉하거나 실제 사적 용도로 임의 사용한 것으로 충분히 인정할 수 있다.

In addition, considering the following circumstances: (a) the Defendant received research funds from the borrowed name account; (b) deposited the funds in cash; (c) deposited most of his personal support payments and the research funds of Nonindicted Corporation 1 into the borrowed name account in the name of his own account; and (d) deposited them into the borrowed name account and mixed most of the research funds of Nonindicted Corporation 1; and (c) subsequently, Nonindicted Corporation 1 used the research funds of this case for private purposes; and (d) the Defendant’s reasons for money laundering, details of the money laundering, and the actual usage of the money laundering, etc. for his own or a third party’s profit, it cannot be deemed that there was no intention to commit the crime of occupational embezzlement or unlawful acquisition of the research funds of Nonindicted Corporation 1, which the Defendant has kept in his own custody for the purpose of pursuing his own or a third party’s profit, as in violation

(B) Judgment of the court below

1) The intent of unlawful acquisition in the crime of embezzlement refers to the intention of disposal of the property of another person, which is in custody for the benefit of himself/herself or a third party, such as his/her own possession, and the intention of disposal in fact or in law is to use the property of another person, which is in custody for the benefit of his/her own or a third party, for purposes other than the limited purpose upon being entrusted with a limited amount of money by others. Even if the use is attributable to the personal purpose, as well as to the entrusted person, even if the use is for the entrusted person, it constitutes embezzlement (see Supreme Court Decision 2002Do366, Aug. 23, 2002).

2) First, we examine the part concerning the Defendant’s concealment and consumption of funds using the borrowed name deposit account in the name of Nonindicted 10.

A) As in the instant case, in a case where: (a) it is acknowledged that the Defendant paid research funds received from Nonindicted Corporation 1 to seven borrowed-name deposit accounts in the name of Nonindicted Corporation 10 and used them; (b) however, the Defendant denies the existence of an intent of unlawful obtaining profits by asserting that the funds were withdrawn and used for biotechnology research; (c) whether it is reasonable to bear the expenses for the research funds of Nonindicted Corporation 1 as an expenditure for the expenses ordinarily incurred in the course of biotechnology research; (d) whether the decision on the specific timing, object, scope, amount, etc. of the funds was made objectively and reasonably; and (e) whether the funds were used for the purpose of using them; and (e) whether the main purpose of using the funds can be deemed to have been used for the personal purpose of the Defendant; and (e) whether the intent of unlawful obtaining profits can be recognized (see Supreme Court Decision 2007Do4784, Feb. 26, 2009).

B) Examining the reasoning of the lower court’s judgment as follows: (a) the method of raising funds with substantially lacking legitimacy, such as filing an application for research and washing money using false evidentiary data; (b) a group of cash withdrawals from the next 60,000 won; (c) the Defendant used multiple banks and pretends to use cash disposals to the next 10,000 account; and (d) the Defendant did not use the funds within the 6th 6th 1st 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 7th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 10 6th 6th 12 6th 6th 6th 122 6th 6th 6222222.

3) Next, considering the part of the Defendant’s concealment and consumption of funds using the borrowed name deposit account in the name of Nonindicted 11, the lower court’s determination is difficult to accept in light of the objective financial transaction details indicated in the record, and the following changes are examined.

(4) Whether the crime was committed with respect to the portion using the borrowed deposit account in Nonindicted 11’s name

(A) The summary of this part of the facts charged [Attachment (2) No. 1-A. 1-2 of the facts charged of the lower judgment]

The Defendant, as a person in charge of the research task called “development of somatic cell reproduction technology,” which was awarded by Nonindicted Corporation 1 from October 200 to Nonindicted Corporation 1, received research expenses from Nonindicted Corporation 1 to take overall charge of the implementation of research projects, management and enforcement of research expenses, and used research expenses for the purpose of biotechnology research. However, on October 9, 200, the Defendant prepared and submitted relevant documents to the effect that the Defendant purchased litigation amounting to KRW 50 million from Nonindicted Corporation 1 through Nonindicted Corporation 26, who is the accounting personnel of the above biotechnology class, through Nonindicted Corporation 26, who was in charge of the above biotechnology class, and received from Nonindicted Corporation 1, an employee of Nonindicted Corporation 1, for the purpose of experiment, KRW 50 million from Nonindicted Corporation 26 to the next deposit account in the name of Nonindicted Party 2, who was in custody of KRW 26,000,000 to the next deposit account in the name of Nonindicted Party 1, 201 to 205.

1) Around October 7, 2004, the purchase cost of a experiment for an experiment, which was kept in the next bank account as above, was withdrawn in cash, and then, at the ○○○○ Branch in Seoul (hereinafter omitted), one bank located in Seoul (hereinafter omitted), deposited KRW 20 million in the next bank account in the name of one bank in the name of non-indicted 11, and then embezzled a total of KRW 105,548,000 in the attached Form (2) between around that time and August 25, 2005, as shown in the attached Table (2) Nos. 14 and 17 between August 25, 2005, by depositing the total of 105,548,000 in the second bank account in the name of one bank in the above non-indicted 11.

(Account Number No. 14 (Account Number omitted) No. 2004-107 20,000,000 on the Account Number No. 2004-108,548,000 on the Cash Non-Indicted 15 (Account Number omitted) 2004-10-108,548,000 on the Account Number No. 16 (Account Number omitted) 2004-16,16,000 on the Cash of Han Bank 17 (Account Number omitted) 205-250,000,000 on the Account Number No. 17 (Account Number omitted) on the Account Number No. 2005-250,000 on the Account Number No. 105,548,000 on the Cash No. 1 Bank

(B) The judgment of the court below

The lower court also determined that the Defendant was guilty of all of the charges of this part of the charges on the following grounds: (a) the Defendant deposited the money in the name deposit account in the name of Nonindicted 10 and concealed and consumed it; and (b) the

(C) Judgment of the court below

However, this part of the judgment of the court below is hard to accept for the following reasons.

1) This part of the facts charged is premised on the fact that the Defendant deposited money in the borrowed name deposit account in the name of Nonindicted 11, in the name of Nonindicted 2, etc., for the purchase cost of litigation for experiments and for the maintenance and management cost of experimental axiss. If the aforementioned premise fact is not acknowledged, the source of money deposited in the borrowed name deposit account in the name of Nonindicted 11 can be diverse. Thus, this part of the facts charged cannot be deemed to have been proven to the extent that the judge had a reasonable doubt without any reasonable doubt.

2) In the prosecutorial investigation, the Defendant led to the confession of this part of the facts charged (No. 492 (No. 21, No. 13939-13940 pages) to the effect that “No. 11 gave Nonindicted 26 the cash contained in the office capital, and deposited in the borrowed account in the name of Nonindicted 11, and the amount of each of the facts charged is the purchase cost of the experimental axis received from Nonindicted 1 corporation.”

However, according to the evidence duly adopted and investigated by the lower court and the lower court, including the Defendant and Nonindicted 26’s witness Nonindicted Party 26’s written statement at the lower court and the lower court, Nonindicted Party 11’s written statement and the receipt period attached to the Prosecutor’s Office (No. 393 (No. 11180-1193 of the Investigation Record) and the details of transactions by receipt period attached to the Defendant’s written statement and Nonindicted Party 11, the following facts can be acknowledged.

가) 피고인은 동문회를 통해 알게 된 ▷▷고등학교 선배인 공소외 11로부터 2004년 6월경 연구 후원제의를 받고 그로부터 후원금 수수 용도로 2004. 6. 23. 개설된 하나은행 예금계좌(계좌번호 생략)를 교부받아 그 때부터 위 차명 예금계좌를 관리하였다.

나) 위 공소외 11 명의 차명 예금계좌의 개설일인 2004. 6. 23. 및 이 부분 공소사실의 각 범행일자(2004. 10. 7., 2004. 10. 8., 2004. 11. 16., 2005. 8. 25.)의 전일과 그 범행 당일을 기준으로 한 그 당시 피고인이 공소외 1 법인으로부터 재료비 등의 명목으로 연구비를 입금받아 관리하던 공소외 2 등 7명[공소외 2(♤♤목장 관리자), 공소외 28(인공수정사), 공소외 29(수의사), 공소외 30(○○대 △△과대 박사), 공소외 31(수의사), 공소외 32(인공수정사), 공소외 33(○○대 △△과대 박사)] 명의의 차명 예금계좌의 잔고는 다음 표 기재와 같다.

On October 6, 2004, October 7, 2004, the title holder of the next deposit account in the main sentence 2, 34, 36, 31, 975, 36, 36, 374, 36, 928, 928, 000, 000, 286, 284, 26, 284, 26, 38, 197, 28, 26, 38, 194, 28, 194, 194, 199, 199, 199, 199, 199, 199, 25, 284, 26, 30, 284, 26, 285, 26, 285, 26, 286, 484, 1974, 297

C) Meanwhile, from June 23, 2004 to August 25, 2005, the date of opening the borrowed-name deposit account in the above non-indicted 11’s name deposit account, the details of deposits from the above seven borrowed-name deposit account during the period from June 23, 2004 to August 25, 2005, which was the date of the final crime in this part of the facts charged,

Non-Indicted 20, Non-Indicted 20, Non-Indicted 20, Non-Indicted 205, Non-Indicted 20, Non-Indicted 205, Non-Indicted 20, Non-Indicted 205, Non-Indicted 205, Non-Indicted 4, Non-Indicted 20, Non-Indicted 205, Non-Indicted 30, Non-Indicted 205, Non-Indicted 205, Non-Indicted 205, Non-Indicted 30, Non-Indicted 205, Non-Indicted 4, Non-Indicted 205, Non-Indicted 205, Non-Indicted 205, Non-Indicted 4, Non-Indicted 30, 205, Non-Indicted 205, Non-Indicted 205, Non-Indicted 31, 200, Oct. 6, 200, 200

3) Comprehensively taking account of the evidence duly adopted and examined by the lower court and the first instance court based on the above facts charged, namely, ① the balance of each borrowed account in the name of the said seven persons as of the date of the crime of this part of the charges falls considerably short of the amount of embezzlement under this part of the charges; ② Even if the above seven borrowed deposits were to be withdrawn from the said seven borrowed deposit account, the public prosecution was instituted separately for embezzlement of the above contents No. 2 through No. 4, and No. 11, February 7, 2005, it is difficult to recognize that the source of the funds was deposited into the second borrowed deposit account in the name of the Defendant’s name of Non-Indicted 1, Non-Indicted 4, Non-Indicted 1, and Non-Indicted 1, 207, and the name of the Defendant’s non-Indicted 1, the name of the second borrowed deposit account in the name of Non-Indicted 1, 10, and the name of the Defendant’s office’s non-Indicted 1, and the remaining part of the charges of embezzlement or non-indicted 2.

The deposit amount (won) between 5,500,000,000 through 15,048,000 through 15,048,000 to 23 months on August 22, 2004; 13,000,003, 13,0003,800 on August 13, 200, 200, 2005 August 25, 2005, 2005 at the time between the last date of the deposit and the date of the deposit payment (won). < Amended by Presidential Decree No. 18574, Oct. 16, 200; Presidential Decree No. 18558, Aug. 25, 2004; Presidential Decree No. 18568, Oct. 22, 2004; Presidential Decree No. 18530, Oct. 13, 200, 005; Presidential Decree No. 185853, Jul. 27, 200, 27, 200, May 2, 200, 2

4) Therefore, the Defendant’s assertion of mistake of facts is with merit.

B. As to the fraudulentation of research funds by Nonindicted Corporation 1

(1) Whether the ownership of the research funds for Nonindicted Corporation 1 and the property of another person is recognized

The judgment of the defendant on the misconception of facts or misapprehension of legal principles in this part is as shown in Section 2-A (1).

(2) Whether the defendant conspireds with Co-defendant 2 in the first instance trial

(A) The judgment of the court below

The court below consistently stated that Co-defendant 2 stated that the defendant, who is the chief manager of the laboratory at the time when the court and the prosecutor's office consistently purchased experimental materials or equipment, to prepare operating funds by using false tax invoices, etc. [No. 1, 4 times trial records, the suspect interrogation protocol (No. 715)], and Non-Indicted 26 also stated that the prosecutor's office made the above purport [No. 5 times trial records (No. 717)], and the defendant also asked Co-defendant 2 of the court of first instance to prepare research team operating funds, and requested the court of first instance to set up research team operating funds, which would naturally mean that he would have received a false tax invoice or transaction statement from the prosecutor, and that he would have received research funds from the non-indicted Co-defendant 1 at the time of such statements to the effect that he could not be seen as having received funds from the defendant's research funds from the non-indicted 2 at the time of the first instance trial without the defendant's instruction, and that he purchased the above research funds from the court of the first instance court.

(B) Judgment of the court below

1) In the case of co-offenders who act in collusion with more than one person, the conspiracy does not require any legal penalty, but is sufficient if there is an implied communication on the joint execution of the crime directly or indirectly between the accomplices, and even if there is no direct evidence, it can be recognized by the circumstantial facts and empirical rules (see Supreme Court Decision 2007Do7625, Feb. 26, 2009).

2) According to the circumstances cited by the lower court, Co-defendant 2 stated that “Defendant 1 would have made it difficult to prepare 50 million won by processing expenses for industrial science classes” (No. 712 (No. 19352 pages). The Defendant also made an investigation into the prosecutor’s office that “Defendant 1 would not have made it necessary to process personnel expenses and travel expenses of the Institute of Industrial Science and Technology,” and that Defendant 1 would not have made it difficult for Co-defendant 2 to prepare operating funds by using Nonindicted Co-Defendant 3’s first instance court’s first instance court’s statement [No. 716 (No. 319381 of investigation records)], and Non-Indicted 1’s statement that Non-Indicted 3 would have received instructions from the prosecutor’s office that Non-Indicted 1 would have received from Non-Indicted 3 for the first time, and Non-Indicted 2 would have received instructions from Non-Indicted 1, 266).”

Based on the above facts acknowledged, it is interpreted that: (a) the defendant requested that the co-defendant 2, a person in charge of purchasing equipment and experimental materials in the research team of the first instance court to raise funds; (b) the defendant's above instruction was made in a situation where the actual equipment and experimental materials are not scheduled to be purchased; and (c) the defendant's meaning of handling expenses in the above instruction is that the defendant's business contents at that time, the defendant's command relationship under the command of co-defendant 2 at the first instance court and the defendant's first instance court co-defendant 2, and evidential documents such as tax invoice or transaction statement are necessary to claim research expenses and prepare funds based on the false evidence; (d) After the defendant's instruction, the institution that the co-defendant 2 applied for research expenses using false evidential documents through Non-indicted 26 was not the co-defendant 2 at the first instance court, but the institution that provided the defendant with false evidence through non-indicted 26, and even if the research expenses were paid immediately thereafter, it appears that the defendant did not receive the defendant's false instruction or evidentiary documents.

3) Furthermore, the co-principal under Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements, such as the implementation of a crime through the functional control of the criminal act by the intent of co-processing and the co-principal. As such, the so-called crime liability as a co-principal depending on whether the person who did not directly share the elements of a crime among the co-principal satisfies the above requirements (see Supreme Court Decision 2010Do3544, Jul. 15, 2010); Defendant 1 research team’s status or role as the highest person in charge of the crime; Defendant’s direction and supervision relationship with the first instance trial co-defendant 2; Defendant’s direction and supervision relation with the purchase of equipment or experimental materials; Defendant’s purpose of use of the money acquired by the Defendant’s co-defendant 2 upon the Defendant’s request for payment of research expenses; immediately, it can be recognized that the Defendant did not directly share the unlawful request for research expenses using false evidential documents and did not directly contribute to the Defendant’s unlawful control of the crime through the whole process.

4) Therefore, the Defendant’s assertion of misunderstanding of facts or misunderstanding of legal principles as to the recognition of co-principals or co-principals is without merit.

C. As to the fraudulentation of government research funds

(1) The judgment of the court below

The lower court determined that, inasmuch as the ○○○○○○○ Research Institute’s △△△ Research Institute’s personnel in charge of the payment of the above research funds (No. 380) has received this part of the research funds by submitting a false tax invoice, detailed statement of transactions, etc. under the presumption that the Defendant properly disbursed the research funds for the purchase of pigs, it is clear that the ○○○○○ Research Institute’s personnel in charge of the payment of the research funds would have paid this part of the research funds, and the government research funds are strictly limited in nature, so if the Defendant knew that the Defendant intended to divert the research funds for other purposes, this part of the research funds would not be paid normally, and in light of the Defendant’s intelligence, academic background, career, etc., this part of the research funds can be confirmed to have been sufficiently recognized, regardless of the Defendant’s assertion on the research funds, and thus, the Defendant could have sufficiently recognized that the research funds of this case were illegal for the purpose of the Defendant’s reproduction and acquisition of the research funds of this case.

(2) Judgment of the court below

(A) As the court below properly states, the government-funded research fund shall not be used for any purpose other than research, and the government-funded research fund shall not be required to be paid by the relevant regulations, and according to the above ○ University Research Expense Management Regulations, a person in charge of research shall prepare a budget for the implementation of research fund as determined by the support institution and submit it to the management institution (Article 5), a person in charge of research shall submit a written request for the payment of research fund to the management institution (Article 8), a person in charge of research shall notify the management institution of the completion of the research fund after the execution of the research fund is completed (Article 8), a person in charge of research shall settle the research fund and submit the written request for the payment of the research fund to the support institution. The balance of the execution fund shall, in principle, be treated with the guidelines of the support institution (Article 12), and the use of the research fund shall be strictly set for the purpose of the support institution, which requires specific evidence in the procedure of the execution, and the settlement procedure and the balance of the execution.

(B) On the basis of the above-mentioned relevant provisions, in full view of the following: (a) acknowledged by the evidence duly adopted and investigated by the lower court based on the details of the research service contract; (b) the process of concluding the research service contract in which the Defendant participated; (b) the process of applying for payment for research funds; (c) the details of necessary documentary evidence; (d) restrictions on the use of research funds and the remaining procedures for the treatment of research funds; and (e) the means and methods of deception used by the Defendant to receive research funds, the Defendant’s act of receiving research funds by submitting false documentary evidence to the ○○○○○ major △△△△△△△ Research Institute, a research fund managing agency, is deemed to constitute fraud (see

(C) Furthermore, even if the Defendant used the research funds received within the extent not beyond the purpose and scope of the research task, if the Defendant’s act of exercising the right by means of deception belongs to the exercise of the right and the act of deception belonging to such means is to the extent that such deception is not acceptable as a means of exercising the right under social norms, the act of exercising the right constitutes fraud (see Supreme Court Decision 2009Do295, Jul. 9, 2009). The Defendant’s act of receiving research funds from the Defendant to the agricultural bank in the name of the agricultural bank in the name of Nonindicted 34 by falsely preparing and submitting a written claim for payment of research funds, along with false estimates, tax invoices, etc. accompanied by evidentiary documents, constitutes fraud, and thus, it constitutes fraud as a means of exercising the right under social norms, and the Defendant’s criminal intent and the intent of unlawful acquisition can be sufficiently recognized (see Supreme Court Decision 2007Do5774, Nov. 30, 207).

Even if the defendant used part of the money acquired by the defendant for the purpose of research related to the above fraud, it is merely the method of use of money acquired by the crime, and it does not affect the establishment of fraud.

(D) Therefore, the defendant's assertion of mistake or misapprehension of legal principles is without merit.

D. As to the violation of bioethics laws

(1) Summary of this part of the judgment of the court below

(A) Whether the elements of the crime are satisfied

1) In addition to any explicit provision that permits the sharing of ova, the Bioethics Act does not include any explicit provision that allows the sharing of ova, and the above provision was established in the legislative process, and even if many foreign legislative cases allow the sharing of ova, the legislative purpose of the above Act is not only to create conditions under which life technology can be developed and used for the prevention and treatment of human diseases, but also to ensure bioethics and safety in biotechnology to prevent infringement of human dignity and value or harm to human body (see Article 1). As long as the above provision comprehensively provides that “the provision of ovum is provided or used for money or property interest or any other consideration,” it cannot be deemed that the legislative intent is to be subject to regulation only where the ovum has been purchased or sold directly, and rather, it is reasonable to interpret that the provision of ovum should be subject to regulation as a whole when the provision of money or any other consideration is provided in relation to the provision or use of ovum in any form, such as the sharing of ovum, etc.

2) Although non-patients who donated ovum in this case had already been reduced or exempted for their own infertility treatment regardless of whether they provided ovum to Defendant 1’s research team, such expenses were reduced or exempted. As such, they obtained pecuniary benefits that are naturally exempted from the cost originally incurred due to the provision of the ovum (in this respect, it cannot be the same as compensating for actual expenses, such as expenses for injection for the extraction of ovum to a pure ovum donor who is irrelevant to the treatment) and the Defendant received ovum under such condition. Accordingly, this part of the Defendant’s act cannot be deemed as a violation of the aforementioned legal provision.

(B) Whether illegality is denied

As seen earlier, the Bioethics and Safety Act is interpreted to comprehensively regulate money, economic benefits, and other consideration in any form, including the sale and purchase of ovum as well as the sharing of ovum. As long as it is interpreted to comprehensively regulate the supply or use of ovum, this part of the Defendant’s act is deemed unlawful as a matter of principle. The Defendant’s act is nothing more than that of providing ovum for scientific research purposes, and the benefits of property provided to non-born patients are nothing more than the actual cost required for the extraction of ovum. The economic benefits of this case are to contribute to the activation of the grant of ovum for research purposes and ultimately the development of science. However, in this case, the requirements of urgency and supplement necessary for the establishment of a legitimate act that does not violate social rules are not satisfied. Thus, it is difficult to deem that the Defendant’s act in this part solely on the grounds of the Defendant’s assertion constitutes an act that can be acceptable in light of social ethics or social norms.

(C) Whether it constitutes a mistake in law

In relation to the sharing of ovum in this case, the Defendant only provided consultation to Nonindicted 35, who is employed as professor of the same university like the same field, and does not seem to have been trusted because the contents of consultation and answers thereto are specific and detailed. In addition, even if Nonindicted 35 had expressed an opinion that the ownership of ovum in this case is legitimate, it is not an official opinion of the competent agency, but it is only a personal opinion. In addition, it is difficult to view that there was no circumstance to deem that there was a legitimate reason for the Defendant to believe that the act in this case was lawful solely based on the above circumstances, such as the Plaintiff’s artificial intelligence, academic background, experience, etc., by the resolution of the Committee at the International RB hospital of the same university like the same case, or that there was no other circumstance to deem that the Defendants had been confirmed to the competent supervisory agency that the ownership of ovum in this case was legitimate.

(2) Judgment of the court below

(A) As to theity of the constituent elements

1) As to the assertion on the scope of the prohibition provision

A) Summary of the assertion

The prohibition of commercial transactions of ovums shall apply only to artificial insemination embryos in light of the systematic position of the Act, and shall not apply to somatic cell cloning embryos.

B) Determination

Article 13(3) of the Bioethics Act provides that “no person shall provide, use, induce, or mediate sperm or ovum on condition of money or property interest or any other consideration.” The prohibition provision is located in Article 13(3) of the Bioethics Act, which provides that “the creation and research of embryos, etc.” is subject to Article 2 of the Bioethics Act among “the creation and research of embryos, etc.” under Chapter 3 of the aforementioned Act.

However, in Chapter III of the above Act, the provision prohibiting somatic-cell nuclear transplantation other than a certain research purpose is being added to the following section of the same Chapter. Since an ovum is conceptually related to artificial insemination embryos, the above prohibition provision was deemed to have been stipulated in Chapter III Section 2 of the above Act. The above prohibition provision does not distinguish the subject of the act such as the provision of the sperm or ovum, but does not distinguish the specific purpose or intent of the provision, and the contents of the consideration such as provision are generally prescribed in the form of prohibiting the act. In light of the above provision of the Act, it is difficult to view that the location of the legislative proposal, such as the above prohibition provision, without providing the general provision, was not included in the above prohibition provision, and the legislative proposal, including the above prohibition provision, was not included in the scope of application of the above prohibition provision, but in the return for the use of ovum for the purpose of creating artificial insemination embryos, it is difficult to view that the legislative amendment of Article 16 Paragraph 16 of the above Act was made differently from the legislative amendment of the Act (Article 16 Paragraph 16 of the above Act).

2) As to the assertion of violation of the general principles under the Constitution

A) Summary of the assertion

The purpose of the above prohibition provision is not only to directly sell and sell ova, but also to comprehensively regulate money, economic benefits, and other consideration in any form such as the sharing or use of ovum, when it is provided, it goes against the principle of excessive prohibition, the principle of systematic legitimacy, and the principle of clarity under the Constitution.

B) Determination

As the court below also states properly, the above prohibition provision is separate from pure donation of ovum that does not provide any consideration as well as the direct purchase and sale of ovum and the sharing of ovum that provides any consideration. Thus, it cannot be deemed that criminal punishment has been interpreted or expanded without permission in violation of the principle of no punishment without the law, and even though it is desirable to exclude the sharing of ovum at a reasonable level from the subject of criminal punishment, since the use of ovum has a direct relation with human life and dignity and value, it inevitably causes ethical problems, and therefore, it should be determined to a certain degree of regulation to a broad discretion of legislators as a matter of legislative policy. Thus, it cannot be viewed as contrary to the principle of no punishment without the law.

In addition, Article 37(1) of the Organ Transplant Act provides that expenses incurred in collecting and transplanting organs, etc. shall be borne by a transplant recipient of the relevant organs, etc., while the Bioethics Act does not provide for the expenses incurred in collecting ova. However, there is a significant degree of harm to the donor's physical integrity with the nature that it is impossible to replace the organs, such as kidy, livers, extractings, waste, balones, and so on, under Article 3 subparag. 1 of the Bioethics Act, and there is a high possibility that the ovum will be placed at a disadvantage of commercial transactions compared to the above organs, and thus, there is a difference in the characteristics of the regulation subject to regulation, such as that the scope of application of the provisions on prohibition of trading ovum under the Bioethics Act or the subject thereof should be interpreted to be applied by analogy the relevant provisions under the Bioethics Act or that it does not violate the constitutional principle of legitimacy.

Furthermore, even if the elements of the punishment law are somewhat broad and used to a certain extent the supplementary interpretation of a judge is required, it cannot be deemed to violate the principle of clarity of the punishment law required by the Constitution. The meaning and contents of the prohibition provision can clearly grasp when based on ordinary people's understanding and judgment with the ability to discern things, and therefore, it is sufficient to clarify it as a punishment provision. Therefore, it cannot be deemed to violate the principle of clarity of the punishment law ( even if the Bioethics Act was partially revised only on June 5, 2008 and it was prepared for the provision of compensation for actual expenses to an ovum provider in Article 15-4, such circumstance alone does not violate the principle of clarity).

3) Whether the use of ovum is subject to consideration

A) The Bioethics Act was proposed by the Health and Welfare Committee of the National Assembly as part of efforts to create social ethics and to establish norms through the urgent legislation in the situation where the act of damaging human dignity, such as various gene tests and sperm and the sale and purchase of ovum, has been openly conducted (Article 774(Article 774 of the Bioethics Act). The purpose of the Act is to secure bioethics in biotechnology and prevent infringement of human dignity and value (Article 1 of the Bioethics Act). Thus, in order to achieve the above legislative purpose, the provision of ovum for the development of biotechnology is required not to be supported by the economic motive of the provider, but to ensure that the provision of ovum is carried out as a means for securing such goals.

B) As the court below properly explained, ① in the case of a pure ovum donor who is irrelevant to infertility treatment, the cost of ovum extraction is incurred only by the decision of the doctor's intention to provide ovum, whereas, regardless of whether or not the doctor's decision to provide ovum delivery was originally planned to pay for expenses for infertility treatment, so there are normative inherent differences in the cause or nature of each cost. ② Reduction of or exemption from the cost is highly likely to violate the legislative purpose of the Bioethics Act to ensure bioethics and prevent infringement of human dignity and value. In light of the unique characteristics of the ovum reproductive each month until the end-of-life competition, it is difficult to interpret that it is included in a comprehensive consideration as stipulated in the above legal provision. ③ In light of the unique characteristics of the ovum reproductiveed each month by a pregnant woman, it is difficult for the patient to be informed of the risk of giving the above pro rata ovum treatment without prudent's prudent's decision to increase the cost and risk of giving the ovum's profit to the patient.

C) Therefore, the donor of an ovum in this part of the facts charged obtained pecuniary benefits from the provision of ovum as a matter of course to exempt some of the expenses incurred in the provision of ovum, and the Defendant received ovum on the condition that such pecuniary benefits were provided. Thus, the Defendant’s act constitutes a violation of the foregoing statutory provision.

(B) As to the existence of grounds for excluding illegality

Examining the judgment of the court below that this part of the defendant's act cannot constitute a justifiable act that does not violate the social norms, the judgment of the court below is just and there is no error in the misapprehension of legal principles as to the scope of establishment of a justifiable act.

(C) As to whether the law constitutes an error

1) Article 16 of the Criminal Act provides that "the act of a misunderstanding that one's own act does not constitute a crime under the Acts and subordinate statutes shall not be punishable only when there is a justifiable ground for misunderstanding." Whether there exists a justifiable reason should be determined depending on whether the act was not aware of illegality of his own act as a result of failure to perform his/her duty, although there was a possibility that one's own act could have been aware of illegality if he/she had done so with his/her intellectual ability and made a serious effort to avoid it. The degree of effort necessary for recognizing illegality should be determined differently according to the detailed situation of the act, individual's awareness ability, and social group to which the actor belongs (see Supreme Court Decision 2007Do1915, Dec. 24, 2009).

2) As properly explained by the lower court, there is no circumstance to deem that the Committee’s resolution passed the Committee’s resolution to the effect that the ownership of the instant ovum was lawful, or that the Defendant was confirmed to be lawful to inquire of the competent supervisory authority as to the legitimacy of the sharing of the ovum. Non-Indicted 35 of the Law School of the same kind, a legal expert, who verified the legality of the sharing of ovum, denies the fact that the Defendant had provided the Defendant with advice on the compensation for ovum (No. 809 (No. 28015 pages of investigation records, and bound to the trial records) at the time of the trial, and Nonindicted 35 of the Law School of the same kind, a legal expert, at the prosecutor’s office, did not deny the fact that the Defendant had provided the Defendant with advice on the compensation for ovum (no. 28015 pages of investigation records, and bound to the trial records of the political party) while attending the Committee’s meetings on January 17, 2005). Therefore, it is difficult to view the Defendant’s act of offering pure opinion to the same purport.

3. Judgment on the prosecutor's assertion of mistake or misapprehension of legal principles

(a) Degree of proof of the prosecutor's manipulation of thesis;

(1) In the area of scientific determination, where the author of the thesis bears the responsibility to prove that its content is true, and the author of the thesis is not able to prove this, and there is a lack or doubt that the research material, which served as the basis for the thesis, is insufficient or fabricated, there may be disadvantages, such as withdrawal from the academic community, depending on the degree of the cancellation or the degree of the thesis's operation.

On the other hand, since it becomes the basis for follow-up research by other researchers after being published in the date of a scientific thesis with important meaning in the development of science, it is common that subsequent researchers follow-up procedures for re-performance and verification of the contents of the experiment of the scientific thesis. Even though the authenticity of the thesis is doubtful by such follow-up research, if the author of the thesis is unable to actively prove the authenticity of the thesis, it would be able to recognize its usefulness as part of self-determination action by the academic community.

(2) However, the issue of whether the manipulation in the thesis can be evaluated as an act constituting the constituent elements of a crime belongs to the category of judicial judgment, and our Constitution adopts the principle of presumption of innocence (Article 27(4) of the Constitution) along with the principle of no crime without the law in order to guarantee the fundamental rights of the people in the area of criminal law. In accordance with the principle of trial of evidence adopted by the Criminal Procedure Act as a means of securing the specific effectiveness (Article 307 of the Criminal Procedure Act), the prosecutor bears the burden of proving the facts charged in the indictment, and the recognition of guilt must be based on evidence with probative value sufficient to prove that the facts charged are true to the extent that there is no reasonable doubt by the judge, and if there is no such evidence, even if there is no suspicion of guilt against the defendant, the interest

Moreover, in the most advanced scientific field, it is difficult to determine the scientific truth itself because of the limited perception ability of human beings or the level of development of science and technology in that era, and it is difficult to adopt the logic of the same as the purification action of the previous academic community prior to the disadvantage caused by the difficulty in determining the truth, imposing on the defendant by adopting the same logic as that of the previous academic community prior to the disadvantage caused by the difficulty in determining the truth, and thus, it is difficult to permit it as it

B. As to the assertion of mistake of facts regarding the manipulation of thesis in 2004

(1) The part concerning the operation of DNA fingerprint analysis tests

(A) Summary of the facts charged

In May 203, 2003, the Defendant received a report from Nonindicted 12 that he failed to collect DNA samples in the process of extracting DNA analysis samples from the bed of the stem cell, and first, without the DNA-1 stem cell gene analysis samples, Nonindicted 36 (actual ovum and body cell provider) known to the above stem cell as the ovum and body cell provider, sent the DNA analysis samples extracted from the body cells of Nonindicted 37) to Nonindicted 36 to request the analysis of DNA fingerprints by sending them to Nonindicted 5, and accordingly, Nonindicted 12 sent the Defendant’s instructions to Nonindicted 3, the first instance court, Nonindicted 5, Nonindicted 36’s gene analysis samples extracted from the body cells of Nonindicted 36, and then sent them to Nonindicted 3, Nonindicted 4, Nonindicted 5, Nonindicted 2, Nonindicted 2, and the head of the National Investigation Research Institute, Nonindicted 3, 208, the DNA analysis institute’s e-mail analysis by dividing them into NT-1 stem cells and cell cells, and then sent them to Nonindicted 36, Defendant 2, 5.

(B) Summary of this part of the judgment of the court below

After finding the facts as indicated in its reasoning, the lower court determined that Co-Defendant 5 and Non-Defendant 12 were in charge of Nonindicted 2’s first instance court’s order to manipulate 1 and Non-Indicted 3’s first instance court and Non-Indicted 12’s first instance court’s order to discover that Non-Indicted 1 and Non-Indicted 5 were in fact non-Indicted 1 and Non-Indicted 2’s order to destroy evidence during the investigation process, and that Non-Indicted 1 and Non-Indicted 2 were in charge of destruction of evidence, such as Non-Indicted 5’s first instance court’s order to remove Non-Indicted 1 and Non-Indicted 3’s first order to destroy evidence during the investigation process, and that Non-Indicted 1 and Non-Indicted 2 were in charge of destruction of evidence, such as Non-Indicted 1 and Non-Indicted 12’s first order to exclude non-Indicted 3’s first order to destroy DNA cells, and that Non-Indicted 5 and Non-Indicted 12 were in fact responsible during the investigation process.

(C) Judgment of the court below

원심이 적절하게 설시하고 있는 여러 가지 사정에다가, 원심 및 당심이 적법하게 채택하여 조사한 증거들을 종합하여 인정되는 다음과 같은 사정, 즉 ① 2003년 5월 초순경 DNA 지문분석 검사가 나온 이후, ◇◇◇◇가 선임한 공소외 38에 의하여 2003. 8. 22. 및 2003. 8. 23. 비관련자 주3) 검사 가 12개의 시료에 대하여 시행되었고, 그 비관련 공여자의 혈액은 ◇◇◇◇에서 준비되었으며 DNA를 추출한 후 연휴 기간 중에 제1심 공동피고인 5에 의하여 공소외 38에게 직접 전달되었는데, 그 검사시료에는 실제 공여자로 오인되었던 공소외 36의 시료는 포함되어 있지 않았는바(증가제84호증의5), 원래 비관련자 검사는 그 개념상 실험대상에 NT-1을 포함시키지 않고 비관련자의 시료만을 제공하여 종전 실험의 오류 가능성을 검증하는 것이긴 하나, 사이언스지에 논문을 투고하였다가 보완을 요구하는 심사평에 따라 실시된 위 2003. 8. 23. 비관련자 검사 당시에는 네이처(Nature)지로부터 논문투고가 이미 거절되었고 NT-1의 상태가 호전되어 시료가 충분한 상황이었으며 사이언스지로부터 비관련자 검사와 함께 테라토마 실험을 요구받았으므로 상당한 시일이 걸리는 테라토마 실험의 특성상 충분한 시간적 여유가 있었다고 할 것인데, 피고인이 2003년 5월 초순경의 최초 DNA 지문분석 검사를 공소외 36의 혈액을 나누어 담아 의뢰하는 방법으로 조작을 지시하였다면, 피고인으로서는 비관련자 검사를 실시할 실질적인 의미나 효용성이 전혀 없다는 것을 알고 있었다고 보이는데도, 최초 DNA 지문분석 검사 이후 DNA 지문분석에 관해서는 실질적으로 처음 실시하는 비관련자 검사에서 NT-1의 시료를 그 대상으로 포함시켜 실험을 의뢰하지 아니하고 비관련자들에 대한 시료만으로 실험을 의뢰한 점, ② 제1심 공동피고인 5는 미국에 체류하던 중 공소외 40과의 전화통화에서 피고인을 호칭하면서 욕설을 하는 등 피고인에 대한 감정이 극도로 나빠진 상황에서[증제346호(수사기록 13권 9371-9372쪽)], 피고인이 자신에 대하여 검찰에 수사를 요청한 이후인 2005. 12. 24. 미국에서 귀국한 후, 2005. 12. 27. ○○대조사위의 조사를 받으면서 조사위원으로부터 논문조작에 관하여 피고인이 조작지시를 한 부분을 정리해달라는 요청을 받고 “2005년 Science 논문 Data 조작에 관한 지시사항”이라는 문서를 작성하였는데, 그 문서의 내용에 ‘DNA 지문분석과 HLA(면역적합성) typing 등에 대한 시료 공급과 분석에 관해서는 직접 지시를 받지는 않았으나 제1심 공동피고인 3 교수로부터 진행사항에 대해 보고받았을 것으로 생각됩니다.’라고 기술하였는바[증인 제1심 공동피고인 5의 원심 법정진술(공판기록 4676-4677쪽), 증제346호(수사기록 40권 9450-9452쪽)], 피고인이 줄기세포의 검증에 있어서 기초가 되는 DNA 지문분석에 관하여 조작을 지시하였다면, 제1심 공동피고인 5로서는 당연히 자신의 책임을 모면하기 위하여 그 지시사실을 기재하였을 것으로 보이는 데도 제1심 공동피고인 5는 위 문서를 작성하면서 2004년 논문의 DNA 지문분석에 관한 조작 지시는 물론 2005년 논문의 DNA 지문분석에 관한 조작 지시에 대해서도 별다른 언급을 하지 않은 점, ③ 공소외 36은 2002년경 가출하여 휴대전화번호도 자주 바꾸는 등으로 이 사건 DNA 지문분석 검사 당시에는 연락이 되지 않는 상태이었는데, 난자제공 당시 건강검진을 받으면서 혈액을 채취하였으나 그 후 피고인에게 따로 혈액을 기증하지는 않았다고 진술하고 있고[증제17호(수사기록 1권 471쪽)], 피고인은 2003년 4-5월경 이 사건 DNA 지문분석 검사를 위하여 2003. 2. 3. 난자를 기증한 공소외 36의 소재를 파악하려고 하였는데[증인 공소외 41의 원심 법정진술, 증제29호(수사기록 1권 700쪽)], 피고인이 이와 같이 DNA 지문분석 검사를 위하여 난자기증자로 오인한 공소외 36의 소재를 파악하려고 한 이유는 ○○대 연구실에서 체세포 시료 채취를 위한 혈액을 보관하지 않았기 때문이라고 보이고, 피고인의 요청으로 공소외 12와 제1심 공동피고인 5가 피고인 2를 찾아가 ◇◇◇◇의 냉동고에 보관되어 있던 공소외 36의 혈액을 가져온 점[증제72호(수사기록 2권 1479-1482쪽)]에 비추어 보면 그 당시는 NT-1 핵이식이 최초로 성공한 초기 단계이기 때문에 줄기세포 수립을 위한 검증실험의 사전준비나 진행절차가 확립되어 있지 아니하여 피고인으로서는 세포배양과 검증실험에 관해서는 전적으로 ◇◇◇◇의 공소외 12 등에게 의존하고 있었다고 보이는 점, ④ 피고인은 공소외 12가 공소외 14 교수가 재직하던 미국 ◐◐◐◐대학에 유학을 간 후 미국 출장길에 ◐◐◐◐대학에도 NT-1을 분양하려고 하였으나, 공소외 14 교수가 ◐◐◐◐가 속한 펜실베니아주에서는 인간복제가 금지되어 있다며 피고인에게 직접 전화하여 NT-1을 가지고 오지 말라고 하여 피고인이 인천공항에까지 가지고 갔던 셀(cell)을 ○○대 연구소로 되돌려 보낸 점[증제29호(수사기록 1권 733쪽)] 등을 아울러 종합하여 보면, 공소외 12 및 제1심 공동피고인 5의 진술 번복 경위, 이 사건 DNA 지문분석 검사 당시 피고인의 ◇◇◇◇ 측에 대한 의존의 정도, 이 사건 DNA 지문분석 검사 및 이후의 피고인과 공소외 12와의 대화 내용, 국내외 연구소에 NT-1을 광범위하게 분양하는 등 DNA 지문분석 검사 이후 피고인이 취한 행동이나 태도, 피고인의 조작 동기의 의문점, NT-1에 대하여 그 후 실시된 DNA 및 핵형검사 과정과 제1심 공동피고인 5의 조작행위의 경위나 그 반복성 등에 비추어, 합리적 의심의 여지없이 피고인이 공소사실 기재와 같이 공소외 12, 제1심 공동피고인 5에게 NT-1의 DNA 검사시 체세포 시료를 나누어 보내는 방법으로 위 검사를 조작하도록 지시하였다거나, 그와 같은 조작사실을 알고 있었다고 인정하기에 부족하고, 달리 이를 인정할 충분한 증거가 없다는 취지의 원심 판단은 정당하다.

(2) Part of the RT-PC test operation

(A) Summary of the facts charged

The NA-1's NA-1's KT-1's KT-1's KT-1's KT-1's KT-3's KT-1's KT-1's KT-1's KT-1's KT-3's KT-1's KT-1's KT-1's KT-1's KT-1's KT-1's KT-3's KT-1's KT-1's KT-1's KT2's KM 3's KT-1's KT2's KM 1's KT-1's KT2's KM 3's KT-1's KT2's KM 0's KO-1's KM 203's KOT2's KM's K-1's KM-3's KM-1's KM-3's KM-1's KM-1's KM.

(B) Summary of this part of the judgment of the court below

After recognizing the facts as indicated in its reasoning, the lower court found that Nonindicted 3’s non-indicted 1’s non-indicted 4’s non-indicted 1’s non-indicted 3’s non-indicted 1’s non-indicted 3’s non-indicted 1’s non-indicted 3’s non-indicted 1’s non-indicted 3’s non-indicted 1’s non-indicted 1’s non-indicted 3’s non-indicted 1’s non-indicted 3’s non-indicted 3’s non-indicted 1’s non-indicted 4’s non-indicted 3’s non-indicted 1’s non-indicted 1’s non-indicted 3’s non-indicted-1’s non-indicted-1’s non-indicted 3’s non-indicted-1’s non-indicted-1’s non-indicted-1’s non-indicted 3’s non-indicted 3’s non-indicted-1’s non-indicted 3’s non-indicted 3-N-1’s non-1’s non-N.

(C) Judgment of the court below

이 사건 공소사실의 핵심은 인간난자에 핵이식을 한 배아 중 분열과정에서 배반포까지 성장하지 못한 것을 모아서 이를 대상으로 RT-PCR 검사를 하였다는 것이고, 그 사실의 기초가 되는 정황은, 공소외 43은 제1심 공동피고인 3이 2003년 9월~10월 말경 자신에게 RT-PCR 검사 조건이 잘 잡히지 않는데 발달 정지된 핵이식 배아로 조건을 한번 잡아 보겠다는 취지로 이야기를 하면서 동결 배아를 모아 달라고 하여 자신이 공소외 13에게 이를 건네주었다고 진술하고 있는 점 및 공소외 13이 제1심 공동피고인 3에게 검사결과를 송부하면서 검사표에 검체를 ‘hNT-BL'이라고 표시하였고, 공소외 43이 공소외 14와 공소외 42에게 NT-1에 대하여 브리핑을 하려고 작성하였다는 ○○대 비밀문서에 RT-PCR 검사에 대하여 ‘hNTBL'이라고 표기한 반면, 2004년 논문에서는 이를 ‘SCNT-hES-1'으로 수정되어 있다는 점인바, 원심이 적절하게 설시하고 있는 여러 가지 사정에다가, 원심이 적법하게 채택하여 조사한 증거들을 종합하여 인정되는 다음과 같은 사정, 즉 ① RT-PCR 검사는 특정검체에서 부계, 모계의 각인유전자 중 어떤 각인유전자가 발현되었는지의 여부를 추적함으로써 생식기전을 입증하려는 검사로서 유전자 지문분석 검사와는 달리 동일성(Identity) 자체를 검증하는 검사가 아니므로, 검사결과 어떤 각인 유전자가 발현되었느냐의 여부를 알 수 있을 뿐, 사후에 어떤 검사결과가 어떤 검체로부터 도출된 것인지를 직접 규명할 수는 없고, 필요하다면 해당 검체에 대하여 다시 검사를 하여 동일한 검사결과가 나오는지를 검증해 볼 수밖에 없는 것인데, 누구든지 사람의 체세포를 검체로 하여 실험을 수행하기만 하면 실험자는 언제든지 부계·모계 각인유전자가 모두 발현하는 동일한 결과를 원하는 대로 얻을 수 있음에도, 피고인이 분열과정에서 배반포까지 성장하지 못한 것을 모아서 RT-PCR 검사를 하도록 지시하였다고는 경험칙상 납득하기 어려운 점[증인 공소외 13의 원심 법정진술(공판기록 4775-4777쪽), 증제32호(수사기록 34권 806쪽)], ② RT-PCR 검사를 주관한 제1심 공동피고인 3은 ‘피고인은 RT-PCR 검사에 대하여 잘 모르시기 때문에 검사결과지를 보여주지는 않았고, 검사결과만 부계유전자가 발현되었다는 취지로 구두로만 보고를 하였습니다.’라고 진술하여 피고인의 지시에 의한 검사조작 사실을 부인하였고[증제193호(수사기록 36권 3944쪽)], 수사과정에서 피고인과 적대적인 관계에 있던 공소외 43도 ‘제1심 공동피고인 3의 지도 아래 공소외 13이 RT-PCR 검사를 담당하였다’고 진술하여 위 제1심 공동피고인 3의 진술 내용에 일부 부합하는 점[증제62호(수사기록 2권 1331쪽)], ③ RT-PCR 검사를 직접 담당한 공소외 13의 검찰 진술도 "사진과 결과지에 모두 'BL'로 기재되어 있는 것을 보면 배반포로 실험을 하였을 것 같으나, 핵이식된 배반포의 양이 적기 때문에 실험용으로 받았을 가능성이 희박하고, ‘BL'을 시료로 받은 기억이 전혀 나지 않는다.“는 취지일 뿐이므로 RT-PCR 검사의 시료로 동결 배아가 사용되었다고 단정하기는 어려운 점[증인 공소외 13의 원심 법정진술(공판기록 4758-4759쪽), 증제102호(수사기록 36권 2026-2039쪽)], ④ 동물의 배반포에 대한 실험을 주로 담당하여 왔던 공소외 13이 제1심 공동피고인 3에게 검사결과를 송부하면서 검사표에 검체를 ‘hNT-BL'이라고 표시한 것은 이른바 검사 의뢰방법으로 통용되는 Blind 주4) Test 의 특성에 기인하였을 가능성이 있고, SCNT(Somatic Cell Nuclear Transfer, 체세포 핵이식 줄기세포)라는 용어는 2004년도 논문을 게재하면서 비로소 그 특성을 표현하기 위하여 사용되었을 뿐 그 이전인 RT-PCR 검사를 시행할 때는 그러한 용어를 사용하지는 않았다고 보이는 점 등을 아울러 종합하여 보면, 앞서 본 정황사실만으로는 합리적 의심의 여지없이 피고인이 공소사실 기재와 같이 동결 배아를 이용하여 RT-PCR 검사를 한 후 이를 논문에 사용하기로 마음먹고, 공소외 43 및 공소외 13, 제1심 공동피고인 3에게 지시하여 동결 배아에 대한 RT-PCR 검사결과를 NT-1에 대한 검사결과인 것처럼 2004년 논문에 게재하였다거나, 그러한 사정을 알고 있었다고 인정하기 어렵다는 원심의 판단은 정당하다.

(3) The part concerning the operation of immunodeficiency photographs

(A) Summary of the facts charged

2004년 1월경 피고인 및 제1심 공동피고인 3은 공소외 12가 ◇◇◇◇ 연구소에서 미리 편집하여 보낸 논문상의 그림2의 면역염색사진을 가지고 미국 ◐◐◐◐대학 공소외 14 교수 연구실에 가서 그와 함께 검토한 다음 전화로 공소외 12에게 “음성대조군(Negative control)중 SSEA-1 면역염색사진인 D 부분의 사진에 줄기세포가 2개 나타나고 해상도가 좋지 않다. NT-1이 아닌 다른 줄기세포의 사진이라도 괜찮으니 좋은 사진으로 보내달라.”고 지시하고, 이에 따라 공소외 12는 ◇◇◇◇ 연구소에서 수립한 수정란 줄기세포의 SSEA-1 면역염색사진 중에서 해상도가 좋은 사진을 골라 이메일로 제1심 공동피고인 3에게 송부하고, 제1심 공동피고인 3은 이를 다시 원래의 SSEA-1 면역염색사진과 교체한 다음 사이언스 편집인에게 송부하여 2004년도 사이언스 논문 그림2의 D 부분(사이언스 논문 vol. 303 중 제1671쪽)에 허위 게재되게 하였다.

(B) Summary of this part of the judgment of the court below

After finding the facts as stated in its reasoning, the lower court determined that the Defendant’s act of using non-NT-1 cells as a voice group in 2004, although it appears that the Defendant knew that other stem cells than NT-1 were used as a result of the deficiency test of the thesis in 2004 paper, ① the role of the voice group in the immunity color test is to compare the result when he did not process the primary resistance that is combined with the co-defendants, and thus, he did not cause immunity, with the NT-1 immuno-1 as he did not have any relation with the authenticity of the above test result. Thus, the lower court determined that it was difficult to readily conclude that the Defendant did not know that there was any problem in the process of using non-indicted 1’s cell cells as a voice group, even if he did not directly operate this part, even if he did not know that there was any possibility to view it as the direct operation of this paper.

(C) Judgment of the court below

Examining the lower court’s fact-finding and judgment in comparison with the records, the lower court’s determination that this part of the photograph replacement in light of the function or role of the voice large group is justifiable, and it is not erroneous in the misapprehension of facts or in the misapprehension of legal doctrine, thereby adversely affecting the conclusion of the judgment.

(4) The theory of lawsuit

Therefore, the prosecutor's argument of misconception of facts about the contents and scope of the thesis operation is without merit.

C. Determination on the establishment of fraud

(1) Determination of objective facts related to the manipulation of thesis and the defendant's awareness

Fraud is an intentional crime that requires intentional intent as a subjective element of a crime, and if the perception of a criminal defendant is different from objective facts by an act of a third party, it should be determined whether a deceptive act can be recognized based on the circumstances recognized at the time, regardless of objective facts at the time of the act according to the principle of self-responsibility and whether the criminal intent can be inferred.

Therefore, as of September 2005 when the defendant subsidized research funds from Nonindicted Co. 5 and Nonghyup Co. 5 and as of September 2005, the establishment of the stem cell in the paper of 2004 and the paper of 2005 for the convenience of judgment, objective facts about the authenticity of the experimental data, and the recognition of the defendant that is normatively confirmed by the principle of trial by evidence in the criminal trial is as listed in the following table.

[This paper of 2004]

(NT-1: A stem cell line is in existence, but there is controversy as to whether they are reproductive or not)

Around May 2003, the Defendant cannot be readily deemed to have conducted RT-PCR tests with an embryo, other than NT-1, which is not NT-1, even if it is unclear whether the result of the DNA fingerprint analysis conducted normally as if the NT-1 was fabricated or not, the Defendant did not have any significant effect on the Defendant’s photograph operation of the NT-1, even though the Defendant was aware that the NT-1 had no instruction or knowledge of the 6th anniversary of the fact that the NT-1 was normally carried out by the R-PCR test, as a result of the analysis of the NT-1’s fingerprint operation, since the Defendant was aware that the 6th anniversary of the fact that the NEA-1 was normally carried out by the RTR test, the Defendant did not have any significant effect on the 4th anniversary of the fact that the NEN-1 was found to have been aware of the fact that the NEN-1 had no effect on the results of the DNA operation of the NE-1, an embryo operation of the photograph.

[This paper in 2005]

(NT-2 through 12: Co-defendant 5 of the first instance court does not exist as a stem cell line because it was mixed or has not been actually established)

The Defendant, even though he/she was aware that the Defendant was involved in the 1st △△-4 embryo composition test of △△△△-1, he/she was found to have been mixed with 5th △△△△-2 and △△-3 stem cell line, even though he/she was found to have been found to have been established as a 6th △△△-1, he/she was found to not have been found to have been found to have been found to have been found to have been to have been responsible for the 1st △△△-5th △△△-4, even if he/she was found to have been found to have been found to have been found to have been found to have been responsible for the 1st △△△-5th △△△-4, while he/she was found to have been found to have been found to have been aware of the 6th △-4, NAN-4, and were found to have been found to have been found to have been found to have been found to have been found to have been 7-4 or to have been found.

(2) Whether there exists a criminal intent to commit deception or fraud against Nonindicted Co. 5 and a causal relationship

(A) Part concerning the manipulation of thesis

1) The deception as a requirement for fraud refers to any affirmative or passive act that widely assumes the fiduciary duty and sincerity to each other in the transactional relationship. It does not necessarily mean any important part of a juristic act. It is sufficient if it is the basic fact of a judgment that makes an actor take property disposal act desired for the other party by omitting the other party into mistake. Whether a certain act constitutes deception that causes a mistake to another person should be determined generally and objectively, by taking into account the transactional situation, the other party's knowledge, experience, occupation, and other specific circumstances at the time of the act (see Supreme Court Decision 2009Do7459, Oct. 15, 2009). Meanwhile, the deception of fraud is made as a means of deception or gain, and thus, it has the character of an act that causes the other party to make a dispositive act of the defrauded. Even if the other party was omitted, if the other party did not have made the other party take property disposal act based on such mistake, the act cannot be evaluated as a deception of fraud.

2) Based on the above Defendant’s perception, we examine whether the Defendant’s manipulation in the thesis constitutes deception.

A) First of all, in the case of a thesis in 2004, the defendant did not obtain the results of the DNA fingerprint analysis at the time of the submission of the above thesis, and changed the results of the DNA fingerprint analysis of NT-1 embryo as a result of NT-1 DNA fingerprint analysis of the NT-1 DNA, and operated the revised Dozma photograph of the stem cell line to be NT-1 as if the defendant had no clear evidence to acknowledge the credibility of the defendant involved in the DNA stem cell analysis as long as there was no clear evidence to acknowledge that the defendant engaged in the DNA experiment, which is the core research institute of the NT-1, after NT-1 was established, for the verification after the establishment of NT-1.

B) Next, in the case of the 2005 thesis, the remainder except NT-9, and 12 out of 11 stem cell line (NT-2 through 12), were mixed with co-defendant 5 in the first instance trial, and the NT-13 (colation on March 9, 2005), NT-14, and 4 + (each call is formed around April 22, 2005) were also established, the examination results of the first instance trial mixed with co-defendant 5 in order to find that there were no specific stem cell line as a result of the examination of the 205 thesis. However, the defendant had never been aware of the above crime by Co-defendant 5 in the first instance trial (the defendant also raised a public prosecution on the premise that the examination was conducted), each of the 2005 and new NT-14, as the result of the examination of the examination of the 205 paper.

C) Comprehensively taking account of the Defendant’s perception as above, even if the Defendant fabricated various data in part of the verification experiments, the NT-1 believed that the NT-1 was the stem cell line, and at least NT-2 and 3 was the patient-specific stem cell line in light of the scope and degree of the verification experiments in which the Defendant participated in the operation.

3) In addition, it is difficult to deem that the act of manipulating various data in part of the verification experiment itself, while the defendant is aware that the stem cell line owner was established, was committed as a means of acquiring property or pecuniary gain. Therefore, it is difficult to deem that the manipulation of the thesis itself is a deception as an act of fraud, in which the act of manipulating the research paper itself is conducted to believe the outcome of the thesis and to support the research fund.

4) Therefore, in full view of the Defendant’s perception as to whether stem cell lines are established that can be seen as the essential part of each of the above papers, the Defendant’s filing time of each of the above papers, the preparation time and interval of the time of consultation on the support of research support with Nonindicted Co. 5, and the circumstances leading up to the conclusion of the support agreement with Nonindicted Co. 5, etc., it is difficult to view that the Defendant operated the thesis as if there were such scientific outcomes, even though the Defendant had no stem cell lines established at all.

(B) Part of the media interview and lectures

1) As the court below properly states, the part mentioned the defendant's outlook for the treatment, etc. of incurable diseases in accordance with the stem cell research among the defendant's personal interview or lectures stated in the facts charged of this case is revealed in the defendant's personal outlook or judgment, and even if the defendant has partially exaggeratedly announced it, in the paper of 2005, "the patient's customized stem cell in this research is expected to understand the progress of disease and to lead to drug production. Of course, as long as the stem cell using the patient's cells is not complete, it cannot be used for transplant treatment immediately because it is not complete. In addition, the biological characteristics of the patient's customized somatic cell stem cell derived from the patient's cell before the cell is used in clinical, it should be established in a reliable way, and it should not be easily ruled out the reliable decentralization cell and potential pathogens, and it should be clearly explained that the defendant's specific research needs to be applied to the stem cell of this case's stem cell in light of its limitations and its limitations, etc. < Amended by Presidential Decree No. 2075 years, Dec. 25, 2019, 3>

2) In addition, it is difficult to view that the Defendant’s act of manipulating various data of the verification experiment, but the act of referring to the prospect for the treatment, etc. of incurable diseases following the stem cell research, among the contents of the interview or lectures, was itself a means of acquiring property or pecuniary gain. In addition, considering the fact that it is difficult to evaluate that the act of interview or lectures in the press itself is an act of fraud that makes the potential victim who wants to believe the outcome of the thesis and to contribute to the research fund, and that it is difficult to say that it is an act of fraud that is an act of making the potential victim to engage in property disposal, even though the Defendant neglected the possibility of commercialization of stem cell research through an interview or lectures, it is difficult to view that it constitutes a separate deception in relation to Nonindicted Co. 5

(C) The portion of deception in the process of entering into a sponsor agreement

1) Whether there exists a positive deception

A) The prosecutor asserts to the effect that the Defendant was issued KRW 1 billion from Nonindicted Co. 5 for research funds by saying that the Defendant would give favorable opportunities when the stem cell research is commercialized, while carrying out as if the content of the thesis and the result of the press conference to Nonindicted Co. 5’s Nonindicted Co. 7 were true.

B) As to this, the lower court acknowledged the following facts: (a) in full view of the purpose of concluding the research expense support agreement in this case; (b) the universality of research tasks; (c) ownership of the outcomes of the implementation of the research project; and (d) the process of concluding the research expense support agreement in this case, it is reasonable to deem Nonindicted Co. 5 to have provided the research funds in this case without any specific consideration for the Defendant’s stem cell research; and (b) it does not seem that Nonindicted Co. 5 provided the research funds in this case with the specific possibility of commercialization of stem cells in mind; and (c) even if the Defendant provided the Defendant to Nonindicted Co. 5 in the course of supporting the research expenses, the lower court determined that it was difficult to view that the payment in return for the above research expense support, unless the aforementioned contents are explicitly stated in the agreement, referring to the possibility of carrying on the project in cooperation with Nonindicted Co. 5, and that it was difficult to view it as the consideration for the research funds as agreed.

C) Examining the above fact-finding and judgment of the court below in comparison with records, it is just in the judgment of the court below that it is difficult to recognize that the defendant concluded a sponsoring contract by actively deceiving Nonindicted Co. 5 in the process of concluding a research support contract with Nonindicted Co. 5, and there is no error of law by misunderstanding the facts and affecting the conclusion

2) Impliation of the manipulation in the thesis

A) The deception as a requirement for fraud refers to all affirmative or passive acts that have a good faith and good faith in property transaction. Of them, deception by passive acts refers to a person subject to duty of disclosure who is aware that he/she was involved in a mistake about a certain fact and does not notify the other party of such fact. In cases where it is evident that the other party would not have been aware of such fact, in light of the empirical rule of general transactions, if it is evident that the other party would not have been engaged in the juristic act, it is legally obligated to notify such fact in light of the good faith principle (see Supreme Court Decision 2007Do1033, Apr. 12, 2007).

More specifically, in relation to the transaction of property rights, in cases where it is evident in light of the empirical rule that one party to a transaction would not notify the other party of any matter related to the transaction, which would result in the effects of the transaction in question or the performance of obligations, and would not cause any obstacle to securing contractual claims, without notifying the other party of the fact that the transaction would result in the other party's failure to make such notification, or would not receive any property or benefits from the other party, and the other party would not receive any notification of such circumstance if he/she would have received any notification of the situation, or would not receive any property, etc., he/she shall be obligated to notify the other party of such circumstance in advance in accordance with the principle of trust and good faith, and the failure to notify the other party of the fact that the deceptions the other party to the transaction, but the reason that the effect of the transaction does not affect the legal relation, and that the other party would not interfere with the realization of rights is not obligated to notify (see Supreme Court Decisions 91Do2698, Dec. 24, 1991; 28Do384.

B) As properly explained by the court below, in the case of scientific papers, the error or exaggeration of the data or false publication is made, and if the manipulation of the thesis itself has reached the degree of hindering the examination of the thesis examination agency, it is natural that the court below is liable for the crime of interference with business.

However, subsidies for research funds to enterprises or public-interest organizations may not be given to the scientists for the purpose of, or with the results of, any specific and visible research for the purpose of, research, and the development of science and technology in the relevant field, and the degree of contribution to the improvement of the quality of human life, etc. In addition, it cannot be deemed that the specific and detailed contents of each individual thesis published by the scientists are affected only by the accuracy or truth of the specific and detailed contents, such as the degree of contribution to the improvement of the quality of human life. Furthermore, due to the limitation of the scientific development in the least advanced science and technology field, there is a risk of failure to derive the research outcomes of an uncertain or economic utility high in the course or result of the research process or the result of the research. Thus, it is common that corporate social responsibility is performed as a voluntary donation based on the return of interest or good faith at the level of social responsibility, and thus, the general characteristic of property characteristics is different from the transactions and reasonable adjustment of interests of the parties.

Therefore, in cases where the criminal responsibility of the act of receiving research funds in relation to the research performance of the thesis after the manipulation of the thesis is not at issue, but the criminal liability of the act of receiving research funds in relation to the research performance after the manipulation of the thesis is at issue, considering the unique characteristics of the research funds in the field of the most advanced science and technology above, the act of not notifying such manipulation alone cannot be deemed as a deception by omission. If the contents and the part of the manipulation of the thesis was known that there was an act of using the thesis was an act of not notifying such manipulation without any exception, taking into comprehensive account the location and importance of the manipulation of the thesis, the motive and specific purpose of the research funds support, etc., even if it is evident that the actual research outcome was a fact of research, it shall be judged as a deception by fraud only when it is evident that there was an actual research outcome, and furthermore, it shall be determined more carefully and more carefully whether there was a causal relationship between the mistake of the defrauded or the other party and the payment of research funds.

C) We examine whether the act of not notifying the data manipulation of each thesis on the premise of the aforementioned legal principles constitutes a deception by omission.

First of all, it is reasonable to view that the failure to notify the fact of the 2004 thesis's data manipulation constitutes a deception in light of the following: (i) the motive to support the Defendant's research fund through the ▽▽▽▽△ Foundation of Nonindicted Co. 5 was established by the fact that the NT-1, an embryonic stem cell line, was not subject to any benefit in return or in mind of the possibility of specific commercialization; and (ii) insofar as such research outcome actually exists, it is difficult to view that it constitutes a deception without notifying some manipulation during the preparation of the thesis, even if there was a specific manipulation during the process of the thesis; (iii) since the NT-1 of the thesis was established as a stem cell in 204 based on the Defendant's perception, it is difficult to conclude that the Defendant's manipulation of the part related to NT-1, which was only part of the verified data, is an essential fact related to the formation of the research fund in this case's 204 research paper to the extent that it was difficult to conclude that it was difficult to conclude that the Defendant was in this case's of the research fund formation of this case's.

Next, as to whether non-indicted 5's failure to notify the facts of the operation of the research paper in 205 constitutes deception, the defendant seems to have been convicted at least NT-2, and 3 of patient-specific stem cell line established in the same process as NT-2, and 3, in light of the fact that the co-defendant 5's crime was committed in the first instance trial and DNA to conceal the crime was committed, and that there was no knowledge of the operation of the research paper. Since NT-4 did not appear to have been established in the above process, it is difficult for the defendant to believe that there was no problem in the fact that there was no customized stem cell line price in the above process, or that the stem cell line owner, which was established in the above process, knew that there was no customized stem cell line price of the patient, and that there was no possibility that it would be no customized stem cell line owner of the above research paper to establish the research paper on the premise that it would be difficult for the defendant to use the research paper to prove the possibility of using the research paper.

D) Therefore, based on the Defendant’s perception, in light of the contents and degree of the Defendant’s act of manipulating each thesis in 2004 and 2005, and the purpose and circumstances of the Defendant’s support of this case, it is difficult to deem that at the time of concluding the instant support agreement, the Defendant was liable to act by prior act to notify the Defendant of the manipulation of each thesis, or that the Defendant was in a surety position under the principle of trust and good faith. It is difficult to deem that the Defendant did not simply notify the Defendant of the manipulation of the data of each thesis at the time of concluding the support agreement to have reached the degree that the omission was equal to that of the Defendant’s intentional act or intentional act of deceiving the research funds of this case from Nonindicted

(D) Whether a causal relationship exists

1) First of all, as to the operation of the thesis in 2004 and the implied charge of its manipulation, Nonindicted Co. 5 changed the result of the DNA fingerprint analysis conducted by NT-1 embryo from the DNA fingerprint analysis conducted by NT-1 embryo due to the Defendant’s failure to obtain the test result at the time of the submission of the article, and even if the Defendant was aware of the fact that he fabricated theme photograph, it cannot be readily concluded that he did not support the research fund in light of the background and motive of the sponsor. Therefore, it is difficult to view that there exists a proximate causal relation between the act in this part and the research fund support.

2) Next, in light of the operation of the thesis in 2005 and the implied assertion of its manipulation, as the court below properly explained, it may be sufficiently recognized that a non-indicted 5 company did not provide the research fund of this case if it knew the objective fact that the actual stem cell line owner was not established at all. However, based on the defendant's perception, it is not readily concluded that it is evident that the actual patient-specific stem cell line was established at 12 or more, but it was not able to support the research fund of this case in the case of partial manipulation of the experimental data of the above thesis. Thus, it is difficult to view that there is causation between the defendant's implied or non-disclosure and the defendant's act of paying the support fund of this case by non-indicted 5.

(3) Whether there is a crime of deception and deception against agricultural cooperatives

(A) The judgment of the court below

The court below held that the deception as a requirement for fraud refers to all active or passive acts that undermine the fiduciary duty and good faith in property transaction. As such, there is no specific restriction on such means, and thus, omission may be included not only in the act, but also the so-called guarantor’s position to remove mistake of the other party in order to constitute deception, the court below stated in the facts charged itself as follows: “I am 2004 and 2005, hiding research paper manipulation and violation of the Bioethics and Safety Act, etc.” Further, it is difficult to determine that there is no direct relation with the legal interest to protect the agricultural industry (property) and thus, it is difficult to determine that the defendant's act of 40 research and improvement of the livestock industry's own funding and improvement of the livestock industry's livestock industry's own funding and improvement of the livestock industry's own funding and improvement of the livestock industry's own funding and improvement of the livestock industry's own funding and improvement of the research fund's own funding and development's own funding and improvement of the research fund's 147 research paper.

(B) Judgment of the court below

Examining the above fact-finding and judgment of the court below in comparison with records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to mistake of facts, or recognition of the criminal intent of deception, deception, or the status of guarantor, which affected

(4) The theory of lawsuit

In full view of the above reasons, it is difficult to view that the Defendant, based on the Defendant’s perception of the research funds of this case, has fabricated each thesis as if there was any such scientific outcome even though there was no intention or intent to acquire the research funds of this case, and even if the Defendant neglected the possibility of commercialization of stem cell research through an interview or lectures, it is difficult to regard the Defendant as constituting a separate deception in relation to Nonindicted Co. 5 or Nonghyup, and it is difficult to recognize a proximate causal relationship between the Defendant’s act of manipulating data, interview and lectures, and the Defendant’s act of using data of each thesis and the research funds of Nonindicted Co. 5 and Nonghyup.

Furthermore, even if the Defendant concealed the manipulation of each thesis in the process of receiving research funds of this case from Nonindicted Co. 5 and Nonghyup, in light of the process of concluding the sponsor agreement, the purpose of the contract, the content and degree of the Defendant’s manipulation by the thesis, and the degree of specific awareness as to the Defendant’s authenticity of the thesis, etc., it cannot be deemed that the Defendant had a criminal intent to obtain fraud, or that the Defendant had a fiduciary position to notify the Defendant of the fact of manipulating the data of each thesis. Thus, it is difficult to say that the Defendant acquired the research funds by deceiving Nonindicted Co. 5 and Nonghyup.

Therefore, the prosecutor's allegation of mistake or misunderstanding of legal principles is without merit.

4. Determination on Defendant 2’s assertion of unreasonable sentencing

A. There are more favorable circumstances, such as the Defendant’s primary crime without any previous conviction, the excessive enforcement structure of research expenses excessively and seems to have caused the Defendant to commit the instant crime, the Defendant appears to have not used the defrauded money for personal purposes for his own private interest, the Defendant has left a lot of achievements in the stem cell research, etc., and has contributed significantly to the development of domestic biotechnology technology. As the research task of the instant case has been completed, the government contributions and the corporate contributions were already recovered according to the contribution ratio of each institution among the research expenses subsidized by the Defendant as the research task of the instant case has been completed, and it is against the Defendant’s depth on the fact that the Defendant caused water by a rush judgment through the trial process.

B. However, the crime of this case is a case in which the defendant acquired research and development expenses of KRW 58,141,300 in total five times in total using a false tax invoice and a statement of transaction details, etc., and it is difficult to view that the crime of this case is committed or committed in light of the degree of the criminal intent or the amount of damage inflicted on the means of the crime. The statutory punishment of the crime of this case is a fine not exceeding 10 years or a fine not exceeding 20 million won. Considering the fact that the defendant is currently university professor status, it is deemed that the court below has already selected a fine by itself, and there is no change of circumstances that the court below has already decided to change the sentencing of the defendant, and there is no change of circumstances to change the sentencing of the court below at the time of the trial, and other various circumstances that form the conditions for the punishment of this case, such as the defendant's age, character and behavior, intelligence and environment, motive and background of the crime, means or method of the crime, and the circumstances after the crime, it is too unreasonable.

C. Therefore, the defendant's assertion of unreasonable sentencing is without merit.

5. Conclusion

Defendant 1’s assertion of mistake of facts against the guilty portion of the judgment of the court below is justified only for the portion deposited, concealed, and consumed in the name bank account of one bank in the name of the non-indicted 11 among the facts constituting the crime of the court below’s judgment. As such, this part and the whole of the facts constituting the crime of this case cannot be maintained, and since the court below sentenced Defendant 1 to a single punishment on the ground that this part of the facts constituting the crime of occupational embezzlement and the remaining facts constituting the crime of this case committed against Defendant 1 are concurrent crimes under the former part of Article 37 of the Criminal Act, the entire guilty portion of the judgment of the court below against Defendant 1 cannot be maintained.

Therefore, since the prosecutor's appeal against Defendant 1's acquittal portion and Defendant 2's appeal are without merit, all of them are dismissed pursuant to Article 364 (4) of the Criminal Procedure Act. Since the prosecutor's appeal against Defendant 1's conviction portion among the judgment below is with merit within the above recognition scope, the prosecutor's appeal against Defendant 1's guilty portion of the judgment below is without examining the prosecutor's allegation of unfair sentencing as to Defendant 1's guilty portion of the judgment below under Article 364 (6) of the Criminal Procedure Act and it

【Supplementary Enemy】

“To deposit 475,500,000 won in total over 13 times during the period from around September 1, 2001 to September 13, 2001 in the above borrowed deposit account in the name of Nonindicted Party 10, as shown in [Attachment 2] Nos. 1 to 13; and

In general, Articles 356, 355(1) (the point of occupational embezzlement, the choice of imprisonment), 347(1) of the Criminal Act (the point of fraud to the victim's country, the choice of imprisonment), 347(1), 30 (the point of fraud to the victim's non-indicted corporation 1, the choice of imprisonment, the choice of imprisonment), 51(1)5, and 13(3) of the Bioethics Act, and Article 30 of the Criminal Act (the point of providing property benefits related to the use of ovum)

1. Aggravation of concurrent crimes;

Article 37 (Aggravation of Concurrent Punishment as provided for in the former part of Article 37, Article 38 (1) 2, and Article 50 (Aggravation of Concurrent Punishment and Embezzlement of Crimes)

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following favorable Circumstances)

2. As to the part which the first instance court found guilty, the crime of occupational embezzlement and fraud of this case was committed by the Defendant from Nonindicted Corporation 1 on deposit with KRW 487,00,00 in the borrowed account with Nonindicted Party 10, his own relatives, and concealed and consumed the money that the Defendant received as purchase cost for the purchase of the corporation. It is difficult to see that the Defendant’s research and development of the crime of this case, such as plannedness of the crime, money laundering, etc., was not likely to be criticized, damage amount, and level of integrity and morality, which is the Defendant’s professor at the National University, to the extent that it is difficult to view that the Defendant’s act of embezzlement and biotechnological was not likely to cause damage to the victim’s reputation at the time of the crime of this case to the extent that it is difficult to view that the Defendant’s research or biotechnological act was not likely to cause damage to the victim’s property value at the time of the crime of this case, and that it was difficult to view it as a research or biotechnological act to the extent that it did not interfere with the ethical role of the Defendant’s.

Furthermore, regardless of the fact-finding decision and not guilty, the majority of the people, who met the awareness that the defendant established the stem cell of the first somatic cell reproduction in 2004 world and established the patient-specific stem cell in 2005, have experienced an internationally dictable status in the highest-tech biotechnology sector, and led the defendant to feel a significant support and gender for the biotechnology research led by the defendant. The first grade order was awarded to the defendant, and the status of tiny professor or highest scientists was given. After that, the defendant fells into the second grade order in the MBC PD pocket book and the ○○○ Investigation Committee following various suspicions of suspicions and prosecutor's investigation results, and the fact that there was no significant damage and credibility of the defendant's research in the field of science, and it is difficult for the majority of the people to believe that there was no controversy about the possibility that the defendant would suffer from any harm to the public's trust in the academic world and other material research activities in Korea, and that there was no concern about the possibility that the defendant would not have any other people's trust and credibility in the research paper.

3. However, even in the part found guilty, most of the money acquired by the Defendant through the crime of occupational embezzlement and fraud of this case appears to have been used for the purpose of welfare of the Institute, and there is no obvious circumstance that the Defendant used it for his personal or her gambling. Although the act of providing property benefits in connection with the use of ovum is illegal, it cannot be said that the degree of illegality is high in view of the fact that the provision of consideration is not directly monetary delivery, but rather the provision of pecuniary benefits such as the reduction of or exemption from expenses for non-temporary surgery, and even in the motive or circumstance of the crime, the crime was committed in order to obtain necessary ovum for the academic purpose of stem cell research, and even in the process of the crime, it is recognized that the Defendant had made considerable efforts to establish the type or procedure with the consent of the provider of ovum, and even if it appears to have contributed to the establishment of an optimal research and development of scientific stem cell in the field of science and technology of this case, it is hard to see that the victim of the crime of this case, as the victim of this case, did not have any controversy over the research of this case.

4. Comprehensively taking into account the various favorable circumstances and conditions, such as the defendant’s age, character and conduct, intelligence and environment, motive and background of the crime, means and methods of the crime, and circumstances after the crime, etc., the execution of the sentence shall be suspended by setting the term of imprisonment and the period of suspension of execution, which has been partially mitigated than the term of imprisonment and the period of suspension of execution as determined by the court below, in view of the following factors: (a) the defendant selected to be sentenced to imprisonment with prison labor for the defendant;

(4) The provisions of paragraph (1) are the same as those of paragraph (1).

2. Determination

As determined in Article 2-2-A (4) (c) of the above Act, the portion using the borrowed deposit account in the name of Nonindicted 11 is not proven, but there is no proof of the crime, and so long as the crime of occupational embezzlement is found guilty as stated in the judgment regarding the crime of a single crime, the sentence of innocence shall not be separately pronounced.

It is so decided as per Disposition for the above reasons.

[Attachment]

Judges Lee Sung-ho (Presiding Judge)

Note 1) The evidence submitted by the prosecution below is indicated as “Evidence ○,” respectively, and the evidence submitted by the Defendant is indicated as “influence ○.”

Note 2) On September 5, 2009, the 87th written judgment of the court below seems to be a clerical error.

Note 3) The implementation of a genetic fingerprint analysis test with respect to any body that has obtained specific results, but harsh results refer to the implementation of the same test with respect to another body that already knows answers in order to verify whether the results are abnormal obtained due to machine errors or other errors in the inspection process.

4) In general, when requesting a research institute to conduct a certain inspection, a testing institution’s labeling of the body in letters or numbers irrelevant to the substance of the body in order to prevent the testing institution from conducting a testing with prejudice to the results of the testing, or from viewing the research through the body of the body in order to maintain security.

5) The reason why the prosecution did not rate the defendant as the crime of interference with business is that there is no element of the crime of interference with business in the United States, France, Germany, etc., and Japan, with strict interpretation of the element of the crime of interference with business in the crime of interference with business, and there is an example that does not punish the scholars who have been engaged in several distorted papers similar to the case in this case, and the evaluation of the research truth and its result seems to be desirable by the academic self-sufficiency of the academic community through the theoretical criticism and scientific verification of other researchers. If the case becomes a precedent and depends on the judicial judgment on the authenticity of all the research contents, it may result in the serious decline of academic freedom by nullifying the self-determination function of the academic community (the trial record 5827-5828 pages).